Bailey v Plasterfix Australia Pty Ltd [2015] NSWCATAP 140

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Bailey v Plasterfix Australia Pty Ltd [2015] NSWCATAP 140 Hearing dates: 5 May 2015 Date of orders: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Appeal Panel Before: Mr L.P. Robberds QC Senior Member Ms S. Thode Senior Member Decision: As to the sum of $400, the appeal is allowed. The appeal is otherwise dismissed. The appellant, Mr Jimmy Bailey, pay to Plasterfix Australia Pty Ltd the sum of $8,603.50. Catchwords: Owner's claim that builder's work was defective – onus of proof that work defective and reasonable cost to rectify – not clear that claim of defective work dealt with by Tribunal – variation of Tribunal decision by Appeal Panel Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Jimmy Bailey (Appellant) Plasterfix Australia Pty Ltd (Respondent) File Number(s): AP 15/07412 Publication restriction: No Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 20 January 2015 Before: G.Meadows Senior Member File Number(s): HB 14/51887

REASONS FOR DECISION 1. On 22 October 2014 Plasterfix Australia Pty Ltd (Plasterfix) filed in the Tribunal, a home building application making a claim for $9,003.50. 2. After a contested hearing, the Tribunal Member G. Meadows ordered that the respondent, Jimmy Bailey (Mr Bailey) pay to Pedro Pires for Plasterfix the sum of $9,003.50 on or before 17 February 2015. 3. Prior to the application being filed there was email correspondence between the parties and that showed that Mr Bailey alleged that Plasterfix, in carrying out its work for Mr Bailey, had damaged windows, overcharged for extras and carried out defective work on a bulkhead and around two windows. 4. On 11 February 2015 Mr Bailey filed in the Tribunal a notice of appeal. In written submissions prepared for the hearing of the appeal Mr Bailey confirmed that there were three parts of his claim against Plasterfix namely damage to windows; overcharging of extras and defective work on one bulkhead and around two windows. The submissions confirmed that the appeal related only to the defective work. 5. In those same written submissions it was said that there was an agreement that the work was defective and that evidence submitted to the Tribunal prior to the hearing included an admission by Mr Pires that there was defective work and a quote from an independent plasterer to correct it. 6. In those same submissions it was said that during the hearing "(sound recording, 8:00 and 15:00), Mr Pires acknowledged that there was defective work, that he was aware of it, and that he would have rectified it but did not have enough time to do so." 7. The grounds of appeal comprised the following four items: 1. The damaged items and defective work were two unrelated issues. In his reasons, the Member erred in relying on evidence submitted for the damaged items in his decision on the defective work. 2. The Member did not take into account an admission by the other party (as evidence) that there was defective work. 3. The Member did not take into account the evidence from an independent licensed plasterer of the cost to make good the defective work. 4. The defective work was not in dispute, and the Tribunal should have ordered that the cost to make good the defective work be deducted from the invoice. 1. In the reply to the appeal, two of Plasterfix's responses were as follows: "1 There was no defective work. The issues with the bulkhead and window sill he refers to were minor and could have been easily rectified. He did not allow me back into his property to rectify. The cost of this is not worth close to $3,135, it is worth what I told him I would take off the price which was $400. I offered to rectify the minor issues many times to no avail. 2 There was no admission of defective work, simply an email to try and put this matter to rest and again, in that email I offered to go back and fix what he was not happy with." 1. It appears that the admission referred to in the grounds of appeal was the statement in the email forwarded by Plasterfix to Mr Bailey on a date in August prior to Monday 25 August 2014. The exact date of the email on the copy which was before the Tribunal Member was unclear. In that email Plasterfix said: "You also had 2 issues with the job, one being in the bulkhead in the bedroom and the other on the window sill in the bedroom. I told you that I would be more than happy to rectify this for you this Monday the 25/8/14 but you said you have no time and want to deduct the cost from my invoice. I told you that I can deduct $250 but you are not happy with this, you wanted more, but did not tell me how much. I am also within rights to come back and rectify the work, you must give me the first opportunity to rectify this. You cannot employ another plasterer, pay him, and then deduct his costs from my invoice, this is not legal. How do you have time to get quotes and employ another plasterer before you leave rather than let me rectify the job?? … I would like to put the matter to rest as it has been a nightmare. My last offer to you will be to take $400 off the invoice, or I can come on Monday and rectify the issues and you pay me in full on Tuesday when the job is completed…"