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…" Analysis of the Tribunal's reasons for decision 1. In the third paragraph of his reasons for decision, the Tribunal Member referred to an allegation by Mr Bailey that there was significant damage to a number of windows, a skylight and bulkhead in the study. 2. In the fourth and fifth paragraphs of the reasons, the Tribunal Member deals with and rejects the defence to the claim for extras. 3. In the next paragraph of his reasons, the Tribunal Member does refer to rectification as follows: "Although the respondent refers to the claim for rectification/replacement because of damage as a 'counter-claim' there is no such formal claim before me." 4. The Tribunal Member begins the next paragraph by referring to a complete lack of evidence of any damage and concludes that paragraph by stating that he notes that there is not even a quotation for replacing or repairing any window or skylight damage, merely a copy of some original invoices for the purchasing and shipping the original goods from Germany. 5. The Tribunal Member began the next paragraph by referring to the bulkhead damage. The conclusion which could be drawn therefore is that the Tribunal Member did have to mind the fact that in respect of the bulkhead Mr Bailey had tendered an invoice from Hinton Linings dated 27 November 2014. 6. The last paragraph of the reasons of the Tribunal Member is as follows: "I am satisfied the works contracted for were completed and the applicant is entitled to be paid. I am not satisfied the respondent has proved any of his claims in relation to damage or in relation to any damage being caused by the applicant or his employees." 7. The Appeal Panel is of the view that it is not clear from the Tribunal Member's reasons for decision that he dealt with the claim made by Mr Bailey of defective work on a bulkhead and around two windows. The Tribunal Member certainly did not do so expressly. 8. Although Mr Pires denied there was defective work, the Appeal Panel is of he view that the conclusion to be drawn from the statements in the email from Plasterfix referred to in par 9 above, is that some part of this work was defective and required rectification. The Appeal Panel therefore proposes to proceed on the basis that Plasterfix's work on the bulkhead and around two windows was defective. 9. Section 81 of the Civil and Administrative Tribunal Act 2013 is in the following terms: 1. In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: 1. the appeal be allowed or dismissed, 2. the decision under appeal to be confirmed, affirmed or varied, 3. the decision under appeal be quashed or set aside, 4. the decision under appeal to be quashed or set aside and for another decision to be substituted for it, 5. the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. 1. The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. 1. This is an internal appeal (see s32 and the definition section, s4, of the Act). 2. Section 81 thus empowers the Appeal Panel to vary the decision under appeal. 3. Mr Bailey alleged that the work was defective. He thus had the onus of proof to prove that the work was defective and the extent of any such defective work. He also had the onus to prove what was the reasonable cost of rectifying that defective work. 4. In the final paragraph of his written submissions to the Appeal Panel, Mr Bailey stated: "The quote from Hinton's is $2,585, and there are additional costs of $550, making the total $3,135. There (sic) additional costs involved in preparing the work area to protect it from being damaged, which includes floor coverings and furniture coverings and removals, and cleaning afterwards. That's budgeted at $150. Repainting the wall around the windows and painting the bulkhead is also required, and with three coats on each area, will be $400 minimum (Attachment 3, Estimate for Rework). The total amount comes to $3,135, and this is the amount that should be deducted from the invoice to cover for the defective work". 5. The Appeal Panel notes that no photographs were tendered of the alleged defective work and that no representative from Hinton Linings nor any other expert in the building trade, was called by Mr Bailey to give evidence as to the extent of any defective work nor what was the reasonable cost of rectifying any such defective work. On the other hand the email from Plasterfix to Mr Bailey sent in August 2014 states, in the penultimate paragraph, that Mr Pires could come in on Monday and rectify the issues and Mr Bailey could pay him in full on Tuesday when the job was completed. That is evidence of the time required to rectify the defective work. In that same paragraph Mr Pires offered to deduct $400 from the Plasterfix invoice instead of carrying out the rectification of the work. That is evidence as to the reasonable cost of rectifying the defective work. 6. As to the quotation from Hinton Linings is concerned, it does not make any statement as to why the work was proposed to be carried out. It says nothing as to whether the workmanship of the bulkhead or the window reveals was defective. 7. As to the two amounts of $150 and $400 referred to in the final paragraph of Mr Bailey's written submissions to the Appeal Panel, these appear to be estimates made by Mr Bailey. He does not give any explanation as to why those amounts are not included in the Hinton Linings quotation. 8. The Appeal Panel does not accept that the three amounts claimed by Mr Bailey are the reasonable costs to rectify the defective work. The Appeal Panel is of the view that $400 is a fair and reasonable cost for rectification of the defective work and that only that sum should be deducted from the amount claimed by Plasterfix of $9,003.50. 9. The Appeal Panel therefore orders that: 1. As to the sum of $400, the appeal is allowed. 2. The appeal is otherwise dismissed. 3. The appellant, Mr Jimmy Bailey, pay to Plasterfix Australia Pty Ltd the sum of $8,603.50. ******** 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: 14 July 2015