Avery v Webb trading as JD Plumbing and Drainage

[2011] QCAT 321

CITATION: Avery v Webb trading as JD Plumbing and Drainage [2011] QCAT 321

PARTIES:	Mr Robert Avery
V
Mr Graham Webb trading as JD Plumbing and Drainage

APPLICATION NUMBER:   BDL003-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Kerrie O’Callaghan, Senior Member

DELIVERED ON: 12 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:      [1]      That the respondent pay to the applicant the sum of $13,599.43

CATCHWORDS:  Domestic Building dispute where no appearance by Respondent

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Background

1. The applicant (Mr Avery) seeks payment of $14,753.43 from the respondent (Mr Webb) being the cost to rectify alleged defective work (renovation of a bathroom) carried out by Mr Webb at Mr Avery’s property.

1. Mr Webb did not file a response to the application and the Tribunal ordered that the application would be determined on the papers.

1. Mr Avery’s material consisted of:

(1)  The original application which attached:

i)     A schedule of alleged defective work

ii)    A direction to rectify from the QBSA to Mr Webb with respect to the works carried out by Mr Webb to Mr Avery’s property

iii)   An inspection report from the QBSA

iv)   A letter from Dixon Builders detailing the cost of works carried out by that builder at Mr Avery’s property

v)    Invoices from Traditional Tiles in the total sum of $189.18

vi)   Invoices from Sumner Park Tile Centre totalling $152.25

vii) Invoices from Brisbane Bathroom Hire totalling $462.00

1. Submission to QCAT of 15 May 2011 attaching correspondence:

   i)     Letter to Mr Webb 18 October 2009.  In this letter Mr Avery outlines his concerns with the alleged defects.  He confirms that the agreed contract price was $5,659.00 and that $4,500.00 of that amount had been paid.  He advised that he did not intend to make any further payments to Mr Webb.

   ii)    Further letter to Mr Webb dated 9 November advising that as he had not carried out any rectification work Mr Avery and his wife had engaged another builder to rectify the work and that out of pocket expenses were $14,758.00 which they would be seeking to recover from Mr Webb.

   iii)   Letter from Mr Avery to QCAT of 4 April 2011 outlining his attempts to serve the proceedings on Mr Webb.

1. The respondent filed no material in response.

The Claim

1. Mr Avery’s written evidence is that an agreement was entered into with Mr Webb whereby Mr Webb agreed to undertake a bathroom renovation at Mr Avery’s house for a fixed sum of $5,659.00.

1. Mr Avery paid $4,500.00 but refused to pay the balance as the work was defective.

1. He said that the defective work was as follows:

   ▪   No water proofing membrane around floor area

   ▪   Loose floor tiles in various locations and cracks in grout

   ▪   Two wall tiles cracked in shower area

   ▪   Wall tiles cracks appear along outer wall

   ▪   Water limiting device in shower not installed

   ▪   Excessive glue on feature tiles within shower

   ▪   Mismatches between wall tiles/uneven appearance

   ▪   Connection of shower hose to wall incorrect

   ▪   Nail protruding outside of wall of house (from bathroom)

   ▪   Wall tiles found to be attached to original wall sheeting

   ▪   Insufficient water proof membrane within shower

   ▪   No water proof membrane around bath area

   ▪   Floor area should have had a floor waste

2. The only other evidence concerning the standard of works is the material the applicant produced from the Queensland Building Services Authority (QBSA).

1. The QBSA issued a direction to rectify to Mr Webb in November 2009 which listed defective building work as follows:

i)     The water proof membrane to the bathroom floor had failed

ii)    Installation of floor and wall tiles was defective (as detailed in the direction to rectify)

iii)   The shower rose with flexible hose outlet was installed incorrectly

[10]  A copy of QBSA’s report dated 28 October 2009 was also provided to the Tribunal.

[11]  As there was no evidence to the contrary being provided by Mr Webb I find that the works were defective as claimed Mr Avery.  Mr Webb breached the contract by carrying out defective work.

[12]  The next issue is what damages is Mr Avery entitled to.

[13]  Mr Avery claims the total cost of rectification being $14,758.43. I am satisfied on the uncontradicted evidence of Mr Avery that he did outlay the sum of $14,758.43 to have the defective work rectified.  In assessing the damages it is necessary to ensure that the innocent party (Mr Avery) is put in the same position as he would have been had the breach not occurred.

[14]  If Mr Webb had not breached the contract Mr Avery would have spent $5,659.00 to have his bathroom renovations completed.  It actually cost him $19,258.43 (being the cost of rectification plus the $4,500 paid to Mr Webb) as such his loss is $13,599.43.  Mr Avery in claiming $14,758.43 did not take into account that the fact that he had not paid the full contract sum to Mr Webb.

[15]  As such I find that Mr Avery is entitled to be paid the sum of $13,599.43 and order accordingly.