VIOLET Kapeller was one when her parents began building their first home at Gillieston Heights, in a project that was supposed to take seven months.
Violet is now five and preparing to start kindergarten, but her parents remain stuck in a legal nightmare after their builder left part way through the job, leaving behind a host of incomplete and defective work.
The house had no water, power, flooring, kitchen, laundry, insulation and defects were found throughout.
The four-year process has been "hell" for the young family stuck in a legal labyrinth that has forced them to represent themselves in the Supreme Court in a drawn out battle with the builder, while their partially built dream home sits unfinished.
Phillip Kapeller and Rachael Cesnik estimate they are $500,000 out of pocket and are desperately fighting to stave off bankruptcy due to crippling legal fees.
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The building contract was signed for the house in November 2015, with assurances made to the couple, their teenage son and three young children that it would be finished in 36 weeks.
But in March 2017, with the job already well overtime, Ms Cesnik arrived at the site to find no-one there.
According to Mr Kapeller, they had paid $368,000 of the $405,000 owed, not taking into account disputes over variations, to be left with an unhabitable shell.
Estimates to finish the house and repair defects, that have caused long and costly delays, range from $190,000 to $345,000, depending on which expert you believe.
The couple has spent more than $110,000 in legal fees, $60,000 renting, $90,000 in mortgage payments and years of their lives fighting the builder.
Mr Kapeller said he realised they were in trouble in January 2017 when an electrician called to tell them he'd disconnected power at the James Leslie Drive site because he hadn't been paid.
A few weeks later, after a disagreement about a progress payment, Ms Cesnik turned up at the site to find the house "open and stripped".
"We paid for two split-system air conditioners, a free standing bath, feature tiles and feature lights, worth about $10,000, and they were all gone," Mr Kapeller said.
"We reported it to police, but we still don't have any of it back. Since then it's been a legal nightmare."
The couple, both in their thirties, saved for years to scrape together the deposit for the house and land.
"I hate the place," said Ms Cesnik. "We worked so hard to pay off all our debts so we could afford the house and we have nothing left now, everything is gone. It's been immensely stressful and we've almost ended up divorced."
In March 2017, Mr Kapeller complained to NSW Fair Trading, which oversees the building control system in NSW.
The authority wrote to him several weeks later to inform him it had been unable to make contact with the builder and "due to the amount in dispute it would be more appropriate for the matter to be heard and determined at the NSW Civil and Administrative Tribunal" (NCAT).
Appalled, and with nowhere else to go, the couple contacted a lawyer.
For the past three years they have been to hearing after hearing, funding a protracted legal battle that has stretched from NCAT to the Supreme Court and back again.
The matter has yet to be resolved.
Expert reports identified a long list of building defects including water leaking from the bathroom into a wall cavity, defective brickwork, the meter box was installed in the wrong place, sub-floor ventilation was missing, tiles in the shower didn't match the rest of the bathroom floor, water from a tiled area runs into a bedroom and black trims were fitted to grey windows.
Ms Cesnik said the property was meant to be their dream home, but turned out to be a nightmare.
"You cannot put a price on the stress this has caused and we can't walk away from it because it's not finished so we wouldn't get enough to pay the debt," she said.
At the heart of the high-stakes legal battle, which involved the couple being sued for $123,000, is the somewhat pertinent question of who the contracted builder was.
It was complicated and confused by the fact that the contract refers to two different, but very similarly named companies, Blissful Developments and Blissful Constructions.
Tasked with unravelling the convoluted affair, the Supreme Court's Justice Mark Leeming noted that both companies had "repeatedly changed their names".
"Both have traded under the same name, or similar, logos ...," he said. "The frequent name changes have led to confusion, not confined to the defendant home owners."
The court heard that Mr Kapeller and Ms Cesnik primarily dealt with Daniel Roberts, an employee of Blissful Constructions, who was also a director of the other company, Blissful Developments.
When the couple sought legal advice over a payment dispute, they discovered that Blissful Developments did not hold a builder's licence and was uninsured.
It is illegal in NSW for residential building work to be carried out by an unlicensed and uninsured builder.
In September 2017, a claim was lodged in NCAT alleging breach of contract by Blissful Developments and misleading and deceptive conduct by Mr Roberts, and so began the couple's lengthy legal battle - with no end in sight.
A cross-claim was lodged against them by the builder, suing for $123,634.
In an affidavit sworn in December 2017, Mr Roberts identified the builder as Blissful Constructions and described the use of the name Blissful Developments on the contract as an "error".
Following Mr Roberts' evidence, NCAT ordered the couple's claim be amended to sue Blissful Constructions, and the legal costs continued to mount.
Over the next seven months, there were five directions hearings in the case, Blissful Constructions changed lawyers three times, failed to show once and made several requests for extensions.
Fed up, NCAT tribunal member Katherine Ross wrote to Blissful Constructions warning the builder the way it was conducting the case was "causing disadvantage to the homeowners".
Several days later a witness statement was filed with NCAT and everything changed.
Shasanth Shankar Tellakula Gowrishankar, who previously worked as the administration manager for Blissful Developments and worked in the same role for Blissful Constructions, gave evidence that completely contradicted what Mr Roberts had said.
Mr Shankar, whose wife Aarthi Dhandayutham is the sole director and shareholder of Blissful Constructions, said the company had nothing to do with the Gillieston Heights project.
He pointed the finger back at Blissful Developments, claiming it was the builder.
A few weeks before, Mr Roberts had resigned as a director of Blissful Developments and the company was placed in voluntary liquidation with debts of more than $750,000.
Following Mr Shankar's evidence, NCAT dismissed the case in September 2018 because it ruled the couple had sued the wrong builder.
"It was the builder they ordered us to sue a few months earlier," Mr Kapeller said. "They ignored the fact that it was NCAT orders that left us with no choice but to pursue Blissful Constructions, only to find Blissful Developments responsible and dismiss our case."
The shock decision left the couple to pursue a liquidated company with no assets.
"We had no choice but to keep going and appeal the decision," Mr Kapeller said. "All the while our financial situation was going from bad to worse."
When the couple won on appeal and Blissful Constructions was named the builder, the construction company appealed to the Supreme Court. Adding to the woes of the already beaten couple, out of money, Mr Kapeller was forced to represent himself.
In his August judgement, Justice Leeming did not miss the monumental finger-pointing and glaring discrepancy between Mr Roberts' and Mr Shankar's versions of events.
"Conspicuous by its absence from Mr Shankar's witness statement was any reference to Mr Roberts, or any attempt to reconcile the effort to which Mr Roberts had deposed to the effect that [Blissful] Constructions was the contracting party, with the bald statements to the contrary," Justice Leeming said.
The court heard that Mr Roberts was summoned to appear before NCAT, but failed to attend.
"The self-serving evidence of Mr Shankar, after the appointment of a liquidator to [Blissful] Developments, is of no weight," Justice Leeming said.
He ruled that Blissful Constructions was the builder and ordered the company to pay Mr Kapeller's legal costs. The money is still outstanding.
The decision opened the door for Mr Kapeller to relist the matter with NCAT and a hearing has been set down for next year.
It was a breakthrough, but after years of fighting and costly delays, Mr Kapeller is scathing about the level of protection that exists for homeowners in NSW.
"We feel very disheartened by the whole thing, outside of costly legal action there is no protection for ordinary people."
Broke, their credit rating shot and on the verge of bankruptcy due to legal fees, Mr Kapeller has made Blissful Constructions five settlement offers since January.
"We used the costings in their expert report and included the awarded legal fees, but they have all been rejected," he said.
In November 2017, Blissful Developments commissioned a building expert to cost works to complete the house and repair defects, the bill came to $191,336. Mr Kapeller's expert estimated the cost at $345,000.
"We are willing to accept their expert advice and settle for that much, but it's been rejected," he said.
"Their lawyer said he was not instructed to make any counter offer."
The matter will be heard in NCAT in January.
Daniel Roberts was a former director and shareholder of Blissful Developments and former shareholder of Blissful Constructions.
Mr Shankar was a former shareholder of both companies and his wife, Ms Dhandayutham, is the sole director and owner of Blissful Constructions and a former director of Blissful Developments.
Blissful Constructions changed its name to BH Australia Constructions in July 2017.
A Newcastle Herald investigation can reveal that Mr Roberts and Mr Shankar are linked to numerous building companies accused of leaving a string of construction and financial disasters across the Hunter.
Dozens of people - including homeowners, tradies, developers and suppliers - have spoken to the Herald, alleging a host of defective or incomplete work and unpaid bills causing nightmares for unsuspecting homeowners and businesses.
The family has established a GoFundMe account in an effort to help pay their legal bills that threaten to bankrupt them in coming weeks.
- Do you know more? Donna.page@newcastleherald.com.au
