Garget v Capable Consulting (Aust) Pty Ltd
[2011] QCAT 213
•19 May 2011
| CITATION: | Garget v Capable Consulting (Aust) Pty Ltd and Anor [2011] QCAT 213 |
| PARTIES: | Mr Peter Douglas Garget |
| v | |
| Capable Consulting (Aust) Pty Ltd Mr Partreck Mutokoyi |
| APPLICATION NUMBER: | BD019-08 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 and 22 September 2010 |
| HEARD AT: | Cairns |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 19 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondents are to pay the applicant the sum of $9,170.00 by 31 August 2011. |
| CATCHWORDS: | Building Contract – fixed price contract with payment upon certification by certifier nominated by the respondent – where plans deficient in detail and compliance with subsequent clarifying plan amounted to a variation – where respondent refused to agree to variation – whether, in the circumstances the applicant is entitled to final payment Defective and incomplete building work – where applicant liable for reasonable cost of completion and rectification – where respondent’s evidence about defective building work deficient – where respondent’s evidence about cost of rectification deficient – cost of rectification allowed on best evidence available CFA Group Services Pty Ltd v Mars Trading Pty Ltd (2001) NSWSC 112 Bellgrove v Eldridge (1954) 90 CLR 613 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dr Jonsson of Counsel instructed by Vandeluer and Todd |
| RESPONDENT: | Self represented |
REASONS FOR DECISION
On 20 March 2006 Cyclone Larry roared through North Queensland leaving devastation with one in every three houses in Innisfail severely damaged. One of those properties was a block of four flats at 2 Agnes Street, Innisfail owned by the first respondent. Mr Mutokoyi is a director of Capable Consulting.
In September 2006 Mr Mutokoyi approached Mr Garget and asked for a quote to undertake repair work to the block of flats. Having done work for Mr Mutokoyi in the past, Mr Garget was prepared to look at the job and provide a costing. He attended the site on that same day and together with Mr Mutokoyi discussed what work needed to be carried out.
At a subsequent meeting, Mr Mutokoyi produced a scope of works[1] for the job. Mr Garget costed the job by putting cost items in each column in the scope of works resulting in a total cost of $259,090.00.
[1] Exhibit “PBG – 04”.
In or about November 2006 Mr Garget was advised by Capable Consulting’s Insurer that it would cover the cost of the work in the sum of $259,000.00.
Subequently, Mr Mutokoyi produced a Project Trade Contract which had attached to it, an amended scope of work with a total cost of $174,800.00. Mr Garget was to be paid in three instalments, an initial payment of $17,720.00, a further instalment of $130,360.00 and a final instalment of $17,720.00. The scope of work had been significantly amended resulting in the reduced price.
The contract was signed on 7 December 2006 and the deposit, being the first instalment was paid on 15 January 2007 and soon after that Mr Garget commenced the work. The works proceeded, it seems without complication, and on 12 April 2007 Mr Garget contacted All Construction Approvals (“ACA”) for a final inspection certificate in accordance with the instructions from Mr Mutokoyi. Mr Weber from ACA attended the premises and on 26 April 2007 certified that the building work had been carried out in accordance with the Building Act 1975. The certificate[2] notes that there was a frame stage inspection on 29 March 2007 with the final inspection on 24 April 2007.
[2] Exhibit “PBG – 8”.
ACA was engaged as a result of a specific instruction from Mr Mutokoyi at the time of signing the contract. This is not challenged by Mr Mutokoyi although, he does take issue with the validity of the final certificate and that he was not given notice of the inspection. In fact, when the dispute arose, and Mr Mutokoyi had discussions with Mr Weber about the inspection and the alleged failure of the applicant to comply with the “head height” requirement on drawing 3A, ACA withdrew the certification.
On the basis of the original certification Mr Garget sent a final invoice, together with the final certificate to Mr Mutokoyi who then engaged Mr Peach, a building consultant at Edge Hill, to inspect the work.
Mr Peach’s report[3] identifies a number of defects including the failure to provide for a head height of 2,000mm as noted on drawing 3A at the rear entry of the upstairs flats.
[3] Exhibit “PDG – 11”.
[10] Subsequent to that report, ACA in its memo 6 July 200 revoking the certification said that:
“Due to issues that have arisen after the issue of the final certificate, we have had revoke (sic) the final certificate until the following issues have been addressed;
§ The eves need to be sheeted to prevent entry of vermin into the dwelling, and,
§ The head height at the rear of the dwelling is made to comply with the two metres that is stipulated on the plans.”
[11] Mr Garget has sheeted the eaves so that is no longer in dispute. However, a dispute remains as to the compliance with the plans to ensure that there is two metres head height, whatever that means, at the rear of the dwelling.
[12] On the basis of the report from Mr Peach, and the revocation of the final certificate, Capable Consulting and Mr Mutokoyi refused to pay the final payment of $17,720.00.
[13] When the head height issue arose, there was a discussion onsite between Mr Garget and Mr Mutokoyi about, principally, the defects identified by Mr Peach including the lack of head height at the rear of the premises. The discussion was also about how the contract should proceed with Mr Garget suggesting that a new contract to reconstruct the roof between the house and the abultion block be entered into on a prime cost basis however, Mr Mutokoyi insisted that Mr Garget complete the works under the existing contract.
[14] Subsequent to that meeting, Mr Mutokoyi produced a new design drawing from Maddocks & Associates, Consulting Engineers.[4] This design shows the detail of how the minimum head height of two metres could be achieved. For the reasons detailed below, Mr Garget contends that it was not his responsibility as part of the scope of works, to ensure that there was a minimum head height of two metres at the rear of the building and if it was, it did not involve work of the type detailed in Mr Maddocks’ subsequent plan.
[4] Exhibit B4 (16 July 2007).
[15] Mr Garget’s obligations under the contract, as trade contractor, was to complete the trade works (as set out in the scope of works):
“(i) To the reasonable satisfaction of the principal contractor;
In accordance with the plans, the specifications and the law; and
At reasonable times directed by the principal contractor.”
[16] The schedule to the contract provides that the final payment is to be made within 14 days after the trade contractor gives the principal contractor written notice that the stage is complete.
[17] There are no conditions about “practical completion” of the type normally seen in domestic building contracts, and I see no reason why these types of conditions should be inferred.
[18] In view of the fact that both Mr Peach, and ACA now say the works are not complete it is contended by the respondents that Mr Garget has no entitlement to the final payment. If however, it is found that it is not Mr Garget’s responsibility to ensure the two metre head height, then accepting his evidence that the sheeting to the eves has been complied with, there is no reason why a final certificate should not issue or, the original final certificate should not be reinstated.
[19] The defective work complained of as identified in Mr Peach’s report, and which forms part of Capable Consulting’s counter claim will not vitiate the final certificate issued by ACA if it is properly a claim in damages for defective or incomplete work or work which might otherwise have been attended to in the defects liability period had it not been for the current standoff between the parties.
[20] A determination as to whether the final payment is payable will depend on findings with respect to not only the head height issue, but also whether the defective building work particularised, or the counter claim, does impact on the final certificate.
[21] Of importance, the only certification, despite Mr Peach’s building expertise which is not challenged, is the certification from ACA.
Head height issue
[22] The requirement to ensure that there is a two metre head height clearance at the rear of the building is contained in the engineer’s plans, plan number 3A, which has two hand written notifications with respect to head height. They are:
(a)“check compliance of work clearance to head height” (with an arrow pointing to the rear eave); and
(b)“minimum head height to be two metres”.
[23] It is Mr Garget’s position that when given the plans, he was either not given plan number 3A or if he was, it did not have on it the notation described above. Mr Garget swears:
“At no time from 7 December 2006 up to 22 June 2007 (being the date of receipt of the second respondent’s letter at annexure “PBG-10”) was I made aware of this requirement I definitely do not recall seeing these handwritten notations when I first received the drawings in or about December 2006.”[5]
[5] Statement of Mr Garget paragraph 62.
[24] Furthermore he says that this particular requirement was not specifically referred to in the second scope of works. Although Mr Mutokoyi contends that it is in the scope of works, it is not, unless he is making reference to a general requirement that the works comply with the Building Code. He does however contend that the plans were not amended and the notation was in the plans given to Mr Garget on 7 December 2006.[6]
[6] Statement of Mr Mutokoyi page 12 paragraph 64.
[25] Mr Garget’s evidence on this point is somewhat unsatisfactory. He accepts that he was given a set of plans in December 2006 for the purposes of pricing the scope of work. Mr Garget’s evidence is a little confusing because after saying he did not receive a copy of the plan with the notation, he makes reference to receiving a version of plan 3A in December 2006, referred to as “PDG-16” which in fact has the notation on it but not initialled. He produced each of the plans that he did receive numbering 1A – 7A but not 3A. When cross examined by Mr Mutokoyi, Mr Garget confirmed that the notation was not on the original plans given to him.
[26] It seems to me unlikely that Mr Garget was not given a copy of plan 3A. The plan was important to the construction because it sets out the bracing detail for the proposed works. It also shows detail of the guttering on the hipped styed roof. I’ve come to this conclusion because having produced plans 1A – 7A, which does not include 3A, this would suggest that 3A was not received however if that was the case one would expect Mr Garget, an experienced builder to query the obvious absence of such a drawing. Furthermore, he seems to be suggesting that he did receive a plan 3A but one without the notation. If he did receive such a drawing it has not been produced by him. The amended plan 3A, which is annexed to his statement,[7] has the notation but Mr Garget does not say where he got that plan from.
[7] Exhibit “PBG16”.
[27] It seems to me, when analysing the evidence of both parties and Mr Garget’s response in the transcript[8] it is more probable than not that the drawing 3A with the notation was handed to Mr Garget with the balance of the drawings at the time negotiations commenced between himself and Mr Mutokoyi, certainly before the contract was signed. It seems to me irrelevant whether the plans he saw had been initialled.
[8] Prepared by Mr Garget’s solicitors.
[28] The plans show there is a space between the rear wall of the house and entry to the amenities block. The width of the landing is approximately 1.3 metres. The notation on plan 3A has an arrow pointing to a broken line which, presumably is the line of the gutter and the facia board to which the gutter is attached. There is no detail as to how the minimum 2 metre head height is to be achieved or where the height is deficient. The drawing itself suggests that the overhang from the roof rafters, it being a hipped roof, would be minimal. Photographs indicate that a door, presumably from the amenities block, does not open on to the landing because the top of the door strikes the facia by about 2-3 centimetres. In photograph “D2” the obstruction is shown by a pair of sunglasses on the top of the door. This is obviously unsatisfactory.
[29] The submission was made, and it seems reasonable and confirmed by Mr Garget during the hearing, that if the facia was trimmed back to 150mm this would overcome the problem of the door not clearing the facia board. Mr Garget’s evidence was that the existing facia was 230mm as the original 150mm facia could not be purchased anymore. The guttering needs to be removed, the facia needs to be removed and it ripped back to 150mm. Given the lack of detail on the plan, this seems to be a reasonable solution. One wonders how it could be left like this in the first place.
[30] The lack of detail on plan 3A is also exemplified by the subsequent drawing produced by the engineer, Mr Maddocks in July 2007.[9] That drawing shows the existing structure with the facia protruding down below the gutter and the proposed structure which includes a box gutter between the existing roof of the house cut back, and a new awning/roof constructed off the wall of the amenities block with a box gutter between the two new roofs. This whole structure is completely new and could not possibly have been contemplated from the plans given to Mr Garget at the time the contract was entered into. The plans simply refer to “minimum head height to be 2m”.
[9] Exhibit B4.
[31] Also it could not have been reasonably contemplated from the drawings prepared and given to Mr Garget that new door frames would have to be reconstructed at the rear of the building as suggested by Mr Peach[10]. There is no side elevation plan showing this detail. It seems that if this was required, it needed to be spelt out clearly on the drawings so that Mr Garget could not only cost it, but also have some detail as to how it should be constructed. Plan 3A shows the rafters of the hipped roof extending beyond the end wall to attach to the box gutter which is fixed to the amenities block wall. There is no evidence that the bottom of the box gutter is below two metres. The pitch presumably is the same as the pre existing roof with the roof trusses as specified in drawing 5A. Mr Garget has constructed the roof in accordance with drawing 4A.
[10] Report of Bryan Peach 2 July 2007 Ex B1.
[32] Further confusion arises because although Mr Peach is of the opinion that the two metre clearance relates to the height of the bathroom doors but when asked if he had in fact measured these, he said he had not.[11] It was suggested to him that the bathroom doors are over two metres high in fact 2.14 metres. Although he did not concede this to be the case, he did accept that the height from the floor to the top plate was 2.18 metres. He seemed to then concede that a measure of 2.14 metres was probably correct.[12]
[11] Transcript page 262 L30.
[12] Transcript page 263 L5.
[33] Therefore, when one has regard to Mr Peach’s evidence, the specified roof truss/rafter design in plan 4A, and the notation on plan 3A to check the compliance of the roof clearance between the landing between the house and the toilet block and the overhang it is little wonder that Mr Garget carried out the work in accordance with plan 4A because it is the most certain.
[34] Obviously the bathroom doors must be able to be opened. If this is to be achieved by using the detail prepared by Mr Maddocks on 16 July 2007[13] then this is my view would be a variation to the contract. Mr Garget is then entitled to have authorisation for the varied work in writing as is required by the Domestic Building Contracts Act 2000. To be clear I have come to the view that it was not a term of the contract that it was Mr Garget’s responsibility to carry out any building work of the type detailed in Mr Maddocks’ design of 16 July 2007. Further support for this conclusion is the recommendation that the builder should be consulted about the design, indicating the complexity of what is suggested.
[13] Exhibit B4.
[35] Consistent with this view, I also accept the submissions of Mr Garget’s counsel that there is no detail of water proofing to be applied to the toilet block wall, no detail as to how much the overhanging should be shortened from the main building, or the length of the proposed overhang/awning from the toilet block. The design so lacks detail that for Mr Garget to undertake this work in these circumstances he will be exposed to ongoing responsibility under the Queensland Building Services Authority Act 1991 for any problems that may arise in the future.
[36] Capable Consulting have refused to firstly, provide a detailed drawing so that Mr Garget knows exactly how the work is to be constructed and have refused to agree on a cost for the extra rectification work, and secondly, refused to recognise that this is a proper variation under the contract.
[37] Having found that the notation was on the drawing given to Mr Garget, the two metre head height, if it is to have any application at all in circumstances where there is no explanation from Mr Maddocks, is to ensure the height from the gutter/barge board was to be two metres above the deck between the main house and the amenities block. It presently does not meet this design because of the facia, according to Mr Garget. To rectify this defect the gutter and the facia will have to be removed and the facia cut back to 150mm. It may be that all the barge boards will have to be removed and cut back to ensure uniformity. Interestingly Mr Peach makes a similar comment with respect to the facia board at the front of the building. He said 60mm needs to be trimmed off the facia to increase the head height clearance from 1,940mm to 2,000mm. As he only addresses the head height clearance of the doorways at the rear, one can infer this is the same problem at the rear and why the doors cannot be fully opened.
[38] As with the balance of the respondent’s claim for the cost of rectification, no reliable costings have been provided. Doing the best I can on this item, if an allowance was made for a competent tradesperson to remove and replace the gutter and facia over a period of say two days with associated scaffold costs an allowance of $1,000.00 ought be sufficient. Therefore the respondent is entitled to the cost of rectification for this in the sum of $2,000.00. This also seems in line with Mr Garget’s cost to carry out the work suggested by Mr Maddocks.
Final Payment
[39] This then leads to the question of whether Mr Garget is entitled to the balance owing under the contract of $17,720.00. The respondents contend that Mr Garget’s right to payment under the contract is only established if three elements are satisfied. Firstly, the final stage must be due; secondly, this claim is only due when the respondent has inspected and approved the work; and thirdly Mr Garget must provide written notice to the respondent that the stage is complete.
[40] Mr Garget contends that in accordance with the specific instructions from Mr Mutokoyi all building certifications had to be undertaken by ACA when the project was complete. ACA issued a final certificate on 26 April 2007 stating that “the building work for the above building was inspected and the building work complied with the Building Act 1975 or certificates of inspection were accepted from competent persons at the following stages of construction…”.
[41] Mr Mutokoyi then had Mr Peach inspect the property who found a number of defects and non compliance with the contract by the applicant. However these matters did not go to final certification.[14]
[14] Report Bryan Peach Ex B2a, B1.
[42] On 6 July 2007 the certificate issued by ACA was revoked. The letter from ACA notes:
a)The eaves need to be sheeted to prevent entry of vermin into the dwelling, and;
b)The head height at the rear of the dwelling is made to comply with the 2 metres that is stipulated on the plans.
[43] Mr Handley of ACA said the certification was revoked based on the report of Mr Peach and the door heights, presumably not meeting the two metre height requirement. A further inspection, before the certification was revoked, was not undertaken by ACA.
[44] This is unhelpful because the argument returns to what is meant by the “2 metres” stipulated on the plans. As I have found it does not relate to the door frames it can only relate to the facia/barge board and Mr Garget has expressed a willingness to return to attend to this matter. Mr Mutokoyi however, insists that the rectification work be carried out in accordance with the drawings of Mr Maddocks. The eaves have of course been sheeted.
[45] Mr Mutokoyi has made it clear that he does not wish for Mr Garget to return to the property.
“on behalf of the 1st & 2nd respondents, the applicant should never be involved with the property in the foreseeable future as long as the respondents own the property…..”.
[46] The Project Trade Contract provides that a stage payment due under the contract is to be paid within 14 days of Mr Garget giving the respondents written notice that the stage is complete. By agreement this is when the stage is certified by the respondent’s nominated certifier ACA. I accept the applicant’s submissions and the evidence of Mr Garget that ACA, for this purpose, was the agent of the respondents. Once the final certificate issued by ACA then the respondents were obliged to pay within 14 days.
[47] However the certificate was subsequently withdrawn but that does not change the effect of the original certificate for two reasons. Firstly, on the basis it was withdrawn because the eaves had not been sheeted, this has been remedied. Secondly, with respect to the minimum head height of 2m, it has now become obvious that it is uncertain as to what this means. In any event, Mr Garget has been ready and willing to return to trim back the barge/facia but this does not satisfy Mr Mutokoyi, he wants more, he wants the work done in accordance with the drawing of Mr Maddocks, which I have found was not included in the contract. These actions have prevented Mr Garget from fulfilling his obligations under the contract which is equivalent to the fulfilment of that obligation.[15]
[15]CFA Group Services Pty Ltd v Mars Trading Pty Ltd (2001) NSWSC 112; Mahoney v Lindsay & Ors (1981) 55 ALJR 118.
[48] The respondents rely on other work not being completed to disentitle Mr Garget from claiming the final payment as particularised in the reports of Mr Peach. However, it is not contested that by agreement it was Mr Weber, from ACA, who was to be relied upon for the final certifications. The defects identified by Mr Peach may sound in damages for rectification but do not go to the entitlement for the final payment.
[49] Clause 10, the payment provisions of the contract, is unhelpful. It makes no specific provision as to when the final payment is due and payable. However, where the payments are provided for in the schedule, an amount due is to be paid within 14 days after the trade contractor gives written notice that the stage is complete. Mr Garget gave notice, being the ACA final inspection certificate that the works were complete which entitled him to the final payment.
[50] It is argued for the purposes of the final payment this is insufficient “written notice”. The Notice is in writing and presumably it was the certification from ACA which elicited the payments for the earlier stages. I see no reason why this is not compliance with the contract provisions. Further the work is approved by the respondents’ agent ACA. Although the respondents argue that, as the applicant has conceded, the contract is still on foot, it seems to me that there can be little doubt that the contract has now either been repudiated by the respondents for not letting the applicant back on site, or abandoned by both parties as it is not intended that it should be further performed[16].
[16] Marminta Pty Ltd v French [2003] ACA 541.
[51] In summary I have come to the decision that as the respondents refused to sign a variation authorising the applicant to carry out the work detailed in Mr Maddocks’ further drawing, the ACA initial final certification was a sufficient written notice requiring the respondents to pay the balance owing under the contract. The subsequent withdrawal of the certification was on the basis that there had been non compliance with the terms of the contract as far as the head height is concerned but no consideration was given by ACA as to what this meant other than to rely on Mr Peach’s report which, insofar as it related to the two metre head height was wrong.[17]
[17] His reference to the doors requiring the 2 metre clearance.
Counterclaim
[52] The respondents counterclaim is made up of the following:
(a) Loss of rental income;
(b) Claim for defective or incomplete work (non-electrical);
(c) Claim for incomplete electrical work.
[53] The evidence for the claim for rectification work is drawn from the report of Mr Peach and particularised in the schedule to the applicant’s submissions and the particulars of amount claimed dated 7 September 2008.
[54] The respondents have sought to quantify the counterclaim by reference to reports from Mr Santana of Alan Santana Constructions (Qld) Pty Ltd and Robert Newman. Neither of these gentleman gave evidence at the hearing and were not available for cross-examination by the applicant’s counsel.
[55] Mr Newman’s “quote” is very general in its terms. He says the roof frame and roof sheeting seem “ok” to him. He gives an estimate to brace the walls and to do the ceilings upstairs but does not say what should be done. To address the “head height” issue he say “unable to quote big job” which also supports the view that this work ought to have been the subject of a variation. To repair the awning on the back wall he allows $2,000.00. To replace the locks an allowance of $500.00.
[56] For the obvious reasons this evidence, similar to the evidence of Mr Santana must be approached with caution not only because of its content but also because the applicant was not given an opportunity to test the evidence. Although the rules of evidence do not apply in this Tribunal, the question of its weight and probative value of the evidence must be measured against the disadvantage caused by its reception in these circumstances.
[57] Mr Santana did not give a quote to carry out the rectification work the subject of the counterclaim. When one compares the costings of those items in both quotes, it is immediately obvious that Mr Santana is simply allowing a global sum, examples are the awning at the back of the house and the head height issue. It seems extraordinary that Mr Newman is of the opinion that the roof is fine but Mr Santana wants $125,350.00 to replace it. His estimate is nearly as much as the cost of the original job in circumstances where each stage has been certified by ACA including the wall bracing. If there is any doubt as to the utility of this evidence one only has to have regard to the opinion of Mr Peach that the estimate is “outrageous” and that “all items are ridiculous”[18].
[18] Transcript pages 50-51.
[58] In contrast, there is evidence from Mr Garget as to the cost of rectification.[19] Although he has an interest in the outcome of the case, he is an experienced builder, and is well regarded by Mr Fisher, the electrician,[20] and was available for cross examination. In these circumstances his evidence as to quantification should be preferred to both Mr Newman and Mr Santana and I propose to adopt that course.
[19] Mr Garget’s statement paragraph 73.
[20] Statement of Kevin Fisher paragraph 11.
[59] Loss of Rent: I accept that prior to Cyclone Larry the premises returned a rental income of $817/wk. Obviously the rental income would probably have increased in the intervening period.
[60] I also accept that if the contract works were not finished in a reasonable time so the respondents could put the property back on the rental market, the applicant would be exposed to that loss as a reasonable and foreseeable consequence if it resulted from his breach of the contract.
[61] However, what these reasons demonstrate is that this project came to a grinding halt because the respondents are insisting the applicant undertake work that is not part of the contract. That is, the modification of the roof between the house and amenities block in accordance with the design of Mr Maddocks. There is an ongoing issue with the facia board interfering with the doors opening, but this could have been easily fixed if the applicant was permitted to return to site to carry out this rectification work. The revocation of the final certification could have been easily remedied by the first respondent as project manager, firstly by ascertaining from Mr Maddocks as to what he meant exactly by the notation on the plan and secondly, by engaging a contractor, even the applicant, to carry out the work necessary. Had this been done then the premises could have been relet within a reasonable time. This observation must also be considered in circumstances where the respondent was withholding the final payment so it cannot be said there were no funds available to undertake these works.
[62] Mr Mutokoyi’s evidence in support of the loss of rent claim, not only falls short in respect of establishing that the loss is as a result of the applicant’s breach but also he has produced no evidence as to occupancy rates over the period since the work stopped or as to the reasonable weekly rental that might be recovered. Despite these shortcomings, the respondents have produced some evidence going to rental loss which includes a letter from GAB Robins Australia Pty Ltd, loss adjustors;[21] a property valuation from Taylor Byrne;[22] and an appraisal from Ray Whit Rural.[23] Obviously Mr Mutokoyi’s evidence, coupled with this would be sufficient to be able to make some assessment of the quantum of this loss if need be, but the difficulty is establishing the period over which the loss should be assessed and to what extent there might be vacancies. It seems that the respondent’s insurer has paid the rent, at a rate of $817/wk up to about 16 July 2006. In the annexure to the respondent’s submissions loss of rent is claimed from June 2007 to the date of the final submissions from the respondents, 22 November 2010 in the sum of $104,722.00.
[21] Exhibit E2A.
[22] Exhibit E4A valuing the property at $400,000.00 with total rental at $535/wk.
[23] Exhibit E5A.
[63] Despite this proof, I am not satisfied that the respondents’ loss is as a result of the applicant’s breach of contract because at all times the completion of the project, insofar as it relates to head height, rested with the respondents.
[64] Electrical Work: The electrical work is incomplete as deposed to by Mr Fisher and as is evident from the photographs submitted by Mr Mutokoyi. Mr Fisher told the Tribunal that he had done all of the work he was instructed to do by 30 August but also recognised that there was some further work to be done. This work is the responsibility of the applicant under the contract. From the photographs it seems, that all that needs to be done is to fit off of some light switches and power points. There is some uncertainty on Mr Fisher’s part as to whether the new stoves specified were supplied to the downstairs units. Mr Mutokoyi says they have not and Mr Garget’s evidence on this point is inconclusive. In these circumstances I feel compelled to accept Mr Mutokoyi’s evidence. He has provided a quote from Don Clarke Electrical[24] to supply and install four stoves at a cost of $3,649.00 and to complete the electrical work at a cost of $1,480.00 which is broadly in line with the evidence of Mr Garget[25]. The only issue is whether the stoves for units 3 and 4 do in fact need replacing. Because there were discussions directly between Mr Mutokoyi and Mr Fisher about this, Mr Garget said he was not prepared to pay for these stoves unless the electrician or Mr Mutokoyi established that they did in fact need replacement. The scope of works also provided for this. In the absence of such evidence it is reasonable, in my view, to apply a discount to the amount claimed to cater for the contingency that they both may not need replacement. For the supply of stoves and to complete the electrical work an allowance of $4,000.00 seems reasonable.
[24] Exhibit F3.
[25] Mr Garget’s statement paragraphs 55-58.
[65] Wall Bracing: A claim is made for the cost of rectifying this as Mr Peach contends the bracing did not comply with the scope of works. The difficulty here for the respondents is that firstly ACA has issued certificates, including a certificate for the “frame stage” which would normally include bracing. Secondly, Mr Garget states that the bracing complies with the requirement noted on Drawing 3a to give a rating capacity of 6.44N/m. There is no evidence to contradict this. Therefore I am satisfied that further bracing is not required.
[66] Replace roof: The basis of this claim is that Mr Garget reused some of the existing rafters rather than new timber. I accept Mr Garget’s explanation that he did in fact use a new truss system and used old timber to achieve the design prescribed by the drawings. He was challenged about the use of old timber by Mr Mutokoyi but his explanation for the use of both new timber in the truss design to achieve the specifications of the building code and the old timber to meet the design seemed to me to be satisfactory and I accept his evidence on this point.[26] Even if it was accepted that the roof had to be replaced as submitted by the respondents, there is no probative evidence of the cost of this rectification and therefore the loss, if any has not been proved. Also I accept the submissions of the applicant that the replacement of the entire roof structure would be unreasonable and contrary to the principles set out in Bellgrove v Eldridge.[27]
[26] Transcript pages 38-42.
[27] (1954) 90 CLR 613 at 618-619.
[67] Ceilings/Ceiling linings: Mr Peach has said that some of the ceilings had not been replaced as required by the scope of work. There is no detail of the extent of the failure to comply with this requirement and no reliable evidence as to the cost to rectify this. It is submitted by the applicant that this issue has been resolved. I am unsure therefore whether there is any quantifiable loss in respect of this item.
[68] Nominated head height/trimming of the facia boards: This has been dealt with above and the allowance of $2,000.00 is consistent with the evidence of Mr Garget on this point.
[69] Overhang Sheeting: I am unsure why this is claimed in the submissions as Mr Garget has attended to it and no further complaint has been made about this item.
[70] Ceiling Holes: Mr Garget says this is the fault of the electrician who undertook separate work for the respondents and it was during this work that the damage occurred. However, Mr Garget was in charge of the site and if there were defects of this nature he ought to have taken it up with the electrician. In accordance with his estimation I propose to allow $1,350.00 to rectify these defects.
[71] Awnings: There was damage to the awnings, it seems this is the responsibility of the applicant. I propose to allow $1,000.00 for the cost of rectification of this item in accordance with Mr Garget’s evidence.
[72] Keys: The only credible evidence on this item is that of Mr Garget. I propose to allow $200.00.
[73] Plumbing/Gutters/Downpipes: I am simply not satisfied that there is any credible evidence establishing any defects with respect to these items. The respondents’ submissions, although raising these items as defects do not quantify the cost of this rectification. If a vent is necessary then Mr Garget would be directed to rectify this if a complaint was made to the Building Services Authority.
Summary
[74] In conclusion I find that the applicant is entitled to the final payment of $17,720.00 less the cost of rectification assessed at $8,550.00. The balance owing then is $9,170.00, which is to be paid by the respondent to the applicant by 31 August 2011.
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