Civil and Administrative Tribunal New South Wales Medium Neutral Citation: A G and J R Keevers trading as Frontline Fences v Colin McQueen and Jennifer McQueen and Hadomall Pty Ltd Colin McQueen and Jennifer McQueen and Hadomall Pty Ltd v A G and J R Keevers trading as Frontline Fences [2014] NSWCATCD 137 Decision date: 23 July 2014 Before: G Bassett, General Member Decision: 1.On or before 13 August 2014, the applicants/cross-respondents (home builders) are to pay the respondents/cross-applicants (home owners) the sum of $2,880.00 Catchwords: Warranty, suitable for the purpose, proper and workmanlike manner Legislation Cited: Section 18 Home Building Act 1989 Category: Principal judgment Parties: A G and J R Keevers trading as Frontline Fences (applicants/cross respondents) - builder Colin McQueen and Jennifer McQueen and Hadomall Pty Ltd (respondents/cross applicants) homeowners File Number(s): HB 13/54530, HB 13/60717 reasons for decision APPLICATION 1On 21 October 2013 the builders lodged application HB 13/54530 for the respondents to pay the sum of $938.00 for work done. 2On 1 November 2013 the matter came before the Tribunal. The home owners were directed to put on any cross-application by 22 November 2013. Any cross-application was directed to be heard with HB 13/607/17. 3On 22 November 2013 the home owners lodged a cross-application seeking orders that the respondents pay them the sum of $5,360.49. They also sought relief from paying the $938.00 sought by the builders. 4On 29 November 2013 Jennifer McQueen and Hadomall Pty Ltd were joined as respondents/cross-applicants. Hadomall was the corporate trustee of the home owners self-managed superannuation fund. Directions were made regarding exchange and lodgement of evidence to be relied on in respect of both matters. JURISDICTION 5A building claim includes a claim for the payment of a specified sum of money that arises from the supply of fencing goods and services as in this case. In determining a building claim, the Tribunal has the power to make an order that one party to the proceedings pay money to the other party. The Tribunal has jurisdiction to hear and determine this claim as it is under jurisdictional limit in that the amount claimed does not exceed $500,000.00. 6A contractor licence pursuant to s 120 of the Home Building Act ("the Act') was current for the respondents until its expiry on 19 December 2013. A Qualified Supervisor Certificate for Allan Gregory Keevers did not expire until 7 March 2015. It was notated with the words "Cannot Contract With Consumers". 7The Tribunal has jurisdiction to hear the matter. EVIDENCE OF THE APPLICANTS 8The builders relied on: (a)Statutory declarations of various staff. (b)Alleged fencing contract and quotation to home owners. (c)Letter to builders from Colin McQueen dated 18 September 2013, builders' reply letter dated 25 September 2013, further letter of Colin McQueen dated 9 October 2013, further reply letter of builders dated 18 October 2013. (d)Plan of fence location. 9The builders also gave oral evidence. 10The builders claimed for their final instalment payment. This had been withheld by the home owners as they sought rectification of the works done. 11The builders conceded no standard form small contract job contract was supplied. The builders supplied an original quote for the work in May 2013. It quoted a total price of $2,904.00 to remove and dispose of the current fence and install "treated pine paling fence with butted palings to the left hand side boundary". A further $275.00 was quoted to supply and install a new side return gate. 12The cost of the work was to be shared between the home owners and their neighbours as it was a dividing fence. 13Discussions were held with the home owners on 3 September 2013. The builder said he produced a new quote numbered "913210A". The cost of the fence was altered to $3,170.00 and the gate remained the same. 14Alan Keevers said he received a text from the neighbour approving the September quote but with an amendment to use galvanised posts. 15Servants of the builder took the fence down on 5 September 2013. The builders said the invoice for the work was taken to the respondents on that day. Late that day the builders said they received a text message asking that palings be placed facing towards the home owners' home. 16On 6 September the contract and invoice for the work was taken to the neighbours. Under cross-examination. Mr Alan Keevers denied he backdated the contract/quote/invoice to September when it was suggested to him that no contract was produced to the home owners or the neighbours around the period of early September. 17When the workers arrived to install the new fence they put up a string line. There was a difference between that line and the existing fence. The respondents were not at home. Builders said their worker went into the neighbours' house and asked if they wanted the fence on the string line or the line of the fence just removed. Builders said the neighbour told them to place it on a straight line. Builders said Mr McQueen visited while work was being done. He did not express any discontent with the work or ask for it to be stopped. It was alleged the builders were asked to "fudge the post around the steps". 18Ben Keevers gave evidence he hung the gate so that it swung into the neighbours' property. He cut a gap under the gate. He did this to avoid a problem if the clothesline of the respondents was in the up position. 19He said that when he removed old posts he cut them at ground level. Old concrete and parts of posts below ground level remained. It was not his course of conduct to remove old posts below ground level unless new posts were to go in that spot. On being shown photographs in cross-examination, it was conceded some old posts remained above ground level. The home owners contended these were trip hazards. 20He said he was not asked to put a hand hole on the gate to allow access to the locking device. 21Both builders on cross-examination displayed little awareness of fence set-backs from buildings as set out in the Tweed Council planning documents. They were unaware that set-backs ought to have been 1.5 metres from buildings. EVIDENCE OF THE RESPONDENTS 22In respect of the cross-claim and the builders' originating application the home owners relied on: (a)Photos. (b)Statement of events dated 20 November 2013. (c)Additional statement dated 9 January 2014. (d)Statutory declarations of a neighbour to the dividing fence subject of the dispute, a tenant of the home owners property, Colin McQueen, Jennifer McQueen. (e)Invoice. (f)Quotes to repair fence. (g)Planning documents of Tweed Council. (h)Copies of the builders own statements. (i)Survey and surveyor's tax invoice. (j)Property inspection report by an independent building consultant. 23Colin McQueen said the home owners were not given the September varied contract prior to work commencing on 5 September 2013. He said that Mr Alan Keevers spoke with Mrs McQueen on the afternoon of 5 September and told her about the new quote with the variation for steel. It was expressly discussed that the palings were to be on the neighbours' side of the fence. 24He said that when he visited the work site on 6 September he asked Ben Keevers to move the string line back as it now encroached on their land. He said Alan Keevers had left the site by the time he arrived. He denied that Ben Keevers told him at that discussion that Mr Keevers had received instruction from the neighbour to proceed along the string line. 25Mr McQueen said he did no visit again until 9 September. The fence was still on the straight line. Ben Keevers had ignored his instructions. Further, the line adopted left no set-back for the fence at the bottom of an existing stairway and this blocked access to a laundry and clothesline. This was supported by the evidence of a tenant given in a statutory declaration. 26Mr McQueen said he complained about the laundry access issue to Alan Keevers on 10 September. He said Mr Keevers told him he had checked the drawings and plans and the fence was in the correct position. Mr McQueen transferred $1,000.00 to the builders' account but withheld the balance payable. 27On 11 September he engaged a surveyor. This survey confirmed the fence was on the incorrect boundary as per Council drawings. The survey confirmed that assertion. 28On 12 September the parties met. The builders refused to move the fence line. On 18 September the builders were sent a letter of demand for relocation and rectification. He also said he did not receive the alleged early September contract until 26 September. A statutory declaration of the neighbours indicated they did not receive a contract until 24 September. That statement was silent as to any discussion with the builders as to the fence line to be adopted. 29Mr McQueen relied on the expert report dated 7 November 2013 to show deficiencies in the works in addition to the alleged incorrect line. The expert report relied on by the home owners, and not contested in any report acquired by the builders stated: (a)The fence was reinstated in the wrong position 200 millimetres out from the existing fence (b)Posts in some areas were out of plumb (c)An eastern boundary post was not properly secured (d)The gate latch was too high (e)The gap below the gate was excessive (f)On some palings, nails were missing (g)The nailing pattern used caused palings and rails to split. 30The expert recommended relocating the fence to the original line. The gate latch was to be relocated and the gate lowered. Old concentre footing and posts were to be removed as they constituted a trip hazard. FACTUAL FINDINGS 31It may well be the case that whatever fence line was chosen the adoption of the straight line by the builders did not necessitate a variation of the contract price. Neither party called the neighbours to give evidence though the home owners acquired a written statement that was silent on the issue of such instructions. I am unable to make finding about whether the neighbours instructed the builders to adopt a straight line as claimed by the builders. The contract was with the McQueen's, not the neighbours. The contract alleged by the builders is silent on the issue. A licensed builder of considerable experience such as the Keevers ought to have been aware that the line to be adopted was the old fence line and if a new line was to be taken, clear and unequivocal instruction should have been taken from the home owners. This was not done. 32I am given no evidence by the builders to counter the expert report of the home owners as to further deficiencies in the work. I find that deficiencies as outlined by the expert and referred to in paragraph 29 above did exist and should have been rectified by the builders. APPLICATION OF RELEVANT LAW 33Section 18 of the Act provides warranties for building work as follows: 18B Warranties as to residential building work The following warranties by the holder of a contractor licence, or a person required to hold a contractor licence before entering into a contract, are implied in every contract to do residential building work: (a) a warranty that the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract, (b) a warranty that all materials supplied by the holder or person will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new, (c) a warranty that the work will be done in accordance with, and will comply with, this or any other law, (d) a warranty that the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time, (e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling, (f) a warranty that the work and any materials used in doing the work will be reasonably fit for the specified purpose or result, if the person for whom the work is done expressly makes known to the holder of the contractor licence or person required to hold a contractor licence, or another person with express or apparent authority to enter into or vary contractual arrangements on behalf of the holder or person, the particular purpose for which the work is required or the result that the owner desires the work to achieve, so as to show that the owner relies on the holder's or person's skill and judgment. 34A failure of the builders to clarify the critical issue of the fence line to be adopted, particularly when the survey plan shows the line adopted did not comply with the boundary line, is a failure to ensure the work was performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract, even where the contract was absent such plans and specifications that ought to have been included. It follows then that the builders should be liable for the cost of relocating the fence. 35It also follows that since the expert's report was accepted as to other deficiencies, the final work was not done in a proper and workmanlike manner. The timber used was not suitable so that when the nailing was applied, the palings split. CONCLUSION 36The quote of the home owners to relocate the existing incorrect fence is $3,740.00. This includes supply of a new fence as the quotation states the one in place "will be damaged in the process and can result in higher costs than building from new". Thus no separate amount for the deficiencies alleged such as split palings should be allowed as that will be included in the new supply. In addition, the new fence will be on the old line and part of that work could include using posts in the same areas where the alleged trip hazards from improper removal of the old posts are said to be. Finally, the relocation of the fence to the correct line will remove the problem of the insufficient set-back around the laundry area and no additional compensation needs to be allowed for this. 37The builders did complete their contract. They should have been paid the entire contract price by the home owners. The home owners ought not to be relieved from that payment. They owe the builder half of $3,170.00 plus $275.00 for the gate, less $1,000.00 already paid, being $860.00. That amount is to be deducted from the money order for the $3,740.00 quotation. G Bassett General Member Civil and Administrative Tribunal of New South Wales 23 July 2014 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: 11 September 2014