Affordable Concrete Solutions t/as 60241287129 v Brain
[2023] QCAT 436
•9 November 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Affordable Concrete Solutions t/as 60241287129 v Brain & Anor [2023] QCAT 436
PARTIES:
AFFORDABLE CONCRETE SOLUTIONS T/AS 60241237129 (applicant)
v
GREGORY BRAIN AND CASSANDRA BRAIN (respondent)
APPLICATION NO:
BDL 116-21
MATTER TYPE:
Building matters
DELIVERED ON:
9 November 2023
HEARING DATE:
24 October 2023
HEARD AT:
Brisbane
DECISION OF:
Member Jensen
ORDERS:
1. The applicant’s claim for payment for services rendered is dismissed.
2. The respondents’ counterclaim for damages for the cost of rectification is dismissed.
3. The name of the applicant is amended by replacing ABN 891 4182 8184 with ABN 602 4123 7129.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the applicant brought an application for payment for concreting services – where the work carried out by the applicant was for the removal of visible pattern lines in a concrete driveway connected to a home – consideration of the scope of work – consideration of the value of the applicant’s work – finding that the relevant work was domestic building work – where the respondents counterclaimed for damages for the cost of rectifying defective work – consideration of claims of abatement and counterclaim.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 64
Queensland Building and Construction Commission Act1991 (Qld), s 77(1)
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Introduction
There are three issues in this case. First, what constitutes the contract between the applicant and the respondents? Second, is the applicant entitled to payment for the initial works performed and if so, how much? Third, are the respondents entitled to damages for the cost of rectifying the applicant’s initial works which they argue are defective and if so, how much? In addition to those three issues, I must firstly be satisfied that the Tribunal has jurisdiction to decide this dispute.
Domestic building dispute
The applicant is a trade contractor. The respondents are the owners of a home where the applicant carried out work. The subject work was the carrying out of restorative concreting work at the applicant’s home at Ormiston, in particular the removal of visible pattern lines on the driveway.
This application and counterclaim proceeded as a domestic building dispute. There is no challenge raised in the proceeding to this Tribunal’s jurisdiction to decide this dispute.
The Tribunal has jurisdiction to hear and decide building disputes[1] which includes domestic building disputes.[2]
[1]Queensland Building and Construction Commission Act 1991 (Qld), s77(1).
[2]Ibid, schedule 2.
A domestic building dispute is a dispute about reviewable domestic work or a contract for the performance of reviewable domestic work between a building owner and a building contractor. Reviewable domestic work means domestic building work.[3]
[3]Ibid.
Domestic building work includes work associated with the renovation, alteration improvement or repair of a home.[4] This includes repair work to the driveway because on the evidence before me the driveway is part of the home. I find that the work performed by the applicant constituted domestic building work and that this dispute is a domestic building dispute.
[4]Ibid, schedule 1B, s 4(3).
The contract
On 26 May 2020, the applicant provided a written quotation to carry out the initial works. The applicant quoted $6,138 adjusted to $6,338 (both amounts inclusive of GST).
The contract is partly in writing and partly oral. The written part of the contract is embodied in the quotation of 26 May 2020 which provides:
| 124m2 Texture Driveway High pressure clean Fill cracks Cut expansions Prepare area for spraying Spray 2 Coats of plain texture finish with Flecks & 2 Coats of Hi-Build Sealer $5,580 GST 558 $6,138 And $200 path behind gate Colours to be selected $6,338 |
The respondents gave evidence at the hearing that grinding the driveway was necessary to stop the pattern lines from being seen. However, grinding is not part of the description of the initial works in the above quotation nor is there evidence that, in pre contract negotiations, the applicant promised to grind the concrete. I therefore find that the grinding of the concrete was not part of the contract between the parties.
The respondents also argued that the applicant did not comply with a specification titled “Guidelines for Concrete Colour Systems [CCS] Stylepave Resurfacing.” The applicant denies non-compliance with this specification, although she accepted using the CCS product when carrying out the initial works. This specification was tendered with the statement of Mr Brain. There is no reference to this specification in the written quotation nor is there evidence that this specification was otherwise part of the contract. I therefore find that it is not a contractual document. It follows that the applicant was not contractually required to comply with the specification.
The respondents argue that the applicant assured them that her works would result in the pattern lines being covered and they would not be visible upon completion (the “assurance”). I find this assurance to be a term of the contract for the following reasons. First, the respondents gave evidence that, in a Facebook enquiry, they made it clear that their first and foremost priority was “covering the existing pattern so we don’t see it.” The evidence is that the applicant responded, “yes it can be covered.” Second, the respondents also gave evidence that on 26 May 2020, at their home, they made it clear that their primary aim was to ensure that the driveway appeared in “as new” condition as they were renovating the home. Third, during the hearing, the applicant agreed that she was aware that the respondents’ main objective was to remove the pattern lines from sight. From the foregoing, I infer that the respondents only proceeded to engage the applicant to carry out the initial works if the assurance were a term of the contract.
The respondents gave evidence that they accepted the quotation with the assurance. I therefore find that the contract is constituted by the above written quotation and the assurance.
The Claim
The applicant performed work over the period from 7 to 9 September 2020 and claims $6,338 (claimed amount) for labour and materials supplied to the respondents. The respondents have refused to pay any amount.
The respondents defended the claim arguing no money is owing by reason of the defective work i.e., the pattern lines on the driveway remain visible after the initial works by the applicant.
The applicant sent a formal letter of demand for payment but Mr Brain denies indebtedness to the applicant and states that they did not pay upon receipt thereof because the work “had not been completed in accordance with the written, verbal and implied agreement” between the parties. Ms Brain similarly states that: “payment was going to be withheld as the job was not performed in accordance with the written, verbal and implied contract and expectations and was of a poor quality and standard.”
In the Response dated 16 February 2021, the respondents further stated their position that payment was not made by reason of the defective work. The respondents’ position is supported under the defence of “never indebted.” In McSpadden v Hartnett[5] the Court said that:
The defendants had at all times claimed that work included in the contract had been charged for as extras, that excessive charges had been made and that allowance should be made for unfinished and faulty work. The latter submission may be supported under the defence of never indebted: Mondel v Steele… Such a plea is not a plea in confession and avoidance as the plaintiff bears the onus of proving that his work was properly done.[6]
[5](1942) 42 SR (NSW) 116 at 121 (Davidson J).
[6]Ibid.
I have found that it is a term of the contract that the applicant’s work was required to cover the pattern lines and that they would not be visible upon completion. The respondents defend the applicant’s alleged breach of this term of the contract as a defence in extinguishment of the contract price in which case the burden remains on the applicant to prove that its initial work was properly done.[7]
[7]McSpadden v Hartnett (1942) 42 SR (NSW) 116 at 121 (Davidson J).
In Mondel v Steele[8] the Court said that:
It must however be considered, that in all these cases of goods sold and delivered with a warranty, and work and labour, as well as the case of goods agreed to be supplied according to a contract, the rule has been found so convenient is established; and that it is competent for the defendant, in all of those, not to set-off, by a proceeding in the nature of a counterclaim, the amount of damages which he has sustained by breach of the contract, but simply to defend himself by showing how much less the subject matter of the action was worth, by reason of the breach of contract; and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract, and is precluded from recovering in another action to that extent; but no more.[9]
[8] (1841) 8 M & W 858.
[9]Ibid at 871 (Parke B).
The evidence from both parties is that the pattern lines remain visible. The photos tendered in evidence clearly show the patterns, and the applicant did not contest this when put to her when giving evidence. In addition, I find that the applicant’s offer to return to site to grind the pattern and carry out other remedial work confirms that the applicant accepts that the initial works were not properly done. I therefore find that the applicant has not proven that the initial works were carried out and completed in accordance with the contract term that required the applicant to cover the pattern lines so that they would not be visible upon completion of the applicant’s works. It follows that the applicant’s non-compliance with this term constitutes a breach of contract on her part and I find accordingly.
I find that the evidence before me establishes that the defective performance of the initial works by the applicant rendered them valueless. First, I accept the respondents’ claim that the applicant’s initial works voided the product warranty on the basis that the warranty required the concrete surface to be prepared in accordance with the CCS specification. The respondents made it clear in their evidence that they required a product warranty. Second, the respondents’ refusal to pay the applicant - combined with the applicant’s preparedness to accept a staged payment arrangement to rectify the initial works ($3,000 on the day of return to work and $3,338 within 7 days of completion of the works) - is evidence on which I place weight to find that the initial works have no value. I therefore accept the respondents’ claim that the applicant is not entitled to payment of the claimed amount, and I find accordingly.
I dismiss the applicant’s claim.
The Counterclaim
The respondents’ counterclaim filed in the Tribunal on 29 July 2021 is for “$11,352 for the damages of the defective work”. The counter claim exceeds the amount abated of $6,338 in respect of the applicant’s claim.
An updated quotation from Ultimate Industries (Ultimate) dated 27 August 2022 was tendered in evidence at the hearing in the amount of $12,881. There is an alternative quotation provided by Creative Concrete Coatings (Creative) dated 31 May 2021 in the amount of $8,316. These quotations are for the grinding of the driveway to remove existing coating and back to bare concrete, which is a different scope of work from the respondents’ contract with the applicant where grinding work was omitted. There is no evidence before me that the respondents have had any remedial work actually carried out.
The respondents have an entitlement to counterclaim for damages for the cost of performing remedial work but only for an amount that overtops $6,338 which has already been abated from the price.[10]
[10]Mondel v Steele (1841) 8 M & W 858.
In the covering letter from Ultimate dated 27 August 2022, Mr Jackson states:
As requested by our client, Ultimate Industries have inspected the above property and provided a full quote 1893 as attached:
1.Our process of driveway coating rectification has been outlined in the attached quote.
2.Full grind back of the entire driveway removing any existing coating completely back to bare concrete.
3.No coating can remain on the driveway before new application is done as per Concrete Colour Systems application procedures of a ‘style pave’ overlay has to be applied to bare concrete that is primed with a polymer-based primer.
4.Our personal company policy is a 3-year workmanship warranty against defects. Queensland government warranty is a min of 1 year for this trade application. This warranty does not include cracks in the coating. Crack that happen at any time after the coating is applied, Ultimate Industries are not liable for this due to substrate movement is out of our control.
5.Our procedure for the above address is to fully grind back the applied coating to bare concrete, vacuum and wash down before polymer primer coat. Cracks filled where required. 2nd polymer primer coat applied. Style pave overlay poured directly onto the primed concrete and squeegee coated to provide a skim coat to fill and last imperfection in the bare concrete beforehand sanding back flat. Full mask of the structure around the property for protection before spraying style pave overlay twice to provide texture coast followed by a fleck colour application. The coating is then sealed with Concrete Colour Systems Hi Build Gloss solvent acrylic sealer. Foot traffic 24hrs after final process completed and no vehicles for 6 days after process completed.
6.Approximate time to complete this job start to finish 2-3 days.
7.For more product application information or product manufacture warranty terms please seek assistance from Concrete Colours Systems representative at Loganholme branch.
Quotation #1893 from Ultimate provides:
Decorative Cementitious Resurfacing
Carry out full diamond grind of area for preparation of new coating using dust extraction equipment. Approx 124m2 Driveway and side area. Driveway is known to have recently been resprayed over the original spray coating and is freshly sealed. Will need a PCD grind to skim off sealer and then grind off 2 layers, new layer has been sprayed thicker than normal/recommended. $4712Grinding dump fee. 2 skip bags allowed for $550
Carry out 4000 psi pressure clean of resurfacing area if required
Fill any cracks in the surface as required.
Cut new saw/expansion joints as required
Mask up all structural areas close to the work area.
Prime work area with acrylic primer.
Squeegee Base coat fresh ground surface to fill imperfections then rub back when dry.Apply 2 spray coats of cementitious compound main colour $6448
Apply 2 fleck colours
Remove all protective masking and waste from site
Apply 2 rolled coat of solvent acrylic clear gloss sealer
Sub Total $11,710
GST $ 1,170
Total $12, 881In the covering letter from Mr Prendergast accompanying the quotation from Creative he said that the “industry standard is to remove existing coatings by diamond grinding.” The accompanying quotation provides:
Concrete Resurfacing Quotation $2,520
Driveway
Surface preparation
Coating removal
Diamond grind the coated surface with specialised PCD tooling to (i) remove existing layers of sealer (ii) remove the existing coating (iii) remove loose concrete and contaminates (iv) open the pores of the concrete surface ensuring high adhesive is achieved.
Diamond grind all trip hazards to a flat surface.
Diamond grind the prepared floor with 30/40 grit tooling to remove the aggressive grind marks from the PCD flooring
A separator and dust extraction system will be used on all grinders to minimise dust
Vacuum the surface to remove all latent materials.
Fill divots and cracks in the existing slabs where required. We will chase the existing cracks with a V diamond blade and fill them with an epoxy/sand mortar.
Once cured, grind smooth
Remove and dispose of all concrete dust.Surface coating $5,040
Stylepave Concrete Resurfacing- Blanket cover
Prepare, supply and apply decorative polymer….
Mask up with plastic all buildings, gardens….
Apply one coat of CCS Resurfacing primer.
Spray two coats of “Midnight Blue” …product ….
Roll out two coats of Hi-build Enduro …sealer ….
Remove and dispose of all waste.
Subtotal $7,560
GST $ 756
Total $8,316
Please note that this quote is subject to a site inspection and measure before works commence.The quotations from Ultimate and Creative are wide in scope of works and go beyond performing work to the immediately affected areas i.e., where there are visible pattern lines. The work quoted on includes grinding the entire driveway back to bare concrete and then applying product. Both quotations describe broadly their processes of driveway rectification and they reference the CCS specification. Mr Jackson refers at item 2 of his covering letter in general terms to “full grind back of the entire driveway removing any existing coating…”
There appears to be a degree of knowledge of the applicant’s initial works factored into these quotations because Mr Jackson of Ultimate states in its quotation that the “Driveway is known to recently been resprayed over the original spray coating and is freshly sealed. Will need a PCD grind to skim off sealer and then grind off 2 layers, new layer has been sprayed thicker than normal/recommended.” And Mr Prendergast states that: “As per manufacturer’s specifications all existing coatings must be removed before the application of any new coating.”
However, in my view these quotations from Ultimate and Creative do not assist the respondents. First, there is no evidence before me of an allowance in these quotations that shows that rectifying the applicant’s defective work has increased the total costs. Without such evidence, I am unable to determine if the quotations contain an extra cost specifically relating to the rectification of the defective work or whether the quoted prices would be the same irrespective of the applicant’s initial works. Second, Mr Prendergast states that he did not inspect the site before quoting. I do not place weight on the Creative quotation for that reason and find the quotation to be generally unreliable. Therefore, I am not satisfied that the respondents have demonstrated that they will incur any costs or suffer any damages (as a result of the applicant’s initial works) if they have the works carried out as quoted by Ultimate and Creative and I find accordingly.
I dismiss the counterclaim.
ABN change
The applicant, Ms Smith, sent an email to the Tribunal dated 27 August 2021 stating that the applicant’s ABN is 602 4123 7129. This is a different ABN from the one shown in the Tribunal papers thus far. This issue was raised at the hearing. The respondents agreed to the change of ABN provided there was no change of entity involved. The applicant assured the respondents and the Tribunal that there was no such change which I accept. Furthermore, the change made no difference to the issues in dispute between the parties. I therefore allow the change of ABN as sought by the applicant pursuant to s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
Orders
The applicant’s claim for payment for services rendered is dismissed.
The respondents’ counterclaim for damages for the cost of rectification is dismissed.
The name of the applicant is amended by replacing ABN 891 4182 8184 with ABN 602 4123 7129.
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