Jacks v Austart Homes Pty Ltd

[2013] QCAT 75

CITATION: Jacks and Anor v Austart Homes Pty Ltd [2013] QCAT 75

PARTIES:	Gavin Jacks Katie Jacks (nee Geddes) (Applicants)
v
Austart Homes Pty Ltd (Respondent)

APPLICATION NUMBER: BDL321-12

MATTER TYPE: Building matters

HEARING DATE: 12 February 2013

HEARD AT: Cairns

DECISION OF: Mr Simon Coolican, Member

DELIVERED ON: 12 February 2013

DELIVERED AT: Cairns

ORDERS MADE:

1.    The application is dismissed.

2.    Each party to bear their own costs of and incidental to the application.

CATCHWORDS: Cracked driveway, domestic building contract.

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr G Jacks and Mrs K Jacks – self represented

RESPONDENT: Austart Homes Pty Ltd

REASONS FOR DECISION

1. Katie Jacks (nee Geddes) and Gavin Jacks entered into a domestic building contract with Austart Homes Pty Ltd on 28th May 2011 for the building of a home at Dulku Close, Craiglie. They nominated a Mr James Geddes, who is a qualified builder and the father of Mrs Jacks, as their agent to act for them during the building process.

2. They took possession of the home in or around November of 2011 and notified the builder of 16 defects, 15 of which are no longer of any concern to the them. There remains an issue with defect number 9 which concerns the driveway that has developed numerous cracks. Mr and Mrs Jacks claim it is defective because of these cracks.

3. Associated with the aforementioned issue, the applicants also claim that the builder made a variation to the contract without their consent by constructing the driveway in a manner which departs from the specifications prepared by Austart Homes Pty Ltd in their original plans.

4. Evidence was heard from the following witnesses:

   a)    Mr Glen Thwaite, a consulting Engineer, who testified that the construction method of the driveway met the Australian Standards and was in his opinion structurally sound. He has not inspected the driveway though but was able to comment on the pictures handed to him of the driveway cracks. He was of the opinion that the size of the cracks was not wide enough to cause any engineering concern. He also stated that the method of construction used to build the driveway was superior to that as per the plans tendered.

   b)    Mr George Hoffman, a licensed Building Inspector who inspects around 300 homes each year, testified that after inspecting the driveway it was in his opinion that there were no defects apparent and the cracks were completely normal.

   c)    Mr Tony Cannon, the builders foreman at the time, who testified that the concrete was poured on or around 12th October 2011.

Two matters require adjudication here

1. Firstly, did the builder breach the contract by changing the driveway construction method without obtaining from the owners a variation confirmation advice?

2. I note that the builder’s contract makes no mention of the method to which the driveway should be built. It only specifies on page 59 of the contract that it should be an ‘Exposed Aggregate Driveway and path to porch’.

3. I do not find that the builder has breached the contract in this matter.

4. Secondly, is the driveway defective?

5. Mr Thwaite gave evidence that virtually all concrete laid will eventually crack. It is the width of the crack which is of concern and in this case he determined that the width of the crack was around 1 mm.  This was within the Australian Building Standards and was therefore not defective.

6. Evidence is also before the Tribunal from the QBSA which in response to a complaint by the applicants, also confirmed that the driveway cracks are not defective.

7. I find that the driveway is not defective.

8. The application is dismissed and each party is to bear their own costs of and incidental to the application.