Bathroom renovation

Home building case study

Home building disputes can get very emotional with large amounts of money involved.
Conciliation can help people involved in a home building dispute avoid a potentially
long and costly hearing.

A couple were renovating their bathroom and to save on costs they bought their own tiles. A
tiler was paid $4,000 to lay the tiles, but the finished job was a mess as the tiles were laid
crooked. When they confronted the tiler about the quality of work, he offered to come back to
fix up any crooked tiles. The owners refused as they were worried the tiler would make it
worse. Instead they lodged a claim at the CTTT seeking $9,000 compensation for the cost of
the tiles and labour.

On the day of the hearing, both parties appeared and were asked to attempt conciliation. The
conciliation started out badly as the tiler was angry he was not allowed to come back and fix
the job. He explained that the tiles they had purchased were extremely difficult to lay and that
he did not have enough money to pay them $9,000 compensation.

Everyone agreed that the tiling job had to be re-done and that it would not be a good idea for
the same tiler to return to the job. They could not agree, however, about when and how the
money would be paid. With the help of some suggestions by the Tribunal conciliator, the tiler
agreed to pay $6,500 compensation to the owners by instalments. Their agreement was then
made into a binding Tribunal order.

This dispute resolved because the conciliation process allowed the parties to reach a mutually
acceptable agreement so that the tiler could afford to pay the owners the compensation. Had
the matter gone to hearing, a money order could have sent the tiler bankrupt resulting in the
owners receiving no payment.

http://www.cttt.nsw.gov.au/Divisions/Home_building/Case_studies/Bathroom_renovation.html
Kitchen renovation
Home building case study
The majority of home building applications relate to matters where the amount in
dispute is $30,000 or less and relate to home renovations. Many of these disputes can be
resolved through the CTTT's conciliation process and the negotiated agreement is
turned into a binding order by the CTTT.

A young couple renovated their kitchen, replacing all the cupboards and upgrading the bench
tops to marble. They were very pleased with the work and paid the contractor the full amount
on completion. Soon afterwards they noticed a crack in the marble bench top.

The couple approached the contractor who inspected the bench top. He told them that the
crack must have been caused by one of the home owners dropping something heavy on the
bench causing it to crack. The contractor then refused to take any further action.

The couple took their complaint to their local Fair Trading Centre, and with the aid of an
inspector from NSW Fair Trading's Home Building Service, they attempted to resolve the
dispute but without success. They were then advised to lodge a claim with the CTTT seeking
an order that the contractor repair the bench top.

Both parties attended the CTTT and, together with a Tribunal Conciliator they discussed the
problems with the bench top. The home owners provided photographs and a report from the
bench top supplier which showed that the crack could not have been caused by a falling
object, but would have occurred during the installation process. The contractor then admitted
that there had been problems during the installation of the cupboards which could have
contributed to the crack in the marble. Both parties came to an agreement that the contractor
would replace the bench top at no cost. The couple agreed to make arrangements for the
contractor to have access to the house to undertake the rectification work. The conciliated
agreement was then turned into a binding order by the CTTT.

http://www.cttt.nsw.gov.au/Divisions/Home_building/Case_studies/Kitchen_renovation.
html
Unlicensed builder
Home building case study
Some consumers unknowingly do business with unlicensed builders. Consumers can
bring a dispute with an unlicensed builder to the CTTT, but the CTTT can only make
orders for the payment of money to enable the work to be rectified by a licensed
builder.

Water was leaking from the upstairs balcony of a home into the dining room below. The
home owners engaged a local builder to repair the cracks in the ceiling caused by the water
damage and to repair the balcony to prevent further water leaks. The builder did the work, but
the home owners found that the ceiling still leaked and new cracks had appeared.

In accordance with the Home Building Act 1989 all home building disputes must first be
referred to Fair Trading to attempt to resolve the dispute. In the course of this process it was
found that the owners had used an unlicensed builder.

The owners then lodged an application to the CTTT seeking orders for the payment of $6000
based on quotations received to rectify the work received from two other builders. When the
matter came before the CTTT, the parties agreed during conciliation that the unlicensed
builder would rectify the work.

However the CTTT cannot make orders for an unlicensed builder to carry out work. Orders
were made instead for the unlicensed builder to pay the home owners the $6000 sought so
they could engage a licensed builder to do the work.

http://www.cttt.nsw.gov.au/Divisions/Home_building/Case_studies/Unlicensed_builder.html
Using a conclave of experts
Home building case study
In cases where the amount in dispute is above $30,000 and where both parties have
expert witnesses, the CTTT may order that the experts meet in a conclave to clarify the
issues in dispute with a view to resolving the dispute, or narrowing the issues in dispute.

An application was made to the CTTT concerning defective work in a new house, estimated
to cost over $100,000 to rectify. Both parties submitted evidence regarding the extent of the
defects and the projected costs to rectify the defective work. Although the defects were well
documented, there was considerable difference of opinion regarding liability and the cause of
each defect. Both parties had engaged building experts to provide a written report.

At the Directions Hearing, the Tribunal Member ordered that a conclave of the experts be
held. The conclave was conducted on-site and was facilitated by a Tribunal Member with
expertise in home building matters. Together the experts reviewed the documentation and
examined each defect. The experts agreed on how to deal with many of the issues in dispute
including the quality and aesthetics of the floor tiling, damage to the bathroom fixtures and
uneven front stairs. However the cause of the wall cracking could not be agreed upon and the
issue remained unresolved. The experts then prepared a joint Scott Schedule and signed the
Memorandum of Outcome.

At the next hearing before the CTTT, the joint Scott Schedule and Memorandum was used to
make binding orders on the issues that were agreed upon during the conclave. This then
allowed the Tribunal Member to focus on the remaining issues in dispute.

http://www.cttt.nsw.gov.au/Divisions/Home_building/Case_studies/Conclave_of_experts.html

UNIFORM CIVIL PROCEDURE RULES 2005 - REG 15.2

Use of “Scott Schedule” in building, technical and other cases

15.2 Use of “Scott Schedule” in building, technical and other cases

(cf DCR Part 9, rule 19A; LCR Part 8, rule 7)

(1) In proceedings involving a building, technical or other matter in which several items of a claim are
in dispute as to liability or amount, or both, the party making the claim may, and if the court so
orders must, prepare and file a “Scott Schedule” in the approved form.

(2) A party on whom a Scott Schedule is served must complete and file the Schedule.

http://www.austlii.edu.au/au/legis/nsw/consol_reg/ucpr2005305/s15.2.html
Scott Schedule
A Scott schedule is a special form of pleading that was originally devised by George
Alexander Scott, an Official Referee, for use in building disputes. Over the years this has
gradually been adapted, in various forms, to other types of litigation.

The idea of a Scott schedule is that it is a travelling document, which passes between the
parties to enable one side to set out their arguments and then the other side to respond. It is
important that a proper response is included, rather than just "denied" or "not admitted". If the
case then goes to Court the final column(s) in the schedule is used by the judge to set out the
decision reached on each item.

http://www.rcsolicitors.co.uk/construction-matters/scott-schedules.htm

Property name:

Parties - Client: Builder:

(a) Basic Version

Seria
Item Claimant Defendant Judge’s columns
l No.
Valuation/comment Pric
Valuation Price Valuation Price
s e
[This should
[In this
set out the item
column you
being claimed
set out how [This is
– ideally with [In the
you value where the [and here
reference to previous
the work – client the
the date of the example
1. for example, should amount
instruction and this
3 hours at insert their they
then the issue - would be
£50 per response ... propose]
e.g. Letter of £170]
hour; ]
xx/xx/xx – re-
materials
plastering of
£20]
rear wall]
Electrical repairs
Home building case study
Under the Home Building Act 1989, the CTTT can determine building claims and has
power to make orders requiring one party to pay a sum of money to another party.

A woman recently purchased a home, and engaged an electrician to repair some electrical
wiring as recommended in the pre-purchase inspection report. After the repairs were carried
out, the home owner disputed the amount invoiced by the electrician. She thought she had
been overcharged and refused to pay the invoice until the dispute was resolved.

After obtaining two quotes from other electricians, the home owner lodged an application to
the CTTT for orders that she should only have to pay an amount based on those quotes.
During the hearing, the home owner gave evidence that the electrician told her the work
would only take one day and he was engaged on a 'do and charge' basis. Instead the work
took two days to complete, and she believed this was because the electrician did not carry out
the work diligently and often stopped work to talk on his mobile phone.

The electrician claimed that he told the home owner the work would take 'one to two days'
but that he would try to complete it in one day. However, the electrical wiring in the house
was in poor condition and the work required was extensive. He also claimed that his charges
for work and materials were in accordance with industry rates.

After considering the evidence of the home owner and electrician, the Tribunal Member
found he was satisfied that the electrician failed to be diligent as claimed by the home owner,
and that the electrician's evidence regarding his calculations of the cost of materials were
accepted. In relation to the other lower quotes obtained by the home owner, the Tribunal
Member stated that those contractors may not have appreciated the condition of the wiring
and the amount of work required. Final orders were made for the home owner to pay the
electrician the full amount of the invoice.

http://www.cttt.nsw.gov.au/Divisions/Home_building/Case_studies/Electrical_repairs.html
Task:
1. Break into groups

2. Elect someone to speak when you’re finished, a spokesperson, or otherwise

decide how you’re going to convey the information to the rest of the class.
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3. What specific reference is used in this case to an Act or CTTT’s authority to rule
(simplify so as you can explain at the end)
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4. Read the case study and then break it into its main point for explanation below
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5. Do you agree or disagree with the outcome, if you had a choice, what would you
change? (again to be explained at the end)
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6. If you put yourselves in the contractor’s shoes, what could you have done to
prevent this mater getting to court? (brief points to be explained at the end)
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