Guy and Anor v K J & W E McIlveen t/as K J McIlveen Builders [2016] NSWCATCD 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Guy and Anor v K J & W E McIlveen t/as K J McIlveen Builders [2016] NSWCATCD 77 Hearing dates: 5 April 2016 & 30 June 2016 Decision date: 15 September 2016 Jurisdiction: Consumer and Commercial Division Before: J A Ringrose, General Member Decision: 1. The applicants are to pay the respondent the sum of $5,489.65.

2. Each party is to bear their own costs. Catchwords: Variations not in writing – quantum meruit compensation for rectification of defective works and for delays in completion. Legislation Cited: Home Building Act 1989 ss7, 10 and 18B Cases Cited: Woodward Pty Ltd v Kelleher (30 May 1989) Pavey and Matthews Pty Ltd v Paul [1987] 162 CLR 221 Pender v Robwephi Pty Ltd and Anor [2008] NSWSC 144 Texts Cited: Keith Mason & J W Carter Restitution Law in Australia [1995] Butterworths at 914 Category: Principal judgment Parties: Anne Elizabeth Guy and George Alexander Regent (Applicants) K J & W E McIlveen t/as J J McIlveen Builders (Respondents) File Number(s): HB 15/51195 Publication restriction: Nil

REASONS FOR DECISION 1. In February 2014 the applicants approached the respondents to construct a kit home on their property at [***]Highway Kootingal and a building contract was duly signed on 26 February 2014. The applicants chose to hire temporary living arrangements in the form of a site office, a porta loo, a porta shower and shipping containers to live in on the property while the dwelling was being constructed. 2. On about 10 April 2014 power and water was connected to the site and at that time the applicants commenced living in their hired accommodation on the property. The respondent enlisted the services of Pro Cert to organise relevant council approvals so that the building works could commence. It is claimed that building approval was delayed until 11 July 2014 and building works commenced with under slab works undertaken by the plumber on 21 July 2014. 3. During the course of the building works some variations to the contract were requested but no quotes were ever received or approved for these items. 4. In November 2014 issues arose in relation to plumbing requirements and the need for a water tank and there were further issues in relation to the nature of the cladding as compared with the approval. 5. On or about 24 November 2014 the respondents approached the applicants indicating that there were variations to a total extent of $18,000.00 plus GST and that this was not the final amount as extras for plumbing had not been included. At the end of November 2014 the plumber approached the applicants requesting a direct payment from them with a deduction to be made to monies owing to the builder. 6. On 3 December 2014 the builder issued a notice stating that practical completion had been reached but works were then suspended as a result of issues which had not been resolved on 24 November 2014. The applicants claim that at this stage plumbing had not been completed and the gas compliance had not been finalised. The water tank and septic tank had not been installed or properly filled and there were issues relating to the alleged variations in the contract. A second meeting to finalise contract variations was held on 9 December 2014 when the applicants claim that the builder was still unable to give a final amount for variation costing. 7. A final inspection was held on 22 December 2014 but it is alleged that the occupation certificate was not issued until 15 January 2015 as it is claimed that the builder had not produced certificates relating to waterproofing, glazing, smoke alarms and other items. Final invoices for variations were not issued until 13 January 2015 and after 15 January the matter was referred to Fair Trading. The matter was then placed in the hands of solicitors and despite negotiations between the parties the matter was still not able to be resolved and the present application was filed in September 2015.