Make sure your experts have complied with the Code

In the case of Tinsley v Masterton Homes Pty Ltd (Home Building) [2013] NSWCTTT 26, Tinsley had engaged Masterton Homes to construct a single storey 4 bedroom dwelling.

Almost a year after the certificate of practical completion had been issued, there were two (2) alleged defects which became known:

• defects with respect to the gutters; and
• defects with respect to the roof tiles.

After not pursuing a claim for over three years, the homeowner filed a claim with the Consumer, Trader and Tenancy Tribunal (the “Tribunal”) using the following documents as evidence in support of his case:

• an Independent Verification Body Services Report with respect to proving the defects existed; and
• quotations with respect to proving the quantum of damages. In reply, the builders used the following documents as evidence to defend the homeowner’s case:

1. a report from a Building Consultant with respect to the alleged gutter defects; and
2. a report from the Roofing Industry Association of NSW with respect to the alleged tile defects.

It was held by the Tribunal that the Roofing Industry Association of NSW Report did not comply with the Expert Witness Code of Conduct as it did not specify the experts qualifications, experience and other relevant information which is required by the Tribunal when relying on expert evidence.

As a consequence of the above, the builder was unable to rely on the Roofing Industry Association of NSW report and therefore the builder did not have sufficient evidence to mitigate the damages claimed by the homeowner.

TIPS

If you have decided to act or defend a matter in the Tribunal without legal representation, remember to make sure that:

• all points in your claim, or defence, can be supported with evidence;
• if there is a claim that works or materials are defective, or a defence which claims that the works or materials are not defective, that statement of fact must be support with expert evidence; and
• if you are required to have expert evidence in your matter, that expert has to read, comply with, and attach the Expert Witness Code of Conduct to his or her expert report.

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This article is not legal advice and should not be relied upon as legal advice. All articles found on this website are intended to provide informative information, nevertheless, in many instances legislation and case law has been simplified and/or paraphrased. If you would like personal legal advice based on your current circumstances, you should contact MurdockCheng Legal Practice for a free consultation.