Concourt Pty Ltd v Victoria Mary Kerr; Victoria Mary Kerr v Concourt Pty Ltd [2014] NSWCATCD 256

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Concourt Pty Ltd v Victoria Mary Kerr; Victoria Mary Kerr v Concourt Pty Ltd [2014] NSWCATCD 256 Hearing dates: 15 and 16 April 2014 Decision date: 13 November 2014 Jurisdiction: Consumer and Commercial Division Before: G Meadows, Senior Member Decision: In matter HB 13/09795 Victoria Mary Kerr is indebted to Concourt Pty Ltd in the sum of $44,651.83.

In matter HB 13/31696 Concourt Pty Ltd is indebted to Victoria Mary Kerr the sum of $76,158.50.00.

Concourt Pty Ltd is to pay Victoria Mary Kerr the sum of $36,506.67 within 60 days of the date of these orders. Legislation Cited: Civil & Administrative Tribunal Act 2013 Home Building Act 1989 Category: Principal judgment Parties: Concourt Pty Ltd (applicant and cross respondent) Victoria Mary Kerr (respondent and cross applicant) Representation: Mr Allan for applicant/cross respondent Mr Simpkins for the respondent/cross applicant File Number(s): HB 13/09795, HB 13/31696 Publication restriction: Nil

reasons for decision

The Claims 1. In these reasons I refer to Concourt Pty Ltd as "the builder" and Victoria Mary Kerr as "the owner". Mr Kerr was appointed as superintendent under the building contract and I refer to him as "the superintendent". 2. There are two matters under consideration: 1. HB 13/09795 Concourt Pty Ltd v Victoria Mary Kerr ("the builder's claim" filed on 11 February 2013) in which the builder claimed: 1. the sum of $34,483.00 alleged outstanding payment; and 2. $10,000.00 estimated interest on the above amount over 4 years. 1. HB 13/31696 Victoria Mary Kerr v Concourt Pty Ltd ("the owner's claim" filed on 12 June 2013) in which the owner claimed: 1. the sum of $155,312.00 in relation to defective and incomplete works; 2. an order that she does not have to pay the amount of $34,483.00; and 3. the sum of $10,306.00 in relation to legal and expert fees. 1. The parties' experts attended an expert conclave on 05 November 2013 assisted by Member Topolinsky which was effective in resolving a number of the issues. The agreements and the outstanding disputed issues are listed in the amended joint Scott Schedule signed by each party's expert. 2. Following the joint expert conclave, there were 6 issues outstanding for determination: 1. defective internal stairs: amounts (subject to method of rectification) agreed at the conclave, liability dependent on the contract; 2. failure to install yellow-tongue particleboard flooring substrate: liability to be determined, rectification and cost agreed at the conclave; 3. failure to top-hang sliding doors: liability to be determined, rectification and cost agreed at the conclave; 4. rebate for agreed removal of skylight from the works originally included in the contract: 5. retention moneys held by the owner; and 6. amount of liquidated damages. 1. The largest item, as claimed, is the sum of $51,600.00 for liquidated damages as at the date of the filing of the owner's cross application. The flooring costs are in excess of $28,000.00, the stairs at up to $22,000.00, the doors at $6,000.00 and the skylight rebate agreed at $4,200.00. This totals the sum of $112,018.00. 2. Several smaller amounts were agreed at the joint expert conclave, some on the basis that liability is still to be determined, as follows: 1. water penetration through sliding door in the main bedroom: $1,644.00 2. skirting butt joint opening in main bedroom: $505.00; 3. water ingress southern side in main bedroom: $776.00; 4. bath spout, second bathroom: $700.00; 5. damaged bath, second bathroom: $198.00; 6. teak flooring, second bathroom: $200.00 7. front door: $1,000.00 8. retaining wall: $1,944.00; and 9. rear soffit: $800.00. Those amounts total $7,767.00, bringing the total amount in issue to $119,785.00. 1. There is one further issue, being rectification of tiles in the ensuite bathroom. The joint Scott Schedule suggests that liability, rectification and cost has been agreed although the builder's counterpart to the Scott Schedule suggests that liability is still to be determined. In any case, the owner now alleges that she has spent the sum of $1,155.00 for this rectification work, although the sum agreed at the conclave had been $2,376.00. 2. This brings the final total claimed by the owner to either $122,161.00 or $120,940.00.