Gaeta Rural Fire Brigade v William George Ginger t/as Billy Ginger's Shed Erecting
[2017] QCAT 313
•15 September 2017
CITATION: | Gaeta Rural Fire Brigade v William George Ginger t/as Billy Ginger’s Shed Erecting [2017] QCAT 313 |
PARTIES: | Gaeta Rural Fire Brigade |
| v | |
| William George Ginger t/as Billy Ginger’s Shed Erecting (Respondent) | |
APPLICATION NUMBER: | BDL301-16 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers |
DELIVERED ON: | 15 September 2017 |
ORDERS MADE: | 1. That William George Ginger t/as Billy Ginger’s Shed Erecting pay to Gaeta Rural Fire Brigade the amount of $10,227.70 within 60 days of the date of this order. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – commercial building contract – breach of contract by builder where builder has not complied with directions – whether homeowner entitled to damages – whether work defective and incomplete Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(a), Bellgrove v Eldridge (1954) 90 CLR 613 |
APPEARANCES: | |
APPLICANT: | Gaeta Rural Fire Brigade |
RESPONDENT: | William George Ginger t/as Billy Ginger’s Shed Erecting |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Background
Gaeta Rural Fire Brigade (“Gaeta”) is a volunteer fire brigade. It contracted with William George Ginger t/as Billy Ginger’s Shed Erecting (“Mr Ginger”) to lay a concrete slab and erect a steel frame building for a total contract price of $27,130.00.[1] The terms of the agreement were reduced to writing in the form of a tax invoice and statement outlining the works to be carried out. Payment was to be made in three instalments.[2] A structure was built but Gaeta says the building works performed were defective and incomplete.
[1][2]Ibid.
Gaeta filed an application for a commercial building dispute in the Tribunal on 22 November 2016 seeking rectification and damages.
By Directions dated 5 April 2017, Mr Ginger was required to file an explanation for his failure to appear at the Compulsory Conference on
28 March 2017 and the Directions Hearing on 5 April 2017 by 12 April 2017. He was also required to file a response to the application by 19 April 2017. Direction 4 provided that if he failed to comply, Gaeta may be entitled to a final decision in the proceeding.
Mr Ginger has failed to file the explanation and response.
Gaeta made total payments of $36,099.25 to Mr Ginger as follows:
Date
Amount
Comment
Unknown, but acknowledged paid
20 April 2016$10,350
Deposit materials and BSA Insurance.
21 April 2016
$8,500
Preparation and excavation of the area and pouring the slab.
19 May 2016
$3,789.25
Materials including screw bolts, tape, whirly birds, insulation, slide windows and two doors.
01 June 2016
$13,460
Erection of the steel frame building.
What is the Tribunal’s Jurisdiction?
A person involved in a building dispute may apply to the Tribunal pursuant to s 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) to have the dispute decided. S 75 defines ‘tribunal work’ and includes the erection or construction of a building.[3] Under the Building Codes of Australia Classes of Building the construction of a shed falls within class 10a.[4] Where the claim is for less than $50,000.00, the claim falls within a minor commercial building dispute.[5]
[3]QBCC Act, s 75(1)(a).
[4]Queensland Building and Construction Commission, Building Codes of Australia Classes of Buildings.
[5]QBCC Act, Schedule 2.
I am satisfied the commercial building work the subject of the dispute comes within the Tribunals jurisdiction.
Was Gaeta entitled to terminate the contract?
The building work commenced in April 2016 and Mr Ginger left the site late June 2016. Gaeta wrote to Mr Ginger on 28 June 2017 requesting that he return to the site, rectify the defective works identified and complete the building works as per the contract. Mr Ginger did not respond to Gaeta’s attempts to contact him.
The contract was terminated by Gaeta as Mr Ginger demonstrated an intention to no longer be bound by the terms of the contract.[6] This is evidenced by the defective building works, and a failure to complete the works as agreed between the parties and rectify the defective and incompete works when requested. There was no termination clause included in the contract. As a consequence of Mr Ginger’s repudiatory conduct, Gaeta accepted the repudiation, terminated the contract and brought a claim for damages.
[6]Heyman v Darwins Ltd [1942] AC 356.
I find that at the time Gaeta terminated the contract, it was entitled to accept the repudiatory conduct of Mr Ginger and terminate the agreement between the parties.
Was the contracted work satisfactorily completed?
On 26 July 2016 Gaeta complained to the Queensland Building and Construction Commission (“QBCC”) about the alleged defective and incomplete work. A representative of the QBCC inspected the building works on17 August 2016 and prepared a report.[7]
[7]QBCC Report dated 24 August 2016.
The report refers to 5 complaint items:
Complaint number
Complaint description
Details
1.
Inadequate footings in concrete slab
The concrete slab has not been poured in accordance with the approved engineered drawings and as such was identified as a structural defect. The only way the slab can be deemed as compliant was to pour additional beams around the outside.
2.
Missing P.A door
The personal access door has not been installed. This was determined to be a contractual issue.
3.
Broken window
Both windows are missing the sliding glass window section, with a sheet of insulation covering the opening. This was determined to be a structural defect.
4.
Decking not screwed down correctly
The outside deck area has hardwood floor decking timber attached to steel joists with a single screw in the centre of the board. Some boards are missing screws. The ends of the boards have not been cut off neatly and are different lengths. The QBCC determined that this was a non-structural defect.
5.
Gaps between roof and external cladding
The external walls are sheeted with Colourbond orb sheeting. On two sides of the shed and the clerestory sections, the wall cladding stops approximately 250mm short of the roof and the insulation is exposed. This was considered a structural defect.
The QBCC issued Mr Ginger with a Direction to Rectify and/or Complete complaint items 1, 3, 4, and 5 on 24 August 2016.[8] Mr Ginger failed to comply with the Direction.
[8]Direction to rectify dated 24 August 2016.
In its statement of evidence,[9] Gaeta identified two further items that it claims are incomplete work not addressed by the QBCC. The first item relates to the failure to supply the keys for a lock. The second item is the failure to install 3 whirly birds.
[9]Statement of evidence filed 28 April 2017.
On the basis of the Invoices describing the work to be performed, the site drawings and the QBCC report, I am satisfied Mr Ginger has failed to complete all the contracted work to a satisfactory standard.
I am further satisfied Gaeta is entitled to a decision without hearing from the builder. Mr Ginger did not respond to initial requests to complete and rectify the work, he did not respond to the Direction to Rectify and/or Complete by the QBCC and he has not responded to Tribunal Directions.
I am satisfied the application was served on him in accordance with the requirements of the legislation.[10]
[10]Affidavit of Service of Jane Ann Duff dated 1 December 2016.
What is Gaeta Rural Fire Brigade’s entitlement to damages?
Geata is entitled to have the building work performed in accordance with the contract. Gaeta’s damage is calculated by the loss sustained in rectifying the defective and incomplete work.[11]
[11]Bellgrove v Eldridge (1954) 90 CLR 613.
The work undertaken to rectify the defective and incomplete work must be necessary and a reasonable course must be adopted.[12]
[12]Ibid.
I accept that the loss sustained by Geata is quantified by ascertaining the amount required to rectify the defective work and complete the works in order to give Geata the equilivant of the building works that were contracted for in the first instance under the contract.[13]
[13]Ibid.
There are seven complaint items, both defective and contractual items, that have been rectified by Gaeta.
Complaint item 1
In support of their claim for damages for complaint item 1, Gaeta relies on the following documents:
a)Quote and authorisation to proceed issued by Engineers Queensland.[14] The quote is for $2,750.00 and relates to the cost of inspecting the works the subject of the dispute and undertaking various design modification and certification.[15]
b)Quote for $5,663.00 from Madmic Pty Ltd t/as Mick Berg’s Concreting which relates to the cost of rectifying complaint item 1.[16]
c)Letter dated 3 March 2017 from Gaeta to Mackay’s Fuel & Rural authorising $100.00 worth of fuel be provided to David Goodwin ‘for services rendered to the brigade’. In their Statement of Evidence Gaeta states that $100.00 was for the ‘fuel for the excavator to dig new footings’.[17]
[14]Report Engineers Queensland dated 16 June 2016.
[15]Ibid.
[16][17]Statement of Gaeta Rural Fire Brigade dated 23 April 2017.
I accept that the building work performed by Mr Ginger and identified in
item 1 of the Directions to Recitify and/or Complete was defective and the cost of rectifying the defective work is $8,513.00. It is noted that in the application Gaeta claimed $8,503.00 and a further $2,750.00 for the Engineers Report. However the Statement of Evidence includes the Report in the claimed amount of $8,513.00 and this appears to be correct.
Complaint item 2
The QBCC found that the personal access door had not been installed. Gaeta says that they paid Mr Ginger $300.00 for the supply and installation of the door. In support of their claim for damages, Gaeta relies upon a tax invoice from Steeline for the amount of $342.42.[18] This amount relates to the purchase of a personal access door, hinges and entrance set.
[18]Tax Invoice of Steeline dated 24 April 2017.
I accept that the personal access door was a contractual item that was not installed by Mr Ginger and Gaeta is entitled to damages in the amount of $342.42.
Complaint item 3
The QBCC report found Mr Ginger failed to repair a broken window. I accept that the cost of installing the window in accordance with the contract is $123.20 as evidenced by the quote from Bradman’s Windows & Doors.[19]
[19]Quote from Bradman’s Windows & Doors dated 3 June 2016.
Complaint item 4
The QBCC found that the hardwood decking had ‘not been attached in accordance with industry standard and the ends had not been trimmed neatly’.[20] While I accept the finish was not of an acceptable standard, Gaeta has not provided a quote or Invoice or proof of payment for the rectification work and the claim of $480.00 is disallowed.
[20]QBCC report dated 24 August 2016.
Complaint item 5
I accept the installation of cladding, performed by Mr Ginger and identified in item 5 of the Directions to Recitify and/or Complete was defective. The quote from Terry Whitehouse[21] is evidence of the cost of rectifiying the gaps between the roof and external cladding at $640.00 and I allow that amount.
[21]Quote from Softis, Flashing and P.A Door Installation, undated.
Complaint item 6
Gaeta claims Mr Ginger failed to provide the keys to the lock. In the absence of evidence to the contrary I accept that Mr Ginger did not provide the keys. I alllow the amount of $128.58 based on the quote provided by Central Queensland Frames & Trusses for a sliding patio door and deadlock.[22]
[22]Quote from Central Qld Frames and Trusses dated 28 August 2016.
Complaint item 7
The material purchased by Mr Ginger includes ‘3x Whirley Birds R/Vent at a cost of $165.00.[23] Gaeta says these vents were not installed and has provided a a quote from D Goodwin & T Simpson,[24] to install three whirly birds at $60.00 per item. I am satisfied the total cost to install three whirly birds is $180.00 and allow that amount.
[23]Invoice Billy Ginger’s Shed Erecting dated 19 May 2016.
[24]Quote from D Goodwin & T Simpson dated 16 November 2016.
Claim for refund of $1,500
Gaeta also claims the refund of the amount of $1,500.00 which it says it paid in addition to the contract price for cutting sheets of Colourbond. It says this expense would not have been incurred if the supplied plans from the Certifier for construction had been followed. The Minutes of Shed Meeting held on 1 June 2016 indicate the request from Mr Ginger was for a further $1,500.00 ‘because the extras far exceeded his expectation of build’ and that this amount would only cover some of the extra costs. Cutting the sheets was only part of the explanation.
It appears from the final amount actually paid there were changes to the original shed as quoted.There is no evidence that specifically addresses the question of the costs incurred by changes as opposed to costs arising from the builder failing to follow the plans. I am not satisfied the amount claimed has been established and the claim for $1,500.00 is not allowed.
Gaeta further claims the amount paid to Mr Ginger of $350.00 for the Building Services Authority (“BSA”), which it says was not paid over. I am satisfied this amount was paid to Mr Ginger. In the absence of evidence that he did in fact pay the amount to BSA I am prepared to this allow this amount as an overpayment to Mr Ginger.
Final Orders
I am satisfied the building work was not performed to an acceptable standard, if at all. The builder did not perfom rectification work ordered by QBCC and also failed to complete the building works as agreed. I am satisfied the costs incurred by Gaeta in rectifying the defective work and completing the work are reasonable. It is therefore appropriate to award damages for necessary rectification and completion work commissioned by Gaeta.
The Tribunal orders that Mr Ginger pay to Gaeta the amount of $10,227.20.
Billy Ginger’s Shed Erecting Tax Invoice and Statement dated 20 April 2016,
19 May 2016 and 1 June 2016.
Tax Invoice/Statement from Madmic Pty Ltd t/as Mick Berg’s Concreting dated
24 February 2017.
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