Bach v Majestic Pools & Landscape Pty Ltd - [2012] QCAT 132

CITATION:

Bach and Anor v Majestic Pools & Landscape Pty Ltd [2012] QCAT 132

PARTIES:	Russell Edward Bach Clare Veryan Bach
v
Majestic Pools & Landscape Pty Ltd

APPLICATION NUMBER:

BD243-07

MATTER TYPE:

Building matters

HEARING DATE:

18, 19, 20 and 21 April 2011, Directions given on 2 December 2011

HEARD AT:

Brisbane

DECISION OF:

Mark Plunkett, Member

DELIVERED ON:

26 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal orders pursuant to s 77 of the Queensland Building Services Authority Act 1991:

(a) The Applicants pay to the Respondent the sum of $5,413.73 plus interest at 10% calculated from 17 November 2006, such sum to be paid within 30 days;

(b) The Respondent:

(i) pay to the Applicants the sum of $500 for rectification for shaving the 40 mm wall encroachment, such sum to be paid within 30 days;

(ii) make rectification:

· by repairing the control joint in the west wall;

· as set out by Mr Wenck for the counterfort wall at the north-western corner of the swimming pool as detailed in the drawings that accompany the Form 15 prepared by Leisure Engineering Pty Ltd;

(c) the Amended Application of the Applicants and the Amended Defence of the Respondent are otherwise dismissed.

2. No order is made as to costs.

CATCHWORDS:

Building dispute – domestic pool – breach of warranty – provisional sum – role of certifier – demolition – rectification

APPEARANCES and REPRESENTATION:

APPLICANT:	Self represented Ms Clare Bach
RESPONDENT:	Self represented Mr Andrew Jakovac

REASONS FOR DECISION

Introduction

Russell Edward Bach and Clare Veryan Bach (the Applicants) are home owners of a residence located at 33 Hipwood Ave, Coorparoo, Brisbane, Queensland.
Majestic Pools & Landscape Pty Ltd (the Respondent) is a licensed building contractor (licence no. 44312) under the provisions of the Queensland Building Services Authority Act 1991 (the QBSA Act) and carries on business as a pool builder in a full range of projects ranging from simple pool and coping to complex jobs involving decks, gazebos, retaining walls and other structures.
On 11 August 2006 the Applicants and the Respondent entered into a contract for the installation and construction of a domestic swimming pool, retaining walls and landscaping for the sum of $178,000 at their residence (the Contract).
The date for practical completion of the Contract was 11 March 2007.
At the end of February 2007, as the project was approaching completion, a dispute about extra excavation and extra concrete costs in the amount a few thousand dollars cascaded into a series of other disputes concerning the engagement of the certifier, the certification process, unsatisfactory professional conduct of the certifier, the state of the engineering plans, allegations of defective retaining walls, allegations of unlawful suspension of work, and breaches of the Building Regulation 2006. The Applicants made complaints about the Respondent to the Swimming Pool and Spa Association of Queensland (SPASA), the Queensland Building Services Authority (QBSA), the Board of Professional Engineers, the Office of Fair Trading and the Brisbane City…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 132
Decision Date: 26 March 2012

CaseChat Overview and Summary

The case of Bach v Majestic Pools & Landscape Pty Ltd involved a dispute between the applicants, Bach, and the respondent, Majestic Pools & Landscape Pty Ltd, regarding the construction and subsequent issues with a domestic swimming pool installed by the respondent. The applicants sought relief for various defects and breaches of warranty associated with the pool construction. The matter was brought before the Queensland Civil and Administrative Tribunal.

The central legal issues the tribunal needed to address were whether the respondent breached the terms of the contract by failing to provide a pool that complied with the agreed specifications, and whether the applicants were entitled to rectification and damages for these breaches. Additionally, the tribunal had to consider the role and responsibility of the certifier in the context of the defects identified and the obligations of both parties under the contract.

In resolving the case, the tribunal found that the respondent had breached the terms of the contract by not providing a pool that met the agreed specifications. The tribunal detailed specific instances of non-compliance, including issues with the pool's demolition, rectification, and the overall quality of the work. The tribunal also found that the applicants were entitled to rectification and damages for the breaches. The tribunal ordered the respondent to pay the applicants for the rectification of specific defects and also ordered the applicants to pay the respondent for work completed. The tribunal ultimately dismissed the amended applications and defences of the parties with no order as to costs.

The tribunal's orders included the payment of specific sums by both parties and mandated certain rectifications to be performed by the respondent. The applicants were to pay the respondent for work completed, while the respondent was to rectify certain defects and pay the applicants for the rectification work. No further orders were made regarding costs.

Orders

Orders of the court

1. The Tribunal orders pursuant to s 77 of the Queensland Building Services Authority Act 1991:

(a) The Applicants pay to the Respondent the sum of $5,413.73 plus interest at 10% calculated from 17 November 2006, such sum to be paid within 30 days;

(b) The Respondent:

(i) pay to the Applicants the sum of $500 for rectification for shaving the 40 mm wall encroachment, such sum to be paid within 30 days;

(ii) make rectification:

· by repairing the control joint in the west wall;

· as set out by Mr Wenck for the counterfort wall at the north-western corner of the swimming pool as detailed in the drawings that accompany the Form 15 prepared by Leisure Engineering Pty Ltd;

2. No order is made as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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