Armond & Burgess v Nugent
[2015] QCAT 484
•10 December 2015
| CITATION: | Armond & Burgess v Nugent [2015] QCAT 484 |
| PARTIES: | Andrew David Armond and Larissa Barbara Jean Burgess (Applicant) |
| V | |
| Trevor Nugent (Respondent) |
| APPLICATION NUMBER: | BDL277-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 26 August 2015 |
| HEARD AT: | Mackay |
| DECISION OF: | Member Allen |
| DELIVERED ON: | 10 December 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Trevor Nugent must pay Andrew David Armond and Larissa Barbara Jean Burgess the amount of $769.00 within 14 days of today. |
| CATCHWORDS: | BUILDING DISPUTE – contract cancelled due to delay – whether owners bound by contract at increased price – where zero boundary and fencing requirements. Domestic Building Contracts Act 2000 (Qld) ss 42 and 56 |
APPEARANCES:
| APPLICANT: | Mr Armond and Ms Burgess |
| RESPONDENT: | Mr Nugent |
REASONS FOR DECISION
Introduction
Mr Armond and Ms Burgess, the Owners, purchased a block of land, which was subject to subdivisional approval sometime in July or August 2011. They then entered a contract[1] with Mr Nugent on 6 September 2011 for him to build a home for them on the land at a price of $178,568.00. The subdivisional approval was delayed and Mr Nugent sent the Owners an email on 10 May 2012 advising that he had taken the option of cancelling the contract and inviting them to sign a new contract. They met with him on 14 May 2012 and the contract price and progress payments were amended on the original contract with the parties signing next to the amendments. The new contract price was $189,202.00, an increase of $10,634.00. It is noted that the Owners had not paid a deposit at the time the original contract was signed. The deposit was not paid until 18 June 2012
[1]Exhibit 7.
The house was constructed and the Owners paid all progress payments as required with practical completion on 24 June 2013. The Owners are now claiming that Mr Nugent was not entitled to the increased amount and have brought an application to the Tribunal for Mr Nugent to refund to them the amount of $10,634.00 with interest on the ground that they never agreed to pay the increased amount.
The Owners have another dispute with Mr Nugent in regard to fencing. The block was small and the southern side of the house was built within 180mm of the boundary. The parties accept that one of the contract documents was an inclusions list,[2] which shows under the heading ‘Landscaping & exterior fencing’ – fencing to front edge of house. The house is constructed with a firewall along the southern boundary in accordance with the development decision notice. There is a small courtyard approximately half way along the southern wall and Mr Nugent constructed a wooden paling fence which he attached to the firewall across the courtyard and also between the end of the house on the southern side and the western boundary of the house.
[2]Exhibit 2.
The Owners were concerned that this left most of the southern side of the house unfenced and they arranged for the paling fence to be removed and a colorbond fence to be built on the southern boundary. The cost of the colorbond fence of 25.3 m length was $3,415.00 and they had originally requested that Mr Nugent pay for half of that cost. They are now claiming the full amount with interest.
The Owners are also claiming their cost in preparing for the Tribunal hearing at a rate of $150 per hour for Mr Armond’s time totalling $3,750.75. There was also an amount of $700 for a survey plan to be prepared.
The Tribunal has jurisdiction to hear buildings dispute in accordance with s 77 of the Queensland Building and Construction Commission Act 1991 (Qld). The provisions of the now repealed Domestic Building Contract Act 2000 (Qld) (‘DBC Act’) also apply to the contract.
Contract price
Mr Nugent claims that he had a right to terminate the contract under clause 4.2 of the general conditions due to the delay in obtaining building approval. The email advising of the cancellation notes that the contract was signed 7 months ago and clause 4.2 gives a right to terminate if the relevant approvals have not been obtained within 55 days after the contract was signed. The Tribunal is satisfied that Mr Nugent had a right to terminate the contract.
The Owners claim that they did not agree to the increase in the contract price and that there was no negotiation on 14 May 2012. At the hearing Mr Nugent stated that he gave the Owners an amount which he was prepared to accept to undertake the works and it was then up to them to decide if they wished him to build their house or not. He says there was no reason stopping them from engaging another builder. The Tribunal notes that as at 14 May 2012, no work had commenced in regard to the contract and Mr Nugent was not making any claim for expenses he had incurred as would be allowed under clause 4.2 of the contract.
The Tribunal also notes that the contract had a cost escalation clause in general condition 25, which complied with the requirements of s 56 of the DBC Act. Mr Nugent could have availed himself of this clause to increase the price of the contract by an amount of .125% of the contract price for each week of the delay after the first 4 weeks or the actual cost of the delay.
He chose to exercise his right under clause 4.2 of the general conditions and renegotiate the contract. The Owners signed the variation to the contract price and progress payments schedule and accepted the performance of the contract and paid the progress payments as required. There was no reservation of their rights at the time of signing of the new price, which would have given Mr Nugent an opportunity to decide not to proceed.
The Tribunal is satisfied that the Owners are bound by the increased contract price as they have accepted the performance of the contracted works at the price, which they agreed to by signing and dating the new price and progress payment schedule. The owners are not entitled to any refund in respect of the contract price.
The fence
The Owners expressed concern that if they did not fence the southern boundary they may lose the part of their land between the house wall and the boundary, presumably by adverse possession. The law of adverse possession would require much than that part of the land was unfenced. There would need to be active acts on the part of the person claiming possession including such things as the payment of rates. In fact, in Queensland it is not possible to bring an application for adverse possession in regards to part of a lot.[3]
[3]s98 of the Land Title Act 1994 (Qld).
They were also concerned to ensure that their property had a fence that adequately provided a safe and secure environment, increased privacy, offered protection from the elements, blocked noise, protected their pets and friends, families children while playing and was a deterrent and barrier in preventing entry from unwanted strangers/criminals or animals.
Mr Nugent stated that he had advised the Owners that a fence over a zero boundary causes problems:
a) depending on style of fence (1/2 on each side of boundary) a gap of approximately 100mm is created against the fire wall.
b) no visible checks can be carried out on this wall for termite ingress, cracking in render, waterproofing, accumulation, weed control, vermin area.
The Owners deny that these matters were raised with them. Mr Nugent was also concerned that the fence had been built on the neighbour’s property and that many hours of jack hammering occurred which may have damaged the owner’s foundations. This is because the house foundations are in the area where the fence was being built.
The Development Approval Decision Notice[4] states at item 3 the built to boundary walls are actually constructed 180 mm from the boundary and the class 1 building on the adjacent allotment are located not less than 770 mm for the same boundary therefore providing an effective separation of 950mm with the only encroachments being non-combustible fascias, gutters and downpipes. The Owners consider that the requirement that encroachment are required to be non-combustible mean that the paling fences made of wood are not suitable. Mr Nugent claims that the fencing, which he constructed to the courtyard and rear boundary, is the only fencing required and is in keeping with the neighbourhood that is the dividing fence normally used in the area[5].
[4]Exhibt 8.
[5]s36 of the Neighbourhood Disputes (Dividing Fences and Tress) Act 2011 (Qld).
The house to be built for the Owners was one with zero boundaries and the southern wall of the house was, in accordance with the development approval and plans a windowless firewall. This would provide all of the requirements for privacy, protection and noise blocking which the owners mentioned. It also required that the only encroachments be non-combustible fascias, gutters and down pipes between the adjacent buildings.
While the standard fence in the neighbourhood may have been paling, it was not appropriate to build a paling fence adjacent to the firewall. The Tribunal is satisfied that the fences built by Mr Nugent on the southern wall were not suitable for the purpose in accordance with clause 10.1(b) of the general conditions and s 42 of the DBC Act. The fencing should have been non-combustible such as the colorbond used by the owners.
While the fencing was not adequate the Tribunal is not satisfied that it was appropriate to build a fence along the whole of the southern boundary again as this is not what is contemplated in the decision notice. The house plans show that the distance of the courtyard fence is 3.2 m and the rear boundary is 2.498 from the house. There is fencing required in the amount of 5.698m. The Owners paid Doggone Fencing[6] in accordance with their invoice $3,415 for 25.3 of fencing. The amount equivalent to 5.698 of fencing is then 5.698/25.3 x $3,415 which equals $769.00.
[6]Exhibit 2.
Mr Nugent is ordered to pay Mr Armond and Ms Burgess the amount of $769.00 within 14 days of today.
While Mr Armond made a claim for costs these were for his own costs and the cost of the position of the survey pegs was not an issue before the Tribunal. So no amount will be allowed for costs.
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