Clarke v Duka
[2013] QCAT 250
| CITATION: | Clarke v Duka [2013] QCAT 250 |
| PARTIES: | Aidan Michael Clarke (Applicant) |
| v | |
| Erno Duka (Respondent) |
| APPLICATION NUMBER: | BDL300-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 27 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Bevan Hughes, Member |
| DELIVERED ON: | 27 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That Erno Duka pay to Aidan Michael Clarke the sum of $1,969 by 10 June 2013. 2. Each party pays its own costs of and incidental to the proceedings. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – water leak in shower recess – extent of damage – remoteness of damage – duty to mitigate loss - costs Queensland Building Services Authority Act 1991 (Qld), s 47(1), s 47(2) Hadley v Baxendale (1854) 9 Ex. 341, applied |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: Aidan Michael Clarke appeared in person
RESPONDENT: Erno Duka appeared in person
REASONS FOR DECISION
What is this Application about?
On 18 June 2010, Aidan Michael Clarke purchased his home from Erno Duka, who was the owner-builder. In October 2010, Mr Clarke discovered a leak in his shower.
Mr Clarke claims rectification costs of $8,044 from Mr Duka. Mr Duka contends that these costs are confined to $1,969.
What does Mr Clarke say Mr Duka is responsible for?
Mr Clarke tendered an email from a tiler and waterproofer[1] that relevantly states:
Because the waterproof membrane is usually installed under the bedding and tiling itself this can be a very costly exercise which necessitates the full removal and replacement of all fixtures, including shower screens, tiles, bedding and in most cases, fc sheeting and tile underlay as these become very brittle in wet conditions.
[1]Email Rob Wheat of Tilers And Waterproofers to Aidan and others dated 18 February 2013.
Mr Clarke then sought to rely upon a quote in the amount of $7,139 to renovate the entire main en suite[2] and a quote in the amount of $935 to supply and install a new shower screen.[3] During the hearing, Mr Clarke conceded that an amount of $130 was to be deducted. Mr Clarke therefore claims an amount of $8,044 from Mr Duka.
[2]Tilers And Waterproofers Quote RW2394 dated 23 August 2012.
[3]MGS Quote 530 dated 26 September 2012.
Mr Clarke claims the cost of re-waterproofing and retiling the entire shower on the basis that tiles cannot be sourced to match the tiles used in the bathroom. He wants Mr Duka to source the matching red and beige tiles to re-tile the whole shower recess and if not, he expects the whole bathroom to be re-tiled “so as not to destroy the aesthetic of the en suite”.
What does Mr Duka say he is responsible for?
Mr Duka submits that the amount claimed by Mr Clarke is excessive and an appropriate solution is to simply repair the leak to the shower shelf wall itself.
He states that removing one wall of tiles is sufficient. He acknowledges that the exact red tiles are no longer available. He suggests using a suitable replacement tile (the same beige tile currently in the bathroom) or replacing all red tiles only to the shower shelf wall and bath tub walls with similar red tiles.
He argues that retiling the entire bathroom and replacing shower screens involves significant additional cost unrelated to the leak. He sought to rely upon a quote in the amount of $1,969.[4]
[4] Total Architectural & Building Solutions Quote 2443 dated 25 February 2013.
What is the basis of Mr Duka’s liability to Mr Clarke?
As an owner-builder, Mr Duka is required to notify the buyer of details of the building work.[5] Mr Duka did not do this. He is therefore deemed to have given Mr Clarke a contractual warranty that the building work was properly carried out.[6]
[5] Section 47(1) Queensland Building Services Authority Act 1991 (Qld).
[6] Section 47(2) Queensland Building Services Authority Act 1991 (Qld).
This means that Mr Duka is required to undertake repairs or pay compensation to the buyers as a result of any building defects.
Mr Duka accepts that there is a leak in the shower.[7]
What are the appropriate costs of rectification?
[7] Supplementary Documentation of Respondent filed 29 April 2013, Point 3.
Remoteness of damage
In his application, Mr Clarke refers to Australian Standard 3740 – Waterproofing of Wet Areas within Domestic Buildings. Mr Clarke claims that the Standard requires re-waterproofing and re-tiling of the whole shower recess. However, Mr Clarke was unable to produce a copy as evidence at the hearing.
As the applicant, it is Mr Clarke who has the burden of proving his case on the balance of probabilities. In the absence of the Standard, I do not accept that every time there is a leak, the entire bathroom needs to be re-waterproofed.
That would be contrary to the requirement that damage not be too remote.[8] The test of whether damage is too remote is whether it is reasonably foreseeable as liable to result from the breach - in the context of the culpable party’s knowledge at the time of the contract.[9]
[8] Hadley v Baxendale (1854) 9 Ex. 341.
[9] Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528.
The email sought to be relied upon by Mr Clarke does not address the source of the leak – it merely recommends total removal and replacement “because the water membrane is usually installed under the bedding and tiling itself”.
The evidence here is the source of the leak is from the ‘cut in’ shelf in the en suite[10] - it is only the shower shelf that is leaking.[11] If there is a leak, then the loss is the cost of fixing that leak.
[10] Applicant Summary of Events to date, first point under “June 2012”.
[11] Total Architectural & Building Solutions Quote 2329 dated 7 August 2012.
This means that the loss is the cost of fixing the leak in that area – the wall where the shower shelf is located. This does not extend to replacing the floor and wall tiles in the entire bathroom, or even in the entire shower recess.
This is because re-tiling the entire area and replacing the shower screen is not reasonably foreseeable to result from a leak in the shower shelf alone. They are separate areas from the source of the leak. I therefore consider the costs of retiling the entire bathroom and shower recess to be too remote.
The cost of replacing all tiles with matching colours also does not flow from the leak. The leak can be fixed with tiles of similar colours. The replacement tiles do not exactly match because of the unavailability of certain colours.
Mr Duka could not have reasonably foreseen that the specific colours could not be sourced two years after the contract. I therefore consider that the cost of replacing all the tiles so that the colours match is too remote from the cause of damage – the leak to the shower shelf.
Duty to mitigate loss
Despite this, Mr Clarke wants all the tiles replaced, so they match. He was concerned that not matching all the tiles would “aesthetically hamper” the bathroom.
A person who suffers loss must take reasonable action to mitigate that loss:
…just as a party is not allowed to enforce a penalty, so he ought not to be allowed to penalise the other party by taking one course when another is equally advantageous to him.[12]
[12] White & Carter Ltd v McGregor [1962] AC 413 at 431.
Replacement tiles of similar colour and appearance can be sourced. In particular, matching beige tiles are available. Photographs tendered by Mr Clarke show that the shower recess has two beige walls and the wall where the leak is located is red. Having viewed these photographs, I am satisfied that the wall where the leak is located could be fixed with beige tiles to match the remaining two walls.
This means that only one wall would have decorative trim – however, many feature walls have unique attributes to enhance their appearance. It also means that only the bath area would have red tiles. However, the rest of the bathroom including the shower would be beige, giving the bathroom a uniform appearance and highlighting the bath area.
This would be at a substantially lower cost than re-tiling the entire area, so that the colour of all the tiles matches. This is what a reasonable owner would do if bearing the costs themselves. Similarly, it is what a reasonable owner would do to mitigate their loss.
If the source of the current leak is fixed and there are further leaks, then they may provide grounds for further action. However, there is no evidence of this in the current application.
I therefore consider the reasonable cost of fixing the leak to the shower shelf wall is $1,969.[13]
[13] Total Architectural & Building Solutions Quote 2443 dated 25 February 2013.
Should costs be awarded?
During the hearing, Mr Duka stated he was willing to accept responsibility up to the quote for $1,969.[14] This is the amount I have awarded to Mr Clarke.
[14] Ibid.
Mr Clarke also sought the costs of purchasing Australian Standard 3740, but ultimately was unable to produce it as evidence.
In the circumstances, I do not consider it in the interests of justice to depart from the usual requirement that each party to a proceeding bear their own costs.[15] I will therefore not award Mr Clarke any of his costs, including his filing fee and the costs of purchasing Australian Standard 3740.
[15] Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
What are the appropriate orders?
The Tribunal orders that Mr Duka pay to Mr Clarke the sum of $1,969 by 10 June 2013.
The Tribunal further orders that each party pays its own costs of and incidental to the proceedings.
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