District Court New South Wales Medium Neutral Citation: Gallagher v Start Construction Pty Limited [2017] NSWDC 440 Hearing dates: 28 August; 4 and 5 October 2017 Date of orders: 10 October 2017 Decision date: 10 October 2017 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment for the plaintiff in the sum of $174,556.69. (2) Defendant to pay the plaintiff's costs. Catchwords: ASSESSMENT – building contract – defects – omissions – assessment of damages – only one co-owner a party – no electrical plan – builder's expertise – costs of individual defects not specified Legislation Cited: Home Building Act 1989, s 18B, s 18D Uniform Civil Procedure Rules 2005, r 7.8, r 12.7, r 16.2, r 16.3, r 16.7 Cases Cited: Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Category: Principal judgment Parties: Nerida Gallagher (plaintiff) Start Construction Pty Limited (defendant) Representation: Counsel: Mr S S Ahmed (plaintiff) Solicitors: Mills Oakley Lawyers (plaintiff) File Number(s): 2015/363046 Publication restriction: None Judgment A. INTRODUCTION 1. Chris and Nerida Gallagher, then of Florida, USA, entered into a building contract dated 21 March 2013 with Start Construction Pty Limited ("Start") for the construction of a large home in northern New South Wales. The home was substantially completead in late 2014. Mr and Mrs Gallagher separated and Mrs Gallagher returned to Australia and commenced proceedings against Start for damages for incomplete and defective work. B. PROCEDURAL BACKGROUND 1. Duncan Corbett is a shareholder and director of Start. During the course of the interlocutory proceedings, he suffered a stroke resulting in neurological damage. Proceedings were adjourned for a time but since February 2017 Start has taken no steps to progress the matter. It is no longer represented despite court documents relied upon by Mrs Gallagher being served upon both Start and Mr Corbett up to and after the commencement of the trial. Whether the non-appearance of Start for more than 12 months is due to Mr Corbett's current health or for other reasons is uncertain. The Court previously struck out the defence under r 12.7 of the Uniform Civil Procedure Rules 2005 due to Start's default and listed the matter for assessment. 2. The matter was listed for hearing on 19 June 2017. Mrs Gallagher relied upon a significant number of defects and omissions, and claimed the global sum of $512,762 plus GST ("the Claimed Amount"). No attempt was made to apportion this sum to any particular defect or omission. In those circumstances, I indicated that the evidence may be insufficient to enable the Court to be satisfied of the quantum of damage. Mrs Gallagher applied for an adjournment, directions were made, including for the creation and service of a Scott Schedule. The representative for the plaintiff was informed that everything needed to be in order for the matter to be finalised on the next hearing date. 3. The matter was listed for hearing on 28 August 2016. Mrs Gallagher had complied with all directions, including the creation of a Scott Schedule and service on Mr Corbett and Start. Again, there was no appearance for Start. 4. The Scott Schedule revealed that Mrs Gallagher claimed an amount of damages for each of 184 items, the majority of which were defects but a substantial amount were for omissions. The summation of the amounts claimed for the 184 items precisely equalled the Claimed Amount. 5. Mrs Gallagher placed substantial reliance upon a report from a builder, Mark Larsson, and intended to have him give oral evidence at the adjourned hearing. However, Mr Larsson was unable to attend due to illness. Mrs Gallagher attempted to continue with the hearing, but it became apparent to Mrs Gallagher that defects remained in her case that might be remedied by evidence from Mr Larsson. An adjournment was sought and granted. 6. At the third hearing date, a further report was relied upon. It superseded the earlier report. It referred to Mr Larsson having relied upon the assistance of his son, David Larsson, and it recorded that Mr Larsson had read and agreed to be bound by the Expert Witness Code of Conduct. Mr Larsson also gave oral evidence at the hearing. 7. Although the Judicial Registrar had struck out the defence under r 12.7, which had the effect of Start being in default (see UCPR 16.2(1)(c)), nevertheless, no application for a default judgment had been made or ordered, the necessary prerequisite for damages to be assessed (see rr 16.3(1)(a) and 16.7). In any event, Mrs Gallagher sought, albeit ex parte, to having the hearing on the merits and conceded that she must establish both breach of contract and damages. 8. As Mr and Mrs Gallagher were the contracting parties with Start, conventionally they would be jointly entitled to remedies for any breaches and Mr Gallagher would need to be a party to the proceedings as a joint creditor. However, statutory warranties under s 18B of the Home Building Act 1989 are extended under s 18D of the Act to a successor in title and a non-contracting owner. The Act precludes in s 18D(1B) and (2) further proceedings once a "warranty has already been enforced". In the present case, a draft agreement between Mr and Mrs Gallagher proposes that Mrs Gallagher will become the sole owner of the home and entitled to all the proceedings of this action. However, as the agreement is only a draft, Mrs Gallagher is not yet the successor in title to Mr Gallagher. On one construction, she is not a "non‑contracting owner" under s 18D(1A), although alternatively, the contracting party is her and her husband, which she is not. It would seem odd and clearly not intended that a non-contracting owner would have greater rights than a contracting owner. The better view, bearing in mind considerations of consistency and fairness prevailing over matters of logic in the construction of statutory documents (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69], Deputy Commissioner of Taxation v Zammitt [2014] NSWCA 104 at [67]), is that the intention of s 18D was to allow one party or owner to commence proceedings without the need for another owner or contracting party, perhaps on the alternative construction I have indicated above. 9. In any event, the point about parties has never been raised and if it were raised, there may be other avenues to deal with problem. Start is in default and it might be thought that a default judgment would preclude any argument about proper parties. UCPR 7.8 may also have application. In all the circumstances, I am not persuaded that the existence of Mrs Gallagher as the sole plaintiff precludes a judgment in her favour. C. THE CONTRACT 1. The contract by Mr and Mrs Gallagher and Start was in the form of a "HEAD CONTRACT Residential Building (BC4)" contract published by the Master Builders Association. It provided for a contract price of $4,391,636. 2. The contract provided for "CONTRACT DRAWINGS prepared by: MS DESIGN" and a "SPECIFICATION prepared by: START CONSTRUCTION PTY LTD AS PER START QUOTATION 14TH MARCH 2013". It was signed by Mr and Mrs Gallagher and by Mr Corbett on behalf of Start and apparently attached to the contract. The contract noted that "the Builder provide (i.e. have prepared) the contract drawings and specification detailing the work to be done". 3. The Start quotation referred to as the specification in the contract, referred to a number of architectural drawings, "32 pages in total", including relevantly "10-01" as well as landscape drawing, engineers drawings, BASIX certificate and "P&H Interiors drawings –Issue 13/2/2013 ID 1/38 (19A & 19B, 21A & 21B)". These P & H drawings were not in evidence. 4. The Start quotation contained a section headed "INCLUSIONS" and noted that "Where Provisional Sums (P/Sum) are listed … as supply only, we have allowed installation within the tender". Some 55 items are included, many with provisional sums or as PC (prime cost) items. Among the inclusions are: * "Supply & Erect T2 treated pine timber frame & trusses as per nominated plans". * "Supply & Install Double glazed Knotwood coated aluminium doors & windows". * "Supply & install electrical prewire & fit off as per P&Hs electrical plan". * "Supply & Install Dynalite Home Automation PS $192000.00". * "Supply & Fit Paint grade timber 140mm Architraves & 240mm Skirtings x19mm". * "Paint internal plaster board & timber time with Dulux/Resene 3 coat system". * "Light fittings supply only (incl fans) P/SUM $ 39,600.00". * "Supply & Install Cabinetry as per nominated plans PC $249,150.00". * "Pool fully tiled: mosaics $35m2, coping $33/m supply only allowances P/SUM $71760.00". * "Coloured concrete driveway". * "Lift installation allowance including lift car interiors P/Sum $53835.00". * "Sauna supply P/SUM $9700.00". 1. P & H's electrical plan referred to in the inclusions was not in evidence. 2. A number of exclusions were listed in the quotation which also stated: "This quotation allows the Start Team of trusted subcontractors and suppliers to deliver a high level of accuracy and finish. Start Construction will complete the project to the highest of trade standards and perform all building works within the Building Code of Australia." 1. Schedule 3 of the contract noted that no aspect of the work set out in the contract or in specifications was excluded from the contract work and contract sum. The schedule then listed in section (c) the documents identifying the builder's work. The documents included the architectural drawings by MS Design as well as interior and landscape drawings, the three of which were stated to have been prepared by the owner. 2. Hydraulics and structural drawings were stated to have been prepared by the builder. Electrical and mechanical drawings were not listed. The conflict between sch 3, which provided that the architectural drawings were prepared by the owner, and the notation earlier in the contract, mentioned above, that the builder provided "(i.e. have prepared) the contract drawings" was not referred to by Mrs Gallagher. As the second reference is specific as to who of the owner and the builder prepared the various sets of plans, I prefer it to the more general earlier reference (which I take to be accurate only in regard to the specification). This matter has further significance because of cl 3 of the contract quoted below. 3. The contract also contains special conditions which were to prevail over any conditions in the printed form of the contract. The special conditions at 2.19 provided for a new cl 33 as follows: "33. Plans and specifications The parties acknowledge and agree that the builder has been provided with all of the plans, specifications and statutory approvals required to enable the builder to complete the building works…" 1. A strict reading of this clause might indicate that at that stage the builder had been provided with such matters as the final electrical and lighting plan. 2. The contract also contained the statutory warranties for residential building work contained in s 18B of the Home Building Act 1989. Each warranty is relied upon in the statement of claim by Mrs Gallagher. Section 18B provided: "(i) the work will be performed in a proper and workmanlike manner and in accordance with the plans and specifications set out in the contract; (ii) all materials supplied by the Builder will be good and suitable for the purpose for which they are used and that, unless otherwise stated in the contract, those materials will be new; (iii) the work will be done in accordance with, and will comply with, the Act or any other law; (iv) the work will be done with due diligence and within the time stipulated in the contract, or if no time is stipulated, within a reasonable time; (v) the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling; (vi) the work under the contract or the relevant part will be reasonably fit for the specified purpose or result, if any, identified as a special purpose or result in this document." 1. The contract also provided that: "Quality of Construction (c) (i) The work done under this contract will comply with: a) the Building Code of Australia to the extent required under the Environmental Planning & Assessment Act 1979 (including any instrument made under that Act); and b) all other relevant codes, standards and specifications that the work is required to comply with under any law; and c) the conditions of any relevant development consent or complying development certificate and any construction certificate. (ii) This contract limits the liability of the Builder for a failure to comply with (c)(i) above if the failure relates solely to: a) a design or specification prepared by or on behalf of the Owner (but not by or on behalf of the Builder); or b) a design or specification required by the Owner, if the Builder has advised the Owner in writing that the design or specification contravenes 1(c)(i) above. … 3. Contract Documentation (a) The party that provides the Drawings and/or Specification, warrants their accuracy and correctness. As of the date of the contract, the work to be done is as set out in Schedule 3. (b) Schedule 3 requires that the party responsible for having the drawings and or specifications prepared be identified. If that detail is left blank it will be presumed that the Owner supplied to the Builder all drawings and specifications relevant to the work. (c) Further to (b) above where the Builder does not prepare the drawings, or prepares the drawings under the instruction, direction or supervision of the Owner or from sketches supplied by the Owner, then the Owner indemnifies the Builder against all actions, proceedings and claims for or in respect of any breach of copyright. Contract Represents Entire Agreement (d) Apart from any terms implied by Statute, the whole of the terms, conditions and warranties of this Contract are as set out in the Contract. The same are not in any way varied or affected by reference to any prior negotiations, stipulations or agreement, whether written or verbal. 4. Discrepancies and Ambiguities (a) Should there be any discrepancy or ambiguity in the contract documents the following order of precedence is to be employed to resolve the same: (i) this Contract and these Conditions including any Special Conditions; and then (ii) quotation if attached or referred to in this Contract (iii) drawings to a larger scale; and then (iv) other Drawings; and then (v) the Specification … 9. Quality and Availability of Materials (a) The Builder will obtain and use materials which comply with the requirements of this Contract. … 14. Variations – How to Deal with Changes to the Work … (b) For the sake of clarity a variation is established by: (i) written instructions from the Owner or the Owner's representative; and or (Ii) the supply to the Builder of post contract details such as drawings; and or (iii) the discovery of an otherwise unknown or latent condition; and or (iv) an instruction issued by a relevant authority under clause 12 which alters the work done, the work to be done or requires adjustments to an existing situation or the work which was otherwise expected to be done. Accordingly a variation may, for example, result from such things as a request from the Owner, a choice made by the Owner, dealing with latent conditions and complying with the requirements of an Authority. (c) The Builder is not obliged to vary the Contract works or carry out any extra work unless the Builder consents. Such consent will not be unreasonably withheld. (d) (i) If the Builder agrees to undertake a variation requested or required by the Owner, the variation is to be detailed in writing and signed by the Owner (or the Owner's agent) and the Builder. Documents detailing the variation, including as appropriate, amended drawings or specifications, become contract documents. … 15. Prime Cost Items and Provisional Sum Work (a) Details of any prime cost items or provisional sums are set out in the table of allowances for:- "A" Prime Cost Items; and "B" Provisional Sums at Item 12 of Schedule 2. The sums listed at Item 12 of Schedule 2 ere allowances. They are not guaranteed … lump sum amounts. (b) Where prime cost or provisional sum items are included the contract price and works, the Owner must furnish to the Builder written directions regarding the selection and supply of the work and or goods represented by such sums (in sufficient time to ensure that no delay is occasioned in the progress of the works. The Builder should make any request for information about such work or goods in reasonable time and in writing. Actual amount spent in total indifferent to the total amount allowed (c) Any part of the total of such sums not expended is to be deducted from the contract price. This Is not to occur until all provisional cost items and provisional sum works have been completed and only applies when the amount expended is less than the total of the amounts allowed. The amount to be deducted is the difference between the amount allowed, excluding any Builder's margin, and the amount actually spent or the debt incurred to have the work done or item supplied. (d) In the event that the total amount expended in respect of such sums exceeds the amount included in the Contract Price, the excess amount exclusive of GST, together with the percentage on the excess specified in Item 4 of Schedule 2, is to be added to the contract price. The price adjustment arising is to be properly adjusted to ensure that the correct amount of GST is paid by the Owner, … 24. Contract Maintenance Period - Builder's Obligations (a) The Contract Maintenance Period commences upon Practical Completion of the works and will continue for the period stated in Item 8 of Schedule 2, or if no period is stated, for thirteen (13) weeks. (b) Prior to the expiration of the Contract Maintenance Period the Owner is to provide to the Builder a written list of all defects or faults arising out of workmanship or material provided by the Builder which is not in accordance with the Contract. The parties must meet to review the items listed by the Owner, if the Builder requests such a meeting. (c) The Builder is to make good defects or faults which are attributable to the Builder's work or failure to do something at his own cost and within a reasonable time of notification. (d) The Owner Is to allow the Builder the opportunity to attend and rectify the defects or faults identified. Any dispute as to defects or faults does not prevent the builder exercising the right to attend to inspect and or rectify the works. (e) The Owner must provide access for the Builder to carry out his obligations under this clause during normal working hours Monday to Friday and must allow a reasonable time for such work to be carried out. The parties are free to agree on alternative times for any such work to be carried out. (f) Subject to Sub-Clause (d), if the Builder fails to comply with his obligations under this Clause within a reasonable time of a notification made under Sub-Clause (b) then the Owner may, after giving the Builder twenty five (25) days written notice, engage others to make good the listed defects or faults. The Owner must provide access to the site for the Builder to do maintenance work within this notice period. (g) The Builder's duty to attend to and carry out maintenance is limited to work and materials or defects which directly relate to the workmanship of the Builder. The Builder's duty does not extend to matters caused by:- (i) the use or occupation of the works by the Owner or their agents; (ii) fair wear and tear or design faults where the design is not the responsibility of the Builder; or (iii) a failure to maintain the works post practical completion. Further where the work involves a renovation, any Builder's duty to attend to and carry out maintenance does not cover matters arising from conditions in the existing structure, After maintenance period and or work by Builder is completed (h) At the end of the maintenance period and subject to the matters identified in the Owner's written list of issues being dealt with as set out above, the work of the Builder is agreed to have been completed as required by the Contract. … 25. Owner's Maintenance Obligations After Practical Completion (a) (i) The Owner is required to and agrees to carry out ongoing maintenance to the property and specifically the works from the date of Practical Completion. Failure to do this properly or adequately will render the Owner liable for consequential damage, loss or expense in relation to the works. (ii) Without limiting the above clause this ongoing duty of the Owner covers things such as painting, termite management and termite system maintenance and general property inspections, cleaning and maintenance. … (c) The Builder is not obliged to carry out work where the need for work is due to: (i) a failure by the Owner to properly maintain the works; or (ii) is necessary due to fair wear and tear caused by the use of the works; or (iii) the exposure of the works to the environment in which they are situated; or (iv) a design related matter where the design is not the Builder's responsibility; or (v) a matter beyond the control of the Builder. … 32. Definitions … (d) "Prime Cost Items" – the amount included in the contract sum as an allowance to cover the purchase by the Builder of a generic or specified item (for eg a fixture or fitting which has yet to be actually acquired. … (f) "Provisional sums" – the amount of money included in the contract sum as an allowance to cover works in respect of which full information is not available as at the date of contract." D. THE DEFECTS AND OMISSIONS 1. The ultimate report of Mr Larsson establishing the various breaches and omissions gives a short description of the breach or omission, sometimes with a photograph of the location and also indicates the nature of the remediation work, and sometimes an estimate of the cost. Little reasoning for the calculation and the "Remediation Cost" in respect of many items appears in the evidence. E. ELECTRICAL 1. In respect of the electrical items, a remediation cost is attributed to each item, divided between labour and materials. But no details of the time spent by the labourer, or the cost of the various items of materials are provided. For other than electrical defects, only a global sum for all defects of that type is identified. 2. More than half of the amount claimed is due to items in the category "Electrical". In the course of submissions about the initial electrical items, a number of concerns emerged. 3. As noted above, the quotation dated 14 March 2013 referred, to among other things, "Architectural drawings…10‑01" and "Inclusions" which listed a number of matters including "supply and install electrical prewire and fit off as per P & H's electrical plan" and "light fittings supply only (incl fan) P/SUM $39,600" . 4. Thus, in respect of electrical work, contractual performance must be measured against these two inclusions and particularly against "P & H's electrical plan". 5. As to light fittings, there is no evidence that the amount of the provisional sum of $39,600 had not been utilised in the home. There was evidence from Mrs Gallagher of a request to Start to provide a reconciliation of monies paid against the contract price and variations, but no real detail was provided. Thus, the inability to provide details of any overspend or underspend of the provisional sum might not be the fault of Mrs Gallagher, but remains a significant matter in the assessment of her damages. 6. The evidence of payments and financial obligation is limited. The contract price (and quote) was for $4,391,636. A document signed by Mr Corbett, as director of Start, not addressed to anyone, states as follows (Exhibit NG-2, p 124): "Start Construction Pty. Ltd. has completed the building contract at 105 Coopers Shoot Rd, Coopers Shoot for Chris & Nerida Gallagher. The details below fully summarise the expenditure to complete the project to date inclusive of variations / upgrades & improvements. Original quote $4,591,163.62 Contract quote $4,391,163.62 Establishment $200,000.00 Variations / specification upgrade $732,000.00 Total Construction Cost $5,323,163.00" 1. Mrs Gallagher gave evidence that "the contract value for our home was approximately $4.591m" and that the "Total amounts paid to the [sic] Duncan under the contract were approximately $5.32m". 2. Given that Mr Corbett asserts total construction costs similar or equivalent to "approximately $5.32m", and makes no cross-claim or assertion of any underpayment by Mrs Gallagher, I conclude that $5,323,163 was paid by Mrs Gallagher for the building work. 3. The $200,000 "establishment" related to a loan provided to Mr Corbett, which was discharged upon completion of the contract for the lower contract quote price. The purpose of the loan may have been or may have been perceived to have been some tax advantage to Mr Corbett. In any event, it was not explained. Mrs Gallagher makes no particular claim arising from any overpayment. 4. There was no basis to conclude that Mrs Gallagher did not receive light fittings to the value of the provisional sum applicable to light fittings. Any light fitting still required in the house would thus be an expense she would need to make. Failure to install it may leave her an entitlement to claim for the cost of installation but not the cost of supply. The expert report draws no distinction between supply and installation other than separating the cost of labour and materials. Ultimately, Mrs Gallagher accepted in submissions that no claim could be maintained by her for items the subject of a prime cost or provisional sum allowance. 5. As to the "P & H's electrical plan", it is conceded to have existed but, as mentioned, is not in evidence. No explanation for its absence was provided, and there was no evidence as to its content. The Court was informed that P & H is a Floridian company. No provisional sum is recorded against the P & H work. It would seem most unlikely that a builder would agree to a fixed price to cover an electrical plan, without having any knowledge of the nature of that plan. (a) REVISION 72 1. The architectural drawing 10-01 is in evidence, but it is merely a blank floorplan labelled "Electrical Plan (Blank for Markup)". A lighting plan called Revision 72, also labelled sheet A10-01 (indicating the location and type of light fittings and light switches, but not other electrical matters such as power points), is in evidence. It is dated 22 August 2013, some five months after contract. Mrs Gallagher found it in a folder of papers in the house some two years after its creation, in late 2015. Whether it became the accepted contractual electrical plan is not the subject of evidence, and yet it forms the basis for most of the claims for the omitted electrical work. 2. Revision 72 refers to two other revisions and dates - 27 August 2013 and 5 November 2013. This schedule on the plan indicates that Revision 72 was created on 5 September 2013, some six months after contract. It also has indicia that it might not have been final as it referred to "more deck lighting to be discussed". 3. Neither Mrs Gallagher nor Michael Webber Design, who drew Revision 72, or someone from S & C Electrical, the subcontractor who did the electrical works in the house, or anyone else, gave evidence as to why a Revision 72 came to be created, on whose instructions, whether it was submitted to Start, whether it was used in the work on the site, whether there were further revisions, whether it impacted on the contract price, and to what extent it differed from the contractual P & H plan. The circumstance that a blank lighting plan labelled "A10-01" was also included in the contractual architectural drawings does not dispel these questions. 4. Mrs Gallagher submitted that a lot of the work was done in accordance with Revision 72 and therefore I should infer that it was contractual. There was no satisfactory evidence to this effect. The circumstance that Mrs Gallagher alleged 94 electrical defects, many of which were for matters not done in accordance with Revision 72, tends to prove the opposite. There was nothing to establish that P & H's plan, or some earlier or later revision of A10-01 than Revision 72 was a less accurate representation of the work the electrician was obliged to do regarding lighting. Even if there was work consistent with Revision 72, that does not make Revision 72 contractual or resolve any of the earlier questions. 5. Ultimately, there was no proper basis to find that Revision 72 became a contractual document evidencing the work Start was obliged to perform. I could not infer matters about it when evidence was apparently available to be given concerning Revision 72 but was not. Even if I were to infer that Revision 72 was used by S & C Electrical, I have no evidence as to the impact upon the contract price of this variation. In my view, it is evidence only of what Mr Larsson used in reporting on the electrical work. (b) MR LARSSON'S REPORT 1. Mr Larsson is an experienced building consultant. He gave evidence that he had completed a carpentry and a building course, but had no tertiary qualification. He gave evidence on electrical, plumbing, painting, cabinetry and air conditioning works, including the cost of such works where he had no particular expertise other than as a builder. Although I admitted his evidence, in part because the proceedings were ex parte and he was not challenged, I took into account that in assessing the cost of remedial electrical, plumbing and other works, that he was giving an opinion outside of the central part of his direct expertise. He was relying on his own experience on what an electrician would charge, how much time he thought it would take, but an absence of reasoning made it difficult to be satisfied that Mr Larsson was using his own expertise. In some instances, such as the replacement of folding windows, he said he obtained quotes "from specialists", in that case a window manufacturer. Mr Larsson gave no details of who he asked, what particular windows were to be quoted, or any other particulars of the information provided. 2. Prior to Mr Larsson's report, Mrs Gallagher had obtained two previous lists of defects prepared by other building consultants: Phil Kelly and Patrick Daley. Those lists and the accompanying details were in evidence. The evidence indicated, perhaps not unequivocally, that many of the listed items from Mr Kelly had been remedied by Start. 3. Mr Larsson's report, in respect of electrical items, is principally concerned with identifying differences between Revision 72 and the lighting plan as installed. Some of these differences seem to be of little significance. It is difficult to avoid the conclusion that Mr Larsson regarded that a part of his task was to identify any variation in the electrical work as constructed from Revision 72, whether it was material or not, and cost the work needed to render that work identical with Revision 72. Mr Larsson accepted that his costing of individual items was on the basis that the individual item alone would be rectified. He also appeared to assume that where the work involved uncertainties, the worst case outcome should be assumed. All of these matters tended to magnify the cost of the remedial work in his report. 4. Mr Larsson gave oral evidence about the first 20 items in his report and about ten other items in a list of some 180 odd items. Most items were not the subject of either evidence or submissions other than the short explanation of the claim in Mr Larsson's report. There were some photos but most defects were not shown even in a photo. Largely the Court was left with Mr Larsson's report to decide all questions of contractual duty, breach, and damages and with no other real assistance from Mrs Gallagher, Mr Larsson or Mrs Gallagher's legal representatives. 5. Bearing in mind these difficulties, I proceed to make determinations in respect of the alleged defects. (c) ELECTRICAL ITEMS 1. The number applicable to the defects proceeds in the order in which the defects are listed in Mr Larsson's report (Exhibit B). However, they do not correspond to his paragraph numbers directly as the first defect is listed in para 13. (1) Missing LED strip in kids hangout 1. Revision 72 referred to LED lights in the kids hangout in connection with cabinetry: "LED lighting under shelf", "LED lighting with custom joinery" and "LED under cabinet lighting". No claim can be made for the cost of LED lighting itself because that was a prime cost item and, as I said, Mrs Gallagher does not assert that the light fittings allowance was not fully expended. 2. The labour cost of $452 asserted by Mrs Gallagher suffers from the difficulty that Mr Larsson is not a quantity surveyor or an electrician and does not identify the hours he attributes to this item. He did, however, give evidence of using an hourly rate which was about 20% higher than the rate referred to in the contract ($80 rather than $65), and that each item was quoted as a standalone item, as if the electrician was retained to correct the one defect only. On a subsequent listed defect, he assessed the labour cost as $50 if done with other works, although he priced the labour cost in respect of that defect as $345. If I find a substantial amount of work to be performed by the one trade, by an electrician as I do in this case, I would need to discount the labour cost substantially for that reason. 3. Mr Larsson gave evidence of a builder's margin of 20%. If applied to the $50 cost Mr Larsson suggested, together with a builder's margin plus GST, a figure of $66 results. So for ease of calculation, especially in respect of the labour costs, I have used the figure of 20% as a guide to the proper cost since 20% of $345 is $69, a little more than Mr Larsson's evidence would indicate to be the real cost of that item. The references in this judgment to the "20% discount" is to an amount of 20% of the amount claimed (and not to a discount of 20% of the amount claimed). 4. It may be that 20% is not an appropriate figure for larger items of work. On the other hand, I have no other basis to choose an appropriate reduction. Further, I am less than convinced that Mr Larsson's estimates in many cases bear any real connection to the costs to remedy the matters he identifies, at least in respect of electrical work. 5. Mr Kelly identified four electrical defects in his report and in each case, the costs were explained and were not at all similar to Mr Larsson's, but were substantially less. For these reasons, I have adopted a 20% figure generally in respect of Mr Larsson's figures for electrical work. 6. I accept that in some cases it will be an excessive discount, but in others it would still allow an overly generous amount of remediation costs. 7. Going back to this first defect, I do not propose to award any sum in respect of this item for two reasons. 8. First, I was not satisfied that Revision 72 was a contractual document and it was upon Revision 72 that this claim relied. 9. Secondly, because the work, as heard, could not be done without the custom joinery or cabinetry, which was not installed. The cabinetry was also a prime cost item, the allowance for which was, on the evidence, greatly exceeded by the expenditure. Mrs Gallagher abandoned any claim for omitted cabinetry. (2) Power points in wall, not in skirting 1. Mrs Gallagher, in submissions, abandoned claims which relied upon Mr Larsson's evidence that he was given information by Mrs Gallagher about how and where work was to be done. This was because there was no evidence, even from Mrs Gallagher, that the instructions that Mr Larsson reported represented contractual obligations. Mrs Gallagher did nominate some particular defects which she abandoned for this reason. The reason for abandonment seems to apply to this item, although it was not expressly listed as an abandoned item by Mrs Gallagher. 2. As there is no electrical plan showing the location of the power points, as no other evidence exists other than Mr Larsson's hearsay evidence of information he received from Mrs Gallagher about where the power points were to be located, and because of the more general concession by Mrs Gallagher that matters relying upon Mr Larsson's record of Mrs Gallagher's instructions were not pressed as a basis for a contractual obligation, I was not satisfied that the location of the power points in this case was a breach of contract, although I know that one photograph did show one power point in the skirting. (3) Power point not flush so cover cannot be installed 1. I accept this item to be a defect and allow the claim. I cannot accept the cost to fix the small item, a total area of apparently less than 10 cm2 requiring $83 of materials. I allow the amount of $340 at the 20% rate for the reasons identified earlier, namely $68. (4) Exposed cabling in the gym floor 1. The defect in this work was alleged to be an insufficient length of conduit, together with the absence of a cover plate. I accept that the conduit was of an inadequate length and the further length of conduit of some 5 cm is needed to be added to the one or perhaps two power points. 2. If there is no other work to be done, I would allow 20% of the claim for labour of $345. 3. As to the materials, I accept that a cover plate was necessary. There was no electrical plan in evidence, let alone one referring to these power points in the floor. Thus, I am not satisfied that it was not a variation which was to be paid for by Mrs Gallagher, and thus the cost of the plates and also of the installation may have been a matter the cost of which she was obliged to meet. 4. The cost of 5 cm of flexible conduct must be negligible. I allow the $345 at 20%, namely $67. (5) Sauna wiring incomplete 1. I accept this item, the sauna. Its connection is referred to in the evidence and so the $480 is allowed at 20%, namely $96. (6) Missing stair lights 1. This alleged omission must fail because Revision 72 is not contractual and the evidence that the stair lights are missing is found only in Revision 72. The cost of the five mounted lights would not be recoverable in any event because the prime cost allowance for light fittings has been exceeded. (7) Inability to control downlights in the eaves and walkway 1. This allegation requires evidence about the utility and terms in relation to the C-Bus panel (about which there is none) and the contractual lighting plan, which must be rejected because Revision 72 is relied upon. Accordingly, I am not satisfied on the evidence before me that there is any breach of any contractual obligation. (8) Missing LED strip in office 1. Revision 72 refers to "LED lighting to units under cabinetry". There appears to be some cabinetry in the office, although it is unclear whether that is the cabinetry referred to on the Revision 72 lighting plan. In any event, because Revision 72 is not contractual, no amount is allowed for this omission. (9) No switch on the eastern wall of the office 1. This alleged admission is a switch apparently missing from the northern wall of the office according to Revision 72. As the claim relies on Revision 72, it must fail. (10) Sensor light to the caretaker's residence needs calibration 1. I accept this defect and the amount, which is to be discounted because it will be done with other matters. 2. The amount allowed is $195 at 20%, namely $39. (11) Sensor outside gym needs replacement 1. I accept this defect and allow the material cost since although it is a prime cost expense, that expense has been incurred. I also allow the labour cost at the discounted rate. The amounts allowed are $75 and also $490 at 20%, namely a total amount of $173. (12) Downlight missing over kitchen bench 1. This omission relies on Revision 72 and accordingly, fails for that reason. The downlight would, in any event, not be recoverable as it is a prime cost item. (13) No light on sensor in caretaker's residence or laundry 1. These items are not shown on Revision 72, contrary to Mr Larsson's assertion in his report. If they were, the claim would fail because Revision 72 is not contractual. In oral evidence, when asked about the absence of these matters on the plan, Mr Larsson relied upon being told by the owner that the sensor and light were meant to be there, although he gave no evidence of when, where, or the precise contents of this conversation. I also note that Mrs Gallagher abandoned any claim which relied upon Mr Larsson's evidence of information he received from Mrs Gallagher. As there is no evidence of a contractual obligation in respect of the light or sensor, no allowance is made for this item. (14) No separate switch to the exhaust fan in the caretaker's residence 1. This allegation relied upon the collection of broken lines on Revision 72. In oral evidence, Mr Larsson stated that usually a separate switch would be indicated by the letters "SEP", but those letters were not present on the Revision 72 plan. If that was so, there is no basis for the claim. In any event, the claim relies on Revision 72 and must fail for that reason. (15) Power point in the mirror 1. This claim was abandoned by Mrs Gallagher in submissions. (16) Missing two way switch for floodlights 1. This alleged admission relies solely upon Revision 72 and must fail for that reason. Further, although Revision 72 shows a short broken line to the switch, there is no reference to "two way" on Revision 72 to indicate that the floodlights are part of a two way switch, as there are with other two way switches on Revision 72. Further, the evidence indicates that the cost will be in excess of $3,500 for the installation of a 1m length of cable and new power points, which seems to me to be excessive. In any event, for the earlier reason, no amount is allowed. (17) Missing dual light switch in garage 1. This alleged admission relies on Revision 72 and fails for that reason. I was also not persuaded by Mr Larsson's evidence, inconsistently asserting that there was, and subsequently that there was not, a "2 gang switch", or his evidence that Revision 72 indicated an under cabinet light. No amount is allowed. (18) External lighting to caretaker's residence was not always floodlights 1. Mr Larsson's evidence in this regard contained errors. One of the halogen lights he identified, which he asserted should have been a floodlight, was shown on Revision 72 as a wall light not a floodlight. Another halogen light was shown in a photo not to be in the position that Revision 72 indicates for an external floodlight. The claim asserts the need to replace some halogen lights, up to five, but as only one appeared (in a blurry photo) to be incorrect, that defect could not, in my view, possibly cost almost $6,000 as he asserts. In any event, as this claim relies (insofar as it can be maintained) on Revision 72, it must fail. (19) The omitted post for entry gate 1. This alleged defect relies on Mr Larsson's evidence of information by the owner, a matter which was abandoned by Mrs Gallagher although this item was not specifically identified as an abandoned item. 2. The post is not identified on any plan and also is not referred to in any earlier complaint of defects by Mrs Gallagher. It may be a useful addition to a house to have a post out some distance from the gate so as to enable the gate to be operated without getting out of the car. Alternatively, it may be unnecessary if the gate is operated by a remote control, a photograph of which seemed to be in evidence. But it is not the responsibility of the builder to install a post and connections at his cost unless it is shown to be part of the contract. There is no evidence of that and so no amount is awarded. (20) Missing garden lights 1. Mrs Gallagher abandoned this claim in closing submissions. (21) Light switch not functional 1. Neither Mr Larsson in oral evidence nor Mrs Gallagher in submissions addressed this alleged defect and there is no photographic evidence of the light switch. However, there is evidence of a switch, and Mr Larsson reports that it is not functioning in respect of the lights. This is some evidence that there is a defect. With some hesitation, I am inclined to allow this defect, although it relies upon Revision 72. The presence of the switch is some other evidence of the obligation. The materials nominated are switch and electrical cabling. Revision 72 indicates about 3m of cabling is sufficient. While the remediation costs claim, in excess of $3,300, seems excessive, I propose to allow the whole amount but discounted, as it would be done with other work. The amount allowed is $3,300 at 20%, namely $660. (22) Omitted sensor light to visitor's wing bedrooms 1. Revision 72 states, "sensor switch" although no sensor is drawn on the plan. The claim relies solely on Revision 72 and must fail for that reason. (23) Defective location of light switch in visitor's wing bathroom 1. This matter was not addressed by Mr Larsson in oral evidence and not the subject of submissions. Mr Larsson's report seems to speculate that the switch was installed too close to the tile, so that the tile needs to be cut. But the photograph indicates about 3 cm of space on the other side of the switch which would provide room for the switch and its cover without cutting the tile. 2. In these circumstances, I do not allow any materials but some cost can be expected in moving the switch the small distance. I will allow the labour cost of $395 at the 20% discount, namely $79. (24) Missing down lights to timber panelled ceiling in guest wing 1. There is no evidence of this omission other than Revision 72 and Mr Larsson's reported observation. It was not referred to in submissions. As the claim relies on Revision 72 for evidence of an obligation it must fail. (25) Non-functioning two way system for walkway lights 1. This defect is identified in Mr Larsson's report relying upon Revision 72. But there were no photos, and no submissions were made in respect of it. There is no evidence of the operation of or obligation in respect of the C-Bus system. The evidence is unclear as to whether there is a defective switch or the absence of a second switch. In that event, I am not persuaded that the problem is a defect rather than an omission, and if the latter, Revision 72 is insufficient to establish the builder's obligation. No amount is awarded. (26) Omitted pendant lights in visitor's wing 1. The claim must fail because it relies on Revision 72 to establish the builder's obligation. (27) In-floor lights incorrectly mounted 1. I accept this claim of defective work based on Mr Larsson's evidence and photo. The material should be allowed in full and the labour cost should be allowed with the appropriate discount. The amounts allowed are $82 and $738 at the 20% discount, namely a total of $229.60. (28) Outdoor speaker incorrectly connected 1. I accept this claim of defective work based on Mr Larsson's evidence and photo, on the same basis as the previous matter. The amounts allowed are $43 and $197 (at 20%), namely $82.40. (29) Omitted switch for gate lights 1. This omission relies on Revision 72 to establish the obligation on the builder and fails for that reason. (30) Defective floodlights on first floor lighting 1. The defective operation of these floodlights is established only by Mr Larsson's report that they "do not appear to function". It is not clear whether the defect is with the floodlights, the connection or the wiring. Accordingly, the material cost may be negligible if the floodlight is not the problem. I propose to allow the whole amount of $2,920 claimed, but discounted to 20% for the reasons previously indicated. The amount allowed is $584. (31) Omitted LED strip lighting in laundry 1. This claim relies upon Revision 72 and must fail for this reason. (32) Holes in laundry cabinetry 1. In reliance on the photo in Mr Larsson's report, I accept this claim and allow the materials in full and the amount as discounted. So the amounts allowed are $48 and $232 at 20%, namely a total of $94.40. (33) Omitted light to meditation room closet 1. This claim relies upon Revision 72 and must fail for that reason. (34) Defective power point 1. I accept this claim, relying on Mr Larsson's report and the materials should be allowed in full and the labour at the discounted rate. The amounts allowed are $65 and $315 at 20%, namely a total of $128. (35) Green C-Bus screen 1. The alleged defect is a green rather than a black screen in one C-Bus panel in the house, which is said to be cosmetic only, although Mr Larsson's report suggests that the unit may have been dropped. The matter was not addressed during submissions or by Mr Larsson's oral evidence. Mr Larsson's evidence is ambivalent about whether the problem arose during construction and no evidence is given about how the material cost was determined. With some hesitation, I accept that the material cost should be allowed in full and the labour cost discounted as indicated earlier. The amounts allowed are $550 and $320 at 20%, namely $614 total. (36) Incorrect wiring inside mediation room entrance 1. This claimed defect depends upon Revision 72 to establish that the lighting is incorrectly wired. For that reason, I am not persuaded of any breach and no amount is allowed. (37) Incorrect power points in kitchen 1. This claimed defect relies upon information Mr Larsson alleges he received from Mrs Gallagher. There is no other evidence of an obligation on the builder in respect to this matter. These types of claims were abandoned generally by Mrs Gallagher in submissions, although this particular item was not one of those specified. The evidence does not establish the obligation and the claim is not allowed. (38) Omitted kitchen down lights 1. This claim relies solely on Revision 72 and must fail for that reason. (39) Incorrectly located pantry sensor 1. The claim is that the pantry sensor was not appropriately located. However, it could only be a defect in the building work if the builder had a discretion as to its location. If the contractual plan showed the location as installed, and the owner was responsible for the plan, then the location is not a defect by the builder. 2. Revision 72 does not show a sensor light in the pantry, which is another indication that Revision 72 is not the electrical plan utilised by S & C Electrical on the site. 3. No amount is awarded for this claim. (40) Incorrectly located light switch near main kitchen barbeque area 1. Revision 72 is relied upon for the correct location of the light switch and so the claim must fail for this reason. No amount is awarded. (41) Fan in covered barbeque area not operating 1. Mr Larsson gives evidence that the cause of the fan not operating is unknown, but if it is a defective fan, he assesses the cost at $695. The cause could be the fan, the switch, the cabling or the connection to the switch or the cabling. I think some amount should be awarded but the claimed amount must be discounted because of the other possibilities involving less cost. I propose to allow approximately half of the amount claimed, namely $350. Amount allowed $350. (42) Omitted landscape lighting switches 1. This claim relies upon Revision 72 and must fail for this reason. (43) Omitted pin lights to main living rooms 1. This claim relies upon Revision 72 and must fail for this reason. (44) Missing LED strips in main living room 1. Revision 72 does refer to LED in this area, although what is intended is not clear. In any event, Revision 72 is not established to be the contractual electrical plan and therefore this claim is not sustained. (45) Missing wall wash down lights in main living room 1. Revision 72 is relied upon to establish these lights but as it is not established to be a contractual document, the claim must fail. As with other claims for omitted lighting, as light fittings were a prime cost item, the allowance for which was apparently exceeded, the fittings would not be recoverable in any event. (46) Omitted light switches for external lights 1. This claim relies on Revision 72 and must fail for this reason. The decision might be different if there were no switches to operate these lights, but that is not alleged and is contrary to what is shown in Revision 72. (47) Missing panel in living room 1. This alleged defect is not shown, at least not clearly, on Revision 72. However, a photograph shows a hole in the wall, an obvious defect. This matter was not the subject of submissions or further oral evidence from Mr Larsson. Without more, I am unable to be satisfied that the existence of an opening establishes a contractual obligation on the builder to install a C-Bus panel. Nevertheless, the hole must be patched and painted. I will allow the sum of $300 for that work as it would be done with other work. The amount allowed is $300. (48) Omission of two niche lights in formal dining room 1. This claim relies upon Revision 72 and must fail for that reason. (49) Defective switch in dining room to outdoor wall wash lights 1. Five of the six outdoor wash lights are said not to be operated by the switch indicated in Revision 72, or at all. This is a defect observed onsite that must be remedied. However, it seems unlikely that no cabling was installed to the lights. Mr Larsson's report indicates no more than the need to test cabling, however, the remedial cost is to rewire the lights. I would allow the whole amount claimed, wholly subject to the discount. Therefore, I would allow $4,870 at 20%, namely $974. (50) Buzzing sound in speakers 1. It might be doubted whether Mr Larsson was the expert to advise on this matter and the cost to remedy it, however, he has identified a defect and identified a possible cause. I propose to allow the amount claimed at the discounted rate. I allow $4,870 at 20%, namely $974. (51) Omitted pin lights from wine cellar 1. This claim relies on Revision 72 and must fail for this reason. (52) Missing up lights outside dining room 1. This claim relies upon Revision 72 and must fail for this reason. (53) Missing ceiling lights outside lift 1. This claim relies upon Revision 72 and must fail for this reason. (54) Niche light outside lift, not on separate switch 1. This claim relies on Revision 72 and must fail for this reason. (55) Phone in lift not connected 1. The unconnected phone in the lift is a defect. However, the cost of the lift (presumably including the phone) has a provisional sum under the contract. Mrs Gallagher abandoned all claims to establish that a provisional sum was not exhausted. In that event, a lift phone should be connected but at Mrs Gallagher's cost. No amount can be awarded. (56) Missing stair light in club room 1. This claim relies on Revision 72 and must fail for this reason. 2. Further, Mr Larsson acknowledged that this is a design fault requiring architect's instructions and a variation. Accordingly, any work would be to Mrs Gallagher's account. No amount can be awarded. (57) Missing sensor light to communications room ("comms room") 1. It is apparent from photos in evidence that there is a light in the comms room. Whether the builder was obliged to install a sensor light is evidenced solely by Revision 72. This claim relies upon Revision 72 and must fail for this reason. (58) Untidy comms room connections 1. This alleged defect is supported by Mr Larsson on the basis of information supplied by Mrs Gallagher about her regularly speaking to Mr Corbett "during the build". Although Mrs Gallagher abandoned claims dependent upon such information, the list of such claims orally specified did not include this item. The item was also supported by evidence from Mrs Gallagher that about a year prior to the contract, Mrs Gallagher showed Mr Corbett her house in Florida and requested that the level of finish be equivalent. No evidence was given about the specific conversation regarding the communications room. Two photographs of a tidy communications room in Florida were in evidence. Mrs Gallagher's conversations with Mr Corbett during the build were not in evidence. 2. There is no expressed obligation in relation to the finish in the comms room. On Revision 72, the room is referred to as "Storage" with no cabinetry shown. The P & H electrical plan may have more detail but that is not in evidence. The matter of the comms room might also fall within the specification in the contract about "Supply & Install Dynalite Home Automation," and if it does, that had a provisional sum and so any further cost would be to Mrs Gallagher's account. 3. I was not satisfied that there was a contractual obligation to install "recessed metal housings" and otherwise tidy the comms room beyond the level shown in the seven photos (pp 69 to 72 of Mr Larsson's report) (beyond a prime cost or provisional sum allowance). Nor was I persuaded that the cost of the recommended remedial works was to any degree reliable. It seemed to depend upon a conversation by Mr Larsson with an unnamed C-Bus person, the details of which were never provided. 4. However, an earlier report by Phil Kelly, building inspector, allowed certain tidying up expenses for the comms room (or "cupboard") of $75, $125 and $800 (defects 39 and 41). On the basis of this evidence, I would allow the amount of $1,000. (59) Missing pendant light to bar in club room 1. This claim relies upon Revision 72 and must fail for this reason. (60) Omitted recess track lights in club room 1. This claim relies on Revision 72 and must fail for this reason. (61) Wrongly located floodlight 1. Mr Larsson gave evidence that the floodlight is in the wrong position although its position, as installed, is not indicated on the evidence. In any event, this omission depends upon Revision 72 and must fail for this reason. (62) Omitted two way switch for outdoor walkway lights near suites 2 and 3 1. This claim relies upon Revision 72 and must fail for this reason (63) Omitted two way switch for outdoor up lights and single downlight near suites 2 and 3 1. This claim relies upon Revision 72 and must fail for this reason. (64) Omitted down lights in suite 2 ensuite 1. This claim relies upon Revision 72 and must fail for this reason. (65) Omitted two way switch for path lights and down lights to club room 1. This claim relies on Revision 72 and must fail for this reason. (66) Master suite reading light switch is "too far apart" to function as bedside switch 1. Mr Larsson does not clearly report that this alleged defect is contrary to Revision 72. If it is, he relies on a non-contractual plan for reasons given earlier. If it is not, then in any event, there is no evidence that Start did not follow the contractual plan. 2. No amount can be allowed for this claim. (67) Control of roof floodlight from master suite bedside switch 1. Mr Larsson relies on Revision 72 to establish the obligation but Revision 72 does not show that a bedside switch should operate the pool floodlight, only that "all external floods to have controlability from the control panel in the master suite". While a control panel is located in the master suite, whether it involves a "switch beside the bed" is not shown. In any event, this claim relies on Revision 72 and for the reasons previously explained, must be dismissed. (68) Missing LED strips from the fireplace bed 1. This claim relies on Revision 72 and must fail for this reason. (69) One non-functioning colour change LED in master suite 1. Mr Larsson indicates that the remedy for this fault is to "test LED strip…and replace where necessary". However, the cost of the materials is $782 for an LED strip. I propose to allow the whole amount claimed, at the discounted figure ($2,750 at 20% equals $550). The amount allowed is $550. (70) Missing LED strip in master suite female walk-in robe 1. This claim relies on Revision 72 and must fail for this reason. (71) Missing LED strip in master suite male walk-in robe 1. This claim relies on Revision 72 and must fail for this reason. (72) Incorrectly located light sensor 1. It is unclear whether Mr Larsson's report asserts that the light centre is wrongly located on Revision 72 or that Revision 72 was not followed. In either event, there was no evidence that Start did not follow the contractual plan. No amount can be allowed. (73) Incomplete assembly of crystal chandelier 1. I would infer that the cost of assembly of the crystal chandelier would be part of the prime cost applicable to light fittings. As there is no claim for the unexpended light fittings allowance, the claim for $120 cannot be allowed. (74) Omitted entry light to female walk-in robe. 1. This claim relies on Revision 72 and must fail for this reason. (75) Ineffective exhaust fan 1. Mr Larsson reported that the exhaust fan in the main suite female ensuite bathroom was "not effective enough to remove steam". Revision 72 shows that exhausts in both ensuites are located in the toilet rooms and not proximate at all to the shower or bath. There is no evidence that the location of the fan is otherwise than in accordance with the contractual plan, and if that location is undesirable, that is not the fault of the builder, at least not without other evidence. 2. There is no evidence as to what, if any, test Mr Larsson did, or whether he accepted an account by Mrs Gallagher about this matter. It is therefore unclear what expertise he used to reach his opinion. He provided no figures for flow rate (or noise quality if that was also an issue) compared to the standard. 3. I am not satisfied that Mr Larsson's assertion, in the absence of any evidence from Mrs Gallagher about the matter, is sufficient to establish the defect. No amount is allowed. (76) Vanity lights in female bathroom not connected to main switch panel 1. Revision 72 shows that the vanity lights are operated by switches near the vanity. An unbroken line indicates that possibly one, or two, of those lights might be operated from the main switch panel although no "two way" notation is evident. In any event, this claim relies upon Revision 72 and must fail for this reason. (77) Light in niche in male ensuite bathroom not on a separate switch 1. This claim relies upon Revision 72 and must fail for this reason. (78) Two missing wash wall lights in first floor hall 1. This claim relies upon Revision 72 and must fail for this reason. (79) Omitted switch for missing wash wall lights near lift shaft 1. This claim relies on Revision 72 and must fail for this reason. (80) Missing light sensor in the plinth in female ensuite 1. This claim relies upon Revision 72 and must fail for this reason. (81) Missing pin lights in library 1. This claim relies upon Revision 72 and must fail for this reason. (82) Missing lights in storage linen room 1. This claim relies upon Revision 72 and must fail for this reason. (83) Wall lights not installed in powder room 1. Revision 72 includes a plan for LED downlights in the powder room. However, the photo annexed by Mr Larsson shows cables for wall lights. No complaint is made about this difference from Revision 72 or that there is the absence of wall lights being installed. Rather Mr Larsson asserts that two pendant lights should be installed. How the cost of pendant lights (which I infer can come in varying prices) can be assessed by Mr Larsson is unclear. In any event, light fittings are a prime cost item and are therefore not recoverable. 2. Although there is clearly incomplete work in not installing the wall lights, I have no evidence that those lights were supplied by Mrs Gallagher for installation or were within her prime cost allowance. I am not persuaded that there is a need for any other materials. With some hesitation, I propose to allow the amount for labour at the discounted rate as no wall lights were installed. 3. The amount allowed is $1,115 at 20%, namely $223. (84) Missing floodlights of the cabana 1. This claim relies upon Revision 72 and must fail for this reason. (85) Missing LED strip lights to pool bar 1. This claim relies upon Revision 72 and must fail for this reason. (86) No switch to spa lighting on C-Bus panel in cabana residence 1. Mr Larsson says this circumstance "indicates an oversight during construction". That is insufficient to persuade me that Start acted in breach of an obligation to follow contractual plans and specifications. The matter may have been outside the provisional sum allowed for home automation or may have been done in accordance with the contractual plans. No amount is allowed. (87) Missing strip of LED ceiling lights to southern ceiling of cabana 1. This claim relies upon Revision 72 and must fail for this reason. (88) Storeroom and pool WC lights permanently on 1. I accept this is a defect and allow the amount, solely labour, at the discount indicated. The amount allowed is $745 at 20%, namely $150.80. (89) Ceiling fan in cabana does not work 1. Mr Larsson's report relies upon an inspection dated 21 to 23 September 2015, a little over a year after Mrs Gallagher had moved into the property in early September 2014 and a little more than that after the Final Occupation Certificate dated in August 2014. No explanation was given as to why the builder remained liable for a fan that was not working after a year of occupation. Without some specific obligation in the evidence, I could not find such an entitlement. I note that the defective fan is not mentioned in the earlier defect reports of Mr Kelly or Mr Daley. No amount is allowed. (90) Alarm not properly linked 1. No evidence existed to establish this obligation, other than Mr Larsson's assertion that it was "requested by the owner". It is not clear that the caretaker's alarm being managed from the caretaker's residence rather than from the main residence would "defeat the purpose of an alarm". Nor is there any evidence to indicate that linking the alarm was an expense covered by the provisional sum of the home automation system. No evidence establishes this obligation on the builder as part of the contractual sum so the remediation of the absence of a linked alarm is not a recoverable expense. (91) Floodlights not controlled from main suite 1. It seems to overlap with claim 67, which deals with the pool floodlight. In any event, this claim relies upon Revision 72 and must fail for this reason. (92) Diffuser cover missing from garage batten light 1. This would be a defect for which Start would be responsible if the diffuser cover had been absent from the light at the date Mrs Gallagher took possession. I cannot infer from Mr Larsson's reported observations of the absence of the diffuser cover in September 2015, that it was absent a year earlier in September 2014. Neither of the other defect reports mentioned the diffuser cover. No amount is allowed. (93) Unfinished cabling in dining room. 1. I accept that this is a defect that needs to be remedied and the amount claimed is allowed, subject to the discount. The amount allowed is $224 at 20%, namely $44.80. 2. The total amount allowed for electrical work is $7,483. 3. It is evident that in many cases, claimed omitted items are not allowed because the omission depends upon Revision 72 being a contractual document, which I have found not to be established. F. OTHER ALLEGED NON-ELECTRICAL DEFECTS 1. The residue of the defects identified by Mr Larsson and claimed do not have a specific sum attributable to each defect. There are ten groups of defects categorised by trade. The remediation cost submitted by Mr Larsson is for all the costs in that group. It follows that if only some are allowed, there is no evidence from Mr Larsson to guide or identify the amount to be allowed in respect of those established items. 2. As previously noted, there were other earlier defect reports issued in respect of the property. 3. Mr Kelly inspected the property on 15 January 2015 and made a detailed list of 93 items. A later list from Mr Kelly quantifies the cost for each item, indicating the time required, and a further list appears to delete almost half of the items from the list, perhaps indicating that the defect had subsequently been rectified. About half of the remaining defects, perhaps more, do not appear to have been referred to by Mr Larsson, although differences in terminology and the lack of a clear plan mean that it is not always possible to identify whether the experts are referring to the same alleged defect or different ones. 4. In addition, Mr Daley, a building inspector for Fair Trading, provided a supplementary list of matters said to be additional to Mr Kelly's list as a result of an inspection on about 9 June 2015. This shorter list did not indicate the remediation cost for any defect. 5. Mrs Gallagher annexed all these lists to her affidavit but did not otherwise refer to them in submissions. The amount claimed in the proceedings was derived solely from Mr Larsson's report in respect of the defects he identified. 6. I have referred to those other reports in circumstances where I have been unsatisfied with Mr Larsson's report to ascertain what, if any, amount should be awarded. G. PLUMBING 1. An amount of $16,200 plus GST is claimed for plumbing works. Although 10 defects are listed, the primary item seems to be the need to replace all PVC downpipes with Colorbond coated metal. Mr Larsson referred to a construction plan A-01-01 that "calls for the material for all downpipes to be of Colorbond material". 2. The copy of plan A-01-01 in evidence is so poor that it does not allow that matter to be confirmed, and despite an invitation to the plaintiff, no clearer copy was supplied to the Court. 3. There is a final heading on the poor copy of A-01-01, which appears to say "roofing material" and it might state, "downpipes colorbond". I could find no other reference in the contract or the specifications to the nature of the downpipes. 4. None of the other defect reports refer to any plumbing defect. Neither of those reports, nor any other correspondence from Mr or Mrs Gallagher to the builder complain about or refer to the use of PVC downpipes. 5. I accept that some of the plumbing items listed by Mr Larsson are defects. The downpipes are too close to the finished surface of the house to allow clear inspection for termites (Larsson at [109]); the level of the dry floor waste is incorrect (Larsson at [114]), a defect also reported by Mr Kelly (defect 65) who assessed the remediation cost at $1,800, and the garage pipe works are not finished to a proper standard (a matter with which Mr Kelly appeared to agree and assessed at $450). I am not persuaded that the hot water relief valve is a defect. I should allow GST and a builder's allowance of 20% for the remediation work. 6. Some of the downpipes may need to be replaced as being too close to the wall in line with the defect I have identified above. Mr Kelly identified a similar problem with a separate pipe (defect 65) and assessed a remediation cost at $650. So a change of two pipes might be costed at approximately $1,300. 7. I propose to allow $5,000 for the identified plumbing works. It follows that on the evidence, I am not satisfied of an obligation to replace all the downpipes. The amount allowed is $5,000. H. CARPENTRY 1. Mr Larsson lists 18 defects and attributes a remediation cost of $66,592 plus GST. The primary defect referred to by Mr Larsson in oral evidence was the use of the wrong type of timber for the pergola structures. He said that the timber was inappropriate for outdoor use. Mr Larsson determined this from a stamp on part of a pergola. However, that evidence leaves uncertain whether all of the timber in each of the pergolas connected to the house utilises the same inappropriate material. 2. As to the other defects reported by Mr Larsson, I am persuaded that adjustments are required to a number of the timber doors, that door furniture is missing or defective, that the timber panelling has expanded and popped, that some architraves need gap filler to be added and that the timber stringer to the staircase needs replacing (Larsson [133]), as Mr Kelly agreed (defect 129). 3. The primary matters about which I remain unsatisfied are the suggestions that all the pergolas need replacement and also the cost allowed by Mr Larsson. Mr Kelly's total remediation cost for all items, not just carpentry, and which include a substantial number of matters which were apparently remedied was $48,915. Confining those costs to carpentry works, including those that may have been completed, it is still no more than $25,000. But this cost does not allow a complete replacement of the pergolas. 4. A comparison of the various defects listed by Mr Kelly and Mr Larsson is, as I have earlier indicated, not assisted by the absence of proper plans and by different names being used to describe the same room (e.g. one room appears to be called variously the "guest room", the "cottage" and the "visitor's wing"). 5. In all these circumstances, I propose to allow an amount of $30,000 for carpentry work. I. TILING 1. Problems with the tiling are identified by Mr Daley and Mr Kelly, as well as Mr Larsson, although Mr Kelly identifies a number of grouting deficiencies that do not feature in Mr Larsson's report. All the reports recognise cracking and damage as a result of a failure to install "control" (see Mr Daley at Exhibit NG-2, p 192, item 5) or "expansion" (see Larsson at [141]) joints. 2. I propose to allow the whole amount claimed for tiling being $6,670 plus GST, namely $7,337. J. CONCRETING 1. Mr Lawson identifies three missing expansion joints in the driveway, together with the need for sealant. Although this defect is not identified by Mr Kelly, I am prepared to allow it. Mr Kelly refers (at defect 88) to a crack in the driveway slab which, together with a need to render a wall, he assessed at two hours costing $150. 2. In these circumstances, I am not persuaded that the cost of the expansion joints in the driveway, together with the silicon, could cost anymore than $1,000, and I propose to allow this sum. 3. The amount allowed is $1,000. K. ROOFING AND ROOF PLUMBER 1. Mr Larsson has identified a missing downpipe to the box gutter, insufficient flashing around a timber post, and apparently a minor problem with the garage roof. The primary problem identified is that the box gutter spans 19m in length, whereas this is only appropriate if the material thickness of the box gutter is 0.55mm thick. Mr Larsson indicated that he did not check the thickness but that the thickness of 0.42mm is commonly used. He said that that thickness would only allow a maximum 15m span. 2. This is not a defect identified by Mr Kelly and it could only be a defect if the material used was of the thinner type. 3. In those circumstances, I am not satisfied of the need for removal and refolding of the box gutter. I would, however, allow half the plumbing sums claimed plus GST, namely the sum of $4,730. L. ALUMINIUM WINDOWS AND DOORS 1. The primary problem with the aluminium windows and doors is that they are double glazed and the seal appears to have failed. As a result, moisture has entered between the glass panels to create a hazing or frosting. Mr Larsson says, "The areas on the premises that this issue can be found include the bathroom in the visitor's wing, the main entry doors to the main residence and the laundry to the main residence among others". 2. Although only this limited area was nominated, Mr Larsson gave evidence that the cost of $75,860 claimed included the cost of all, or almost all, the windows and doors and his evidence alone on that amount would seem to be excessive. 3. Mr Kelly did not identify this defect but the Fair Trading inspector, Mr Daley, did. He stated, "Moisture visible between glazing in windows of laundry, study, club room, front doors bar room, bed 2, dining room, cottage bathroom". 4. Accordingly, this problem is more widespread than Mr Larsson's report might indicate and may warrant a substantial amount of the windows to be repaired or replaced. Whether that cost would be recoverable from the window manufacturer, it is not a matter with which I need be concerned. 5. I also note that the budget analysis prepared by Start included an amount of almost $300,000 being allowed for, and spent on, the windows and doors and that the specifications provided for "Supply & Install Double glazed Knotwood coated aluminium doors and windows". Although the almost $300,000 sum may include internal doors, it seems likely that the bulk of this cost is in respect of external double glazed windows and doors. 6. The method of rectification of the defective seal is not clearly stated in the evidence, although I understood Mr Larsson to be indicating that there was a need to replace most, or all, of the windows to rectify the problem, a matter with which I retain some doubt. However, in all the circumstances, I accept that this is a defect that should be allowed and, in the absence of contrary evidence, I do not find that there is any real basis for me to reject the amount proposed by Mr Larsson. 7. The other matters mentioned by Mr Larsson in respect of the windows and doors, including seals, weather strips and the need for adjustments, are all supported by Mr Kelly but, in any event, many would not be required if the large scale replacement occurred. 8. I propose to allow the sum claimed inclusive of GST, namely $83,446. M. GENERAL DEFECTS 1. In this section Mr Larsson identifies a waterproofing issue in suite 2, a damaged magnetic lock on the front gate (which is supported by Mr Daley's report at [4]), the need for cleaning the roof debris (supported by Mr Kelly at defect 73), a missing speaker cover and an unwired rain sensor. 2. I propose to allow the amount claimed including GST, namely $2,684. N. PAINTING AND WALLPAPERING 1. Mr Larsson claims an amount for painting and wallpapering of $42,750 plus GST. He identifies five defects: wallpaper in the visitor's wing bathroom is starting to peel, the external wall cladding of the atrium above the master suite is unpainted, other wall cladding that has been undercoated only, a failure to sand internal timber surfaces before the final coat and the need for further sanding and staining of the timber deck, posts and pergola. 2. Mr Kelly identified unfinished defective painting work in his report: sealing top and bottom of timber doors (defect 1), wallpaper repair in bathroom near laundry (D15) and in nearby bedroom (D19), the need to clean off paint overspray on skirtings and architraves (D26), fixing an area above the master bedroom entry (D44), repairing the wallpaper in the "cottage" bathroom (D57) and the downstairs ensuite (D89), painting some of the deck off the downstairs bedrooms (D62) and repairing the painting in the caretaker's bathroom (D79) and outside the caretaker's quarters (D84). 3. There are also some other matters that the evidence indicates may have been resolved, including a reseal of "all external timber decks and posts" (D63), although that evidence was at least equivocal. 4. On Mr Kelly's calculations, the cost for all the matters he identified is a little over $5,000. Not all of the items are asserted by Mr Larsson. Conversely, the remediation of the internal surface that was not sanded prior to the application of the top coat was not listed by Mr Kelly. I also note that the painting budget, and the entire cost of painting in the house, was around $100,000. 5. Bearing this evidence in mind, I am not persuaded of the amount reported by Mr Larsson. There must be a substantial reduction. I propose to allow the sum of $8,000. O. CABINETRY 1. This item was abandoned in submissions. P. AIR CONDITIONING 1. There was a minor defect for exposed piping. The major element of this claim is that the air conditioner installed in the wine cellar is a "standard Hitachi split system" where as an appropriate cellar air conditioner was required such as a "two Cave INOA 50 cellar airconditioner" costing around $6,500 plus GST. Mr Larsson seems to have allowed $1,750 for installation of the new air conditioner and fixing the exposed piping. 2. Mrs Gallagher does not establish that the builder had an obligation to install an adequate or special cellar air conditioner. The contract specification states "Supply and Install Air Conditioning as per AirCare quotation enclosed PS $149,600". The Air Care quotation was not in evidence. 3. Mrs Gallagher did not claim that she received less than the provisional sum for air conditioning. Any future expense on air conditioning would, in the absence of an expressed provision, which was not asserted, be an expense not payable by the builder. On the budget analysis in evidence, there was no specific reference to air conditioning and I would infer that air conditioning expenses were allocated to "Electrical/Electrical Goods", which were budgeted at $447,907 and actual expenditure was $539,057. 4. Mrs Gallagher is not entitled to the cost of a new air conditioner. I would allow $300 for what Mr Larsson terms the "cosmetic defect" of covering the exposed piping. 5. The amount allowed is $300. Q. SUMMARY OF AMOUNTS ALLOWED Electrical $ 7,483.00 Plumbing $ 5,000.00 Carpentry $ 30,000.00 Tiling $ 7,337.00 Concreting $ 1,000.00 Roofing and roof plumber $ 4,730.00 Aluminium windows and doors $ 83,446.00 General defects $ 2,684.00 Painting and wallpapering $ 8,000.00 Air conditioning $ 300.00 Total of amounts allowed $ 149,980.00 R. INTEREST 1. I propose to allow interest on this sum from 1 January 2015, which is approximately three months after Mrs Gallagher moved into the premises, to date, being a total of $24,576.69. S. ORDERS 1. Therefore, the orders I make are: 1. Judgment for the plaintiff in the sum of $174,556.69. 2. Defendant to pay the plaintiff's costs. ********** 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: 21 August 2018