Galagedara v Henning

[2021] QCAT 136

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Galagedara v Henning [2021] QCAT 136

PARTIES:

SUJEEWA GALAGEDARA

(applicant)

v

JUSTIN HENNING

(respondent)

APPLICATION NO:

BDL268-17

MATTER TYPE:

Building matters

DELIVERED ON:

28 April 2021

HEARING DATE:

20 April 2021

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.   The application for domestic building disputes filed by Sujeewa Galagedara on 10 November 2017 is dismissed.

2.   The counter-application filed by Justin Henning on 16 March 2020 is dismissed.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN ACTION FOR BREACH OF CONTRACT – PROOF AND EVIDENCE – where homeowner seeks damages for alleged breach of statutory warranty by builder – where builder counter-claims for alleged unpaid work – whether sufficient proof

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B, s 20, s 22

Briginshaw v Briginshaw (1938) 60 CLR 336

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

1. In July 2017, Mr Henning, who is a licensed landscaper, carried out work at the home of Mr and Ms Galagedara. The work included the construction of a driveway and the installation of a concrete footpath around the house.

2. In this proceeding, Ms Galagedara seeks damages against Mr Henning for the cost of removing and replacing the footpath, and adding an expansion joint between the driveway and the garage. The amount sought is not fully quantified, but it would probably exceed $12,000.[1]

   [1]Ms Galagedara has supplied quotations from Easydone Concreting (part of Exhibit 4): $4,741 for demolition work (but this includes demolition of the driveway, which Ms Galagedara is not pursuing) and $28,208.40 for construction work, of which $7,080 is attributed to construction of a replacement footpath.

3. Mr Henning counter-claims for $9,200 comprising $3,000 for work under the original contract in 2017, and $6,200 for additional work done in 2018 after the tribunal proceeding was commenced.

4. Ms Galagedara and Mr Henning both gave oral evidence at the hearing. There was also documentary evidence.[2]

   [2]Exhibits 1 to 8.

5. Ms Galagedara sought to also introduce expert evidence in the form of a recent building report by a consultant licensed builder, Mr Bernard Siczek. Ms Galagedara also wished to have Mr Siczek give oral evidence by phone. However, I refused to allow her to introduce such evidence, after hearing Mr Henning’s objection, and having regard to the history of the matter. The proceeding was filed in 2017, and numerous directions have been made by the tribunal over the years for parties to file statements by particular dates, well in advance of the hearing. Mr Siczek’s report is dated 8 April 2021, which is well after those due dates. Although Ms Galagedara provided a copy of the report to Mr Henning before the hearing, it would in my view have been procedurally unfair to allow Ms Galagedara to rely on this recent evidence when insufficient time had been left to Mr Henning to obtain any expert report in response. Nor would it have been appropriate to postpone the hearing to allow time for Mr Henning to obtain a report, having regard to the ample time that was available to Ms Galagedara to obtain a report since filing her application, and bearing in mind the tribunal’s obligation to be quick and fair.[3]

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b).

6. I also refused to admit into evidence a document attached to Mr Henning’s counter-application (which was Exhibit 8) because it was an agreement signed by the parties at a compulsory conference convened by the tribunal on 5 March 2018. Evidence of anything done at a compulsory conference is not admissible at a hearing, unless, relevantly, both parties agree that the evidence may be admitted.[4] Ms Galagedara did not agree to the document being admitted into evidence.

   [4]Ibid, s 74.

Legislative framework

1. As the construction work was associated with the improvement of a home, it was ‘domestic building work’.[5] Warranties by the building contractor are implied by statute into such a contract. Relevantly, these were a warranty that Mr Henning would carry out the work in an appropriate and skilful way, and with reasonable care and skill,[6] and a warranty that materials used would be good and suitable.[7]

   [5]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 4.

   [6]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 22.

   [7]Ibid, Schedule 1B, s 20(1).

Background

1. The following matters are not in dispute, and I find accordingly:

   (a)the house was newly-built as at mid-2017;

   (b)on 3 June 2017 Ms Galagedara and her husband signed the contract schedule which had been emailed to them by Mr Henning;

   (c)the work to be done under the contract included ‘installation of driveway, ramp and steps to front of house and footpath all around the house (salt and pepper exposed, 100 mm thick and sealed)’ and other work including the construction of retaining walls and a fence;

   (d)the contract price was $30,000 payable by way of a $5,000 deposit, and then three staged payments;

   (e)work commenced on 5 July 2017;

   (f)payments made by Ms Galagedara were $5,000 on 5 July 2017 and $10,000 on 12 July 2017;

   (g)work ceased, after the contract had been only partly-performed, on 15 July 2017;

   (h)on 10 November 2017, Ms Galagedara filed her ‘application for domestic building disputes’[8] in the tribunal, seeking orders for the replacement of the driveway, retaining walls and footpath;

   (i)after the compulsory conference in March 2018, Mr Henning or a staff member returned to the site in April 2018 and undertook further work; and

   (j)Mr Henning filed a response on 11 January 2019,[9] and a counter-application on 16 March 2020.[10]

   [8]Exhibit 1.

   [9]Exhibit 7.

   [10]Exhibit 8.

2. At the hearing, Ms Galagedara clarified that she now seeks damages instead of orders for replacement work, and that she now presses claims in respect of only some elements of the construction work. She seeks damages for the cost of demolishing and replacing the footpath. She seeks damages for the cost of inserting an expansion joint between the driveway and the garage, but she does not otherwise seek damages in respect of the driveway or the retaining walls. She does not want an order made requiring Mr Henning to carry out rectification, because she has lost trust in him.

The footpath

1. The footpath abuts the house.

2. Ms Galagedara made various complaints about the footpath in her November 2017 application, as explained further in her oral evidence at the hearing. These included that the footpath is not uniformly 100 millimetres in depth; that there should have been an expansion joint filled with a foam cushioning product such as Abelflex between the footpath and the house walls, and between the footpath and other elements such as pipes; there was a step-down at a corner of the house creating a trip hazard; in places there are holes under the footpath; the footpath has sunk 3.5 centimetres near the alfresco area; the footpath covered up a drain in one area; and the surface of the footpath is lower than the level of a drain inlet.

3. Ms Galagedara explained at the hearing that in April 2018 Mr Henning’s staff carried out some works on the footpath including installing a ramp at the step-down, and replacing a portion of the footpath. However, the ‘salt and pepper’ mix used in 2018 was a distinctly different shade than that poured in 2017, creating a visual disharmony. Ms Galagedara provided photographs showing the difference.

4. Ms Galagedara argues that, in any event, the entire footpath needs to be removed and a new footpath installed because of the failure to include an Abelflex expansion joint. She contends that this is causing cracking in the walls of the house. Ms Galagedara relies on three pieces of evidence in support of her argument that the footpath needs to be replaced because of the absence of Abelflex.

5. First, there is a quotation by Kustom Concrete Finishes dated 8 August 2017 for further work at the site, which lists ‘expansion joints’ as one of the items of work.[11]

   [11]Part of Exhibit 1.

6. Second, there is an undated letter from Mr Caleb Davy of Easydone Concreting.[12] Mr Davy says in the letter that he attended the site on 4 June 2019. He says that cracking in render walls had been caused by the lack of Abelflex. He says the entire footpath must be replaced to prevent further cracking.

   [12]Part of Exhibit 3.

7. Third, there is an email from Mr Alan McEwan, maintenance manager with the building firm that built the house, to Ms Galagedara dated 2 July 2019.[13] Mr McEwan refers to photographs emailed by Ms Galagedara, and says that the cracking is being ‘caused by your concrete path not having any Abelflex installed between path and render/slab putting pressure on these areas’. Mr McEwan says that the problem is not covered by the home builder’s warranty because the footpath had been installed by a separate contractor.

   [13]Part of Exhibit 4.

8. Mr Henning’s position is that Abelflex is not required in such a setting because the footpath can expand away from the house. He contends that cracking in the wall render can be caused by other factors such as movement of the house slab. He contends that the tribunal should not rely on the evidence to which Ms Galagedara points because of the commercial interests of the people who supplied the information.

9. Mr Henning acknowledges that there is a colour difference between the 2017 and 2018 ‘salt and pepper’ pours, but he says this was unavoidable. He relies on an email from Mr Harrison Davis, a sales representative with Boral Concrete, dated 25 November 2019.[14] Mr Davis noted the different volumes of the two orders: 15.6 cubic metres on 12 July 2017 and two cubic metres on 30 April 2018. Mr Davis says that a match cannot be guaranteed because the constituents are natural products and there are differences from time to time in the cement, sand, aggregate and fines used in mixtures. Further, the smaller quantity would have required less aggregate and more fines to facilitate pumping.

   [14]Part of Exhibit 8.

10. Mr Henning also contends that uniformity in thickness is never achievable, given uncertainties on site. He says that washouts under the footpath were present only because the job was cut short in 2017: normally they would have been filled in as the next step in the job. He says work ceased when the parties agreed to suspend work because of financial constraints faced by Ms Galagedara. Mr Henning says that Ms Galagedara told him on 14 July 2017 that she could not obtain further money from the bank, but that she wanted him to continue work and she would pay him the balance when she could. (I note that Ms Galagedara denies making these comments). Mr Henning says he was not willing to proceed until Ms Galagedara could provide evidence of capacity to pay. Mr Henning has supplied a printout of a text message from Ms Galagedara to himself, which according to Mr Henning was sent on 18 July 2017 and according to Ms Galagedara was sent on 20 July 2017, which stated:

    We are waiting to get money from the bank.

    You show how we get the money from our Friand [sic].

    We still asking money from Rams

    Every body mark [sic] mistake,

    Need be accept the fault. And more on. And fix.

    Tying [sic] to fix the situation. …[15]

    [15]Part of Exhibit 8.

11. Mr Henning says he ended up sending Ms Galagedara a letter on 4 December 2017.[16] In the letter Mr Henning contended that Ms Galagedara was in substantial breach of the contract by failing to provide requested evidence of her capacity to pay the unpaid balance, and required such evidence within ten business days. Mr Henning says that he then sent notice of termination of the contract on 2 January 2018.[17]

    [16]Also part of Exhibit 8.

    [17]Also part of Exhibit 8.

12. Ms Galagedara says the text message was simply conveying that she would need to pay by bank transfer rather than by cash. Ms Galagedara says she had the capacity to pay, and she has filed copies of invoices issued by her business,[18] to show a revenue stream, and she has outlined her asset position. She has a different explanation for the ending of work at the site. She says that she and her husband were dissatisfied with Mr Henning’s work, and that she and her husband ended the contract after a big argument between Mr Henning and her husband.

    [18]Part of Exhibit 6.

13. In my view, Mr Henning’s account of why work stopped is more compelling. He has provided documents to back up his version of events including the text message which, while cryptic, does tend to suggest difficulty in making timely payment. In contrast, Ms Galagedara has not provided supporting evidence on this issue such as a statement from her husband or evidence of replies to Mr Henning’s letters. I accept Mr Henning’s explanation of why work halted. Accordingly, I accept his argument that certain aspects of the work were simply incomplete, rather than inherently defective.

14. There is conflicting evidence about whether the footpath is defective on account of Abelflex (or a similar product) not being used as an element especially between the footpath and the house. The absence of Abelflex is not attributable to work being halted, because it was never Mr Henning’s intention to use such a product.

15. The reference to expansion joints in the Kustom quotation is of no real assistance, as the quotation is not specific about where such joints would be used. Nor does the quotation indicate whether a foam cushioning product such as Abelflex would be used.

16. Mr Henning says that Abelflex is not required, whereas Mr Davy and Mr McEwan say that it is. Each of those persons have a financial interest in the positions they have taken:

    (a)Mr Henning because of the way he did the work and the financial implications for him of a finding that Abelflex was necessary;

    (b)Mr Davy because his firm submitted quotations to Ms Galagedara for demolishing and replacing the footpath; and

    (c)Mr McEwan because his position places liability with the builder of the footpath rather than with his own firm which was the builder of the house.   

17. Of course, the fact that a party or a witness has a financial interest in a topic does not preclude acceptance of their evidence, but it is a factor to be taken into account.

18. A finding that an Abelflex joint was structurally necessary would be a finding of some gravity, because it would mean that very extensive rectification would be required. Such a finding should be made only on the basis of properly persuasive evidence,[19] such as independent evidence from a professional person qualified to assess the cause of cracking. Such evidence is lacking in this case. I am not satisfied on the balance of probabilities that the construction of the footpath is defective on account of the absence of an Abelflex (or similar) joint. Accordingly, I am not satisfied that Mr Henning breached the statutory warranty relating to skill and care in this regard.

    [19]Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

19. There is undoubtedly a visual defect in the footpath on account of the difference in colour between the 2017 and the 2018 sections. I accept that the difference was practically inevitable, for the reasons explained by Mr Davis of Boral. As I have found that the work halted in 2017 for the reasons indicated by Mr Henning, rather than the reasons indicated by Ms Galagedara, however, I am not persuaded that there was any breach of warranty by Mr Henning. He used reasonable care and skill, and the materials used were as good and suitable as they could have been in the circumstances.

20. Accordingly, I conclude that there is no basis for awarding damages against Mr Henning in respect of the footpath.

The driveway

1. Ms Galagedara’s evidence at the hearing was that she intends to act on advice given by Mr Davy of Easydone Concreting that it is not essential to replace the whole driveway, but that she should have an expansion joint inserted between the driveway and the garage. She has not yet obtained a quotation for the cost.

2. As Ms Galagedara has not established the amount of any loss, there is no basis to award damages even if I were satisfied that Mr Henning had breached a statutory warranty.

The counter-application

1. Mr Henning’s counter-claim is for $9,200, comprising:

   (a)$3,000 for work done in July 2017 after the two payments totalling $15,000; and

   (b)$6,200 for work done in April 2018.

2. However, Mr Henning has not provided any evidence to show how these figures have been worked out and whether they are reasonable. Further, it is common ground that the work done in April 2018 was undertaken in an effort to resolve the dispute. Mr Henning had already terminated the contract. There is no evidence that the April 2018 work was done pursuant to a contract entitling Mr Henning to additional payment.

3. Mr Henning has not established entitlement to these amounts.

Conclusion

1. Ms Galagedara has not established entitlement to damages, so her claim will be dismissed. Mr Henning has not established entitlement to payment, and so his counter-application will also be dismissed.