Jacob v Cerda

Case [2018] QCAT 255

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Jacob v Cerda [2018] QCAT 255

PARTIES:

BINNY JACOB
(applicant)
v

JUAN PABLO LARRAIN CERDA

(respondent)

APPLICATION NO/S:

BDL284-16

MATTER TYPE:

Building matters

DELIVERED ON:

5 August 2018

HEARING DATE:

13 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:

1.   The Respondent is to pay the Applicant $15,665.70 within 28 days.

2.   The Respondent’s counterclaim is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – building contract for landscaping works – respondent abandoned site prior to completion of works – claim by applicant for costs of completion and rectification – counterclaim by respondent for uncharged works

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. By an Application for Domestic Building Disputes filed on 3 November 2016, Ms Binny Jacob (‘the Applicant’) brings a claim before QCAT against Mr Lorrain Juan Pablo Cerda (‘the Respondent’).

  2. The Respondent had constructed a series of block retaining walls at the front and rear of the Applicant’s home at 6 Hawkesbury Avenue at Pacific Pines, as well as a set of external block stairs from the footpath up to the front entrance of the house. The Applicant now claims these works to be defective, and incomplete.

  3. The Applicant says that on 12 July 2016 she accepted a type-written quote (quote number 519) presented by the Respondent for landscaping works at her home for $20,500. The scope of work included in the quote was:

    Back yard:

    1.       Demolition and preparation of areas for paving and retaining wall;

    2.       [Construct a] Retaining wall 15 metres long. Height to vary from 400 mm high to one metre high with charcoal blocks to match an existing retaining wall

    3.       [Install] exposed aggregate in 3 different sections: 10 square metres, approx., cream in colour

    4.       Garden bed will be built between retaining wall and paving area from 1 metre to 1.5 metres wide and 15 metres long (Plants not included).

    Front yard:

    Retaining wall, 2 piers [sic, should be ‘tiers’]. First will be 10 metres long by 400mm high with a one metre set of steps between

    Second pier (second level) will be 10 metres long by 600mm high with a one metre wide set of steps between Retaining walls will be built with charcoal ‘Versablock’ 400 x 200.

    A garden bed will be built between the 2 retaining walls Plants are not included.

    Top level exposed aggregate.

  4. There were some further negotiations before the Applicant and the Respondent signed the quote. Under a further section entitled ‘comments from clients to be agreed with JPL Landscaping’ there appears a hand-written insertion: ‘please see the comments attached (2 pages)’. Then, attached to the quote, and duly initialled by the Applicant and Respondent is a further type-written list, of 14 conditions. Presumably, these 14 conditions were drawn up by the Applicant.

  5. It is not necessary here to traverse all of the 14 ‘extra’ conditions. It…

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Details
AGLC
Jacob v Cerda [2018] QCAT 255
Case
[2018] QCAT 255
Decision Date

CaseChat Overview and Summary

In Jacob v Cerda, the respondent, a builder, was engaged by the applicant to carry out landscaping works at her property. The dispute arose when the respondent abandoned the site prior to the completion of the works. The applicant sought to recover the costs of completion and rectification, while the respondent counterclaimed for uncharged works. The matter was heard by the Tribunal, which had to determine the amount, if any, that the respondent owed the applicant for the landscaping works and whether the respondent was entitled to any payment for uncharged works. The Tribunal found in favour of the applicant, awarding her $15,665.70 and dismissing the respondent’s counterclaim.

The key legal issue before the Tribunal was whether the respondent was entitled to payment for the uncharged works he claimed to have completed, and if not, what amount, if any, the applicant owed the respondent for the landscaping works. The applicant denied that any of the respondent’s works were delayed as a result of her requesting changes, and that the only extra work or changes that were required were in consequence of deficiencies in the quality of work already completed by the respondent. The Tribunal had to consider the evidence presented by both parties, including the engineering report and the text messages between the parties, to determine the merits of the claims and counterclaims.

The Tribunal found that the respondent had not provided sufficient evidence to support his claim for uncharged works and dismissed his counterclaim. The Tribunal held that the applicant had provided evidence that the respondent had made mistakes in laying out the front stairs, which resulted in gaps around the stairs where they did not properly meet with the adjoining tiered walls. The Tribunal also found that the respondent had not constructed the retaining walls correctly, and that sub-drainage was not installed prior to backfilling behind any of the walls. The Tribunal held that the respondent was liable to pay the applicant $15,665.70 for the landscaping works, which represented the cost of completing the works and rectifying the deficiencies.

The Tribunal ordered that the respondent pay the applicant $15,665.70 within 28 days and dismissed the respondent’s counterclaim. The Tribunal did not make any orders regarding the uncharged works claimed by the respondent. The applicant was therefore successful in her claim for the costs of completion and rectification, while the respondent’s counterclaim for uncharged works was dismissed.

Orders

Orders of the court

1. The Respondent is to pay the Applicant $15,665.70 within 28 days.

2. The Respondent’s counterclaim is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is to be noted that the Applicant specifically denies that any of the Respondent’s works were delayed as a result of her requesting changes, and that the only extra work or changes that were required were in consequence of either herself or her husband complaining to the Respondent about obvious deficiencies in the quality of work already completed by him. In particular, the Applicant says that changes in the position of the front stairs only arose because of ‘laying-out’ mistakes made by the Respondent, which resulted in ugly gaps around the stairs where they did not properly meet with the adjoining tiered walls. The Applicant wholeheartedly agrees that the front stairs were meant to be three entire blocks wide. Yet, she says that Mr Cerda should have laid the stairs out first and then worked out from the centre of the frontage and towards the property boundaries, so as to avoid the need to cut blocks at, or near to, the stairs. Instead, Ms Jacob says that Mr Cerda ‘worked inwards’, from the side boundaries of the frontage towards where the stairs would be located, thus creating obvious and entirely avoidable aesthetic problems when the walls as thus constructed were required to meet with the stairs in the middle, when governed by the contractual requirement that the stairs be three ‘whole’ blocks wide. In consequence, the walls and stairs did not unite in any acceptable manner.Evidence by the Applicant and the Respondent As well as acting as advocates in their own case, the Applicant and the Respondent also gave their own evidence, from the bar table. Much of this was: either emotive, or emotionally charged; consistently contradictory, one of the other; and generally quite confusing. A large volume of text messages as between the Applicant and the Respondent were also put into evidence. These too were confusing, and ultimately of little practical assistance. Here, absolutely no criticism is intended of either the Applicant or of the Respondent, as each of them were clearly attempting to do their very best, in an attempting to explain their respective cases before the Tribunal.Mr Pugh’s Engineering Report Mr Pugh’s engineering report, dated 12 September 2016, became exhibit 1 in these proceedings. In that report, Mr Pugh made a number of observations:(a)the front yard and rear yard retaining walls are not straight in alignment, and nor are they level;(b)different types of block have been used to construct the front yard retaining wall, being a mixture of ‘Versawall’ blocks, and ‘Allen’ blocks;(c)different types of blocks have been used for the retaining wall in the rear yard from those used in the front yard;(d)the retaining walls do not appear to have been constructed correctly. In particular, the footings for the front retaining walls were considered to be too small and did not appear to have been given any (or at least any sufficient), reinforcement. A footing for the retaining wall in the rear yard is poorly constructed, being very high, poorly aligned and bulging;(e)sub-drainage was not installed prior to back filling behind any of the walls, and the back fill then used was not ‘clean’ fill;(f)the front and rear areas of the property had been prepared for the pouring of an exposed aggregate concrete slab, but only very minimal preparation work had been conducted;(g)two drainage points in the rear yard had not been connected;(h)plastic damp-proof sheeting had not been installed during site preparation for the exposed aggregate;(i)mesh reinforcement has not been installed during site-preparation;(j)timber shuttering for the concrete pour had not been installed correctly.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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