10 April 2024

Builder ordered to pay client $25,000 over defect-riddled home but she'll still be out of pocket

| Ian Bushnell
woman standing outside home

Moncrieff homeowner Mandi Steven says she will never build again. Photo: Ian Bushnell.

A Canberra builder has been ordered to pay a client $25,000 towards the cost of rectifying a range of structural defects in her home more than six years after she took possession.

Moncrieff woman Mandi Steven took Rojas Constructions Pty Ltd to the ACT Civil and Administrative Tribunal in August last year, just before the six-year statutory warranty expired, alleging the builder had not dealt with 60 defects identified by a building inspector.

In a 13 March decision, Member Parastou Hatami found for Ms Steven, awarding her the maximum amount allowable and acknowledging that this would not cover all the repairs, given a 2018 quote from AWatson Industries to fix internal and external defects, both structural and non-structural, totalled more than $50,000 and building costs had risen substantially since then.

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Ms Steven told ACAT that she suffered post-traumatic stress and anxiety because of the issues surrounding the construction of her home and the alleged conduct of the builder and their legal representatives, citing intimidation, threats, a caveat over her property, delaying tactics and unconscionable conduct.

The company maintained that any defects raised by Ms Steven were remedied and denied the existence of any defects for which it was liable under the contract.

It also contested the credibility of the 2017 inspection report from Peak Consulting – Building Consultants and Building Investigations.

In his witness statement from February, Rojas Constructions’ general manager, Mauricio Rojas, said that Rojas Constructions did not believe ACAT should hear the dispute as part of the special provision for dealing with disputes stated on the contract.

He said there was no consistent evidence regarding the alleged defects.

“It has been over six years and any issues she is now raising may not be indicative of Rojas Constructions’ fault,” he said.

But Ms Hatami found the home was not built in a “proper and skilful way” and that Rojas Constructions had shown “limited interest” in rectifying defects.

Ms Steven’s troubles with her new home began during construction, which took twice as long as expected and continued after completion in 2017.

She told ACAT the property was uncleaned and there were electrical and plumbing issues.

In December 2018, the property suffered water damage, and Mr Rojas responded in an email that it was probably due to severe weather.

Ms Steven’s insurer advised that the problem had been caused by a waterproofing failure, which allowed water to enter through a wall to the inside of the house. If the failure wasn’t repaired, her policy renewal and future claims would be affected.

Builder Mauricio Rojas denied any liability. Photo: Rojas Constructions.

The structural repairs were not covered by insurance, although Mr Rojas insisted they were.

During the hearing, Mr Rojas could not recall being told about the water damage but, when confronted with the documented evidence, blamed it on the landscaping for which he was not responsible.

The structural defects identified in the Building Inspector’s Report included the roof sheeting, roof capping, the driveway concrete, tiling in living areas and the front porch.

The Tribunal accepted that the Building Inspector’s Report was credible and reliable, noting that the builder providing the report did not quote for the repairs and that no conflict of interest could be alleged.

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Mr Rojas could not present any evidence to substantiate his claim that the defects identified in the Building Inspector’s Report were inaccurate or had been rectified since the report was produced.

“I accept the applicant’s evidence that there were significant defects in the construction of her property,” Ms Hatami said.

“I find that the respondent did not carry out the construction in a proper and skilful way and I accept that the respondent showed limited interest in rectifying these defects and did not remedy many of the defects raised by the applicant throughout the course of their engagement.

“I also note that the respondent showed limited interest in engaging with the applicant’s evidence pertaining to the alleged defects even when encouraged at hearing by the Tribunal to do so.”

The time limit for non-structural defects had expired and Ms Steven was unable to claim for any of those she claimed had not been dealt with.

Rojas was also ordered to pay half of the ACAT Application fee of $635 (being $317.50) and interest of $2542.29.

Ms Steven told Region that the toll the experience with this builder had taken on her was so great she would never build her own home again.

Rojas Constructions has until Friday (13 April) to comply with the order.

If it doesn’t, Ms Steven is prepared to engage a solicitor and pursue the amount owing plus costs through the courts.

Rojas Constructions said it was still waiting to look at the final transcript of the decision but there were a lot of inconsistencies in the case and the company had been advised to appeal.

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