27 August 2003RAPID Solutions
Locked Bag 3
Cardiff NSW 2285
Attention: Shane Gallagher
cc. Jim ‘Pest Inspector’
RE: CLAIM FOR DAMAGES: NEGILIGENT PEST & BUILDING INSPECTION
‘PEST INSPECTOR’ BUILDING SERVICES PTY LTD
Dear Shane
Thank you for your letter received by facsimile on 5 June 2003 at 3.11pm. As promised in our letter faxed to you two minutes earlier on the same day, we attach herewith our revised statement of claim, and respond to the issues raised in your letter.
Inspection on same day as exchange
As you rightly point out, the contract of sale was exchanged on 29 April 2003. We need to stress however, that the actual exchange was after the inspection by your client and a careful telephone discussion between us. If he had properly appraised me of the situation, you can be sure that we would not have exchanged on that day. The other fact you fail to mention is that the exchange was done on the basis of a 7 day cooling off period after payment of a 0.25% initial deposit. The seven day period was to allow time for review of the written building & pest reports. If your client had properly detected the damage to our home we could have pulled out and forfeited only $1,587.50. In my dreams I often wish I was back there; this time with a competent pest and building inspector!
Termite activity in close proximity to the property
We’re not sure what direct relevance this has to our claim. Termites are in close proximity to many thousands of homes in NSW. The issue is not the proximity of termites to our home, but the presence of termite damage in our home. This is what your client’s reports failed to note.
Access to the roof cavity
In your letter of 5 June 2003 you said “It would appear that the owner previous to you may have stacked boxes at the front of the ceiling manhole, which prevented Jim ‘Pest Inspector’ from carrying out an inspection of that area”.
I am fascinated by your use of the word “may”. It appears that even today no-one is sure what Jim looked at in the roof that day. If Jim had been “prevented” from looking in the roof, then why was he able to make observations about it in his written report e.g. insulation, top plates, hips and valleys. The most stunning of all is his score of 8/10 for the roof frame, the highest score he gave any aspect of our property! Why also did he tell me in January this year that he had managed to get up there and “shine a torch around”.
Lets face it, what house owner doesn’t have items stored in their roof? Also, what reasonable vendor wouldn’t expect that a few boxes could be shifted to allow a diligent inspector to gain roof access. The agent, as the owner’s representative, was present and available during the entire inspection for Jim to ask permission if he felt he needed to. Any reluctance to facilitate access on the part of the vendor or his agent would have at least rung some alarm bells.
Jim’s recollections
This is even more startling. Suddenly your client has remembered a conversation on 29 April 2002 where he allegedly informed me of his lack of roof access. This is priceless given that nine months later he couldn’t even remember doing the inspection of our home. My telephone call to Jim in January 2003 after discovering the damage could not illicit any hint of recollection. Jim had to wait until returning from his holiday to look up his file reference before “remembering” anything.
My memory of events in April 2002 is sound. On the balance of probability, which I understand to be the legal standard in civil cases, who do you think the magistrate will believe? The man who is about to part with $635,000 based on critical professional advice, or the word of a ‘professional’ advisor who performs multiple inspections every week for a fee and failed to remember even doing an inspection at 5 Langham Place Belrose anyway.
Written vs. Oral Report
The fact that we relied on what your client said and not just what he wrote is not a legal problem so much as a practical one. It just makes it harder to establish what was actually reported. Verbal advice is not “comment” when a fee is being paid for its delivery in the context of a professional/client relationship. Once again, the one thing in our favour is the fact that we would not have parted with $635,000 if we had been properly appraised of the termite damage.
Compliance with 4349.1-1995
- visual inspection
We have no issue with the ‘visual’ nature of your client’s inspection. As detailed in our original letter on 9 April 2003 and evidenced in the photographic record, there is more than enough damage out in the open without needing to take anything apart.
- reasonable access
4349.1-1995 and 4349.3-1998 define ‘reasonable access’ as ‘areas where safe, unobstructed access is provided and the minimum clearances specified in Table 1.1 are available; or where these clearances are not available, areas within the consultant’s unobstructed line of sight and within arm’s length. Note that reasonable access does not include removing screws and bolts to access covers.’
The inclusion of the last point is noteworthy, screws and bolts imply that something has been fastened, and is therefore inaccessible. Interestingly Jim’s original report mentions “household goods” not boxes, but in any case, these items were clearly not fixed or fastened to the building. They did not “prevent” his access, at most they might have hampered it.
None of the inspectors since Jim have complained about a lack of access. They have all even managed to make their way into the 2nd roof cavity. It is clearly difficult for us to understand why it would be OK for other professional inspectors but not for your client.
The paragraph that clouds interpretation of the entire report is in the building report “The clearance in the roof space did not meet the requirements of the Australian Standard 4349.1-1995 and access could not be gained to the Lounge/Dining room area”. This refers to the second roof void which, as he notes, does not have its own access hole. We understood that he had not been able to inspect this area. However, the implication (within the context of the reports) being that your client had inspected the first roof void above the bedrooms which does have an access hole, and which is also where the termite damage is; but not the second. This is also borne out in Jim’s other comments in the report as noted in this letter.
Conclusion
Where do we go from here?
These are the facts:
(1) There was extensive termite damage to our home at the date of the your client’s inspection on 29 April 2002. This is evidenced by the visible repairs that had been effected prior to our occupation, many of which had also been subsequently eaten by termites.
(2) The damage, including various attempts at repairs and bracing was clearly visible in the roof void above the bedrooms.
(3) We paid your client a fee for a professional building and a separate pest inspection, a the core objective of which was surely to ascertain structural integrity of the building and detect any current or prior pest activity.
(4) Your client failed to detect the termite damage, particularly in the roof, since we were not advised of it in either his verbal or written reports. In addition his building report failed to note that the roof above the bedrooms was not structurally sound.
(5) The cost of repairing the un-detected damage to our home as a result of your client’s negligent inspection is significant as per our attached statement of claim. We have also provided further photographic evidence to demonstrate the level of damage to our bathrooms and suspended floor (refer attached).
Your client’s defence all hinges around his alleged restricted access, but neither his verbal nor written report make the level of his access clear as noted above and in our previous correspondence. The fact is, your client’s report is full of so many holes and inconsistencies that you could drive a truck through them. Specifically we note the following anomalies:
(1) Your client gave the roof frame a score of 8/10, indicating that he had examined it and formed an opinion on its efficacy.
(2) Your client makes observations about various aspects of the roof frame which would only be visible to someone in the roof. For example, he noted partially obscured joists and that insulation in the roof space made it difficult to see ceiling timbers and top wall plates.
(3) Your client limited his scope by indicating that he could not gain access to the roof void above the lounge/dining room. This we understood, particularly since this section did not have its own access hole. However, elsewhere in his report he uses vague terms when talking about the roof void above the bedrooms. For example;
i. “in this area” which in context was taken to refer only to the area where the “household items” were stored. Presumably they did not fill up the entire roof void.
ii. He says that “complete inspection of the roof space was not possible”, but the use of the word “complete” in context implies that a significant portion of the roof was at least partially inspected, particularly in light of his other comments. Otherwise he would have simply said “inspection of the roof frame was not possible”.
Suggested course of action:
We have already briefed our solicitor in this matter and had an initial consultation with Mr Paul Evans of Integrated Building Consultancy Pty Ltd. Mr Evans is highly qualified in the area of building reports and disputes, he is also an expert witness regularly called to the Supreme Court. Interestingly, Jim ‘Pest Inspector’ was ‘known’ to him in relation to other disputes he had worked on.
The view that has emerged in consultation with these experts is that your client has failed to make clear the level of his access which would clearly limit any ‘defence’ he might otherwise have hoped for.
We would prefer to see this matter resolved sensibly to everyone’s mutual satisfaction, but we are fully prepared to take it further if necessary. The way we see it, we have far more to gain in continuing this action than we have to lose. We are confident that a good lawyer will find many more holes in your client’s report than we already have.
We suggest scheduling a meeting to discuss the matter in a face to face context prior to taking a legal recourse. We propose a meeting on Friday 5 September 2003, at 2.30pm. We would be happy to meet at your offices assuming this is convenient for you.
Would you please call us to confirm the suitability of this time with you.
Regards,
Wesley & Belinda Dart
