Johnson v Waterama Pools Pty Ltd t/a Narellan Pools Brisbane North
[2024] QCAT 210
•16 May 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Johnson v Waterama Pools Pty Ltd t/a Narellan Pools Brisbane North [2024] QCAT 210
PARTIES:
TIM JOHNSON (APPLICANT)
JEN JOHNSON
(APPLICANT)
v
WATERAMA POOLS PTY LTD T/A NARELLAN POOLS BRISBANE NORTH (respondent)
APPLICATION NO/S:
BDL304-20
MATTER TYPE:
Building matters
DELIVERED ON:
16 May 2024
HEARING DATE:
23 August 2022
HEARD AT:
Brisbane
DECISION OF:
Member Paratz AM
ORDERS:
1. Tim Johnson and Jen Johnson are to pay Waterama Pools Pty Ltd t/a Narellan Pools Brisbane North the amount of Seven Hundred and Nine Dollars and Forty Cents ($709.40) in respect of the claims in this proceeding (plus the amount of Nine Hundred And Seventeen Dollars ($917.00) being the final payment owing by Tim Johnson and Jen Johnson under the Building Contract dated 30 May 2020, if that amount is still outstanding).
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – TIME – REMUNERATION – EXTRAS AND ALTERATIONS – where the homeowners engaged the respondent pool builder to supply and install a fibreglass swimming pool – where extra costs were claimed as a result of encountering stormwater pipes running through the pool excavation area – whether it was foreseeable that there would be stormwater pipes running through the pool excavation area – where extra costs were claimed for earthworks surrounding the swimming pool – where the owners claimed for various items associated with the works
Queensland Building and Construction Commission Act1991 (Qld), s 77(3)(h)
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented by Tim Johnson
Respondent:
Self-represented by its Director, Russell Watson
REASONS FOR DECISION
Tim Johnson and Jen Johnson (‘the Owners’) entered into a contract with Waterama Pools Pty Ltd t/a Narellan Pools Brisbane North (‘the Builder’) on 30 May 2020 to install a fibreglass pool at their home in Brisbane for the amount of $35,140.
The Owners filed an Application for domestic building dispute in the Tribunal on 17 December 2020 seeking amounts as follows:
(a)payment of an amount owing – $1,460
(b)relief from payment of amount claimed – $3,263.40
(c)an award for damages and interest on the damage – $2,383.65 plus interest
(d)costs – QCAT application fee
The Builder filed a Response and/or Counter-Application on 17 June 2021 seeking amounts as follows:
(a)for Waterama Pools to provide the agreed credit of $1,360 upon settlement to the applicant
(b)all other demands as set out in the applicant’s application be waived
(c)the applicant must pay Waterama Pools all outstanding monies as invoiced
(d)the applicant must make all payments according to the contract as signed by both parties
The matter was heard at an Oral Hearing on 23 August 2022. At the conclusion of the hearing I gave directions for the filing of written closing submissions.
The Builder applied for an extension of time on 19 December 2022 to file its closing submissions, due to personal health issues of its principal. I gave directions extending the time for the Builder’s closing submissions to be filed by 17 January 2023. The Builder did not file any closing submissions as directed.
Unfortunately, the matter was then further delayed through administrative processes.
These are my Reasons for my decision in the matter.
The Hearing
The Owners lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’) in relation to the works.
A letter from the QBCC dated 16 October 2020 was filed in the material in this matter. That letter was addressed to the Owners, and noted as follows:
You have successfully reached an agreement about the work at (address given)
The QBCC will not be issuing a direction to rectify and/or complete for any of the complaint items.
This case has been finalised.
At the commencement of the hearing, Mr Watson for the Builder advised that he did not receive a complaint from the QBCC until he was told by the QBCC that the matter had been lodged but was withdrawn as settled. He said that he was not a party to any settlement.
Mr Johnson for the Owners advised that was an exchange of emails, and that he had brought an Application for a building dispute as there were still issues in dispute.
I advised the parties that I would proceed with the hearing on the basis that there was no concluded settlement of the matter.
Mr Johnson advised at the commencement of the hearing that the Owners claims were for $4,848.65 as follows:
(a)coping tiles – $1,200
(b)concrete piers – $160.00
(c)liquidated damages (to the date of lodging the Application) – $100.00
(d)damage to neighbour’s lawn – $300.00
(e)filter cartridge – $200.00
(f)additional pump – $432.00
(g)rectify earthworks – $865.25
(h)relocate heat pipes – $146.40
(i)three-month pool service – $240.00
(j)labour to lay coping tiles – $200.00
(k)install pool lights – $450.00
(l)waste valve – $203.00
(m)QCAT fee – $352.00
Total – $4,848.65
Mr Watson advised at the hearing that the Builder was agreeable to crediting back the amount of $1,360.00 being comprised of $1,200.00 for the coping tiles, and $160.00 for the concrete piers. The Builder’s counter application was therefore for $2,261.41 as follows:
(a)downtime – $923.50
(b)extra excavation – $2,339.90
(c)QCAT fee – $358.00
(d)less agreed credit of – $1,360.00
Total – $2,261.40
Mr Johnson said at the commencement of the hearing that he wanted to call a witness – a builder, Jay Atkins. Mr Watson said that he did not have a copy of a statement from Mr Atkins, and would want to cross examine him.
Mr Watson said at the commencement of the hearing that he relied on his evidence and that of four witnesses – Alan Pogonoski, Brad Widermuth, Bruce Turley, and Glenn Wilson. Mr Johnson said that he would want to cross examine all of Mr Watson’s witnesses.
None of the witnesses proposed by either of the parties had been arranged to attend the hearing. I referred the parties to Direction 4 given on 24 February 2022 which provided that all witnesses were to attend the hearing in person for cross-examination.
Mr Watson requested an adjournment of the hearing in order to arrange attendance by his witnesses. Mr Johnson opposed an adjournment, saying that the matter had dragged on for two years, and that he wished to proceed.
I gave the parties the opportunity to have private discussions between themselves in an attempt to settle the matter. They did have discussions, but did not come to any agreement.
I ruled that I would not allow the application for an adjournment. The hearing then proceeded on the basis of the evidence of Mr Johnson and Mr Watson.
Mr Watson cross-examined Mr Johnson from 11:30am until 12:50pm, and then from 1:40pm to 3:05pm (a total of 2 hours 45 minutes).
Mr Johnson then cross-examined Mr Watson from 3:30pm until 5:05pm (a period of 1 hour 35 minutes).
Closing submissions of the Owners
In their closing submissions the Owners sought an award in the amount of $3,931.65.[1] That amount represents the amount sought at the commencement of the hearing, less an amount of $917.00 being the final payment they said was owing by them to the Builder under the contract.
[1]Closing Submissions of Tim Johnson and Jen Johnson [1].
The Owners submitted that the various claim items were based as follows:[2]
[2]Ibid, p 1-3.
(a)coping tiles – $1,200
- this was a credit for work not performed, as the coping tiles were not laid
(b)concrete piers – $160.00
- this was a refund for 4 concrete piers that were not installed
(c)liquidated damages (to the date of lodging the Application) – $100.00
- this is calculated as liquidated damages specified in the contract of $10 per week from the date for practical completion of 8 October 2020 (eight weeks after the works commenced on 11 August 2020) until the date of the Application.
- The Owners submit that no extension of time in writing was sought or agreed under General Condition 9 of the contract.
(d)damage to neighbour’s lawn – $300.00
- this is for repair to their neighbour’s front lawn due to damage caused by the Builder
(e)filter cartridge – $200.00
- this is the cost of a replacement filter cartridge due to excessive wear and tear/damage to the filter cartridge caused by the Builder
(f)additional pump – $432.00
- this is the cost of purchasing an additional pump to operate the heat pump
(g)rectify earthworks – $865.25
- this is the cost of rectifying incomplete/defective earthworks in the area surrounding the pool
(h)relocate heat pipes – $146.40
- this is the cost of re-running heat pump pipes installed in incorrect location
(i)three-month pool service – $240.00
- this is a cost in relation to 3 months pool servicing which was included in the contract, which the Owners say they did not get the benefit of due to the Builder’s breach
(j)labour to lay coping tiles – $200.00
- this is the extra cost of $200.00 incurred in respect of coping tiles installation over above the $1,200 credit, as the coping style installation cost $1,400.
(k)install pool lights – $450.00
- this is a cost for procuring a separate contractor to supply the transformer and undertake installation/wiring of the transformer to enable the pool lights to work as intended
(l)waste valve – $203.00
- this is a cost for procuring a separate contractor to install a waste valve which was not completed by the Builder
(m)QCAT fee – $352.00
- this is claimed because the Owners submit that they tried to discuss this matter with the Builder on many occasions to reach a resolution, but that the Builder would not enter into such discussions and said that the Owners would need to pursue QCAT proceedings to get it to engage
Discussion
This matter has occupied an inordinate amount of time for both parties and the Tribunal over a small amount of money.
It is regrettable that the parties were unable to come to an agreement to resolve these relatively minor claims at any time over the life of this matter.
Differences between the parties
The parties are in substantial conflict with each other, as evidenced by the extensive cross-examination engaged in by each of them of the other. Examples of the conflict are evident in the following exchanges that occurred during the hearing.
The Builder has claimed an amount of $2,339.90 for extra excavation. Mr Watson put to Mr Johnson that he had talked directly to the excavator operator and had directly authorised extra excavation work. Mr Johnson replied that it seemed ‘odd’ to him that he could not talk to ‘site staff’, and that he did not pay extra cost for excavation as he was not given a variation in writing.
Mr Watson put to Mr Johnson that the job was held up for five hours from the time when a stormwater pipe was hit by the excavator, and a plumber had to be called. Mr Johnson replied that the Builder should have been aware that stormwater pipes were in the area as stormwater pipes ran down beside his house and that ‘you should have allowed for that, any reasonable Builder would do so’.
Mr Watson put to Mr Johnson that the Owners had agreed to pay an amount of $500.00 at the time that the complaint was withdrawn from the QBCC, but that the money had not been paid so the Builder stopped work. Mr Johnson replied that there were delays in payment from his bank. Mr Watson put to Mr Johnson that the Builder had held up other jobs to proceed with this job.
Mr Watson put to Mr Johnson that the Builder received an email from the National Australia Bank, who was the Owners’ financier, on 20 August, saying that it was the first time that the bank was aware that the Builder was building a pool for the Owners, and requested insurance and approved plans.
Mr Watson put to Mr Johnson the works were only ceased because there was a change of accounts, and that payments were not being made. Mr Johnson did not agree with those contentions.
Mr Watson put to Mr Johnson that the Builder completed the necessary stages of the pool in time for readiness of construction of the extensions to the house. Mr Johnson agreed that that was ‘probably correct’, but that he ‘didn’t contract for a half-built pool’, and that work had to be done after completion of the extension.
Mr Watson put to Mr Johnson that the pipework was not put in the wrong spot, that it was clear that the builder Mr Atkins did not understand the pipework, and that the builder did the wrong thing in moving the pipework. Mr Johnson agreed that the Owners had chosen to move the pipework.
Mr Watson put to Mr Johnson that the pipework had been put in the correct position for the heat pump, and that the Owners made a decision with Glenn Wilson to put a separate pump in.
Mr Watson suggested to Mr Johnson that the Owners had been unreasonable in making demands of the Builder when they were aware that he was having personal issues in relation to the health of his grandchild. Mr Johnson did not agree with that suggestion.
Mr Watson put to Mr Johnson that lights were installed in the pool by the builder. Mr Johnson replied that was correct, but that the lights were not connected to the transformer or the mains. Mr Watson put to Mr Johnson that the transformer had been delivered on site, and that when the Builder went to connect the lights the cabling was there but the transformer was missing. Mr Johnson said that he did not know what happened to the transformer.
Mr Watson asked Mr Johnson on what basis he said that the filter was damaged. Mr Johnson replied that he based that claim on ‘responses from your business’.
Mr Johnson put to Mr Watson that the contract should have had a commencement date inserted, not ‘TBC’. Mr Watson replied that that was done at the request of the owners.
Mr Johnson was asked about the time taken for the works, and Mr Watson replied that the Builder did not need an extension of time as it was ‘within the construction time’, and would have been completed earlier if the Builder had not had to stop for the Owners’ house construction, and also if payment had been made on time.
Mr Watson said that the Builder completed the work in one month and three days, and believed that the Builder had done an ‘extremely good job’ and that the Owners had got ‘a very good pool’.
Mr Watson said that the job was ‘reasonably simple’, but that what made it difficult was a request for extra earthworks and striking the stormwater pipes.
Overview
The claims in this matter primarily concern extra earthworks undertaken as a result of stormwater pipes which were found to be in the way of the pool excavation; extra earthworks alleged to be required to allow the house builder to concrete up to the pool coping; the shifting of pipework by the house builder, and various incidental claims and expenses.
The Owners have filed detailed claims and submissions in the course of the proceedings. The Builder submitted a 35-page detailed response to the claims of the Owners and in support of its counter applications.[3]
[3]Part ‘C’ attached to the Response and/or Counter-Application filed on 17 June 2021.
I accept that the Builder did, for the most part, perform the work satisfactorily. The dispute does not relate to the quality of any of the actual pool excavation work, or to the installation of the pool shell, or to the quality of the equipment that was supplied.
I appreciate that the Owners were frustrated by the perceived protracted conduct of the work, and by their perception, based upon advice given to them by their house builder, that the pool builder had installed incorrect pipework.
This is a situation of genuine difference, where each party believes that they have done everything reasonable, and that they have been wronged by the other party. Each party was convinced of the accuracy and validity of their claims.
Neither party has provided any independent witnesses, or experts, available for cross- examination.
Liquidated damages
The Builder contends that their works would have been completed within the terms of the contract, if their work had not been disrupted by the house builder commencing its works.
I am not satisfied that the delay in the date of completion resulted by default solely on the part of the Builder; but that it occurred in the context of the delay in payments to the Builder, and timing differences with the house builder.
I do not allow the claim for $10 per week for liquidated damages due to delay.
Damage to neighbour’s lawn
The Builder says that no use of the neighbour’s property ever occurred, no materials were placed on the neighbour’s property, and that the only time any property outside the clients was accessed was during ‘clean up’ when the Council land in front of the neighbours was accessed to clean material off the client’s driveway.[4]
[4]Closing submissions of Tim Johnson and Jen Johnson filed on 14 September 2022, p 19.
No substantiation of the quantum of the claim for damage to the neighbour’s lawn, and of loss by the Owners, was provided.
I am not satisfied that the claim by the Owners for damage to the neighbour’s lawn is substantiated, and do not allow the claim.
Filter cartridge
The Builder says that a subcontractor attended the site on 10 October 2020 to vacuum the pool and add chemicals to balance the water. It says that the subcontractor made no comments regarding anything being wrong or out of the ordinary regarding vacuuming the pool through the cartridge filter. It is said that the cartridge is cleanable, and is always cleaned after vacuuming, and that the Owners’ equipment has not been damaged and a request for any compensation is unfounded.[5]
[5]Application for Domestic Building Dispute, p 20.
The Owners have not provided expert evidence that the filter cartridge was damaged, or evidence as to the quantum of a replacement cartridge.
I am not satisfied that the claim by the Owners for replacement of the filter cartridge is substantiated, and do not allow the claim.
Additional pump
The Builder says that it is not liable to provide a second pump for the heat pump, as the heat pump was originally intended to be installed alongside the pool equipment and pool pump. It said that on 11 November 2020, when it attended the site to carry out the permanent installation of the equipment, it was found that the pipe work which it had previously installed around the heat pump in conjunction with the pool pump had been removed by the builder of the extension without the approval of the pool builder. It said that this left only the options of running pipework above ground between the heat pump and the pool pump so as to continue to use the pool pump to run the heat pump; or to install a second pool pump at the new location of the heat pump for the purpose of supplying water through the heat pump only.[6]
[6]Ibid, p 20-21.
The Owners says that he was advised by his house builder that the pipework for the pool was incorrect, but did not adduce evidence from any other pool builder or pool expert to substantiate that conclusion.
I am not satisfied that the claim by the Owners for an additional pump for the heat pump is substantiated, and do not allow the claim.
Rectify earthworks
The Builder says that there were no earthworks requiring rectification, as the scope of works as agreed and indicated by the contract provided that the Builder was responsible for only the pool excavation, and that the earthworks being claimed for are the removal of overburden required as a result of the house construction.[7]
[7]Ibid, p 22.
The Owners say that their home builder needed to rectify the heights of the soil around the pool, as the works done by the pool builder were not done properly to the correct height for future concrete/works. They said that they had the work rectified themselves as follows:[8]
(v) My home builder needed to rectify this work to enable us to continue our renovations. We did this ourselves rather than have the contractor fix it because our relationship had deteriorated (the contractor refused to take my phone calls), and had we left this work until later it would have pushed out all remaining works I was undertaking at my home, and caused even greater delays/loss.
(w) On 11 November I sent an email to the contractor notifying them, among other things, that I would be seeking to recover the above costs once I had clarity on the costs from my Builder. I had no response from the contractor on this matter.
[8]Application for Domestic Building Dispute – part C, p 9.
The Owners have not established the quantum of these earthworks, or that they were within the original scope of works of the pool contract.
I do not allow the claim for rectification of earthworks.
Relocate heat pipes
This claim is related to the claim for an additional pump. The Builder similarly denies that there was any need to change the pipework.
The Owners have similarly not adduced any expert evidence as to the need to change the pipework.
I do not allow the claim to relocate the heat pipes.
Three-month pool service
The Builder agrees that three months pool servicing was offered as a part of the original quote. It says that this has not taken place due to the Owners not making final progress payments, and that once final progress payments have been made it would be happy to organise for this to take place through a contracted pool service technician.[9]
[9]Response and/or Counter-Application, p 24.
The Builder has not taken issue with the quantum of the claim for $240.00.
In light of the strained relationship between the parties, it is preferable to finalise this matter, rather than leaving it to the parties to arrange servicing after the decision is given.
I am satisfied that the Builder was required to provide three months pool servicing at a value of $240.00, which has not been done, and allow this claim.
Labour to lay coping tiles
The Owners accept that the contractor agreed to provide a credit of $1,200 for the installation of coping tiles. They say that they had a separate contractor install the coping tiles at a cost of $1,400 and seek the additional $200.00.[10]
[10]Application for Domestic Building Dispute, p 10.
The Builder says that the client had the option of waiting until the tiles were available and the Builder’s contractor would lay them or for the Owners to organise their own tiler, which they elected to do.[11]
[11]Response and/or Counter-Application, p 23.
The Owners elected to conduct the tiling themselves in return for a credit of $1,200.00. No further claim therefore arises against the Builder.
I do not allow the claim for labour to lay coping tiles.
Install pool lights
The Builder says that the pool lights were installed as a part of the pool installation, and that the pool transformer was delivered to the site early in the build, and that at the point of final equipment installation commissioning it was noted that the pool light transformer was missing.[12]
[12]Ibid, p 24.
This claim is in relation to the cost of procuring a separate contractor to supply a transformer and undertaking installation/wiring of it.
The Owners do not dispute the evidence of the Builder that the pool transformer was in fact delivered to site. There were other contractors on site, and liability does not attach to the pool builder if equipment was taken when they were not on site.
I am not satisfied that the claim for $450.00 in relation to pool lights is established, and do not allow this claim.
Waste valve
The Builder says that a waste valve is not standard equipment with a cartridge filter, and that the majority of pools with a cartridge filter do not have such valving installed.
The Owners did not adduce expert evidence that a waste valve would normally be part of the installation of a cartridge filter.
I am not satisfied that the claim for $203.00 in relation to a waste valve is established, and do not allow this claim.
Builder’s claim for downtime and extra excavation
The Owners have not adduced evidence challenging the quantum of the Builder’s costs of the additional excavation costs of $2,339.90, or of the additional costs for downtime or stormwater of $923.50. The Owners have submitted that they are not foreseeable; or are not claimable due to a settlement that was reached between the parties. It is pertinent to set out the Owners’ submissions in full as follows:[13]
3. My claim for relief from payment of an amount claimed by the Respondent of $3,263.40 is comprised of:
a. Respondents claimed additional excavation costs of $2,339.90 on account of a provisional sum amount for excavation. As submitted in the applicant’s documentation filed with QCAT:
i. The applicant accepts that the respondent is entitled to claim additional costs on account of provisional sum items under special condition 7 of the contract ‘where circumstances beyond the control of the contractor, which were not reasonably foreseeable by the contractor at the time the contract was entered into, make it necessary to adopt any method or means of excavation different from the method or mean selected in this clause.’ The existence of stormwater pipe was reasonably foreseeable and should have been allowed for in the provisional sum by the contractor. Photographs provided in the documentation which has been filed with QCAT identify the close proximity of the stormwater pipes to the pool excavation. In addition, the contractor provided various verbal assurances when attending site that he had allowed reasonable provisional sums.
ii. In any case, irrespective of the above, the respondent negotiated an agreement with the applicant and confirmed in writing via email on 30 September 2020 that he would not seek to claim ‘additional excavation costs’ if I made a negotiated payment of $517. I made that payment in consideration of the respondent’s promise not to claim the additional excavation costs but the respondent failed to honour that agreement.
b. Respondents claimed additional costs for downtime and stormwater of $923.50. As submitted in the Applicant’s documentation filed with QCAT:
i. The respondent did not incur these costs on account of any circumstances which were not reasonably foreseeable by the contractor at the time the contract was entered into. To the contrary, these costs are incurred as a result of conditions which reasonably foreseeable, and the contractor should have allowed for.
ii. In any case, irrespective of the above, the respondent negotiated an agreement with the applicant and confirmed in writing via email on 30 September 2020 that he would not seek to claim such costs if I made a negotiated payment of $517. I made that payment in consideration of the respondent’s promise not to claim the additional excavation costs but the respondent failed to honour that agreement.
[13]Ibid, [3].
I do not accept the contention of the Owners that it was reasonably foreseeable that stormwater pipes would be encountered in the course of excavation for the pool as:
(a)The Owners themselves were presumably unaware of the presence of the pipes in the excavation area.
(b)The mere presence of stormwater pipes on a building is insufficient to identify the location of stormwater pipes underground in the yard.
(c)No drainage plumbing plans have been provided which would indicate the anticipated route of the stormwater pipes.
(d)The Owners have not adduced any expert evidence as to how obvious the route of the stormwater pipes was, and as to whether a Builder would reasonably foresee that they were located within the excavation site.
The Builder does not agree that it ever agreed over the phone or in writing on 30 September 2020 that it would not pursue the additional excavation costs.[14]
[14]Response and/or Counter-Application, p 12(D)(i).
I am not satisfied that a binding settlement was reached between the parties whereby the Builder would waive all claims to the extra excavation costs in return for payment of a variation of $517.00 for extra site fees.
I allow the claims by the Builder for additional downtime and stormwater costs of $923.50 and additional excavation costs of $2,339.90.
QCAT Fees
Costs are awardable under Section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld). As each party has succeeded in part of their claim, I allow each the amount of the filing fee paid by them.
Conclusion
I allow the Owners’ claims as follows:
(a)coping tiles – $1,200.00
(b)concrete piers – $160.00
(c)three-month pool service – $240.00
(d)QCAT fee – $352.00
Total – $2,912.00
I allow the Builder’s claims as follows:
(a)downtime – $923.50
(b)extra excavation – $2,339.90
(c)QCAT fee – $358
Total – $3,621.40
The result is that the Owners are to pay the Builder the difference of $709.40 (being the amount payable to the Builder of $3,261.40 less the amount payable to the Owners of $2,912.00).
I note that in their closing submissions the Owners referred to an amount of $917.00 as being the final payment they said was owing by them to the Builder under the contract. If that amount is still outstanding, it remains owing, and is additional to this determination.
I order that the Owners are to pay the Builder the amount of $709.40 in respect of the claims in this proceeding (plus the amount of $917.00 being the final payment owing by the Owners under the Building Contract between the parties dated 30 May 2020, if that amount is still outstanding).
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