Clarke v Cascade Pools (Qld) Pty Ltd
[2010] QCAT 323
•6 July 2010
CITATION: PARTIES: | Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Ms Katherine Clarke aka Marianne Morel |
| v | |
| Cascade Pools (Qld) Pty Ltd |
| APPLICATION NUMBER: | BD382-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 6 July 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS : | Swimming pool contract – exercise of discretion to consider late submissions where guillotine order – where decision on the papers because applicant unable to attend hearing – where no evidence of quantum – s61 QCAT Act |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
By contract dated 15 August 2007, Ms Clarke engaged Cascade Pools (Qld) Pty Ltd (“Cascade”) to construct a pool. On either party’s account, it was not a happy experience. Ms Clarke claims payment of money owing, relief from payment and damages for breach of contract. Cascade claims money due and owing pursuant to the contract.
Preliminary comments
This proceeding was brought in the name of Katherine Clarke. Cascade makes the point that much of the correspondence from the applicant is in the name of Marianne Morel. As Ms Clarke has pointed out, she is entitled to call herself whatever name suits her. The proviso is, however, that no person can adopt another name for a dishonest purpose. To avoid doubt, I find that Katherine Clarke is the same person as Marianne Morel, and that correspondence to Cascade from Marianne Morel is, in fact, correspondence from Ms Clarke. I also order, therefore, that this proceeding record both names.
The Queensland Civil and Administrative Tribunal Act (“QCAT Act”) intends that parties conduct their own proceedings in this tribunal. The Act also intends that proceedings in this tribunal are to be informal and that the tribunal is not bound by the rules of evidence. Further, the QCAT Act makes it clear that the tribunal has an inquisitorial function. For these reasons, no member expects a self-represented party to present a case in the same way as would be expected from a member of the legal profession. There are, however, limits. 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. Parties must take responsibility for the preparation of their own case.
In the many documents filed in this proceeding, neither party has provided the tribunal with a narrative of what actually occurred. Ms Clarke’s application filed 11 August 2009 is a series of dislocated and unreferenced dot points. It has been difficult to discern the true nature of the submission. In the absence of a language disability, and given the parties’ apparent facility in correspondence, the tribunal is entitled to expect submissions in complete sentences.
Both parties referred to documents that are not attached to statements, included documents without explanation and referred to observations, actions or comments by third parties without providing statements from those parties. Both parties have failed to include relevant documents in their material. Neither party to this dispute provided the tribunal will a full and complete copy of the contract, which is surprising, given that its terms are central to the dispute.
There are a number of iterations of Ms Clarke’s claim and they are difficult to reconcile. This decision is based upon the list of orders ought in Ms Clarke’s submissions filed on 3 June 2010.
Ms Clarke’s late submissions
The first thing I have to decide is whether to allow the further submissions filed by Ms Clarke on 23 June 2010. On 21 May 2010, a Senior Member of this tribunal ordered Ms Clarke to file and serve any further material evidence and submissions by 3 June 2010. The Senior Member further ordered that, if Ms Clarke’s submissions were not filed by 3 June 2010, her application would be dismissed without further notice. Ms Clarke did file submissions within time but, as I have noted, also filed further submissions in reply to Cascade’s submissions.
Cascade submits that these additional submissions should not be accepted by the tribunal as submissions in reply were not part of the order of 21 May, and they have been filed out of time.
Section 61 of the Queensland Civil and Administrative Tribunal Act (“QCAT Act”) allows the tribunal to extend times and waive compliance with procedural requirements unless doing so would cause prejudice or detriment that cannot be remedied by an order for costs or damages. Cascade has not claimed that it has suffered any prejudice because of the further submissions. It has not commented on new material filed. I consider that Cascade may suffer prejudice if the tribunal considers new factual material from Ms Clarke without Cascade having the opportunity to comment upon it.
10. One of the options open to me is to adjourn the decision to enable Cascade to reply to the material. However, I am mindful that this dispute has been on foot for some time, Guillotine orders – those orders where a party’s claim is dismissed through failure to comply with a step without further reference to the tribunal – are not lightly made. Clearly the Senior Member was concerned that Ms Clarke prosecute her claim with some diligence. The history of file is as follows:
a)On 7 October 2009, the Commercial and Consumer Tribunal ordered that Ms Clarke file and serve her material by 23 November 2009. She complied with that order.
b)At a callover on 17 February 2010, this proceeding was set down for a compulsory conference on 4 May 2010. Both parties applied to re-schedule the conference due to ill-health.
c)On 30 April 2010, the order for a compulsory conference was vacated. Apparently, Ms Clarke was unable to attend a conference even though it was scheduled to occur at her home. This tribunal ordered Ms Clarke to file and serve any further material by 14 May 2010.
d)On 13 May 2010, Ms Clarke asked for an extension until 21 May 2010. On 20 May 2010, she asked for an extension to 4 June 2010. In support of the second application, Ms Clarke submitted a medical certificate stating she would be unfit for work for a period of 10 weeks. That certificate does not sit well with a request for an extension of only two weeks.
11. Ms Clarke has advanced no reason why the factual material contained in her most recent submissions could not have been obtained at an earlier date. Therefore, I do not think she should be granted a further indulgence in relation to the presentation of additional material. I will not allow, nor have regard to, the additional material filed by Ms Clarke.
Claim for refund of $3371.74 overcharged
12. On 26 November 2007, Cascade issued a variation for $3,650.00. The variation related to “extra reinforcing/extra width coping of pool.” The parties agree that the variation was negotiated down to $3371.74 and paid.
13. Ms Clarke says that she paid the variation under duress because, unless she paid it, Cascade would not complete the construction of the pool. Clarke points to a series of emails between the parties in support of her claim. In its letter of 3 December 2007, Cascade says, in the final paragraph, “If this variation is not signed and money paid, I will not proceed with the construction of the pool.”
14. As the Court of Appeal pointed out in Mitchell –v- Pacific Dawn Pty Ltd[1], “in several cases the threat to break an existing contract between the parties has been held to be unlawful and such as to amount to economic duress”. That does not mean that it will be so in every case. Courts tend to look at the nature of the pressure and the nature of the demand.
[1] [2006] QSC 198 at paragraph [25]
15. Clause 16.1(b) of the contract provides that a builder may suspend works if the owner fails to pay progress payments. Clause 16.1(d) of the contract provides that a builder may suspend performance of the work if the owner unreasonably fails to consent to any variation or fails to sign a variation document provided. I interpret Cascade’s letter of 3 December as an imperfect, but effective, notice under the contract that it would suspend works if the variation was not paid. In those circumstances, Ms Clarke’s action in signing and paying the variation cannot amount to duress. The real question is whether Cascade was entitled to charge the variation.
16. There are two parts to this variation. One element in the variation is the extension of the coping on one side of the pool. Ms Clarke says:
a)She always intended for the pool to “be 300mm on the left side and 1200 mm on the right side” and the sales person drew it up incorrectly.
b)The salesperson’s mistake was noticed when variation 1 was signed and corrected by that variation, making the pool smaller so there was room on the right hand side to put furniture.
c)The excavation was dug with reference to the salesperson’s incorrect plans, not the updated variation. Variation 1, which deals with the reduction in pool size, is silent in relation to the coping.
17. There is a hand drawn plan attached to the contract which does tend to show the pool offset to the left with a wider coping on the right had side. This plan has a number of changes marked and it is difficult to discern what final layout was intended. In her statement of 20 November 2009, Ms Clarke attaches a copy of the approved plans as evidence of what the true position should have been.
18. The approved plans show a constant size coping around the entire perimeter, with the pool slightly offset to the left. They are quite different from the plans accompanying the contract. The approved plans, in fact, support Cascade’s contention that a variation was required. I accept that submission.
19. The other aspect of the variation was to rectify a cave in of the pool wall caused by heavy rain after excavation and before concreting.
20. Ms Clarke says that the delay between digging, forming and concreting the pool was Cascade’s fault because it was too busy at the time. Cascade says the delay was Ms Clarke’s fault because she could not decide what coping tiles she wanted.
21. Cascade says that:
a)It excavated the pool site on 26 October 2007 but the pool could not be formed until Ms Clarke advised what size coping she wanted.
b)The pool was re-excavated on 1 November as it had collapsed due to heavy rain.
c)On 2 November 2007, Ms Clarke advised that she wanted 450 mm coping. Cascade installed formwork and reinforcing accordingly.
d)On 5 November 2007, the steel worker was asked to stop work because the siting of the pool was wrong.
e)On 6 November 2007 the steel work was completed.
f)On 7 November 2007, the steel work was inspected and passed.
g)On 8 November 2007, the pool caved in because of heavy rain overnight.
22. Ms Clarke says that:
a)The failure to form up the pool was because of Cascade’s delay and that Cascade had admitted to Ms Clarke’s builder that it had too much work.
b)The concrete should have been poured on 3 November 2007, that the pour was booked for this date and that all issues about the pool had been resolved that morning.
23. It is difficult to determine whose version of events is to be preferred as both sides’ stories have internal inconsistencies. Neither party has produced any independent evidence. The steel worker has not provided a statement, nor has the builder to whom Ms Clarke refers. It’s probable that both parties were the cause of some of the delay.
24. Ms Clarke does not dispute Cascade’s assertion that the steel worker was stopped from completing his work on 2 November 2007. She says that the dispute was resolved by 3 November 2007 and that the pour could have taken place that afternoon. Critically, however, she does not dispute Cascade’s assertion that the steel work was not inspected and passed until 7 November 2007. If I accept that assertion, the earliest the concrete could have been poured was 7 November 2007. I do not accept that the delays between agreement being reached on 2 November 2007 and inspection of the finished steel work on 7 November 2002, or between that approval and planned concreting the next day to be unreasonable. Once I make that finding, any delay up to that point is irrelevant.
25. I find that the additional work occasioned by the collapse of the wall was necessary because of the intervening rain and could not have reasonably been avoided.
26. I note Mr Diggles’ statement that he did not think any extra reinforcing was delivered to the block or that extra concrete was required. The details of the variation are contained in Cascade’s invoice of 3 December 2007. It notes that Ms Clarke was charged for only 3 metres of additional concrete; the balance related to plant hire and labour. In a letter of the same date, Cascade says that it was entitled to charge an additional 13 metres of concrete but chose not to do so. I accept that Mr Diggles honestly holds his belief but there is agreement that extra concrete was involved (in concreting up to the fence) and any additional reinforcing may not have been visible to the casual observer.
27. Cascade is entitled to payment of the variation. There is no reason to set it aside.
Claim for liquidated damages for delay
28. The contract provided for a construction period of 61 days. Ms Clarke has calculated that the work should have been completed on 13 December 2007. She says that, because there has been no final handover, the work is still not complete.
29. Cascade says that part of the delay was due to inclement weather. Inclement weather is a legitimate reason for extensions of time and both parties agree there was some rain during the period of the works.
30. Cascade points to other delays out of its control, one of which is that tiles were not available. Ms Clarke concedes that the tiles were not ordered until just before Christmas. She says that the delay was a result of the dispute about the size of the coping tile, with Mr Dufty of Cascade trying to persuade Ms Clarke to change the coping tile. As I have mentioned before, the evidence about this period is confusing and no clear picture emerges. Ms Clarke does not dispute Cascade’s assertion that the tiles were not available for collection until early February 2008. Therefore, the time for completion must be extended to some reasonable time after February 2008.
31. Cascade also points to the failure to install boundary and pool fencing. Cascade says:
a)It is prohibited from finishing and filling a pool until the pool fencing has been installed and passed.
b)Under the contract, the pool fencing is the responsibility of the owner.
c)The boundary fence was installed on 3 April 2008 but the pool fencing was not installed because additional tiling, to be carried out by Ms Clarke’s house builder, had not been completed.
d)The pool fence was inspected on 1 October 2008 but it failed the inspection.
32. Ms Clarke says:
a)The permanent pool fencing was booked for installation a number of times in January and February 2008 but cancelled because the pool was not finished.
b)Installing the pool fencing was not contingent upon completion of the house.
c)The permanent fencing could not be installed until the tile band was completed. This was a problem caused by Cascade’s decision to raise the height of the pool by 100 mm. Ms Clarke says that this meant the tiling had to be redone as she was not able to line up the patio tiling.
d)Eventually, she decided to call for the permanent fencing when the pool was finished but, as at November 2008, the pool didn’t even have water in it.
33. In her submissions, Ms Clarke concedes that the installation of permanent fencing is her obligation, could not occur until the patio tiling was complete and that the pool would not be filled until the fencing was in place.
34. Even if I accept that Cascade’s tiling was faulty, and this prevented completion of the tiling and, therefore, the installation of the fencing, the delay is not all the fault of Cascade. Ms Clarke has submitted a quote for re-tiling dated 21 April 2008. The work was completed in July, as is clear from an invoice dated 1 August 2008. A delay of four months between quote and execution of the work cannot be attributed to Cascade. Any delay between completion of the work in July and the inspection in October is, likewise, delay not attributable to Cascade.
35. I reject any claim for damages for delay.
36. The copy of the contract on the tribunal’s file has the liquidated damages section of the schedule obscured. I surmise from Ms Clarke’s submission that the amount inserted in that section was $1 per day. She claims that amount is not a proper reflection of the loss occasioned by delay but does not provide any alternative means by which that loss can be calculated. For example, it would have assisted the tribunal if Ms Clarke had provided copies of receipts for membership to a swimming club of other water-based health facility. In the absence of such assistance, if I had been minded to award damages for delay, they would have been fixed at $1 per day.
Claim for payment for final inspection and certification
37. It is common ground that the pool did not pass its first inspection. Cascade says the contract provides that it will pay for one inspection. Clause 17.12 of the contract provides that final approval by the local authority is the responsibility of the owner (Ms Clarke).
38. In a letter of 11 April 2009, Ms Clarke complains that Cascade booked the appointment for the final inspection and should not have done so unless it was confident that the pool fence would pass. The pool fencing was not supplied or installed by Cascade. It is difficult to see how it could be responsible for the failure of the fence on inspection.
39. The re-inspection fee is quoted as $110. There is no evidence that this amount has been paid. Ms Clarke has not, for example, produced a receipt.
40. There is some suggestion in Ms Clarke’s material that she is also claiming damages for the failure to provide a proper handover.
41. Cascade says it provided a handover to Ms Clarke’s son on 7 October 2008. It has provided a statement to that effect from Mr Barry. Ms Clarke says that :
a)Her son was not present for a handover. Mr Barry arrived as her son was leaving.
b)There could not have been a handover because when she came home, there were pieces of pool equipment scattered around he pool.
c)Her son had no authority to accept a handover on her behalf.
d)No one made an appointment with her to conduct the handover.
e)She has not received any warranties or final certificates.
f)She has not been shown how to operate the pool properly.
42. Unhelpfully, there is no statement from Ms Clarke’s son as to what occurred.
43. Even if I found in Ms Clarke’s favour, I have nothing to guide me as to what might be fair compensation for the failure to provide a handover. She has not asked for the handover to be conducted now – almost two years after the purported handover. Ms Clarke complains about a missing steel brush that she had to replace but she does not provide a copy of a receipt for that item. I am unable to make any order for compensation.
Claim for replacement of remote control system
44. There is no dispute that a remote controller was provided to Ms Clarke. Ms Clarke says, and Cascade does not dispute, that the remote controller is not big enough to handle all the applications. Cascade says it was provided as a gift, as neither the quote nor the contract refers to the provision of a remote control.
45. Ms Clarke asserts that the provision of a remote control was detailed in the specifications. In the statement filed 20 November 2009, Ms Clarke says that she provided a copy of her requirements to Cascade’s salesman at the time. A copy of the specifications is Exhibit KCC2. That document states “Remote control for spa, swimjets and lights – large not small”. The document is not signed by either party.
46. The tribunal has a copy of Cascade’s quotation of 21 November 2006. “4 stage remote + 250” is written into that quote in a different hand. Those words do not appear in the copy of the quote included with Ms Clarke’s original application. The quote was for $32,800. The eventual contract price was $31,860. I can only conclude that the additional words were added after the contract was entered into.
47. There are two sections of the contract where you might expect to find reference to a remote controller. Item 23 “Other Equipment or Accessories” is blank. Item 28 – “Other Items” refers to two months’ safety fence. It does not refer to a remote controller although many other items in Ms Clarke’s specifications are specifically referred to in the contract. That the remote controller is not referred to leads me to the conclusion that its provision was not included in the contract price, particularly as the agreed price was less than the quoted price, excluding the remote.
48. Ms Clarke states that, in previous pool contracts, a remote control was a standard requirement. She exhibits a copy of a previous contract. The provision of a remote control is clearly stated in that contract. In view of the terms of the actual contract which is in dispute, this evidence is of no assistance.
49. Ms Clarke also refers to KCC3. That is a contract information statement. Ms Clarke’s material includes note: “I refer to many other items in this Contract booklet which sets out the contract rules that have not been adhered to. These are marked within the booklet itself.” When the tribunal looks at the booklet, the only assistance given is that certain items are underlined and marked with an asterisk. There are two problems with this approach. Firstly, the “booklet” is a commentary, not the contract. Secondly, simply pointing out the issues that may be relevant, without applying them to the facts and showing the tribunal how they apply, is of no assistance.
50. I find that Cascade was under no obligation to provide a remote controller. Therefore, it is under no obligation to replace it. I disallow this claim.
Compensation for pool not being operational due to rain “flowing dirt into the pool”
51. Ms Clarke has provided a number of photos that show the pool water discoloured and dirty. It is accepted that the cause of the discolouration is suspended solids in rainwater overflow draining into the pool.
52. Cascade says that:
a)The pool is approximately 600 mm below the ground level of the surrounding properties. Ms Clarke’s photos show that the pool is surrounded on three sides by sleeper walls of about that height.
b)When there is heavy rain, water and mud run through the retaining walls and pollute the pool.
c)The problem could be fixed by replacing the sleeper walls with waterproof masonry walls. This solution was suggested to, and rejected by, Ms Clarke at the time of construction.
d)The pool was raised 100 mm at Cascade’s suggestion. If it had been constructed at the original level, the problem would have been even worse.
53. Ms Clarke agrees that the wash comes from the higher ground of surrounding properties. She says that:
a)The pool was built 100 mm too high; this caused “aggravation with the house builder which escalated this whole case to where it presently sits…”
b)The yard was excavated by the builder (It is not clear whether she is referring to the pool builder or the house builder), that excavation was not her decision and it “was clearly on the plans and set by the Engineer/Certifier.”
54. The approved plans show the pool sitting on top of a 500 mm high existing retaining wall. That retaining wall is not referred to in any of the evidence and I cannot see it in any of the pictures. It is counterintuitive to build a pool fence 100 mm too high, on top of an existing retaining wall and still have a retaining wall above the surface of the pool. Whether or not the pool was built at the correct level, given the levels of the surrounding properties and the finished level of the pool seepage from higher surrounding properties was always going to be a problem.
55. Ms Clarke did not file any material in time that satisfactorily addressed these difficulties and Cascade’s assertion that it could have been avoided. I therefore accept that Cascade recommended a masonry wall and that Ms Clarke rejected this suggestion. Any loss or damage occasioned by seepage is, therefore, to Ms Clarke’s account.
56. If I was minded to award damages, the quantum would be problematic. Ms Clarke has provide dates on which the pool was unusable and some information about the cost of chemicals but there are no receipts, not all chemicals used are costed nor is the tribunal given details of the amount of additional chemicals used. Ms Clarke has provided water and sewerage accounts but, again, Ms Clarke does not provide details of how the claim for excess water should be calculated. It is not the job of the tribunal to guess.
Spa jets not working
57. Ms Clarke says that the back jets in the spa have never worked. She wants them fixed and compensation for the fact that they have never worked.
58. Cascade says that it has never been asked to fix these jets and that they were operating correctly on handover. Cascade points out that it was asked to attend site on numerous occasions to fix other problems but that the issue of the jets was never raised.
59. I have considered Ms Clarke’s material in detail. She has provided many copies of emails between the parties. The first reference to inoperative jets was in her submission filed 3 June 2010. Neither in that document, nor her statement filed 20 November 2009 does she ever assert that she told Cascade there was a problem with the jets. I do not accept this claim.
Heating unit not working
60. Ms Clarke says that the heating unit worked for six weeks then failed. She says it was not working throughout winter 2009.
61. There is a lot of correspondence between the parties about this issue. Ms Clarke has also included copies of her emails to Hurlcon, the manufacturer of the heating equipment. Unfortunately, she has not provided a copy of any response from that company. The only way the tribunal can discern Hurlcon’s view of the problem is by reading Ms Clarke’s responses. This is not ideal.
62. Cascade says:
a)On the numerous occasions it returned to look at the heating, the controller had been tampered with.
b)When Hurlcon attended (at Ms Clarke’s request) the heating was operating normally.
c)The Electrical Safety Board established that the heater sometimes failed due to earth leakage because the heater had been wired incorrectly through the safety switch. Hurlcon then re-wired the heater correctly.
63. Item 22 of the contract provides that connections for electrical equipment are to be arranged by the owner. That Ms Clarke accepts this obligation is implicit in her letter to Hurlcon of 29 June 2009 in which she says “I have had an electrician check out the power side of things at the box and he tells me…All the required power requirements discussed before installation has been supplied”.
64. There is a handwritten note in the material that “John” from Poolwerx turned up and fixed the pool heater by removing the safety switch. The handwritten note goes further and refers to a comment by John that the Hurlcon installation manual is wrong and needs to be updated to remove the requirement that the heater be routed through the safety switch. Unfortunately, Ms Clarke has not submitted a copy of the Hurlcon manual, nor has she submitted a statement from “John”. There is no suggestion from Ms Clarke that Cascade knew the Hurlcon manual was wrong or that it relied upon it to advise Ms Clarke of the electrical connection requirements. In the absence of these vital elements, I am unable to find in Ms Clarke’s favour.
65. The heater has been fixed. I was given no guidance as to how Ms Clarke quantified her claim for damages. I disallow the claim.
66. Ms Clarke has been charged a $158.40 callout fee. By invoice dated 13 March 2009, Cascade passed on an invoice from Specialised Refrigeration. There is no direct explanation from Cascade as to why this invoice has been on-charged, although I note it asserts that Ms Clarke was calling in a technician without reference to either Cascade or Hurlcon. Conversely, in her letter of 11 April 2009, Ms Clarke tells Cascade that the first thing she knew about a refrigeration company being involved was when the technician arrived. I accept this evidence and allow this part of Ms Clarke’s claim.
Pool pebbles are the wrong colour
67. Ms Clarke says that the mix was supposed to be 80/20 black and white but Cascade pebbled the other way around. Cascade says it pebbled the pool in accordance with the contract. The contract provides for “salt and pepper with extra black”.
68. The specifications nominate a pebble colour of “salt and pepper with extra black 80/20mix approx”. If the specifications formed part of the contract, and I have found that they do not, then a reasonable interpretation of the requirement is 80 percent white and 20 percent black, given the juxtaposition of “salt” (white) and “pepper” (black). That understanding is echoed in the way the contract is written.
69. I am satisfied that Cascade has installed the pebble coating in accordance with the contract.
70. Ms Clarke raised this issue for the first time in her material filed 20 November 2009. She did not raise this issue in any of the extensive correspondence between the parties, nor is it referred to in her initial claim.
71. There is a note in her submission filed 3 June 2010 that, on 3 October 2008, Ms Clarke told the pool pebblers that it was the wrong colour but she has not provided a statement to that effect, either in her own statement or one from the pebble installer. Given her comprehensive complaints about other matters, I do not accept that she complained to the installers but not Cascade. I do not accept the assertion.
72. Ms Clarke has not provided the tribunal with any guidance as to what would be required to correct this problem or the cost of that step. Again, even if I was inclined to find in Ms Clarke’s favour, there is no material that would enable a tribunal to form a view as to the appropriate amount of compensation.
Credit for pool tiles supplied
73. Ms Clarke’s submission is in the following terms “coping $13 per sq m allowed $1117.50 why? 450 mm tiles advised this size right from the beginning as had these tiles chosen and ordered early on – Allowance was $1250 + $310. – seeking back + 15% margin on tiles which he didn’t supply – didn’t give this back.”
74. In her application, Ms Clarke refers to a credit on 13 February 2008 for $1117.50. She does not provide a copy of that document but says “didn’t give back 15% margin charged – charged me for more concrete – his blunder in not concreting within a short time frame after forming”.
75. Cascade agrees that it gave Ms Clarke a credit of $1117.50
76. I take Ms Clarke’s submissions to mean that Cascade gave Ms Clarke a credit of $1117.50 but she wants a credit of a further 15%.
77. If the claim is for a refund of the builder’s margin, then there is no basis for the claim. The rates are set out in the contract - item 7 of the contract provides an allowance for pool coping at $13/metre and tiles at $40/metre2. Cascade is entitled to charge for the laying of those tiles and a reasonable profit. The builder’s margin is normally an agreed rate for profit. There is no justification for Ms Clarke receiving a credit for the builder’s margin.
78. If the claim is for something else then I have no way of ascertaining what the claim is or the basis for the calculation. The onus to prove an entitlement for an additional credit lies with Ms Clarke. She has not discharged that onus. I do not allow this claim.
Cascade claimed monies ahead of being due
79. Ms Clarke’s submissions state “claimed monies ahead of being due 23.1.08, 25.2.08, 12.6.08 – (filtration equipment delivered after being requested no to until side fences of property up, then charged $4779.00 although by then picked these up again and not on property”
80. The only evidence from Ms Clarke that even remotely relates to this claim is an invoice for temporary fencing dated 23 January 2008, being one of the date referred to by Ms Clarke.
81. Cascade says that the payments were not claimed ahead of time. Once again, the onus lies with Ms Clarke. She has not articulated the claim in any logical way and not discharged the onus. I do not allow the claim.
Datum point for the pool was wrong
82. Item 2 of the contract provides that the datum point is “same as patio concrete”. To the extent that they are relevant, the specifications provide for “pool to flow directly to house – all one level to patio tiles”.
83. The parties agree that the house builder gave Cascade an RL point from which to work. Cascade says that it was concerned about this level; it was very low and the pool would have been a sump for the yard. It says that, after discussion with Ms Clarke, the datum point was raised 100 mm.
84. In her letter to Cascade of 4 December 2007, Ms Clarke:
a)Agrees that there was a discussion about raising the pool but she says the discussion was necessary because Cascade dug the pool at the wrong height.
b)Concedes that she agreed to the change in the datum point but says that this change has cost her more in the house building work. She says that:
i) The change in the datum point meant that the house builder would impose a variation.
ii) The house builder would have to do the tiling, not her own, cheaper, tiler.
iii) There is a slope in the ground that she was not happy about.
iv) (the area?) needs a spoon drain right across it.
85. As to the additional costs, Ms Clarke has provided the following:
a)A quotation from N Kennedy dated 21 April 2008 for $2,612.50 for re-tiling the pool area, repairing concrete, rendering concrete and removing tiles.
b)An invoice dated 30 July 2008 for $611.16 for “further tiles needed when existing tiles had to be ripped up.”
c)An invoice from BK & GD Leech dated 1 August 2008 for $4,139.00. That invoice refers to removing tiles from the edge of the pool, rendering the pool area and re-tiling the pool area.
d)An invoice from N Kennedy dated 1 August 2008 for $4,139.00. That invoice details the same work as the invoice from Leech.
e)A variation from Paul Straka Pty Ltd dated 10 July 2008 that shows a variation “slab heights - lower living area now to be 200 mm above garage floor height”.
f)An invoice from Andersons dated 1 August 2008 for $185.90.
86. The invoices from Leech and Kennedy have a hand written notation that they have been paid – on different dates.
87. I note that clause 10(b) (iv) of the contract allows a variation in the datum point of up to 70mm above the agreed height. In fact, without the agreed variation to the height, the actual height is “unacceptable” only to the extent of 30 mm.
88. I have already commented that the evidence in relation to the finished level of the pool is somewhat confusing but the photos do show a shallow step between the pool and the patio at the location of the pool fence.
89. I accept that the change in the datum point may have caused Ms Clarke some additional costs in her house project. There is no evidence that the house builder imposed a variation to Ms Clarke’s detriment. There is no evidence that the house builder completed the tiling rather than Ms Clarke’s own, cheaper, tiler.
90. There is evidence that the tiler had to accommodate different levels between the patio and the pool. It seems that this problem was addressed by rendering the patio. Nobody has explained why the pool tiling needed to be redone and nobody has dissected the various invoices to assign a value to only that work that was required by the change in the datum point. It is something less that $2,612.50 but I have no information as to the precise sum. The fact that there are two identical invoices from two different tilers only serves to complicate matters.
91. Once again, the onus lies with Ms Clarke and she has failed to discharge it. I do not allow the claim.
92. Ms Clarke claims that she cannot fit a table where “it was allowed to go (and it will not go anywhere else).” She also says that the table is warped and ruined. I have no information about he cost of the table. I do not allow the claim.
93. Ms Clarke also says she has a 50 mm step that was unplanned and unwanted. She says that it changes the whole perspective and makes it difficult to move sunloungers and other furniture around. Once again, Ms Clarke has not provided any assistance as to how the tribunal might compensate her for this.
Kreepy Krauly keeps stopping
94. Ms Clarke says that the Kreepy Krauly catches on the rough edges of the pool returns and a broken cover which keeps coming off. She claims $300 for three worn pads at $100 each and “another part” at $30.00.
95. Cascade says that Ms Clarke should direct any problems to the supplier and that wearing components are consumables.
96. If the Kreepy Krauly is catching on a rough surface, a referral to the supplier will not assist. That is a problem for Cascade. I am also not convinced that three worn pads in two years is reasonable wear and tear. However, once again, Ms Clarke has not assisted her claim by providing copies of invoices. Certainly, the tribunal cannot allow a claim for “a part”. I do not allow the claim.
Pool not the right depth
97. Ms Clarke says that the pool is “not right”, that it was supposed to be 1.3 x 2 metres deep and it’s “NOT”. Ms Clarke does not articulate why the depth is not right but I suspect that she thinks it is too deep from these comments: “Bench is not right depth from surface of water, so can’t sit on it – steps are too deep between steps”.
98. Cascade says that the water depth is measured from the water line at the middle of the mouth of the skimmer box, not the top of the coping.
99. Item 1 of the contract provides that the pool will be 2 metres at its deepest point and 1.3 metres at the shallowest point. Clause 10.2(b)(i) of the contract provides that an acceptable pool depth can be +10% or -5% of the agreed water depth. The approved plans show three points at which the depth is nominated. Ms Clarke has not provided any detail of the actual depth at these points.
The depth adjacent to the steps is shown on the plan at 1.1 metres. The plan shows three steps. Presumably, the height of the steps was determined by the depth of the pool at this point plus the distance to the top of the coping. There are no details, either on the specifications, approved plans or the hand drawn plans that accompany the contract, as to the depth of the bench.
Once again, Ms Clarke has not provided sufficient information to prove her claim or to quantify any loss that she has suffered. I do not allow the claim.
Dirt from excavation of site not removed from the block
Ms Clarke has provided a copy of an invoice in the sum of $1,177.00 for the removal of soil left on the adjacent block. Cascade says:
a)It did place soil on the adjacent block at the request of the house builder, Mr Conti. That soil was levelled and compacted.
b)The soil Ms Clarke now complains about was deposited as a result of a separate contract to install a water tank on that block.
In her statement filed 20 November 2009, Ms Clarke says that the soil was never levelled by Cascade but only recently levelled by the owner, who had threatened to sue for illegal dumping. There is no statement from the owner of the land to support this assertion.
In a letter dated 17 April 2009, Ms Clarke says this:
a)“I will also be lodging another claim …in your leaving dirt on site when excavating for the tank which I then had to pay YET ANOTHER variation payment with the house builder to remove same…”
b)“The fact that you also had the cheek to write a clause in the contract for the tank very connivingly for the dirt to be left on site….This result was a Variation from the builder of $1177.00 and I will now be claiming this amount back from you for its removal.”
The letter of 17 April 2009 refers to a letter from Paul Straka complaining about the situation but that letter is not before the tribunal.
Ms Clarke’s contemporaneous evidence confirms Cascade’s version of events.
This claim does not relate to this contract and the terms of the “tank” contract are not in evidence. Ms Clarke has not proved her claim. I do not allow it.
Removal of pool tiles
Ms Clarke says that the pool tiles needed to be removed and tiled properly as “all wrong”. She refers to the invoices for tiling as support for her claim.
I have already commented that Ms Clarke has not provided details of the way in which the tiling was “all wrong”. Cascade says that the change in tiles was as a result of Ms Clarke’s desire to use different tiles. At least that explanation makes sense.
Ms Clarke has not provided any evidence of the need to replace the tiles and, as I have already commented, the documents relating to the quantum of the claim do not allow the tribunal to form a view as to what is appropriate.
Relief from charges for temporary fencing
Item 28 of the contract states “2 months safety fencing inc”. According to Ms Clarke’s material, Cascade rendered eight invoices totalling $1,875.00 for additional fencing hire from 11 January 2008 to 25 August 2008.
Temporary fencing was required until the permanent fencing was installed. I have already determined that the need temporary fencing was within Ms Clarke’s control.
Ms Clarke also alleges, without foundation, that most pool builders own their own temporary fencing so why should she be required to pay for it. There are two answers to this suggestion. Firstly, Cascade says that it does not own the temporary fencing and that it hired it from Temporary Fence Hire Pty Ltd. I note that there are no supporting documents but the onus is on Ms Clarke. Secondly, even if Cascade owned the temporary fencing, it was entitled to charge for the extra time that it remained on site.
Invoices wrongly costed to the job
SC Concrete Specialists $2,398.00:
a)Ms Clarke says the address on the invoice is Wright St so it cannot refer to her job. She also says that the handwriting on the invoice is Mr Dufty’s. Mr Dufty denies that it is his handwriting. It is true that the invoice refers to Wright St but this is an understandable mistake.
b)Corey Mosley’s invoice does not include GST. Cascade says that Mr Mosley is not registered for GST. That is a reasonable explanation. I am not sure what point Ms Clarke is making in any event. If GST was added, that would increase the amount of the invoice.
c)Ms Clarke says that the concrete account from “Eagners” has an amount of $805.00 and $4,781.70. Cascade points out that the first page is a sub-total and the second page is the final figure. “Subtotal” is legible at the bottom of the first page. There is nothing in Ms Clarke’s submission.
d)The invoice from Carey’s Plant Hire is dated 11.1.2007 so cannot refer to her job. Cascade points out that only $240.00 was on-charged to Ms Clarke as a variation. An examination of the whole invoice shows that Carey’s Plant Hire adopts the American style of date - mm/dd/yyyy - as there cannot otherwise be a date of 10/22/2007. There is nothing in Ms Clarke’s submission.
e)As to Mick’s Backhire, Ms Clarke says the reference is to 121 White St and the amount is unreadable so it cannot refer to her job. Cascade explains the invoice as being part of the work required to address the cave in. The variation was presented to Ms Clarke in November 2007. Ms Clarke has had ample opportunity to obtain a legible copy of the invoice or to query its relevance. She wrote a number of letters to Cascade about the variation but did not question the invoice. Mr Diggles provided a statement in which he questions the amount of reinforcement and concrete, and the liability for the cost of the works, but not the need for excavation. There is nothing in Ms Clarke’s submission.
Insufficient reduction in price for variation in pool length
Variation 1 dated 3 September 2007 records a reduction in the pool from 8.5 metres to 8 metres and gives a credit of $880. Ms Clarke says this is not enough. She does not assist the tribunal by saying why it is not enough or what other figure may be appropriate.
Item 9 of the contract provides that extra pool walls will be charged at $100 per linear metre and additional pool flooring at $60 per square metre. If I apply those rates to the reduced size, the credit should be:
Original size 8.5 x 5 Agreed variation 8 x 5 Variation 42.5 square metres 40 square metres $150 (2.5m x $60) 27 linear metres 26 linear metres $100 (1m x $100) $250.00
Cascade says that it actually applied a rate of $880 per linear metre, to the benefit of Ms Clarke.
The variation is reasonable and Ms Clarke has given me no reason to amend it or apply a further credit in her favour.
Variation 1 charged ahead of time
Variation 1 related to the reduction in the size of the pool and a change from solar heating to a heat pump. Ms Clarke says that the charge was ahead of time because the pump was not delivered until April 2008.
The variation, on its face, is not payable until the completion of Stage 3. Stage 3 is described in Items 10 of the contract as “delivery of filtration and/or equipment”. Although it was calculated in the early stages of the contract, the variation was not charged ahead of time. Cascade notes that it did not receive payment for the variation until 19 August 2008
Conclusion
Ms Clarke has claimed damages from Cascade and relief from payment of $2,468.00 owing under the contract. On the whole, Ms Clarke has not proved her claim. In those instances where she has been able to demonstrate that Cascade breached its obligations towards her, she has not been able to provide any evidence of the quantum of the loss.
On the other hand, Ms Clarke’s evidence has demonstrated, and she does not deny, that there is an amount outstanding under the contract. I do find that $158.40 – the callout fee for the refrigeration technician - has been wrongly charged to Ms Clarke. The amount payable under the contract, therefore, is $2,309.60
Item 20 of the contract provides that interest is payable on overdue amounts at 20% per annum. I find that Ms Clarke should have paid the amount due on or about 3 November 2008 (7 days from the statement dated 27 October 2008). Interest to today’s date is 610/365 x $2,309.60 x 20% = $771.97. I order Ms Clarke pay $3,081.57 to Cascade within 60 days of order.
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