Hoyle v Burrows
[2012] QCAT 336
| CITATION: | Hoyle v Burrows [2012] QCAT 336 |
| PARTIES: | Grant Robert Francis Hoyle |
| v | |
| Jeffrey Burrows t/as Burrows the Builder |
| APPLICATION NUMBER: | BDL034-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 26 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Jeffrey Burrows shall pay Grant Robert Francis Hoyle $6,365, being the claim of $6,100 plus the filing fee, by 14 September 2012. |
| CATCHWORDS: | BUILDING – whether a subcontractor or principal contractor – whether subcontractor is liable for defective work – whether work done at specific direction by owner – whether owner accepted the risk of defective work Olofsen, E. v McLinden, S. [2007] QCCTB 130 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Hoyle engaged Mr Burrows to carry out works to Mr Hoyle’s home. The parties did not sign a written contract but there is no dispute that work was done and that Mr Burrows was paid for that work.
The work included balustrading and cover strips to decking. Mr Hoyle says that Mr Burrows used ordinary pine instead of treated pine when he undertook the work. The pine has deteriorated and Mr Hoyle is claiming $6,100 as the cost to rectify the work.
Mr Burrows has not filed any material in the tribunal but Mr Hoyle has included a letter from him dated 28 July 2011 in which he states:
a) He was not employed as a principal contractor for the job. He was engaged on an hourly rate to carry out work as directed by the owner builder.
b) He was shown a sample of a feature paling and asked to get enough timber to match the paling for the balustrade.
c) He advised Mr Hoyle that the timber would have to be sealed and painted before installation.
d) The timber was not sealed and painted but Mr Burrows was instructed to install it anyway.
Mr Hoyle, in response, says that he did not have a contract drawn up because Mr Burrows told him it would be too hard to put a price on it because of the complexity of the work to be done.
Mr Burrows’ invoices to Mr Hoyle, in each case, show work done “as per instructions”. Mr Hoyle has provided a schedule of receipts for the renovations over two financial years. All of the correspondence relating to certification is addressed to Mr Hoyle. Mr Burrows did not pay the QBSA insurance premium. I am satisfied that Mr Burrows was not engaged as the principal contractor but simply as a subcontractor for Mr Hoyle, who acted as owner/builder.
That Mr Burrows was not the principal contractor does not mean that he has no liability for the work. As Member Lorisch said in a decision of the Commercial and Consumer Tribunal[1], a predecessor of this tribunal:
The fact that the applicant is anowner/builderdoes not, in my view, simply absolve the respondent from any liability for defective workmanship. The reality is that the applicant was not qualified to be providing instructions as to the appropriateness of any rectification work. If the respondent was not comfortable with the form of rectification that he was required to undertake, the respondent should have refused to have performed the rectification until he had himself, as a licensee, properly satisfied himself as to the appropriateness of such work.
For the respondent to be protected by a purported instruction, as is alleged, there would need to be, in my view, very clear evidence that, in the face of the respondent’s initial defective work, the applicant undertook to accept the risk as to a form of rectification, for which the applicant was not qualified to have an opinion. I am not satisfied, in the circumstances, that the respondent had not divested himself of responsibility for the rectification work, nor that the applicant had absolved the respondent from any such liability.
[1] Olofsen, E. v McLinden, S. [2007] QCCTB 130 at [20]-[21].
I am therefore required to determine whether Mr Burrows received a specific instruction and whether, in doing so, Mr Hoyle accepted the risk inherent in that instruction.
Mr Hoyle agrees that he supplied a sample of the palings to Mr Burrows. He says that he supplied a sample of the tulip pattern, which had a tag marked “LOGP TREATED.” Mr Hoyle says that the tulip patterned palings are the only palings that have not deteriorated.
In fact, photos supplied by Mr Hoyle show a tulip patterned paling marked “LOSP TREATED”. I consider the reference to LOGP treated timber to be a typographical error. The photos also tend to confirm that the tulip palings have not deteriorated but the plain palings, being dressed pine and not treated, have deteriorated.
[10] I accept that Mr Hoyle showed Mr Burrows a sample of the tulip paling. It is inherently unlikely that Mr Hoyle would show Mr Burrows a sample of treated timber but be prepared to accept untreated timber for the bulk of the palings. I find that the evidence is not sufficiently compelling for me to find that Mr Hoyle undertook to accept the risk of using untreated pine for the balance of the palings.
[11] The consequence of that finding is that Mr Burrows should bear responsibility for the deterioration of the timber. Mr Hoyle has submitted quotes for rectification that total $6,100. These sums seem reasonable.
[12] I direct Mr Burrows to pay Mr Hoyle $6,365, being the claim of $6,100 plus the filing fee, by 14 September 2012.
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