Following a destructive cyclone, Adams home suffered significant damage to its roof.
The local emergency services were quickly on the scene and, by lashing a tarpaulin across the affected areas, managed to minimize the damage to the interior of the home. While Adam was very grateful that his homes interior was, therefore, not badly affected by water and other damage, it did mean that his roof was not given a high priority for urgent repair in the immediate aftermath of the cyclone.
Accordingly, he was a little surprised when he was contacted a couple of days later by Bert, who introduced himself as a professional builder who, he said, had come up from Sydney with two employees to see if he could help out.
Bert assured Adam that he was fully licensed in New South Wales and that he had applied for mutual recognition registration with the Queensland Building and Construction Commission so that he and his employees could carry out building work in Queensland. He also assured Adam that he was fully conversant with Queensland building standards, that all of his work would meet or exceed those standards and that he carried full builders insurance in case anything went wrong.
Adam asked to see Berts licence and Bert showed him what appeared to be a valid Contractors Licence issued by NSW Fair Trading (the licensing authority in New South Wales). Adam took a note of the details on the licence and, now satisfied (and very anxious to have his roof repaired as soon as possible), agreed to engage Bert to do the work.
Their agreement (which was hand-written because power had still not been restored to Adams town) recorded that Bert would carry out the work required to fully restore Adams roof (including replacement of several roof trusses that had been irretrievably damaged in the cyclone), that he would commence the work immediately, complete it within 7 days, and that the all-up price would be $15,000, half payable immediately and the other half on completion. It provided no other details.
The following morning Bert and his employees commenced work and, working swiftly, had a new roof installed within 5 days, 2 days early. The job seemed to be very professional and Adam was happy to get his home back earlier than he had expected. He paid Bert the balance of the agreed price.
Shortly after his family moved back into the home Adams children started having nightmares about the home blowing away in another cyclone. Adam and his wife decided to sell up and move away.
As their home had not been extensively damaged (and as it appeared to have been fully repaired) they were able to find a buyer quickly from other residents whose homes were still uninhabitable. The buyer did however require a full building inspection before she would finalise the sale.
The Building Inspectors report she obtained (and which she showed Adam) noted that the house itself was structurally sound and complied fully with Queenslands building standards but that the repaired roof was shoddy, did not comply with those standards and, in the Building Inspectors opinion, could not have been done by any builder who had even a passing familiarity with the standards, or any competence as a registered builder.
In particular, while it was not readily discernable on an external examination, the roof was not tied down to the rest of the dwelling by cyclone bolts or in any other acceptable fashion. The defects were such that the roof, in its then state, could not be brought to an acceptable standard. Instead, it would have to be demolished and the work would have to be completely redone. The buyer refused to proceed until that had occurred.
Adam has now discovered that Bert was not licensed in New South Wales, that he had not applied for a Queensland builders licence (and still does not have one) and that he also does not have builders insurance. The only good news is that the details that Adam took down from Berts apparent licence did contain his correct address and contact details so he has been able to locate him. Bert says that he did everything he was required to do and denies all liability.
a. Does Adam have an action against Bert for breach of contract and/or misrepresentation? Explain why/why not. If he does have an action for either breach of contract or misrepresentation what remedies will he be able to seek?
(10 marks)
b. In addition, does Adam have any action against Bert under the Australian Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) either generally or under the consumer guarantee provisions. If so, what will he need to prove to succeed in any such action – and what remedies might be available to him?
(10 marks)
c. Does Adam have an action against Bert for negligence? What would he have to prove in order to succeed, is that likely on the facts and, if so, what remedies might he seek? If the defects were the result of poor workmanship by Berts employees (rather than by Bert himself), could Bert still be liable? Why/why not?
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