Forrest v Rombolt Pty Ltd
[2012] QCAT 10
•27 January 2012
| CITATION: | Forrest v Rombolt Pty Ltd [2012] QCAT 10 |
| PARTIES: | Ms Gail Forrest |
| v | |
| Rombolt Pty Ltd trading as BF Buildings |
| APPLICATION NUMBER: | BNO71-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 7 May 2010 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Mr J Allen, Member |
| DELIVERED ON: | 27 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Rombolt Pty Ltd pay Ms Forrest the amount of $4,248 within 14 days. |
| CATCHWORDS: | Defective building work – dog kennels Queensland Building Services Authority Act 1991 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Forrest appeared in person |
| RESPONDENT: | Mr Gary Watts, director appeared for Rombolt Pty Ltd |
REASONS FOR DECISION
Ms Forrest contracted with Rombolt for the erection of dog kennels and a cattery at 20 Hoad Road, Benaraby by two separate contracts in 2008. The contract for the dog kennels was signed on 14 March 2008 in an amount of $58,682. The contract for the cattery was signed on the 16 September 2008 in the amount of $8,700. The work was completed on 23 December 2008. There is an amount of $10,800 owing under the contracts by Ms Forrest to Rombolt for the final progress payments. Ms Forrest found a number of defects in the building work and notified Rombolt of these by letter on 23 January 2009.
Rombolt did not attend to the defects as requested by Ms Forrest and a complaint was made to the Queensland Building Services Authority. An Authority inspector, Mr Edward Goodsall attended at the property on 30 March 2009. In his report Mr Goodsall noted that the work was commercial and that the items on the complaint form were of a contractual nature and so there was no action by the Authority.
This application was originally filed in the former Commercial and Consumer Tribunal and the tribunal has the same functions as and can only make a decision that the former tribunal could have made in relation to the matter[1]. In this case the enabling act is the Queensland Building Services Authority Act 1991[2] and the Tribunal has the same functions and decision making powers under that Act as the former tribunal did. The Tribunal has the jurisdiction to hear this application as a minor building dispute in regard to the erection or construction of a building[3].
[1] Section 271(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009.
[2] Part 7 Jurisdiction of tribunal of the Queensland Building Services Authority Act 1991.
[3]Section 77 and 75 and definition of building dispute and minor commercial building dispute Queensland Building Services Authority Act 1991.
Ms Forrest made the application to the former Commercial and Consumer Tribunal seeking restitution of $45,130 for defective building work. The defects are listed as follows in the application:
a)Dig strips too low dogs have got out;
b)Wall & roof leaks in office/toilet/kitchen (fixed temporarily to avoid damage to internal plasterboard $460.00 invoice attached);
c)20 of the 50 kennels roof leaks;
d)Inside of drain is a rough finish (should be smooth to reduce the harbour of bacteria);
e)Gables not insulated;
f)No flashing above kitchen window;
g)Cattery window glass 3mm should be 4mm;
h)Kennels have rough edges should have cover strips;
Handle on kennel door not fitted correctly and no key supplied;
j)White screw above office door should be green;
k)External beam to ceiling above office window not level;
l)No screws in top of sheets between kennels;
m)1.5 walkway only 1.2 smaller than it should be;
n)Kennel buildings not to end of slab, overall size smaller than plans;
o)Office kitchen/toilet/cattery building not to end of slab, overall size smaller than plans;
p)Kitchen window not level; and
q)Kennel concrete surface lifted (no longer smooth) and does not fall to drain.
The claim for restitution was made up of:
a)$19,000 to replace roofs and insulation;
b)$8,000 to redo dig strips (quote attached);
c)$10,000 to resurface kennel concrete (epoxy), fall to drain, resurface inside of drain (smooth finish);
d)$1,010 reimbursement for temporary fix to office/kitchen/ toilet roof (receipts attached);
e)$1,000 unpaid leave for my husband; and
f)$6,120 labour for building dog runs, painting, hanging gates all which could not be done by myself and my husband as the builder ran over on the estimated time for completion by nearly six weeks (receipts attached).
The tribunal was provided with a copy of the contract for the supply and erection of the kennels[4]. The document contained a drawing of the kennels with dimensions of 30 metre by 6.5 metre with a 1.5 metre wide area between the kennels on each side. Special instructions included double sided (mono) internal walls, Customer to supply insulation, Builders to install roof/gable ends, Concrete to include dig strips and drainage down middle, and Downpipes to tanks 2 x PA doors. The total price was $58,682 with various progress payments including a payment for erect of $9,000.
[4] Exhibit 1.
The Tribunal was also provided with a copy of the contract for the supply and erection of the cattery[5]. It showed a building of 7.87 metres by 5.224 metres divided into three rooms. With a total price of $8,700 and an erect progress payment of $1,800.
[5] Exhibit 3.
Relevantly the contract terms in regard to progress for both contracts included that
If the erector does not commence the erection within a reasonable time after delivery of the kit shed to the construction site, the customer’s only remedy is to give 7 days notice in writing of its intention to terminate this agreement.
If the erector fails to commence the erection within 7 days of service of notice of intention to terminate the contract, the customer may terminate the agreement by serving a notice of termination on the contractor.
Ms Forrest forwarded correspondence to Rombolt on 12 December 2008 in regard to delays in the erection process. She noted that she had been told it would take approximately four weeks to complete and that it has taken approximately seven weeks. She stated that if the building work was not completed by 13 December she would be deducting $5,000 per day until it was completed.
[10] Ms Forrest explained in a statement provided by her that the work was to be completed three to four weeks from 13 October 2008 and was not actually completed until 23 December 2008 even though Gary Watts (the director of Rombolt) had been informed she had a deadline of 18 December 2008. That the dig strips were not done until 13 December and as a result the work we were going to do ourselves had to be undertaken by contractors. Her husband also had to take four days unpaid leave to do work.
[11] At the hearing Ms Forrest repeated that she had been told that the work would be finished within three to four weeks. Mr Watts stated that he had said five to seven weeks and that a shed usually takes two months. Ms Forrest confirmed that she had taken bookings for dogs in November to board in December while construction was still in progress.
[12] The contract did not provide any time period for commencement or finalising of the erection of the shed only that it had to be commenced within a reasonable time of delivery. There has been no evidence provided that it was not commenced within a reasonable time of delivery and Ms Forrest’s only remedy if it had would have been the giving of notice and termination mentioned above.
[13] There is no evidence that Ms Forrest entered the contract based on a representation that the kennels would be erected in any particular time frame and the contracts on their face only require that they be erected within a reasonable time after delivery. The Tribunal will not allow the claim in regard to the additional costs of having external parties do work and for Mr Forrest’s foregone wages as they have not resulted from any breach of the contract.
[14] The contract stated that the concrete was to include dig strips. In Ms Forrest’s statement the dig strips were to be 150 mm x 200 mm at slab level as per the stamped council drawings which were supplied to the builder. A copy of the approved plans shows the dig strips to be approximately 200 mm wide and 150 mm deep and on the same level as the top of the slab for the kennels. Ms Forrest’s states that the dig strips don’t work as they are not high enough and she had four dogs escape through the fence, these dogs were said not to be small dogs either.
[15] Mr Watts stated that that the dig strips were done to Ms Forrest’s satisfaction and that she was present when he was digging them out by hand and on the day the concrete was poured and that when asked if it was ok she had said yes. He states that the following day Ms Forrest put in 100 mm of topsoil over them as well as turf which then made it possible for dogs to dig under the fencing.
[16] At the hearing Mr Watts stated that he had not received a copy of the council plans which specified the dig strips. Ms Forrest in her letter of 23 January 2009 clearly states that the council approved plans setting out the dig strips dig strips were supplied to Rombolt.
[17] The Tribunal notes that the contract clearly states that "the concrete is to include dig strips” as mentioned above. The general conditions state at clause 5 that it is the responsibility of the customer to obtain all planning, building and other permits and approvals for the erection of the kit shed and that BF Building will draft plans for the kit shed in accordance with the specifications. The plans for the shed were approved by the Calliope Shire Council on 13 July 2007 and it was from these plans that BF Building would have obtained the engineering plans for the foundation which were prepared on 17 March 2008. Those plans do not show the dig strips and so the only plans which deal with the dig strips are the plans approved by the Council. As it is clear that the dig strips were an integral part of the approved council plans for the dog kennels they are required to be built in accordance with the plans. The plans clearly show that the fence for the dog run is to sit on top of the dig strip and there is to be no soil between them. This is the purpose of the dig strip to ensure that there is a barrier so that the dogs cannot dig out.
[18] As Rombolt has agreed to build the dig strips they must be built in accordance with the council plans and clearly they have not been as they were dug out and poured at the then existing ground level and not at the slab level. This most likely would have required that the dig strips be poured into formwork and the ground level could then have been built up with soil and turf. Instead the dig strips have been poured into holes dug at the current ground level and when the top soil and turf were applied to bring the ground level up to slab height the dig strips were then under the new ground level. This would not have occurred if they had been poured into form work at the height of the slab that had been poured for the dog kennel. Ms Forrest has obtained a quote of $9,858 to rectify the dig strips and the tribunal will allow the claim in that amount.
[19] Ms Forrest states that she did a full inspection of the buildings on 2 January 2009 and that it rained slightly and she noticed leaks in the kennels as water was dripping on the floor. She then informed Rombolt by way of a defects list and Mr Watts had a look and said he had fixed it. After further rain on the 23rd of January Ms Forrest noticed that the insulation was bulging with water in both the kennels and cattery. Ms Forrest had Mr Ken Brady have a look at the kennels and he noted the water issues. This was confirmed in a letter. Mr Brady performed some temporary repairs for water damage to window frames $460 and repairs to roof to stop water coming into interior $550; copies of these invoices were provided to the tribunal. Ms Forrest tried to contact Rombolt by telephone unsuccessfully and then sent Rombolt a fax on 23 January 2009 that “Whole/wall roof leaks in office/toilet kitchen (fixed temporarily to save plasterboard inside) and approximately 25 kennels leak on both sides of building”.
[20] Mr Watts claimed that he had fixed any leaks in the roof in Rombolt’s response to the application and maintained that at the hearing. Mr Watts also claimed that he had started insulating the gable end walls and had been told to by Ms Forrest not to worry about it as she was running out of time. Ms Forrest produced photos at the hearing showing the leaking roof and water logged insulation. Rombolt accepted at the hearing that it should reimburse Ms Forrest for the cost of the temporary repairs.
[21] The tribunal gave a direction at the end of the hearing that Ms Forrest provide a quote for the necessary repairs to the roof with a report of the defects requiring rectification with Rombolt to provide and reply to the further material. The quote was received on 7 April 2011 and though further directions were given to Rombolt to reply no reply was received. The Quote from D & S Daly Plumbing was “to remove ridge cap and turn up end of sheets, reinstate ridge cap, check all roof screws and clean up” and was in the amount of $4,180.00.
[22] The Building Code of Australia requires that a building or structure must perform adequately under all reasonably expected design actions and this includes rainwater action[6]. The Tribunal is satisfied that the building work in regard to the roof does not comply with the Building Code of Australia in that the roof leaks. Ms Forrest will be allowed the cost of rectification as quoted in the amount of $4,180 with an additional amount of $1,010 in respect of the temporary repairs performed by Mr Brady.
[6] Queensland Building Service Building Code of Australia 1-811.
[23] Ms Forrest has also raised issues about the concrete slab and the drain. She claims that the drain which runs down the centre of the dog kennels was to be a smooth finish to facilitate ease of cleaning and less chance of bacteria build up. Also that the kennel concrete has lifted (no longer smooth) and does not fall to drain. Rombolt states that the rough finish to the drain was not mentioned till now and as far as we know Ms Forrest was happy with it. Ms Forrest provided a quote with her application for the resurfacing of the kennel in the amount of $52,800. This quote did not set out the work to be done or the reason for it needing to be done.
[24] The contract states that “concrete to include…. drainage down middle” and it is not further elaborated. The approved plan supplied by Ms Forrest also does not set out the requirements of the drain or the fall in the slab. At the hearing Mr Watts stated that the concretor had worked from the engineering plans and that he had met the requirements in regard to the slab. Further that the drain had been reconfigured on two occasions.
[25] Rombolt mentioned in its response that the certifier had come out after the kennels were built to approve it. Mr Watts at the hearing though indicated that there had been no final inspection. Ms Forrest was directed to provide a quote for any necessary repairs to the slab and a report of the defects requiring rectification with Rombolt to provide any reply.
[26] Ms Forrest provided a quote from Miller Concrete and Bobcat Hire which stated that the concrete surface has fineline cracking and drummy patches due to surface bleed. With the main concern being the fall to drain that in areas, fall not being to required specifications ie: 10 mm per metre to rain. Health regulations may require more fall to drain. The quote is to repair and disassemble internal structure scrabble top and floor to required spec using epoxy resins. The total for the work is $54,780.00 including GST. A second quote was obtained from No Fuss Concreting this time setting out the work to be performed with a total of $45,500. There was no reply received from Rombolt.
[27] While Mrs Forrest provided photographic evidence to the Tribunal in regard to the water leaks there was no photos provided of the drainage. Nor was there any material provided which clearly showed that it was a term of the contract that the finish of the drain be smooth and there was to be any particular fall towards the drain. While the quote from Miller Concrete and Bobcat Hire raises some issues about compliance with health regulations there has been nothing provided by Ms Forrest to show that the relevant health department has issued any requisitions in regard to the kennel floor. The quote also states there are some areas of fineline cracking and surface bleed and yet it is contemplated that the whole of the kennel floor be resurfaced.
[28] The tribunal is not satisfied that there is sufficient evidence of the requirements of the contract in regard to the slab and the drain nor sufficient evidence as to the defects to justify requiring Rombolt to pay damages in the amount sought by Ms Forrest and the claim will be disallowed.
[29] There were no further issues pursued by Ms Forrest which would result in an award of damages to her in respect of the defects listed above.
[30] Ms Forest is entitled to an amount of $15,048 from Rombolt for defective building work including the repairs to the roof, the temporary repairs to the roof and repairs to the dig strips. Rombolt is also entitled to its final payment in respect of the building work in the amount of $10,800 from Ms Forrest.
[31] The tribunal orders that Rombolt must pay Ms Forrest the amount of $4,248.
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