Bryce Built Constructions Pty Ltd v Baseler
[2016] ACAT 23
•25 January 2016
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BRYCE BUILT CONSTRUCTIONS PTY LTD V BASELER
(Civil Dispute) [2016] ACAT 23
XD 1001/2015
Catchwords: CIVIL DISPUTE – Contract- building dispute – claim for payment - counter claim for defective work – Australian Consumer Law – no issue of substance
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 48
Competition and Consumer Act 2010 (Cth) sch 2 s 64
Fair Trading (Australian Consumer Law) Act 1992 (ACT) s 6
Tribunal: Senior Member E Ferguson
Date of Orders: 25 January 2016
Date of Reasons for Decision: 4 April 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) XD 1001/2015
BETWEEN:
BRYCE BUILT CONSTRUCTIONS PTY LTD
Applicant
AND:
JACOB BASELER
Respondent
TRIBUNAL: Senior Member E Ferguson
DATE: 25 January 2016
ORDER
The applicant’s claim is dismissed.
Judgement for the respondent in the counterclaim.
The applicant is to rectify the following work at 10 Badenoch Crescent, Evatt, ACT 2617 by 7 March 2016:
(a)Realign and refix buckling of gable end at rear of building;
(b)Make his best efforts to rectify buckling of fascia at front of building;
(c)Realign and refix barge cap at rear right gable;
(d)Remove short barge fascia on carport gable and replace with full length; and
(e)Realign fascia at change of roof line.
The applicant is to pay the respondent the sum of $590 by 7 March 2016, comprised of:
(a)Filing fee for counterclaim $140; and
(b)Cost of building report.
…………signed…………..
Senior Member E Ferguson
REASONS FOR DECISION
Background
The applicant is a corporation engaged in the business of building construction.
The respondent engaged the applicant to do some renovations to his home.
On 21 June 2015 the applicant provided the respondent with a quote for $9,144.30 to:
(a)remove the fascia, gutters and asbestos eaves,
(b)install a new metal fascia and gutter; and
(c)supply and fit new eave linings.
The parties subsequently agreed that:
(a)the applicant would refer the respondent to tradesmen who could remove the asbestos and install new eaves lining, and that the respondent would pay those tradesmen directly; and
(b)the respondent would remove the existing wooden fascia himself.
The applicant sent the respondent an invoice dated 6 July 2015 for $4,131.71 to cover the revised scope of the work to be performed by the applicant namely:
For supply of all eave lining material. Supply and install new metal fascia and gutter in deep ocean colour.
The respondent accepted the quote and paid the applicant the full invoiced amount before the work commenced.
The applicant’s roofing contractor, Chris Murphy attended the respondent’s property on 7 July 2015, while the original timber fascia was still in place, to measure up before ordering materials for the new colorbond fascia, guttering, downpipes, flashing and all fixings.
After the existing eaves and timber fascia were removed Mr Murphy installed a new standard sized colorbond fascia and the other items.
Another builder advised the respondent that the groove for the eaves lining on the fascia installed by Mr Murphy was too low in relation to the window head preventing the installation of level eaves.
The eaves lining slots into, and is supported along its outside edge by, a groove on the inside of the fascia. The inside edge of the eaves lining is supported by a batten attached to the wall of the house. In order to create level eaves the fascia groove and the batten must be at the same height.
In this situation the top of the windows was very close to the top of the external walls making the position of the groove on a standard sized colorbond fascia too low.
The applicant told the Tribunal that, upon being advised of the problem he assumed that Mr Murphy had wrongly installed the fascia and asked him to fix it.
The applicant presented the respondent with some options to remedy the defect and recommended removing the new colorbond fascia, installing a new timber fascia and adapting the removed colorbond fascia to cover the timber fascia.
This solution would provide the appearance of a metal fascia but would permit the eaves groove to be made in the timber fascia at a suitable height.
The respondent accepted the applicant’s advice and Mr Murphy reinstalled the fascia as agreed.
The applicant says he later learned that Mr Murphy had not originally installed the fascia incorrectly but instead that the problem lay with the configuration of the house, namely that the window head was too high and the original timber fascia “had been altered to an extremely irregular size” to accommodate the height of the window head.
The applicant issued a further invoice for $2,976.70 dated 4 August 2015 for the remedial worked described as:
Supply of timber fascia and fly rafter material. One builder and one tradesman to install timber fascia 11 hours and builder only 2 hours demolition, and pergola propping. Please note the need for timber fascia with colorbond cover was necessary due to original windows being installed too high and original fascia being ripped down.
The parties agreed there was no discussion about payment for the extra work before it was done.
The respondent refused to pay the invoice.
The Claim
The applicant claimed an amount of $2,976.70 being the unpaid invoice plus filing fee.
The Defence
The respondent denied liability on the grounds that the applicant was responsible for the cost of rectification of a defect caused by his agent installing an incorrectly sized fascia, which was not suitable for design of the house.
Counter Claim
The respondent counterclaimed on the grounds that:
(a)the rectified work was not in accordance with the specifications originally agreed, that is a new full colorbond fascia; and
(b)the work was otherwise defective as particularised in the building report commissioned by the respondent.
The respondent sought an order for $9,051 comprised of:
(a)$4,131.00 refund of the full amount paid under the contract.
(b)$2,530.00 reimbursement of amount paid to Gary Reid to demolish the eaves and remove asbestos.
(c)$1800.00 reimbursement of the cost of installing new eaves.
(d)$450.00 for the cost of a building report from ACTPRO
(e)$140.00 for filing fee for counter claim.
The premise of the respondent’s claim was that he was entitled to recover a full refund of money he paid under the contract, the cost of having the fascia and associated work demolished and rebuilt with suitable new materials; and rectification of other defective work identified in the ACTPRO building report. He estimated this to be about $12,000.00 but he was prepared to limit his counter claim to the sum claimed.
Response to the counter claim
The applicant claimed that the hybrid solution was agreed by the parties when it became apparent that the material installed by Mr Murphy was not suitable in that situation.
The respondent had not given the applicant an opportunity to rectify the other alleged defects.
At the hearing, counsel for the applicant clarified that the alleged failure to provide an opportunity to rectify was not raised as a defence to the counterclaim but merely to support the argument that any remedial order should be for rectification rather than damages.
Hearing
The matter was heard on 25 January 2016.
The applicant’s authorised representative, Mr Kitt Bryce engaged Mr Stephen Tully of counsel to represent the applicant at the hearing.
The respondent effectively represented himself, despite having appointed his father, Mr Chris Baseler, attorney to represent him at the hearing.
Both parties filed expert reports from qualified builders and other material including correspondence.
The applicant filed a building report by Peter Leary from Peak Consulting dated 15 January 2016 and a letter from Chris Murphy dated 13 January 2016.
The respondent filed a building report from ACTPRO dated 21 August 2015. Although Ken Roche, the managing director of ACTPRO, signed the report, Mr Robin Dann conducted the inspection and prepared the report.
At the hearing Mr Bryce and Mr Baseler gave evidence in person.
Mr Leary, Mr Murphy and Mr Dann gave evidence in person and were cross-examined.
Mr Murphy gave his evidence and following some discussion about the two building reports, offered to rectify the items at Order 3.
The respondent agreed to remove the cost of replacing the pergola screws and asbestos removal from his counter claim.
The remaining issues for determination by the Tribunal were:
(a)Whether the applicant was entitled to recover from the respondent the cost of Mr Murphy removing and replacing his work.
(b)Whether the respondent was entitled to damages in relation to the replaced work on the grounds that such work was:
(i) not in accordance with the specifications originally agreed; and/or
(ii) not of an acceptable standard.
(c)Whether the use of different size flashing at both gable ends was not of acceptable standard.
The expert witnesses were asked to provide evidence in relation to the issues still in dispute.
Law
The respondent is a consumer within the meaning of the ACL because:
(a)He normally resides in the ACT.
(b)The price under the contract was less than $40,000.
The ACL provides consumer guarantees that services:
(a)will be rendered with due care and skill;[1]
[1] ACL, s.60
(b)and any product resulting from the services, will be fit for a purpose that the consumer made known to the trader;[2]and
[2] ACL, s.61 (1)
(c)will be supplied within a reasonable time.[3]
[3] ACL, s.62
Evidence
The first colorbond fascia installed by Mr Murphy
Mr Murphy told the Tribunal that the original timber fascia (the original fascia) was the narrowest fascia he had ever seen and that it was probably cut down by the original builder to raise the height of the groove in the fascia to the height of the window heads to enable level eaves to be installed.
He estimated the depth of the original fascia to be about 100mm whereas the standard width for a fascia is between180 and 200mm. A standard colorbond fascia being 185 mm wide.
Mr Murphy said that he did not notice that the original fascia was unusually narrow when he measured up. He only realised when he came back to install the colorbond fascia he had ordered and saw the original fascia, now removed by Mr Baseler, lying on the ground.
Mr Murphy conceded at the hearing that the depth of the original fascia should have been obvious at the time he measured up and that he overlooked the significance of the height of the window.
The unusually narrow original fascia combined with the height of the window head should have alerted Mr Murphy to the possibility that a standard sized colorbond fascia would not be suitable.
Different sized flashing on gable ends
Mr Baseler claimed that the use of different sized flashing at the gable ends was the result of poor workmanship.
Mr Bryce said it was necessary to use the different sizes to accommodate irregularities in the roof tiling.
Mr Dann conceded at the hearing that the use of different sized materials was a minor, and purely aesthetic, issue. He preferred another more aesthetically pleasing solution to address irregularities in the roof tiles.
Mr Baseler said the difference in the size of the flashings was visible only from the back yard.
Hybrid fascia
Mr Murphy told the Tribunal that if he had identified the unsuitability of the standard fascia from the outset the best solution would have been to leave the existing timber fascia in place and cover it with a product known as a ‘fascia cover’ designed to cover a timber facia.
A fascia cover is a standard metal fascia with the top lip machined off by the manufacturer so that it fits over a timber fascia, protecting and concealing it.
As the problem was not identified until after the respondent had removed the original fascia Mr Murphy believed that the hybrid solution adopted was the best method of rectification. That is for him, to install a new cut down timber fascia, and convert the removed colorbond fascia to a fascia cover by cutting off the top lip with electric snips.
Mr Murphy rejected the solution favoured by the respondent, which was to use a customised narrower colorbond fascia, as unacceptable because he claimed the supporting brackets would have to be cut down to fit thereby reducing their strength.
In Mr Dann’s opinion a timber fascia should never be used with a metal cover due to an unacceptable risk of condensation forming between the metal and timber surfaces and causing the timber to rot.
Mr Dann said that the best solution was either a customised colorbond fascia; or a standard colorbond fascia with the eaves raked to accommodate the difference in height between the eaves groove on the fascia and the top of the window.
He rejected Mr Bryce’s argument that the cost of customised colorbond fascia would be prohibitive due to the need to customise not just the fascia but also the brackets.
Mr Dann said that existing brackets could be easily adapted or other suitable brackets found which would be sufficiently strong for the application.
According to Mr Leary and Mr Bryce, raked eaves would not be consistent with the design of the house and not reflect the slope of the roof and would therefore ‘look terrible’.
Mr Leary disagreed with Mr Dann and considered that a customised full metal fascia system and the hybrid system adopted were identical in terms of function, durability and aesthetics because the timber is treated and protected by the metal.
In Mr Leary’s opinion, a customised fascia could not be a uniform width but would need to vary to accommodate the idiosyncrasies of a building of this age. However, he told the Tribunal it would be no more difficult to do that than to adopt the hybrid approach.
Costs
The Tribunal refused the applicant’s request for an order that the respondent pays its costs.
Section 48(1) of the ACT Civil and Administrative Tribunal Act 2008 makes it clear that the parties to proceedings must bear their own costs unless otherwise provided by the Act. The Tribunal took the view that this case did not fall within any exception to this rule.
Under section 48(2) the Tribunal has a discretion, where the applicant in a claim or counter claim is successful, to order the other party to pay certain expenses of the application.
In this case the applicant was not successful in his application so the Tribunal had no power to order the respondent to pay any such expenses.
The Tribunal exercised its discretion under section 48(2) to order that the applicant pay the filing fee and the cost of an expert report incurred by the respondent in bringing his counter claim as he was at least partly successful in that claim.
Conclusion
I found that all material times Mr Murphy was the agent of the applicant.
I found that the respondent made it clear that he wanted to replace the old timber fascia with a colorbond fascia which he regarded as more durable and lower maintenance than timber.
I found that the colorbond fascia first installed by Mr Murphy was not fit for purpose as it did not permit the installation of level eaves linings and therefore the respondent was entitled to rectification at the applicant’s cost.
Accordingly I dismissed the applicant’s claim to recover the cost of rectification from the respondent.
The first limb of the respondent’s counter claim was that the hybrid timber- colorbond system adopted by the applicant to rectify the defect was not in accordance with the specifications originally agreed, that is a full colorbond fascia, and that it was not of reasonable standard- in particular it was not durable and was prone to rot due to condensation forming between the metal and timber surfaces.
Mr Baseler submitted that the only remedy was to demolish the work and replace it with either a customised colorbond fascia or a standard colorbond fascia with raked eaves.
I prefer the evidence of Mr Bryce and Mr Leary on the basis of logical appeal that the installation of eaves raked to an angle that was not contemplated in the original design of the house and bore no relationship to the pitch of the roof would produce an unacceptable aesthetic result.
In any event, the respondent accepted the applicant’s recommendation and agreed that the defective work be rectified by a hybrid timber/colorbond system. I noted that the applicant could have canvassed with the respondent a fuller range of possible solutions.
Although both experts were well qualified I preferred the evidence of Mr Leary that the hybrid solution used was equivalent aesthetically and functionally to a customised full colorbond system and produced an acceptable result.
The second limb of the respondent’s counterclaim related to other defective work performed by Mr Murphy.
The applicant agreed to rectify the issues referred to in Order 3 and to his credit Mr Murphy expressed his willingness to undertake the work.
Mr Baseler expressed a preference for an award of damages rather than an order for rectification in relation to the defects referred to in Order 3 as he submitted that Mr Bryce had already been given an opportunity to rectify and had failed to do so.
The Tribunal found that Mr Bryce, despite his assertion to the contrary, had failed to rectify defects when requested.
However once Mr Baseler was able to reassure the Tribunal that any rectified work was not at imminent risk of demolition the Tribunal considered the appropriate remedy to be rectification as Mr Baseler had not produced any evidence of the cost of having someone else rectify the work upon which the Tribunal could base an award of damages.
The only defect remaining in dispute, was the different sized roof ridge flashing at both ends of the house.
Having heard Mr Dann’s evidence that the issue was minor and purely aesthetic and the applicant’s explanation for the difference I was satisfied that the work was of an acceptable standard and disallowed Mr Baseler’s claim for this item.
………………………………..
Senior Member E Ferguson
HEARING DETAILS
FILE NUMBER: | XD 15/1001 |
PARTIES, APPLICANT: | Bryce Built Constructions Pty Ltd |
PARTIES, RESPONDENT: | Jacob Baseler |
COUNSEL APPEARING, APPLICANT | Stephen Tully |
COUNSEL APPEARING, RESPONDENT | N/A |
SOLICITORS FOR APPLICANT | N/A |
SOLICITORS FOR RESPONDENT | N/A |
TRIBUNAL MEMBERS: | Senior Member E. Ferguson |
DATES OF HEARING: | 25 January 2016 |
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