A builder constructed a leaky gazebo and billed a couple for a document he told them was not needed when it was.
Now he’s had to pay back almost $5000 to cover the cost of what turned out to be an essential document, and $2725 that the gazebo manufacturer charged the couple to fix faults with the construction.
Disputes Tribunal referee Gordon Meyer found, among other things, that the project’s written contract did not comply with the law around building work on residential properties.
The couple, who were not named in the recently released tribunal decision, contracted the builder to supply and erect a pre-manufactured, louvred gazebo at the home they were building.
They paid a $15,000 deposit.
Three months later, the builder set up a new company that took over the almost $39,000 gazebo project.
However, the contract excluded the cost of a producer statement from a designer or engineer known as a PS1, which certified that the structure complied with the New Zealand Building Code.
The builder said it was not needed because the area of the gazebo was less than 30sq m.
But a PS1 was needed because the gazebo had been incorporated into the design for which the council had already issued consent.
Meyer said the builder should have known that from the plans.
The builder then sent the couple an invoice for $2070 as the fee for the PS1.
The homeowners objected to paying it because they had twice been told it was not needed.
They were given the option of having the installation works taken off the invoice and the materials delivered to the site, or agreeing to pay and have the installation completed.
They chose to pay, Meyer said.
He said the gazebo was assembled a few months later, in November 2023, but faults were noticed “almost immediately”, including that a downpipe was not installed.
The flashings had not been installed properly, which meant water leaked between the building and the gazebo, there was no sealant preparation, screws were missing from the drive-arm mechanism and the levels were wrong.
Meyer said a builder “should be able” to build square and to accurately plumb and level.
“If they cannot get their levels right then that calls into question the balance of their workmanship,” he said.
The builder argued there were defects with the gazebo design.
After many attempts to get him to fix the problems and finish the job, the couple had the manufacturer do it.
Meyer said it was clear by then the relationship had broken down and the builder had no intention of carrying out the work.
The couple lodged a claim with the tribunal, seeking a refund for the $2070 they paid for the PS1 document, plus the cost of the bill charged by the manufacturer to fix the problem.
The builder continued to deny liability and maintained the cost of the PS1 was a “genuine extra”.
Meyer found the builder was not entitled to be paid for a variation that was not properly agreed to before payment was demanded.
Neither did he accept claims by the builder about “recurring design issues” as a reason for his decision to end his arrangement as an accredited installer of the gazebos.
He supplied no proof, and it was equally possible he might have had his installer accreditation terminated by the manufacturer because of his poor workmanship, Meyer said.
He found that the remedial works carried out by the manufacturer were reasonably required and must be paid for, and that the builder was liable.
Meyer said although the couple did offer the builder the chance to fix the work, under the law, they were not required to because the failure was a “substantial breach” in that the builder got the levels wrong.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.