Civil Procedure Assignment 1 scenario
Civil Procedure Assignment 1 scenario
On or about 1 July 2022 Patrick Ramondo met with Cynthia Spark and Mikael Askov (the claimants) at their home and provided a quote to remove old windows and doors and replace them with double-glazed energy-efficient windows and doors.
On or about 6 July 2022 Mr Ramondo provided to the claimants written information headed Quotation Information (Quotation Information). This written information was under the letterhead of Perfect Windows. Mr Ramondo gave the claimants a business card that described Mr Ramondo as a director of Perfect Homes. Mr Ramondo is a sole trader using the business name of Perfect Homes. The quoted price was $65,466, exclusive of GST. This written information included the following paragraph:
All Windows and Doors supplied by Perfect Windows conform to all relevant Australian and European Standards. They are Double Glazed units with toughened Glass and internal beading for additional security. All windows are fitted with keyed alike window locks and all doors with minimum 3-point locking system.
There were no other written contractual documents between the parties. The contract between the parties is therefore comprised of the terms set out in the Quotation Information, any pre-contractual oral representations or promises made by either party, or terms implied. The terms implied that the work would comply with the relevant legislative requirements in theBuilding Act 2004(ACT) (Building Act).
Section 42of theBuilding Actprovides that building work must not be carried out in the Australian Capital Territory (ACT) except in accordance with the following requirements:
The materials used in the building work must comply with the standards under the building code for the materials in buildings of the kind built or altered.
The way the materials are used in the building work must comply with their acceptable use under the building code for buildings of the kind being built or altered.
The building work must be carried out in a proper and skilful way.
The building code referred to is the Building Code of Australia, which incorporates the Australian Standards.
TheBuilding (General) Regulation 2008(Building Regulation), at regulation 31, sets out the considerations that must be taken into account when deciding whether building work has been carried out in a proper and skilful way. These include whether the work is in accordance with any relevant rules or guidelines published by Standards Australia;and whether a product or system has been used in a way that a reasonable person would expect is contrary to the intended use of the product or system.
There is a great deal of overlap between the requirements of theBuilding Actand the Building Regulation in the ACT and the Australia Consumer Law (ACL) as it applies in the ACT. The ACL applies to contracts for the provision of goods and services, and relevantly includes consumer guarantees that all goods supplied will correspond to any description, the goods supplied will be fit for the purpose or purposes made known by the consumer at the time of entering into the contract and will be of an acceptable quality, and that all work performed will be to an acceptable standard.
The test to be applied in determining whether goods are of acceptable quality or whether work has been performed to an acceptable standard is based on theBuilding Act.
On 10 August 2022, the claimants paid $32,773 as an initial 50% deposit in accordance with the requirements of the contract.
On or about 2 December 2022 the windows were delivered to the claimants home.
On 2 December 2022, the claimants paid a $6,687 delivery payment as required by the contract.
On 14 December 2022 Mr Ramondo began the installation of the windows at the claimants home. That installation continued on and off over time and was completed on or about 20 February 2023.
The claimants formed the view that the work had not been done in a satisfactory manner, that the work was of inferior quality and that some of the windows had been wrongly installed and noted that the damage done in the removal of the existing windows had not been repaired. The claimants did not receive any certificates of compliance for the windows or doors. The claimants have refused to pay the final invoice amount demanded by Mr Ramondo.
The claimants claim is based on two areas of breach of contract: that the windows do not comply with the Australian Standards, and that the work was not done in a proper and skilful way.
The contract, as formed by the Quotation Information, contained the following express term:
All Windows and Doors supplied by Perfect Windows conform to all relevant Australian ... Standards.
There is a clear express representation by Mr Ramondo that the windows and doors supplied by him to the claimants would conform to all relevant Australian Standards. The windows and doors have not been certified by any relevant authority as compliant with the Australian Standards.
The claimants have statutory declarations from other customers of Mr Ramondo, each of whom state that in conversations with them Mr Ramondo stated that the windows were certified to all relevant Australian Standards. The claimants say that they had the same assurance in pre-contractual conversations with Mr Ramondo.
The claimants have evidence to establish the following:
The windows are certified to British or European Standards.
British or European Standards are different from the Australian Standards.
The investigations by ACT Fair Trading (Access Canberra) have established that the windows were not certified to Australian Standards and that the windows did not comply with the Australian Standards.
The British or European Standards, and testing for compliance with those Standards, is not equivalent to the Australian Standards. The Australian Window Association reviewed the information provided by Mr Ramondo and stated:
The reports attached[for British standards]unfortunately have little relevance to AS2047 performance type testing that is required in Australia. There is no way to claim equivalence to our standards with the information in these reports.
I can find no evidence of pressure testing to Serviceability limits or Ultimate Strength. Without having the BS standards at hand ... there is no way of knowing how long the pressure was held while water testing at each level and at what flow rate the water was running. The air infiltration results are not comparable to our requirement...
The Australian Window Association also notes that compliance with Australian Standard 2047 is a minimum mandatory requirement within the Australian building codes.
The claimants have a report by Ms Panda of Apex Consulting, and she concludes that the windows are not compliant with the relevant Australian Standards as there is no certification labels of this product by the Australian Standards for glazing. Ms Panda examined Australian Standard 2047 and the product information provided by the windows manufacturer and says:
the certification required for Australian [S]standards compliance for windows in terms of the framing and the glazing, its not just the framing and the glazing, but its the rubber seals that are used whether or not they have adequate UV resistance. The reason we have different Building Code requirements to say Europe is we have a harsher sun here and rubber that is not UV resistant tends to perish quicker here in Australia than it does in Europe, and so seals around windows and things this is why then apart from that glazing itself we have certain requirements for the glazing whether its laminated or safety glass and how it will shatter, how it will perform if its impacted, and this is why the Australian standards have their own requirements. So, with a manufacturer that doesnt offer certification in Australia its basically saying, Weve built this product, but its not in compliance with your requirements, and fundamentally it shouldnt be then installed in an Australian building.
Ms Panda states that it is not possible to conduct testing on windowsin situ,and so Mr Shapiros report should be regarded as partial but not complete information as to the suitability of the windows.
The second component of the applicants claim forbreach of contract relates to the quality of the work. The Apex Consulting report concludes that the workmanship was defective and would require considerable work to remedy the defects. The report noted:
All windows displayed a poor application of silicon sealant to the exterior junction of the window and the adjoining brickwork. The work was not masked and not carried out to an acceptable professional standard and has resulted in the smearing of the window frames brickwork, displaying varying widths, along with areas showing gaps or cracking.
Flashing and sub-sill should have been installed with each window to meet the relevant building code requirements, but no flashing was installed.
The internal fit out of skirtings, architraves and reveals is poorly executed with several visible defects that do not meet the standards and tolerances guide for acceptable workmanship and these are therefore considered defective.
The cladding above the windows displays evidence of defective workmanship with visible nail fixings, holes, and gaps in several areas. There is also no visible head flashing, which indicates the installation does not comply with the building code requirements.
Ms Panda also noted that there were defects with the seals in relation to the windows and doors with the amount of silicon used and that those seals would over time fail and that the lack of flashing would mean that there would be water ingress from wind driven rain. Ms Panda stated that the installation of flashing or drainage sills would ordinarily be included in the scope of work expected of a person who is retrofitting windows.
The claimants have photographs taken by them at the time of the installation of the windows. They reveal damaged plasterwork, gaps left between frames and doors, lack of flashing, silicon marks on doors and windows and gaps in the sealant, window frames that are not square or otherwise dont fit properly, and window frames that are split by nails. These photos support the conclusion that the workmanship was of a general inferior quality. The Apex Consulting report concludes:
Because the general nature of the defects both external and internal revolve around the defective installation and non-compliance with Australian standards and relevant building codes, along with the inferior quality of workmanship associated with various parts of the installation, rectification of these defective works would require removal and reinstallation of all the windows and doors.
There are a range of remedies available to remedy the breach of contract: relevantly in this case it is for the removal of the windows and doors, a refund of the money paid by the claimants to Mr Ramondo, and compensation for any consequent loss suffered by the claimants.
The cost for the removal and transport off-site of the defective windows and doors is estimated to be $12,000.00.
Mr Ramondo caused damage to the walls adjacent to the windows and that this will require patching of plaster and painting. The front entry door opening requires invasive inspection to determine whether the load-bearing studs were removed and whether the lintel is properly supported. Based upon the items set out in Table 1 in the Apex Consulting Report the cost of rectification is $8,000.
The claimants seek the cost of the Apex Consulting report. The report was commissioned in June 2024; a copy of the report was provided to Mr Ramondo on 24 July 2024. The claimants commissioned the report to identify the problems with the windows and installation work and what was needed to rectify the problems. The cost of the report was $660.00.
Summary of claimed amounts:
Item $
Refund of 50% deposit 32,773.00
Refund of delivery fee 6,687.00
Cost of removal and transfer off-site for the defective doors and windows installed by Ramondo 12,000.00
Cost of rectification 8,000.00
Cost of Apex Consulting report 660.00
Total =SUM(ABOVE) 60,120.00
There has been some discussion between the parties already by email and Mr Ramondo sent an email to the following effect.
Mr Ramondo says that while the windows and doors may not be certified as compliant with the Australian Standards they nevertheless conform to the requirements of the Australian Standards. In support of this contention, Mr Ramondo provided a report by Mr Craig Shapiro, prepared in relation to windows installed in other premises by Mr Ramondo. Mr Shapiros resume indicates that he has extensive experience in the window industry, including working on Australian Standards committees. He has reached his conclusions based on an on-site inspection. There was no evidence that Mr Shapiro had performed any pressure or safety tests upon the windows or doors in question, although he has laser-measured the thickness of the glass. He concludes that these windows/doors are representative the products to be installed in a number of houses in the local area referring to Mr Ramondo other customers and he concludes based upon his observations that the products will meet the requirements of AS2047for houses in this location. The report is specific to the location of the house in which these particular doors and windows would be installed and there is no information as to whether Mr Shapiros findings could also be applied to the windows and doors installed in the claimants premises.
