Background:
In the case of Deris v Hunter (Building and Property) [2023] VCAT 1424 (Deris), the dispute arose from the partial renovation of Ms. Deris’s old, single-fronted, unattached weatherboard house in Brunswick, conducted by Mr. Hunter, a registered builder, between March 2021 and September 2021. The contractual relationship between Ms. Deris and Mr. Hunter ended prematurely before the completion of the renovation work on 9 September 2021, and Ms. Deris initiated legal proceedings in November 2021 against Mr. Hunter and a plumber for defective and incomplete works, although she later withdrew her claim against the plumber on 29 December 2021.
Issue:
The key issue in this case was whether Mr. Hunter repudiated his contractual obligations and duty of care towards Ms. Deris by failing to complete the renovation work to a satisfactory standard, as well as whether he violated provisions of the DBCA.
Facts:
After the contract was repudiated and Ms Deris allegedly found defects in the work performed by Mr Hunter, Ms. Deris had Mr. Zeher Khalil inspect the property to identify the defects, who subsequently provided a report on 30 September 2021. She also hired Done Rite Carpentry to perform additional work from 13 November 2021 to 7 February 2022, before the directions hearing. Ms. Deris alleged that Mr. Hunter failed to meet the expected standard of care; specifically, “a duty of care to see that the renovation work was done to standard that could reasonably be expected of a competent builder acting under the same circumstances.”[1] She also alleged that he breached undertakings to complete the renovation by July 2021 and again by 10 September 2021. She claimed the work done by Mr. Hunter was incomplete and defective, particularly concerning the subfloor frame and the floating floor installation.
Mr. Hunter denied the allegations, arguing that the undertakings were not enforceable, citing additional work requested by Ms. Deris and her disruptions as reasons for the delays in his progress. The additional work requested by Ms Deris referred to fixing floorboards, the front gable, and door locks, and was sent in an SMS on 9 September. Of primary importance in determining which party repudiated the contract was Mr Hunter’s SMS response to such requests for additional work; it was found that he had responded in an objectively aggressive manner, accusing Ms Deris of abuse, writing: “…we will complete the work tomorrow and remove our equipment and you can find someone else to complete your work. You are a rude selfish and ill informed individual and I no longer want to have anything to do with your rude behaviour”.[2]
During the case, Mr Hunter contended that leveling the subfloor frame was not included in the contract and blamed material supply issues, Ms. Deris’s disruptions, and Covid-19 for the defects. It was also found that he had been fined $5,000 by the Victorian Building Authority for performing major domestic building work without mandatory insurance. While he knew he was uninsured, he attributed this situation to Ms. Deris not wanting to pay the insurance premium and his ignorance at the fact that insurance was mandatory. The contract was then terminated on 9 September 2021, with both parties accusing the other of repudiation.
The contractual documentation provided by Mr. Hunter and signed by Ms Deris breached sections 29A and 31(1) of the Domestic Building Contracts Act 1995 (DBCA), as it consisted only of short quotations, as if he were performing minor work as a handyman, rather than a formal contract. This breach was noted, although Ms. Deris focused her claims on the alleged defects rather than these procedural issues.
Outcome
The tribunal found that Ms. Deris had proven her claims and was entitled to damages totaling $49,355.44. The tribunal verified the presence of major defects through Mr. Khalil’s report, leading to the conclusion that Mr. Hunter’s work was indeed defective and incomplete.
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[1] Deris v Hunter (Building and Property) [2023] VCAT 1424, [14]
[2] Ibid, [26]
