Case Overview
Case name: LeLievre v. Dave King Building Services Pty Ltd
Case number: [2020] NSWCATCD 11
Date of decision: 31 January 2020
Tribunal/court name: Civil and Administrative Tribunal
Brief description of the dispute: This case involves a homeowner, Stuart Gregory LeLievre, who sought damages from a building company, Dave King Building Services Pty Ltd, regarding alleged defective building work carried out at his rural property in Louth, New South Wales.
Key Parties
Homeowner details:
- Stuart Gregory LeLievre (Applicant)
- Representation: Peter Payne Law
Builder details:
- Dave King Building Services Pty Ltd (First Respondent)
- Representation: Campbell Paton & Taylor
Other relevant parties:
- David Warwick King (Second Respondent, builder’s director)
Project Details
Type of residential work: Renovations and extensions
Original contract price: Not specified
Final project cost: Not specified
Contract type: Oral contract
Nature of the Dispute
Main issues raised by the homeowner:
- Claims regarding defective work by the builder.
- The builder allegedly abandoned the site in June 2017.
Builder’s response and defences:
The builder contended that the work was performed according to the homeowner’s directives, which were sometimes contrary to their advice.
Specific mention of Section 18F defence:
The builder invoked a defence under Section 18F of the Home Building Act, arguing that the defects arose from instructions given by the homeowner contrary to the builder’s advice, which should have been documented in writing.
Section 18F Defence Details
Type of Section 18F defence raised:
The builder argued that the homeowner’s instructions contradicted the advice they provided regarding the work.
Key elements of the defence:
- Instructions contrary to advice: The builder claimed that verbal advice was given against certain works instructed by the homeowner, which was not documented in writing.
- Reliance on relevant professional: Not applicable in this case.
Relevant Professional’s Role (if applicable)
There was no specific relevant professional involved whose independence was assessed in this dispute.
Key Evidence Presented
Homeowner’s evidence:
- The homeowner provided photographic and documentary evidence regarding the defects and the costs incurred for remedial work.
Builder’s evidence:
- The builder provided affidavits contesting the homeowner’s claims but lacked decisive documentation regarding the verbal advice given.
Expert testimony (if any):
- Mr. Troy, a licensed builder with 15 years’ experience, was called as an expert witness for the homeowner. His assessments detailed the multiple defects he observed in the builder’s work.
Tribunal/Court’s Analysis
Interpretation of Section 18F:
The Tribunal assessed the builder’s defence under Section 18F, emphasizing the necessity of written advice for the defence to be valid. It found that the builder did not provide such written advice, thus undermining their claim.
Assessment of the defence’s validity:
The defence was rejected due to the lack of written documentation proving that the homeowner had been clearly advised against the contentious works.
Consideration of professional’s independence (if relevant):
Mr. Troy’s testimony was deemed credible and reliable, despite his engagement by the homeowner for the case.
Decision and Outcome
Whether the Section 18F defence was accepted or rejected:
The Tribunal rejected the Section 18F defence due to insufficient evidence from the builder.
Reasons for the decision:
The builder failed to substantiate their claims with appropriate documentation, and their expert testimony was not admitted.
Impact on the overall case outcome:
The homeowner was ultimately deemed successful in their claims, leading to the builder being ordered to pay damages.
Financial Implications
Damages awarded:
A total of $86,104.62 was awarded to the homeowner for the defective building work.
How the Section 18F defence affected the damages:
The builder’s failure to support their defence with adequate evidence did not impact the amount awarded to the homeowner, who successfully proved their claims.
Costs awarded:
Costs related to the damages or the proceedings were addressed separately, with each party having the opportunity to file for costs within stipulated timelines.
Lessons for Homeowners
Key takeaways from the case:
- Always get written confirmations of advice from builders for significant alterations or decisions.
- Document all communications with builders to establish a clear record.
- Engage qualified professionals for assessments of building work to support claims in disputes.
Potential pitfalls to avoid:
- Relying solely on verbal communications, especially regarding critical decisions in construction.
Importance of documentation and professional advice:
Maintaining thorough documentation and obtaining advice from credible professionals can greatly bolster a homeowner’s position in disputes.
Broader Implications
Impact on similar cases:
The outcome of this case reinforces the importance of upheld standards in building work and compliance with statutory warranties.
Potential changes to industry practices:
This case highlights the need for builders to maintain more transparent communication and documentation practices with homeowners.
Any suggested legislative or regulatory changes:
There may be calls for stricter penalties for builders who fail to meet statutory warranties and clearer requirements around documentation regarding advice given.
This case serves as a crucial reference point for homeowners in New South Wales navigating home building disputes, particularly under Section 18F of the Home Building Act. It showcases the importance of diligent documentation and reinforces the obligations of builders to comply with standards of care and skill in their work. Homeowners are encouraged to seek professional advice when dealing with building disputes to ensure their rights and interests are protected.
