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Ask Leon Your Own Question
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44137
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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We are currently going through an appeal against the tradesman

Customer Question

We are currently going through an appeal against the tradesman who provided a service to install a flooring in our home. The tradesman did not apply the product in the way that has been specified by the manufacturers. We have already had the tribunal hearing (under the consumer act) which found him to be in breach of contract for some things and we were awarded for nominal damages. We did not have the manufacturers specification at the time (which would help to prove that the floor was of no value and be awarded with a larger sum to be able to remove and replace) and have now since found that he has not followed these specs and therefore provided us with a product and service that is not as described.
We do not have representation for the appeal tomorrow but would like to know if there are any precedents that support the tradesman liability when applying a product that has not followed the manufacturing specs.
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good AfternoonMy name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.The law says that he has to do the work in a proper and workmanlike manner. He provided you with a service to lay the flooring and if it has not been laid properly then he is in breach of the Consumer Laws. What is your appeal about? I have concerns you are asking for this now when the appeal is tomorrow. This should have been set out in the initial application and the appeal should also be dealing with this. You cannot raise new issues.
Customer: replied 1 year ago.
We have new evidence supporting the claim that was not reasonably attainable at time, in that it required destructive testing to determine the thickness of the floor. The original claim was for cracking near the walls and was believed to be a very strong case of defect however the case during tribunal was determined to not fall under the home building jurisdiction and rather than have our case thrown out was changed to consumer law. We were awarded nominal damages of $1000 to repair our floor, however we have now found that the floor cannot be repaired due to the floor not laid at the required specifications.
Customer: replied 1 year ago.
we only recieved the notice of reply from the respondents yesterday. We wanted to ensure we understood all rights and be able to apply as much knowledge as possible. We have a copy of the consumer guarantees.
Customer: replied 1 year ago.
Our original claim was also supported by a expert witness building report.
Expert:  Leon replied 1 year ago.
Good Afternoon, According to the expert what would it cost to repair the floor? This is the issue?Did they make a mistake ion their assessment of the damages that you sought?
Customer: replied 1 year ago.
the expert had identified that remedial work was necessary but if not possible to do so in a visually pleasing way, would require removal and replacement. The cost for removal were provided but no cost from either party was provided for repairs, and as the respondent was not licensed to carry out work in NSW was not required to repair the work himself.
Customer: replied 1 year ago.
According to the manufacturers specs the floor should have been laid and finished at a minimum of 6.35mm however with the destructive testing we now have proof of the floor being 4.6mm max and down to 1mm in sections. This means that we cannot have the floor repaired to the manufacturers specs as the existing floor is under the required thickness.
Customer: replied 1 year ago.
Cost to remove and replace floor with a similar product is $19,500. The floor was $12,500 installed.
Expert:  Leon replied 1 year ago.
It appears that you need to file a new application not an appeal.You cannot introduce new evidence now. It is a matter that you have to start form scratch again.Did you lodge the appeal? Is the appeal based on new information coming to light or appealing on the basis that the law was applied incorrectly by NCAT?
Customer: replied 1 year ago.
Appeal has been lodged and has been set for tomorrow. We have requested leave to appeal based on decision was not fair and equitable, and evidence is now available that was not reasonably available at time of hearing.
The thickness of the flooring has been in question from the beginning, however without the destructive testing was not proven.
Customer: replied 1 year ago.
Would the NCAT have accepted and set a date if it was not able to be heard?
Expert:  Leon replied 1 year ago.
Good Afternoon, I assume this is the first return date for the Appeal?If NCAT is dealing with it then it is a review. In your application did you provided the information that was not available at the time of the hearing?
Customer: replied 1 year ago.
Yes, we have provided the manufacturing specifications as well as the destructive testing.We have a notice of hearing, we are listed before the Appeal Panel of Tribunal
Expert:  Leon replied 1 year ago.
Good Afternoon, You have to argue that they have to allow a new hearing based on the information that you have now that was not available at the time.I suspect if they find in your favourite they will set the matter down for a fresh hearing and you will have to run it again.Did you file a Notice of Appeal and did it set out the reasons why you wish an appeal? If so they will hear from both of you to deduce if the appeal should be allowed. They will not hear the appeal. The appeal is usually an internal matter based not he information that was provided at the hearing.
Customer: replied 1 year ago.
Ok I'm confused. So we filed the notice of appeal, we recieved the reply to appeal from the respondents, we were sent a letter for the appeal panel, notice of hearing. In the notice of appeal we answered all the questions that applied and submitted the information and evidence we had, including the orders from the hearing which we are appealing.
So what will we be doing tomorrow and will there be a resolution tomorrow or will they go away and decide and then notify us?
Expert:  Leon replied 1 year ago.
Can you send me a copy of the notice of***@******.***
Customer: replied 1 year ago.
Our application or the letter from ncat?
Expert:  Leon replied 1 year ago.
The letter from NCAT
Customer: replied 1 year ago.
Here is the letter
Customer: replied 1 year ago.
Leon, I really appreciate your help. I have spoken to NCAT and know what is happening tomorrow. Back to the original question is there a precedent we can cite on not following specifications to justify unworkmanlike manner?
Expert:  Leon replied 1 year ago.
Section 18B of the Home Building Act is the sectionhttp://www5.austlii.edu.au/au/legis/nsw/consol_act/hba1989128/s18b.htmlClick on the [Noteup link and it will list cases that are under that section. the subsection (e) is what you are relying on that says(e) a warranty that, if the work consists of the construction of a dwelling, the making of alterations or additions to a dwelling or the repairing, renovation, decoration or protective treatment of a dwelling, the work will result, to the extent of the work conducted, in a dwelling that is reasonably fit for occupation as a dwelling,I hope this makes sense and is of assistance.As you can see there are alot of cases on this section. As you read the cases they may be the same as yours but it is what the court says about poor workmanship that you focus on. Good luck and if there is nothing further thank you for using my services. If I have missed anything, or you have any further questions please let me know If there is anything else in the future please do not hesitate to ask. Please do not forget to leave positive feedback. RegardsLeon