Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Julie Aspinall v John Agius, JT Home Improvements Pty Ltd [2014] NSWCATCD 11 Hearing dates: 28 October 2013 Decision date: 16 January 2014 Jurisdiction: Consumer and Commercial Division Before: S Thode, Senior Member Decision: The application is dismissed. The respondent shall file and serve submissions as to costs within seven days of the making of the order. The applicant shall file and serve submissions as to costs within fourteen days of the making of the order. If either party wishes to be heard on the question of costs, application for a hearing must be made to the Registry immediately. Catchwords: Liability of contractor Legislation Cited: Home Building Act 1989 Category: Principal judgment Parties: Julie Aspinall (Applicant) John Agius, JT Home Improvements (Respondent) Representation: Ms McMahon (for the applicant) Mr Nematallah (for the respondent) File Number(s): HB 11/15133 reasons for decision Application 1Ms Julie Aspinall is the registered proprietor (the applicant) of premises located at "...", Turramurra NSW 2024 (the premises). 2The applicant alleges the second respondent, or alternatively the first respondent in his personal capacity as a director of the second respondent, were the builders retained to undertake renovations on the premises (the respondents). It is further alleged that the residential building work was defective and the applicant seeks damages for breach of statutory warranties pursuant to section 18B of the Home Building Act 1989 (the Act). 3The applicant alleges that the parties entered into an oral do and charge contract for performance of residential home building work. 4It is not in dispute that there was no written contract between the parties and that the respondents did not provide a certificate of home owners warranty insurance. 5Section 3 of the Home Building Act (the Act) defines residential building works to include at least some of the work performed by the respondents. It was not in dispute that the defective work complained of is "residential building work" for the purpose of the Act and that the Tribunal has jurisdiction to hear and determine the issues between the parties. 6The parties tender and rely upon on the schedule of defects set out at pp 240 - 243 of the tender bundle. Where the parties have referred to "defects" they are the defects as per items 1 to 11 of the Scott Schedule (the defective work) and set out in the report of Doug Coombs dated 6 October 2012 filed and served by the applicant (the Coombs report). The stacked Stone Feature Chimney - finish not proper and workmanlike The front ground Floor Patio - failed to tile in a proper and workmanlike manner The rear ground Floor Patio - failed to construct steps in accordance with BCA The rear 1st floor balcony -failed to waterproof The north 1st floor balcony - ponding and fail to tile properly Stormwater drainage - failure to provide gutters and stormwater drainage Other external issues - corroding balcony handrails, cracked cement, damaged roof tiling Kitchen floor - not level and not within specified tolerances Lime stone tiling - permanent discoloration and cracking Ground floor ensuite - failed to prevent water from escaping and wrong gradient Main Bathroom - The contractor failed to prevent water from escaping to shower enclosure and water penetration 7The parties have agreed as to the nature and extent of the defective work as set out in the Coombs report and have also agreed quantum. In the event that the respondents are found liable for the defective work, the parties agree that the appropriate amount of damages to be awarded to the applicant for breach of statutory warranties by the respondents is $118,467.29. 8It is not in dispute that the first respondent (Mr Agius)was on site at various times between 2004 and 2008. 9However, the first respondent denies that he performed the defective work complained of. It is his defence that he was on site in his capacity as a carpenter and that he did not perform the defective work. He is licensed as a carpenter and joiner. If the second respondent performed work for the applicant, such work was also limited to carpentry work. 10Further, it is not in dispute that the second respondent company rendered only two invoices dated 23 October 2007 and 28 February 2008 for the amounts of $34,668.00 and $14,987.00 respectively. The first was addressed to Mr Matthew Lane, as the previous owner; the latter was addressed to the applicant. 11The parties provided written submission on 15 November 2013 and 26 November 2013 respectively. The Tribunal reserved its decision on 26 November 2013. The applicant's evidence 12The applicant's documents tendered in these proceedings are contained in the "court book" and include the Statement of Julie Aspinall dated 19 October 2012, a report and a supplementary report of Douglas Coombs and Associates dated 6 October 2012 and 12 October 2012 respectively. The parties' combined documents were tendered and marked exhibit A. The applicant tendered exhibits B to H during the course of the hearing. 13Affidavits previously filed against New Age Constructions Pty Ltd were not read or tendered against the current respondents. 14The non-contentious parts of the applicant's statement are repeated verbatim: "The applicant became the owner of the property as a result of a divorce settlement agreed between herself and her husband Matthew Lane. Mr Lane was the sole owner of the property and in October 2007, and following interim orders of the family court, the ownership passed to the applicant." 15The applicant was aware that Matthew Lane was undertaking renovations at the premises between 2004 and 2007 before ownership passed to her. The Family Court ordered the husband to perform further work as late as September 2007 shortly before ownership passed to the applicant. Mr Matthew Lane has not been joined to these proceedings. 16In 2007 the applicant became aware of a written contract between Mr Lane and the renovating builder, New Age Design and Construction Pty Ltd (New Age). 17It is not in dispute that New Age was the first builder on site to carry out major renovations at the property between 2004 and 2006. The first respondent, Mr Agius, was previously a director of New Age. Mr Agius is a director of JT Home Improvements Pty Ltd, the second respondent. 18New Age obtained Home Owners Warranty Insurance (HOW) for the benefit of Mr Lane. New Age is not a party to these proceedings. Proceedings were commenced against New Age and ultimately dismissed by consent with no order as to costs. The current respondents were joined to the proceedings on 17 September 2012 at the request of the applicant. The applicant never sought to join the former owner, Mr Matthew Lane, to these proceedings. 19A written scope of work for the original renovation was not included in the evidence and Ms Aspinall's description of the renovations is set out in paragraph 12 of her unsworn statement. 20It is the applicant's case that New Age was dissolved and that Mr John Agius in his personal capacity or, in the alternative, his company (JT) the second respondent, completed the remainder of the renovation work and in so doing performed the defective work now claimed for. 21The applicant first assumed that "New Age had changed their name to JT". She later learned that that was not the case. Both companies, the second respondent (JT) and New Age, are separate corporate entities but share a common director, Mr Agius. 22The "Notice of Development Application" dated 29 September 2004 was granted to Mr Matthew Lane. 23The initial building contract was entered into between Mr Matthew Lane and New Age Construction, signed by Mr Peter Sultana, on behalf of New Age on 29 November 2004. The contract at page 9 relevantly states as follows: "the owner will carry out the work and supply the materials described below. The cost of that work and materials will not be included in the contract price. Works and materials by Owner: Bathrooms, Plumbing, Electrical, External Cladding." 24The applicant deposes that "renovations were substantially completed in September 2007 before I took occupation and ownership of the property. During the time that the renovations were taking place I would visit the property at least monthly and often weekly to see what was happening"(see statement of Julie Aspinall dated 19 October 2012, paragraph 15). 25She further deposes: "During 2005 and 2006 when I visited the property I would usually see John Agius ... working at the site and would also often see Mario Agius at the property." 26It is not in dispute that Mr Agius ceased to be a director of New Age in December 2006. 27In or around November 2007 after the ownership of the property passed to Ms Aspinall, she became aware of defects in the premises, primarily arising from defective waterproofing. The applicant arranged "for repairs with Mr Vince Oliveri who I knew carried out the plumbing work on the property" (see unsworn statement Julie Aspinall). Mr Oliveri was not called to give evidence. 28At around the same time in or about 2007 the applicant confronted Mr Agius requesting a waterproofing certificate for the property and the first respondent stated he did not have a certificate and said "I didn't do the work" (see statement of Ms Aspinall). 29Following the initial confrontation about the waterproofing certificate, the applicant retained Mr Agius to perform work on her cabana in February 2008. Mr Agius performed a number of tasks and submitted one invoice for work performed to the applicant. 30Two invoices numbered 18 and 20 are tendered in the proceedings. Invoice 20 is the only document that supports a finding of an oral do and charge contract between the parties. Invoice 20 sets out carpentry work performed by the respondent for the applicant. Invoice No 18 is addressed to Mr Lane and also speaks of carpentry work performed albeit for Mr Lane. 31The applicant conceded under cross-examination that she never witnessed the applicant work on any of the defective items set out in paragraph 8 above. 32A building defect report was obtained for Ms Aspinall during the course of divorce proceedings to assist in the valuation of the premises, taking into account the defective work identified as early as 2009. The report was prepared on behalf of Ms Aspinall by Mr Matley, of Expert Building Consultancy. The defects described in the Matley report mirror to a large degree the defects identified in the Coombs report and identified in paragraph 8 above. 33The Matley report dated 15 June 2009 includes the following instructions to the expert: "I have been instructed by [the solicitor for the applicant] to provide a list of defects found and costs to rectify on the constructed work installed by Mr Matt Lane(Tribunal emphasis added) and other work installed by a builder New Age Design& Construction Pty Ltd. I have been instructed that the owner at the time, Mr Matt Lane, had constructed a lot of the work and engaged the builder to construct mainly the second storey addition excluding the bathrooms (emphasis added)." 34The applicant places significant reliance on two documents tendered in the proceedings. Firstly, a waterproofing certificate under the hand of GF & MD Barber "Waterproofing Specialists" dated 25 January 2005, certifying the wet areas, namely the upstairs and downstairs bathrooms, rear and front balcony and the rear deck. The certificate is addressed to "JT Home Improvements" (the certificate). 35The second significant document tendered is an unsigned and undated letter from JTaddressed to the applicant, denying defects in the waterproofing and offering to undertake repairs. 36The applicant submits that these documents are of particular import, as they are both addressed to the respondent, and the applicant submits, are therefore probative of either one of two propositions: the respondents must have performed the work, asMr Agius offers to repair some of the work; or, in the alternative, Mr Lane acted as sub-contractor of the respondents. The applicant submits that the first respondent as the only licence holder performed the work, and Mr Lane, from time to time assisted him. Both documents are referred to in greater detail below. 37A statutory declaration of 20 April 2011 of Mr Lane is tendered in the applicant's case. Significance is placed on the following paragraph: "JT Home Improvements were subsequently engaged with a do and charge type contract for various scopes of work none of which I can see has been nominated as defective." This earlier statement, the applicant submits, is proof of the fact that JT must have performed the defective work. Further, had Mr Lane been truthful in his dealings with the applicant he should have identified in his 2011 statement or in the later subsequent affidavits the contractors who did the work, such as Mr Megane, who was mentioned for the first time in cross-examination. "Lane could have easily provided the home owner with details of the entity who carried out the defective work. He refused to do so even under summons" (see written submissions applicant's counsel paragraph 36.) 38It is submitted that the written evidence of Mr Lane is "concocted" and full of "untruths" in order to assist Mr Agius avoid liability. 39A Decoglaze invoice for a splash back also addressed to JT Home Improvement demonstrates that materials were delivered to the premises while either Mr Lane or Mr Agius were on site. This, it is submitted, is proof of the fact that the respondents carried out more than just carpentry work. 40The licence number which appears on JT's letterhead is that of John Agius, the director, in his personal capacity. JT (the company) is unlicensed. Thus Mr Agius, and or his company have engaged in misleading and deceptive conduct in representing to Ms Aspinall that the second respondent company was licensed. 41It is submitted that both Mr Lane and Mr Agius misled the Tribunal and both were prepared to give untruthful responses under cross-examination. The failure by both Mr Lane and Mr Agius to produce documents under summons is proof of the fact that both men were colluding, and "deliberately evasive and untruthful not only in the response to the summons but under cross examination as well. The clear inference to be drawn is that he (Mr Agius) has failed to disclose all the relevant documents in order to escape liability in relation to these proceedings" (see written submissions paragraph 35). 42Similar allegations are made against Mr Lane: "Lane was specifically asked for copies of all contracts and quotes from any other contractor for works for to "..." since October 2004, in his written response Lane says ...'not prepared to provide originals and yet to receive compensation for copies'..This answer certainly suggests that contracts and quotes do in fact exist. However when cross examined Lane denied the existence of any quotes or contracts. The conclusion to be drawn is that he was either untruthful in response to the summons or untruthful under cross-examination" (see paragraphs 37 to 40, written submissions). 43Finally the applicant asks the Tribunal to conclude that non-compliance with section 92 of the Act, namely Mr Agius' failure to insure the work, should lead to a finding that he, or alternatively his company, are liable for the defective work. 44Both respondents should be held liable for the defective work. The respondent's case 45The respondents documents tendered in the proceedings include the statement of John Agius of 26 November 2012, the Affidavits of Mr Matthew Lane dated 14 February 2013 and 22 May 2013, the report of Mr John Worthington & Associates dated 17 April 2013. 46The former owner, Mr Matthew Lane, provided sworn evidence that he was in fact in control of the defective building work and carried out most of the building work with the respondent company only being called on to carry out isolated carpentry work. In particular it is denied by the respondents that they had colluded to establish the impression that the respondents were not the builders at the time. 47In a document entitled "defence" the respondents set out the following: "The first and second respondents deny they are responsible for defective work as alleged by the applicant performed at "..." Turramurra. The defective work as alleged was carried out under the supervision and control of Matthew Lane and other tradespersons retained by Matthew Lane. ... Further and in the alternative the respondents deny that the applicant is able to recover the quantum alleged on the basis that: The applicant has received compensation for the defects upon which she now claims; and 2. The applicant makes claim as successor in title having acquired the subject property from her husband Matthew Lane and was aware of the defects as at the time of acquisition and has not suffered loss. Signed [solicitor for the respondents]." 48The respondent tendered the affidavit of Matthew Lane dated 14 February 2013, deposing as follows: "I originally contracted with New Age Constructions Pty Ltd ("New Age" to carry out the stages up to Lock Up which included the renovation works on the property. After lock up in around November 2005 I continued to carry out work on the property which I performed myself. Although I did not apply for an owner builder licence I had the day to day control over all works carried out on the property from November 2005 onwards. On occasion I made contact with John Agius of JT Home Improvements Pty Ltd and asked him to do carpentry work for the property. He only attended the property at my request on intermittent occasions to carry out work as I directed. The carpentry work which was carried out by JT Home Improvements Pty.... I carried out all waterproofing works on the bathrooms of the property. (emphasis added) I required a certificate as to the material I had used and asked John Agius of JT Home Improvements Pty Ltd whether he had a waterproofer who could certify the material used for the waterproofing. He told me that GJ and MD Barber were persons he used and that Garry Barber had agreed to provide a document certifying the material used in the waterproofing. ...." 49The further sworn affidavit of Mr Lane dated 22 May 2013 attachesdocuments relevant to the family law proceedings, in particular a letter of P&D Pty Ltd, under the hand of accredited private certifier Peter J O'Neill. Mr O Neill advised Mr Lane that for an occupation certificate to be issued, a series of works needed to be completed, among others: "Complete WC Mirror etc. to ground floor ensuite, and complete vanity basin, mirror etc. to first floor bathroom. ...Complete GPO switches etc. throughout. Certification: Wet area sealing certification for all plumbing and drainage works for all bathrooms, Glazing certificates for all glazing and shower screens..." 50The interim family law order required "the husband to complete the works detailed in the letter from P&D Pty Ltd ... within seven days of the date of the orders." Mr Lane was not cross-examined on this issue, but volunteered that he performed the work as required of him. I conclude that this is further indication that Mr Lane performed residential building work, albeit in an unlicensed, uninsured capacity, as late as 2007, as ordered by the Court. There was no evidence to suggest that Mr Agius had any involvement in the property after September 2007, other than to complete the carpentry work he was specifically asked to perform by Ms Aspinall. 51During cross-examination the applicant conceded that she did not observe what, if any, residential building work was performed by the respondent, Mr Agius. She saw him with tools in his hand throughout various locations at the premises, but was uncertain as to the nature of the work he performed. 52The applicant did not pay Mr Agius for the work now agreed as defective. 53In his unsworn statement dated 26 November 2012 Mr Agius states that the respondents had "At no time been contracted or asked to complete the works (originally undertaken by New Age Design and Construction Pty Ltd at [the premises]. JT Home Improvements was asked to the works (sic) outlined in the application ... by Matt Lane at [the premises].... Julie Aspinall contacted JT Home Improvements Pty Ltd in February 2008 to undertake further works by way of "do and charge" at the premises unrelated to the works outlined in HB 11/15133. A copy of Invoice 0020 has been supplied for your records. JT Home Improvements Pty Ltd has completed carpentry work on numerous properties owned by Matt Lane and Julie Aspinall over the last 20 years.... JT Home Improvements is not responsible for works completed by Matt Lane. JT Home Improvements did not engage with any contractor to complete electrical, plumbing, painting, water proofing bathrooms or external cladding related to the works outlined in the application. JT Home improvements Pty Ltd has had no contract or home owners warranty with [the premises] as this was not required for the carpentry works outlined above." 54It is the respondents' submission that the applicant knew as early as 2009 of all defects in the property and was duly compensated for them. The Matlock report of 15 June 2009, set out all known defects in the property and estimates the cost of repairs at the time the divorce proceedings were conducted as approximately $103,000.00. It is submitted that these defects were taken into account in the family law settlement and that the applicant was fully compensated for all defects now complained of. The respondents submit that the family law proceedings give rise to the issues of res judicata and / or issue estoppel and the respondent is not entitled to "double recovery". 55Mr John Agius was sworn, adopted his previously unsworn statements and cross-examined. He confirmed that he, in his personal capacity holds a licence that entitles him to do carpentry work and that he limited the work he performed on the applicant's premises to such work. When asked specifically whether he carried out electrical, plumbing or glazing work he answered in the negative. 56He was cross-examined at length about his commercial relationship with Mr Matt Lane and conceded that he worked with Mr Lane on other projects in Young Street and Bridge Street. Exhibit E refers to Mr Lane as "project manager" for JT in a document entitled "quotation". 57It was put to Mr Agius that at the premises, subject of these proceedings, he was acting in his capacity as head-contractor and Lane was employed as a sub-contractor. This proposition was denied by both Mr Agius and Mr Lane. 58During cross-examination it was put to Mr Lane that although he deposed to borrowing $35,000.00 from Mr Agius, that this was a further "concoction" or untruth. Mr Lane gave evidence that a $35,000.00 loan from Mr Agius was paid to pay various subcontractors on site. 59It is the applicant's submission that this is a further untruth and that Mr Lane never borrowed or "repaid" a fictitious loan of $35,000. Any money paid by Mr Lane to Mr Agius was payment for work performed by the respondents in their capacity as builders or headcontractors on site. This concoction of loans from Mr Agius to Mr Lane should persuade the Tribunal that both men are conspiring to mislead and deceive. 60Mr Lane swore to tell the truth. It was not directly put to him that he perjured himself in the witness box although that was the overall tenor of the cross-examination. Mr Lane during cross-examination gave sworn evidence that he received about $35,000.00 from Mr Agius, and that he used to pay the money to pay for various subcontractors after the applicant withdrew $40,000.00 from Mr Lane's bank account rendering him unable to meet payment. He deposes further that the loan was repaid after family law proceedings were settled. Findings and Decision 61The applicant cannot prove a liability on the part of the respondents,and either of them, for several reasons. 62The applicant has failed to establish that the respondent was responsible for the defective work as set out in paragraph 8 above. The onus of proof rests at all times with the applicant. In the absence of a written contract it was incumbent upon the applicant to demonstrate in other ways that the respondents performed the defective work complained of, on the balance of probabilities. 63I have had particular regard to the two documents tendered by the applicant. Invoice 20 is the only documentary evidence supporting an "oral do and charge" contract between the parties. The invoice speaks for itself and support the respondents' submission that its tasks were limited to carpentry work. 64Tax invoice No 20 for $14,987.00 was sent to the applicant on or about 28 February 2008. The letterhead refers to "JT Home Improvements Pty Ltd - for all your carpentry requirements". The work for which payment is claimed sets out a series of works ranging from "supply and fix hardwood decking to entertainment area" to "supply and fixed timber lid to pool pump".Importantly, the invoice makes no reference to the relevant defective work performed and as set out in the Coombs report in paragraph 8 above. 65JT's second Tax invoice No 18 dated 23 October 2007 and addressed to Mr Lane, similarly makes no reference to the eleven defective items now claimed for, but sets out various carpentry tasks performed on the premises. 66It is not in dispute that there is no mention of the eleven defective items set out in paragraph 8 above in either of the two invoices. 67Mr Agius and Mr Lane were each cross-examined at length about their involvement in respect of the 11 defective items. Mr Agius denied he undertook the defective work. I accept his denial as truthful. In particular, I am not persuaded that the respondent undertook any waterproofing work at the property. I accept his sworn evidence and am satisfied that he was not involved in the construction of the bathrooms or the other defective items complained of. 68Mr Matt Lane gave sworn evidence, when examined and cross-examined in respect of the 11 items, that he performed the defective work himself with the assistance of a worker by the name of Mohammed Megane. 69I accept Mr Lane's account of the work performed by him. Other documents support his version of events. The bathrooms were excluded from the original scope of works (as per contract entered between Matt Lane and New Age) and Mr Lane in his capacity as the owner of the premises was responsible for the construction of the bathrooms. The applicant herself accepted that New Age did not build the bathrooms and later assumed that the respondents must have constructed the bathrooms (see letter from her solicitor to the respondent). I have also had regard to the applicant's earlier instructions to her solicitor in the requisition of the Matlock report. It was clearly assumed by the applicant between 2009 and 2012 that Mr Lane was principally responsible for the residential building work after New Age left the site. However, on 17 September 2012, Mr Agius, not Mr Lane is joined as respondent to the proceedings. 70The applicant places significant reliance on an unsigned undated letter under letterhead of JT Home Improvements Pty Ltd addressed to her in the following terms: "over the time worked on your house including your additional work no leaks were encountered in the locations you specified. Again I question whether any membrane failures have since occurred...I am somewhat sceptical of the claims of membrane failures following your discussions with me prior, that you want to change the colour of the tiles.... I am prepared to make any repairs necessary." The applicant, in written submission by counsel, refers to this letter as the "smoking gun", which I take to mean proof or alternatively an admission as to the respondents' liability for the waterproofing work. The letter does not state that the respondents performed the work. The respondent was cross-examined at length and denies he wrote or sent the letter. 71Mr Lane gave sworn evidence that he wrote the letter unbeknownst to the first respondent, and asked the first respondent's wife to send it to Ms Aspinall in order to assist the respondents in negotiations with the applicant. At the time the letter was composed proceedings against Mr Agius were foreshadowed by Ms Aspinall. It is the sworn evidence of both Mr Agius and Mr Lane that the former turned to the latter for help. The tenor of the letter is to deny the existence of defective work. The circumstances surrounding the letter and its creation are vague. Reluctantly I come to the conclusion that neither Mr Lane nor Mr Agius were completely frank in their evidence concerning the letter. 72However, I am not satisfied and cannot arrive at a finding that the letter itself is probative of the respondents' liability. On balance, I accept that Mr Lane, and not Mr Agius wrote the letter. As to his motivations, I can only speculate, but where the evidence is in conflict, I refer to the sworn affidavit of Mr Lane of 14 May 2013, in which he deposes that he carried out the defective work. I accept his evidence concerning the performance of the work as truthful.The affidavit was tendered in proceedings after both Mr Agius and Mr Lane received legal advice. It was witnessed by the respondents' solicitor. I attach significant weight to the sworn evidence by both Mr Agius and Mr Lane given in written form and during cross-examination. 73I turn to the applicant's submission that Mr Lane's statement of 2011 referred to in paragraph 40 above is further proof that JT carried out the defective work. However, the statement makes no specific reference to the defective items actually claimed for and I reject the applicant's submissions that it establishes liability on the part of the respondents. 74The applicant was cross-examined at length and was unable to give an account of actually having witnessed the respondent perform work at the site. She gave evidence that she would "drive by" the premises and observe Mr Agius carrying a hammer. A typical question in cross-examination on the eleven items set out in paragraph 8 above may be as follows:"in regards to the stacked stone feature chimney, did you see him do the chimney" Answer: "No". I note that the Tribunal is not provided with transcript. 75Mr Lane was cross-examined about the specifics of waterproofing work he performed. I accept Mr Lane's evidence that he himself laid the bathroom membrane. It is not in dispute that Mr Barber, the waterproofer, sent a certificate to Mr Agius. I accept that Mr Lane, who was required to conform with interim Family Court orders to provide certification contacted Mr Agius and asked him for contact details of a "preferred water proofer" who may certify the work. The evidence by Mr Lane is that he had never met Mr Barber, and that he assumed Mr Barber sent the waterproofing certificate to the only person Mr Barber did know on site, and with whom he had a longstanding relationship, namely Mr Agius. I am not satisfied that the fact that the waterproofing certificate is addressed to the second respondent is probative of the fact that JT actually performed the work.Mr Agius during his evidence said about the waterproofer: "I gave him (Mr Barber) the number of Matt Lane and he (Matt Lane) arranged the waterproofer to have the bathroom certified, but it was addressed to me." There is no evidence before the Tribunal that Mr Barber had any personal knowledge whether Mr Lane or Mr Agius performed the waterproofing work and I draw no inference from the failure of either party to call him as a witness. 76On balance I am satisfied that Mr Lane performed or supervised the performance of each of the defective items complained of. On the basis of the admissions made in his affidavit dated 14 May 2013, it was open to the applicant to join Mr Lane to the proceedings and to have his liability determined at the same hearing. The applicant did not join Mr Lane to the proceedings at earlier directions hearings, and no application for joinder was made before or during the course of the hearing. 77It was agreed between Mr Lane and New Age in 2004 that Mr Lane, who has worked in the building industry for many decades, would provide all materials and himself install the bathrooms. The fact that Mr Lane neglected to secure an owner builder licence in contravention of the Act does not prove liability on behalf of the respondents. It is suggested that the respondents are more likely to have performed the defective building work as they held a licence, whereas Mr Lane did not. It is submitted that as holders of a licence the respondents are likely to be head-contractors, and Mr Lane their sub-contractor. I reject this argument. The fact that a carpentry licence was issued to the respondents merely demonstrates that once the contract with New Age was terminated, no-one on site held a relevant licence permitting performance of residential building work. On the basis of Mr Lane's sworn evidence I am satisfied, on balance, that the major renovation work was primarily carried out or supervised by Mr Lane. There was no direct evidence led by the applicant that the eleven defects now complained resulted from residential building work performed by Mr Agius or JT. 78The applicant states that she knew Mr Oliveri performed plumbing work. Mr Oliveri was not called to give evidence and while the Tribunal does not draw any inferences, the evidence of Mr Oliveri may have assisted in determining whether Mr Agius or Mr Lane installed the bathrooms. 79Even if the Tribunal accepted the fact that Mr Agius did more than carpentry work from time to time, I cannot be satisfied that it is proof of the fact that he carried out the defective work set out in paragraph 8. 80In light of my finding that the respondents did not perform the defective work, it is not necessary for me to make any findings concerning the relevance or otherwise of orders made in related family law proceedings between the applicant and Mr Lane. Misleading and deceptive conduct 81At the morning of the hearing counsel for the applicant sought to amend the application to include a claim for misleading and deceptive conduct. 82The issue was not previously raised before the Tribunal, nor had the respondents been on notice of the allegation. 83The written submissions filed and served after the hearing set out as follows: "... One invoice has been produced (inv 18 for $34,668 dated 23 October 2007), which is an invoice from JT. .. the JT invoice contains a licence number ... this is not a company licence number but is in fact the personal licence of Agius....the representations by Agius in signing a company letterhead document containing his own personal licence is a breach of section 18 of the Australian Consumer Law (ACL) in that it is misleading and deceptive." 84I am not persuaded that the invoice amounts to misleading and deceptive conduct made in the context of trade and commerce for the purpose of section 18 of the ACL. 85The particular representation relied upon is that Mr Agius represented to the applicant that JT Home Improvements was licensed when in fact it was not. 86I do not accept that the licence number displayed is in fact misleading the applicant. 87The invoice is addressed to Mr Lane and not to the applicant. The explanatory memorandum accompanying the ACL Bill No 2 states that the misleading and deceptive conduct must be made in relation to a future act. The invoice is rendered after the completion of work for Mr Lane, the previous owner, and as such I am not satisfied it is a representation in respect of a future act. 88Even if I was satisfied that Mr Agius made a misleading and deceptive statement, which I am not, the statement does not go to an issue in dispute between the parties. The license displayed permits the performance of carpentry work and having regard to the items on the "deceptive" invoice, this is, in fact what Mr Agius performed and charged for. 89Further, I am not satisfied that the carpentry work set out in invoice 18 is relevant to the facts in the case, referring back to the 11 defective items now claimed for. Any representation in respect of carpentry work performed for Mr Lane does not assist the applicant in her claim against Mr Agius as it does not go to a relevant fact in dispute. I am satisfied Mr Agius made no misleading or deceptive representations in trade or commerce to the applicant. 90Finally, I note that there are no damages sought, pleaded or particularised in respect of the "misleading and deceptive conduct" alleged. Failure to insure 91I accept that the respondents performed work in contravention of s 92 of the Act, and did not procure Home Owners Warranty insurance. The Tribunal was not referred to any decision in which a court has considered the entitlement of an applicant for damages recoverable from a builder who has offended section 92 of the Act. The failure to insure the work gives rise to civil consequences and penalties. In Brodyn Pty Ltd t/as Time Cost and Quality v Davenport [2004] NSWCA 394; (2004) 61 NSWLR 421, Hodgson JA (with whom Mason P and Giles JA agreed) said "In my opinion, the remedy given by the Act is not of the nature of damages or any other remedy in respect of breach of contract nor is it enforcement of the contract: it is a statutory remedy." 92The fact that insurance was not secured by Mr Agius does not advance the applicant's case that Mr Agius was liable for the defective work. Head-contractor sub-contractor 93The applicant alleges that Mr Agius as head-contractor, obtained the services of Mr Lane as sub-contractor, and as such, regardless of any finding that Mr Lane performed the defective work, the respondents ought to be held liable for any work he performed by effect of section 34 of the Civil Liability Act 2002 which precludes apportionability in Home Building Claims. 94The respondents denied that they werethe head-contractors on site. Mr Lane denies he was a sub-contractor. 95Ms Aspinall in her statement of 19 October 2012 states that in her mind Mr Agius worked for Mr Lane, not the other way around: "I had known John Agius for a long time as he worked for Matt". I accept that Mr Lane and Mr Agius worked together over a period of many years on many different projects. A quotation tendered on behalf of the applicant nominates Mr Lane as a "project manager" for JT, on another building job, at premises not relevant to these proceedings. The quotation was not accepted and Mr Lane never took on the task of "project manager". I am not satisfied that the quote is relevant to the current proceedings. 96I am not satisfied that the applicant has established, on the balance of probabilities, that Mr Lane was Mr Agius' sub-contractor. It is submitted that it must be so because the waterproofing certificate was issued to JT, and once a finding is made that the respondents are responsible for the work, it must follow that Mr Lane or Mr Megane were subcontractors. I reject this submission. 97Finally, I have had regard to the applicant's submissions in respect of summonses issued and the respondents' alleged failure to produce documents in response. I am invited to find that Mr Agius' "had been deliberately evasive and untruthful not only in response to the summons and under cross examination." I reject the applicant's submission in this regard. I am not satisfied that Mr Agius was untruthful. The production of an invoice by third parties such as the Decoglaze invoice does not establish that the respondent had the same documents in his possession at the time he was served with the summons or that he deliberately withheld documents from production. Even if I was satisfied that Mr Agius or Mr Lane withheld documents, which I am not, at the commencement of the hearing no application was made in relation to the summonses. 98For the reasons set out above I am not satisfied that the defective residential building work was carried out by the respondents. I am satisfied that Mr Lane performed the defective work and that Mr Agius performed carpentry work from time to time. 99Mr Agius did not hold the requisite licence for residential building work as set out in paragraph 8 above. The licence issued to Mr Agius entitles him to perform work as a "carpenter and joiner" only. The applicant found herself in a position where neither Mr Agius nor Mr Lane were appropriately licensed or insured to perform residential building work. Mr Lane admitted performing the unlicensed uninsured work, and Mr Agius denied it. The applicant elected to proceed against Mr Agius only. 100I am satisfied on the balance of probabilities that Mr Lane performed the defective work as set out in paragraph 8 above and in light of these findings I make the orders in paragraph one above, dismissing the application. ORDERS 101The application is dismissed. 102The respondentshallfile and serve submissions as to costs within seven days of the making of the order. 103The applicant shall file and serve submissions as to costs within fourteen days of the making of the order. 104If either party wishes to be heard on the question of costs, application for a hearing must be made to the Registry immediately. S Thode Senior Member Civil and Administrative Tribunal of New South Wales 16 January 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 May 2014