Artistic Landscapes Qld Pty Ltd v Simpson
[2014] QCAT 653
•12 December 2014
| CITATION: | Artistic Landscapes Qld Pty Ltd v Simpson [2014] QCAT 653 |
| PARTIES: | Artistic Landscapes Qld Pty Ltd (Applicant) |
| v | |
| Michael Simpson (Respondent) |
| APPLICATION NUMBER: | MCDO594-14 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 8 September 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 12 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent pay to the applicant the sum of $17,274.10. |
| CATCHWORDS: | Landscaping works – manner in which works carried out – adequacy or standard of works – shortcomings in the finish of works – necessity for rectification – rectification opportunity – substantial completion of works |
APPEARANCES:
| APPLICANT: | Greg Ryan, Director |
| RESPONDENT: | Michael Simpson |
REASONS FOR DECISION
Application
By application filed 10 March 2014 the applicant Artistic Landscapes Qld Pty Ltd (Artistic Landscapes) (Mr Ryan) sought payment of invoices in the sum of $22,289.50 for landscaping works (including the balance owing in respect of construction of a block wall) carried out for Michael Simpson at 3 Cooper Crescent, Rochedale in the period September, October, November 2013.
Background and Evidence
Mr Ryan asserted the two quotes and two invoices on which he based the company’s claim were handed up at the hearing held 15 August 2014 (decision subsequently set aside). The documents handed up on 15 August 2014 according to Tribunal records and by reference to the recording of that proceeding were quote ALQ0109 for $22,489.50 and tax invoice AL140021 for $20,289.50 dated 27 November 2013. Quote ALQ0156 dated 16 November 2013 and tax invoice AL140020 were never forthcoming despite being requested from both parties at hearing and each of the parties being given seven days post hearing to produce same to the Tribunal.
Mr Ryan asserted that the initial quote ALQ0109 was reduced by $2,000 for the reason that Mr Simpson was at the time having a pool installed and that landscaping around the pool could not be completed while the pool was being constructed. That according to Mr Ryan was reflected in the tax invoice AL140021 dated 27 November 2013 recording the withholding of $2,200 ($2,000 plus GST) for work ‘to be completed when ready’. However Mr Ryan asserted that the sum owing pursuant to his quotes and invoices was in fact $22,489.50 because there was $2,000 (plus GST) still owing on account of a block wall/fence which his company had constructed sometime prior.
He said money had been held back at the time due to unwarranted complaint on the part of Mr Simpson. That additional sum was presumably incorporated into the missing tax invoice AL140020 dated 19 November 2013.
Work that was quoted to be done was listed in quote ALQ0109 dated 5 September 2013 and included:
· supply and placement of all trees, shrubs, grasses, ground covers and epiphytes;
· supply of soil and mulch for all garden beds;
· supply, preparation and laying of palmetto turf including soil underlay;
· supply and placement of natural river stone 70-100 mm also approximately 12 larger features rocks;
· concrete steps x 4 at front entrance, plain concrete;
· concrete and timber slatted seat;
· led lighting at front entrance;
· letterbox;
· sandstone for pool gardens;
· edging for turfing areas;
· steppers.
The quote included all labour equipment and cleaning up costs.
Work completed according Mr Ryan was reflected in tax invoice AL140021 and included:
· supply and placement of plants as per plant schedule including water crystals;
· supply and placement of weed matting, stones and feature rocks in dry riverbed garden;
· supply of top soil and tea tree mulch;
· supply and installation of up-lights;
· supply and placement of 600 x 600 mm steppers;
· concrete garden edging;
· all associated machine, labour and material costs.
The tax invoice went on to state:
Have withheld $2,200 for work to be completed when ready. Attach timber to feature seat; concrete small pad at side of garage to get around aircon unit; place plants in pots once supplied in pool area along with the spoil and small sandstone for pots; and epiphytes on pool feature wall once built; finish mulching area near the feature seat up the pool edge once complete; place final 2 steppers.
Mr Simpson said that after initial contact with Artistic Landscapes he was recommended to Seed Landscape Design in the person of Paul Stein architect. That entity produced for Mr Simpson a preliminary concept plan, concept palette, planting palette, three landscape plans, a planting plan and a details drawing. Mr Simpson contracted to Artistic Landscapes the landscaping work in accord with Mr Stein’s drawings. According to Mr Ryan Artistic Landscapes quoted $22,289.50 for the job.
Mr Ryan asserted the works completed bar $2,200 withheld for work around the pool that could not be completed but including the $2,000 plus GST withheld by Mr Simpson on account of the prior contract.
Mr Simpson said the landscaping work had not been completed as detailed in the drawings. He had nine complaints about the work:
1. Plants were not planted as per the detailed drawings numbers 1306 and 1308.
Mr Simpson referred to drawings providing for 300 mm cultivated garden soil to beds; that plants were to be placed in holes 200 mm wider and deeper than pot size and backfilled with top soil; that there was to be a 100 mm cultivated subgrade underneath the hole; that a depression in mulch at the base of the plant was to be provided with an overlay of 75 mm of mulch proud of surface level. Trees required larger holes, larger cultivated subgrade and root barriers. He said rather than follow the drawings Artistic Landscapes just set up plants in a row and put mulch around them. Mr Simpson relied on photos taken when he said the job was finished and he was seeing what needed to be done. Seven photos depicted plants on top of the ground, not dug into the ground and plants that had been blown away according to Mr Simpson on a windy night.
Mr Ryan asserted all plants were correctly planted. He referred to a letter from Mr Stein dated 6 August 2014 in which Mr Stein expressed the view that plants were planted firmly in the ground with correct mulch layer surrounding. He said on the second day of landscaping Artistic Landscapes got the tea tree mulch and placed it around the plants. He said it was only necessary to put in root barriers if required; that root barriers can stunt the growth of trees.
Conclusion
Some seven photos produced by Mr Simpson suggested some plants were only superficially grounded and certainly not packed with mulch in terms of the drawings. Some were clearly not grounded at all. Even if photos were taken at a later date as implied by Mr Ryan there was no excuse for that state of affairs. The plants would have either been alive or dead in the ground.
2. All garden beds were to fall away from the building and that this was not done.
Mr Simpson produced a photo which he said supported his contention. However all the photo depicted was some grass adjacent to what Mr Simpson described as a plinth. Drawing 1304 provided for:
All paths and garden beds to fall away from the building and excess storm water to either run freely to the street or be collected in storm water pits where available.
Mr Ryan said that the drawings had been complied with.
Conclusion
There was insufficient evidence of garden beds not falling away as provided for in the drawings.
3. All garden beds to be cultivated to 300 mm deep with unsatisfactory soil taken away and replaced – this was not done.
Mr Simpson said the area was characterised by sandstone type soil. It was a case of getting rid of that to a depth of 300 mm and putting good soil in. Drawing 1305 provided for 300 mm cultivated garden soil to beds. Mr Simpson said any soil delivered was not ‘dug in’ accordance with the drawings.
Mr Ryan produced a delivery docket from Western Landscape Supplies dated 11 November 2013 which recorded delivery of 10 cubic metres of under turf (trade mix) soil which he said was delivered to Mr Simpsons premises. He said ‘turf mix’ would not burn the natives; that he had a bobcat moving the turf mix in; that the garden beds were 600 mm deep in places; that he paid for the turf mix $390.
Conclusion
On balance it would appear a large amount of turf mix was delivered to site. There was no evidence that the garden beds were dug out to 300 mm with the turf mix then replacing the sandstone type soil. Rather there was simply evidence of delivery of turf mix. More than likely the turf mix was not laid in accordance with drawings but simply overlayed the existing ground level.
4. Concrete block bench on the eastern front of the house not completed.
Whilst Mr Simpson’s claim was clear enough Mr Ryan said that he did not bill Mr Simpson for that item; that it is on the invoice as an item to come back and complete. The invoice referred to is invoice AL140020 dated 19 November 2013 based on quote ALQ0156 dated 16 November 2013 for the construction it seems of a block wall apparently for $12,000. Mr Simpson said he withheld $2,000 in respect of the block wall invoice because of the mess left on the footpath.
Mr Ryan said other trades were present and made a mess. Mr Simpson said the footings for the block wall should have been poured 50 mm below ground level so that when the block wall was rendered the concrete footings were not observable.
Mr Simpson stated if the footings were stepped the desired affect could have been achieved.
Mr Ryan said the footings were in fact stepped.
A photo produced by Mr Simpson depicted what appeared to be a stepped footing.
When put to Mr Simpson that the ‘block bench’ was the issue at hand he stated ‘it’s a block fence 2 meters high right along the boundary’.
Mr Ryan then stated the ‘block fence’ was never part of his quote.
When put to Mr Simpson what was the issue he replied ‘they didn’t complete cutting off of the concrete wall that’s all I can think of – that’s not an issue at this point of time’.
Conclusion
It seemed that Mr Simpson was uncertain as to whom was responsible for the concrete block bench completion as perceived by him. Mr Ryan certainly did not think it was his responsibility. He said that it never formed part of any quote of his. There appeared to be confusion with issues arising out of a block wall as previously invoiced and paid for bar $2,000 on account of failure on the part of Artistic Landscapes to clean up its mess on the footpath.
Mr Simpson’s own statement is most telling ie that it was not an issue this point of time. There is a failure here by Mr Simpson to properly identify his complaint and if a complaint at all what was the damage.
5. Concrete block letter box not built.
Mr Simpson said he thought it was shown in the drawings but could not point to where.
Mr Ryan said it was deleted from his quote. The letter box was referred to in quote ALQ0109 for $22,489.50 and dated 5 September 2013 but deleted according to Mr Ryan from the subsequent quote for $22,289.50.
Conclusion
The letter box is not referred to in the drawings. It appears that Mr Ryan initially undertook the construction of a block letter box but later deleted the block letter box. Given that the quotes given by Artistic Landscapes were in accord with the drawings and the fact that the drawings do not refer to a block letter box it is on balance the case that Artistic Landscapes is not responsible for the construction of a block letter box.
6. Front footpath not made good after damage done by the fence building crew.
This issue had already been traversed in the context of the block wall when $2,000 was withheld by Mr Simpson. Mr Simpson did produce one photo depicting the footpath area but it only highlighted patchy grass.
Mr Ryan said the fence included a gap left for the convenience of other trades accessing the pool area; that as far as he was concerned there was no damage.
Conclusion
If Mr Simpson was referring to footpath damage there was none discernable. What damage was done by the building crew is not clear. If Mr Simpson was referring to footings that has been dealt with.
7. Rubbish not taken away.
Mr Simpson produced photos and referred to plastic pot plant holders and cartons. He said Artistic Landscapes walked off leaving the items.
Mr Ryan said he took the pots away; that the photos were taken while Artistic Landscapes people were still there working.
Conclusion
This is a relatively minor issue and of no real consequence.
8. Concrete infill around aircon unit not done.
According to Mr Simpson, Artistic Landscapes said they would do that and it was not done. The drawings 1304 provided for ‘extension of concrete path to allow movement past air conditioner units’.
Such concreting features as work yet to be done in tax invoice AL140021. The words used are ‘concrete small pad at side of garage to get around aircon unit’.
Conclusion
In the event that Artistic Landscapes went on to complete the job in its entirety presumably the concrete pad would have been laid . It has not been done but also has not been paid for.
9. Dry creek bed swale not build as drawings required.
The drawings 1306 provided for:
Dry creek bed swale (min 200 mm depth at centre of swale) to collect excessive overland flow and direct to drainage pits for safe collection and removal
And for:
A succession of 300 x 300 mm drainage pits the length of the side garden to collect excess overland flow and connect to storm water outlet (100 mm pipe)’.
The dry creek bed was to be made up of 70 – 140 mm tumbled sandstone. The purpose was to drain water offsite as quickly as possible. Mr Simpson said the result was not a swale; that Mr Ryan rolled his weed mat over the ground and dumped some stones on it. Mr Simpson said it needed to be a hollow; that Mr Ryan said he could not make water run up hill; that he would just push the stones up the wall to make it look like a hollow.
Mr Simpson said he rang Mr Stein whose drawings contained a note to the effect that he be contacted if any anomaly was found between his drawings and conditions onsite and who apparently according to a letter dated 6 August 2014 submitted by Mr Ryan came to the premises on 26 November 2013. Mr Stein said in his letter that he found the installation to be satisfactory but that as it was not for the purpose of signoff it was only a quick overall view of the landscape installed rather than a full inspection.
Mr Ryan said the swale was done to the best of his ability; that the only issue was the pipe running along the left hand side for Mr Simpson’s water tank; that he could not dig down too far because he had to go over the pipe. Mr Ryan said he made the swale deeper on the right hand side so that the run off pipe would run next to the concrete footpath on the left hand side.
Mr Simpson said his existing water tank pipe was deep enough for a swale to be built; Mr Simpson produced photos depicting what he said were many small stones in the creek bed and mud in the river gravel.
Mr Ryan said there were various grasses and plants that needed lots of water there. No comprehensive photos of the swale as completed were produced nor was there any adequate evidence of levels to be able to determine whether the swale as envisaged could be built.
Conclusion
The construction of the swale was problematic. Whether it could have been constructed as envisaged by Mr Simpson probably not. Was it constructed adequately by reference to the drawings? In the context of the referral to Mr Stein and his letter confirming the ‘landscape installed seemed to be satisfactory’ and in the absence of any evidence regarding levels the answer must on balance be yes with the qualification that some of the river gravel does appear to be undersized.
Further Considerations
Mr Simpson in answer to the Tribunal question as to whether he gave Mr Ryan opportunity to rectify the issues that he raised he answered no and suggested ‘skulduggery’.
Mr Simpson in answer to the Tribunal’s question as to whether he was suggesting the whole job be redone he answered ‘virtually yes’. Mr Simpson produced to the Tribunal an email dated 12 December 2013. That was an email from Artistic Landscapes to Mr Simpson in which Artistic Landscapes recorded its dismay at non-payment post completion of the landscaping works.
Artistic Landscapes stated that it could not understand what appeared to it to be Mr Simpson’s changed position; that during the course of works he appeared to be happy with the landscaping works as carried out by Artistic Landscapes. In that email Artistic Landscapes indicated that it had spoken to Mr Stein ‘who designed the garden and provided the detail plans for us’.
Mr Simpson seemed to suggest that those words indicated that Artistic Landscapes was in cahoots with Mr Stein. The relationship between Mr Simpson and Mr Ryan had deteriorated to the point that Mr Ryan was no allowed back on site.
In Finality
The landscaping works undertaken by Artistic Landscapes were to be in accord with the drawings prepared by Mr Stein. That can be reasonably deduced from the train of events leading up to the commencement of works, Mr Simpson’s initial contact with Artistic Landscapes, his referral to Mr Stein, preparation of drawings by Mr Stein for Mr Simpson then Artistic Landscapes quote(s) for landscaping works to be carried out by reference to those drawings. That is in fact confirmed by Artistic Landscapes own email of 12 December 2013 and the use of the words ‘provide the detail plans for us’.
Mr Ryan stated Artistic Landscapes delivered two quotes and two invoices for works completed at Mr Simpson’s residence. One quote and one invoice appear to be on account of a block wall and the other quote and invoice on account of the landscaping the subject of this claim. Despite request and time allowed Mr Ryan was not able to produce copies of quote ALQ0156 dated 16 November 2013 or invoice AL140020 an extraordinary lapse given those were at the time of hearing less than one year old.
In the absence of that quote and invoice Artistic Landscapes is constrained to its tax invoice for landscaping works invoice number AL140021 for a total of $20,289.50. That invoice incorporated a reduction of $2,200 for work yet to be completed and which had, it appears, not been done.
As for the landscaping work generally the Tribunal findings are that some plants were not properly grounded and turf mix was overlaid rather than dug out and laid. Other than that the landscaping works appear to have been completed substantially in accord with the quote and invoice (bar work withheld).
Artistic Landscapes was not given an opportunity to rectify. No evidence of the necessity to fully rectify (ie fully redo the job) was forthcoming other than Mr Simpson’s bland assertion to that effect. Mr Stein’s letter of 6 August 2014 whilst not definitive suggests substantial compliance with the drawings.
Given the standoff between Mr Simpson and Mr Ryan and rather than order rectification a more sensible approach is for Artistic Landscapes to be paid for that properly or adequately completed allowing for a diminution in respect of short comings identified. Though arbitrary but based on all the evidence the Tribunal allows for a diminution of $3,000 on the invoice sum excluding GST of $18,445 ie $15,445 plus GST of $1,544.50 on that sum a total of $16,989.50. The filing fee of $284.60 is allowed.
Order
The respondent pay to the applicant the sum of $17,274.10.
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