Hasted v Long - [2022] QCAT 41

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hasted & Anor v Long [2022] QCAT 41

PARTIES:

MICHELLE HASTED
JEFF HASTED

(applicant)

v

DENNIS LONG

(respondent)

APPLICATION NO/S:

BDL160-20

MATTER TYPE:

Building matters

DELIVERED ON:

9 February 2022

HEARING DATE:

On-Papers Hearing

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

Dennis Long must pay the amount of five thousand dollars ($5,000.00) to Michelle Hasted and Jeff Hasted within twenty eight (28) days from the date of this order.

CATCHWORDS:

DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – PROOF AND EVIDENCE – where home owners engaged contractor to renovate property – where home owners obtained owner builder permit – where home owners complained about defective work – where contractor attended property to rectify defective work – where contractor failed to rectify two remaining items of work – where home owners claim costs of rectification – whether home owners entitled to recover rectification costs

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

Bellgrove v Eldridge (1954) 90 CLR 613
Robinson v Harmon [1848] ER 135

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Michelle and Jeff Hasted engaged Dennis Long, a licensed contractor, to renovate the bathroom in their home.
On 29 September 2018, the parties signed a Queensland Building Construction Commission (QBCC) Level 1 renovation, extension repair contract for the completion of the work.[1] After signing the contract, Mr and Mrs Hasted were issued an owner builder’s permit for the renovation work.
[1]Statement of the applicants dated 1 March 2021, attachment 2.
Upon completion of the renovation work and after final payment was made, Mr and Mrs Hasted complained to the QBCC about the quality of the work performed. The QBCC inspected the work and issued a direction to rectify certain items of work to Mr Long.
Mr Long attended the property to rectify some of the work found to be defective by the QBCC. There remains two items of work that the QBCC found to have not been completed satisfactorily by Mr Long.
Mr and Mrs Hasted apply to the Tribunal for an order that Mr Long pay the amount of $39,848.13, being the costs to rectify the two remaining items of defective work.[2]
[2]Application for domestic building dispute filed on 1 July 2020.
There are two quotations relied upon that include removal of the existing doors, wall tiling and floor tiling. The quotations also include plumbing and drainage work and water proofing. Put simply, the costs of rectification claimed by Mr and Mrs Hasted include a complete removal of the existing renovation work and a rebuild of the bathroom.
In responding to the application, Mr Long says, amongst other things, that any rectification works needed to be undertaken are cosmetic, the quotations provided by Mr and Mrs Hasted are extremely expensive and the extent of the repairs are not warranted.[3] Mr Long contends that the costs of rectification should be assessed in the range from $2,000.00 to $5,000.00.[4]
[3]Response filed 5 November 2020.
[4]Statement of the respondent filed 1 April 2021.

What are the issues to be determined?

The issues to be determined in this matter are whether Mr and Mrs Hasted are entitled to the costs of rectification for the two items of work that the QBCC found to not be completed satisfactorily. Further to that, are the costs claimed reasonable and necessary.[5] In assessing any rectification costs payable by Mr Long, it is also necessary to consider the contract terms and scope of works.
[5]See Bellgrove v Eldridge (1954) 90 CLR 613.
Mr and Mrs Hasted contend that Mr Long did not comply with the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and relevant provisions of the contract. Mr and Mrs Hasted state the following:
(a)the contract was signed before they obtained their owner builder permit;
(b)Mr Long did not obtain the relevant insurance from the QBCC for the renovation work;
(c)Mr Long issued invoices for payment before the work was completed; and
(d)Mr Long failed to put variations for the work in writing.
I am satisfied that the Tribunal has jurisdiction to determine this matter for the purposes of s 77(1) of the QBCC Act. Further, the parties have had an opportunity to file their statements of evidence and supporting material in compliance with the Tribunal’s directions and that it is appropriate to determine this matter on the papers and without an oral hearing, as directed by the Tribunal.[6]
[6]See Tribunal’s direction dated 29 April 2021. On-Papers hearing scheduled before the Tribunal on 15 December 2021.

What was the scope of works?

There is a contract signed by the parties for the renovation work. The contract is dated 29 September 2018 and is in the sum of $7,007.00.[7] On a fair reading of the contract as a whole, the work does not include plumbing and drainage work. Relevantly, the contract describes the work to be performed as follows:
Bathroom renovation. Supply & install villa board wall linings, plasterboard wall linings, cornice and setting materials needed. Supply labour to waterproof bathroom. Supply labour to install tiles.
[7]Statement of the applicants dated 1 March 2021, attachment 2.
I am satisfied that it was an implied term of the contract that the works would be carried out in an appropriate and skilful way and with reasonable care and skill and that Mr Long would carry out the works with reasonable diligence.
It matters not that the parties signed the contract before the QBCC issued the relevant owner builder permit to Mr and Mrs Hasted and that no QBCC home warranty insurance was taken out by Mr Long.
It is open for me to find that the work was performed by Mr Long on the basis that Mr and Mrs Hasted are owner builders. Indeed, the QBCC determined on 22 November 2019, that the Queensland Home Warranty Scheme is unable to provide cover for any claim items for Mr and Mrs Hasted because the building work was carried out by a building contractor for a person who is the holder of an owner-builder permit.[8]
[8]Ibid, QBCC letter dated 22 November 2020 attachment 15.
Even if the contract was signed by Mr and Mrs Hasted as home owners, I am satisfied that Mr Long was a contractor subject to direction by Mr and Mrs Hasted. Further, I find that Mr and Mrs Hasted engaged Mr Long to complete the renovation work fully aware that Mr Long was not familiar with the requirements of the QBCC Act.
Mr and Mrs Hasted state that they attended a meeting with Mr Long on 1 September 2018, being a date prior to signing the contract to, as stated, ‘assist him in operating his business and complying with the QBCC legislation’. Mr and Mrs Hasted state the following:
Dennis Long’s statement item 3 refers to the meeting held at the residence of Dennis and Janelle Long. This meeting was suggested by Michelle Hasted as it was felt through conversation and also the quote provided, that although Dennis Long held a builder’s licence, he was not familiar with the QBCC requirements….This meeting was held Saturday, 1 September 2018, after the issuing of the quote to complete the ensuite works at our house…I, Michelle Hasted visited [the property] and was there a few hours with a blue folder that contained copies of QBCC documents and fact sheets to assist Dennis Long in operating his business and complying with the QBCC legislation. This covered the requirements of when QBCC Home Warranty Insurance is and is not required including that if an owner builder’s permit was produced by the owner, the contractor was not required to pay QBCC Home Warranty Insurance. At the time of the meeting we shared a coffee and homemade morning tea baked by Janelle. This meeting was not in the capacity of officially representing my place of employment but of a personal interest to assist Dennis Long in not doing anything unlawful.[9]
[9]Statement of applicants filed 20 April 2021, [3].
I find that Mr Long was under the direction of Mr and Mrs Hasted in relation to the renovation work performed under the contract.
It matters not that Mr Long issued relevant invoices for payment prior to the work being completed and claimed variations that were not compliant with the QBCC Act. The unchallenged evidence of Mr and Mrs Hasted, that I accept, is that on 3 December 2018, Mr Long completed the renovation works that included plumbing works. Further to that, on 13 December 2018, they paid the final payment to Mr Long for the renovation works under the contract.[10] Relevantly, Mr and Mrs Hasted paid the total amount of $8,133.21 comprising of the contract sum of $7,007.00 and additional work in the amount of $1,126.21.[11]
[10]Statement of the applicants dated 1 March 2021.
[11]Ibid, and see application for domestic building dispute filed on 1 July 2020.
It is open for me to find that any alleged breach by Mr Long in issuing relevant invoices and variations for work outside the terms of the contract and the QBCC Act has been waived by Mr and Mrs Hasted.
Is there defective work?
I am satisfied based on the QBCC inspection report that there are outstanding items of work for which Mr Long is responsible that is defective work. Relevantly, on 31 October 2019, the QBCC identified the following items of work have not been completed satisfactorily by Mr Long:
5The chips and lippage in the cut tile edges around the metal floor waste in the tiled shower area in the ensuite off the main bedroom of the building does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class, in that deemed a non-structural defect. Pertains to item 8 of the complaint form.
9The sections of grout applied to the walls in the ensuite off the main bedroom of the building, not uniform in colour
Mr Long accepts that he did not complete all of the work as directed by the QBCC. Mr Long says that he attended the property on 26 September 2019 and due to an unforeseen personal matter he left the property knowing that he had, as stated, ‘left one small chip in a tile next to the drain in the shower’.[12]
[12]Statement of the respondent filed 1 April 2021.
I am satisfied that given the history of unsatisfactory work and attempted rectification, it is not reasonable for Mr Long to return to Mr and Mrs Hasted’s house to attempt further rectification work.
Are Mr and Mr Hasted entitled to the costs of rectification?
Mr and Mrs Hasted are entitled to recover the amount that will put them in the same position as if the contract had been completed by Mr Long.[13]
[13]Robinson v Harman (1848) 1 Exch 850.
The quotations obtained and relied upon by Mr and Mrs Hasted in support of their claim for rectification costs include a component of work for plumbing and drainage work.
A report prepared by Reef Coast Constructions who inspected the work and prepared a quotation states that the work performed is of a sub-standard quality and in order to rectify the issues raised by the owners and the QBCC, the whole bathroom is required to be fully demolished and re-constructed.[14] The costs of rectification quoted by Reef Coast includes plumbing work. Reef Coast state that the plumbing works will require inspection by a licensed plumber as the contractor has not completed or provided a Form 4 for the plumbing works. Further, Reef Coast state that ‘[t]he existing framing will be required to be inspected for any issues from the demolition/strip out works followed by complete re-lining of the room’.[15]
[14]Statement of the applicants dated 1 March 2020, attachment 20.
[15]Ibid.
The fact that Mr Mrs Hasted are owner builders or alternatively that Mr Long was subject to direction by Mr and Mrs Hasted for the purposes of the renovation work is important because the relevant owner builder permit does not permit plumbing work. Further, I have found that the contract works did not include plumbing work.
Mr and Mrs Hasted have failed to convince me that the rectification costs they claim are payable by Mr Long should include plumbing work and a complete demolition and rebuild of the bathroom. I am not satisfied that work detailed in Reef Coast’s quotation is both reasonable and necessary.[16]
[16]Bellgrove v Eldridge (1954) 90 CLR 613.
Mr and Mrs Hasted have had the benefit of the work performed by Mr Long that includes work completed under their direction. The completed work includes water proofing and a Form 16 certificate has been provided confirming that the waterproofing membrane to the work including the shower cubicle and walls is compliant.[17]
[17]Ibid, attachment 5.
The QBCC investigated the 15 items of work that Mr and Mrs Hasted said were defective. Mr Long attended to rectification of the defective work save for the two remaining items. The two outstanding items are addressed in the QBCC inspection report with reference to the complaint items.
Item 5 relates to complaint item number 8 that is described as ‘shower floor waste tile cover’ and relates to the inside metal drain cover not being level with ‘lips of metal drain cover’. The QBCC inspection report refers to the relevant item as being ‘non-structural defective building work’ and states that the work does not meet a reasonable standard of construction or finish.
Item 9 relates to complaint item 12. Item 12 is described as ‘bathroom walls – grout missing, discoloured and patchy/not evenly applied’. This item is also described as ‘non-structural defective work’.
I am unable to assess the costs of rectification for the two items of work based on the evidence provided by Mr and Mrs Hasted including Reef Coast’s quotation. As discussed above, there are only two remaining items of defective work that Mr Long failed to rectify. The quotation provided by Reef Coast includes a number of items that do not form part of the contracted works such as plumbing work. There is no breakdown of the individual items of work that includes plumbing work. There is only a lump sum amount quoted of $39,848.13.
Mr and Mrs Hasted have had an opportunity to present evidence in support of their claim and to respond to Mr Long’s statement of evidence.[18] They have failed to convince me that an entire demolition and rebuild of the bathroom is reasonable and necessary in all of the circumstances.
[18]Mr and Mrs Hasted requested that the application be determined on the papers and without an oral hearing. See statement of the applicants filed 20 April 2021.
I have considered Mr Long’s evidence about the cost of the rectification work that he says would be in the range of $2,000.00 to $5,000.00. Mr Long states that only 10 to 15 wall tiles will be affected in relation to rectifying the drain. Mr Long allows for the cost of the purchase of boxes of tiles and adhesive and grout plus labour. Doing the best I can based on the evidence before me and having found that there is defective work, the greater estimate provided by Mr Long in the amount of $5,000.00 should be accepted. The quality of the work performed by Mr Long was clearly sub-standard because there were several items of defective work. Mr Long rectified the work found to be defective. Mr Long failed, however, to rectify the shower floor waste (item 5) and the grout in the tiles (item 9). Mr and Mrs Hasted are entitled to claim for the costs of rectification for the two remaining items of work.
I am satisfied that the amount of $5,000.00 is reasonable and necessary to rectify defective work performed by Mr Long. I order that Mr Long pay the amount of five thousand dollars ($5,000.00) to Mr and Mrs Hasted within twenty eight (28) days from the date of this order.