Gilford v G Developments Pty Ltd
[2011] QCAT 462
•3 October 2011
| CITATION: | Gilford v G Developments Pty Ltd [2011] QCAT 462 |
| PARTIES: | Mr Luke Gilford |
| v | |
| G Developments Pty Ltd |
| APPLICATION NUMBER: | BDL169-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Kate Buxton, Adjudicator |
| DELIVERED ON: | 3 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] That the Applicant, Luke Gilford, is relieved from the obligation to pay $66,225 in Contract payments to the respondent, G Developments Pty Ltd. [2] That an inspector from the Queensland Building Services Authority inspect the following items and report to the parties as to the items which they consider require rectification (“the BSA report”):
[3] That the Respondent, G Developments Pty Ltd, undertake the rectification works identified in the BSA report within four weeks of receipt of the report. [4] That the applicant, Luke Gilford, serve a copy of this order and the reasons for decision on the Queensland Building Services Authority forthwith. | ||||||||||||||||||||||
| CATCHWORDS: | Application for decision by default – domestic building contract – assessment of claim and rectification of works |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
The Applicant, Luke Gilford (“Gilford”), seeks a decision in his favour in default of the obligation upon the Respondent, G Developments Pty Ltd (GD) to file a response within the time limited by the rules. The Application which commenced these proceedings was filed in QCAT on 24 June 2011. According to the affidavit of service of Ms Stangroome filed 15 July 2011, the Application was served upon GD at its principal place of business on 4 July 2011. GD has not filed a response to the application, either within the 28 day prescribed time limit, or at all as at the date of this decision. I am satisfied that GD was properly served (see annexures I, J and K to the statutory declaration) and Gilford is entitled to the default decision in his favour.
Having regard to the assessment of the claim, Gilford advances three bases for relief in the Application:
a)Liquidated damages for overruns on his domestic building contract with GD (dated 1 October 2009, “the Contract”). He calculates this is the sum of $47,000 being the stipulated sum of $200 per day (item 11, Sch one of the Contract) applied to the 235 days by which he says delivery of the project was delayed (in a way not permitted under the Contract);
b)Relief from the obligation to pay $19,225 being part of the claim made by GD for defective or incomplete works or variations undertaken on site; and
c)Rectification of works identified in the schedule filed with the application.
In his affidavit in support of the request for the decision, Gilford has sought additional relief not mentioned in the originating Application. As a matter of procedural fairness I have not considered either the claim for further liquidated damages, nor the claim for mortgage interest, as neither sum was mentioned in the Application. I can consider only the relief sought in the Application served upon GD, to which it has chosen not to respond.
The statutory declaration of Gilford filed on 8 September 2011 sets out in detail the basis and the calculation of the three claims.
Without rehearsing the evidence in detail, I am satisfied that the bases given for the calculation of the days upon which liquidated damages are claimed is reasonable and supported by the evidence. This evidence includes not only the explanation in the statutory declaration but copies of each response Gilford made to requests for extensions of time made by GD. I have also considered the weather data provided in relation to claims for weather delays. I therefore accept the calculation of 235 days in liquidated damages at $200 per day and find that GD is liable for $47,000 in liquidated damages.
The second sum claimed, of $19,225 is arrived at by Gilford by adding together the contract sums or variations claims for various items in relation to which he issued a notice of dispute on 5 May 2011. These disputed sums relate to a front entry feature which Gilford asserts ought not be the subject of a claim for variations and which was contemplated as being within the scope of the contract works. I am satisfied to the requisite standard that the sum of $19,225 is a reasonable figure, supported by the evidence and which has consistently formed the basis of a complaint by Gilford against GD, and that these items were within the Contract scope. I therefore find that GD is liable for the amount of $19,225 as claimed, and that this should be deducted from the amount owing by Gilford to GD at the conclusion of this contract.
Gilford also notes complaints about various finishes and fixtures (part D, paras 1-4 of the statutory declaration) but has not quantified losses in relation to these items. He instead seeks rectification of those items. He has identified these items in detail in the defective/incomplete work schedule filed with these proceedings, listing the following items:
Description of defective work/incomplete work 1 Kitchen Splash Back not congruent with contract 2 External render of property – integrity issues 3 Entrance way landing defective plaster and paint work 4 Landscaping not congruent with contract 5 Kitchen – range hood fitting not completed 6 Carpet fitting around balcony balustrade 7 Sauna incomplete and not connected 8 Defective Plaster work throughout cinema 9 Defective plaster work throughout high ceilings 10 Defective Plaster work around edging around circular balustrade
These items have been the subject of complaint by Gilford to GD and the case for rectification is supported by the material. However, there is insufficient evidence to determine the quality of the work and which items in fact fall below the requisite standard. The report of Steve Maher, dated 8 April 2011 (annexure G to Gilford’s statutory declaration) is not sufficiently particularised in relation to the ten key complaints in order to determine whether and if so to what extent rectification is required.
In the absence of sufficiently particularised expert evidence in support of the claims for rectification, and rather than striking out this element of the claim in its entirety for want of particularity, I consider it appropriate to appoint an inspector from the Queensland Building Services Authority (“BSA”) to provide expert evidence by making an assessment of the items identified in the list, and to report to the parties as to which matters it concludes ought be rectified. It is therefore appropriate to make orders facilitating inspection and report by the BSA and for the undertaking of work which they deem necessary with four weeks of the report to the parties. In circumstances where damages as an alternative to rectification have not been sought, and given the state of the evidence as mentioned, this is the appropriate course of action in respect of the rectification orders sought.
[10] In relation to the orders in respect of the other heads of claim, I note that Gilford has reduced GD’s final payment claim by not only the amount of $19,225 relating to variations, but also by the sum of $47,000 for liquidated damages. These sums total $66,225. This can be seen in the payment schedule which is annexure “L” to his statutory declaration. He has treated both amounts as a set-off against the final claim made by GD under the contract, as he is entitled to do having regard to the circumstances in which the claims arise and their close connection to the claim for final payment by GD.
[11] However, having reduced the final payment to GD by at least these sums, Gilford is not entitled to recover twice by being awarded a judgment sum. The appropriate order is, therefore, that he be relieved from the payment of both sums, which together total $66,225, together with the rectification works to be identified by the BSA as indicated above.
ORDER
That the Applicant, Luke Gilford, is relieved from the obligation to pay $66,225 in Contract payments to the respondent, G Developments Pty Ltd.
That an inspector from the Queensland Building Services Authority inspect the following items and report to the parties as to the items which they consider require rectification (“the BSA report”):
Description of defective work/incomplete work 1 Kitchen Splash Back not congruent with contract 2 External render of property – integrity issues 3 Entrance way landing defective plaster and paint work 4 Landscaping not congruent with contract 5 Kitchen – range hood fitting not completed 6 Carpet fitting around balcony balustrade 7 Sauna incomplete and not connected 8 Defective Plaster work throughout cinema 9 Defective plaster work throughout high ceilings 10 Defective Plaster work around edging around circular balustrade
That the Respondent, G Developments Pty Ltd, undertake the rectification works identified in the BSA report within four weeks of receipt of the report.
That the applicant, Luke Gilford, serve a copy of this order and the reasons for decision on the Queensland Building Services Authority forthwith.
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