Dinneen v Clayton t/a At Fencing

[2010] QCAT 245

CITATION: Dinneen v Clayton t/a AT Fencing [2010] QCAT 245

PARTIES:	Jacqueline Mary DINNEEN
v
Allan CLAYTON trading as A.T. FENCING

APPLICATION NUMBER:            BD384-09                 

MATTER TYPE: Building Matters

HEARING DATE:   7 June 2010

HEARD AT:   Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON:   7 June 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Allan Clayton is to pay $11,576.45 to Jacqueline Dinneen by 5 July 2010. 

CATCHWORDS :  Domestic building work – defective work –  breach of statutory warranty - damages for cost of repair

APPEARANCES and REPRESENTATION (if any):

The hearing took place on the papers in the absence of the parties. 

REASONS FOR DECISION

1. On 13 August 2009 Jacqueline Dinneen commenced a proceeding in the Commercial and Consumer Tribunal claiming payment from Allan Clayton (trading as AT Fencing) for costs she had incurred and would further incur in rectifying work carried out under a contract for the removal and replacement of a wooden post and sleeper retaining wall at her residence.
2. On 28 August 2009 Mr Clayton filed a defence to Ms Dinneen’s claim in which he contended that any defects in the retaining wall he had erected were caused by Ms Dinneen’s neighbour placing soil on top of the retaining wall and the effect of heavy rain.   
3. The parties were directed to file their statements of evidence and documents and Ms Dinneen complied with the directions but Mr Clayton did not comply.
4. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Commercial and Consumer Tribunal as a result of the Commercial and Consumer Tribunal being abolished by the Queensland Civil and Administrative Tribunal Act 2009 (the Act).  
5. Under section 256 of the Act, a pending proceeding (being a proceeding commenced in one of the Tribunals abolished by the 2009 Act but not heard by the abolished Tribunal prior to 1 December 2009) is taken to be a proceeding before the Queensland Civil and Administrative Tribunal.   
6. On 25 March 2010 the Tribunal directed Mr Clayton to file and serve his statements of evidence by 31 March 2010.  The Tribunal made a further direction that the proceeding would be determined by a member on the papers not before 31 March 2010.
7. According to evidence on the Tribunal file, Mr Clayton had been provided with a copy of the documents supporting Ms Dinneen’s claim on 19 February 2010.   Mr Clayton has not filed any statements of evidence nor provided any documents in support of the defence of this claim. 

Evidence supplied by Ms Dinneen

8. The Tribunal was provided with a copy of the quotation given by Mr Clayton under his trading name of A.T. Fencing on 23 December 2005 to remove an existing retaining wall at Ms Dinneen’s residence and to supply and install a retaining wall comprising of 22 posts and 110 sleepers.  The total quoted cost of contract was $8,192. 
9. The quotation was accepted by Ms Dinneen and the work was commenced on 6 March 2006.
10. In about January 2008 the retaining wall had cantilevered forward.  A report from NJA Consulting Engineers dated 21 February 2008 stated that the retaining wall was comprised of posts at a spacing of 2.4 metres and sleepers.  The retained height was estimated at 970 mm.  The consulting engineers concluded that the failure of the retaining wall was most likely caused by a combination of three factors - inadequate post footing being less than the 1.2 metres in depth specified by Tradac Technical Data Sheet for Timber Retaining Walls, disturbance of the ground surface near the retaining wall and associated poor drainage in front of the retaining wall, and poor drainage behind the retaining wall. 
11. Rainfall records for the area disclosed that there had been little rainfall between March 2006 and November 2007 but there had been heavier falls in December 2007 and January 2008.  The rainfall records also disclosed that there had been periods of relatively heavy rainfall between 1989 and 2004 in the same area. 
12. Ms Dinneen was unsuccessful in having Mr Clayton agree to repair the retaining wall and in January 2009 Ms Dinneen contracted with DWR Fencing to repair 6.7 metres of the retaining wall.  In the course of carrying out that work, DWR Fencing ascertained that the posts had been installed to a depth of 500mm.  Some of the posts were able to be removed by hand.  The cost of repair of 6.7 metres of retaining wall was $3,759.20.
13. An inspection was carried out at the residence of Ms Dinneen in March 2009 by an inspector from the Building Services Authority.  A report subsequently prepared by the inspector disclosed that a number of the retaining wall posts had rotated forward by approximately 130 to 150 mm. 
14. The report disclosed that a segment of the retaining wall had been recently replaced and an inspection of the posts which had been removed from the repaired section showed that the footing depth had been 500 mm when the specified footing depth was 1.2 metres.  The inspector concluded that a significant contributing cause to the failure of the retaining wall was an inadequate post footing size.   
15. On 26 May 2009 the Building Services Authority issued a direction to Mr Clayton to rectify the defective work on the basis that the installation of the timber retaining wall was not in accordance with Timber Queensland data sheet “Timber Retaining Walls for Residential Applications” resulting in excessive movement of the retaining wall. 
16. In May 2009 Ms Dinneen contracted with DWR Fencing to repair a further 7.2 metres of the retaining wall at a cost of $1,550. 
17. Ms Dinneen obtained a quotation from DWR Fencing for the repair of a further 26.5 metres of the retaining wall in April 2009 for $4,919.  Those repairs have not been undertaken.

Findings and conclusion

18. Mr Clayton agreed to perform for Ms Dinneen domestic building work as defined by section 8(3) and (4) of the Domestic Building Contracts Act 2000 in March 2006.  The work was to remove an existing retaining wall at Ms Dinneen’s residence and to supply and install a retaining wall comprising of 22 posts and 110 sleepers.  The total cost of contract was $8,192.
19. Mr Clayton removed the existing retaining wall and constructed a retaining wall comprising of posts at a spacing of 2.4metres and sleepers.  The retained height was 970 mm.  The posts were installed to a depth of 500 mm. 
20. By January 2008 the retaining wall had failed and had cantilevered forward.  A significant contributing cause to the failure of the retaining wall was an inadequate post footing size of 500mm when the specified footing depth for a timber retaining wall of this type was 1.2 metres. 
21. Rainfall in the area in December 2007 and January 2008 also was a contributing factor in conjunction with inadequate drainage behind and adjacent to the retaining wall.  As the former timber retaining wall had not failed in a similar fashion despite heavier periods of rainfall prior to its replacement in March 2006, the Tribunal is satisfied that the contribution made by rainfall to the failure of the retaining wall was relatively minor and that the most significant contributing factor was the inadequate depth at which the post footings were installed by Mr Clayton.  
22. Ms Dinneen has incurred repair costs as follows:
• Repair of 13.9 metres of retaining wall       $5,309.20
• Engineers report and soil test  $1,108.25

22. The estimated cost to repair the bAllance of the retaining wall is $4,919. 

23.These repair costs totalling $11,336.45 are the result of the work performed by Mr Clayton who installed posts at 500mm footing depth in the retaining wall. The Tribunal accepts the unchallenged evidence of the inspector from the Building Services Authority that the work was defective and finds that the work was not in accordance with Timber Queensland data sheet “Timber Retaining Walls for Residential Applications” resulting in excessive movement of the retaining wall. 

24.The Tribunal concludes that Mr Clayton had failed to perform the work in an appropriate and skilful way and that he had not performed the work with reasonable care and skill in beach of the statutory warranty imposed by section 44 of the Domestic Building Contracts Act 2000. 

25.As a result of the breach of the statutory warranty, Mr Clayton is in breach of the contract he entered into with Ms Dinneen and she is entitled to recover damages for that breach.  The Tribunal is satisfied that the damages for breach should quantified by the repair and associated costs already incurred by Ms Dinneen together with the further costs estimated to repair the remaining parts of the retaining wall. 

26.The Tribunal orders Allan Clayton to pay to Ms Dinneen $11,576.45 being the costs of repair and $240 for reimbursement of her filing fee.  Ms Dinneen has not sought payment of interest.  Payment of $11,576.45 is to be made by 5 July 2010.