Gounder v Hallmark Homes Pty Ltd - [2017] QCAT 174

CITATION:

Gounder v Hallmark Homes Pty Ltd [2017] QCAT 174

PARTIES:	Shobna Gounder (Applicant)
v
Hallmark Homes Pty Ltd (Respondent)

APPLICATION NUMBER:	BDL013-16
MATTER TYPE:	Building matters

HEARING DATE:

14 December 2016

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

25 May 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Applicant is to afford the Respondent access to the House at Warner within 28 days (or such further period as may be agreed between the parties) for the Respondent to undertake the repair work identified in Exhibit 6 and Exhibit 7.

2. In the event that The Applicant does not afford the Respondent access within the agreed time frame, the Respondent may elect to pay the applicant the sum of $1,000.

3. The Respondent is to pay the Applicant her QCAT filing fee ($305) within 28 days of the date of these orders

CATCHWORDS:

Defective building work – roof tiles poorly cut, resulting in some water ingress.

APPEARANCES and REPRESENTATION (If any):

Applicant: Shobna Gounder, In person

Respondent: Shaun Haswell
Building & Construction Manager,
Hallmark Homes Pty Ltd

Reasons for Decision

Introduction

Pursuant to a standard Master Builders Queensland Residential Building Contract dated 29 September 2013 Hallmark Homes Pty Ltd (“Hallmark”) agreed to construct a new home for Mrs Gounder and her husband at Warner for $186,251.00. The specifications for that construction were contained in working drawings and a building schedule, each dated 19 September 2013. Construction commenced on 17 February 2014 and project attained practical completion on 26 June 2014.
Although not the usual practice for Hallmark Homes, the builder also provided handover to Ms Gounder on 26 June 2014, because of Mrs Gounder’s insistence.
The six-month period for notification to the builder in relation to minor defects expired on 26 December 2014. Mrs Gounder identified no items requiring further rectification before that date.
On 20 February 2015 Mrs Gounder contacted Hallmark complaining about a water leak in the roof of her garage. On Monday 23 February 2015 Bristle Roofing (the sub-contractor had installed the roof during construction on behalf Hallmark), sent a tradesman to inspect Mrs Gounder’s roof. However, Mrs Gounder informed the tradesman that her insurance company had arranged an emergency repairer to replace one broken tile on the preceding Friday. Some water damage had been caused to the plasterboard ceiling in the garage, so Hallmark arranged for a maintenance contractor to repair the garage ceiling of Mrs Gounder’s home at their expense. That work was undertaken on 24 March 2015.
Mrs Gounder’s insurance company then had an independent contractor inspect the roof, on 3 March 2015. The Graff Group undertook that inspection. Photographs in an undated report by the Graff Group reveal chips along the edges of several concrete tiles consistent with minor damage having been caused to the tiles during installation. Hallmark received a copy of that report and sent it on to Bristile Roofing for their comment. On 18 March 2015 Bristile Roofing wrote to Hallmark and advised that their inspection on 23 February 2015 had revealed the roof to be in good condition and that only one tile had been broken.
On 1 May 2015 Mrs Gounder again complained to Hallmark Homes that her garage roof was leaking. Bristile Roofing attended on 3^rd May 2015, however no leak could be found. On 14 May 2015 Hallmark received a report from CRD Building Consultants and Engineers. This report had been commissioned by Mrs Gounder. That report contends that the standard of workmanship on the roof was below that required by the relevant Australian Standard and that chips and cracks in the tiles were likely caused by tradesmen during construction.
On 18 May 2015 Bristile Roofing attempted to arrange an on-site meeting with Mrs Gounder in an effort to re-inspect the roof in order to see the defects alleged in the CRD Report. Mrs Gounder however refused Bristile access. Hallmark then attempted to arrange an on-site meeting with Mrs Gounder later in May 2015 in an effort to deal with the problem, however Mrs Gounder again refused access.
On 3 June 2015 the QBCC notified Hallmark that a complaint had been received from Mrs Gounder.
An on-site meeting with an inspector from the QBCC took place on 24 July 2015. On 28 July 2015 the QBCC wrote to Hallmark and in an official Direction to Rectify directed Hallmark to rectify two matters: the cosmetic plasterboard repairs to Mrs Gounder’s garage ceiling (those done on 24 March 2015) needed to be re-done; and an unrelated issue (to do with the masonry finish on a rear external door façade) required some attention.
Hallmark arranged for its contracted maintenance firm to try and contact Mrs Gounder, in order that it might arrange a time to access her home and repair the matters identified by the QBCC in their Direction to Rectify. On 5 August 2015 Mrs Gounder refused them access. On 28 August 2015 Mrs Gounder attempted to obtain an internal QBCC review of their direction to rectify decision made on 28 July 2015, seeking to get the QBCC to issue a direction in relation to more things. This was refused by the QBCC because the request fell outside the QBCC internal review jurisdiction.
On 7 October 2015 Hallmark again attempted to attend Mrs Gounder’s home in an effort to repair the items listed in the QBCC Direction to Rectify. Yet again Mrs Gounder refused Hallmark access.
On 19 November 2015 Mrs Gounder sought a further internal review from the QBCC of their decision on 28 July 2015 not to issue a direction to rectify in relation to other matters that Mrs Gounder had complained about. The QBCC then sought permission from Mrs Gounder to conduct another site inspection, on 1 December 2015. Mrs Gounder once again refused the QBCC any access. On 2 December 2015 the QBCC advised that the application for internal review of the QBCC decision made on 28 July 2015 was refused on the basis of insufficient evidence.
On 4 February 2016 Mrs Gounder commenced proceedings before QCAT against Hallmark seeking:
(a)$170,000 as an award of damages for inconvenience; and
(b)$191,616 (being the total costs of construction for the house at Warner), on the basis of an alleged total failure of consideration; and
(c)$50,050 compensation from the QBCC “for all the grievance caused to me during the application as I was humiliated and embarrassed, looked down upon, lied to, harassed and [due to their] deliberately not resolving the matter.”
Mrs Gounder has not commenced proceedings against the QBCC. In all events QCAT has no jurisdiction in respect matter (c) above, such that I do not propose to deal with it any further.
During the hearing on 14 December 2015 Mrs Gounder was unable to articulate the basis for her claim for inconvenience, nor to show how that justified $170,000 in damages; nor to distinguish that claim from her parallel claim that Hallmark should additionally be required to refund the full amount paid to it for the construction of the new home at Warner.
There are a number of expert’s reports, together with the joint report of an expert’s conclave ordered by QCAT that was conducted on 5 December 2016.
In addition to the Graff and CRD reports, Mrs Gounder obtained a building and pest inspection report from BPI Brisbane North, dated 30 November 2016 (“BPI”). A Mr Martin Slater authored the BPI report . Mr Slater’s report indicates that there are signs of past water damage in the ceiling of the garage, and that “some timber battens above the garage ceiling are inadequately fixed along the valley”. The report also indicates that there are signs of chipping/cracking in some tiles on the Southern elevation of the home.
Mrs Gounder also obtained a report from Focus Building and Pest Inspections (‘Focus’), dated 28 September 2016. The Focus report notes an inadequate plaster repair in the ceiling of the garage; a number of cracked/chipped tiles on the roof and some poorly cut valley tiles that create a risk of water ingress into the internal roof cavity. The Focus report also notes that “numerous hardwood battens have been poorly fitted”.
Hallmark obtained a report from Mr Chris Griffiths, a Roof Tiler. Mr Griffiths is also the President of the Queensland Master Roof Tilers Association. After inspecting the roof and roof cavity Mr Griffiths found the following defects:
·The valleys have been installed with only approximately 50% of the Valley clips fitted.
·Some Valley tiles have had corners cut off unnecessarily.
·Some valley cuts have not been completed.
·An internal inspection revealed approximately 30 missing valley clips.
·One broken tile.
·One missing roof batten.
In his evidence before the Tribunal, Mr Griffiths said that the repairs that he has identified as necessary would take a qualified roofer considerably less than one day to undertake. Mr Griffiths was an impressive witness. I accept his evidence completely.
As indicated a joint roofing experts report was produced in an expert’s conclave between Mr Martin Slater and Mr Chis Griffiths. This was conducted at QCAT on 5 December 2016. This report is now Exhibit 4 in the proceedings and is substantially identical to Mr Griffiths separate evidence. On the day of the expert’s conclave Mr Griffiths also provided Hallmark with a quote for these repairs (now Exhibit 6), which indicates that the likely cost for the roof repairs is $320, inclusive of GST.
At all times Hallmark have indicated that they accept the lawfulness of the Direction to Rectify given to them by the QBCC on 28 July 2015, and have indicated their willingness to undertake those repairs at absolutely no cost to Mrs Gounder. On the basis of the evidence heard before the Tribunal it seems abundantly clear that these repairs would have been undertaken by Hallmark a very long time ago, but for the refusal by Mrs Gounder to allow them any access.
Hallmark has also obtained a quote from Ron Ellis Constructions (Exhibit 7), which indicates that the cost to repair the plasterboard ceiling in the garage, as required by the QBCC Direction to Rectify is about $660, inclusive of GST.
During proceedings Mrs Gounder was at pains to emphasise her unhappiness with the edge-chipped tiles on her roof. Yet, Mr Griffiths says that, save to the extent of the defects that he has recorded in his report, and in the joint experts’ report, the amount of edge chipping that he observed on Mrs Gounder’s roof was no more than would ordinarily be expected with concrete tiles, and that the overall aesthetics of the roof are consistent with that to be expected in any competent tradesmen-like roof installation. Mr Griffiths also observed that the chipping that Mrs Gounder now complains about couldn’t be seen from ground height. I accept Mr Griffiths evidence on that point.
The only evidence available to the Tribunal as to the cost of repairing this roof is that contained in exhibits six and seven. These reveal that the total cost of repairs will be $980.00, inclusive of GST.
The order of the Tribunal is that Mrs Gounder is to afford access to her home at Warner in order to allow Hallmark to undertake the repairs listed in Exhibit 6 and Exhibit 7 within 28 days, or such further period as may be agreed between them. In the event that Mrs Gounder does not provide access to Hallmark within the agreed time frame, then Hallmark may elect to pay her the sum of $1,000.00 in full and final satisfaction of this claim. In addition Mrs Gounder should be paid her QCAT filing fee ($305) by Hallmark within 28 days of the date of these orders.