Kerdic Homes Pty Ltd v Quality Tanks (Qld) Pty Ltd
[2011] QCAT 407
•1 September 2011
| CITATION: | Kerdic Homes Pty Ltd v Quality Tanks (Qld) Pty Ltd [2011] QCAT 407 |
| PARTIES: | Kerdic Homes Pty Ltd |
| v | |
| Quality Tanks (Qld) Pty Ltd |
| APPLICATION NUMBER: | BDL353-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 29 August 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 1 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent pay the Applicant the sum of $26,247.67. |
| CATCHWORDS: | Water tank – installation – whether work performed in good and workmanlike manner – assessment of damages – mitigation |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Kerdic Homes Pty Ltd represented by Mr J Dickson, Managing Director |
| RESPONDENT: | Quality Tanks (Qld) Pty Ltd represented by Mr K Gray, Director |
REASONS FOR DECISION
Background
The Applicant is a builder who was contracted by a Mr Seeto to construct a home at Lot 20 Kenmore Road, Kenmore.
As part of that contract the Applicant was to provide a water tank which was in fact provided and installed in the ground by the Respondent, Quality Tanks Pty Ltd who was a subcontractor. Part of the contract to install the tank included back filling the area around it.
It would seem that in January 2010, following a large volume of rain the tank “floated”. I take this to mean that water got underneath it causing it to be raised some 600 ml above its installed position.
It would seem that this event occurred some 6 weeks after the applicant had handed possession of the site to the owner.
I was informed that the only way for this to occur would be for the tank to drain completely dry and the way the pump was installed this should not occur as a float valve should shut the pump off when the water level got down to 110 ml from the bottom.
Evidence
Mr Grant Baillie, a supervisor employed by the Applicant, and the Applicant’s managing director, Mr Jim Dickson gave the sole evidence for the Applicant. Mr Robert Larkham, a tank installer employed by the Respondent and Mr Ken Gray, a director of the Respondent Company gave evidence for the Respondent.
It would seem Mr Baillie telephoned the Respondent and spoke to Mr Larkham in January 2010, who advised that the Respondent was shut down over the Christmas break but that someone would be in contact with him in due course.
Mr Baillie and Mr Larkham met on site about a week later. There are a number of differences in their evidence so far as the details are concerned. Mr Larkham has said that he was informed by Mr Baillie both then and in the earlier telephone call, that the owner had pumped the tank dry which, with the large rainfall, had permitted the tank to float. Mr Larkham explained that this was possible because the landscapers had installed an additional tank and pump but had connected the pump to both tanks. If the line that draws water was set to the very bottom then it could conceivably pump the tank dry.
Mr Baillie denied ever making such an assertion. He was adamant that the second pump was not connected to this tank at all but only to the newly installed one. He did not pretend to be certain how the pump came to be dry but he did say that he observed a crack in the tank after it had floated and he suspects that it was there beforehand and that is how it drained.
[10] There is little in the way of independent evidence on this point, however there is a statement contained in exhibit 1 being a tax invoice from Damien Lacey Plumbing Maintenance Pty Ltd that “.... all the services to the tank appear to be adequate and operational”.
[11] In addition there is a letter, being exhibit 2 from the home owner, Mr Seeto in which he says that he told a representative of the Respondent that he did not pump the tank dry. Unfortunately he was not called to give evidence.
[12] The only additional matter that seems of relevance to this issue is the uncontested evidence of Mr Baillie that the weather had been quite wet and that he would have expected the tanks to be fairly full.
[13] From these matters it appears reasonable to infer that it was unlikely that the tank was in fact pumped dry, whether Mr Baillie said that or not.
[14] I might say that there was a dispute between the parties as to the volume of water that was placed in the tank after installation. However that matter does not seem to me to have any particular relevance to the issues for determination.
[15] Mr Larkham says that he inspected the tank during the onsite meeting and observed that the way in which the inlet pipe had sheared off was more consistent with it being caused by being pulled down as a result of subsidence rather than being lifted up as a result of the tank floating. I note that the pipe in question is 100 ml PVC pipe and the area around the tank that was subject to subsidence was quite small. It would therefore take a considerable amount of downward pressure to cause it to shear. I find this less likely than it being caused by the tank floating which would cause considerable pressure to be exerted.
[16] In addition Mr Baillie gave evidence that by the time of the inspection the inlet pipe had been in fact dug up and an elbow placed on it to direct the water away from the tank area so as to prevent an exacerbation of the problem. If that is the case Mr Larkham could not have made the observations that he claims.
[17] From the point of view of the Respondent, I was presented with some largely unsupported assertions that the owner pumped the tank dry and even from Mr Gray that the owner perhaps wanted it in a different position. I was left to draw my own conclusions from this statement.
[18] From the perspective of the Applicant they have given uncontested evidence that the tank was cracked, though admittedly that could have occurred in the floating process. Indeed it seems that the tank was filled after it had floated and drained dry again so the fact that it was cracked by then seems beyond doubt.
Discussion
[19] The document being exhibit 1 identifies two possible ways that the problem could have been prevented, namely by actually putting drainage into the tank trench or by putting in sub surface tie downs.
[20] I gather from the evidence of Mr Larkham that this is not a particularly common problem but it is one he has seen a few times. I would have thought that this was sufficiently common to justify taking this extra step.
[21] In addition Mr Larkham has said that the area around the tank must, from necessity, be only loosely backfilled, as any compaction of the soil can result in the cracking of the tank. If it loosely backfilled then subsidence would be inevitable. On Mr Larkham’s own evidence you would therefore expect that shearing of attached fittings would be a common problem if this method of backfilling was common practice.
[22] He did note that the Applicant had an option of backfilling with crusher dust but says that this is an option that it did not take up. It is clear on the quote (exhibit 13) that it is a fact that the crusher dust was an extra optional fee. However the evidence of the Applicant is that they paid the total price quoted of $8,811.00 and that price certainly does appear to include the crusher dust option. Accordingly it seems that the Respondent was contractually bound to backfill with crusher dust and they failed to do that.
Findings
[23] If it is the case that the tank did completely drain and that led to it floating then I find that the more likely cause was that the tank was cracked. The only conclusion I can draw on this, given the absence of evidence on the point, is that this cracking would have occurred during the construction of the tank or its installation and on either scenario is therefore is the responsibility of the Respondent.
[24] I might say that even had I found that the fittings sheared due to subsidence and the water off the roof then flowed into the tank trench causing the floating, as contended for by Mr Larkham, I would still have found that this was the responsibility of the Respondent as, on Mr Larkham’s evidence it should have plainly been foreseeable that this would occur and by loosely backfilling the Respondent has failed to discharge it’s duty to perform the works in a good and workmanlike manner.
[25] In the event that it floated without being completely pumped dry then I find that the cause was a failure by the Respondent to perform the works in a good and workmanlike manner, namely:
(a)failing to backfill with crusher dust when they were contractually bound to do that; and
(b)failing to provide adequate drainage to the tank trenches and/or failing to provide underground tie downs.
[26] I therefore find that the Respondent is liable for the damage sustained by the Applicant as a result of the tank floating and/or cracking.
Assessment of Damages
[27] The amount claimed by the Applicant is clearly set out in the exhibits and is as follows:
Peter Boyd Enterprises to supply and install tank $10,235.50
(including pressure pump)
7 hours of rock breaking $ 1,501.50
O’Neills Electrical to run new electrical $ 762.79
Manteufel Plumbing Pty Ltd to reconnect tank $ 2,600.00
and pump
Tetra and Associates Pty Ltd to repair $12,128.00
damaged landscaping
Burmar Plumbing plus to supply fittings $ 111.36
Burmar Plumbing Plus $ 53.52
KDL Plant Hire $ 1,255.00
KDL Plant Hire 6 hours at $100 per hour No total specified
Eardley Mottram for legal expenses $ 1,705.00
Supervision Costs – no tax invoice provided $ 480.00
Film Overlay $ 159.06
Sikaflex $ 15.02
[28] These claims are subject to dispute from the Respondent on a number of grounds. In the first instance they say the tank could have been lifted out with a fifty tonne crane, cleaned underneath and replaced. The total for this was estimated by the Respondent to be $3,000. Unfortunately this was the extent of evidence of this point.
[29] There was also an assertion from Mr Larkham in his oral evidence that if the tank was cracked it could be easily fixed. No evidence was given as to how this could be achieved or the cost of doing this and as far as I can see this was the first time this was raised.
[30] Contrary evidence was led by Mr Baillie who said they had been advised that was not the case and the tank would have to be replaced. Mr Baillie in fact said that Mr Gray had said this himself and this assertion was not the subject of cross examination or disagreement.
[31] Additionally it seems clear that the replacement tank is a superior quality so far as the top itself is concerned. Mr Gray indicated that he believed the difference in price between the original tank provided by the Respondents and that installed as a replacement was in the order of $3,000.
[32] In deciding whether the Applicant failed to mitigate in adopting the method it did of replacing a new tank in a new position has to be considered in the overall context of the way the dispute was handled by the parties. It is common ground between the parties that at the first meeting Mr Gray attended he clearly indicated that he did not believe his company was at fault and he would only carry out rectification works if directed to do so by the Queensland Building Services Authority (“BSA”).
[33] It is further common ground in the sense that Mr Gray agreed with the assertion when it was put to him is that the only way the BSA could become involved was if the owner made a complaint against the Applicant and the Applicant was directed to carry out the works. Evidence was given by both witnesses for the Applicant that they did not want to do this as the Applicant had a completely clear record with the BSA. It also seems a slightly artificial exercise and would effectively involve the Applicant supporting the home owner in a relevant application.
[34] I therefore accept that it was reasonable not to adopt the approach of lodging a complaint with the BSA.
[35] Mr Gray asserted that these proceedings effectively took him by surprise as he heard nothing from the time of the meeting to the time he received the Application.
[36] Quite frankly I find that unlikely. It is apparent from the tax invoice of Eardley Motttram that they did some not insignificant work and that seems to have included sending at least 3 major letters and 3 major emails as well as more minor ones.
[37] I therefore find that the evidence given on behalf of the Applicant that they simply could not get any co-operation out of the Respondent in their attempts to resolve the problem more likely.
[38] It seems that they were left with no alternative but to engage a further contractor who advised that a new tank was the best approach. In the circumstances it seems reasonable to have accepted that advice.
[39] There is additionally the issue of placement of the new tank. The evidence of the Applicant is that they simply could not get any equipment bigger than a 6 tonne excavator into the old site and that was not sufficient to do the job. In particular they could not have placed the new tank in that position due to extensive landscaping works performed by the home owners subsequent to the installation of the tank.
[40] There is a dispute as to whether they could perhaps have used a fifty tonne crane for that purpose, however I was not satisfied that the evidence was sufficient to establish that this was a viable option. Further there has been no detailed costing given if that course had been adopted.
[41] Again I find it was reasonable for the Applicant to have accepted the advice of the new contractor that the tank would have to be moved.
[42] I do not think it was reasonable, however, for the Respondent to be responsible for the cost of the installation of what was agreed was a superior quality water tank. Unfortunately it is not clear to me that the quote provided by the Respondent can be directly compared with the tax invoice of Peter Boyd Enterprises. In the first instance the quote of the Respondent included a separate amount for fill and it included a submersible pump. The tax invoice of Peter Boyd Enterprises Pty Ltd includes a pressure pump rather than a submersible pump and earth works appear to have been separately invoiced. The only real evidence on the point was that of Mr Gray who said that the difference was about $3,000. This was not questioned by the applicant and I accept that evidence.
[43] Further I do not propose to allow the costs incurred in engaging solicitors or in paying the filing fee. These issues fall within the area of costs and there was no submissions made as to why I should grant these contrary to usual practice.
[44] Further I advised the applicant through Mr Baillie that all documentary evidence as to costs incurred in putting in the new tank needed to be put before me and explained. Despite that there were no documents tendered or explanations given with regard to the “film overlay” or “sikaflex”. I therefore find that the Applicant has failed to discharge its onus of proving loss in those respects.
[45] So far as the second KDL Plant Hire docket is concerned this states a rate of $100 per hour for 6 hours but does not state whether this is inclusive or exclusive of GST. Evidence was given that it was paid but I can only treat it as a GST inclusive amount.
[46] Finally it is apparent that there was supervision required by the Applicant with respect to this project. Nevertheless when I endeavoured to ascertain how this figure had been calculated I was told effectively that this was done by the office. No evidence was led as to the time taken or the hourly rate to be applied. Again the onus of establishing the reasonableness of the figure lies with the applicant and the relevant onus was not discharged in this instance.
[47] I therefore find that the respondent should pay to the applicant the sum of $26,247.67 and order accordingly.
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