Robert Symes and Kim Lousie Filmer v Mick Faber Constructions Pty Ltd [2015] NSWCATCD 77
Background
The applicants, being the home owners, sought to renew proceedings in the NSW Civil and Administrative Tribunal which were previously settled by the making of consent orders. The consent orders provided for the builder to carry out certain rectification works pursuant to a work order.
The “renewal” of proceedings effectively allows a matter to be relisted before the Tribunal, after it has been dismissed, where certain orders made by the Tribunal have not been complied with.
The home owners made the application to renew the proceedings as they alleged the builder had not complied with a work order, and they sought that the work order be converted into money order.
The builder resisted the renewal application on the basis that most of the works to be carried out were unnecessary, impossible to carry out or otherwise undesirable, and filed expert evidence in support of its position.
It was the home owners’ position that the builder’s expert evidence sought to go behind the work order, and that the scope of the renewal of the proceedings should simply be limited to whether the works that were carried out complied with the consent orders to the satisfaction of the homeowners’ expert and the cost to rectify or complete the works. The applicants submitted that the work order had not been complied with to the satisfaction of its expert and hence should be converted to a money order.
The Decision
Senior Member Meadows noted that whilst one option is to consider if the work order was complied with and if not make a money order, the legislation (the then section 43 of the Consumer Trader and Tenancy Tribunal Act 2001, now repealed, but mirrored in Schedule 4, Clause 8 of the Civil and Administrative Tribunal Act 2013) provides that on a renewal application the Tribunal may make any other appropriate order which it could have made when the matter was originally determined, or refuse to make such an order.
Senior Member Meadows concluded that he could see no reason in principle why the Tribunal should not make further or amended orders altogether rather than converting the original order into a money order, if it should be found that the orders have not been complied with.
Ultimately Senior Member Meadows held that the scope of the renewal proceedings should include a consideration of the following matters at a final hearing:
- Whether it is appropriate to convert a work order (or any particular item with the work order) into a money order;
- Whether any of the works have been complied with;
- Whether any of the works not complied with are still necessary;
- Whether the applicants have prevented any of the works;
- Whether any of the works not completed are impossible or impractical to complete;
- Whether an opinion as to satisfactory completion of any of the items requires expert opinion of a particular type, such as general building, structural, hydraulic and so on; and
- Any other issues either party is able to assert are relevant.
Senior Member Meadows advised the parties that if they wished to positively assert any of the above matters they would need to file evidence to support this, and that evidence in reply should be filed by any party wishing to dispute such an assertion. Senior Member Meadows noted that it would be appropriate and probably necessary for both parties to call expert evidence.
The matter was subsequently listed for further directions to enable orders to be made for the parties to file and serve their evidence and the listing of the matter for final hearing. A decision in relation to the final hearing of the matter is yet to be published.
What does this mean for Home Owners and Owners Corporations?
This decision highlights that whilst the Tribunal has the power to convert a work order to a money order in circumstances where it is found that a work order has not been complied with, it also has the option not to do so and to make alternative orders or no orders at all as it sees fit.
The benefit of a home owner or Owners Corporation obtaining a work order as a result of this decision is questionable. A home owner or Owners Corporation cannot simply assume that it will be able to approach the Tribunal and obtain a money order in circumstances where a builder fails to comply with a work order. Instead, a homeowner or Owners Corporation may find themselves having to obtain significant additional evidence, including expert evidence in order to prove its position and address matters, which it would otherwise not have had to deal with if a work order had not been made, so it may seek to obtain further orders from the Tribunal. Effectively, there may be a re-hearing of the matter.
A homeowner or Owners Corporation could also find itself having to respond to allegations that they prevented any of the works the subject of the work order from being undertaken. It seems that this may be a relevant matter for consideration by the Tribunal which could potentially reduce the builder’s liability in terms of its required compliance with the work order.
In view of this decision, it is preferable for a home owner or Owners Corporation to obtain a monetary order rather than a work order, in order to seek to avoid the burden of having to prepare a further case to seek to obtain additional orders from the Tribunal in the event that the work order is not complied with by the builder. However, the Tribunal is now focused on making work orders, and is now obliged to give consideration to making a work order first and foremost.
What does this mean for Builders?
This decision suggests that the making of a work order is advantageous to a builder in the event that proceedings are renewed due the alleged non-compliance with a work order, the Tribunal will not simply convert the work order to a monetary order. Instead, the Tribunal will provide the parties with the opportunity to submit further evidence, including expert evidence so it may review the work order and make further orders as it sees appropriate. Effectively, a builder may have another opportunity of responding to a building claim.
Depending on the circumstances, and the evidence presented, this could potentially result in reducing a builder’s overall liability, by reducing the work required to be undertaken pursuant to the original work order if, for example, it could be proven that certain works were no longer necessary or were impossible to complete, or were prevented from being completed. Accordingly, builders acting in compliance with work orders should document carefully the work that they do, and ensure that it retains evidence of attempts to obtain access to the subject property.
