Franklin v A&S Bricklaying Service
[2011] QCAT 69
•1 March 2011
| CITATION: | Franklin v A&S Bricklaying Service [2011] QCAT 69 |
| PARTIES: | Ms Eylece Franklin |
| v | |
| A & S Bricklaying Service |
| APPLICATION NUMBER: | BDL050-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 26, 27 August 2010 and 17 September 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Julie Cowdroy, Member |
| DELIVERED ON: | 1 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The applicant pay to the respondent the sum of $6,440 within 30 days. |
| CATCHWORDS : | Building dispute – allegations of defective work, unlicensed work and work in breach of contract – whether reasonable to require removal and rectification of major works – consideration of Bellgrove v Eldridge (1954) 90 CLR 613 – what is “necessary” and “reasonable” – mitigation of loss |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Eylece Franklin represented by Mr A Musgrave of Counsel, instructed by Sawford Lawyers |
| RESPONDENT: | A & S Bricklaying Service represented by Mr Rodgers-Falk with Mr J P O’Regan of Counsel, instructed by Jones Leach Hawley Solicitors |
REASONS FOR DECISION
Background to the Application
The applicant is the owner of a residential property at 42 Bowler Street, Paddington. The respondent is a licensed bricklayer. He provided the applicant with an oral quotation on 5 June 2009 for $52,008 for landscaping work to her property.
The applicant accepted the quotation and work commenced. The respondent carried out other work that was outside the scope of the original quotation. Ultimately, the work carried out by the respondent included the laying of a driveway and stepping stones, paving, the construction of steps, retaining walls, bricking-in under the house and drainage work in respect of which the respondent provided quotations and invoices, totalling $99,230.
The applicant paid the respondent $77,780. She disputes that she owes the sum of $21,450 and seeks an award of damages for loss sustained as a result of the respondent’s work. Those losses include the duplication of charges, the cost of rectification of defective work and work which was not to plan, and restitution for the cost of work carried out by the respondent for which he was not licensed. The applicant also claims the cost of storing her goods as well as interest and costs.
On his part, the respondent sought payment of the outstanding amount of $21,450.
Hearing
The matter was heard by way of oral hearing on 26, 27 August 2010 and 17 September 2010. Written submissions were received from the parties, the last of which were received on 23 November 2010.
Applicant’s case
Ms Franklin engaged a designer, Mr S Clegg, to provide a landscape plan. Oral discussions between the applicant and the respondent referred to that plan. The scope of the initial work is described in quotations Nos 26, 27, 28 and 29. Subsequent to the initial discussions, the scope of the work was enlarged.
These additional works are described in quotations Nos 30 and 32; however the invoices for the additional works include some overcharging and double charging.
All the work is not completed and many of the works which are complete are defective and not in accordance with the plan. The lack of documentation from the respondent is lamentable. His failure to prepare a written contract and produce written variations to that contract has resulted in a failure to properly describe the work he was contracted to undertake. The respondent has been disciplined for breaches of these obligations under the Domestic Building Contracts Act 2000.
Particular concerns relate to the retaining walls that are, in part, more than 1 metre high, in which case engineering certification is required. None of the walls have engineering certification. In order to render the walls, they needed to be waterproofed. The walls were noted to have efflorescence, which indicates that water penetration has occurred. In such circumstances, the walls are unable to be rendered.
[10] There are many instances of incompetence and negligence by the respondent. Those criticisms encompass, but are not limited to, concerns about the termite barrier which was described as “insufficient”; there was no evidence of proper foundations in the brick work; the cobblestone driveway, apart from using a product which was not that selected by applicant, is the subject of a Council complaint as a trip hazard; the drainage method for the site is inadequate to enable proper run-off of water and as a result, water has penetrated the bricked in area under the house.
[11] Apart from her evidence, the applicant relies on the evidence of Bruce W Moore of Building Survey Australia Pty Ltd Construction and Building Consultants. Mr Moore produced a report dated 3 July 2010, which included annexures and photographs.
[12] Mr Moore considered that certain work was not carried out in accordance with the landscape plan and the cost of rectification to ensure that the work complies with the plan and the cost of rectification of defective work is $160,160. The value of work carried out by the respondent in respect of which he was not licensed is $8,600.
[13] The applicant seeks the costs involved in the storage of furniture that was unable to be left underneath the house, due to the respondent’s failure to adequately waterproof the area, permitting inflow of water.
Evidence
Ms Franklin
[14] The applicant wanted basalt cobblestones on her driveway and was advised by Mr Clegg to visit Ecco Outdoor to view samples. She discussed various samples with the respondent and ultimately she chose a cobblestone paver of the same type as exhibit 3. She indicated to the respondent that she did not want them laid until she had returned from overseas.
[15] When she returned from overseas the driveway was paved. She cannot remember her exact words but when she saw the finished job she “looked in horror” and the respondent knew she was not happy. She looked for the sample paver she had chosen to “just go and make sure” but could not find it on her property. There had been four sample pavers on the front deck; the respondent had supplied two and Ecco had provided two.
[16] The driveway was not paved with the same product that she had viewed as a sample and selected by her. The product she had selected had straight edges, unlike exhibit 4, which was the product that was used. She was unable to examine the type of cobblestone that had been used to pave the driveway, as the respondent took those that were not used off the site.
[17] The applicant located one of the pavers used in the driveway 2-3 weeks later and it was not similar to the sample shown to her by the respondent.
[18] There was a discussion about the grout but she did not agree on 2 or 3 finger widths because she did not know what that meant. She denied that the respondent laid at least three sample pavers on the ground and discussed the layout. She did not recall the respondent talking about a ½ bond pattern, but in any event she was happy with that layout.
[19] The applicant raised her concerns about the driveway in an email dated 15 August 2009 (exhibit 10). Her complaint was that the work was of a poor standard, the gaps between the pavers are not in accordance with their agreement, and a considerable amount of the pavers were drummy. The applicant understood that the installation of the pavers was to be in line with the J H Wagner and Sons’ manual which the respondent had shown her. The applicant also raised her concerns about the lack of expansion joints. She indicated that the product used was not as the same quality as the sample she had chosen.
[20] The applicant agreed that the original scope of works was contained in invoices 26, 27, 28 and 29. Variations and additions to the scope of the work are described in invoices 30 and 32 although it was contended that duplication of charges occurred in some instances. The applicant disagreed that invoice 31 was replaced by 32, despite the fact that the costings are the same for the first two items and invoice 32 has the addition of extra 15 metres for the rear steps.
[21] The applicant did not discuss the contents of the invoices as provided by the respondent as the respondent told her not to take any notice of them. The documents that refer to work "by others” she understood referred to work undertaken by others but it did not necessarily mean that she was responsible for payment of that work.
[22] The applicant had to pay storage costs to store her goods that could not be returned to the site and placed in the built-in area because of the ingress of water in that area. She had not taken any steps to rectify any of the areas the subject of this claim because she considered it best to leave the work as it was left.
[23] Ms Franklin produced 21 photographs taken by her. It was contended that those photographs demonstrate that the retaining walls are not built on proper foundations.
Respondent’s case
[24] The respondent conceded some of the defects alleged by the applicant, but denied most. In respect to the admitted defects, an amount of $3,980 should be deducted from the outstanding contract price.
[25] The agreement between the parties was not to undertake all the brickwork shown on the plan. In some instances, references are made in the documentation that work is done “to plan”; in other instances, the plan is not mentioned and this is also the case where variations occurred. At all times the work is in accordance with the agreement between the parties.
[26] The respondent laid the cobblestone pavers selected by the applicant in the manner she had directed. He followed the instructions of the supplier as to how to lay the stones. He denied that the driveway is a trip hazard, but even if it found otherwise, it is not as a result of defective work but results from the type of product selected by the applicant.
[27] The cost of demolishing and rebuilding the retaining walls and the area built in under the house, because of the nature of the machinery used would necessitate demolition and replacement of the driveway and rear paved area. There is no evidence of structural inadequacy of either the built-in area or the retaining walls. In those circumstances, the removal of the retaining walls or the built-in area cannot be justified.
[28] The photographs produced by the applicant had been examined by Mr Haines and he did not change his view that the wall was performing effectively and that a 60mm overhang makes little difference to the structural capability of the wall.
[29] Ms Franklin had not taken any steps to investigate the cost to remedy the water entry into the built up area, despite the fact that the work had been completed for some time. The respondent contends that the waterproofing required would cost $350. In any event, the BSA inspector’s report concluded that although the waterproofing was a defect, he would not order rectification as the cost of rectifying all the defects he identified was less than the amount owed under the contract.
[30] This indicated that the cost of rectification was not likely to be significant.
Evidence
Mr Rodgers-Falk
[31] He started the work on 15 June and finished at the end of July/beginning of August 2009. He had not returned to the site since that time apart from attending for the BSA inspection. He left the site in a clean state. It was not until a request for payment was made that Ms Franklin indicated she was unhappy with his work.
[32] The plan by Mr Clegg had been discussed with the applicant. He regarded it as a “general layout” and Ms Franklin seemed open and receptive to any suggestions he made. The property was steeper than the plan indicated consequently it was not possible to do the works in strict compliance with it and adjustments had to be made. He told the applicant that the plan was unsatisfactory in that respect, but she indicated to him that it was a guideline. There were amendments made to the plan verbally before the work started.
[33] He did not agree that most of the concerns raised by Mr Moore were justified, although in respect to some of the drainage, he acknowledged Mr Moore’s opinion had some validity on the basis “in a perfect world, maybe”.
[34] In respect to the built-in area under the house, he had inserted the words “Council approval by others” because he knew it was required. He inspected the footings and Ms Franklin took photographs, but there was no other inspection. He had waterproofed the built in works but acknowledged there was water penetration in that area and the waterproofing had failed. He acknowledged that some parts of the retaining wall were in excess of 1 metre in height.
[35] In regard to the cobblestone paving, he had shown a number of samples to Ms Franklin and they discussed what she required. She said she wanted tiles similar to exhibit 4. He showed her 3 or 4 samples. He disagreed that he had shown her a product that was flat on all sides. He had shown her how the cobblestones would be laid. He gave her a brochure from Wagners. That firm had a product that was suitable for driveways. The book was given to her as illustrative of the various driveway installations.
[36] The joints in the driveway were based on what was discussed, including the topic of 2/3 finger widths. He had endeavoured to keep the driveway even, but there were variations according to the size and shape of stone. He disagreed that Ms Franklin had told him not to do the driveway until she came back from overseas.
[37] The poor tiling set out observed by both experts would not be evident when the garden was established.
Mr Gordon White
[38] Mr White operates a plumbing business under the name GP & B S White. He had provided a quotation for the provision of drainage works in the sum of $280. Mr White is familiar with the site. He did not revisit the site when providing the quotation, but he had seen the report of Mr Moore and the photographs. He considered that the products for which he had quoted would provide the rectification that Mr Moore had recommended. The only concession he made was that it was possible that the front drain might not cope with a large amount of water and that water could surround the timber sleeper at the front fascia.
Mr Barry Franklin
[39] Mr Franklin, the applicant’s ex husband, was present when the respondent supplied the applicant with a sample book from which she selected a particular type of cobblestone tile. He was also present when the applicant was given a sample of a cobblestone tile and the applicant indicated that was what she wanted as it gave the house “old style cobbled look”.
[40] In oral evidence, Mr Franklin was not able to say whether exhibit 3 or 4 was “more similar to that shown” and he was unable to say whether the sample selected had a sawn side.
Ian Robert Thompson
[41] Mr Thompson carried out work on the applicant’s property. He had known Mr Rodgers-Falk for two years.
[42] He observed sample pavers out the front of the house for a number of weeks. He described them as having rugged edges, with quite a bit of variation. Exhibit 4 was similar to a sample he saw. None of the samples he saw were sawn on one side.
[43] He observed the applicant and respondent having a discussion about the set out of the tiled pavers as well as the cobblestone pavers. He took note because he would be involved in laying the cobblestones.
Overcharging
[44] In her written documents, the applicant contends that overcharging or duplication occurred in a number of instances. However, in giving oral evidence, Ms Franklin had great difficulty in articulating other than in the vaguest of terms, the manner in which overcharging occurred. Her answers were laboured and she demonstrated little understanding or knowledge of the descriptions on various invoices and quotations prepared by the respondent.
[45] The respondent’s documents were not well laid out and also not expressed in clear terms. There were frequent question marks (?) next to items. On that basis, it is understandable that the applicant was confused. The documentation generally was of a poor standard. Only the gist of what the respondent was doing was committed to writing.
[46] In that environment, I gained the impression that Ms Franklin placed considerable reliance on Mr Rodgers-Falk to carry out the work, without her becoming involved to any great extent about the manner in which that work would be carried out.
[47] The overcharging or duplication of charges is said to have occurred in invoices 538 and 545 and represents $2,625. Not every item which is encompassed under this topic and set out in full at paragraph 165 of the applicant’s submissions dated 16 November 2010 were canvassed with the applicant during her oval evidence.
Invoice No 538
[48] The applicant contends that some of this work was encompassed in quotation 29 and that when invoice 538 was created, overcharging occurred. The applicant at paragraph 23 of her statement advises that invoice 538 relates to works additional to the original scope of the works.
[49] In giving evidence, the applicant could not say whether invoice 538 was covered by quotation 29 and could not say whether invoice 538 reflected a new agreement about the work.
[50] The respondent’s evidence is that when quotation 29 was raised, there was agreement that he was not responsible for moving the laundry and that others would carry out this work. This agreement is reflected in quotation 29. Later, the parties agreed that the respondent would carry out the works associated with moving the laundry. The charge on invoice 538 reflected the fact that he engaged the plumber and the cost of his work and the labour involved in moving the laundry was now a cost to be met by the applicant.
[51] The applicant challenged the charge of $600 for two extra steps. It was contended that this was included in quotation 26 wherein mention is made of brick steps followed by the words “to plan”. The charge for the extra two steps, according to the respondent, arose when it became apparent that the contour of the land necessitated 7 steps, rather than the 5 steps stipulated on the plan.
[52] The applicant contended that the supply of 2 posts to front entry and steps and pathway to front door overlapped with invoice 545 which refers to stepping stones to front. She told the respondent that she wanted to retain the character of the original front post and match with a second post, but the respondent removed and replaced the original with two new posts.
[53] There is no evidence that the cost of the two posts and the labour associated with the insertion and the steps to front door are not a legitimate claim for work outside the scope of the original contract price.
[54] The applicant contested a charge of $300 for extra H (height) to front wall. The respondent told her that this was a charge for repairing the front wall which had been damaged by K & D Bobcat Hire. Ms Franklin had paid that firm the sum of $250. The respondent advised her he would repair the wall, which he did, and then charged her $300. The respondent had not advised that he would not charge her. Ms Franklin ultimately acknowledged that if the cost was to repair the wall as she asserted, the respondent was entitled to charge her to repair the damage caused by a contractor, whom she had engaged.
[55] The respondent’s case was that the charge was unrelated to the damage caused by the bobcat operator, which he fixed at no charge. Rather, it related to work outside the scope of quotation 28. The work relates to a double brick wall quoted at approximately 300 mm in height. When the wall reached this height, it was still below the level of the footpath and the respondent asked the applicant if she wanted the wall built up to the level of the footpath and she agreed. The additional charge related to this work.
[56] The applicant could not recall any discussion about this.
[57] The applicant contended that a charge of $800 for digger to move, fill and backfill walls, etc was duplicated in invoice 545. The respondent’s evidence was that the charge in invoice 538 related to backfilling behind the retaining walls whereas the charge for the supply of soil and work related to spreading soil in various sites including the terraces.
Invoice 545
[58] It was contended that a charge for new steps was a cost encompassed under quotation 26 “brick steps as to plan”. The respondent’s evidence was that quotation 26 refers to the L-shaped steps coming from the back terrace. The charge on invoice 545 relates to steps leading down from the carport, which were shown on the plan as timber. Later the applicant decided that the carport steps should be brick and the charge on invoice 545 reflects this additional work.
[59] The applicant agreed that the original plan had timber steps from the carport. However, on 5 June 2009 the respondent had indicated to her that a number of steps would need to be moved from their original site and suggested that the steps should be brick. Her evidence was that this discussion had occurred well before quotation 26 was provided. She disagreed that the charge for steps in quotation 545 was an extra.
[60] The applicant contended that quotation 26 was prepared after the decision to change the bricks to timber (relying on some hand written marks on the original plan). However, neither of the parties could indicate when the marks were made, who inserted them or what they represented so no reliance could be given to those markings.
[61] The applicant maintained that a charge for plumber to finish off downpipes and vents, etc was covered by quotation 27. The relevant part refers to connection, “once brick work to lower part of house is complete”, “by others”. The respondent contended that the $200 charge on invoice 545 reflects the agreement that the plumber would carry out the work and be paid by him, and this amount would be billed to Ms Franklin as an extra. I consider that this additional charge is justified and does not represent duplication or overcharging.
[62] Throughout her evidence, Ms Franklin was confused and unable in many instances to grasp the concept that “by others” meant that people, other than the respondent would carry out particular work. She had a generally poor memory of events, perhaps explicable by her evidence that she was advised by the respondent not to concern herself with the various amounts listed in the invoices and quotations.
[63] Her lack of ability to respond in a meaningful manner to many of the questions put to her, even when repeated, was evident. That is not to say that I find that the applicant was not being truthful in giving her evidence, and she earnestly strove to answer the questions put to her.
[64] However her recollection of many events and her understanding of how the work was to be carried out were poor. It was difficult to distil whether her understanding of how the completed works would appear was based on conversations she had with the respondent or simply reflected her own understanding, without any input from the respondent.
[65] In each instance, the respondent gave an explanation about the charges that were raised. This was in contrast to the evidence of the applicant, who was unable, in the majority of instances, to explain the basis of any overcharging. In those circumstances, the applicant has not discharged the onus of proving that overcharges and duplications occurred.
[66] The respondent conceded that a charge of $35 for a weed mat for the gravel pit is encompassed under the scope of the original works set out in quotation 27 and to this extent an overcharge of $35 has occurred. The Tribunal is satisfied that the respondent overcharged the applicant $35.
Defective Work and Work Not to Plan
[67] The applicant relied on the evidence of Mr Moore who found the work of the respondent to be defective and that work was not constructed in accordance with the plan. Mr Moore is a licensed quantity surveyor. He worked in private enterprise as a consultant from 1980 and has been a licensed residential builder in Queensland. He attended the applicant’s residence on 18 June and 2 July 2010 and provided a report dated 3 July 2010.
[68] The respondent relied on the report of Mr Haines of the Queensland Building Services Authority (QBSA). Mr Haines is a licensed builder and has been carrying out building inspections for the QBSA since 2006. Previously, he was a building contractor and consultant. He attended the applicant’s premises on 21 December 2009 in response to a complaint from Ms Franklin about the building work carried out by the respondent.
[69] Mr Haines provided a report dated 22 December 2009. In that report, Mr Haines identified category 1 defects, category 2 defects and other matters that are of a contractual nature.
[70] Based on Mr Haines’ report, Mr Moore had prepared schedules in which he addressed the issues raised by Mr Haines in his report, as well as other matters which he considered were not in keeping with the plan and also works which he considered defective.
[71] Much was made by the applicant about the weight the Tribunal should accord to the evidence of Mr Haines. It was submitted that Mr Haines’ evidence was of little value; given that he was discharging his statutory function and that his inspection or report did not deal with contractual breaches.
[72] Despite the fact that the QBSA does not become involved in contractual disputes, I consider that his evidence is relevant to the issues to be determined. It was submitted that Mr Haines appeared to be taking the side of the respondent over the applicant, and “that he had adopted the position of the respondent in respect of many of the facts in dispute” (page 8 of the applicant’s submissions). The same could well be argued about Mr Moore that he is taking the side of the applicant. The evidence of both “experts” assists the Tribunal to reach its findings.
[73] On the subject of Mr Poulson, his report was not relied on by the respondent. He was not called to give evidence. Whilst the applicant contends that the Tribunal is entitled to conclude that Mr Poulson would not have given evidence favourable to the respondent, I am mindful of the fact that Counsel for the applicant did not seek to have him made available for questioning. In all the circumstances, I disregard Mr Poulson’s report.
[74] Mr Moore and Mr Haines gave evidence contemporaneously on the basis that they could provide expert opinion to assist the Tribunal. Their evidence is summarised below.
Front brick retaining wall
[75] In respect to the front brick retaining wall, there is no installation of drainage gravel or waterproofing to the rear side of the brickwork. Mr Moore considered that this would pose difficulties for the product to be rendered. It would be necessary to source a product that could be used as a membrane prior to rendering, and he had serious misgivings that such a product would be effective as efflorescence is evident. He considered that the wall required demolition and rebuilding.
[76] Mr Haines did not consider lack of waterproofing to a garden wall prevented it being rendered and suggested the use of a lime based paint as a weatherproof membrane on the non-retaining side of the wall.
[77] The retaining wall does not extend to the driveway perimeter edge, as depicted in photograph BM-27. The respondent’s evidence was that this occurred because the position of the driveway was moved.
Drainage
[78] The respondent agreed that the front strip drains lacks an end cap and its absence allows water to flow out of the end. This is a defect which the respondent is liable to rectify. He is also liable for the installation of an inspection opening cap to the drain located to the front right side of the house.
[79] Messrs Moore and Haines considered that the driveway strip drain installation has been done in such a manner as to cause water coursing and subsequent water ingress through the sub floor of the under house area. This is a defect and should be remedied.
[80] The rear garden rubble pit is of questionable suitability and size and needs to be modified.
[81] A quotation for the rectification of drainage work from GP & BS White plumber in the sum of $280 provided by the respondent is in stark contrast to the costs detailed by Mr Moore who contended that the rectification suggested by Mr White would not provide an adequate solution because the design itself was incorrect. He considered that the front strip drain is “way under equipped” to cope with the quantity of water it would receive.
Timber sleeper
[82] Both expert witnesses agreed that a timber sleeper, installed against the timber front floor fascia of the house, was likely to permit termite infestation into the house. Whilst Mr Haines suggests that the solution was to install a termite barrier system for $440, Mr Moore considered the timber sleeper rail, and the drainage should be removed and a block work retaining wall installed for a total cost of $4,100. This is in accordance with the plan.
[83] Mr Moore considered that the reticulation system in the quotation from Termicide Pest Control (RF-15) did not have regard to the ongoing cost of servicing. The system requires a regular top up of chemicals, some of which will be washed away.
Stepping-stones
[84] These were considered by both experts to be not in accordance with the plan. The respondent’s evidence was that the pavers of the required dimensions were not available and he cut the pavers used on the rear deck. The applicant had been consulted and had agreed with this method.
[85] The applicant denied that any such discussion occurred. No cost was given for rectification.
Built-in area
[86] Inspections by both witnesses noted moisture seeping through the brick retaining wall to the under house area. This indicates failure of the waterproof membrane. Mr Haines considers this is a defect and the cost of such rectification is in the order of $350. He did not consider that the built-in area required demolition and rebuilding.
[87] Mr Moore opined that the whole area requires removal and rebuilding at a cost of $72,000. This was necessary because the work is not in accordance with the drawing, which stipulates attached piers every 2.5 metres. This had not occurred. Mr Moore also questioned the foundations and the structural adequacy of the entire area – there was no evidence of brick-up/tie-down of all the elements of the structure.
[88] The respondent submitted that the reference to attached piers referred to the foundation, not the brickwork. There is no evidence of structural distress or weakness in the built-in area. Mr Moore conceded that his recommendation to demolish and rebuild was made on the basis that he could not assure himself of structural integrity, not that there was any evidence of inadequate structural integrity.
Rear Retaining walls
[89] Mr Moore considered that it was desirable to demolish the retaining walls. He pointed to the lack of waterproofing and the questionable adequacy of the foundation, given that the walls are thicker than specified in the contract.
[90] Another consideration is the excess height of the walls, being in excess of 1,000mm in some places. Retaining walls exceeding this height require engineering certification and this was not done. There was a difference in opinion between the experts about the areas where the wall exceeded 1 metre.
[91] The presence of a fall in excess of 1,000mm in the wall, according to Mr Haines, could be remedied by the erection of a balustrade or a less expensive solution was to build up the garden below the wall to bring the ground height back to 1,000mm.
Cracked Tiles
[92] Both experts report a cracked paving tile where it has been cut around the brick retaining wall. This is a category 2 defect and required rectification. Mr Moore had costed this at $400.
Driveway
[93] The cobblestone driveway was said to be defective and not laid according to specifications, nor was the grouting method in accordance with the agreement between the parties. The applicant contended the cobblestones used are not the same product that she selected.
[94] There was no expansion joint in the driveway. Mr Haines did not regard this as a defect. He understood that there was no Australian standard, for the laying of cobblestones, but for ceramic tiles, any run over 9 metres requires an expansion joint at 4.5 metres. The driveway was around 10 metres.
[95] Mr Moore observed a number of drummy cobblestones in the carport area, an area that Mr Haines did not inspect. The extent of drummy tiles was a source of disagreement and the extent to which they affected the longevity of the works.
[96] The applicant had received a notice from the Brisbane City Council notifying her that the Council cross over area of the driveway represented a trip hazard. There was a height differential between the driveway and the grassed area, in addition to the uneven surface both at the edges and across the driveway. Mr Haines did not consider that the driveway constituted a substantial risk hazard. He had endeavoured to find a standard specification of products suitable for pathway or driveway but was unable to do so.
Unlicensed Work
[97] The applicant had contended that the respondent had carried out various forms of work, such as pest treatment, and supervision of other tradesmen in respect of which he was unlicensed. The respondent produced documents to support his contention that the property was pest treated by an appropriate professional and that he had not carried out any work for which he required a licence, other than drainage. In this respect he conceded that an amount of $2,475 for unlicensed plumbing and drainage works was owed to the applicant.
Consideration
[98] The claim is predicated on the basis that the respondent is in breach of his contractual obligations, in that he failed to complete work in an appropriate and skilful way, using reasonable care and skill and that his work was not carried out in accordance with the plan.
[99] Leaving aside the respondent’s obligations to provide and enter into a written contract and provide written variations, in respect of which he has been penalised, the Domestic Building Contracts Act 1991 (“the Act”) mirrors the builder’s contractual obligations by stating at section 47 of that Act:
The building contractor warrants the subject work will be carried out –
in an appropriate and skilful way; and with reasonable care and skill.
[100] There are also provisions in the Queensland Building Services Contracts Act 1991 (“the QBSA Act”) concerning standards in the building industry. The objects of the QBSA Act include regulation of the building industry by ensuring the maintenance of proper standards and to provide remedies for defective building work. It is pursuant to section 72 of the QBSA Act that Ms Franklin lodged a complaint with the QBSA about the standard of work carried out by Mr Rodgers-Falk.
[101] Based on his inspection, Mr Haines considered that there were a number of defects requiring rectification. There were defects relating to the drainage and waterproofing, some of a relatively minor nature such as the absence of an end cap on the strip drain, the installation of an inspection opening cap, the garden rubble pit, and others, such as the failure of the waterproof membrane in the bricked up area under the house and the drainage system designed to take water away from that area are of significant concern.
[102] The respondent acknowledges that he is liable to rectify those problems. However, the evidence as to the appropriate method of rectification and the estimated cost demonstrates a vast disparity between the quotations produced by Mr Rodgers-Falk and the costing produced by Mr Moore.
[103] Mr Haines did not refer to the costs associated with any of the items he considered required rectification. What is apparent, however, is that he considered that the cost of rectifying all the defects he identified (leaving aside any issues of a contractual nature), would not exceed the amount being held by the owner, which is in the vicinity of $22,000.
[104] It is contended by the respondent that rectification of the built-in areas could be achieved by the application of appropriate waterproofing at a cost of $350 and the strip drain to the driveway and the other drainage items could be rectified at a cost of $280. The applicant’s position is that that the whole bricked in area needs to be removed and rebuilt at a cost of $72,000.
[105] In considering whether the applicant’s position is justified, I scrutinised the reasons given by Mr Moore. In annexure B he lists a number of factors contributing to the necessity for removal of existing and full rebuild. The necessity primarily relates to his concerns about the adequacy of the foundation, the lack of adequate waterproofing, the lack of piers every 2.5 metres (the evidence of the respondent was that this requirement relates to the piers in the foundation and not the brickwork), and no evidence of sub-floor brick-up tie down. However, despite those misgivings, he was unable to point to any evidence of structural distress.
[106] The matter of Bellgrove v Eldridge (1954) 90 CLR 613 is authority for the principle that the usual remedy for incomplete and defective building work will be the cost of completing the building works in accordance with the contract. However, that principle was qualified by the statement that such reinstatement must be a necessary and reasonable course to adopt.
[107] In the present circumstances, I do not consider that the element of necessity is made out. Further, it would be unreasonable to require demolition and reconstruction, having regard to the fact there is no demonstrated inadequacy of the structure and given that to do so would involve demolition of surrounding areas at considerable cost.
[108] Conversely, I am mindful that the cost of rectification put forward by the respondent is couched in vague terms and does not describe in detail the material required or the cost of labour. There is a need to halt the water ingress into the sub-floor area, a situation that has arisen because of the combination of inadequate waterproofing and drainage.
[109] I am not persuaded that the quotation of $280 supplied by Mr White and the quotation of $350 for waterproofing would adequately rectify the area, and I prefer Mr Moore’s evidence about those aspects.
[110] Mr Moore has costed the rectification of the strip drain at $2,250. He has not specifically costed for the provision of waterproofing in isolation however he has costed $3,200 for waterproofing, other drainage work and aggregate fill. I consider that it is reasonable that the respondent meet this cost.
[111] For the same reason, I do not consider it reasonable that the rear retaining walls be demolished and rebuilt. The walls are in excess of 1,000mm in height in places, they lack engineering certification and it is agreed there is no waterproofing. There is a difference of opinion between Mr Moore and Mr Haines as to the ability to successfully render the walls. This is also applicable to the front boundary retaining wall. However, in the absence of any evidence to the effect that the walls cannot be rendered, I make no order against the respondent.
[112] In respect to the allegations that certain works have not been carried out according to plan, it is difficult to establish by reference to the plan itself, the various invoices and quotations, including variations, where this occurred. Certainly, the stepping stone installation is not according to the plan and there is no written documentation as to why this occurred. I do not accept the respondent’s evidence that the change was made by agreement. However, I note that Mr Moore has not costed an amount to rectify this.
[113] The entry wall does not comply with the plan. Although the evidence of the respondent was that the driveway was moved, I consider he is responsible for the cost of completing the wall to the driveway in order to give a finished appearance to the job. Mr Moore has costed this work at $1,600 and I find the respondent liable for this cost.
[114] In respect to the timber sleeper against the fascia, this is acknowledged by the respondent to be a defect. His solution is to install a termicide termite barrier system in respect of which a quotation for $440 was provided. Mr Moore considers that the rectification required would cost $4,100, however his solution encompasses removal of the rail, the removal and reinstallation of the strip drain, building a retaining wall and other works. The landscape plan indicates a 100mm block work retaining wall.
[115] Mr Moore opined that the termite barrier proposed by the respondent had not allowed for the cost of chemicals and flow-off. Mr Haines, in finding the sleeper installation a category 1 defect, simply refers to bridging of termite barriers at the front of the property.
[116] I consider that the respondent is in breach of his contractual obligations. There is no reasonable explanation as to why the 100 block retaining wall has not been adhered to and the method used by the respondent prevents not only a terminate infestation risk, but utilises the incorrect material. I consider the respondent is liable to correct this defect and I order restitution in the sum of $4,100, less an adjustment of $800 as this cost includes rectification work to the strip drain, which is costed elsewhere.
[117] In respect to the cobblestone driveway, this is a source of considerable dissatisfaction to the applicant who claims that not only are the cobblestones not the same as she selected, they were laid incorrectly, with poor set up, numerous drummy tiles and the council area poses a trip hazard.
[118] I do not think it is sustainable to argue that the driveway does not constitute a trip hazard, given that the Council has declared that it is and that it must be remedied. The issue is whether the respondent should be held liable in the sense that he should have known that the driveway, constructed in the manner that it was, using the materials which he used, was likely to be a trip hazard.
[119] More significantly, however, to the applicant is the fact that she has a driveway, the appearance of which is not as she agreed. I accept her evidence that the respondent laid the driveway, contrary to her instructions, whilst she was overseas. I also accept that she did not voice her dissatisfaction when she first saw the completed driveway, as she wanted to find the sample she had selected before she complained and she was hopeful that the job would look better when cleaned. She was also unhappy with the method of laying the cobblestones, with the grouting being substantially in excess of what she had wanted.
[120] I accept that the applicant was a truthful witness. I find the respondent was evasive at times and was inclined to be dismissive of the issues raised with him. Ms Franklin’s evidence was that she indicated to the respondent that she did not want large mortar joints between the cobblestones.
[121] Her evidence is although the respondent mentioned “finger widths” to her, she indicated that she did not want finger widths and wanted a joint the same width as the joint in the front wall brickwork. When the issue of finger widths was raised with the applicant during her oral evidence, she appeared not to know how to calculate this, which is in keeping with her evidence that she did not agree to 2-3 finger widths.
[122] Whilst Mr Thompson‘s evidence was that he was present when there was a discussion about layout between the applicant and respondent, I note this is not contained in his statement. In any event, Mr Thompson’s evidence was to the effect that he saw the layout, not that he was privy to any conversation between the parties. In respect to the topic of layout, I prefer the evidence of the applicant in this respect. Ultimately, I find that when the topic of layout was discussed with Ms Franklin, she did not agree to 2/3 finger widths.
[123] In respect to the choice of cobblestone paver, Ms Franklin holds firmly to the belief that the cobblestone used was not the one she selected. Mr Franklin was unable to say whether any of the samples were sawn on one side.
[124] Apart from the evidence of the parties on this issue, there is evidence from Mr Thompson, who stated that he never saw a sample that was sawn on one side, and identified sample 4 as similar to those he saw on the property. I have some reservations about Mr Thompson’s evidence, given that he has an association with Mr Rogers-Falk, and given that the description of samples did not form part of his written statement.
[125] The problem in reconciling this issue is compounded by the fact that Ms Franklin did not complain about the choice of cobblestone in her email of 15 August 2009. When having had regard to all the evidence, I am not satisfied that the evidence demonstrates to the requisite standard that Ms Franklin’s driveway was laid with a product which she did not choose.
[126] In respect to the finish, evidence was given of drummy pavers, the presence of which in Mr Haines’ opinion did not constitute a defect. There was no costing from Mr Moore on this aspect in any event.
[127] The submission of the applicant in regard to removal and replacement of the driveway would appear to be predicated on two bases: firstly, the Council has mandated that the driveway be removed; secondly, reliance is placed on Mr Moore’s comment that if major works occur in adjoining areas, it is likely that the driveway will be damaged by heavy plant and machinery. In response, the following points are made: the Council did not require removal of the entire driveway; it is the crossover paving which is the problem and, in the event of reconstruction, Mr Moore recommended that the crossover paving be constructed of plain concrete.
[128] Secondly, the defects in the driveway are not such that they necessitate demolition and reconstruction. Consequently, I decline to make an order for rectification.
[129] In respect to the contention that the respondent had an obligation to ensure the driveway would meet council standards, there was no evidence about a licensed building contractor’s obligations in the area of the respondent’s expertise. Without such evidence, I do not find that the respondent should be held liable because part of the driveway is a trip hazard and requires rectification.
[130] Ultimately, whilst the appearance of the driveway is disappointing to the applicant, it is, apart from the council area, fit for purpose. I find the grouting is not carried out as agreed between the parties, however I decline to make an order for compensation.
[131] I note that although the respondent in Schedule A to his submissions refers to an allowance made by the respondent for further cleaning, there is no reference to this in the submissions on damages. Mr Moore has costed cleaning at $10 per metre and at 16.5 metres this equates to $1,650 and I find the respondent liable for this cost.
[132] The respondent agreed that a cracked paving tile costed at $400 needs removal and replacement and this will be included in the damages owed by the respondent.
[133] In respect to the other alleged defects and contractual breaches, even if substantiated, I do not consider that they justify any order for damages.
[134] In respect to the applicant’s claim for storage costs, I accept that the applicant was uncertain as to the cost of waterproofing the built-in area. However, she had not made any attempts to investigate methods and possible costs of rectification, and Mr Moore was only briefed to comment on alleged effects. In such circumstances, I do not consider that the applicant has taken reasonable steps to mitigate her loss and I disallow that claim.
Summary
[135] The respondent is liable for the removal and repair of cracked tile ($400), gravel mat ($35), $5,550 for drainage and waterproofing works, $3,300 for the timber sleeper and retaining wall (having allowed a deduction of $800 for the drainage work encompassed in the order for $5,500), $1,600 for the completion of the front retaining wall, $1,650 for general clean up of the driveway and $2,475 for unlicensed works.
[136] I direct that the amount of $15,010 be offset against the amount owed under the contact, $21,450. I order that the applicant pay to the respondent the sum of $6,440 within 30 days.
[137] As to the issue of costs, section 100 of the Queensland Civil andAdministrative Tribunal Act 2009 states, in effect, that each party usually bears its own costs. Pursuant to section 102 of that Act, the Tribunal may make an order in regard to costs if the Tribunal considers the interests of justice require it to make such an order. As both parties have incurred costs in these proceedings and each has succeeded in part in their respective claims, I do not consider, having considered section 102 that the interests of justice require an order.
[138] Accordingly, I order that the parties meet their own costs for the proceeding.
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