Clark v Symphony Homes
[2013] QCAT 78
| CITATION: | Clark v Symphony Homes and Anor [2013] QCAT 78 |
| PARTIES: | Ms Katherine Clarke (aka Ms Marianne Morel) (Applicant) |
| v Symphony Homes Pty Ltd Joseph Conti (Respondents) |
| APPLICATION NUMBER: | BD084-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Desmond Lang, Member |
| DELIVERED ON: | 19 February 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Ms Clarke is to pay Symphony Homes Pty Ltd the amount of $104,212.41. 2. Ms Clarke is to provide tiles of her choice to Symphony Homes for it to fix to the kitchen splash back within 21 days of the date of this decision. 3. Symphony Homes Pty Ltd is to make good the defects listed as being required to be rectified in the QBSA report dated 22 January 2009 other than the overflow relief gully being in the wrong position, obtaining an exemption to the BCC small lots code for the driveway and any associated works and installing control joints in the floor tiling within 90 days of the date of this decision. 4. All work is to be completed to the satisfaction of the QBSA prior to Ms Clarke paying any monies to Symphony Homes Pty Ltd. 5. Ms Clarke is to allow Symphony Homes Pty Ltd access to the dwelling to enable it to complete the works in these orders. 6. If Ms Clarke does not allow Symphony Homes access to the dwelling, then order 3 is vacated and the sum of $104,212.41 is immediately due and payable. 7. If after being allowed access to the dwelling Symphony Homes Pty Ltd fails to complete the works by Symphony Homes Pty Ltd to the QBSA’s satisfaction, order 1 is vacated and the applications are to be referred back to the tribunal for further orders. 8. Except to the extent stated above Ms Clarke’s claims against Symphony Homes Pty Ltd and Joseph Conti are dismissed. |
| CATCHWORDS: | BUILDING DISPUTE where Housing Industry Association contract – where dispute between the parties – whether termination valid – where variations – where defective work – where claims for extension of time Domestic Building Contracts Act 2000 ss 6, 9, 18, 79, 80, 82, 83 84 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Preliminary
Ms Katherine Clarke is also known as Ms Marianne Morel. Both names are used throughout the material. The Tribunal has previously accepted that she is known by both names in Clarke v Cascade Pools (Qld) Pty Ltd[1] and will continue to do so in these applications.
[1] [2010] QCAT 323
Ms Clarke entered into a standard Housing Industry Association contract with Symphony Homes Pty Ltd on 6 July 2007. Joseph Phillip Conti is a Symphony Homes director and the person with whom Ms Clarke dealt with during the pre-construction, construction and post-construction stages. Ms Clarke also dealt with a Sheree Conti, Mr Conti’s wife during the construction process.
The contract called for the construction of a two (2) storey dwelling at 125 White Street, Wavell Heights. Ms Clarke also owned the property at 127 White Street. The material indicates that at some stage the two properties had been a larger block which was then subdivided. Ms Clarke states that she had a house on the original block demolished by a firm called Total Demolition and Asbestos Services.
The relationship was never a happy one and resulted in Ms Clarke purportedly cancelling the contract, followed later by the present application and then a later application by Symphony Homes. Ms Clarke also took Supreme Court action which resulted in her obtaining possession of the dwelling on certain conditions.
Ms Clarke has changed and added to what she is seeking from the Tribunal since she lodged her original application in February 2008 but it appears she is seeking the following:
a) A declaration that she validly terminated the contract in February 2008 and is entitled to the use of the premises and rectification of urgent defects by other trades persons.
b) A declaration that she does not have to pay the final contract payment to reflect the actual reduced value of unauthorized deletions and variations and the cost of bringing the works to completion.
c) Compensation for additional rental paid by her as a result of Symphony Homes’ failure to complete the construction within time.
d) Compensation for undue stress, loss of enjoyment of life including a disturbance to her normal life over the period, and exacerbated health problems.
e) Compensation for liquidated and other damages for building errors that cannot be rectified.
f) Loss of income for last fourteen (14) months (to October 2008) + ongoing for future earnings yet to come.
g) All other associated costs including solicitors and barristers fees.
h) The handing over of all certificates obtained during the works.
i) A declaration and order that the builder was in substantial breach of the contract.
j) A declaration and order that the contract was terminated as at 28 February 2008 under the “Repudiation for gross breaches of contract” clause of the contract.
k) A declaration and order that the builder be banned for life due to gross breaches of contract.
l) The imposition of appropriate penalties on the builder as stated in the Domestic Building Contracts Act 2000.
m) A costs order on an indemnity basis.
n) An order that she not have to pay previous costs orders made against her including that made in the Supreme Court of Queensland.
o) An order that the Symphony Homes pay her the sum of $1,150,000.00 (including that the respondent purchase the dwelling) as compensation for her losses.
Symphony Homes seek the following orders against Ms Clarke in its counterclaim:
a) That Ms Clarke pay it for variations it says it was asked to undertake.
b) That Ms Clarke be required to pay the final payment due under the contract.
c) That Ms Clarke pay the locksmith’s account when it took possession of the dwelling after Ms Clarke changed the locks when she purportedly cancelled the contract.
d) Interest of outstanding monies.
e) Legal costs.
The Tribunal’s Role
Section 28 of the QCAT Act sets out the general procedures for conducting proceedings. In conducting proceedings the Tribunal must act fairly and according to the substantial merits of the case. It must observe the rules of natural justice, is not bound by the rules of evidence and may inform itself in any way appropriate. It must also ensure so far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts.
During the course of the present applications, the Tribunal has conducted numerous direction hearings at which directions requiring parties to file and serve any material the party wishes to rely on and which the party believes will convince the Tribunal to make the decision the party says is in accordance with the merits of their case. That is, each party has had to consider what issues form the merits of their application, what material is required to prove those issues and then decide how to present that material in a way that best demonstrates and proves those issues. Both parties must prove their applications on the balance of probabilities.
Ms Clarke is self-represented while Symphony Homes has been granted legal representation.
Both parties have complied with these directions in their own way and seek to have the applications determined on the papers. This deprives the Tribunal of the opportunity to observe witnesses and test their credit. In determining these applications, complete reliance must therefore be placed on the material provided by the parties.
The Tribunal notes the comments made by the learned Member in Cascade Pools that, in the face of poorly prepared material, the Tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The Tribunal cannot make findings of fact where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered.
These applications have one consistent commonality. Neither party appears prepared to accept ownership of any of the issues raised. Each has asked the Tribunal to determine the application on their material as supplied knowing that they bear the onus of proving their application on the balance of probabilities. Despite her material being difficult to read and understand in parts, Symphony Homes have taken a legalistic approach claiming lack of particularity in Ms Clarke’s material. While this may be the case, Ms Clarke has raised some genuine points to which Symphony Homes should have taken the time to respond.
Given the length of the proceedings and the directions requiring each party to make any submissions the party considers necessary to determine its application neither party can complain they have not been afforded natural justice.
Ms Clarke’s case
Ms Clarke relies on several folders of material which includes: statements of claim; amended statements of claim; statements of evidence; amended statements of evidence; replies to defences and counterclaims; reports from a Roger Karrasch, and a Bevan Sim, both Architects; photographs; copies of letters and emails; a set of plans; and a 1:20 scale plan of the main bedroom en-suite.
Much of the material is in narrative form with some in dot form making it difficult to read and comprehend. Updated material often restates earlier supplied material with dates mixed up. Numerous allegations are made without any references to dates or other evidence. Despite this, Ms Clarke appears to have attempted to improve the quality of her submissions since the Cascade Pools decision.
On 17 January 2007, Symphony Homes provided an initial quote for preliminary works at 125 White Street which was prepared after a meeting on 15 January 2007, information provided at that meeting and draft plans provided by Ms Clarke. The works included levelling the site (except for necessary fill which was to be determined later), fencing, and the cost of the sewer works. Ms Clarke was to provide a confirmation of acceptance, job commencement sheet and working drawings (the plans) and engineering drawings.
Ms Clarke supplied Symphony Homes with the plans for the dwelling together with what she called a “specification” document listing what she wanted included in the dwelling when quotes for the construction were sought.
A later quote for the construction of the dwelling was provided on 28 June 2007. This latter quote letter states that the quotation was prepared with reference to the plans provided and meetings conducted. The plans, landscaping and fencing, staged floors to the main bedroom and media room are important exclusions. Prime costs items and provisional sums were allowed for in the quote.
Ms Clarke believes the concrete at the rear of the dwelling between it and a swimming pool constructed by others should have been included in the dwelling quote but wasn’t.
With respect to the issues relating to her application Ms Clarke’s specification document provided (her wording):
·Allow for cut and fill of block if necessary – not sure.
·Construction as per attached plans.
·Bradnams or Boral windows, std range, frosted glass to side windows as per plan instead of privacy screens.
·Handrail to upper level deck as per .jpg? or as discussed (cheapest?).
·Include 2 cutouts in walls + half niche.
·Handrails to stairs as per pic supplied.
A list of items which was to be priced separately and included in the final price contained the following relevant items (her words):
·Fans s/s (7)? Bedrooms and living.
·Gas hot water + gas outlet for BBQ.
·Air conditioning 5 split systems 2.75 and 1 HP – itemized – may supply myself.
·Insulation batts between ceiling and floor.
·PC for 25 lights 20 power points (more needed though probably).
·2 way switches that work as 2 way switches should – in all places needed.
·Add a little extra for electrical for extra light/power points over and above 25? And 20?
·PC items on light fittings.
·Price of alfresco floor tiled + extra 3m x 7m.
·Bath, spa bath – harmony cnr or straight spa bath to be decided – both fit in space include step up design around spa as per emailed pic.
·Driveway – stenciled or stain resistant paint – to be decided – whatever is cheapest – charcoal colour.
·Slimline Water Tank or if can afford to will go underground as per drawings.
·Fencing 7.5 high as per specs – 4 x 2 top rail – no gaps – left side, nothing at back right rear to existing garage, possibly do not replace existing fence this side – but also price total two sides to replace existing fence (and around block firewall on boundary). Note that photos show no existing fencing to either side boundary.
Issues relevant to this application to be later discussed included (her words):
·Placement of power points and light switching – will get lighting plan done.
·Water tanks and diversion system – may go one slimline tank only instead of underground tanks.
·Cut and fill of block – needs minor fill.
·Staged floors to main bed/upstairs media room as per pics emailed.
The 28 June quote does not separately price the items as requested by Ms Clarke and there is no available evidence that indicates that she pressed the issue. It appears that the only items quoted on were those items listed in the quote letter. Some of the issues which are now disputed as variations are mentioned in this list.
This specification document was not included as one of the contract documents. Ms Clarke was to supply many items that were normally included in a house contract and at the quote stage appears not to have chosen these items. Ms Clarke alleges that Symphony Homes did not quote on a fully completed house and that she was initially unaware that Symphony Homes did not include many items in her specification document.
Ms Clarke states she selected Symphony Homes over five other builders despite it being the highest price quoted as Mr Conti stated he would have her in the dwelling before Christmas 2007. When she queried a completion date of 28 January 2008 she was assured this date was a safeguard in case of unforeseen circumstances.
Ms Clarke states she needed to be in the house by Christmas because she was paying $620.00 a week to rent another smaller house. She and her family had found it difficult to find suitable rental premises and had moved twice in seven weeks before finding her then accommodation.
Ms Clarke states that she entered into the contract on 6 July 2007 and alleges she did not see the contract documentation until one month after it was signed and therefore had no idea what it included. She states that she had asked that her specification document be included and discovered later that it was not a contract document and a lot of her items were excluded.
She alleges that work commenced on 9 August 2007 which she considered a breach of the contract. She became concerned at that time as “the builder did not have any idea about how to find a datum and did not seem to know where to start”. She states she was aware of how important a datum point was as all significant measurements taken during the construction period would refer back to it. She alleges that her plans had been drafted for a cut and fill of 400-400 mm which were indicated on her plans. This cut and fill was also discussed verbally between her friend, Mr George Diggles, the certifiers and Joseph Conti but a much larger cut of 800mm occurred.
Ms Clarke provided an unsigned statement from Mr Diggles. He states he drew the plans and arranged the engineering designs. He also states he assisted Symphony Homes with taking levels on the property to establish contour lines and datum level for the building. He does not mention any details of conversations about a cut and fill 400-400mm nor does he mention any discussions with the certifiers. He states that he had seen variations which appeared excessive and were not accompanied by substantiating documents. He formed the opinion that the builder had not taken notice of communications from the client because of a lack of man power or work on other projects. He states that the builder was applying pressure on Ms Clarke to sign variations by threatening to withdraw his services.
This larger cut affected the placement of the pool, the level and practicability of the rear deck and caused every major problem at the block.
From October 2007 Ms Clarke says she asked for assurances that she would be in the dwelling before Christmas and sought evidence that substantial plans were in place to achieve this. Nothing was provided.
Within the first few weeks of construction Ms Clarke states she noticed major errors being made. Examples were errors with the slab construction, with the house frame with walls in the wrong places leaving little room in passageways for passing. Another error she tried to correct before it was too late was the wall in the main bathroom that was so obviously wrong with no room to walk through. She tried to have the sub-contractor concerned stop work until she could get Mr Conti onto the site to sort the matter out. She states that this resulted in Mr Conti getting angry and sending her a letter threatening to ban her from the site.
Ms Clarke complains that Mr Conti refused to answer her phone calls and emails requesting information and why workers were not on the site to ensure a pre-Christmas finish. When replies were forthcoming they appeared to her to be excuses for tardy supervision.
As work progressed she noticed more substantial construction errors. Measurements were not correctly scaled from the plans resulting in walls being constructed in the wrong place, piping being laid in the wrong location, doorways being constructed with the wrong width measurements.
Incorrect plumbing installation resulted in floor wastes, downpipes and baths being in the wrong location. Vanity units were installed without the correct clearances. The slab had to be cut to rectify some of these faults.
Ms Clarke became aware that the contracts sums for internal fittings and other works were inaccurate. For example, $7,000.00 was allowed for the electrical installation when the actual electrician’s quote was $8,500.00.
Ms Clarke alleges that the timber floor allocation was so inaccurate that she had to cancel it because it was too expensive.
Ms Clarke asserts that under the Domestic Building Contracts Act 2000 the cost of items purchased and supplied by should be deducted in full from the contract price. She alleges that Mr Conti was adamant that he was permitted to allow a builders margin of 20% to items such as the kitchen and bathroom cabinets which she organized through her trusted cabinetmaker. Mr Conti insisted on having the cabinetmaker subcontract to him allowing him to charge the builders margin.
This, she says demonstrates that Mr Conti did not have a full understanding of his responsibilities under the various legislations binding building companies.
Ms Clarke alleges that stage payments were claimed before they were due. Symphony Homes claimed a progress payment for the lock up stage when the front door was secured by two (2) boxes of tiles (supplied by her) on the floor. This resulted in the destruction of tiles which she had to replace at her cost. Later a box of tiles went missing, presumably stolen from the garage. Despite her objections, Symphony Homes did not make the dwelling secure for several days which she claims demonstrates a cavalier and unprofessional attitude and further undermined her confidence in the company.
Ms Clarke asserts she paid $1,765.39 premium for construction insurance which she presumed would cover the theft of construction materials. Mr Conti refused to allow her to claim for the cost of the stolen tiles as he said the policy was in his name. Ms Clarke states that this is a breach of the Domestic Building Contracts Act 2000.
Later two (2) bathroom lights were also stolen.
Ms Clarke considered that because she was paying such a large sum of money for the dwelling’s construction she was entitled to good communications with Symphony Homes and to be allowed to view the works. She alleges that Mr Conti consistently refused to respond effectively to her telephone calls emails and letters. This compounded the issues and made them more serious than they were. Site meetings were organized to remedy the communication problem but these often degenerated into shouting matches as Mr Conti disagreed with her within the first few minutes.
During the course of construction Mr Conti presented her with a large number of variations purportedly under clause 20 of the contract and requested her to sign them. She alleges that these variations were not requested by her and were forced upon her. The variations were also given to her after the work had been carried out. After initially refusing to sign the variations because she had not been informed about them prior to the work being carried out, Mr Conti refused to continue with the construction until she signed the documents. Five remain unsigned as they were presented on the last day. Ms Clarke disputes the variations and alleges they are severely overcharged and need assessing on and a ruling made on each of them.
This together with the serious and significant mistakes, the unwillingness to correct the mistakes and the large sums of money involved caused problems with their relationship.
As the contracted practical completion date approached Symphony Homes proposed alternate dates being 23 January, 28 January, 1 February, 9 February, 21 February, 26 February, 1 March, 26 March and 14 April. None was complied with.
Mr Conti presented her with an extension of time notice claiming further rain days which she says on her understanding of the Domestic Building Contracts Act 2000 is not possible after the contract due date. In her opinion Mr Conti was attempting to justify why he had not fulfilled the contract and was looking at running over time.
On 9 February 2008 after numerous attempts to correct mistakes, defects and omissions she gave Symphony Homes written notice of the defects with the notation that “she needed to put an end date to this and suggest that if all works that need to be completed are not completed in two (2) weeks from the date of this letter (7 March 2008) then all items mentioned in this letter will be added to my final claim for compensation.” She claims none of the defects was rectified.
On 27 February 2008 through her solicitor she purportedly terminated the contract alleging Symphony Homes’ repudiation of the contract by refusing to rectify the defects.
On 28 February 2008 she entered the unfinished premises and changed the locks. Later that day Mr Conti re-entered the property and re-changed the locks. Construction had not reached the practical completion stage.
This prevented her from residing in her dwelling forcing her to continue to pay rent of her alternate premises while she sought to obtain access to the house for rectification of urgent items.
On 1 March 2008 Ms Clarke engaged Mr Roger Karrasch, an Architect to inspect the property and provide a report on the state of construction. Mr Karrasch also provided an assessment of costs to rectify defects. Ms Clarke asserts that Mr Karrasch’s report outlines numerous and significant defects and highlights Symphony Homes’ wholly unsatisfactory standard of work.
Mr Karrasch inspected the property again on 26 March 2008 after a further claim by Symphony Homes that it had reached the practical completion stage. Mr Karrasch states that practical completion had not been reached.
Ms Clarke states that Handovers.com inspected the house for Symphony Homes even though they had been representing her which she claimed to be both unprofessional and a significant conflict of interest. Handovers.com reported on minor defects only not any Category 1 or 2 defects. She was given a copy of their report with many alterations and deletions and an unmarked copy.
Ms Clarke’s solicitor engaged a Mr Bevan Sim to inspect the premises to report on any Category 1, 2 or 3 defects on 22 April 2008. Mr Sim agreed the house had not reached the practical completion stage.
Ms Clarke alleges that the Electrical Safety Office, Walker Environmental and Whites International had all stated there were problems with the tanks and associated burnt out electrical components. She alleges the tanks installed by Symphony Homes were installed so they encroached onto the next door property by some 600mm. Incorrect drainage resulted in the tanks being turned off.
Ms Clarke lamented on the loss of her life, pouring over mountains of paperwork for up to twenty (20) hours a day while trying to have the rest needed to recuperate. This has hindered her recovery from surgery. She states she has heart problems. She complains of having lost her daily life, having a disorganized life, being a recluse in her own home and not being able to avail herself of any help from organisations who could help with these proceedings. She has no money. She is living with unbearable stress. Ms Clarke complains that there is no help for the victim in these situations while the perpetrators are awarded all privileges including legal representation creating a situation where they will not negotiate sensibly to an out of court settlement.
When building the house, Ms Clarke’s plan was to move from her rented premises before Christmas 2007 and use the Christmas period to settle in and unpack. She then planned to take her turn looking after her elderly mother in New Zealand, relieving her brother who was not coping with that task. Her brother largely abandoned his mother leaving other members of the family to put her into a nursing home. This cost over $20,000.00. She planned on being in New Zealand for a minimum of six months to spend the last days with her as her mother’s carer along with other organisations and family. Her mother died in July 2009. Not being able to be there when her mother died has had huge psychological effects on Ms Clarke.
Ms Clarke has desperately tried to sell the dwelling without success due to the number of obvious errors and faults. The house was listed with almost every real estate agent in the area and auctioned twice. Many adverse comments were made as to the dwelling’s finish. No offer has been received. After three years on the market she gave up and has rented it to prevent the bank from foreclosing.
She describes losing a Gold Coast retirement apartment as having the most devastating effect on her. The unit was to be completed in October 2010. The sale of her two houses would have allowed her to transition to this unit. Her present situation has had a ricochet effect on her with her losing the $150,000.00 deposit. She fears the developers may sue for their losses on the sale so her loss is still largely unquantifiable. Despite this she estimates this whole loss together with her retirement loss as being at least $500,000.00. She claims this amount.
In June 2008 the Supreme Court granted her possession of the property on production of a bank guarantee to cover outstanding monies. She did not want to provide the bank guarantee but would have been in contempt of Court if she did not do so. No monies owing to her were taken into account when calculating the guarantee amount. She was devastated when she obtained possession to find that the house was not completed to a stage where she could move in until 23 July 2008.
Symphony Homes’ reply to Ms Clarke’s submissions
Symphony Homes do not dispute entering into the contract with Ms Clarke, nor does it dispute that Ms Clarke paid progress payments under the contract less the disputed variations. Only the final payment and disputed variations remain outstanding.
Mr Conti calls Ms Clarke the most difficult and irrational customer he had dealt with and states he completed other major projects over the same period without any problems. Mr Conti stated that “as at July 2007 within the first few days after commencement, the respondent was concerned for his relationship with the applicant for the remainder of the contract. Those concerns were well founded and has been demonstrated by the applicant’s statement of claim and statement of evidence and other documents filed in these proceedings, despite my best efforts to appease her every request, criticism, variation and complaint, our relationship has deteriorated and the number and extent of disputes escalated to the point where these proceedings were commenced.”
Mr Conti also states that “during the period July 2007 to February 2008, I genuinely endeavoured to please and appease the applicant. She took an intense, obsessive and intrusive interest in the works. Far more so than any other customer I have dealt with. She insisted on countless site meetings, hundreds of telephone calls and hundreds of emails were sent to him. By February 2008 the respondent was exasperated, frustrated and exhausted in my dealings with the applicant.”
Symphony Homes admit omitting insulation between the first and second floor as requested by Ms Clarke. It offered $2,000.00 worth of acoustic underlay as compensation but this was rejected.
Symphony Homes assert that Ms Clarke’s pleadings move well outside of the scope of what relief the Tribunal can grant under a building dispute.
Symphony Homes acknowledge that Ms Clarke initiated successful Supreme Court proceedings (QSC 5524/08) where on 19 June 2008 his Honour Dutney J granted her possession of the site on the condition that she provided a bank guarantee for the amount of $68,713.26. Symphony Homes cannot call upon this guarantee until the present proceedings are determined. Costs were awarded against Ms Clarke. Earlier possession was delayed by arguments about whether the practical completion stage had been reached.
As Ms Clarke did not join Symphony Homes as a party to her against Cascade Pools and it asserts that she is estopped by the operation of Res Judicata from making a claim against it in relation to any issue arising out of the pool construction.
Symphony Homes claim that Ms Clarke’s submissions lack the basic structure and clarity to allow it to know and comprehend the claim made against it. It further asserts that when faced with such poorly prepared material the Tribunal cannot make assumptions or guess at facts and events or the meaning or the importance of material. It asserts that it cannot make findings of fact where there is no evidence and cannot award any damages in the absence of material that points to the quantum of damages suffered.
Symphony Homes assert that Ms Clarke’s submissions do not disclose a cause of action, and contain amongst other things statements of opinion, lack particularity, hearsay assertions and references to legislation and an allegation of a denial of natural justice arising from Dutney J’s order.
Symphony Homes assert that procedural fairness requires that Ms Clarke properly identify and particularise her claims against it to allow it to respond to those claims. It states that Ms Clarke must establish her cause of action and any damages suffered on the balance of probabilities. It states that Ms Clarke appears to contend that the Tribunal should read the various boxes of material and documents and attempt to interpret the pleadings to give them meaning and to marry the distilled claim with the possible evidence relied upon. The obligation is on Ms Clarke to establish her claim not Symphony Homes or the Tribunal to make a case where one does not lie. It asserts that as Ms Clarke has not clearly articulated her claim or identified evidence in the absence of detailed written submission in circumstances where the matters are to be decided upon the papers it has been unacceptably disadvantaged.
Symphony Homes assert that because of her previous experience in the Tribunal as a litigant and the consequences of her failure to fully particularise that claim and the present claim Ms Clarke’s application should be dismissed with costs.
Symphony Homes asserts that the Tribunal can infer from Ms Clarke’s voluminous documents, submissions and conduct that she is prone to overstatement, conjecture, bold and uncorroborated assertions and that these attributes make her evidence unreliable and little weight should be given to it.
Symphony Homes assert that Ms Clarke’s experts’ reports should be given little weight to the extent that it asserts that Ms Clarke compromised Mr Sim’s report by altering it. It states that its own expert Mr Haskard, in a report dated 13 March 2012 supports its version of events. Mr Haskard, a qualified building contractor and building inspector inspected the dwelling on 4 May 2011 and 31 January 2012. Ms Clarke, Mr Conti, Symphony Homes’ solicitor and Mr Karrasch were present at the May 2011 inspection. Mr Karrasch was to provide his report and photos for the inspections but did not. Mr Conti and the solicitor were present at the January 2012 inspection.
Mr Karrasch was not present at the January 2012 inspection. Mr Haskard’s report addressed Mr Karrasch’s concerns and regularly states that Mr Karrasch failed to provide comment or photos of his concerns. Other defects are noted as completed. Mr Haskard’s first inspection post-dates practical completion by approximately two (2) years so it is not surprising that defects have been rectified.
Mr Haskard states that Ms Clarke’s plumber came to the dwelling while he was there and told him that there were no plumbing faults at that time.
Symphony Homes also asserts that the BSA report of 22 January 2009 is an independent report which is best positioned to guide the Tribunal in its decision making. It acknowledges that the report notes some minor defects and considers it supports its version of events.
Symphony Homes asserts that the “disorganization” claim is a claim not known at law.
Symphony Homes admits that Ms Clarke orally requested a variation for the cost of omitting tiles to the alfresco area which she elected to provide. It offers her an amount of $1,100.00. No detail of how this is calculated is provided.
On 2 May 2008 Symphony Homes responded to letters from Ms Clarke’s solicitors asserting that practical completion had not been reached on 14 April. It denied breaches of the contract. The letter refuted Ms Clarke’s experts claims that the external sheeting had been incorrectly installed claiming that only three defective joints were found out of more than one hundred and fifty which it deemed acceptable.
The letter stated that compacted fill had been placed on the right hand side of the dwelling and it was waiting for the ground to settle. It asserted that, as Ms Clarke was responsible for all landscaping and hardscaping works, that area was now her responsibility.
The letter asserts that the concrete driveway was constructed in accordance with a Brisbane City Council Footway Permit No. 0121105 which provided that the driveway could only be 3m wide and the hand drawn detail on the plan. Ms Clarke designed the driveway layout and was consulted prior to the driveway stencilling. She could not now complain about the driveway layout.
The letter asserts that the rear drainage takes water away. It states that Ms Clarke did not want to pay for fill to the site and therefore a cut and fill was agreed. The contour was done by Ms Clarke and her partner George Diggles a qualified Civil Engineer while the builder was present. All parties agreed that a 500mm cut and fill and the slab height was then determined from the plans. This choice and decision by Ms Clarke has resulted in the issues stated in Mr Sims’ report.
Symphony Homes state that the rear concrete slab falls away from the house to prevent ponding of water. Ms Clarke’s landscaping and fencing would need to take into account what was needed in this area.
The timber retaining wall erected on the boundary meets industry standards and was installed contrary to Symphony Homes’ recommendation.
The letter also discussed alleged omissions and deviations from the contract. It asserted that the first floor front stairway wall was discussed between the parties and Ms Clarke agreed with the outcome because of the incorrect design of Mr Diggles’ plans. Ms Clarke chose not to install a door from the main bedroom to the en-suite due to agreed design changes. Ms Clarke provided all of the door furniture and failed to provide a handle for this door. Symphony Homes is not responsible for the performance of items supplied by Ms Clarke.
The heated towel rail was not initially installed due to concerns relating to a potential conflict with the shower screen. It agreed to install the towel rail.
Ms Clarke changed the en-suite layout and selected a spa bath size which was different to the plan. A variation was raised for this work and has been paid.
Ms Clarke was on site and agreed to the walk in robe layouts which were built accordingly.
Ms Clarke met with the electrician and outlined all of the power points and lights to be installed.
Ms Clarke has never instructed whether she wanted tiles or glass to the kitchen splash back. When instructions are provided the splash back will be installed.
The tanks have passed all relevant plumbing inspections (on 27 February 2008) and have been approved. The lids were sealed at the time.
Ms Clarke advised on 14 November 2007 that the data cabling was not an issue and that her son would get them out of the walls.
The doors to the en-suite shaving cabinet do not hit any items.
Ms Clarke approved the kitchen design and supplied the dishwasher.
On 5 June 2008 Symphony Homes stated it was agreeable to the QBSA inspecting the dwelling but insisted that Ms Clarke complete the contract’s financial requirements before the QBSA assessment. The letter also alleged bias by Mr Karrasch and Mr Sim in their reports.
After further correspondence between the parties Symphony Homes wrote to Ms Clarke’s solicitors on 23 June 2008 listing four items agreed to exist and be rectified before Ms Clarke would be given possession of the property. The items included that: Ms Clarke supply tiles for the kitchen splashback; Ms Clarke advise whether she wanted a door installed between the main bedroom and the en-suite; whether Ms Clarke wanted additional smoke alarms fitted; and Ms Clarke was to supply a mirror for the downstairs bathroom.
A Peter Knight, a Structural Engineer inspected the dwelling on 20 June 2008 for Symphony Homes, particularly cracking in the slab and expansions joints in the kitchen/dining living room area. He noted that the slab cracking measured less than 1mm which would be defined as very slight under Australian Standard AS 2870 Residential Slabs and Footings Code. He opined that the cracking was due to shrinkage which was normal and did not affect the structural integrity of the slab. He was of the opinion that as the tiling had been laid with a flexible adhesive it did not need an expansion joint.
His overall opinion was that the issues raised were common in residential construction but have no bearing on the structural adequacy of the dwelling.
Symphony Homes include an email from Ms Clarke dated 8 May 2008 which contains unnecessary provocative and threatening statements such as “I am a bit older and wiser than you, and had a little more life experience, but if you want prove you can win at all costs then that’s fine, just warning you I can also put up a good fight if that’s what you want. And the media are really interested in this story … and believe me they have a lot of information on Symphony Homes already from other dissatisfied clients … you might have to go buy that violin …”
The Experts’ reports
Mr Karrasch first inspected the dwelling on 1 March 2008 (a cursory inspection) and then 31 March 2008 (report date 26 April 2008). Mr Karrasch’s first report not surprisingly found many alleged defects and building faults as the dwelling was still under construction when inspected and was never alleged as having reached the practical completion stage. His second report was written after an inspection on 13 May 2008. While observing builders faults and noting that he has used photographs supplied by the owner he makes no comments about speaking with the builder’s representatives he has made no attempt to verify allegations and get Symphony Homes’ side of the story.
In the summary of his 26 April report, Mr Karrasch states that there may be defects concealed by following trade work that have not been observed and that there has been a considerable diminution of the property’s value as a result of non-compliance in terms of the contract documents available for perusal. He does not state the basis for making this observation. These comments are surprising given that Mr Karrasch states that his report is based on a “cursory brief inspection”. As he provides no evidence of the property’s alleged fall in value his comments in that regard can be disregarded.
Mr Karrasch reinspected the dwelling on 13 May 2008 after Symphony Homes’ certification of practical completion but when work was apparently still ongoing. He opines that practical completion was precluded because of the substantial disturbance to occupants while the alleged defects were rectified.
Mr Karrasch states that the ceiling manhole location was impractical. The manhole is not shown on the plans. Mr Karrasch does not comment on any communications that may have occurred between the parties when the original position was decided upon.
Mr Karrasch notes that the vanity cupboard is defective in that it fouls the faucet. He does not comment on the fact that Ms Clarke designed the cupboards with her trusted cabinet maker and also selected the faucet involved.
Mr Karrasch notes the lack of provision for storm water discharge on the eastern side of the dwelling and the fact that Symphony Homes has begun to dig an ineffective trench on the neighbour’s property to reduce the depth of water but does not reference his comments to the building plans. He offers no solution for this problem. No reference is made to an email from a Mr George Diggles to Ms Clarke dated 4 February 2008 in which Mr Diggles alludes to the fact that the stormwater drainage was installed as required by Ms Clarke and this same drainage issue is mentioned together with proposed remedies. Ms Clarke was therefore aware of the drainage problem from at least this date and does not appear to have done anything to rectify it. One would also assume that Ms Clarke read Mr Karrasch’s report of this problem and it is surprising she did not clarify the issue and her intentions with him. Mr Karrasch does not appear to have been properly briefed by Ms Clarke on this problem.
Mr Karrasch states that security screens have not been installed to ground floor windows despite the fact that the contract documentation specifically excluding security screens.
Mr Karrasch requires a number of certificates for the work, some of which appear to be unnecessary. One is that the work is complete and ready for occupation. This could not have been a defect because the dwelling was still under construction when inspected. Another was a certificate stating that ponding of water adjacent to the footings outside bedroom 5 did not adversely affect the structurally affect the superstructure. He does not state how these certificates were to be obtained.
Mr Karrasch requires documentation prepared by a surveyor certifying that the building set out and elevation above natural ground level complied with the building approval. He does not reference this comment against the council approved plans provided by Ms Clarke which do not show floor levels. Another certificate required an authority to import fill while another required authority to excavate rock when there was no evidence rock was present on the site.
One area of importance for Mr Karrasch was what he called the defective a building set out. He notes that the main bedroom had not been set out in accordance with the approved construction drawings but does not state how this was defective. He also notes defects in the garage set out, a passageway was not set out correctly and the dining room had not been constructed to the required dimensions. No further explanation is provided. He appears to allege these defects were caused by inadequate supervision but does not discuss any other options such as incorrect plans and communications between Ms Clarke and Mr Conti.
Mr Karrasch adopts Ms Clarke’s list of instructions, defects, incomplete works and unauthorized variations without critically commenting on or examining them.
Mr Karrasch states his listed issues are not exhaustive and are typical of those existing in the dwelling and assumes Symphony Homes is fully conversant with the contract and applicable laws and regulations and could easily identify the issues and understand the listings making listing reasons unnecessary. Unfortunately the Tribunal does not have the benefit of Mr Karrasch’s oral evidence and subsequent cross examination and must read and consider his report accordingly.
Mr Sim inspected the dwelling on 21 April 2008 and 30 May 2008 for Ms Clarke. He noted that on his second inspection, some of the defects found in his first inspection had been rectified but some had not. As at 21 April 2008 his opinion was that the dwelling was at the “fixing stage” not practical completion. Mr Sim notes that no foundation data or engineer’s documents were provided to him. He does not say why he did not seek these from Ms Clarke given she provided the dwelling’s plans including the slab and footing details. Given that Ms Clarke commissioned his inspection and subsequent report one would expect that she would have provided these details for her expert.
Mr Sim notes what he calls defects and omissions with the dwelling. One is that there has been no satisfactory evidence that all relevant inspections had been carried out. An example is that an engineer’s certificate of the slab and footing inspection has not been obtained. He reports that there were deep excavations against the right hand side of the dwelling where the tanks had been installed. He reports that the excavations had been backfilled with loose material which was being washed away. He notes that the Inspection Notice dated 27 July 2007 allows the footings to be 1800mm deep and states that there is no evidence that the footings were further inspected.
Mr Sim also notes that the ground on the right hand side of the site (the eastern side) has been excavated so that water is trapped. He calls upon the building certifier not to issue a final certificate until a field gulley draining to the street has been installed. The plans show storm water drainage in that area leading to the street. Like Mr Karrasch, Mr Sim does not discus Mr Diggles’ email of 4 February 2008 in which he states that the stormwater drainage was installed as directed by Ms Clarke and offers the same field gully option as Mr Sim. Ms Clarke had apparently changed the stormwater drainage from that shown on the site earthworks plan. The site’s excavation is the result of prior communications between Ms Clarke and Symphony Homes. Unfortunately Mr Sim does not discuss these communications nor compare what he saw during his inspection with Ms Clarke’s building plans (including the drainage change) in order to assist the Tribunal in its determination of the applications.
Mr Sim calls for the demolition of the wet area floors and their reconstruction with a floor waste in accordance with Australian Standards. As the QBSA report highlights this is not a requirement for class 1 (residential) buildings.
A further defect listed is that there is no discharge from the drain in the alfresco area. This is inconsistent with Ms Clarke’s later inspections which showed drain discharge albeit shallow in this area. Mr Sim states that the alfresco slab area is below natural ground level and subject to flooding and the adjacent retaining wall has not been built on the alignment and is not properly drained. He also states that the boundary pegs are not in position. Mr Sim has not discussed any communications between Ms Clarke and Mr Conti nor referenced his comments against Ms Clarke’s building plans. No site plan showing the extent of the problem was included with the report which together with the fact that a swimming pool has been built by others makes it difficult to comment any further on this alleged defect.
Mr Sim comments that the stair layout was incorrect and goes on to provide stair measurements scaled from the plan without providing any sketch to assist the Tribunal. A properly prepared stair detail and cross section would have removed any doubt about the stair design.
Mr Sim states that the front wall to the stairwell on the first floor has been built 500mm closer to the front wall than the dimension shown on the floor plan. He calls this a potential problem due to the position of the stairs below and the related head room and recommends a sloping ceiling over the stairs to enable the walls to be constructed as per the plans. No sketch showing the problem is provided. It appears from Mr Sim’s comment that the wall was built in its present location to prevent a sloping ceiling but does not comment on any downsides to having a sloping floor in this part of the main bedroom. One would expect this issue to have been considered by Ms Clarke at the design stage and then discussed between the parties during the construction stage. Mr Sim did not explore these possibilities.
Mr Sim comments on the main bedroom en-suite layout stating it had not been constructed as per the plans provided. He correctly states the spa size was not shown on the plans but neglects to comment on the importance of that size to the correct setout of the room. He further states that Ms Clarke instructs that she provided the spa size to Symphony Homes but does not comment on her admission that the wrong dimension was provided.
Mr Sim states that some downlights in bedrooms 3 and 4 and the kitchen requested by Ms Clarke have not been installed but makes no reference to when they were requested or an electrical plan which showed the lights. If not shown on an electrical plan they would have been a variation for which nothing has been provided.
Mr Sim provides a further report dated 30 May 2008. There is no report of an inspection prior to the preparation of this report. In essence the report discusses Symphony Homes’ response to his earlier report. Of concern to the Tribunal is the repeated statement that he could not comment on whether the owner agreed or signed variation documents. One would have expected that he would have obtained detailed instructions from Ms Clarke before responding to the Symphony Homes letter.
Symphony Homes state that compacted fill had been placed on the right hand side of the dwelling. While agreeing that photos supplied to him appear to confirm this he still requires a field gully discharging to the street. If a field gully is required and one is not shown on the contract plans then the provision of one would be a variation payable by the owner, Ms Clarke. The fact that the dwelling is constructed on the right hand side alignment means that any possible drainage issues should have been considered at the design stage. No comment has been made as to whether this is a design fault or a construction fault making it difficult to comment further.
While he acknowledges the provided driveway is BCC compliant, Mr Sim provides alternative better driveway designs that he says will also comply with the BCC crossing permit. Symphony Homes allege that Ms Clarke designed the present driveway, while Ms Clarke states the opposite confusing the issue. A BCC permit compliant driveway is as much Ms Clarke’s responsibility as Symphony Homes as Ms Clarke designed the dwelling without any stated input from Symphony Homes. The present driveway was agreed to by Ms Clarke prior to its construction. Ms Clarke had the assistance of an engineer who prepared the plans and designed the concrete slab and footings and could have provided a better designed driveway. She should have ensured the driveway was suitable for her needs prior to agreeing to it. The presence of a better designed driveway does not warrant the replacement of an existing council compliant driveway with that new design. The Tribunal is not provided with any evidence of the compliance requirements of the standards referred to by Mr Sim so is unable to comment further on this issue.
Mr Sim states he cannot say whether a progress payment constitutes approval of work performed or deviations from the contract. A claim for a progress payment under the contract is the builder’s certification that the dwelling’s construction has reached that stage as defined under the contract. In architect designed and supervised homes the architect would compare the construction stage with the definition as a factual comparison. In HIA contracts such as the present case there is normally no such third party intervention and owners rely heavily on the builder’s honesty in this regard. Any discrepancy would result in a claim against withheld monies and damages if those monies are insufficient. However, the Tribunal may review these payments if asked and is provided with the required evidence. In these applications the issue is whether the dwelling reached the practical completion stage before or after 14 April 2008. The practical completion definition requires the dwelling to be in a habitable state. While occupation actually occurred on 25 July 2008 there is no evidence that it could not have occurred when the Supreme Court granted her access on or around 30 June. If completed earlier Ms Clarke could not have occupied it as she did not have possession.
Mr Sim states that the dwelling had not reached the practical completion stage when he inspected it.
Mr Sim’s reports appear to repeat Ms Clarke’s allegations without critically examining them. Symphony Homes allege his report is biased towards Ms Clarke. A problem with determining the applications on the papers is that the Tribunal is prevented from hearing the experts’ oral evidence and determining issues of credit.
Both reports would have been more helpful and relevant if done or updated when Ms Clarke took possession of the dwelling as they would have not only post-dated the Symphony Homes practical completion date but provided a definitive report on the dwelling’s condition prior to Ms Clarke engaging her own contractors to perform work. They do however indicate the state of the dwelling at the inspection dates.
Mr Haskard, a registered builder with twenty-five (25) years experience inspected the dwelling on 4 May 2011 and 31 January 2012 for Symphony Homes. Mr Karrasch was present during the first inspection but did not attend the second inspection. Mr Haskard’s inspections were to inspect and comment on Mr Karrasch’s report of 26 April 2008. Consistently throughout his report Mr Haskard states that Mr Karrasch did not comment on defects listed in his own report nor provide details of what he called “relevant criteria”. Mr Haskard also notes he was not provided with a set of the dwelling’s plans which is unusual as he was acting for Symphony Homes who possessed a copy of the plans.
Mr Haskard lists the items inspected and made comments on each item. He made no adverse comments with respect to many of the allegations. He agreed with some of the alleged defects and noted that with respect to some the builder offered to make good the defects.
Mr Haskard’s report appears to indicate that many of the alleged defects noted by Mr Karrasch had been rectified.
The QBSA inspected the dwelling on 21 January 2009 at the Tribunal’s request and a report dated 22 January 2009 was prepared by a Bob Clayton. As this report was prepared after the contract would have normally have finished and addresses the concerns of Mr Karrasch and Mr Sim the report’s comments and 22 January 2009 will be used as the relevant date and expert comment in determining these applications unless there is evidence which proves that a contrary approach should be taken.
A further difficulty for the Tribunal is that the QBSA inspection was carried out long after Ms Clarke took possession of the dwelling. The report details alleged defects but does not necessarily attempt to apportion responsibility for those defects. For example, in responding to item No 14 of the Karrasch report of 13 May 2008, the BSA report notes that cracking was evident to the four masonry support columns at the rear of the dwelling, that the cracking was minor and normally be attended to during the maintenance period and recommends that rectification works to ensure a satisfactory finish. The report does not however, discuss the fact that between approximately 22 July 2008 and 29 July 2008 Ms Clarke had her own workers doing floor finishes around these same columns and the possible consequences of that work. This is important given that a notation on one of the photos under the date of 18 August 2008 states that render splashes and concrete splashes were up these posts and the posts were cracked.
Throughout his report, Mr Clayton notes that Ms Clarke had engaged contractors at her expense to carry out rectification works making it difficult to determine why the work was done. He also notes that some of the defects would be rectified during the defects liability period.
After investigating Ms Clarke’s expert’s faults including the cracking of the slabs the report lists the defects which it says require rectification. Symphony Homes has agreed to undertake any repairs ordered by the Tribunal to the QBSA’s satisfaction.
Ms Clarke’s Claims
A declaration that she validly terminated the contract in February 2008 and that she is entitled to the use of the premises and rectification of the urgent defects by other trades persons
An application seeking confirmation of the purported termination of the contract was determined by the Commercial and Consumer Tribunal in Katherine Clarke v Joseph Conti t/a Symphony Homes Pty Ltd[2] where that tribunal ruled against Ms Clarke.
[2] [2008] CCT BD084-08.
Ms Clarke apparently lodged an appeal against the Tribunal’s decision (DC 1035/08) which was dismissed, apparently as part of the settlement of her Supreme Court claim.
The declaration sought by Ms Clarke would have had to be part of a decision of the District Court on appeal. The Commercial and Consumer Tribunal Act did not allow for a member to reopen a decision where an appeal was lodged.
Given the elapsed time period it appears that Ms Clarke has now exhausted her appeal rights in the higher Courts.
This Tribunal has no jurisdiction to make the declaration sought by Ms Clarke and the claim must fail.
A declaration that she does not have to pay the final contract price to reflect the actual reduced value of unauthorized deletions and variations and the cost of bringing the works to completion
There is no dispute that under the contract Ms Clarke must pay all monies due and payable to Symphony Homes after taking into account allowable variations and omissions. The Tribunal must assess each claim to determine the final amount payable. There is no evidence to suggest that Symphony Homes were not willing to complete the dwelling.
Ms Clarke obtained possession of the dwelling on 30 June 2008 and occupied it on 25 July 2008. Unfortunately there was no inspection of the dwelling at the time Ms Clarke took possession so there is no definitive report of the dwelling’s state at that time and as it appears from the material that her contractors performed work which did not form part of the contract it is difficult to say whether these contractors were finishing the house or further improving it. The available evidence is confusing as Symphony Homes say the practical completion stage had been reached while one of Ms Clarke’s experts states it had reached the sheeting stage only.
Having regard to all of the factors, the Tribunal finds that Ms Clarke must pay the amount of $5,000.00 legal costs to Symphony Homes.
Orders
Ms Clarke is to pay Symphony Homes Pty Ltd the amount of $104,212.41 calculated as follows:
Final payment: $51,837.20 Variation for water tank 1,230.00 Variation for sewer works 3,120.00 Variation for Alfresco Area 4,696.50 Variation for electrical works 5,118.00 Locksmith 338.30 Sub-total 66,340.20 Deductions Floor insulation 2,000.00 Spa bath 742.50 2,742.50 Total 63,597.70 Interest (56 months at 12%) 35,614.71 Costs 5,000.00 Total 104,212.41
Ms Clarke is to provide tiles of her choice to Symphony Homes for it to fix to the kitchen splash back.
Symphony Homes Pty Ltd is to make good the defects listed as being required to be rectified in the QBSA report other than the overflow relief gully being in the wrong position, obtaining an exemption to the BCC small lots code for the driveway and any associated works and installing control joints in the floor tiling.
All work is to be completed to the satisfaction of the QBSA prior to Ms Clarke paying any monies to Symphony Homes Pty Ltd.
Ms Clarke is to allow Symphony Homes Pty Ltd access to the dwelling to enable them to complete the works in these orders.
Failure to allow Symphony Homes access to the dwelling means that Ms Clarke is satisfied with and accepts the current workmanship in lieu of these orders.
If after being allowed access to the dwelling Symphony Homes Pty Ltd fails to complete the works by Symphony Homes Pty Ltd to the QBSA’s satisfaction, order 1 is vacated and the applications are to be referred back to the Tribunal for further orders.
Except to the extent stated above Ms Clarke’s claims against Symphony Homes Pty Ltd and Joseph Conti are dismissed.