Jedanhay Pty Ltd t/a Spraycon Concrete Spraying v Thomson
[2012] QCAT 47
•3 February 2012
| CITATION: | Jedanhay Pty Ltd t/a Spraycon Concrete Spraying v Thompson and Anor [2012] QCAT 47 |
| PARTIES: | Jedanhay Pty Ltd t/a Spraycon Concrete Spraying |
| v | |
| Mr Alan Thomson Ms Annette Kent |
| APPLICATION NUMBER: | BDL118-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 30 January 2012 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 3 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr Alan Thompson and Ms Annette Kent shall pay Jedanhay Pty Ltd t/a Spraycon Concrete Spraying $12,611.94 on or before 8 March 2012. |
| CATCHWORDS: | BUILDING – where pool not built in accordance with approved plans – whether pool structurally sound – whether homeowner required to pay contractor for pool shell PROCEDURE – where homeowner did not file statement from expert – where report from expert prepared by a number of engineers within the firm – where expert conclave – where not report from experts about matters of disagreement – whether oral evidence from expert should be allowed Queensland Civil and Administrative Tribunal Act2009 Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186 |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr Cec Seaton, manager of Jedanhay Pty Ltd |
| RESPONDENT: | Mr Alan Thompson, Ms Annette Kent |
REASONS FOR DECISION
In 2009, Jedanhay Pty Ltd t/a Spraycon Concrete Spraying installed a concrete pool shell at the home of the respondents, Mr Thompson and Ms Kent. On 14 August 2009, Spraycon rendered an invoice for $15,518.19. The invoice has never been paid. The respondents say that the pool shell was not in accordance with the approved plans and is structurally unsound. They have refused to pay Spraycon’s invoice and have counterclaimed rectification costs of $14,673.17.
The parties agreed that the issues for the tribunal to decide were:
a)whether or not the pool shell is structurally sound.
b)whether or not the pool shell complied with the contract.
c)if no to either question, what flowed from that finding.
Preliminary issue
This dispute was listed for hearing on 26 September 2001. On the morning of the hearing, the respondents wanted to call Mr Vacher, a building certifier, although they had not filed a statement from him. Spraycon objected to being taken by surprise by the witness. The learned Member adjourned the hearing and conducted a compulsory conference instead. She made orders requiring the parties to file all statements of evidence they wanted to rely on by certain dates. The learned Member also ordered that no party would be allowed to present any evidence at the hearing that was not contained in the statements without providing written justification. This was the third order of the tribunal requiring the parties to file material well before the hearing and the cautioning them about the consequences of non-compliance.
The parties were also required to provide a list of witnesses they would rely on at the hearing. The respondents’ list nominated “an engineer” from EBIS. At the hearing, they wanted to call Mr Smyth from EBIS.
The respondents filed a report prepared by EBIS dated 5 November 2009. The report has the signature block of D R Stanfield but it has been signed by Mr Smyth. Mr Smyth and another gentleman from the EBIS office attended the expert conclave and the joint report was signed by Mr Smyth. There are some areas of disagreement in the joint report and the respondents wanted Mr Smyth to give evidence about further calculations he had done after the joint report had been signed. Contrary to Practice Direction 4 of 2009, the respondents had not filed a further report from Mr Smyth nor had they filed a statement from him.
When asked why they had not filed a further report from Mr Smyth, Mr Thompson told the tribunal that they had wanted to keep the evidence back until the day of the hearing.
Hearings in the tribunal are not conducted on the basis of some old-style Hollywood notion of surprising the tribunal with critical evidence on the morning of the hearing. As Senior Member Endicott has observed[1]:
It is a obligation of the tribunal under section 28(3)(e) of the Queensland Civil and Administrative Tribunal Act 2009 to ensure that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. For this reason directions are made for the filing of witness statements and documents to be relied on before the hearing of a proceeding. Parties are expected to take active steps to engage in a proceeding and have a specific duty in section 45 of the Queensland Civil and Administrative Tribunal Act 2009 to act quickly in any dealing relevant to the proceeding.
The tribunal controls the hearing process not the parties. The tribunal will not permit evidence being withheld and produced only at a hearing by a party. Disclosure of the evidence in support of a matter is required to be made well before a hearing so that no party is taken by surprise or rendered at a disadvantage at the hearing.
[1]Stainton v Footlong Subs Employment Services Pty Ltd [2011] QCAT 186 at [9], [10].
I allowed Mr Smyth to give evidence on one point: calculations of the over-stressing of the pool reinforcing. To allow any further evidence from this witness had the potential to take Spraycon by surprise and to undermine the purpose of the tribunal giving comprehensive directions about the pre-hearing steps required of both parties.
I am conscious of the need to provide procedural fairness and natural justice to the parties. The respondents complained that Spraycon also failed to comply with tribunal directions. As I pointed out at the hearing, the respondents had ample time to, and did, respond to the material filed in breach. The same opportunity would not have been available to Spraycon if I had allowed wide-ranging evidence from Mr Smyth. I understand that the respondents consider that my refusal to allow that evidence from Mr Smyth has disadvantaged them in the presentation of their case. That disadvantage is of their own making.
[10] Mr Thompson told the tribunal that this was his first encounter with QCAT, that it was more formal than the process he was used to, and that he did not understand the procedures. Mr Thompson presented to the tribunal as an intelligent man who had a comprehensive knowledge of a range of Australian Standards, the Building Code of Australia, the law as it applied to building contracts and complex building concepts. I find it difficult to accept that he could not understand a direction of this tribunal.
Background
[11] The respondents had been undertaking some owner/builder work on their home on the Sunshine Coast. They wanted to build a swimming pool, so they signed a contract with Spraycon. The contract records that the respondents would be responsible for: the excavation[2], plumbing, coping, pebble, fence and electrical[3] aspects of the build.
[2] Item 7.
[3] Items 23 and 21-26 of the specification.
[12] It is not clear from the contract who would be responsible for obtaining the necessary approvals. Item 16 records that the builder would be responsible for the building approval but the owner would be responsible for the development approval. Item 23 – owner supplied items – has a note in a different hand from the balance of the contract that records “Council application and approval”. The engineering plans are not attached to the contract, although it does record that detailed plans were prepared by Lindsay Consulting on 29 June 2009.
[13] There is a dispute about who supervised the excavation but I do not need to decide that issue. Spraycon laid the steel and sprayed the concrete. It says that the pool shell was complete on 12 August 2009. It sent the respondents an invoice on 14 August 2009.
[14] On 24 August 2009, Mr Thompson expressed concern that the concrete supplied was 25mPa whereas the plans called for 32 mPa concrete. The communications that followed led to Mr Thompson questioning the adequacy of the structure as a whole. Because of his concerns, Mr Thompson terminated the contract and arranged for rectification work to be undertaken. The respondents are claiming the cost of rectification from Spraycon.
Is the pool shell structurally sound?
[15] There was a joint experts’ report prepared on 31 January 2011.[4] It is not particularly helpful but it records agreement on the following matters:
[4] JL3 to the affidavit of Jason Lindsay sworn 11 August 2011.
a)The minimum concrete strength for pools under AS2783 is 25 mPa. Spraycon used 25 mPa concrete.
b)The pool shell has not been constructed in compliance with the engineering drawings.
c)The lack of adequate curing can have an effect on the pool shell. The construction and pool industry often fails to comply with the recommended curing regime.
d)Honeycombing and cracking may be due to a number of factors. Concrete will crack. Cracking and honeycombing can be repaired.
e)The provision of a sump is preferable. The fact that there is no sump is unlikely to cause any future problems.
f)The concrete cover to the reinforcement appears to be adequate.
g)An increased coping width may have stiffened the top free edge of the pool but it was not essential.
h)That the pool is partially above ground and partially in fill is a contractual, not a structural issue.
The pool reinforcing has not been constructed in accordance with the plans.
j)The suction line is not required.
[16] The respondents take issue with aspects of the experts’ agreement. The extent of their concerns is recorded as Attachment A to the tribunal’s directions of 24 August 2011. Essentially, they say that the structural adequacy of the pool shell is still a live issue. I agree. It is for me to determine whether I prefer the evidence of EBIS (that the pool is not structurally sound and that Mr Thompson’s modifications were appropriate) or the evidence of Lindsay Consulting (that the pool is sound).
[17] I acknowledge that the respondents lost confidence in Mr Lindsay because of the errors in his reports. He wrongly asserted that the concrete was 32 mPa, but later corrected that mistake. He wrongly asserted that the pool shell had been built in compliance with the plans. At the hearing, when Mr Thompson took him through the plans, Mr Lindsay conceded that the pool shell did not comply with the plans, particularly in relation to the set out of the reinforcing. He wrongly asserted that the reinforcing was at 100 mm centres but, in a later report, corrected that error. He wrongly asserted that the reinforcing was N12, when, according to Mr Thompson, they were S12.
[18] The evidence of EBIS is not without concern either. At the hearing, Mr Smyth revealed that EBIS takes a “collaborative approach” to its report writing. Mr Smyth was not the engineer who inspected the pool shell and he was not the engineer who drafted the report. That person was, apparently, a Mr Davies. Both Mr Smyth and Mr Stanfield had input into Mr Davies’ report but I have no information about who reached what conclusion. From the tribunal’s perspective, this is an unsatisfactory way to write reports as a proper opportunity to cross examine the findings of the report would require three experts to give evidence.
[19] Mr Smyth conceded that he had read Practice Direction 4 of 2009. The joint report identifies areas of disagreement between the experts and EBIS identified some further calculations that would be desirable. Despite this knowledge, Mr Smyth carried out some calculations the night before the hearing. He did not trouble to reduce his findings to writing and certainly did not trouble himself to comply with the tribunal’s directions about filing further evidence. If Mr Smyth was so concerned about these calculations, why were they not done earlier? If they were so significant, why didn’t he provide a further report?
[20] I am also troubled by indications that EBIS was not sufficiently independent in its deliberations. In paragraph 3 of the report, EBIS notes:
Although the pool is unlikely to be unsupported…we consider it prudent to add thickness to the pool shell as suggested by the owner (my emphasis added).
[21] EBIS does not explain why, despite its lack of concern about the structure, it considered the respondents’ work was necessary. There is a reference to, but not an explanation of, “check calculations” at paragraph 4.0 – 13 of the report.
[22] The expert evidence is further complicated by a concession by all parties that the pool shell as designed was not what the respondents wanted and not what Spraycon installed. In an email of 16 July 2009 to Spraycon[5] Mr Thompson records that the drawings were wrong and that he wanted amended drawings. In the end, Mr Thompson did not wait for amended drawings. He submitted the plans as they were but the parties proceeded on the basis of the requested amendments. It is, therefore, somewhat hypocritical for Mr Thompson to cross-examine witnesses about non-compliance with the plan when his conduct was a factor in the non-compliance.
[5] JKG4 to the affidavit of Jennifer Kay Godfrey sworn 17 September 2010.
[23] There is also some indication that EBIS has changed its mind about the extent of compliance and/or structural adequacy. In its report of 5 November 2009, EBIS states that:
a)The pool is unlikely to be unsupported by the external ground or vice versa.
b)Not curing for seven days may cause shrinkage cracking which are not structurally significant, unless very bad.
c)The coping is structurally not necessary.
d)The patched concrete around the skimmer box should have been done with the correct product.
e)Concrete cover less than 65 mm is not significant if the variation is not too great.
f)N25 concrete is frequently used in pools but reinforcing is adjusted accordingly.
g)No pavement is required to support the pool shell.
h)The reinforcement matrix appears to be okay notwithstanding the cover provided cannot be determined.
Check calculations have verified that the remedial work is warranted for the deep section of the pool.
[24] In light of those comments, I find that:
a)The fact the pool is unsupported does not affect its structural soundness.
b)The lack of coping or pavement is not relevant.
c)The extent of concrete cover is not relevant.
[25] I was not provided with any evidence of cracking that was structurally significant, or “very bad”. In fact, there is little evidence about cracking. Accordingly, I find that not curing the concrete had no significant effect on the structure of the pool shell.
[26] In his report of 14 October 2009[6], Mr Lindsay recommended the use of Xypex Patch and Plug Compound for patching the pool. There is no suggestion that this product, or a product like it, was not used and there is no evidence that the patch around the skimmer box has failed in any way. I find that the patch around the skimmer box has been rectified appropriately.
[6] JL1 to the affidavit of Jason Lindsay sworn 11 August 2011.
[27] There is a discussion in the joint report about honeycombing in the pool shell. The engineers refer to their “understanding” and make some assumptions. In the absence of specific evidence that honeycombing was a problem that was not addressed, I decline to make any finding that it has, or will, contribute to any structural problems in the pool shell.
[28] In light of EBIS’ first report, I interpret the joint expert report as being a statement of agreement between them that the use of 25 mPa concrete is satisfactory.
[29] The final point of difference between the experts is the calculation of the structural strength. Mr Lindsay used a 3D computer model, the results of which were annexed to his report of 8 June 2010.[7] That model assumed 25 mPa concrete and the reinforcing matrix that was in place. While I freely concede that computers are not infallible, the only other evidence I can refer to is EBIS’ comments in the joint report to the effect that:
a)Applying computer modelling does not necessarily provide accurate results.
b)EBIS’ worst load case is more critical that that of Mr Lindsay.
[7] JL2 to the affidavit of Jason Lindsay sworn 11 August 2011.
[30] At the hearing, Mr Smyth challenged the findings in paragraph 2 of Mr Lindsay’s report of 14 October 2009. Mr Lindsay annexed spreadsheet calculations in support of his conclusions. As I have already commented, Mr Smyth made his calculations the night before the hearing, over two years after Mr Lindsay put his calculations on record. They were not put in a report and they were not supported by any spreadsheet. For this reason, I prefer and accept Mr Lindsay’s calculations. I am, therefore, satisfied that the pool shell is structurally sound.
[31] The respondents also referred to “serviceability issues”. They say that, because of the differences in the construction of the pool shell, its likely life is less than normal and they will experience leaks and rusting either earlier or more frequently.
[32] The experts did not address this issue. At the hearing, Mr Thompson asked Mr Lindsay if the pool shell structure was likely to cause long term serviceability problems. Mr Lindsay replied that there were a number of factors that affected the long term serviceability of a pool, including the level of maintenance. He did not think that the pool shell structure was a factor.
[33] The respondents have filed numerous submissions which respond to the statements filed by Spraycon, point to areas of disagreement and comment upon research conducted by them through the internet. It is in the nature of a running commentary from a disgruntled homeowner who is simply recording thoughts as they come to mind. This is no substitute for a properly prepared set of statements or expert reports.
[34] The only real evidence of a leak or serviceability problems is an invoice from Australian Leak Detection dated 16 August 2010 referring to a leak around the main dress ring seal. As the seal was installed after the pebbling, (which was the respondents’ responsibility) I cannot see how this indicates that Spraycon should be liable for serviceability issues. Indeed, because the respondents were responsible for the pebbling, tiling, plumbing and electrical works for the pool, it is clear to me that responsibility for serviceability issues will fall to both Spraycon and the respondents. I decline to make any adjustments on this ground.
Did the respondents get the pool for which they contracted?
[35] I have already noted that the pool shell installed by Spraycon did not comply with the approved plans. In some respects, the non-compliance was a direct result of Spraycon carrying out Mr Thompson’s requests for alterations, which requests were reduced to writing but not costed. Mr Thompson asked for the removal of the coping and that the depth of the pool be increased from 2,100 mm to 2,250 mm. I do not consider that the tribunal should interfere in the arrangements between the parties on these matters.
[36] The unapproved variations are:
a)25 mPa concrete instead of 32 mPa.
b)A different reinforcing structure.
c)The failure to install the sump.
d)The failure to install the suction line.
[37] Mr Seaton says that, if the respondents wanted to insist on 32 mPa concrete, it should have been an express term of the contract. I do not accept that argument. The contract referred to the plans by Lindsay Consulting. The plans refer to the use of 32 mPa concrete. There is, therefore, a sufficient reference to 32 mPa in the contract documents to make it a term of the contract.
Quantum
[38] As I have found that the pool shell is structurally sound, subject to the comments that follow, Spraycon is entitled to payment for its work. Its initial invoice of $15,518.19 was adjusted as follows:
$15,518.19 + engineer’s report 550.00 $16,068.19 - credit for filtration equipment returned 2,596.00 $13,472.19 + cost of reinstating filtration equipment to saleable condition 189.75 $13,661.94
[39] The engineer’s report was necessary only because Spraycon did not comply with the engineering drawings and did not obtain the respondents’ approval to do so. Spraycon, not the respondents, should bear the cost of the engineer’s report.
[40] Spraycon properly gave a credit for the returned equipment. The respondents say that they were not responsible for the condition of the equipment because it was damaged by Spraycon employees. There is an assertion that the equipment had been installed and then decommissioned and photographs of the equipment[8] do show minor damage. In all the circumstances, a deduction of $189.75 to refurbish the equipment is reasonable.
[8] JKG18 to the affidavit of Jennifer Kay Godfrey sworn 17 September 2010.
[41] The respondents did not provide any information about the cost difference in Spraycon’s failure to provide the items identified in [32] above. Mr Seaton on behalf of Spraycon advised the tribunal that:
a)The difference between 25 mPa and 32 mPa is $18 per cubic metre.
b)The failure to install the sump resulted in a saving of $21.
c)The failure to install the suction line resulted in a saving of $18.
[42] I did not ask Mr Seaton whether there was any saving in the changes to the reinforcing but my impression is that there was less steel used in the end result. There should be some allowance for that.
[43] The respondents provided a copy of a delivery docket from Boral showing 23.6 cubic metres of concrete was provided. Therefore, Spraycon’s use of 25 mPa concrete resulted in a saving of ($18 x 23.6) $424.80.
[44] The quantified savings total $463.80. To take account of the unquantified savings in reinforcing, I find that an amount of $500.00 should be deducted from Spraycon’s claim.
[45] The amount of Spraycon’s claim, therefore is:
$15,518.19 - credit for filtration equipment returned 2,596.00 $12,922.19 + cost of reinstating filtration equipment to saleable condition 189.75 $13,111.94 - credit for non-compliance with contract 500.00 $12,611.94
[46] Spraycon has claimed interest under the Supreme Court Act 1995 from the date of the first invoice. The respondents resist a claim for interest because Item 20 of the contract, which refers to interest, is marked “n/a”. I agree that no interest is payable under the contract.
[47] In considering the exercise of my discretion to award interest, it is not reasonable for interest to be calculated from the date of invoice. Mr Thompson raised valid concerns about the work which were not addressed properly until, at the earliest, June 2010 when Mr Lindsay’s second report was received. In all the circumstances, I decline to order interest on any of the amount payable to Spraycon.
[48] Because I have found that the pool shell is structurally sound, it follows that Spraycon is not responsible for any of the remedial works undertaken by the respondents. In a number of ways, the respondents’ conduct has added to their difficulties:
a)They did not wait for the provision of amended plans before commencing work.
b)They did not approach the QBSA about their concerns. The respondents argue that the contract called for a different dispute resolution process and that they had lost confidence in Spraycon’s ability to rectify any defects. I acknowledge that lack of confidence in the contractor may be a valid concern but it does not change the fact that the statutory regime under the Queensland Building Services Authority Act 1991 allows a homeowner to complain to the Authority and the contractor the opportunity to rectify defects at its own cost before the dispute escalates. Recourse to the QBSA process may have avoided the need for these proceedings.
[49] It is apparent that Mr Thompson undertook most of the rectification work himself. Mr Vacher, a building contractor, gave evidence that, in his opinion, Mr Thompson was the best person to do the remedial work given his previous experience in the industry. Like the report from EBIS, Mr Vacher’s evidence had the appearance of being simply an adoption of a proposal that was presented by the respondents with the question “would you agree with that?”
[50] The breakdown of costs of the remedial works includes over $6,000 worth of Mr Thompson’s labour, calculated by reference to wages rates from Rawlinsons. The rates supplied by the respondents are the contract charge out rates; that is, the rate inclusive of on-costs such as superannuation, provision for leave, administration costs and profit. It is not a true reflection of the rate that should be applied to Mr Thompson’s own labour. There is no evidence from Mr Vacher or anyone else about what another contractor would charge for this work, or whether the hours claimed are reasonable. Further, unless Mr Thompson has actually incurred these costs, I do not see why Spraycon should bear the cost of Mr Thompson’s labour. It would be a different question if the respondents had framed their claim as a loss of, say, wages because they had no alternative but to carry out the work themselves.
[51] It is apparent from Mr Vacher’s evidence that Mr Thompson did not hold the necessary licences to carry out the works. Spraycon has raised the question of whether Mr Thompson has complied with the owner-builder provisions of the QBSA. It is a relevant question in relation to the pool works as a whole but is not relevant to my decision.
Conclusion
[52] The pool shell constructed by Spraycon is structurally sound. The respondents’ claim for the cost of remedial works fails.
[53] The respondents have not persuaded me that I should make an order in relation to the serviceability issues of the pool in the future.
[54] The pool shell constructed by Spraycon was not constructed in accordance with the approved plans. Spraycon is entitled to payment for its work less an amount for the savings relating to the items of non-compliance.
[55] I decline to exercise my discretion to give Spraycon interest on the amount outstanding.
[56] Mr Alan Thompson and Ms Annette Kent shall pay Spraycon $12,611.94 on or before 8 March 2012.
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