Recently I was asked to provide expert evidence in a dispute regarding excavation in rock for a home in Epping Victoria. Builder (well established mid tier builder) had made variation claim of 45K as adjustment against provisional sum in the contract. The claim had been for excavation of 130m cubic of rock. The part of the claim was for rock encountered in cut and fill of the site and also for rock found in excavation for drains.
As anyone will appreciate, 45K claim against first home owner is devastating and life changing.
The dispute was already in VCAT and revolved around whether the initial PS allowance breached warranties of DBCA1995 and around measurement of the quantities of rock excavated.
I spent some time arguing that builder had not used reliable and accountable method of measurement for excavation in rock and that the volumes claimed were mathematically impossible to justify before realising that something entirely different was the gist of the dispute.
The extremely high(predatory) rate for excavation in rock in the contract was only a contingency to be used if the rock was struck but the builder had a duty of care to avoid excavation in rock (by raising the arbitrary floor level) or if that was not possible to use creditable and accountable method of measurement such as Australian Standard method of measurement of Building Works.
My argument essentially was that the builder had not discharged burden of proof that excavation in rock was required and unavoidable and that in any case any excavation could not be accounted for reliably.
In my argument I was assisted by my extensive experience in building contract administration and variation adjustments against PS, working as a Quantity Surveyor in the Victorian Public Service. This is what I said:
“Ultimately both of the engineers determined different speculative quantity of rock excavated and the outcome is entirely untenable. I think that everyone should be alarmed at unspeakable injustice of having to pay for even 1m3 at the rate of $358/m3 for rock that was either avoidable or for the quantity speculatively derived by methods befitting a backward third world country.
Expert Opinion
- Whilst there is no dispute that large quantity of rock was excavated on site there is no proof that it was necessary or required because:
1) There is zero proof that the rock reef was actually found above the level required for slab excavation
2) There is no proof that (if the reef was found) excavation could not easily have been avoided by simply raising (finished) floor level.
The burden of proof is for the builder to show that the rock excavation was required, in my view it is not discharged.
- In submitting the claim, the builder has failed to construct it with reasonable skill and care and has failed to use method of measurement that would provide required accountability. Consequently the quantity of excavation in rock is purely speculative and erroneous in so far as it does not make allowance for fill on site and it includes unnecessary over excavation.
- How can any perceived unfairness to the builder (to deny a claim for excavation in rock) prevail over certain injustice to owner (having to pay for unnecessary or speculative excavation)? It cannot!
- A decision to allow any part of the claim would condone use of improper standards and would not satisfy objects of DBCA 1995 for the maintenance of proper standards.
- As expert contract administrator and certifier I would refuse the claim against provisional sum in its entirety.
Conclusion:
Builder’s claim for excavation in rock is astonishing example of reckless disregard of required standards of professional conduct, duty of care to the owner, skill and care and of the Australian Standards, unbefitting a registered builder.”
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My evidence was criticised by Member as intemperate and my conduct as combative (perhaps I am too passionate about my job) but nothing I said was disproved and in the end although Member took a different route to reach decision, agreed with my proposition that the builder should be paid nothing!
Builder got Nothing!
That is not to say that I am against the builder claiming excavation in rock whenever this is justified. If there was sufficient argument that the rock could not have been avoided and if there was credible data from which PS adjustment could be reliably calculated I would have been the first to advise my client that he should pay the builder irrespective of the amount.
As experienced certifier It is my duty to call it the way it is regardless of the way “the cookie crumbles”
What makes it even more ironic is that I carried out pre final inspection on the home and it was a good job. Whatever credit was due to the builder for good job was more than discredited by the failed rock claim.
