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Dwyer v Kelly (Home Building) [2007] NSWCTTT 442 (1 August
2007)
CONSUMER, TRADER AND TENANCY TRIBUNAL
Home Building Division
APPLICATION NO: HB 07/19956 (formerly numbered 07/20688)
APPLICANT: Pauline Therese Dwyer
RESPONDENT: Geoffrey Kelly
APPEARANCES: Applicant in person
Respondent in person
HEARING: 22 June 2007
APPLICATION: The applicant sought an order that the respondent pay
her a sum between $35,000.00 and $45,000.00.
ORDER
The respondent is to fix, repair and make good, on or before 30 October
2007, in a proper and workmanlike manner, the following items:
1. Complete the internal painting, including eliminating the numerous
defects found by Inspector Meagher.
2. The wall and floor tiling in the ensuite so as to eliminate the sharp
and chipped tiling which creates a hazard to bare feet, as well as
those tiles behind the tap in the laundry which have fallen out.
3. Complete the external painting to eliminate the defects found by
Inspector Meagher, including the paintwork to the verandah beams
and clean all spills and marks caused during painting.
4. Remove all waste timber and debris still left on site, as well as
making good the following damage caused while carrying out
previous rectification work including:
1. Sanding mark on right hand side gutter,
2. Small amount of paint splatter on window of dining room,
3. Small paint marks on carpet in bedrooms 3 and 4, and
4. Small paint mark on render outside window of bedroom 2.

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REASONS FOR DECISION
1. The applicant, Pauline Therese Dwyer, a homeowner, and the respondent,
Geoffrey Kelly, a builder, signed a home building contract on 14 December
2004. The contract stipulated that the builder was to erect a single storey
kit house, manufactured by New England Country Homes Pty Limited, at
“Kurrawalla”, “…”, Molong for the sum of $364,844.00.
2. Work commenced shortly thereafter. While the dwelling was being
constructed, several changes were made which eventually increased both
the time for completion and the cost of the work. During December 2005,
the respondent moved into the dwelling. There is some dispute about
whether there was any date for “actual completion” and, if so, what that
date was.
3. At some stage, presumably between December 2005 and July 2006, the
local council issued an Occupation Certificate for the dwelling. In a letter
dated 28 July 2006, the General Manager of the Cabonne Council, GLP
Fleming, noted that the Council had acted in good faith in issuing that
Certificate but that an inspection on 5 June 2006 by the Council’s Manager
Building and Environment revealed there were some deficiencies within
the building.
4. In a letter dated 31 August 2006, Mr Stephen Sadlier, the Managing
Director of New England Country Homes Pty Limited, set out that he
visited the dwelling early in June 2006 and that it was his opinion that the
dwelling was soundly constructed with no visible evidence of structural
weakness. He claimed all the external timbers were properly installed and
securely fastened in accordance with good building practice. However, he
did find that some of the sub-trades had not exercised care in their
workmanship with the result that the overall finish of the dwelling was
disappointing.
5. Shortly after occupying the premises the applicant engaged A. Rendell
and Associates, construction consultants, to inspect the dwelling and
report on any defects considered to be the responsibility of the builder to
make good. Alec J. Rendell wrote a 22 page report on 10 April 2006, and
attached thereto various annexures. Section 7 of his report, being pages
10 – 22, itemises the defects found by Mr. Rendell. These were brought to
Mr Kelly’s attention so that he could make good these flaws.
6. Apparently some of these imperfections were deal with by Mr Kelly but his
failure throughout 2006 to address all the problems set out in the Rendell
report led to other parties becoming involved.

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7. One of those was Building Inspector Thomas Meagher of the NSW Office
of Fair Trading who wrote to the applicant on 10 February 2006
concerning her complaint about the work performed by the respondent. A
Complaint Inspection Report, dated 4 September 2006, was issued by Mr
Meagher. Attached to it is a list of 26 items considered by the Inspector to
be items of defective work. The respondent attended the premises and
performed some repair work. There was a site meeting between the
applicant and Inspector Meagher on 28 November 2006, and on 5
December 2006 he issued a Rectification Order that 14 items of defective
work be rectified.
8. Apparently the builder attended the premises and further repairs were
carried out. Another site inspection was held on 11 January 2007 and in a
document headed “Building Inspection Report – Addendum”, dated 9
February 2007, the Inspector listed 4 of the 14 items of the Rectification
Order which had not been completed. The Inspector also noted that the
builder, in carrying out the rectification work, had caused damage in 4
specific and identified instances.
9. The applicant has had the advantage of an inspection by a building
inspector of the Office of Fair Trading. Mr Meagher’s Building Inspection
Report – Addendum of 9 February 2007 sets out four items of work listed
in his Rectification Order that have not been completed and that in
carrying out the rectification work which he had ordered to be done, the
respondent had caused 4 instances of damage. Section “A” of the
applicant’s written submission set out the financial claim against the
respondent amounting to a claim between $35,793.87 and $45,788.87.
The range of the claim depends on which quotation from various
contractors is used to make the calculation.
10.The Building Inspector from the Office of Fair Trading has set out the 4
items of work still to be completed as well as four instances of damage
which have to be made good. These are:
1. Internal painting not completed in a good and workmanlike manner.
2. Wall and floor tiling not completed in a good and workmanlike manner.
3. External painting not completed in a good and workmanlike manner.
4. Waste timber left on site
while the damage caused in carrying out rectification work is listed as:
1, Sanding mark on right hand side gutter
2. Small amount of paint splatter on window of dining room
3. Small paint marks on carpet in bedrooms 3 and 4
4. Small paint mark on render outside window of bedroom 2.
11.The builder should be given the opportunity to make good these
outstanding items. Otherwise, he is on notice that should he fail to
complete the work ordered by the Tribunal, then the applicant can seek to
renew her application and convert the Tribunal’s orders for rectification to

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a money order so that she may have the defects repaired by the
tradesmen of her choice at the builder’s cost.
12.Therefore, the orders set out on the first page of these reasons are made.
Bruce Howe
Member
Consumer Trader & Tenancy Tribunal
1 August 2007