Builder showed 'limited interest' in fixing home's 56 defects, tribunal rules

The ACT Civil and Administrative Tribunal ordered Rojas Constructions Pty Ltd to pay the home owner $25,000 plus interest, nearly six years after the home was completed.

It was the maximum amount available to be awarded in the ACAT, despite the tribunal accepting the defects were likely to cost more than $50,000 to rectify.

The builder denies any responsibility for the defects and is planning to appeal the decision.

In handing down her decision, ACAT member Parastou Hatami found the builder "did not carry out the construction in a proper and skilful way" and "showed limited interest" in fixing the defects.

Mandi Steven purchased a house and land package in Moncrieff from Rojas Constructions in 2016.

A report produced by building consultant Peak Consulting identified 60 defects at the house in 2017.

In 2018, Ms Steven was quoted $51,270 by another builder, AWatson Industries, to rectify the internal and external defects.

Rojas Constructions maintains any defects were remedied and denies the existence of any defects that the builder might be liable for.

At the ACAT hearing, the building company was represented by general managers Stephanie Paola Jiminez Tangarife and Mauricio Alejandro Rojas Pineda.

Both Ms Jiminez and Mr Rojas spoke to The Canberra Times and said they believed the ACAT process and decision was unfair.

Mr Rojas said he had not been provided a copy of the published ACAT order but said he would be appealing once he had read the decision.

"We have no choice, we have to appeal and get to the bottom of it," he said.

He may also consider taking the matter to the Magistrates Court.

"We need to take it one step further so we can put this to rest because it just doesn't make sense on our end," he said.

Ms Steven lodged an ACAT application in August 2023 seeking $25,000 in relation to breaches of the building contract, plus filing fees and interest accrued on the debt.

The application was filed one day within the six-year warranty period for structural defects.

Ms Steven told The Canberra Times the delay in filing was due to the anxiety the situation had caused her over many years.

"It's been traumatising. I'll never ever build another house again," she said.

The ACAT order states Ms Steven told the tribunal she had suffered post-traumatic stress and anxiety because of the issues surrounding the build and the alleged conduct of the builder and their legal representatives.

The alleged conduct included intimidation, threats, a caveat over her property, delay tactics and unconscionable conduct, the published ACAT order states.

Alongside the July 2017 Peak Consulting building report, Ms Steven submitted to the tribunal a series of email exchanges with the builder in relation to 56 defects at her home.

She also submitted a document produced by Rojas Constructions in March 2017 where the builder noted the 56 defects and the actions taken for each one.

The tribunal found the builder's document had marked several defects as completed or not requiring attention that were later identified as outstanding in the Peak Consulting report.

Damage to the roof sheeting, uneven roof capping, defective driveway concrete and no visible expansion joints in floor tiling were among the defects noted in the ACAT order.

The tribunal said it preferred the Peak Consulting report as it showed the defects persisted after the builder's document, which claimed some issues had been rectified.

The Peak Consulting report also identified several non-structural defects however Ms Hatami said these could not be addressed through the tribunal as the statutory warranty period had expired.

In the ACT, the statutory warranty period for residential building defects is six years from completion day for structural issues and two years for non-structural issues.

At the hearing, the builder said he had not seen the Peak Consulting report or the quote for rectification work.

The hearing was briefly adjourned to allow the builder time to review the documents. He "simply did not accept the evidence", Ms Hatami said, and did not provide any explanation as to why.

When the tribunal offered the builder up to two weeks to review the evidence he declined, stating it would be "too time consuming", Ms Hatami noted in her decision.

Ms Hatami said the tribunal accepted the Peak Consulting report was "credible and reliable on its face" and accepted there were "significant defects" in Ms Steven's property.

"The respondent was unable to present any evidence to substantiate his claim that the defects identified in the building inspector's report are inaccurate or have been rectified since the report was produced," Ms Hatami stated.

She said the builder "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".

In handing down her decision, Ms Hatami said the cost to rectify the significant defects at the house was likely to have increased since the quote of $51,270 was provided in 2018.

"The availability of tradies to carry out construction work is another factor that will impact the cost of rectifying these defects," she said.

Ms Hatami found the cost of rectifying the structural defects would exceed $25,000, the maximum amount generally available to ACAT.

Rojas Constructions was ordered to pay $25,000 to cover the rectification, plus $317.50 for half the ACAT application fee and interest of $2542.29.

The builder has until April 12, which is 30 days from the decision, to pay the amount owed.