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McKenzie v T & D Dean Building (Home Building) [2003]
NSWCTTT 386 (6 February 2003)
CONSUMER, TRADER & TENANCY TRIBUNAL
Home Building Division
APPLICATION NO: HB 00/82192
APPLICANTS: Mr McKenzie and Ms McKenzie
RESPONDENT: Mr Dean T/as T & D Dean Building
APPEARANCES: Mr. Carver of King Cain Solicitors
For the Applicants
APPEARANCES: Mr. Snelgrove of Snelgroves Construction &
Commercial Lawyers for the Respondent.
HEARING: 24 September, 2001 at Bathurst
19 June, 2002 on site at Lithgow
ORDERS
1. The parties agreed to damages of $13,867 in relation to certain issues in
dispute and I have herein assessed damages of $41,549.00 in relation to
other issues in dispute – a total of $55,416.00. Accordingly, I order Mr.
Dean T/as T & D Dean Building to pay $55,416.00 to Mr McKenzie and Ms
McKenzie on or before 20 March, 2003-02-06
2. The issue of costs is reserved pending any further submissions the parties
may wish to make in relation to costs as detailed in this decision – refer to
page 6. The file is to be referred back to me after 7 March, 2003 for an
order as to costs.
REASONS FOR DECISION
There has been some considerable delay in the resolution of this dispute.
Some of that delay was apparently caused by this Tribunal in relation to the
issue of transcripts. However, the majority of the delay arose from
circumstances beyond the control of this Tribunal. May I sincerely apologise to
the parties for any inconvenience that they may have experienced during the
resolution of this dispute.

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The parties entered a written “Plain English Building Agreement” on 21
August, 1998 for the construction of a house at Lithgow and in due course this
dwelling became the applicant’s place of residence. A combined D.A.
Determination and Construction Certificate was issued by Lithgow City
Council on 21 September, 1998.
I was told in evidence that construction of this dwelling commenced in or
about November, 1998 and continued through to late August, 1999. Practical
completion was achieved on 3 September, 1999 and the applicants took
possession the following day. I was further told that the dwelling contained
some special fixtures and fittings to assist the applicants in the care of one of
their children who is severely disabled.
Each party engaged the services of an expert Building Consultant. Might I briefly
record that this Tribunal or its predecessor, the Building Disputes Tribunal, has been
very competently assisted by both of these Experts in the resolution of various
building disputes over a period of years. The applicants engaged the services of Mr.
Rendell of A. Rendell & Associates. The respondent engaged the services of Mr.
Holley of W. J. Holley Constructions Pty Limited.
The applicants initially claimed damages of $30,000.00. The applicant’s claim
was increased to $57,400.00 following Mr. Rendell’s first report which was
dated 16 March, 2001. The applicant’s claim was subsequently increased to
$84,479.49 following Mr. Rendell’s second report which was dated 19
September, 2001. The applicants also claimed general damages. Mr. Holley
prepared two reports dated 22 November, 1999 and 7 September, 2001.
At the first hearing the two experts spent most of that day in conclave
endeavouring to reach agreement on the various issues in dispute. The
expert’s conclave did not reach finality on that date and it was agreed to
continue those meetings during the adjournment. Ultimately a joint schedule
was produced in which most issues in dispute were resolved by agreement.
Unfortunately, some issues were not so resolved and the unresolved issues
are fairly major issues.
I accept the agreements as set out in the joint schedule and I thank the
experts for their efforts to resolve these disputes. I shall proceed in due
course to determine those issues upon which no agreement was reached. I
shall adopt the expert’s numbering system so that the parties will know which
issue I am referring to without the need for me to describe that issue in detail
I agree with the respondent’s final submission where it was stated “the
applicant’s case is essentially two claims against the respondent. Firstly, the
defects claim and, secondly a distinct separate claim which deals with alleged
damage done during the brick cleaning process of the dwelling (acid
damage)”. I will deal with the claim in regard to defects first and then the claim
in relation to the acid cleaning.
I shall deal with items 8.5.11 (a claim for $1500) and 8.6.12 (a claim for
$3500) together.

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On both issues the experts disagree about the disputed items but both agree
on the quantum claimed if I find for the applicants. On both issues I do find for
the applicants as I formed the opinion at the on site inspection that the work
was defective and was not performed in a workmanlike manner. The various
defects as listed by Mr. Rendell were readily discernible at this inspection.
Allow $5000.00
Item 8.5.15.
Again the experts disagreed on the dispute itself but they agreed on a
quantum of $11839.00 should I find for the applicants. I observed a major
crack in the wall and I am satisfied that the core filling is only mortar. I would
have had difficulty in resolving this issue were it not for the report of 8
February, 2002 from Lynar Consulting Structural Engineers. Mr. Lynar is
positive that there is no steel reinforcement in the wall and that both the
preparation and pouring of the concrete footings were defective. In view of Mr.
Lynar’s report I find for the applicants. Allow $11839.00
Item 8.6.2.
This item was withdrawn and then put back in. I inspected it and agreed that
the work was not in accord with the plans. I indicated that I could not see me
ordering its removal and the applicants then indicated that they would not
seek any compensation for this item. Allow Nil.
Item 8.6.16.
This was another item that was withdrawn and later put back in. It would
probably have best been left as withdrawn. I agree with Mr. Holley’s
submissions and I accept that the work performed is not necessarily in conflict
with the drawings. Allow Nil.
Item 8.7.3
At the inspection I formed the opinion that this was an existing but somewhat
minor defect. The amount claimed is $300 which is not disputed by Mr. Holley
should I find for the applicants. Allow $300.00
Item 8.7.4
Again a minor dispute but it is one that the experts could not resolve. Mr.
Holley argued that the downpipe provision was adequate and functional. It
may well be functional but in my opinion it does not comply with the Australian
Standards in relation to the acceptable spacing of downpipes. I find for the
applicants. Allow $100.00
Item 8.7.7

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Again a minor dispute but the experts do agree on quantum if I find for the
applicants. This item was also withdrawn and then later put back in again. The
off sets appear to be exaggerated and the angles are a little greater than what
one would normally expect. However, I can not say that the off sets are
defective or that they should be replaced. Allow Nil.
Item 8.14.3
The respondent submitted a copy of a letter from Lithgow City Council dated
31 July 2001 which accepted that the relevant requirements of AS 3660.1
would be satisfied by the use of “H2” timber and the display of a durable sign.
The applicant’s submitted that provided the necessary durable sign was
supplied together with evidence by way of invoice etc; that all timbers had
been treated to “H2” then no costs would be claimed under this item. The
respondent undertook to supply all that information. However, as at the date
of the applicant’s final written submission the respondent had failed to supply
either the sign or the evidence of treatment to the applicants. Accordingly, I
find for the applicants. Allow $5500.00
Item 8.15.5
The applicant’s evidence was that when their Engineer was in the roof area he
sighted down the cavity and expressed the opinion that there did not appear
to be sufficient ties in the cavity. The applicant’s evidence got no higher than
this on this issue. Further investigation of this alleged defect would require the
stripping of tiles for a visual examination or the use of a borescope. Neither of
these procedures had been undertaken. The onus of proving an issue
remains on the applicants and in this instance they have failed to discharge
that onus. This issue is dismissed. Allow Nil.
This then completes the list of ten items which had a disputed value of
$24,921.00. In relation to those claims I have allowed the claimants a total of
$22,739.00. Before turning to the acid cleaning problem there was one final
major unresolved issue which was recorded separately by the experts. That
was item 8.12.1 and I shall now deal with that issue.
Item 8.12.1
This issue was apparently the subject of considerable discussion during the
expert’s conclave but extremely little was put to me in the way of oral
evidence. Each of the experts submitted that their contentions were the
correct ones and there is nothing in the way of any other evidence to support
either claim.
The applicants submitted that eaves of 600mm were specified in the contract
but eaves of only 450mm were installed. The applicants submitted that eaves
of 600mm could be physically installed and they also submitted their expert’s
calculations to support this contention. The applicants further submitted that
the eaves would not encroach upon the neighbour’s property. The respondent

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submitted the exact opposite of the applicant’s submissions and also
submitted his expert’s calculations to support his submissions.
The only way I can resolve this issue is to hold that the contract specified
eaves of 600mm but eaves of only 450mm were installed. A variation of the
contract in writing and signed by both parties as required by the Home
Building Act, 1989 was apparently never requested or completed. Therefore,
the respondent failed to honour his contractual and legal obligations.
Therefore the respondent is liable to the claimants for appropriate damages.
The “joint schedule” which was submitted to me at the final hearing on behalf
of both parties specified that if I found in favour of the applicant’s the two
experts would then jointly prepare a scope of work and costing. A “P.C.”
allowance of $9380.00 was agreed by the experts.
I have some reservations about the eaves being actually rectified, as there is
little or only minor benefit to be derived by the applicants. Moreover, there
would be the further and substantial cost in following the course of action
proposed by the experts. Added to those costs would be the actual cost of
rectification which at a rough guess could as much as $25000.00. The costs
involved simply do not equate to any possible benefit to be gained.
In my opinion the applicants are entitled to some substantial damages but in
all of the circumstances it would be unreasonable to award the cost of
rectification. I believe that a fair and equitable sum would be $5000.00 and I
allow that amount to the applicants. Allow $5,000.00
I shall now deal with damage caused by the acid cleaning of the internal
bricks after the applicants have moved into the dwelling. There is no dispute
that the applicants complained to the respondent about the state of the
internal brickwork after they had occupied the premises. There is also no
dispute that the respondent and another person returned to the premises and
acid cleaned the internal brickwork whilst the applicants were in occupation of
the premises.
From the literature submitted to me it is clear that such cleaning of internal
brickwork with a family in occupation at that time may be safely carried out if
certain procedures are followed. The damage occasioned to various fixtures,
fittings and personal items has been extensively recorded in both of the
expert’s reports. At the first hearing the respondent attempted to suggest
other causes of the problem and to minimise the damage involved. From my
inspection of the various damaged articles and fixtures I am satisfied that the
respondent caused the damage and that damage was severe.
The final claim before me for this damage amounted to $20,716.63. Some of
these items were reasonably new but others were no so new. To be fair to
both parties and to allow for depreciation I reduce this claim by one third or
$6906.00 Allow $13,810.00

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This then leaves the claim for general damages and the question of costs. I do
not think it is appropriate for this Tribunal to award general damages either in
this particular case or in general. I have awarded what I believe are
appropriate and fair damages in all the circumstances.
At this point of time I opened the sealed envelopes which were submitted by
the Solicitors for each party. I found the contents of those documents to be of
little assistance to me in assessing costs. In my opinion the respondent should
pay the applicants costs including the reasonable costs of their Solicitor and
their Expert witness.
I do not have the detail of those costs. I wish to bring this matter to an end so I
will allow the applicants until the close of business on 21 February, 2003 to
lodge that detail with this Tribunal and at the same time serve a copy on the
respondent and his Solicitor. If the respondent or his Solicitor wish to make
any further submission as to costs they must lodge that submission with this
Tribunal by the close of business on 7 March, 2003. I will not extend these
time limits and I will proceed to finalise this matter shortly after 7 March 2003
by making an order as to costs.
D A Turley
Member
Consumer, Trader & Tenancy Tribunal
6 February 2003