Huynh v Devine Building Pty Ltd [2016] NSWCATCD 93

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Huynh v Devine Building Pty Ltd [2016] NSWCATCD 93 Hearing dates: 11 August 2016 Decision date: 01 December 2016 Jurisdiction: Consumer and Commercial Division Before: D A C Robertson, Senior Member Decision: 1. Application dismissed.

2. The applicant is to pay the respondents' costs as agreed or assessed. Catchwords: CONTRACTS – Home Building Act – Statutory warranties – time limits – whether complaint to Department of Fair Trading "enforcement" – obtaining work orders from Department of Fair Trading not enforcement of warranties for purposes of s18E Home Building Act – waterproofing not shown to be defective Legislation Cited: Home Building Act 1989 (NSW) Cases Cited: Honeywood as Executrix of Honeywood v Murray (2006) 67 NSWLR 466 Bardon v Occhiuto Enterprises [2016] NSWCATAP 191 Category: Principal judgment Parties: Fiona Huynh – applicant Mark Devine and Devine Building Pty Ltd - respondents Representation: Applicant: in person Respondents: R Sidey, solicitor File Number(s): HB 16/01166 Publication restriction: Nil

reasons for decision 1. This is an application for compensation under the Home Building Act 1989 (NSW) ("HBA") in respect of allegedly defective home building work carried out by one or other of the respondents on the applicant's home. The applicant appeared in person. The respondents were represented by Mr Sidey, solicitor. 2. The dispute concerns building work carried out on two bathrooms and a laundry within the applicant's house at Greystanes. The work was "residential building work" as defined in the HBA. The claim in relation to the work is a "building claim" as defined in the HBA and, subject to a question addressed below whether the proceedings were commenced within the time limits laid down in the HBA, the Tribunal has jurisdiction to determine the claim pursuant to s48K of the HBA. 3. By her original application the applicant claimed the sum of $33,106 from the first-named respondent in respect of 22 items set out in a Scott Schedule filed with the application. The application was accompanied by an expert report prepared by Mr Howard Ryan of HK Ryan & Associates, a licensed builder and property and construction consultant. Mr Ryan also prepared the Scott Schedule. 4. The first respondent disputed that he was responsible for the building work. The first respondent asserted that the work was carried out by the second named respondent, a company of which the first respondent is the director. 5. After initially declining to do so when it was suggested at the initial directions hearing, the applicant ultimately applied to have the second named respondent joined as a respondent. Nevertheless, the applicant consistently maintained that she had contracted with the first respondent and not the second respondent. 6. At a directions hearing on 28 June 2016 the applicant was given leave to amend her application "on the basis that the applicant does not propose to lead further evidence in support". 7. By the amended application the applicant increased her claim to $118,223.16 being the cost of fully renovating both bathrooms and the laundry and the cost of alternative accommodation while that renovation occurs. The full renovation of the bathrooms and laundry was said to be necessary because the "waterproofing membrane is slowly breaking down with continued use in both bathrooms and laundry". 8. The applicant tendered in evidence: 1. A bundle of documents dated 23 April 2016 including an affidavit of the applicant and annexures A to L. Annexures E and J were not attached to the affidavit as filed with the Tribunal but were identified as being the Scott Schedule and expert report filed with the original application. The bundle of documents dated 23 April 2016 became Exhibit A. The Scott Schedule became Exhibit B. Mr Ryan's expert report became Exhibit C; 2. A bundle of documents dated 23 May 2016 which included: a number of documents discussing issues (or alleged issues) with waterproof membranes, in particular polyurethane membranes and osmosis in polyurethane membranes; some photographs of the tiled steps leading from the applicant's laundry which the applicant claimed showed that the waterproof membrane had ruptured through a process of osmosis; a further Scott Schedule, apparently prepared by the applicant herself, listing the cost of replacing various items in the bathrooms and laundry; and quotations from tile and bathroom hardware suppliers supporting the further Scott Schedule. This bundle became Exhibit D. 3. A bundle dated 24 June 2016, which includes a statement from the applicant responding to the respondents' evidence together with photographs of the floor wastes in the bathrooms, which were alleged to show the type of waterproof membrane installed, and some invoices for tiles, lighting and rubbish skips. This bundle became Exhibit E. 4. A bundle of documents dated 28 June 2016 which was received by the Tribunal on that date. 1. The respondents objected to the last bundle of documents being received into evidence on the basis that the documents had not been filed in accordance with the directions of the Tribunal. 2. The additional documents had been filed with the Tribunal after the directions hearing on 28 June 2016 and were not received by the respondent's solicitor until 12 July 2016. The additional documents were two fact sheets relating to the products identified on a waterproofing certificate provided by the respondents as being the products utilised in the applicant's premises, and a quotation provided by IBuild Group for the complete renovation of both bathrooms and the laundry. 3. As the respondent had had the documents for nearly a month, I received the bundle dated 28 June 2016 subject to weight, noting that it had not been filed in accordance with the directions of the Tribunal and that the quotes do not contain the detail that might be expected of expert evidence and do not comply with the Tribunal's guidelines for expert evidence. The bundle of documents dated 28 June 2016 became Exhibit F. 4. The respondents' evidence consisted of one bundle which became Exhibit 1. Exhibit 1 included an affidavit by the first-named respondent and a "supplementary bundle" of documents. 5. Each of the applicant and the first-named respondent gave oral evidence and answered questions from the Tribunal. 6. The respondents asserted in response to the applicant's claims: 1. That the claims except in respect of waterproofing were out of time; 2. That the applicant had enforced the warranty (see s18E(2)); 3. That no defects had been established; 4. That if any defects were established a rectification order would be appropriate pursuant to s48MA of the HBA.