Home Owners successful in Claim in excess of $300,000 denied by the Builder – Cross Examination of Experts critical to Outcome

08/09/2020

Watson & Watson acted on behalf of the Owners of a home which had been purchased from the previous Owner in 2012. 

In this matter the Tribunal ordered:

1. That the Builder pay to the Owners in excess of $300,000; and
2. That the Builder pay the Owners’ costs of and incidental to the proceedings on an ordinary basis as agreed or assessed.

The previous Home Owner had engaged the Builder to renovate the house. The renovation works consisted of a substantial two storey extension at the rear of a suburban cottage in a prestige suburb in Sydney.

Following the purchase of the property in 2012, the purchasers noticed that there were a number of building defects.

In 2018 within the limitation period which applied for that particular case, we commenced proceedings in the New South Wales Civil and Administrative Tribunal (NCAT).  The Owners engaged a Builder Consultant who prepared a report setting out a detailed list of the defects at the property. 

There were structural issues in relation to the property in particular, in relation to the adequacy of the foundations.  A Structural Engineer was engaged in relation to issues concerning the structure in particular, the cause of the cracking in the new section of the home.

Also a Quantity Surveyor was engaged on behalf of the Owners to provide an opinion as to the costs of the rectification works. 

Watson & Watson as is their usual practice prepared a Points of Claim which was attached to the original Application before NCAT. This is not a requirement of the Tribunal.  The Points of Claim sets out the basis of the claim.  The Builder in responding to the Points of Claim made admissions as to the existence of many of the defects claimed by the Owners.

As it has been pointed out on many occasions by Members at NCAT, the Tribunal does not require pleadings and the rules of evidence do not necessarily apply.  This does not mean that assertions can be made without appropriate evidence.  The appropriate evidence to prove assertions must be presented as part of the preparation of the case. 

A Building Consultant was engaged on behalf of the Builder. The Builder in its Defence to the Points of Claim made admissions that many of the items claimed by the Owners as being defective, were agreed to be defective. 

The Building Expert engaged on behalf of the Builder in his report asserted that many of those items which the Builder had admitted were defective, were not defective.

On behalf of the Owners, Watson & Watson prepared the Owners case on the basis of the admissions made by the Builder in its Response to the Points of Claim drafted by Watson & Watson on behalf of the Owners.  The Senior Member did not allow the evidence of the Expert having regard to the admissions of the Builder.  The Builder could have at any reasonable time before the Hearing whilst the evidence was being prepared, made an Application to withdraw the admissions. If NCAT allowed the Builder to withdraw those admissions NCAT would have allowed the evidence of the Builder’s Expert.  However NCAT would have also allowed the Owners an opportunity to respond.  However the Builder did not make such an Application. 

The Tribunal Member accepted our submissions on behalf of the Owners that the evidence should not be accepted.  The Expert on behalf of the Builder disputed most of the items.  In this particular case, the Counsel for the Builder did not cross examine the Experts called by us on behalf of the Owners in relation to many items but sought to in the closing submissions submit that those items were not defective items.

Even though the rules of evidence do not apply natural justice applies and if it is to be submitted that the witnesses’ statements were incorrect in a significant manner, requires those assertions to be put to the witness.  This is to give the witness an opportunity to respond and explain why his or her position is correct and why the proposition put by the other party to the witness is incorrect. 

Further the Builder sought an order under Section 48MA of the Home Building Act that the Builder be allowed to return and undertake any works that were found to be defective and the responsibility of the Builder. 

Section 48MA of the Home Building Act provides:

“Rectification of defective work is preferred outcome in proceedings

A Court or tribunal determining a building claim involving an allegation of defective residential building work or specialist work by a part to the proceedings (the “responsible party”) is to have regard to the principal that rectification of the defective work by the responsible party is the preferred outcome.”

In this particular case, the critical element in the Owners’ success was the cross examination of the Building Consultant briefed on behalf of the Builder. In this case the critical evidence of one of the Experts briefed on behalf of the Builder was not accepted for particular reasons peculiar to this case. 

This is another example of preparation being required to enable the facts to be put and the relevant opinions of the experts to be such that they are accepted by the Tribunal. 

This case is one that reflects the need for you to engage experienced building and construction Lawyers who are skilled in the particular case in which you are involved.

If you have question in relation to whether you have a case or whether you can defend a case or appropriate settlement for a particular case, at Watson & Watson our highly experienced building and construction lawyers can assist you in all aspects of building and construction including Owners Corporation matters.  Please contact Richard Watson Accredited Specialist stream of Building and Construction or his Personal Assistant Shereen Da Gloria to discuss your important matter and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.