Jacob v Cerda
[2018] QCAT 255
•5 August 2018
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
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’).
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.
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.
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.
It is not necessary here to traverse all of the 14 ‘extra’ conditions. It is however noteworthy that extra clause 3 required that the steps between the tiered walls at the front of the house be three ‘entire’ blocks wide. Clause 4 in the extra clauses makes reference to an existing exposed pipe in the ground, next to the alfresco area in the backyard. In the event that this pipe was found to be required for drainage, then the Respondent was to build a timber deck over the pipe. In the event that further digging revealed that the pipe was not required for drainage, then this area was to be finished in exposed aggregate, consistent with other areas. Despite item 2 of the written quote envisaging that the rear block wall was to be no more than one metre high, extra clause 6 changes this, and instead specifies that the rear retaining wall vary in height along its length, from 600mm at one end, and up to 1.2 metres at the other.
There were no detailed plans or drawings available. However, a very rough sketch was appended to the quote, apparently also prepared by the Applicant.
The agreement was signed on 12 July 2016. Works by the Respondent then commenced on 14 July 2016.
Pursuant to the agreement the Applicant was required to pay the Respondent by means of a series of progress payments: $5,000.00 deposit; another $5,500.00 on completion of site preparation; a further $5,000.00 upon completion of the retaining walls; $4,000.00 after concreting yet before the aggregate was exposed by means of power washing; and then a final $1,000.00, on completion of all the work.
The Applicant says that she had paid the Respondent $15,500.00 before the works were abandoned by Mr Cerda, which happened on or about 25 August 2016. According to the progress payment schedule, this infers that the Respondent refused to perform further works at a point sometime after the retaining walls had been completed, yet before the commencement of the pouring of the exposed aggregate. This appears to be consistent with the photographic now evidence before the Tribunal.
Ultimately, there is no dispute that Mr Cerda ceased work at this stage, yet he says that he stopped because it had become untenable for him to keep going, because the Applicant kept changing her mind, and the delays caused by that and the Applicant’s unwillingness to pay anything further for the requested changes had made completion of the project quite impossible for him. Obviously, Ms Jacob does not agree with that contention.
Now, before QCAT, the Applicant seeks the costs of rectifying and completing the Respondent’s works. In the interim between commencing this claim - on 3 November 2016 - and the Tribunal hearing the matter in October 2017, the Applicant retained another landscaping contractor, a Mr Peter Etherton, to complete the job. In light of that, the Applicant seeks the following monetary compensation before QCAT:
costs of rectification work: $14,910.00 engineering report: $440.00 QCAT filing fee: $315.70 Total Claim: $15,665.70 Evidence heard before the Tribunal
In addition to her own oral evidence and written materials, the Applicant relies on an engineering report, from Mr Thomas Pugh, civil engineer of Aerial Engineering Pty Ltd. Mr Pugh’s report is dated 15 September 2016.
The Applicant also relies on evidence from Mr Peter Etherton, the remediating landscape contractor. Mr Etherton has provided a statement dated 12 June 2017, and gave evidence by telephone at the hearing, on 13 October 2017.
As well as filed materials, the Respondent has relied on his own oral testimony, and on a written statement, from an employed labourer, Mr Tamati Moana.
On 3 October 2017, the Tribunal issued a direction requiring that Mr Moana appear in person at the hearing, on 13 October 2017. Despite that direction, Mr Moana did not appear at the hearing and hence was not able to be cross-examined in relation to his statement.
In his statement, Mr Moana says a number of things, including that the Respondent’s works were delayed on several occasions in consequence of the Applicant changing her mind about things. Mr Moana’s statement also reveals that the position of the front stairs relative to the front door of the house was changed on two occasions, at no cost to the Applicant.
Because Mr Moana failed to appear before the Tribunal in response to a specific direction requiring that he do so, I am unable to attach any weight to his evidence.
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.
Mr Cerda takes issue with many of the conclusions reached by Mr Pugh. Indeed, it is obvious that some of the faults found by Mr Pugh relate not so much to defects as they do to incomplete matters that the Respondent had yet started, at the point when he departed from the site. Matters (f), (h), (i) and (j) in the list (above), fall in this category.
Mr Cerda has further challenges for the evidence given by Mr Pugh. In response to the contention (b), that different types of blocks had been used during the construction of the front yard retaining wall, Mr Cerda admitted this to be the case, yet says that the walls were originally constructed using the agreed ‘Versawall’ blocks, yet the walls had been constructed so as to follow the fall of the land, across the frontage of the block. Only once the tiered walls had been virtually completed does Mr Cerda say that the Applicant complained to him about this, and that he was then requested to make the walls ‘appear’ visually level, contrary to his deliberate method of construction following the fall of the land. He says that the agreed solution was to add a smaller, different style block on the top of the Versawall blocks, on the walls constructed on one side of the property, in order that the two walls on either side of the stairs would then at least appear to have the same finished height.
In relation to Mr Pugh’s observation (c), that a different style of block had been used for the retaining walls in the rear yard as compared to those used in the front yard, Mr Cerda says that the right-hand rear retaining wall had already been constructed prior to the Applicant engaging his services. The agreement with Ms Jacob was that the new rear retaining wall would be built in a style of block to match that existing side retaining wall at the rear of the property, rather than to match the front retaining walls.
Mr Cerda also denies (d), that the walls have not been constructed correctly. He says that walls less than 800mm height do not require a specific footing and, that the rear retaining walls were constructed on top of heavy bedrock, in circumstances wherein the Applicant was unwilling to pay to have the bedrock removed prior to the construction of the rear retaining walls. Because of cost concerns the Applicant had agreed to ‘pin’ the rear retaining walls to the existing bedrock, by means of steel reinforcement bars that were drilled and glued into the bedrock. In other words, Mr Cerda says that the appearance of the footing in the backyard was a matter that was discussed between himself and the Applicant, and that this form of construction had been agreed, prior to the commencement of work in that area of the yard.
In relation to the other matters raised by Mr Pugh in his report, Mr Cerda says that he was not responsible for installation of the two grated drainage points, he had not touched these during any of his works. In relation to all the other matters Mr Cerda says that the engineer was merely speculating, because the job had not been completed at the point he ceased work on it.
Evidence of Mr Peter Etherton
Mr Etherton is the landscaping contractor and was retained by Ms Jacob to complete the job after Mr Cerda had departed from the site, leaving the works unfinished. He gave evidence before the tribunal by telephone. Attached to his statement is also a quote from ‘Peter Etherton Paving’, dated 3 October 2016.
In his evidence, Mr Etherton described the works undertaken by him at 6 Hawkesbury Avenue Pacific Pines to rectify the landscaping works that had been left by the Respondent. Mr Etherton described how he was required to remove the right-hand lower-tier wall footing at the front of the property, and then all of the retaining blocks used in that right hand lower tier wall, in order to make this wall horizontally consistent with the left hand wall when facing the house, and also because this wall had been built out of alignment. Remedial work was also required on the left hand side, as well, because this wall had also been built out of alignment.
Mr Etherton also informed the Tribunal how he had to pour a new footing for the steps as the original footings poured by Mr Cerda were at uneven heights. Mr Etherton further observed that the front steps were all different, in terms of size, width, and height, and that the ‘return’ retaining walls on either side of those steps were not parallel with one another. Mr Etherton also informed that the measurements for those areas to be landscaped which the Respondent had quoted as being approximately 100 metres square, were, on his own measurements, 165 metres square.
In total, the labour costs for the rectification works undertaken by Mr Etherton were:
Front retaining wall right hand side $2,500.00 Front retaining wall left hand side $1,750.00 Front steps $2,500.00 Paving around house and ramp $6,250.00 Back retaining wall and garden $1,910.00 Total $14,915.00
In Mr Etherton’s opinion the original construction work performed by the respondent was of poor quality. The most obvious faults were found to be that the walls were not straight and level, and the stairs were very sub-standard both in terms of their setting out, and their construction.
Mr Cerda claims that when he returned to the site for an inspection – once the dispute had arrived before the Tribunal – he could see no real differences in the state of the work undertaken by him, even after Mr Etherton had further worked on it, other than to note that the areas intended for exposed aggregate had been completed instead by paving, and that new style of capping block had been installed. Mr Cerda submits that these are aesthetic changes, and he should not be required to meet the cost of them. Mr Cerda notes that the work undertaken by Mr Etherton on the front walls was ‘only after the applicant and her husband had finally decided that they wanted the front walls to be level’. Equally, Mr Cerda makes the point that when the stairs were originally constructed these were constructed with the understanding that the applicant wanted the front retaining walls to be constructed from whole blocks, without any cuts. In consequence the position of the stairs did not align with the front porch of the house, and it was only after the Applicant realised that the stairs did not align with the front porch of the house that they requested that the stairs be demolished and reconstructed so as to align with the front door, which was work that Mr Cerda had undertaken, at no additional cost to the Applicant.
Ultimately, having seen the photographs taken by Mr Pugh and having heard from Mr Etherton, I conclude that the Respondent did construct the walls and stairs in a less than tradesman-like manner. I conclude that the Respondent made a number of fundamental setting-out errors by his failing to work outwards from the centre, thus creating avoidable issues when the newly erected walls met at the centre steps. Equally I conclude that the Respondent failed to clarify whether the front stairs were to align with the front door or whether these were to be partially offset to one side. These are basic yet fundamentally important issues that any competent tradesman ought doubly confirm, well before any works are commenced. That did not happen in this instance. Furthermore, because the walls were bowed and out of alignment along their length these needed to be demolished and then re-constructed in all events, and at considerable expense. I further conclude that Mr Cerda did not seek to sufficiently confirm the requirements of his customer in having the tops of the walls be built to the same level, despite the fact of the block sloping across its frontage. Again, this is the type of basic issue that any competent tradesmen ought be careful to clarify prior to the commencement of any construction. Again that did not occur.
On balance it seems fairly clear to me that the Respondent considerably under-quoted for all of the work involved here. Clearly, the Applicant had a very limited and most unrealistic budget for the scope of works that she wished to achieve, but it was the Respondent who led himself into error for having agreed to take on that unrealistic scope of works for the price he quoted, and then agreed. Having agreed that price, Mr Cerda contractually obligated himself to deliver that scope of works, even if the result was for him to suffer a financial loss. He did not deliver the agreed scope of works, and that is in breach of this contract.
I accept Mr Etherton’s evidence that his recommendation was that it would be cheaper to complete the job with pavers, rather than by means of either exposed aggregate or coloured concrete, as originally contemplated prior to the Respondent having ceased to perform under the contract. I accept also that Mr Etherton’s invoices for remediation and completion of the job are reasonable, and were necessary costs, and that it was also in order for Ms Jacob to incur the cost of retaining Mr Pugh, for an engineering report. Ms Jacob should also be entitled to recover her QCAT filing fee.
The order of the Tribunal is that the Respondent is now required to pay the Applicant $15,665.70 within 28 days of the date of this judgement. The Applicant is not required to pay any further sums to the Respondent on account of any works that were performed by him under the agreement dated 12 July 2016.