Hartigan v Ashe - [2014] QCAT 611

CITATION:

Hartigan v Ashe [2014] QCAT 611

PARTIES:	Anthony Maxwell Hartigan (Applicant)
v
Kylie Ashe (Respondent)

APPLICATION NUMBER:

BDL305-13

MATTER TYPE:

Building matters

HEARING DATE:

14 March 2014

HEARD AT:

Townsville

DECISION OF:

Member Roseby

DELIVERED ON:

25 November 2014

DELIVERED AT:

Townsville

ORDERS MADE:

1. On or before 9 January 2015, the Respondent obtain, file in the Tribunal and give a copy to the Applicant of the evidence she proposes to rely upon in relation to the rectification of the pool.

2. Upon receipt of the Respondent’s evidence in relation to rectification, the Applicant has 14 days within which to file in the Tribunal and give a copy to the Respondent of any submissions in relation thereto.

3. The Tribunal will then make its final orders on the papers without further oral hearing.

CATCHWORDS:

Building matters – where pool not constructed in accordance with Plans and Specifications – evidence of rectification required

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Self represented

RESPONDENT:

Self represented

REASONS FOR DECISION

The Applicant, Mr Hartigan, is a pool builder. On 18 April 2013 he entered into a Master Builders Pool Building Contract with the Respondent, Ms Ashe, for the construction of a swimming pool at her home (the Contract).[1] Work commenced on 20 April 2013 and stopped on 22 May 2013.
[1]Exhibit 1, document 1.
Ms Ashe says she suffers from a back injury and that the purpose of the pool was to assist her with exercising to help with her back pain as recommended by her doctor and physiotherapist.
In his application, Mr Hartigan seeks payment for progress claims in relation to stages 3, 4 and 5[2] of the Contract in the total sum of $7,975.00. Mr Hartigan says that he has not yet invoiced the final progress payment as that relates to, in his words ‘the final handover’[3] or practical completion.
[2]Exhibit 1, documents 8 and 11.
[3]Final handover including supply of automatic cleaner and safety sign and final approval from the Council.
Ms Ashe has refused to make the payments (for stages 3, 4 and 5) because she alleges the pool has not been constructed in accordance with the terms of the Contract. As counter applicant, she seeks rectification of the pool to comply with the Northern Consulting Engineer Drawing attached to the Compliance Certificate for building Design or Specification[4] or, in the alternative, an order that she receive a full refund of the $17,225.00 she has paid to Mr Hartigan (comprising the deposit and Stages 1 and 2) in addition to the removal of the pool from her property.
[4]Exhibit 1, document 17.
Both Mr Hartigan and Ms Ashe represented themselves and gave evidence at the hearing. The only additional witness was Mr Lari Mears who gave evidence for Ms Ashe.
The issues Ms Ashe has with the pool range in significance. By far the most significant is the depth and shape of the base of the pool. Ms Ashe was adamant that her primary requirement was that the pool grade from shallow to deep to allow her to use the pool for therapeutic purposes.
However, Ms Ashe says that the pool depth is not graded as required by the Contract and is shaped like a ‘skate park bowl’, which means that she cannot walk or stand in the pool (due to the angle of the base) and therefore cannot be used by her for the purpose for which it was intended.
The other outstanding issues Ms Ashe says she has with the pool are as follows:
a)    The filtration system – pipes left exposed, the filter box cracked lid needs to be replaced and the pure silk system is being held up with a piece of PVC piping;
b)    Pool steps and seat –white blotches over the sandstone, looks like paint has been split – allegedly clay as opposed to aggregate;
c)    Seat at pool fountain – not able to be used as the rock juts out on the back rest;
d)    Pool fence – not safe and a child could still climb underneath;
e)    Construction site – concrete sludge and chunks and rocks left all over the back yard;
f)     Skimmer box and pool edging – sharp edges which could cause injury and erosion starting around the rock edging.
Ms Ashe tendered photographic evidence of these alleged issues.
Mr Hartigan’s obligations, as contractor, are set out in clause 10 of the general conditions of Contract[5]. Relevantly, Mr Hartigan was required to carry out the works:
a)    in an appropriate and skilful way;
b)    with reasonable care and skill;
c)    in accordance with the Plans and Specifications.
[5]Exhibit 7.
The Specifications clearly state that the water depth from shallowest point to deepest point is to be 1.2m to 1.8m and, although the maximum length and maximum width have been left blank, the measurement of 18 lineal metres is listed[6] (which is consistent with the initial quotation provided).
[6]Exhibit 1, document 1, page 8.
The Plans[7] are as follows:
a)    The sketch plan section of the Contract simply states in handwriting “AS PER COUNCIL PLAN”[8];
b)    The Thuringowa City Council as constructed house drainage plan contains a freehand sketch of the shape of the pool in the top right corner. The sketch is approximately 3cm x 2cm in size and of limited assistance in relation to the issues raised;[9]
c)    The Northern Consulting Engineer Drawing attached to the Compliance Certificate for building Design or Specification is a detailed typical section and, in simple terms, clearly shows a pool with a shallow end gradually increasing in depth to a deep end.[10]
[7]Defined in clause 1 of the General Conditions as “the plans, drawings and designs relating to the Works”.
[8]Exhibit 1, document 1, page 7.
[9]Exhibit 1, document 17.
[10]Exhibit 1, document 17.
Mr Hartigan’s evidence was that this engineering drawing was not attached to the Contract when signed by Ms Ashe as it was purely for engineering purposes for the Council application. When I queried Mr Hartigan as to how Ms Ashe was to know what shape and size pool she was agreeing to, if no such plan was attached to the Contract, he referred to the freehand sketch described in paragraph 11(b) above.[11]
[11]To be clear, Ms Ashe understood she was getting a pool shaped as per the engineering drawing in any event as this was the shape she had agreed to with Mr Hartigan.
Leaving aside the verbal testimony of the parties, there is no evidence before the Tribunal as to the precise measurements of the as constructed pool. Ms Ashe is adamant that the pool does not grade from shallow to deep at 1.2m to 1.8m, as required by the Contract. Mr Hartigan says that it does though also stated that the pool has been ‘shaped like a bowl’, meaning that there is nowhere to stand flat in the pool and that this is a common design. Ms Ashe said that at no time had she been told that the pool would be a ‘bowl shape’ and that she had specifically requested to be able to walk from shallow to deep for the therapeutic reasons she had outlined to Mr Hartigan and, had she been told it would be a ‘bowl shape’ she would not have entered into the Contract with Mr Hartigan.
Ms Ashe went on to say that when she queried the shape with Mr Hartigan, following commencement but prior to completion of the pool and asked him to stop work and rectify the issue with the shape of the pool, he reassured her that, once filled, the water would assist with buoyancy, that she would be able to walk in the pool and guaranteed her that she would not have a problem. Mr Hartigan admitted that Ms Ashe relied on the advice he had given her in this regard.
Mr Mears, who was also at the meeting with the parties on site, confirmed Ms Ashe’s version of events and I accept the evidence of Mr Mears in this regard.
Ms Ashe was very consistent in giving her evidence and I found her evidence to be credible. Mr Hartigan’s evidence was inconsistent. Further, Mr Hartigan admitted to not returning Ms Ashe’s telephone calls and messages left for him (which on Ms Ashe’s evidence were numerous) which did not assist in a timely resolution of this matter between the parties themselves.
What is apparent to me, from the photographs of the constructed pool and Mr Hartigan’s admission that the pool has been ‘shaped like a bowl’ is that the pool has not been constructed in accordance with the Contract. That is, it does not have a shallow end and a deep end in accordance with the Plans and Specifications.
Ms Ashe has not provided the Tribunal with any evidence as to the cost to rectify the deficiencies in the construction of the pool and without such evidence I’m unable to make orders in this regard. In the event that rectification is not possible, then the Tribunal will require evidence of this from Ms Ashe.
Accordingly, the Respondent has until 9 January 2015 within which to obtain, submit to the Tribunal and provide a copy to the Applicant of the evidence she proposes to rely upon in relation to the rectification of the pool. Upon receipt, the Applicant will have 14 days within which to file any submissions to the evidence in relation to rectification tendered by the Respondent.
Once the timeframe referred to for the provision of evidence and submissions has expired, the Tribunal will then make its final orders in respect of this matter on the papers without further oral hearing.