Jenner v Bleakley
[2014] QCATA 348
•17 December 2014
| CITATION: | Jenner v Bleakley [2014] QCATA 348 |
| PARTIES: | Anthony Wayne Jenner (Applicant/Appellant) |
| v | |
| Joseph Eric Bleakley (Respondent) |
| APPLICATION NUMBER: | APL439-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 5 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 17 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. The appeal is allowed. 3. The Tribunal’s decision of 24 July 2013 is set aside. 4. The amount of the award of damages will be reduced by an amount representing the cost of the removal and replacement of the concrete path at the side of the house (‘the Reduced Amount’). 5. The parties are to attend a compulsory conference on a date to be advised. 6. In the event that the parties cannot resolve the reduced amount then: a. Joseph Eric Bleakley will file in the Tribunal and give to Anthony Wayne Jenner evidence and submissions as to ‘the Reduced Amount’ within 14 days of the compulsory conference. b. Anthony Wayne Jenner will file in the Tribunal and give to Joseph Eric Bleakley evidence and submissions as to ‘the Reduced Amount’ within 14 days of receipt of Dr Bleakley’s evidence. c. The application will be listed for a directions hearing at a date to be advised. |
| CATCHWORDS: | APPEALS – BUILDING DISPUTE – whether error of law – whether denial of procedural fairness – whether error of fact – whether finding available on the evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 95, s 142 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 |
APPEARANCES:
| APPLICANT: | Anthony Jenner |
| RESPONDENT: | Dr Joseph Bleakley |
REPRESENTATIVES:
| APPLICANT: | Mr Jenner represented by Mr Hatfield of Skelton Law |
| RESPONDENT: | Dr Bleakley represented by Mr Panayi of Industry Lawyers |
REASONS FOR DECISION
Dr Bleakley wanted to do some improvements to the concrete driveway at his home. He knew that Mr Jenner, the husband of one of his employees, was a concreter. Mr Jenner carried out works after providing a written quote and having discussions with Dr Bleakley about the works to be undertaken.
The parties fell into dispute about the quality of the works. The QBSA (as it then was) became involved. Mr Jenner was directed to carryout rectification works. Some rectifications were done.
Dr Bleakley was still not satisfied and commenced proceedings in the Tribunal claiming a refund of monies paid ($14,900) and $10,000 damages to cover the costs of rectification of what he said was defective work.
Mr Jenner in his response did not dispute that some works were defective but wanted the opportunity to inspect the works and arrange rectification. The Tribunal appointed an expert assessor (Dr Sidwell) to inspect the property and prepare a report on whether the works were defective and if so what remedial work was required.
The matter came to the Tribunal for hearing. Dr Bleakley and Mr Jenner appeared on their own behalf and gave evidence. The learned Member correctly identified to the parties the issues that she needed to determine and on what basis she would do that. That is:
· What work Mr Jenner had agreed to carryout for Dr Bleakley (the scope of works). Mr Jenner had disputed the scope of works provided for in Dr Bleakley’s quotes to rectify. He particularly disputed that the scope of the works included removing and replacing of a concrete path at the side of the house to level the falls of the path;
· Whether the works were defective; and
· If so, the reasonable cost to rectify the defective works.[1]
· She would make her decision based on the parties evidence and on Dr Sidwell’s report.
[1]Transcript page 13, line 25.
The learned Member delivered her decision and oral reasons some days after the hearing. She accepted Dr Bleakley’s claim that the works identified were defective; that the scope of the works included the levelling of the falls in the concrete path and she awarded damages in the sum of $44,413.30 being the quote provided by Dr Bleakley to have the rectification works carried out.
Mr Jenner seeks to appeal this decision. He is now represented by solicitors. His solicitors raise a number of grounds in the application for leave to appeal and appeal.
A party may appeal a decision of the Tribunal. Where the appeal ground raises a question of law the appeal may proceed as of right.[2] However leave to appeal is required if the appeal is based on a question of fact or a question of mixed law and fact.[3]
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 142.
[3]QCAT Act s 142(3)(b).
New Evidence
Before considering the grounds of appeal I will consider Mr Jenner’s application to produce new evidence in the hearing of the application for leave to appeal and appeal. He wants the Appeal Tribunal to have regard to his alternative quotations as evidence of the cost of rectification of the defective works.
As is the usual course for proceedings in the Tribunal, Mr Jenner had been directed to file his statements of evidence prior to the hearing. He filed his own brief statement in which he conceded some defective work. Dr Bleakley provided evidence in the form of two quotations to carry out rectification work.
At the hearing Mr Jenner said he had obtained quotes to rectify the defective work he considered he was responsible for but had not provided them to the Tribunal or to Dr Bleakley. He told the learned Member he had the quotes on his mobile phone. At the end of the hearing the learned Member made directions giving Mr Jenner one more opportunity to produce the evidence. In making this decision the learned Member took into account the difficult personal circumstances of Mr Jenner. His young son was undergoing treatment for leukaemia, he was suffering financial hardship and to alleviate the hardship he had taken work with a construction company involving fly-in fly-out work.
The learned Member directed that the additional evidence was to be filed within two days following the hearing. Mr Jenner did not comply with the directions.
Mr Jenner could have been in no doubt as to what he needed to do to ensure the evidence was before the Tribunal. The learned Member had made it clear that he needed to produce evidence to counter Dr Bleakley’s evidence as to the cost of rectification.[4]
[4]Transcript of hearing 15 July 2013, page 27, line 20-25.
Mr Jenner did eventually file his evidence but it was after the date directed by the learned Member.
It is apparent from the transcript of the oral reasons given by the learned Member that Mr Jenner had not complied with her directions and that the evidence was not available to her to be considered in making her decision.[5]
[5]Transcript of oral reasons 24 July 2013, page 2, line 15-25.
There are established principles governing the question of when an Appeal Tribunal will accept fresh evidence. One of the criteria is whether the evidence was reasonably available at the time the proceeding was heard. The question of whether the evidence is likely to have an impact on the result of the case is also relevant.[6]
[6]Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404.
Here, the evidence was clearly available at the time of the hearing and when the matter was determined. Every opportunity was given to Mr Jenner to provide the evidence both before the hearing and subsequently before the matter was determined. The application to now adduce this evidence (ie the alternate quotes to rectify the works) at the hearing of the application for leave to appeal or appeal is refused on that basis.
I will however be asking the parties to provide further evidence of one issue. One of the principle areas of complaint of Mr Jenner is that the learned Member erred in her findings as to the scope of works which he contracted to do. He says this led to an error in the amount that he was ordered to pay for rectification of the works.
For reasons explained below I find that the learned Member did fall into error in her findings as to the scope of works.
It will be relevant for this Appeal Tribunal to consider fresh evidence as to the cost of rectification of those works which I find to be within the scope. This is dealt with further below.
Grounds of Appeal – the question of leave
Mr Jenner’s application raises seven grounds of appeal. They are:
1.The Tribunal made an error of fact in relation to the scope of works.
2.The Tribunal failed to give adequate reasons as to why the evidence of the respondent was preferred over that of the appellant in relation to the costs of rectification.
3.The Tribunal made an error of fact in relation to the costs of rectification.
4.The Tribunal denied the appellant procedural fairness and failed to take into account relevant considerations when it refused to view the appellant’s video evidence.
5.The Tribunal failed to take into account relevant considerations, being the appellant’s oral submissions in relation to the respondent’s evidence of quotations.
6.The Tribunal failed to take into account relevant considerations when it decided it would not consider certain evidence, being the BSA direction to rectify, BSA initial inspection and the BSA reinspection report.
7.A breach of natural justice occurred when the appellant was not afforded the opportunity to file his alternative quotations as evidenced during the hearing.
Some of the grounds raise questions of law, others fact and mixed law and fact.
The complaint about inadequate reasons and the appellant’s argument concerning alleged breaches of natural justice raise questions of law. Mr Jenner has an appeal as of right in relation to those issues.[7] Mr Jenner needs the Tribunal’s leave to appeal however on the grounds concerning the allegations that the learned Member erred in her findings of fact.[8]
[7]QCAT Act s 142.
[8]QCAT Act s 142.
Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[9]
[9]Pickering v McArthur [2005] QCA 294.
Mr Jenner has submitted that leave should be granted on the basis that there is a reasonably arguable case that the primary decision was made in error on the basis outlined in his grounds of appeal and that he has suffered a substantial injustice as a consequence in that there has been a significant award made against him of approximately $30,000 more than should have been made.
It is convenient to initially dispose of some of the grounds of appeal.
Procedural Fairness – Grounds 4 and 7
Mr Jenner says:
· The Tribunal denied him procedural fairness and failed to take into account relevant considerations when it refused to view his video evidence.
The video evidence was a video taken by Mr Jenner of a walkthrough he did of the property when he was last on site.
Mr Jenner said the video should have been watched and taken into account by the learned Member as it refuted a number of allegations raised by Dr Bleakley about the extent of the defective work.
The learned Member did decline to look at the video. The video had been filed late and Dr Bleakley had not seen it.
The learned Member in effect determined that it was not necessary to view the video as the Tribunal appointed an independent assessor (Dr Sidwell) to do an inspection and provide a report as to the state of the works and the extent of the defects. Both parties had agreed to accept Dr Sidwell’s evidence in this regard. She said in response to the video:
I don’t think I need this because what I’m going to be relying on is the report of Dr Sidwell.[10]
[10]Transcript of hearing 1-18 at 15.
In keeping with the object of the QCAT Act ‘to deal with matters in a way that is accessible, fair, just, economical, informal and quick’[11] the Tribunal pursuant to s 95(2) of the Act may refuse to allow a party to a proceeding to call evidence on a matter if the Tribunal considers there is already sufficient evidence about the matter before the Tribunal.
[11]QCAT Act s 3(b).
In circumstances where the video of the walk through was filed late, Dr Bleakley had not seen it and both parties and the Tribunal had an independent assessors evidence as to whether the work was defective, it was not a denial of procedural fairness to decide to accept the video evidence.
That ground of appeal discloses no error.
· Mr Jenner says a breach of natural justice occurred when Mr Jenner was not afforded the opportunity to file his alternative quotations as evidence during the hearing.
Mr Jenner says the Tribunal should have adjourned the hearing to allow him the opportunity to file his alternative quote.
This argument is not sustainable. As discussed earlier in these reasons when addressing the question of new evidence, the learned Member afforded Mr Jenner every opportunity before making her decision to present this evidence which he had in fact been directed to provide before the hearing. The error raised is not made out.
Ground 6
· The Tribunal failed to take into account relevant considerations when it decided it would not consider the QBSA material – namely the BSA direction to rectify, BSA initial inspection and BSA reinspection report.
Mr Jenner says these documents were relevant to the issue of the cost of rectification because they contradicted claims by Dr Bleakley as to the extent of the defective work that Mr Jenner was responsible for.
The reports showed that Mr Jenner did carry out rectification works and that at the time of the BSA inspection in April 2012 the inspector was satisfied with certain rectification works carried out.
I do not accept that the learned Member did not consider these reports.
She referred to the reports in her oral reasons. She stated that her decision about the scope of works was consistent with the QBSA reports.
She also made the point that if the original work was defective and further damage overtime becomes apparent ‘it is possible that a contractor who did defective work would be liable to fix the lot because it should have been done properly in the first place’.[12]
[12]Transcript of hearing 1-19 at 5.
The fact that at the time the defective work (eg cracks) was attended to it does not necessarily mean that further rectification work will not be necessary at a later stage when further defects have manifested.
This ground is not made out.
Ground 5
· The Tribunal failed to take into account relevant considerations being Mr Jenner’s oral submissions in relation to Dr Bleakley’s evidence of quotations.
Mr Jenner says the learned Tribunal Member in making her findings as to the costs of the rectification failed to take into account Mr Jenner’s submissions that the quotes provided for by Dr Bleakley were for works far disproportionate to what was necessarily required.
I do not accept this ground exposes any error on the learned Member’s part.
The learned Member did address Mr Jenner’s submissions about the cost of the rectification. She determined that the evidence she had upon which to make her findings was the report of Dr Sidwell and the quote provided by Dr Bleakley as to the cost to rectify the defects identified by Dr Sidwell.
Mr Jenner’s evidence was that the only item in the quote he took issue with was the removal and replacement of the concrete path to correct the levels.
Once the Member determined the scope of works, that in circumstances where Mr Jenner had not provided any alternative quantum evidence she was entitled to reject the argument of Mr Jenner that some of the work included in the quote was not necessary to correct the defects for which she had found him responsible for.
The proposed ground reveals no appealable error.
Grounds 1, 2 and 3 – The Scope of Works
Mr Jenner alleges:
· The Tribunal made an error of fact in relation to the scope of works.
· The Tribunal failed to give adequate reasons as to why the evidence of the respondent was preferred over that of the applicant in relation to the scope of works.
· The Tribunal made an error of fact in relation to the cost of rectification.
The question of the scope of works was a central issue in the original hearing.
Because of the informal manner in which the contractual relationship was formed between the parties the scope of works included in the contract was not readily discernable.
Mr Jenner through his lawyers has articulated two areas of the rectification works which he says were not part of the contract.
1.Major works to adjust the level of the concrete pathway down the side of the house; and
2.Structural works to rectify the underlying structural problems in the concrete that caused ongoing cracks in the surfacing.
It must be remembered that an appeal is not an opportunity to reargue the case. It is for correcting errors made in the decision.
I accept that Mr Jenner at first instance argued that the works did not include structural works to level the side path. He did however accept that he undertook to do repair work to the existing cracks in the driveway.
At the hearing the learned Member referred Mr Jenner to the quote sought to be relied on by Dr Bleakley and took Mr Jenner through the items of work on the quotation.
In relation to the cracks in the driveway (whilst he argued there are probably more cracks now than when he did the work) he agreed that he and Dr Bleakley did have discussions about the cracks at the beginning of the job and that he agreed to do repairs.
… We went through the job, and we said to Joe, yeah, we would repair those, we would repair those – there’s a lot of little cracks through your existing. We may not or we won’t be able to chase every single crack out of here, but we will hit the large ones.[13]
[13]Transcript 1-22, line 30.
The learned Member expressly put to Mr Jenner that it seemed to her that the only item on Dr Bleakley’s quote that Mr Jenner did not consider was his responsibility was ‘to saw, cut and remove concrete pathway at side of the house’.
Mr Jenner answered ‘I think that is a fair point, yeah’.[14]
[14]Transcript 1-23.
The learned Member subsequently went on to determine that rectification of the levels was part of the scope of work and accepted the quote that Dr Bleakley had put into evidence as to the cost of rectification.
The finding by the learned Member as to the extent of the scope of works is a question of fact.
Findings of fact will not be disturbed on appeal if the evidence before the Tribunal supports the inferences drawn and the facts found.[15]
[15]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321-355 per Mason CJ.
Mr Jenner says the finding that the scope of works included major works to adjust the underlying level of the concrete pathway down the side of the house was not reasonably open on the evidence.
What was the evidence before the Member?
Dr Bleakley’s evidence
In his written statement[16] Dr Bleakley gave the following evidence:
[16]Statement of Dr Bleakley dated 17 May 2013.
· He met with Mr Jenner on site on 18 April 2013. At that time Mr Jenner gave him a prepared written quote dated 28 March 2013.
· At the meeting Mr Jenner suggested redoing the concrete pattern on the driveway and the pool surrounds and that a section of the concrete needed to be cut and replaced to prevent cars scraping at the top of the drive.
· Dr Bleakley suggested other areas could be fixed or improved at the same time namely the concrete to be added to the area near the pool.
· He says he also identified the ‘area down the right hand side of the house was to be levelled so that water would run away from the house’.
· Dr Bleakley paid a deposit of $10,000 on 19 April 2011.
· The work did not commence until late May 2011.
· On 20 June 2011 he asked Mr Jenner via text message whether he was still levelling the concrete at the side of the house … as nothing had happened in the area.
· Mr Jenner did not text back until 28 June where he said:
Hi Joe, been at yours today, big clean up, did wash concrete ready for product tomorrow. Fine to drive down drive like to make sure grade is okay. So can give it a run. Cheers Ant.
· Dr Bleakley paid ‘the final payment’ of $4,900 on 22 August 2011 under the mistaken belief that the work had been finished.
· The relationship deteriorated and text messages continued about getting the works completed and rectified.[17]
· On 25 November 2011 Dr Bleakley emailed Mr Jenner expressing his disappointment with the work. He lists the faults including ‘the concrete down the side of the house is not level’. Mr Jenner did not email a response.
[17]Annexure 2 to Dr Bleakley’s statement dated 17 May 2013.
At the hearing Dr Bleakley said:
· ‘As far as the scope of works were, he was to level the concrete such that the water would flow away from the house’.[18]
· When he was asked by the learned Member as to what he says was agreed he said:
I dealt with this in texts which are enclosed here to Mr Jenner. And I’ve asked him when he is going to level the concrete at the side of the house. At no time did he say it wasn’t possible. Its in an email to him. Again, at no time did he say it wasn’t possible. At no time did he say that it wasn’t part of his scope of works.
[18]Transcript 1-10 at 30.
Mr Jenner’s Evidence
In Mr Jenner’s written statement in response[19] he said:
· He met Dr Bleakley at the house on 18 April 2011 to discuss the job.
· He said
we spoke of several options available … we spoke of the water pooling along his house and without a spirit level we were unable to see if we could assist repairing this existing problem, a drain was mentioned as a possible option but not quoted for.
[19]Mr Jenner’s response filed 10 July 2013.
At the hearing when asked whether he agreed to level the concrete so that the water fell away he said:
… as we walked through there, we spoke about the fall there – water lying on the house. I didn’t have a level at the time. I did say to Joe, you may need to put a drain along here. The product that we use – were using a coating 2mm to 5mm maximum, which is not even that. And it said it may not – without a spirit level, you may need to put a drain along there.[20]
[20]Transcript 1-11 at 20.
When asked by the learned Member ‘did you say that you would somehow level the concrete so that it flows away?’
Mr Jenner said:
No. The level was too great. That’s in the, as I said in my statement there. I said – looked at it without a spirit level it’s very hard from the eye to see what fall we have there. It’s almost impossible to say, we need to grind back this much here to achieve a level. And I said a drain may need to be put in there so it doesn’t actually get onto your concrete to cause water ponding there.[21]
[21]Transcript 1-11 at 35.
He said he did not reply to the text because ‘things got nasty’.
Other Evidence – The costs of the works – Is that indicative of the scope?
A written quote was provided by Mr Jenner in which the scope of works was set out the headings ‘concrete repair works’ and ‘concrete resurfacing inclusion’. The quote was for $9,870. Whilst the heading included the words ‘concrete level repair’ it is clear that the initial quote of $9,870 does not include removal and replacement of the path to provide for adequate levels.
The reference to ‘concrete level repair’ would appear to relate to the levelling of the scrap area at the end of the drive.
Dr Bleakley paid $10,000 the day following their discussion onsite. He said that this was a deposit.
It is accepted by both parties that at the meeting on site on 18 April they discussed doing further work. In dispute is the extent of that further work.
In August Dr Bleakley paid a further $4,900. He said this was a final payment paid by mistake.[22]
[22]Statement of Dr Bleakley dated 17 May 2013.
Whether or not it was paid by mistake Dr Bleakley has referred to the payment as ‘the final payment’. This suggests that Dr Bleakley considered that the total contract price for the works originally quoted and the agreed subsequent works (including the repair of the levels) was $14,900.
Mr Jenner says that this is evidence that the agreed scope could never have included levelling the paths by removing and replacing of the concrete as suggested as the cost of doing that far exceeded $14,900.
The Member’s Finding
It is necessary to set out the learned Member’s reasons to ascertain her findings with respect to the question of scope of works.
The learned Member in her oral reasons said:[23]
[23]Transcript of oral reasons page 1-2 at 30.
The only real dispute between the parties relates to the scope of work and therefore the scope that might be considered in terms of the quantum ordered for the rectification.
Specifically, Mr Jenner says that he did not pour the concrete or substrata and indicates that he doesn’t agree, particularly, with the quotation insofar as it requires new concrete to be placed, in order to rectify drainage concerns.
Mr Jenner says that he never discussed with Dr Bleakley that he would possibly be able to improve drainage in an area at the side of the house.
In any dispute between the parties where witnesses credibility is an issue, a Tribunal Member has to have regard to other evidence before the Tribunal, in order to try and form a view.
In this respect, I have decided to accept the evidence offered by Mr Bleakley as being preferable, for the reason that it is clear that Mr Jenner did do work at this portion of the house and therefore, I consider it more likely that there was a discussion in relation to improving the fall.
…
Dr Bleakley has supplied the Tribunal with two quotations to perform the work …
The two quotations that I have ultimately accepted are those of Clemenston, in the amount $42,893.40 and Freestyle Fencing totalling $1,520. That amounts to the ultimate award of $44,413.40.
…
Having failed to provide any additional information in regard to quantum, at least to the Tribunal, I am not able to consider any arguments made by Mr Jenner.
…
As such, doing the best that I can, with the evidence that is before me, I consider that the work complained of by Dr Bleakley was defective.
…
As I have already indicated, I prefer the version relating to the scope of works proffered by Dr Bleakley, in preference to that offered by Mr Jenner, for the reason that Dr Bleakley’s is consistent with, not only with the direction to rectify that has issued, but also in relation to Mr Jenner having done work in the area at all.
The order was made that Dr Bleakley was awarded the sum of $44,413.40.
Mr Jenner says these reasons do not give ‘adequate reasons’ for the learned Member’s decision to accept Dr Bleakley’s evidence over his as to the scope of works.
I accept that the learned Members reasons in this regard are brief ie ‘because Mr Jenner did do work in the area and the finding is consistent with the direction to rectify’. I think however, they fall short of being ‘inadequate’. The learned Member was doing what she could to bring a speedy conclusion to the dispute by delivering oral reasons in a matter of days after the hearing.
Mr Jenner says that the learned Members finding that the scope included the major works necessary to rectify the levels was not available on the evidence before her.
With respect to the learned Member it is not entirely clear what precisely she found the scope of works to be.
She records Mr Jenner’s position as that ‘he said he never discussed with Dr Bleakley that he would possibly be able to improve drainage in the side of the house’.
I do not believe that is an accurate restatement of Mr Jenner’s position.
He did concede that there was some discussion about improving the fall but that he had indicated he would need to use a spirit level to ascertain the extent to which re-levelling was needed.
Dr Bleakley’s written submissions in the appeal indicate that he accepted the position that there was no agreement that the scope included removing the path and relaying it to fix the levels.
He said ‘concrete was to be levelled along the right hand side of the house by the appellant and how that was to be done was entirely up to the appellant’.[24]
[24]Dr Bleakley’s Submissions 14 January 2014 at 10.
The learned Member said that ‘I consider it more than likely that there was a discussion (my emphasis) in relation to improving the fall’ she then concludes that she prefers the version of Dr Bleakley as to the scope of works.
The learned Member does not however set out precisely what Dr Bleakley’s version was. She proceeds to award Dr Bleakley damages in the amount of the quote supplied by him.
The quote includes an item:
·Saw cut and remove concrete pathway at side of house due to incorrect fall to house: removal from site by excavator dump truck.
·Prepare, place and finish new concrete pathway.
I believe that the Member made a correct finding that ‘more than likely there was a discussion in relation to improving the fall’.
Both sides concede this.
On the evidence before the learned Member however I do not think a reasonable conclusion would be that the parties agreed that the levels would be fixed by whatever means necessary including removal and replacement of the whole path.
Mr Jenner says there was a discussion about the levels but there was no meeting of minds that the levels would be rectified by whatever means necessary.
Dr Bleakley says Mr Jenner agreed to fix the levels but didn’t necessarily agree to remove and replace the path.
Dr Bleakley’s evidence that he paid the total sum of $14,900 being the total amount for the work done does not support the finding that the scope of works included removal and replacement of the path.
I find that on the evidence the only conclusion available is that there was discussions about improving the levels but the parties never reached agreement about the work to be done by Mr Jenner to achieve that.
Whilst the learned Member does not expressly make the finding that the scope of works included structural works to improve the level of the path, the orders that she makes for the amount of damages to rectify the defective work reflects such a position.
I find therefore that the learned Member erred to the extent that she concluded that the scope of works included levelling the path by removal and replacement of the concrete. Such a finding was not open on the evidence before her.
I also find for the same reason that to the extent the award of damages includes an amount to remove and repair the concrete path an error was made in that regard.
I give leave to appeal on this ground and allow the appeal and set aside the award.
What is the appropriate award?
The learned Member said she did the best she could on the evidence available. Mr Jenner had provided no alternative quote. For the reasons set out above I will not allow fresh evidence of alternative quotes providing different methods of rectification and a different scope of works for repairing the defects. The quote by Jeff Klementsen dated 7 May 2013 relied on by the Tribunal at first instance is the evidence as to cost and method of rectification of the defects.
That quote does not however breakdown the costs of each item so as to enable me to make a finding as to the amount of damages which should be awarded being the amount of the quote less the cost of removing and replacing the concrete path. It is appropriate for the parties to be given an opportunity to provide evidence of this.
The Appeal Tribunal would then make a determination as to the appropriate damages to be awarded.
The Appeal Tribunal is mindful of the time it may take to bring this matter to a final conclusion. Bearing in mind that there is to be a reduction in the award only by reference to one item, that is the removal and replacement of the path, it would be a more satisfactory outcome if the parties were able to negotiate and come to an agreement about that amount. For this reason I have set this matter down for a compulsory conference.
The parties will be directed to provide evidence as to the reduction in the amount of damages to be awarded consequential upon the outcome of this appeal in the event the matter is not resolved at the conference.
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