Woolley v Johns & Rogers Pty Limited  NSWCATCD 16
An owner brought a claim against a builder alleging multiple breaches of the statutory warranties under s18B of the Home Building Act 1989 (Act). The builder attempted to rely on the defence available under s18F of the Act as he claimed that the deficiencies only arose as a result of his compliance with the owner's instructions.
The works which the claim related to concerned a contract to replace a wooden deck. The owner's claim for breach of statutory warranty was in relation to the builder's alleged failure to:
- properly advise on and construct a structurally sound façade wall, which subsequently cracked
- properly advise on and select a coating that contained a suitable light reflective valve
- properly construct and waterproof the deck
- properly conceal internal plywood floors, install an appropriate external area underneath the deck or properly seal the wall coating to prevent and avoid efflorescence.
It was alleged that the cause of the cracking in the façade wall was due firstly to the lack of control joints contrary to the manufacturer's recommendations and secondly that the paint colour used had a low light reflective value, also contrary to the manufacturer's recommendations. The builder made submissions that he had simply followed the owner's written instructions to construct the wall in a specific way. The builder sought to rely on s18F of the Act, which allows a defence where the deficiencies arise from instructions given by the person for whom the work was done contrary to the advice in writing of the defendant or person who did the work. The evidence presented to the Tribunal indicated that the builder orally disagreed with the choices of the homeowner, but did not do so in writing.
The Tribunal followed the decision in The Craftsmen Restoration and Renovations v Thomas Boland, Thomas Boland v The Craftsmen Restoration and Renovations  NSWSC 660 where it was held that a defence under s18F is only available where advice from a builder is set out in writing. As it was clear that the builder did not give any written warning about any potential defects in the wall, he was not able to rely on s18F. Consequently the Tribunal ordered that he pay the owner $17,496.05.
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