Kernohan Construction Pty Ltd v Gillham
[2019] QCAT 165
•14 June 2019
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165
PARTIES: KERNOHAN CONSTRUCTION PTY LTD T/AS KERNOHAN CONSTRUCTION (applicant)
v
AUSTIN GILLHAM (respondent)
APPLICATION NO/S:
BDL116-15
MATTER TYPE:
Building matters
DELIVERED ON:
14 June 2019
HEARING DATE:
13 March 2017; 15 March 2017; 16 March 2017; 17 March 2017
HEARD AT:
Maroochydore
DECISION OF:
Member Deane
ORDERS: 1. Austin Gillham is to pay Kernohan Construction Pty Ltd T/As Kernohan Construction $12,747.56.
2. A copy of this decision is to be provided by the Registry to the Master Builders Queensland and of the funds held by the Master Builders Queensland the amount of $12,747.56 is to be paid to Kernohan Construction Pty Ltd T/As Kernohan Construction and the balance paid to Austin Gillham.
3. Any Application for costs by a party is to be made by filing in the Tribunal two (2) copies and providing to the other party one (1) copy of any submissions and evidence in support of the Application for costs by 4:00pm on 22 July 2019.
4. If any Application for costs is made:
(a) the other party must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs by 4:00pm on 12 August 2019;
(b) the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other party by 4:00pm on 26 August 2019;
(c) The Application for costs will be determined on the papers on the basis of any documents filed unless a party requests an oral hearing not before 4:00pm 26 August 2019.
5. If no Application for costs is made in accordance with Order 3 then there shall be no order as to costs.
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – REMUNERATION – DEDUCTIONS – where owner claims defective work – whether owner entitled to deduct amounts from payment claims
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – PERFORMANCE OF WORK – GENERAL – Domestic Building Contracts Act 2000 (Qld) – where contractual variations – where variations did not comply with Part 7 of the Domestic Building Contracts Act 2000 (Qld) – where owner agreed to variation work - whether owner can claim reimbursement of amounts paid
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – PERFORMANCE OF WORK – GENERAL – where owner fails to attend final inspection – where works suspended – where rectification of defective and incomplete works to take at least 14 days – whether practical completion achieved
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONRACTS – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where liquidated damages payable for delayed completion – whether actual damages are payable after obtaining possession.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – where alternative claim made in final written submissions – where no explanation as to why application to amend is made at late stage – whether leave should be granted to amend claim
Domestic Building Contracts Act 2000 (Qld), s 8, s 9, s 18, s 44, s 45, s 79, s 80, s 82, s 92, sch 2
Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 62
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 28
Airstrike Industrial Pty Ltd v Robertson [2014] QCATA 209
Aon Risk Services Aust Pty Ltd v Australian National University (2009) 239 CLR 175
Bartlett v Contrast Constructions Pty Ltd [2016] QCA 119
Bellgrove v Eldridge (1954) 90 CLR 613
Fraser v The Irish Restaurant & Bar Company Pty Ltd [2008] QCA 270
Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Ryan v Worthington Simmons [2014] QCATA 277
Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118
Sumpter v Hedges [1898] 1 QB 673
Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272
APPEARANCES & REPRESENTATION:
Applicant:
A C Harding, instructed by Garland Waddington, Solicitors
Respondent:
P B Tucker, instructed by Aitken Whyte Lawyers
AMENDED REASONS FOR DECISION
A number of the issues raised for determination in this matter relating to the operation of Part 7 of the Domestic Building Contracts Act 2000 (Qld) (DBC Act) were the subject of an appeal in another building dispute before the Tribunal, which was heard by the Appeal Tribunal on 22 August 2017 not long after final submissions in this proceeding were filed. The Appeal Tribunal delivered its decision on 21 November 2018 in Greer & Anor v Mt Cotton Constructions Pty Ltd (‘Greer’). [1] I have now considered the evidence in this matter in light of the Appeal Tribunal’s findings.
[1][2018] QCATA 196.
On or about 16 March 2015, Kernohan Construction (the Builder) entered into a contract with Mr Gillham to undertake extensive renovations to Mr Gillham’s house (the ‘Contract’). The Contract price was $675,451.84 (incl GST). The Builder’s Amended Application for domestic building disputes[2] claims payment of amounts invoiced in the amount of $78,588.32, interest on amounts outstanding[3] and costs.
[2]Exhibit 1, filed 11 November 2015.
[3]Item 19 of the Contract schedule provided interest was payable by Mr Gillham to the Builder on amounts overdue at the rate of 5% per annum.
Mr Gillham disputes any amount is owing to the Builder and counter applies for $218,184.96 plus interest and costs, including amounts for liquidated damages, actual damages for delay, damages in respect of defective and incomplete work and claims for loss or damage to Mr Gillham’s property.
Although some submissions as to costs have been made by the parties I have provided directions to facilitate any application for costs to be made once the parties have read these reasons. Each party has had some success in claims made and defended. Extensive written submissions were filed by the parties.[4]
[4]Mr Gillham’s outline of submissions filed 5 May 2017 consisted of 139 pages. The Builder’s submissions in response filed 9 June 2017 consisted of 25 pages. Mr Gillham’s submissions in response filed 22 June 2017 consisted of a further 23 pages.
The parties’ positions have evolved during the course of the contract and these proceedings. There has also been an evolution of the evidence relied upon by the parties. This reflects poorly upon the credibility of both Mr Kernohan, the Builder’s director and Mr Gillham.
On 7 August 2015, after the Builder claimed to have achieved Practical Completion, it purported to suspend the Contract and to exclude Mr Gillham from the premises, claiming Mr Gillham had breached the Contract, including in respect of non-payment of its claims.
On or about 3 December 2015, Mr Gillham paid the amount claimed by the Builder into the Master Builders Queensland Holding Account as contemplated by the Contract.[5] On 4 December 2015 the Builder handed over keys to the property. Mr Gillham contends that he accepted the Builder’s repudiation and terminated the Contract by responding to the claims made in these proceedings so that the Builder is no longer entitled to the benefit of being permitted to attend itself to the rectification of defective or incomplete building work. The Builder contends that the lateness of Mr Gillham’s clear assertion of this position makes such a claim untenable.
Does the Domestic Building Contracts Act 2000 (Qld) (DBC Act) apply?
[5]Contract, General Condition cls 17.7.
I find that the DBC Act applies.
Although the DBC Act has been repealed, it continues to apply to domestic building contracts entered into before 1 July 2015.[6] I accept that the work to be performed under the Contract is domestic building work[7] and that the Contract was for more than the regulated amount.[8] The objects of the DBC Act are to achieve a reasonable balance between the interests of contractors and owners and to maintain appropriate standards in the industry.[9]
[6]Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld), s 62.
[7]DBC Act, s 8.
[8]Ibid s 9, sch 2 (definition of ‘regulated amount’).
[9]Ibid, s 3.
Mr Gillham contends that the Builder breached numerous provisions of the DBC Act, most of which provide for a monetary fine where there is a contravention. These proceedings are not a prosecution under those provisions.
Are the Builder’s payment claims payable?
I find that claim 4b was short paid by $8,949.60 (incl GST); claim 5 was short paid by $15,552.02 (incl GST) and claim 6 was short paid by $16,747.60. Interest payable by Mr Gillham accrued to 14 June 2019 is $8,122.79, being $1781.20 in respect of claim 4b, $3,110.40 in respect of claim 5 and $3,231.19 in respect of claim 6.
The Builder seeks payment of outstanding payment claim 6 dated 20 July 2015 in the sum of $32,856.00 and the Practical Completion claim dated 24 July 2015 in the sum of $6,361.51.
It also seeks amounts claimed to have been short paid by Mr Gillham, as follows:
(a)balance payment claim 4b (invoice 3205b) $10,459.48
(b)balance payment claim 5 (invoice 3214) $28,911.33
The total outstanding claimed is $78,588.32 together with interest and costs.
In his final submissions, Mr Gillham contends that the Builder is entitled only to $24,071.55 in respect of the works, being $78,588.32 less claims for variations being $54,516.77 and that he is entitled to set off amounts for damages and other compensation totalling $252,185.97 so that Mr Gillham should be awarded $218,184.96 plus interest and costs.
During the proceeding, Mr Gillham contended that the Practical Completion claim was for $78,588.29 and superseded payment claim 6 and for that matter payment claims 4b and 5. He contends that the payment claim consisted of the invoice and the accompanying document. During the hearing, Mr Kernohan’s evidence was that the accompanying worksheet was provided to assist Mr Gillham but did not form part of the payment claim. Whilst the Builder could have made the purpose of the accompanying documentation clearer at the time the document was delivered, I find that the invoice should be construed as the payment claim or in any event take precedence over other documents provided at the same time. The evidence is, and I accept, that the initial payment claims simply consisted of invoices.
Mr Gillham contends that the Builder’s payment claims were not validly made and payable including because:
(a)they were emailed;
(b)the work claimed for was not completed at the time of the claim;
(c)they were not approved for payment under the modified process for payment claims as provided for under the special conditions.
Use of Email
I find that the notices given by the Builder by email are valid.
Mr Gillham points out that General Condition clause 24 of the Contract does not refer to notices being given by email. General Condition Clause 24.2 provides:
Unless otherwise stated in this Contract, any written notice, or other document required to be given to the other party is deemed to have been given and received:
(a) by hand to the person to whom it is required to be given and received;
(b) by pre-paid post or registered post to the address of the person to whom it is required to be given, on the date of receipt or, in the case of registered post, two (2) clear Business Days after posting, whichever is earlier; or
(c) by facsimile transmission to the facsimile number (if any) stated in the Schedule, on confirmation of correct transmission of the facsimile.
The evidence before me demonstrates that most (if not all) written communications during the course of the Contract between the parties took place by email. Mr Gillham does not contend that he objected to the Builder sending progress claims or other notices under the Contract by email during the course of the Contract and that despite an objection the Builder persisted. Even if the Contract prohibited the giving of notices by email, which it does not, I would be inclined to find that Mr Gillham had waived any right to contend the notices were not valid because they were sent by email.
Payment claim 1 was emailed to Mr Gillham and to his Project Manager/Authorised Agent, Mr Hermon[10] on 28 March 2015. Each payment claim in evidence before me was emailed.
[10]Contract, sch, item 16, General Condition cls 29.9 – 29.13.
General Condition Clause 24 does not limit the methods by which notices could be given. In my view, the preferable construction is that it simply provides a deeming mechanism for when notices are taken to have been given if one of the methods contained in General Condition clause 24 is used. If a different method is used the party giving the notice does not have the benefit of a deemed received time and would, if necessary, be required to prove when the notice was actually given and received.
Mr Gillham’s pleadings and evidence make it clear that the payment claims were received and sets out the relevant dates the payment claims were emailed to him.
Mr Gillham paid in full the Builder’s payment claim 1 dated 27 March 2015 for $44,939.07 (incl GST),[11] payment claim 2 dated 20 April 2015 for $170,458.70 (incl GST)[12] and payment claim 3 dated on 13 May 2015 for $46,803.73 (incl GST).[13]
[11]Invoice 3186. Amended invoice emailed 28 March 2015. I accept that the invoice was adjusted after review by the Project Manager and Mr Gillham as contemplated by the Contract.
[12]Invoice 3196, emailed 20 April 2015.
[13]Invoice 3203, emailed 13 May 2015.
Payment claim 2 included payment in respect of variation 1 in respect of removing and reinstating concrete in the sum of $10,773.84, variation 2 in respect of replacing lintel in the sum of $5,431.69, variation 3 in respect of steel column in the sum of $497.31 and variation 4 in respect of removing garden beds in the sum of $1,510.08.[14]
[14]Forms part of Exhibit 8. All amounts GST inclusive.
Payment claim 4b
The Builder issued payment claim 4b dated 21 May 2015 for $202,697.68 (incl GST),[15] which included a claim for variation 6 in respect of various carpentry in the sum of $546.70 (excl GST).[16] The Builder included with the payment claim invoice an associated worksheet, which included details of the adjusted Contract sum taking into account variations, details of the total value of works claimed to have been completed to date and details of the total value of previous claims.
[15]Invoice 3205b, emailed 30 May 2015.
[16]It also noted that variation 5 in respect of render in the sum of $7,559.50 (excl GST) was 0% completed.
Mr Gillham deducted amounts from this claim, totalling $10,459.48 (incl GST). By email dated 1 June 2015,[17] Mr Gillham advised that he had deducted $1,372.80 (excl GST) in respect of Variation 4, which he claimed was paid in error as the variation had not been approved or signed, $3,136 (excl GST) in respect of gutters and fascias and $5,000 (excl GST) in respect of the soffits issue and paid the sum of $192,238.20 on 2 June 2015.
[17]Exhibit 3, DSK 14.
The Builder claims that Mr Gillham was not entitled to deduct these amounts and claims interest on the amount shortpaid. The Contract provided for interest on amounts owing by Mr Gillham to the Builder at the rate of 5% per annum.[18]
[18]Exhibit 15, ANWG10, Contract sch, item 5, General Condition cl 11.9.
Work not completed at time claimed
Each claim needs to be assessed to determine if the work claimed had been completed save for minor defects or omissions.
Mr Gillham contends that the Builder was only entitled to claim for work which was completed. I accept that in order to make a valid claim the work was required to have been completed save for minor defects or omissions. Practical Completion Stage can be achieved even though there are minor defects or omissions. I am satisfied that a similar qualification should be applied to earlier payment claims.
Claim not approved under modified payment provisions
Each claim needs to be assessed to determine if it ought to have been approved and paid under the modified payment provisions, which takes into account whether the work claimed had been completed save for minor defects or omissions.
Mr Gillham contends that under the modified payment provisions the amounts were not assessed as payable and therefore are not payable. It is clear that the amounts were not assessed as payable. The issue is whether the amounts ought to have been assessed as payable. A party is not entitled to rely upon its own breach to relieve itself of the consequences of its own actions. I accept that if work is defective in more than a minor respect then that will validly impact on the value of the work performed and able to be claimed.
The Builder contends that the Contract provides no right of set off or retention and in respect of payment claims 5, 6 and the Practical Completion claim Mr Gillham was not entitled to exercise rights vested by the parties in the Project Manager to assess claims.
It is somewhat difficult to reconcile the various standard provisions, which were not expressly modified, with the special conditions.
On balance, I find that the preferable construction is that:
(a)the Builder was to submit the claim to the Project Manager, who was to assess the value of the work completed, subject to minor defects and omissions, discuss with the Builder any difference between the assessment and the amount claimed to afford the Builder an opportunity to revise the amount claimed and approve the amount payable by Mr Gillham.
(b)if the Builder did not agree with the amount assessed and approved then the Builder and Mr Gillham were to discuss and if agreement was not reached as to the amount payable for the value of the work completed, subject to minor defects and omissions, then they were to resolve the difference by reference to the Contract provisions.
(c)the Contract dispute resolution provisions are limited to holding without prejudice discussions through the Master Builder’s Association and bringing proceedings in this Tribunal.
(d)the Contract provided no right to hold any retention for defects or omissions.[19]
(e)the Contract provided a right of set off for liquidated damages only against the practical completion claim. [20]
(f)the Contract provided an option of paying disputed monies in respect of the practical completion claim into the Master Builders Queensland Holding account.
(g)claims other than the practical completion claim were required to be assessed as to the value of work performed without retention for minor defects or omissions and without setoff for liquidated damages and the amount so assessed paid;
(h)the practical completion claim was required to be assessed as to the value of work performed without retention for minor defects or omissions; set off was permitted only for liquidated damages and that amount paid to the Builder or where there was a dispute as to the amount payable, the disputed monies may be paid into the Master Builders Queensland Holding account pending determination as to rights and entitlements by the Tribunal.
[19]Contract, General Condition cl 11.8.
[20]Ibid, cls 11.8, 18.2.
The Contract modified the usual payment process as set out below.
Appendix Part D Method B provided for progress payments as ‘Monthly Claim on works Completed including Practical Completion’ rather than at defined stages.
Special conditions further modified the standard payment claim process. In accordance with the order of precedence clause, special conditions take precedence over general conditions, the Specification and the plans.[21]
[21]Ibid, cl 3.2.
Special condition 4 provided that Mr Hermon was employed to act as Project Manager on Mr Gillham’s behalf and that the Project Manager was to
review all progress payments including the Final Completion claim before authorising them for payment by the Owner. In the event of any dispute, the progress payments may be submitted directly to the Owner and settled in accordance with the Contract terms although the Owner will take account of the Project Manager’s advice in so doing.
The Contract provided that disputes may by agreement between the parties be referred to the Master Builders Queensland for a without prejudice conference and if the conference is unsuccessful referred to the Tribunal.[22] The Builder commenced these proceedings initially just in relation to Mr Gillham withholding $5,000 in respect of the soffits issue.[23]
[22]Ibid, cl 28.1.
[23]Application filed 24 June 2015.
Special condition 6 provided that:
requests for monthly progress payments will be submitted simultaneously to the Owner’s representative and the Owner for review and approval by the former, prior to payment by the latter.
The Contract also provided:
any act or omission by the Owner’s Agent is deemed to be an act or omission of the Owner....any direction or instruction by the Owner’s Agent is deemed to be a direction or instruction given by the Owner.[24]
[24]Contract, General Condition cl 29.10.
I am not satisfied that the modified payment provisions clearly modified the limited rights of retention set out in the General Conditions. Construing the terms of the Contract as a whole I find that while clause 11.8 providing the limited rights of retention refers to payments due under clause 11.7 that should be construed as payments due under clause 11.7 as modified by the Special conditions. The Special conditions did not specifically provide for a broader right of retention or set off nor clearly modify that contained in clause 11.8.
Was Mr Gillham entitled to deduct $1,372.80 (excl GST) in respect of Variation 4?
For the reasons set out below in respect of Variation 4, I find that the Builder, having agreed to revise the amount claimed for this work after the deduction was made, cannot maintain that the deduction was wrongful.
Was Mr Gillham entitled to deduct $3,136 (excl GST) in respect of the Fascia and Gutters claim?
I find that Mr Gillham was not entitled to deduct $3,136 (excl GST) and that the Builder is entitled to interest on the amount unpaid.
Mr Gillham raised a number of issues with the claim for fascia and gutters. The sum claimed by the Builder represented a claim of 80% of the estimated total amount for that line item. The evidence is that no amount for the fascia and gutter work had been approved to that date. I am not satisfied on the evidence before me that the fascia and gutter work was such that the progress to that date had no value and that there was more than 20% of the value of the estimated value of the work still to have been performed. Mr Gillham was obliged to value the work performed and pay for it without retention for minor defects or omissions.
I find that the Builder is entitled to claim interest on the amount of $3449.60 (incl GST).
The evidence is that claim 4b was sent by email on Saturday 30 May 2015.[25] The amount was due for payment within 10 business days. On my calculation, payment was due by no later than 15 June 2015.[26] Interest accrues at the rate of 5% per annum or $0.47 per day on and from 16 June 2015. As at 14 June 2019 interest accrued for a period of 1460 days amounting to $686.20.
Was Mr Gillham entitled to deduct $5,000 in respect of the Soffits from payment claim 4b? Was Mr Gillham entitled to deduct a further $5,000 from payment claim 5 and a further $5,000 from payment claim 6 and the Practical Completion claim bringing the total to $15,000?
[25]Exhibit 3, DSK 11, page 163.
[26]Taking into account the public holiday on 8 June 2015.
I find that Mr Gillham was not entitled to deduct the amount of $5,000 from payment claim 4b nor to continue to withhold that amount. I find that the Builder is entitled to claim interest on the amount unpaid.
A number of disputes arose in relation to the changes to the soffits.
Mr Gillham initially sought a credit based on advice from Mr Hermon that there would have been a cost saving of $4,842 in materials and an easier installation. Mr Hermon did not give evidence in this proceeding.[27] The Builder did not agree to a credit. It contended that there was no real difference in the costs for labour and provided a contemporaneous quote from a supplier showing a similarity of prices for materials.
[27]There is evidence before me that Mr Hermon and Mr Gillham also fell into dispute during the course of the Contract.
Mr Gillham withheld $5,000 (excl GST) in respect of payment claim 4b in respect of the soffits. The Builder commenced this proceeding on 24 June 2015 limited to a claim that Mr Gillham was not entitled to a credit in relation to the soffits.
Mr Gillham contends that the Builder was in breach of contract because it did not issue a variation for the changed work and no variation amount was agreed. The Builder did not issue a variation because it maintained the change was cost neutral. I accept that the instruction was a request by the owner for varied work and that no express agreement was reached as to the cost impact of the varied work before it was performed. I also accept that if the Builder was seeking an additional amount for the varied work it would not have been payable when claimed as no signed variation was in place. However the Builder did not claim any additional amount.
I accept Mr Kernohan’s evidence, in particular having regard to the written contemporaneous pricing from his supplier[28] and the careful work method he described during his oral evidence that there was no saving to the Builder either in materials or labour. In these circumstances I prefer the almost contemporaneous evidence over the independent experts’ subsequent evidence. I find that Mr Gillham is not entitled to a credit. In valuing the work performed by the Builder, Mr Gillham was not entitled to deduct moneys from progress claim 4b and continue to withhold them in respect of this item.
[28]Exhibit 15, ANWG 19, page 204.
Subsequently, Mr Gillham became aware that 9mm FC sheets were available and demanded the soffits be constructed as originally specified and withheld $5,000 on his assessment of payment claim 5 and a total of $15,000 on his combined assessment of claim 6 and the Practical Completion claim.
The tender and approved building drawings provided for “9mm FC sheets flush fitting to soffits” with “joints to be set, no plastic joins”.[29]
[29]Exhibit 25, pages 6 and 7 of 14.
There is a conflict of evidence as to the precise words Mr Kernohan used in his discussions with Mr Gillham.
I accept that Mr Gillham’s recollection is that Mr Kernohan told him that 9mm FC sheets were no longer available and offered the options of 9mm Villaboard or 6mm FC sheeting. His evidence is that the method of joining was not discussed at this time.
Mr Kernohan’s evidence is that he raised a concern with Mr Gillham as to the suitability of 9 mm Villaboard and offered Hardiflex sheeting. His evidence was that he said 9mm was not available in Hardiflex and that the thickest was 6 mm.
The experts agreed with the Builder that the method of fixing proposed by the Contract was consistent with 9mm Villaboard being required. I accept Mr Kernohan’s evidence that the Builder priced the work on Villaboard being supplied and installed.
After this discussion Mr Gillham spoke to his acoustic engineer and Mr Hermon, neither of whom gave evidence in this proceeding as to their discussions with Mr Gillham.
Mr Gillham’s evidence is that:
(a)of the two choices he was told by his advisors that 6 mm FC would be better but would result in lower acoustic qualities than that specified.
(b)he did not understand the significance of the joining method, leading to a misunderstanding.
(c)the joining method had been specified by Mr Hermon.
(d)he would have insisted on 9mm FC sheets if he had not been told it was no longer available.
(e)he was mislead by the Builder into agreeing to an acoustically inferior product so that he should able to resile from the instruction he gave verbally and that Mr Hermon gave in writing on Mr Gillham’s behalf on 6 May 2015.
Mr Gillham submits that the Builder should have consulted directly with Mr Hermon about this technical issue. The Contract did not make it obligatory for the Builder to consult with Mr Hermon prior to discussing an issue with Mr Gillham. In any event, Mr Gillham could have requested the Builder discuss the issue with Mr Hermon prior to making a decision as to how to proceed.
Mr Kernohan presented at the hearing as someone who spoke in quite a casual manner and did not have an eye to detail in his communications. This is evident in the concessions he made during his oral evidence as to the inaccuracies in his initial written statement. Mr Gillham was not technically qualified or experienced in building matters. It is not surprising that misunderstandings may have arisen. I am not satisfied that Mr Kernohan sought to take advantage of Mr Gillham’s misunderstanding or indeed that he was aware of the misunderstanding prior to the soffit dispute arising.
Even if I accept that Mr Gillham’s version of what was said is accurate, about which I have considerable doubt, he then sought advice from his Project Manager, who had building expertise and advice from his acoustic engineer. On the evidence before me, neither of those professionals sought to challenge the Builder’s apparent assertion, or Mr Gillham’s understanding of what was said by Mr Kernohan, that 9mm FC sheets were ‘no longer available’ or explore other options to seek to achieve the acoustic performance, which was of importance to Mr Gillham.
I am not satisfied that any loss of acoustic performance Mr Gillham suffered as a consequence of his direction to use 6mm FC sheets is directly attributable to a failure on the Builder’s behalf including because:
(a)the Builder did not hold itself out as an acoustic expert. There is no evidence before me that it offered advice about acoustic amenity;
(b)there were intervening consultations and advice sought and given from other professionals upon whom Mr Gillham relied;
(c)the Builder’s duty of care was to exercise reasonable care and skill in carrying out the building work in accordance with the plans and specification and the owner’s directions.
Mr Hermon issued a written instruction to the Builder. The Builder relied upon that written instruction and incurred costs in constructing the soffits using 6mm FC sheeting.
There is contemporaneous evidence as to the cost of 6mm Hardiflex and 9mm Villaboard, which substantiate the Builder’s contention that there was no material savings to the Builder.[30]
[30]Exhibit 15, ANWG 19, page 204.
The Contract plans specified soffits as ‘9mm FC’.[31] The plans were prepared on behalf of Mr Gillham. In contrast to other matters there was no detail in the specification. Mr Gillham subsequently instructed the Builder to use plastic joins following a visit by Mr Kernohan to Mr Gillham’s Doonan house. On the evidence before me, Mr Gillham chose not to consult with Mr Hermon prior to directing this change. There is no suggestion in the evidence before me that the Builder prevented Mr Gillham from consulting with his professional advisors. The Builder carried out the work as directed.
[31]Ibid, ANWG 10, page 171.
Subsequently, Mr Gillham did some research and discovered that, while Hardiflex may not be made in 9mm, an alternative supplier did make 9mm FC sheeting which could be used with plastic joins. Upon this discovery, Mr Gillham demanded the Builder remove the work performed and replace it with 9mm FC sheeting. Mr Gillham contends that the Builder had an obligation to advise different 9mm FC options once he had agreed to the different joining method. I am not satisfied that such an obligation arose including for the first and third reasons set out earlier.
By email dated 31 July 2015 Mr Gillham advised that he was deducting $15,000 in respect of the disputed soffits work from the amount payable to the Builder in respect of his combined assessment of progress claim 6 and the Practical Completion claim.[32]
[32]Forms part of Exhibit 20.
I find that in the circumstances Mr Gillham was not entitled to resile from the instruction provided orally and in writing.
Interest
I find that the Builder is entitled to claim interest on the amount of $5,500 (incl GST).
Interest accrues at the rate of 5% per annum or $0.75 per day on and from 16 June 2015 on my calculation. As at 14 June 2019 interest accrued for a period of 1460 days amounting to $1,095.
I find that the total interest payable on $8,949.60, being the short payment of claim 4b, is $1,781.20 as at 14 June 2019.
Payment claim 5
The Builder issued payment claim 5 dated 18 June 2015 for $162,884.55 (incl GST),[33] which included the following variations:
[33]Invoice 3214.
(a)variation 5 in respect of render in the sum of $7,559.50;
(b)variation 7 in respect of core holes in the sum of $294.80;
(c)variation 9 in respect of stormwater repairs in the sum of $2,057.00;
(d)variation 10 in respect of patio slab in the sum of $6,820.00;
(e)variation 11 in respect of footpaths in the sum of $1,419.00;
(f)variation 12 in respect of extra to patio slab in the sum of $660.00;
(g)variation 14 in respect of ornate cornice in the sum of $495.00;
(h)variation 15 in respect of raise post bases in the sum of $275.00;
(i)variation 16 in respect of extra paving in the sum of $528.00;
(j)variation 18 in respect of door head in the sum of $808.50;
(k)variation 19 in respect of downpipes and gutter in the sum of $1,070.30;
(l)variation 20 in respect of omitting painting in the sum of $30,000.00 to be deducted;
(m)variation 21 in respect of omitting two coats of armourflex in the sum of $10,000.00 to be deducted.[34]
[34]Variation amounts GST exclusive.
The evidence is that, by email dated 22 June 2015, Mr Hermon advised the Builder that he was no longer engaged by Mr Gillham upon receipt of payment claim 5 and in the absence of a Project Manager, the Builder commenced to deal directly with Mr Gillham in respect of payment claims. It is not contended that the Builder raised an objection during the course of the Contract that Mr Gillham was in breach of the payment provisions by not appointing a replacement for Mr Hermon. Mr Gillham’s failure to appoint an alternative Project Manager and the Builder’s acquiescence resulted in the somewhat unusual position that Mr Gillham assumed the role of the Project Manager in assessing the payment claims as to the value of work performed. There is evidence before me that at some point he engaged a quantity surveyor to assist him but this professional was not appointed Project Manager under the Contract nor did he assume that role. The quantity surveyor did not provide evidence in these proceedings.
Mr Gillham deducted amounts from this claim, totalling $28,911.33 ($26,283 excl GST) and paid the sum of $133,973.25 on 29 June 2015.
By email dated 29 June 2015, Mr Gillham advised that he had deducted various amounts from the value of work performed and acknowledged that the claim had been sent to him on 19 June 2015. Mr Gillham had raised issues with the claim with the Builder by email dated 24 June 2015 but had not received a response. As stated earlier, I am not satisfied that Mr Gillham had any right of retention for defective work entitling him to deduct amounts from this claim but there was a right to assess the value of work completed subject to minor defects and omissions.
Was Mr Gillham entitled to deduct $5,100 (excl GST) in respect of roof tiling from payment claim 5?
I find that Mr Gillham was not entitled to deduct $5,100 for roof tiling.
The Builder had claimed that this work was 100% complete and claimed 25% in this claim. The amount retained represented 10% of the estimated total value of the work.
On the evidence before me the reasonable costs of rectification is $82.12 (incl GST) for the reasons set out later. I find that the defects were minor, which did not give rise to a right to deduct any amount from the claim.
Was Mr Gillham entitled to deduct $784 (excl GST) in respect of metal fascia and gutters from payment claim 5?
I find Mr Gillham was entitled to deduct $784 for metal fascia and gutters.
The Builder had claimed that this work was 100% complete and claimed 20% in this claim. The amount retained represented 20% of the estimated total value of the work.
On the evidence before me the reasonable costs of rectification, which on balance relate to this line item, are $1,998.58 (incl GST)[35] and $187.21 (incl GST)[36] for the reasons set out later.
Was Mr Gillham entitled to deduct a further $5,000(excl GST) in respect of the Soffits from payment claim 5?
[35]Scott schedule 3.
[36]Scott schedule 27.
I find Mr Gillham was not entitled to deduct a further $5,000 for substitution of 6mm FC for 9mm FC soffits as part of the suspended ceiling and plasterboard wall linings item. The Builder had claimed that this work was 100% complete and claimed 20% in this claim. The amount claimed by the Builder in progress claim 5 did not seek to add the amount short paid on claim 4b. For the reasons set out earlier I have found Mr Gillham was not entitled to make such a deduction.
Was Mr Gillham entitled to deduct $1,280 (excl GST) in respect of relaying pavers from payment claim 5?
I accept Mr Gillham’s evidence that the relaying pavers over new concrete paths work was not complete at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $1,280 on the basis all the work had not been completed by the date of the claim and some remained incomplete as at 24 June 2015. The Builder had claimed that this work was 100% complete and claimed 100% in this claim. The amount retained represented 50% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $150 (excl GST) in respect of deliveries from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $150 for deliveries on the basis that work was ongoing. The Builder had claimed that this work was 100% complete and claimed 40% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $50 (excl GST) in respect of telephone from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $50 for telephone on the basis that work was ongoing. The Builder had claimed that this work was 100% complete and claimed 40% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $550 (excl GST) in respect of bin hire from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $550 for bin hire on the basis the bin remained on site and dumping was ongoing. The Builder had claimed that this work was 100% complete and claimed 10% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $275 (excl GST) in respect of general hire from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $275 for general hire on the basis that work was ongoing. The Builder had claimed that this work was 100% complete and claimed 10% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $88 (excl GST) in respect of renovate storm water and septic tanks from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $88 for renovate storm water and septic tanks on the basis that work was ongoing. The Builder had claimed that this work was 100% complete and claimed 40% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $5,200 (excl GST) in respect of labour from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $5,200 for labour on the basis work was continuing. The Builder had claimed that this work was 100% complete and claimed 20% in this claim. The amount retained represented 10% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $1,500 (excl GST) in respect of internal and external solid rendering from payment claim 5?
I accept Mr Gillham’s evidence that works were ongoing at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $1,500 for internal and external solid rendering on the basis that work was ongoing. The Builder had claimed that this work was 100% complete and claimed 70% in this claim. The amount retained represented 5% of the estimated total value of the work.
Was Mr Gillham entitled to deduct $267 (excl GST) in respect of emptying, cleaning and refilling the rainwater tank from payment claim 5?
I find Mr Gillham was not entitled to deduct $267 as a 50% contribution for the cost of emptying, cleaning and refilling the rainwater tank because Mr Gillham had no general right of set off under the Contract even if he was entitled to make such a claim.
Was Mr Gillham entitled to deduct $495 (excl GST) in respect of variation 14 from payment claim 5?
I find Mr Gillham was entitled to deduct $495 in respect of variation 14 for the reasons set out later in respect of the Builder’s variation claim.
Was Mr Gillham entitled to deduct $809(excl GST) in respect of variation 18 from payment claim 5?
I find that Mr Gillham was entitled to deduct $809 in respect of variation 18 for the reasons set out later in respect of the Builder’s variation claim.
Was Mr Gillham entitled to deduct $535 (excl GST) in respect of variation 19 from payment claim 5?
I accept Mr Gillham’s evidence that works were not complete at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $535 in respect of variation 19 on the basis the work was not completed and for the reasons set out later including that some of the work formed part of the Contract and therefore was not properly claimable as a variation. The amount retained represented 50% of the total value of the work.
Was Mr Gillham entitled to deduct $200 (excl GST) in respect of ancillary timber from payment claim 5?
I accept Mr Gillham’s evidence that works were not complete at the time of the claim and in the absence of other sufficient evidence accept he was entitled to deduct $200 in respect of ancillary timber. The Builder had claimed that this work was 100% complete and claimed the balance 50% of this item. The amount retained represented 10% of the estimated total value for this work.
Was Mr Gillham entitled to deduct $3,000 (excl GST) in respect of variation 20 and $1,000 (excl GST) in respect of variation 22 from payment claim 5?
For the reasons set out later I find Mr Gillham was not entitled to deduct $3000 in respect of variation 20 and $1000 in respect of variation 22 in relation to the claimed builder’s margin for the omitted work.
Interest
I find that the Builder is entitled to claim interest on the amount of $15,552.02 (incl GST) being $15,803.70 (incl GST) in respect of deductions Mr Gillham was not entitled to make less $251.68 (incl GST) in respect of the overstatement of the claim for variation 4 explained later in these reasons.
Mr Gillham’s evidence is that payment claim 5 was received on Friday 19 June 2015.[37] It was payable within 10 business days. On my calculation payment was due by no later than 3 July 2015. Interest accrues at the rate of 5% per annum or $2.13 per day on and from 4 July 2015. As at 14 June 2019 interest accrued for a period of 1460 days amounting to $3,110.40.
[37]Forms part of Exhibit 20, letter dated 29 June 2015.
Payment claim 6 and Practical Completion claim
Mr Gillham contended that the Builder issued payment claim 6 dated 20 July 2015 for $72,226.78 and the practical completion claim dated 24 July 2015 for $78,588.29, which superseded payment claim 6. The Builder contends that the claims were for $32,856 and $6,361.51 respectively.
Mr Gillham did not pay any amount in respect of claim 6 or the practical completion claim.
Mr Gillham contends that as the Contract provided for monthly progress claims the Builder was not entitled to make the practical completion claim in July but also, somewhat inconsistently, contends that the practical completion claim replaced claim 6.
The evidence before me in respect of payment claim 6 is:
(a)invoice no 3219 was issued by the Builder dated 20 July 2015 in the sum of $32,856.00 (incl GST), including a claim for variation 21 in respect of condenser slab in the sum of $467.50 (incl GST); and
(b)an itemised list of work to date accompanied the invoice, which references the armourflex omission as variation 22, sets out the total value of the works claimed to be completed to date and deducts the value of previous claims by adjusting claims 4 and 5 to the amounts paid by Mr Gillham and states the total of this claim is $72,226.78 (GST inclusive).
Mr Kernohan’s evidence was that the itemised list was to act as a running tally to assist Mr Gillham in view of Mr Gillham having deducted amounts from the previous claims.
On balance I find that the tax invoice delivered by the Builder constituted the payment claim which was to be made monthly and that the itemised list was a supporting document.
The time for payment of progress claim 6 was within 10 Business Days of receiving the progress claim.[38] The evidence is that Mr Gillham received progress claim 6 by email on Monday 20 July 2015.[39] Mr Gillham had no right of retention for defective work from this claim. As set out earlier these obligations were not clearly altered by the Special Conditions.
[38]Contract, General Condition, cl 11.7, sch, item 20.
[39]Exhibit 19 and Exhibit 22.
The evidence before me in respect of the practical completion payment claim is:
(a)invoice no 3222 was issued by the Builder dated 24 July 2015 by email on Friday 24 July 2015[40] in the sum of $6,361.51 (incl GST), including a claim for variation 29 in respect of sandcoat to hardcoat in the sum of $1,140.30 (incl GST);
(b)an itemised list of work to date accompanied the invoice, which sets out the total value of the works claimed to be completed to date and deducts the value of previous claims paid by Mr Gillham and states the total of this claim is $78,588.29(GST inclusive).
[40]Exhibit 3, DSK13, page 285.
I find that the practical completion payment claim was not validly made when claimed as Practical Completion had not been achieved by 24 July 2015 so that the claim was premature. I am not satisfied that the works were complete but for minor defects and omissions. For the reasons set out later, not all defects and omissions were minor.
It is therefore not necessary to decide whether more than one claim could be made in the month of July.
Mr Gillham contends that the practical completion claim superseded claim 6 because there is no amount inserted in the accompanying itemised list for claim 6. I do not accept this submission.
Below the reference to claim no 6 is a line and below that it clearly states ‘Total of payments of previous claims’. In this respect the accompanying document with the practical completion claim is different to the accompanying document provided with earlier claims. Mr Gillham did not pay anything towards claim 6 by the time the practical completion claim was made or at all. It is entirely appropriate for it to be left blank and for the practical completion claim, if it were otherwise valid, to subsist along with claim 6.
Mr Gillham contends that payment claims are only payable once he assesses the amount owing and that as he assessed no amount was owing he was not obliged to pay any amount. As set out earlier, the real question is whether Mr Gillham having properly assessed the value of the work save for minor defects and omissions ought to have assessed and paid an amount.
Mr Gillham wrote to the Builder by email dated 31 July 2015 expressing his view that no amount was payable to the Builder. In his view the Builder owed him at least $19,648.48, once deductions were made for incomplete and disputed works and liquidated damages in the sum of $17,600 were applied.[41]
[41]Exhibit 15, ANWG118.
On the face of the email in evidence before me, Mr Gillham did not separately assess payment claim 6 as he was required to do. It is not appropriate for him to rely upon his own wrong to contend no amount was payable. Mr Gillham contended that there was $69,546.84 of incomplete works as at the date the Builder claimed practical completion but does not articulate which works are said to be incomplete and whether he contended the works the subject of claim 6 were incomplete.
In the absence of clarity as to Mr Gillham’s contentions I have considered whether there is sufficient evidence before me to determine whether he was entitled to deduct from the amount payable the whole of each of the line item claims made by payment claim 6.
Mr Gillham’s final written submissions contend that the claim was invalid because it was made in respect of work that had not been completed.[42] The submissions contend that claims were made in respect of the following work which had not been undertaken:
(a)the construction of garden swales;
(b)relocation of the stand alone air-conditioning unit;
(c)relocation of the Gazebo; and
(d)supply and installation of the Fondis unit and wine racks.
[42]Submissions filed 5 May 2017, [192].
The submissions do not identify to which line items claimed by claim 6 each of these incomplete work items are said to relate.
I am not satisfied that Mr Gillham can contend that the claim was invalid in its entirety in circumstances where, in breach of the payment provisions he did not separately assess the value of the work completed, subject to minor defects and omissions, discuss with the Builder any difference between the assessment and the amount claimed and afford the Builder an opportunity to revise the amount claimed as contemplated by the Contract.
Was Mr Gillham entitled to deduct $2,849 (incl GST) in respect of the final 10% for Sanitary and Stormwater installation from payment claim 6?
Having regard to the evidence as to incomplete work, I am satisfied that Mr Gillham was entitled to deduct $1,524.60 (incl GST) from payment claim 6 in respect of the incomplete garden swale, which relates to stormwater dispersal, for the reasons set out later.[43] Otherwise, I am not satisfied that Mr Gillham was entitled to deduct amounts because items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $2,530 (incl GST) in respect of the final 10% for electrical installation from payment claim 6?
[43]Scott schedule 10.
Having regard to the evidence as to incomplete work, I am satisfied that Mr Gillham was entitled to deduct the amount of $457.97(incl GST) in respect of incomplete work associated with the failure to relocate the existing stand alone air-conditioning for the reasons set out later.[44] Otherwise, I am not satisfied that Mr Gillham was entitled to deduct amounts because items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $7,500 (incl GST) in respect of the final 50% for the Airconditioning provisional sum from payment claim 6?
[44]Scott schedule 4.
Having regard to the evidence as to defective and incomplete work, I am not satisfied that Mr Gillham was entitled to deduct $7,500 from payment claim 6 because items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $2,123 (incl GST) in respect of the claim for 11.79% of the tile labour provisional sum such that it was claimed to be 51.79% complete from payment claim 6?
Having regard to the evidence as to defective and incomplete work, on balance, I am satisfied that Mr Gillham was entitled to deduct $2,123 from payment claim 6 because a number of items of defective or incomplete work appear to relate to this line item.
Was Mr Gillham entitled to deduct $1,042.80 (incl GST) in respect of the final 20% for termite protection from payment claim 6?
Having regard to the evidence as to defective and incomplete work, I am not satisfied that Mr Gillham was entitled to deduct $1,042.80 from payment claim 6 because items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $935 (incl GST) in respect of 100% claim for silicon seal from payment claim 6?
Having regard to the evidence as to defective and incomplete work, I am not satisfied that Mr Gillham was entitled to deduct $935 from payment claim 6 because items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $1,821.60 (incl GST) in respect of 80% of professional clean from payment claim 6?
I find that Mr Gillham was entitled to deduct an amount of $562.88 (incl GST) from payment claim 6 but not entitled to deduct the entire amount. The amount of $1,258.72 (incl GST) was payable.
Having regard to the evidence and my findings later in these reasons in respect of Scott schedule 34 and the balance 20% of this line item unclaimed at the relevant time, I find that the claim for cleaning was overstated. Otherwise, items of defective or incomplete work either do not appear to relate to this line item or are minor.
Was Mr Gillham entitled to deduct $5,229.29 (incl GST) in respect of the final 10% for builder’s margin from payment claim 6?
I find that Mr Gillham was not entitled to deduct the entire amount for this item, however I find an entitlement to a deduction in the amount of $2,614.64 (incl GST) from payment claim 6.
Having regard to the evidence of the state of completion of the works, the claim for the whole of the final 10% for builder’s margin was premature. The Builder had claimed 40% of this line item in the previous claim. The evidence is that some progress had been achieved in the intervening time. In the absence of precise evidence on this point I find that a deduction in the order of half of the amount claimed could have been justified by Mr Gillham. This is consistent with my findings set out later that the reasonable costs of rectifying defective or incomplete work for which Mr Gillham is entitled to be compensated is in the order of 5% – 6 % of the Contract price.
Was Mr Gillham entitled to deduct $8,357.81 (incl GST) in respect of the final 10% for aluminium joinery from payment claim 6?
Having regard to the evidence as to defective and incomplete work and my findings later in these reasons,[45] on balance, I am satisfied that Mr Gillham was entitled to deduct $8,357.81 from payment claim 6.
Was Mr Gillham entitled to deduct $467.50 (incl GST) in respect of variation 21 in respect of condenser slab from payment claim 6?
[45]Scott schedule items 35, 36 and 57.
I find that Mr Gillham was entitled to deduct the amount of $467.50 in respect of variation 21 from payment claim 6. The amount was not payable at the time claimed for the reasons set out later in respect of the Builder’s variation claims.
In addition, Mr Gillham’s reasons for asserting no amount was payable included an amount of $15,000 deducted for disputed works in relation to the soffits, being an additional $5,000 to that previously deducted from claims 4b and 5. For the reasons set out earlier, I find that Mr Gillham was not entitled to deduct any amount in respect of soffits from payment claim 6.
The claim for liquidated damages in the sum of $17,600 cannot be applied in reduction of claim 6.
Interest
I find that the Builder is entitled to claim interest on the amount of $16,747.60 (incl GST) in respect of deductions Mr Gillham was not entitled to make.
As set out above payment claim 6 was payable within 10 Business Days of 20 July July 2015. On my calculation, payment claim 6 ought to have been assessed as to the value of works and payment made by no later than 3 August 2015. Interest accrues at the rate of 5% per annum or $2.29 per day on and from 4 August 2015. As at 14 June 2019 interest accrued for a period of 1411 days amounting to $3,231.19.
Is the Builder entitled to payment for Variations claimed? Where Mr Gillham has paid for Variations is he entitled to be reimbursed?
Mr Gillham contends that the Builder did not comply with the requirements of part 7 of the DBC Act and with General Condition clause 12 in respect of variations. He submits that the Builder’s claim should be discounted by $60,626.04[46] because none of the variations complied with the DBC Act and the Contract and that to the extent that Mr Gillham has paid for variations such payments represent a mistake of law or fact as to the Builder’s entitlement to receive payment and seeks restitution of amounts paid.
[46]Total for variations except VA20 and VA22 being $40,552.64 (excl GST) or $44,607.90 (incl GST) plus $4,400 for builder’s margin (incl GST) for VA20 and VA 22 equates to $49,007.90 plus $11,618.14 ($6,016.77 plus 10% margin plus GST) in respect of soffits.
Mr Gillham contends that the Builder was required to comply with the following sections of the DBC Act:
(a)Section 79 - reducing variations to writing prior to commencing work unless the work was urgent.[47] Failure to comply subjects a builder to a monetary penalty;
(b)Section 80(1) – ensuring the variation document complied with formal requirements set out in section 80(2) including as further set out in section 81(2). Requiring the variation document to describe the variation,[48] if sought by the Builder to state the reasons for the variation,[49] if the variation would result in delay state the reasonable estimate for the delay,[50] state the change to the Contract Price or how the Contract Price would be worked out,[51] and state when any increase or decrease in the Contract Price was to be paid or accounted for.[52] Failure to comply subjects a builder to a monetary penalty;
(c)Section 82 – taking all reasonable steps to have the owner sign the variation document. Failure to comply subjects a builder to a monetary penalty;
(d)Section 83 – providing a signed copy of the variation document to the owner within 5 business days. Failure to comply subjects a builder to a monetary penalty.
[47]Also required by General Condition cl 12.3.
[48]Also required by General Condition cl 12.4(a).
[49]Also required by General Condition cl 12.4(b).
[50]Also required by General Condition cl 12.4(c).
[51]Also required by General Condition cl 12.4(d).
[52]Also required by General Condition cl 12.4(e).
Mr Gillham relies upon section 84 of the DBC Act to contend that the Builder was only entitled to recover amounts in respect of a variation:
(a)sought by Mr Gillham if the Builder complied with sections 79, 80, 82 and 83 or with approval of the Tribunal upon application; or
(b)sought by the Builder if it complied with sections 79, 80, 82 and 83 and the ground of unforeseen circumstances arose or with approval of the Tribunal upon application.
Further Mr Gillham contends in respect of any payment made by him in respect of any of the variations such payment represents a mistake of law (if not also a mistake of fact) as to the Builder’s entitlement to receive payment and that given the protective elements of the DBC Act they cannot be waived or disregarded. He claims that the Builder should therefore make restitution in respect of any payment made for variations claimed by the Builder.
The Appeal Tribunal in Greer’s case[53] found that:
(a)the contractor ‘had no right to recover amounts for the unpaid non-compliant variations in the absence of the tribunal’s approval.’[54]
(b)‘there is a distinction to be drawn between the right of a building contractor to recover an amount for a non-compliant variation and the amount payable under the contract as varied’.[55] The latter is relevant to the assessment of the owner’s loss as ‘Part 7 of the DBC Act does not prohibit parties from freely entering into agreements for variation works that may not comply with the stated provisions.’[56] Non-compliance does not make any variation agreements illegal nor the performance of the variation work illegal unlike the provisions in section 42 of the Queensland Building and Construction Commission Act 1991 (Qld). The DBC Act contemplates that non-compliant variations may found an entitlement to extend time.[57]
(c)a contractor who received payment for non-compliant variation work is not required to disgorge the amount to the owner by operation of s 84(2) of the DBC Act.[58]
[53][2018] QCATA 196.
[54]Ibid, [78].
[55]Ibid, [79] (emphasis in original).
[56]Ibid, [68].
[57]DBC Act, s 18(6).
[58][2018] QCATA 196, [102].
The Appeal Tribunal in Greer’s case further observed:[59]
A party suing for damages for breach of a contract may only recover for the net loss sustained, that is, the value of the benefit of the contract fully performed less the contract price for securing such performance.
In Commonwealth v Amann Aviation Pty Ltd the High Court held that the corollary of the rule in Robinson v Harman is that a plaintiff is not entitled, by the award of damages upon breach, to be placed in a superior position to that which he or she would have been in had the contract been performed.
[59]Ibid, [52] - [53] (citations omitted).
I consider each of the claims for variations in light of the Appeal Tribunal’s findings.
Variation 1 (VA01) - $10,773.84 (incl GST)
I find that Mr Gillham is not entitled to be reimbursed an amount for this work.
Mr Gillham contends that:
(a)VA01 did not comply with General Conditions clause 12 and 14 and the DBC Act and therefore the Builder is not entitled to receive payment;
(b)the works the subject of V01 were already part of the scope of works and he agreed to pay for VA01 in the mistaken belief that the work was not part of the original scope of works.
The Builder emailed a variation document on 26 March 2015, which indicated the cost was $17,523.22 (incl GST). In the covering email the Builder described the amount as a ‘provisional sum’ and indicated that the job would likely cost less. Mr Gillham signed the variation document, somewhat reluctantly, as it was more than he had expected from his discussions with Mr Kernohan and returned it to the Builder by email on 27 March 2015. Subsequently a revised variation document was emailed by the Builder on 17 April 2015 removing the allowance for paving. Mr Gillham signed the revised variation document and returned it to the Builder by email on 19 April 2015 again indicating his agreement to vary the amount payable.
The Builder claims that VA01 concerned a latent condition because it involved the discovery of a 400mm strip of concrete around the perimeter of the house, which was embedded under the road base, which was under the pavers.
Latent Condition is defined to mean[60]
Any physical condition on or around the Land, including surface and subsurface conditions, which differ materially from the physical conditions reasonably expected by the Contractor at the time the Contract was entered into.
[60]Contract, General Condition cl 1.
Mr Gillham contends that the Builder ought to have reasonably anticipated this work because, amongst other things, Mr Kernohan inspected the property on at least four occasions prior to entering into the Contract and Mr Kernohan stated that no variations were expected unless Mr Gillham sought additional works. I do not accept that the Builder was somehow prevented from relying upon the terms of the written Contract as to when variations may arise, in particular as to latent conditions, by the making of this pre-contractual representation. The Contract contained an entire agreement clause.[61]
[61]Ibid, cl 3.2.
Mr Gillham also contends that the original scope of work included the installation of the termite reticulation system and contemplated any attendant concrete cutting.
The experts accepted that varied work was required as a result of a latent condition. I accept the experts’ evidence.
On the evidence before me I accept that the discovery of the concrete in the sub-soil was a latent condition within the meaning of the Contract. I am not satisfied that the Builder could reasonably have expected to encounter such a condition even though he attended the property a number of times prior to signing the Contract as the evidence is that the concrete was below the ground surface.
I am not satisfied that the reference to ‘cuts or penetrations to any slab’ was intended to detail building work, which related to cutting of a strip of concrete, the existence of which was not reasonably apparent to the Builder prior to entering into the Contract.
Mr Gillham contends, and I accept, that the Builder did not strictly follow General Condition clause 14 as the variation document does not itself set out the estimate of the time required to rectify the condition. Subsequently the Builder claimed an extension of time of three days in respect of additional work.[62]
[62]Extension of Time #02 emailed 22 April 2015.
The variation document does not describe the latent condition in as fulsome way as it might but was, in my view, sufficient to notify Mr Gillham of the issue encountered.
I accept that a variation document was signed by Mr Gillham prior to the variation work commencing evidencing his agreement to vary the amount payable by him. There is contemporaneous evidence before me that indicates that the work was undertaken in the period 30 March and 9 April 2015.[63] The revised variation document omitted work, as it appears the parties, through discussion, agreed that the paving work initially included as part of the variation formed part of the original scope of work.
[63]Ibid.
Mr Gillham contends, and I accept, that the Builder did not strictly follow General Condition clause 12 as the variation document does not itself clearly set out when the variation amount was payable.[64]
[64]Contract, General Condition cl 12.4.
Mr Gillham paid the revised VA01 amount in full as part of payment claim 2, which payment claim was reviewed and approved by Mr Hermon, a building professional assisting Mr Gillham.
The evidence is that, at the time of entering into the Contract Mr Gillham was an experienced professional[65] and he sought and obtained relevant expertise from advisors to allow him to deal with builders including the Builder. Mr Gillham prepared or caused to be prepared significant amendments to the proposed contract in the form of Special Conditions. He conducted a tender process to select a builder and entered into significant negotiations with the Builder, once it had been identified as the preferred tenderer. Mr Gillham was clearly quite a sophisticated contracting party. There is no suggestion that Mr Gillham was not capable of familiarising himself with the terms of the Contract as to variations, which were essentially in the same terms as the provisions in the DBC Act. He signed this and other variations presented to him to indicate his agreement to vary the amount payable under the Contract as varied. I am not satisfied that the Builder should make restitution of amounts paid in these circumstances.
[65]Accountant.
In any event, in accordance with the Appeal Tribunal’s decision in Greer’s case, in assessing Mr Gillham’s claim for damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 2 (VA02) - $5,431.69(incl GST), Variation 3 (VA03) - $497.31 (incl GST)
I find no amount is to be reimbursed to Mr Gillham in respect of these variations.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation documents failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[66]
[66]DBC Act, s 80(2)(g), s 81(2).
I accept that the Builder did not strictly follow General Condition clause 12 and the DBC Act as the variation document does not itself clearly set out when the variation amount was payable.
Mr Gillham paid the amounts claimed for this work voluntarily as part of progress claim 2 following review and approval of the claim by Mr Hermon. For the reasons set out in respect of VA01 no amount is repayable.
In any event, for the reasons stated above, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 4 (VA04/04b) - $1,258.40(incl GST)
I find that in assessing Mr Gillham’s claim for damages $1,258.40 is to be taken into account in respect of this item.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document was not signed by him prior to the Builder undertaking the work contrary to General Condition 12.3 and the DBC Act.[67] Further, Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation documents failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[68] I accept the document did not comply.
[67]Ibid, s 79.
[68]Ibid, s 80(2)(g), s 81(2).
Mr Gillham paid the amount then claimed for this work ($1,510.08 incl GST) voluntarily as part of progress claim 2 following review and approval of the claim by Mr Hermon. On or about 1 June 2015 Mr Gillham purported to deduct $1,372.80 (excl GST), being the original amount claimed, for this work from progress claim 4 despite Mr Hermon having previously approved the amount for payment. Mr Gillham contended that he had not approved or signed the variation and it had therefore been paid in error.
Through subsequent discussion the Builder agreed to revise the amount claimed, issued a revised variation document on 5 June 2015 in the sum of $1,258.40 (incl GST), which Mr Gillham approved on 6 June 2015 ‘in a spirit of compromise’ indicating his agreement to vary the amount payable.[69] In these circumstances, I am not satisfied that the Builder can maintain a claim that the deduction was wrongful.
[69]Exhibit 3, part of DSK 13, page 221.
Claims made by the Builder after 6 June 2015 do not appear to reconcile the agreed revised variation amount. Variation 4 remains listed at the original amount and therefore the supporting worksheet accompanying claim 5 dated 18 June 2015, claim 6 dated 20 July 2015 and the Practical Completion claim dated 24 July 2015, overstate the total value of work performed by $251.68 (incl GST).
On this basis I am not satisfied that Mr Gillham has received a claim for the revised agreed variation amount and therefore I am not satisfied that he has paid such an amount.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 5 (VA05) - $8,315.45 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation documents failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[70]
[70]DBC Act, s 80(2)(g), s 81(2).
This claim was in respect of rendering, which was a provisional sum item.[71] Mr Gillham signed and returned a variation document by email on 20 May 2015 indicating his agreement to vary the amount payable.[72]
[71]Contract, Appendix B.
[72]Exhibit 15, ANWG16.
General Condition clause 9.5 provides for an adjustment to the Contract price where the actual cost exceeds the allowance. In those circumstances, the excess amount plus margin is added to the Contract Price and is to be claimed in the next progress claim. In my view clause 9.5 applies in preference to clause 12 because it is a more specific provision. I am not satisfied that there was a requirement to state when the amount was to be paid because clause 9.5 specifically provided when it was to be claimed and it was an adjustment to the Contract Price rather than a true variation.
Mr Gillham paid the amounts claimed for this work voluntarily, as part of progress claim 5, following review and approval of the claim. I am not satisfied that any amount is repayable.
In any event, even if it were a variation as distinct from an adjustment, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 6 (VA06) - $601.37(incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[73]
[73]DBC Act, s 80(2)(g), s 81(2).
I accept the document did not comply.
Mr Gillham signed and returned the variation document by email on 20 May 2015 indicating his agreement to vary the amount payable and paid the amounts claimed for this work voluntarily as part of progress claim 4b following review and approval of the claim by Mr Hermon. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 7 (VA07) - $324.28 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[74]
[74]Ibid.
I accept the document did not comply.
Mr Gillham signed and returned the variation document by email on 2 June 2015 indicating his agreement to vary the amount payable.
The Builder claimed for this work in payment claim 5 dated 18 June 2015. Mr Gillham in assessing the amount payable deducted amounts in respect of other work but not in respect of variation 7. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 9 (VA09) - $2,262.70 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[75]
[75]Ibid.
I accept the document did not comply.
Mr Gillham signed and returned the variation document by email on 2 June 2015 indicating his agreement to vary the amount payable.
The Builder claimed for this work in payment claim 5 dated 18 June 2015. Mr Gillham in assessing the amount payable deducted amounts in respect of other work but not in respect of variation 9. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 10 (VA10) - $7,502 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[76]
[76]Ibid.
I accept the document did not comply.
Mr Gillham signed and returned the variation document by email on 3 June 2015 indicating his agreement to vary the amount payable.
The Builder claimed for this work in payment claim 5 dated 18 June 2015. Mr Gillham in assessing the amount payable deducted amounts in respect of other work but not in respect of variation 10. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 11 (VA11) - $1,560.90 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[77] I accept that the document did not comply.
[77]Ibid.
Mr Gillham signed and returned the variation document by email on 3 June 2015 indicating his agreement to vary the amount payable.
The Builder claimed for this work in payment claim 5 dated 18 June 2015. Mr Gillham in assessing the amount payable deducted amounts in respect of other work but not in respect of variation 11. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 12 (VA12) - $726 (incl GST)
I find no amount is to be reimbursed to Mr Gillham.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation document failed to state when the associated increase in the Contract Price was to be paid contrary to General Condition 12.4(e) and the DBC Act.[78] I accept the document did not comply.
[78]Ibid.
Mr Gillham signed and returned the variation document by email on 6 June 2015 indicating his agreement to vary the amount payable.
The Builder claimed for this work in payment claim 5 dated 18 June 2015. Mr Gillham in assessing the amount payable deducted amounts in respect of other work but not in respect of variation 12. For the reasons set out in respect of VA01 no amount is repayable.
In any event, in assessing Mr Gillham’s damages the calculation is to take into account the varied amount payable for non-compliant but nevertheless agreed variations.
Variation 14 (VA14) - $544.50 (incl GST)
I find the amount claimed by the Builder was not payable under the Contract at the time claimed and the deduction validly made.
Mr Gillham contends that the Builder is not entitled to receive payment for this work as the variation work was undertaken before the variation document was sent to him. The variation document was sent on 5 June 2015 together with an extension of time (EOT) claim in respect of this work. The EOT document indicates that this varied work caused delays on 3, 4 and 5 June 2015. I accept that it is more likely than not that the work was performed prior to the variation document being sent to Mr Gillham.
Mr Gillham’s and Mr Dixon’s evidence is that the new toilet seat in the powder room is badly scratched and requires replacement. Mr Gillham claims it was damaged prior to his taking possession. Mr Dixon’s evidence is that the toilet seat does not sit evenly over the toilet bowl as a result of poor installation requiring adjustment. Mr Kernohan conceded in cross examination that he had not seen the toilet seat since it had been installed as part of the works under the Contract. I accept that it is more likely than not that the Builder is responsible for rectifying the damage and for the failure to properly install the toilet seat.
The experts’ evidence is that the reasonable cost of rectification is $58.09 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 51 & 52 – Wastage of Tiles in powder room – surplus tiles removed - $228.48[200]
[200]Respondent’s Outline of Submissions filed 5 May 2017, page 100 and 101. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $228.48 (incl GST) in respect of this item.
Under the Contract Mr Gillham was responsible for supplying tiles for use by the Builder. Mr Gillham was requested to supply additional tiles to allow the powder room to be completed. The evidence is that these additional tiles cost $228.48 and that after the tiling was completed there were five full tiles left over, which were removed from site prior to Mr Gillham taking possession.
The experts’ evidence is that the number of boxes of tiles Mr Gillham initially supplied ought to have been sufficient to tile the powder room allowing for a fair and reasonable twenty percent wastage. Mr Dixon’s evidence is that the industry standard is ten percent wastage and that on his calculation the actual wastage was more than 40%.
Mr Kernohan’s oral evidence was that he attended site with the tiler to set the grout lines and that he wasn’t thinking about tile wastage but rather the ultimate look. There is no evidence before me that the tiles supplied were defective causing a higher than usual wastage. I accept that the tiler’s wastage rate was excessive and it is more likely than not that had reasonable skill and care been taken Mr Gillham would not have been required to purchase the additional tiles. It is also more likely than not that the Builder or its sub-trades removed the left over five full tiles.
Scott schedule 53 – Roof trusses, lintels and roof sheets - $3,433.21[201]
[201]Respondent’s Outline of Submissions filed 5 May 2017, page 101. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find the Builder is to pay Mr Gillham $500 in respect of this item.
Mr Gillham claims that whilst the Contract by special condition 9 provided that unfixed and demolished materials, with certain exceptions not including these items, were to be the Builder’s property the Contract was varied by email exchange on 11 May 2015. The evidence is that prior to this exchange Mr Kernohan had permitted his carpenter to attempt to sell the roof trusses and a buyer had been located for an agreed price of $250. It appears that Mr Gillham’s desire to retain the trusses had not been conveyed to the carpenter.
Subsequently on 30 May 2015, Mr Gillham intercepted the buyer removing trusses and roof sheeting from site and that both Mr Gillham and the carpenter phoned Mr Kernohan in the course of the exchange with the buyer, with Mr Kernohan not disputing Mr Gillham’s ownership and delegating to the carpenter to resolve the matter.
Mr Gillham’s evidence, which is supported by a contemporaneous email,[202] is that he agreed to accept $1,000 on the basis the Buyer and the carpenter would pay $500 each. There is evidence before me that the buyer transferred $500 to Mr Gillham’s account shortly afterwards, having already paid $250 cash to the carpenter. [203] The carpenter did not give evidence in these proceedings. I accept Mr Gillham’s evidence as to the agreement reached. Mr Kernohan’s evidence was that he told the Builder’s carpenter not to pay Mr Gillham.
[202]Exhibit 15, ANWG68.
[203]Ibid, ANWG69.
I accept that in the circumstances the Builder is responsible for the unpaid balance of the agreement its carpenter made in the course of his employment.
Mr Gillham’s evidence, which is not challenged, is that the quantity of materials sold in this way was approximately one-third of the total. He contended that the remaining two-thirds had been removed prior to 30 May 2015. Mr Gillham seeks compensation as to the balance. Mr Kernohan’s oral evidence was that he stockpiled and left on site some roofing and timber, which he acknowledged would have some salvage value which he estimated at a ‘couple of hundred bucks’.[204]
[204]Transcript (13 March 2017), 1-81.32.
I am not satisfied that the remaining two-thirds of the materials were removed from site after the 11 May 2015 agreement to vary special condition 9 because there is little or no evidence on this point. There is also some evidence that some of the demolished materials remained on site.
Scott schedule 54 - Timber support posts - $1,316.14[205]
[205]Respondent’s Outline of Submissions filed 5 May 2017, page 83. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $969.57 (incl GST) together with a refund of the amount paid in respect of variation 15 in respect of this item.
The Builder accepts Mr Dixon’s evidence that the timber support posts were incorrectly installed and require rectification. This requires a reversal of variation 15, previously paid by Mr Gillham in the amount of $302.50 because despite that work to shorten the posts they were still not short enough. The Builder accepts that the reasonable cost of rectification is $801.30 (excl builder’s margin and GST). I accept Mr Dixon’s evidence. For the reasons set out earlier, I find that a reasonable margin is 10%, being a total of $969.57 together with a refund of the amount paid in respect of variation 15.
Scott schedule 55 - Backfill soil – outside edge patio slab - $1,558.99[206]
[206]Respondent’s Outline of Submissions filed 5 May 2017, page 84. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $302.50 (incl GST) in respect of this item.
The Builder accepts the experts’ evidence that it failed to provide backfilled soil along the outside edge of the patio slab and that the reasonable cost of completion is $250.00 (excl builder’s margin and GST). For the reasons set out earlier, I find that a reasonable margin is 10%. Mr Gillham seeks to rely upon the amount originally set out in Mr Dixon’s report. However, that evidence has been superseded by the evidence in the joint-report. Even if it had not been superseded, having regard to the photograph in Mr Dixon’s report, I am not satisfied that the work required is extensive.[207]
Scott schedule 56 - Patio topping slab (north side patio) – saw cuts - $278.30[208]
[207]Exhibit 13, page 101.
[208]Respondent’s Outline of Submissions filed 5 May 2017, page 84. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $266.20 (incl GST) in respect of this item.
The Builder accepts the experts’ evidence that it failed to perform saw cuts and that the reasonable cost of completion is $220.00 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 57 – windows - $9,066.20[209] or alternatively $6,046.78
[209]Respondent’s Outline of Submissions filed 5 May 2017, page 101. Amount in accordance with quote at Exhibit 16, ANWG129.
I find the Builder is to pay Mr Gillham $6,046.78 (incl GST) in respect of this item.
Mr Gillham contends that the Builder incorrectly supplied 4 sash (or framed windows) in the dining room and family room and that the windows are in any event defective as they rub or ‘bind’ against each other when the windows are raised or lowered. He seeks the cost of replacing them with alternative windows relying upon a quote obtained.[210] Mr Dixon obtained an alternative quote in the amount of $6,046.78 (incl GST). [211]
[210]Exhibit 16, ANWG 129.
[211]Exhibit 14, DD2, Attachment Supp#2-A.
Unlike the product Mr Gillham viewed at the supplier’s showroom the windows installed have an aluminium trim rather than a transparent glass rail across each pane of glass, which obstructs the view. Mr Gillham produced a product brochure, which described sashless windows as being a frameless design which has two panels of glass which slide silently past each other with aluminium guides which fit into the perimeter frame.[212] There is no evidence before me that the product viewed at the showroom or shown in the brochure were double glazed windows. There is no evidence before me that Mr Gillham provided a copy of the brochure to the Builder. Mr Gillham’s evidence is that he sought and obtained an assurance from the supplier that the sashless windows could be manufactured in a double glazed format.
[212]Exhibit 15, ANWG73, page 371.
There was a conflict of evidence between the experts and Mr Kernohan about the meaning of the term sashless. The description in the brochure more closely aligns with Mr Kernohan’s evidence that the window is a frameless design.
Mr Gillham’s evidence is that after the windows had been installed he took up the issue of the aluminium trim with the supplier by email dated 23 June 2015[213] and was informed that it was required for double glazed units.[214] He also took up the issue of the claimed defect with the supplier by email dated 15 August 2015.[215] The evidence is that the issue occurs when the window slides past fully open[216] and other than restricting the window panes from sliding past that point, which Mr Gillham contends is not suitable to him, there is no other method of rectification.[217]
[213]Ibid, ANWG 74.
[214]Ibid, ANWG 75.
[215]Ibid, ANWG 76.
[216]Due to the presence of the aluminum trims.
[217]Exhibit 15, ANWG 77.
Mr Kernohan’s evidence was that the windows as supplied meet the description in the Contract according to the supplier chosen by Mr Gillham. Mr Gillham’s evidence was that if he had been aware that the windows could not be manufactured as demonstrated or as specified in the Contract, he would have chosen a different window.
The evidence is that the Builder had a copy of Mr Gillham’s quote for the supply of windows, which could have been used to compare the goods supplied. Unfortunately for the Builder, although Mr Gillham prevailed upon the Builder to include the supply of windows as part of the Contract for no additional margin, the Builder then took on obligations in respect of the windows. The Contract provided in the window schedule, that the formal dining room windows were to be sashless, double hung, double glazed windows.[218]
[218]Ibid, ANWG10, page 131 showing W03.
Although most of the dealings were conducted directly between Mr Gillham and the supplier, the Builder had an obligation to supply the product as specified or seek instructions as to an alternative if such a product could not be supplied. I prefer the evidence as to the reasonable costs of replacement windows obtained by the independent expert and with which Mr Carpenter agreed in the event the Tribunal decided that the windows required replacement.
Scott schedule 58 – privacy locks - $34.03[219]
[219]Respondent’s Outline of Submissions filed 5 May 2017, page 96. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find the Builder is to pay Mr Gillham $32.55 (incl GST) in respect of this item.
During the hearing Mr Kernohan conceded this item of incomplete work. The experts’ evidence is that the reasonable cost of completion is $26.90 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 59 - Installed skirting to study - $36.04[220]
[220]Ibid.
I find that the Builder is to pay Mr Gillham $34.47 (incl GST) in respect of this item.
The Builder accepts the experts’ evidence that it installed skirting to the study in a defective or un-tradesman like manner, and that the reasonable cost of rectification is $28.49 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 61 - Shorten covered walkway - $854.84[221]
[221]Respondent’s Outline of Submissions filed 5 May 2017, page 101. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I am not satisfied Mr Gillham has established his loss in any particular amount in respect of this item.
The evidence is that the covered walkway was not constructed as shown on the approved building drawings. Mr Gillham seeks a credit adjustment to reflect the costs saved.
The parties agree that during the course of the works at an onsite meeting Mr Kernohan explained to Mr Gillham the difficulties to marry the Colorbond walkway roof with the tiled house roof including that they were different materials and at different levels. They agreed to construct the covered walkway so that it finished about a metre from the house roof. Mr Kernohan points to the lack of detail as to how it was proposed to tie in the rooves in the Contract and contends that it could not be done or, if done, would be ‘ugly’. His evidence was that by shortening the walk way roof additional work was required including cutting off the end bay of the pre-existing walkway at the same rake as the house and installing new rafters and fascias which lined up. I accept his evidence that additional work was required.
The experts agree that the reasonable cost to extend the walkway and interconnect the roof framing was $675.76 (excl builder’s margin and GST). These costing do not factor into the credit any additional work required by the Builder to modify the pre-existing walkway to achieve the as constructed finish. [222] I am not satisfied the amount claimed reflects the difference in cost between the work required by the Contract and the work undertaken.
Scott schedule 62 - Picture rail - $648.72[223]
[222]Exhibit 13, page 162.
[223]Respondent’s Outline of Submissions filed 5 May 2017, page 84. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $620.51 (incl GST) in respect of this item.
The evidence is that Mr Gillham requested the deletion of the picture rail. No formal variation was agreed and signed by the parties as to the appropriate credit adjustment to be allowed.
The Builder accepts the experts’ evidence in respect of deletion of picture rail and that the reasonable cost of completion is $512.82 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 64 - Install guttering to roof section north of formal lounge - $97.86[224]
[224]Ibid.
I find that the Builder is to pay Mr Gillham $93.61 (incl GST) in respect of this item.
The Builder accepts the experts’ evidence that it failed to correctly install guttering to the roof section that is situated north of the formal lounge so as to prevent surcharge during rain periods and that the reasonable costs of rectification is $77.36 (excl builder’s margin and GST). I accept the experts’ evidence. For the reasons set out earlier, I find that a reasonable margin is 10%.
Scott schedule 66 - Northern patio tiling - $4,743.94[225]
[225]Respondent’s Outline of Submissions filed 5 May 2017, page 84. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST less unclaimed provisional sum for tiling $8,684.50 (incl GST).
I find that no amount is payable by the Builder to Mr Gillham in respect of this item. In calculating the amount payable, the Contract price ought to be adjusted by the remaining provisional sum allowance of $8,684.50 (incl GST), which had not been claimed by the Builder.
The evidence is that:
(a)the Northern patio tiling labour was part of a provisional sum item;
(b)Mr Gillham was responsible for supplying the tiles;
(c)the parties discussed deleting the Northern patio tiling work from the Contract because the tiles had not at that time been delivered and there was some doubt as to when they would be on site;
(d)the Builder conditionally agreed to Mr Gillham’s offer to delete the works from the Contract if the tiles had not been delivered by Practical Completion but no formal variation was signed;
(e)the work had not been performed prior to the Builder claiming Practical Completion because the tiles were not delivered to site until 3 August 2015 after the Builder claimed Practical Completion. The Practical Completion claim did not claim the balance of the provisional sum for tiling labour, consistent with its agreed deletion;
(f)the remaining allowance was $7,895 (excl GST) or $8,684.50 (incl GST), which was not invoiced by the Builder.
The parties accept the experts’ evidence that the cost to complete the work is $10,615.37 (excl builder’s margin and GST). This is an amount in excess of the remaining allowance.
Where the actual cost of the work for a provisional sum exceeds the amount allowed the Contract Price is to be increased by the excess amount plus the builder’s margin.[226] I am not satisfied that any credit in excess of the Provisional Sum allowance is required. In calculating the amount payable the Contract price ought to be adjusted by the remaining allowance.
Scott schedule 67 – keys - $801.35[227]
[226]Contract, General Conditions, cl 9.5.
[227]Respondent’s Outline of Submissions filed 5 May 2017, page 101.
I find that the Builder is to pay Mr Gillham $801.35 in respect of this item.
The Builder conceded it retained some keys for the purpose of carrying out works to remedy defects and omissions.
Mr Gillham put the Builder on notice a number of times of his intention to engage a locksmith if all keys were not returned and that he did not agree to the Builder retaining keys. Mr Gillham obtained an estimate on 17 June 2016 in the sum of $801.35 to rekey the door and window locks.[228]
[228]Exhibit 15, ANWG107.
The Builder challenges the necessity for this work. I accept Mr Gillham’s submission that the security of his house is compromised as he is in substantial dispute with the Builder, which retains keys.
The experts’ evidence is that the quoted cost is fair and reasonable. I accept the experts’ evidence.
Scott schedule 68 – builder’s margin VA20 -$3,300 and VA22 - $1,100[229]
[229]Respondent’s Outline of Submissions filed 5 May 2017, page 101.
Mr Gillham’s claim has been dealt with earlier in these reasons.
Scott schedule 69 – variation 1 - $10,733.84[230]
[230]Ibid.
Mr Gillham’s claim has been dealt with earlier in these reasons.
Scott schedule 70 - Reinstate pre-existing manholes – install second manhole - $302.93[231]
[231]Respondent’s Outline of Submissions filed 5 May 2017, page 84.
I find that the Builder is to pay Mr Gillham $190.37 (incl GST) in respect of this item.
Mr Gillham seeks reimbursement of the amount incurred.[232] The invoice indicates the contractor charged for 5.5 hours of labour which included ceiling inspections on two days.
[232]Exhibit 15, ANWG 112.
The Builder accepts the experts’ evidence that it failed to reinstate pre-existing manholes to the ceiling and/or failed to install any manholes to the ceiling and that the reasonable cost of rectification is $157.33 (excl builder’s margin and GST). For the reasons set out earlier, I find that a reasonable margin is 10%. I prefer the independent experts’ evidence as to the reasonable costs of rectification, rather than the actual charge incurred by Mr Gillham as I am not satisfied that the quote from a sole contractor, who did not give evidence in these proceedings, was necessarily the reasonable cost to perform the rectification work.
Scott schedule 71 – substitution of ornate cornice for plain cornice - $84.02[233]
[233]Respondent’s Outline of Submissions filed 5 May 2017, page 102. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
Mr Gillham’s claim has been dealt with earlier in these reasons in relation to variation 14.
Scott schedule 72 – Downpipes and gutters - $518.40[234]
[234]Respondent’s Outline of Submissions filed 5 May 2017, page 102. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
Mr Gillham’s claim has been dealt with earlier in these reasons in relation to variation 19.
Scott schedule 73 - Install safe - $220[235]
[235]Respondent’s Outline of Submissions filed 5 May 2017, page 84.
I find that the Builder is to pay Mr Gillham $62.99 (incl GST) in respect of this item.
Mr Gillham relies upon a quote for the supply and installation of safes.[236] The quote is somewhat confusing as it sets out amounts for three safes and installation. Mr Gillham submits that the logical interpretation is that the $220 refers to the installation of one safe and that it contemplates transportation of one safe to the site as well as installation. I accept that it is more likely than not that the quote contemplates supply of one of the three safes quoted, delivery and installation.
[236]Exhibit 16, ANWG 127.
Mr Kernohan’s oral evidence was that the Builder did not install a safe, which was part of the scope of works under the Contract, because Mr Gillham directed it not to do so and that a credit was due to Mr Gillham. The scope of work under the Contract provided only for installation rather than delivery and installation as contemplated by the quote.
The Builder accepts the experts’ evidence that a reasonable cost of installation is $52.06 (excl builder’s margin and GST). For the reasons set out earlier, I find that a reasonable margin is 10%. I prefer the independent experts’ evidence as to the reasonable costs of completion, rather than the quote from a sole contractor, who did not give evidence in these proceedings, relied upon by Mr Gillham as I am not satisfied that the quote was necessarily the reasonable cost to complete the work under the Contract and included other work not part of the Contract scope.
Scott schedule 74 – pest control - $440[237]
[237]Respondent’s Outline of Submissions filed 5 May 2017, page 102.
I am not satisfied that restitution ought to be made.
Mr Gillham seeks restitution because the Builder was made aware that it would not incur expense in relation to replacing pavers as a result of an agreement between the subcontractor and Mr Gillham and the sum of $440 (incl GST) was reduced from the subcontractor’s claim to the Builder.
The Builder did not put into evidence any documents to contradict that its subcontractor had reduced its claim by the amount agreed between it and Mr Gillham. I accept that it is more likely than not that the Builder received the credit.
The Contract provided that Mr Gillham must communicate and deal with the Builder and must not give directions to the Builder’s employees or subcontractors and is not entitled to rely upon statements or representations given by the Builder’s employees or subcontractors.[238]
[238]Contract, General Condition cl 11.13.
Mr Gillham seeks the benefit of a credit he negotiated directly with the Builder’s pest control subcontractor for a variation to the scope of works apparently in breach of the Contract. I am not satisfied that Mr Gillham should benefit from his own wrong.
Scott schedule 75 – Level bedding along northern patio - $7,700[239]
[239]Respondent’s Outline of Submissions filed 5 May 2017, page 97. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that no amount is payable by the Builder to Mr Gillham for this item.
Mr Gillham relies upon a single quote for work that is no longer required.[240] The contractor providing the quote did not give evidence in this proceeding.
[240]Exhibit 16, ANWG 128.
Mr Kernohan’s evidence was that the bedding, which was no longer required because a topping slab was installed, formed part of the tiling provisional sum. Mr Gillham’s final submissions accept Mr Kernohan’s evidence.
Mr Gillham’s submissions appear to misconceive the nature of provisional sum allowance adjustments.
The experts’ evidence is that the accounting for the bedding would be part of the costs to complete the tiling. They offered no separate amount for this item.
The tiling provisional sum allowance has been fully exhausted by the tiling work claimed by the Builder and the costs to complete the northern patio as found earlier in these reasons. If the bedding had been required to be performed the actual costs of the tiling work would have exceeded the provisional sum allowance by more than it has already been exceeded requiring an adjustment in the Builder’s favour.
Scott schedule 76 - FC gable – northwest corner of lanai - $71.85[241]
[241]Respondent’s Outline of Submissions filed 5 May 2017, page 85. Amount includes the Joint Expert Report’s agreed amount plus 15% builder’s margin and GST.
I find that the Builder is to pay Mr Gillham $68.73 (incl GST) in respect of this item.
The Builder accepts the experts’ evidence that it installed the FC gable at the northwest corner of the lanai in an un-tradesman like manner requiring rectification, and that the reasonable cost of rectification is $56.80 (excl builder’s margin and GST). For the reasons set out earlier, I find that a reasonable margin is 10%.
Crack in bedroom 3 internal wall - $3,795[242]
[242]Ibid.
I find the Builder is to pay Mr Gillham $3,025 (incl GST) in respect of this item.
This item was raised a relatively short time before the hearing. The experts and Mr Kernohan had not been to site to inspect this item. Mr Gillham provided photographs of the crack.[243]
[243]Exhibit 17, AMWG01.
During the experts’ concurrent evidence they agreed that the likely costs to rectify the crack based on the limited information they had before them was probably between $2,000 to $3,000 although depending upon a number of factors explained by Mr Dixon it may be less. The Builder accepts the experts’ evidence.
In view of the experts’ evidence as to rectification costs, I accept the mid way point of the estimate as the likely costs of rectification. For the reasons set out earlier, I find that a reasonable margin is 10%.
Battery and cables for relocated generator - $190.25[244]
[244]Respondent’s Outline of Submissions filed 5 May 2017, page 102.
I find the Builder is to pay Mr Gillham $190.25 in respect of this item.
Mr Gillham’s evidence is that the battery and terminals were removed from his generator by cutting the cables during the period when the Builder had control of the site and that he purchased replacements, which is supported by an invoice.[245]
[245]Exhibit 17, ANWG03.
Mr Kernohan accepted, during his oral evidence, that Mr Gillham’s generator was relocated as part of the Contract works. He was unable to explain why the battery and terminals had been removed.
I accept that it is more likely than not that the failure to ensure the battery was attached to the relocated generator is incomplete work. During the hearing Mr Harding conceded, on behalf of the Builder, that the amount claimed was fair and reasonable.
Are other amounts owing to Mr Gillham?
Electricity[246]
[246]Respondent’s Outline of Submissions filed 5 May 2017, page 97.
I find the Builder is to pay Mr Gillham $414.73 in respect of this item.
Mr Gillham claims $414.73 for electricity use on the site from the start date to practical completion.[247] The Builder was to reimburse on a pro-rata basis based on meter readings recorded at commencement and completion.
[247]Special Condition SC12.
In his oral evidence Mr Kernohan conceded he had not re-imbursed Mr Gillham for electricity used. His evidence was that prior to receipt of Mr Gillham’s statement filed 9 March 2017[248] he had not been provided with details of the electricity usage. There was no dispute as to the amount claimed.
[248]Exhibit 17.
Interest
I find the Builder is to pay Mr Gillham $9,810.71 interest calculated to 14 June 2019.
Mr Gillham claims interest on his claims at 10% per annum[249] from the date they became payable as follows:
(a)from 10 June 2015 in respect of Items 1 to 67, 70, 73, 75, 76 and for electricity usages and the battery and cables for generator item;[250]
(b)from 4 December 2015 on liquidated damages;
(c)from 1 April 2016 on actual damages.
[249]Queensland Building and Construction Commission Regulation 2003 (Qld), section 34B.
[250]As found in Table 4 of Mr Gillham’s written submissions filed 05 May 2017.
The claim for interest from 10 June 2015 appears to be made on the basis that it was the original Date for Practical Completion Stage under the Contract. I am not satisfied that Mr Gillham’s damages became payable on the original Date for Practical Completion. Mr Gillham’s damages are due for payment as a consequence of the determination of his damages claim by the Tribunal. Unless there is evidence before me that he has expended money I am not satisfied that interest should accrue from an earlier time. I accept that interest at 10% per annum is applicable.
There is evidence before me that Mr Gillham paid amounts in respect of the following Scott schedule items:
(a)5 – Fondis unit - $3,659;
(b)8 – Wine racks - $3,784;
(c)49 – Door stop - $22.60;
(d)51&52 – Tiles - $228.48;
(e)70 – Manholes - $190.37;
(f)Battery & cables - $190.25;
(g)Electricity - $414.73.
Of these items, items to the value of $7,694.08 were paid for by Mr Gillham prior to the Builder claiming Practical Completion.[251] These claims were detailed in the statement filed 27 June 2016.[252] I am not satisfied that these amounts could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for these items. In these circumstances, I find that interest accrues on and from 28 June 2016 at 10% per annum or $2.11 per day. On my calculation interest is payable for a period of 1082 days to 14 June 2019 and that interest payable is $2,283.02.
[251]Scott schedule items 5, 8, 49, 51, 52.
[252]Exhibit 15.
The evidence is that Mr Gillham arranged for another contractor to install a second manhole on or about 6 May 2016. The claim was included in the statement filed 27 June 2016.[253] I am not satisfied that this amount could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for this item. I find that interest accrues on $190.37 from on and from 28 June 2016 at 10% per annum or $0.05 per day. On my calculation interest is payable for a period of 1082 days to 14 June 2019 and that interest payable is $54.10.
[253]Exhibit 15.
The evidence is that Mr Gillham arranged for a contractor to rectify the damage to the battery and generator on or about 25 January 2017. The claim was included in the statement filed 9 March 2017.[254] I am not satisfied that this amount could be said to have been payable on 10 June 2015. The submissions do not draw to my attention an earlier specific demand for payment for this item. I find that interest accrues on $190.25 from on and from 10 March 2017 at 10% per annum or $0.05 per day. On my calculation interest is payable for a period of 827 days to 14 June 2019 and that interest payable is $41.35
[254]Exhibit 17
The evidence is that Mr Gillham did not request payment of any amount for electricity until it was included in the statement filed 9 March 2017.[255] I find that interest on $414.73 accrues on and from 10 March 2017 at 10% per annum or $0.11 per day. On my calculation interest is payable for a period of 827 days to 14 June 2019 and that interest payable is $90.97.
[255]Ibid.
I find interest accrues on the sum of $20,800 for liquidated damages payable at the time of Mr Gillham taking possession. Interest accrues from on and from 5 December 2015 at 10% per annum or $5.70 per day. On my calculation interest is payable for a period of 1288 days to 14 June 2019 and that interest payable is $7,341.60.
Summary of claims allowed
The amount payable is calculated as follows:
Contract Price (incl GST)
$675,451.84
Less amount paid
Claim 1
Claim 2
Claim 3
Claim 4b
Claim 5
$ 44,939.07
$170,458.70
$ 46,803.73
$192,238.20
$133,973.25
$588,412.95
Sub –total
$ 87,038.89
Plus Provisional Sum adjustments and agreed variations /amounts to be allowed in calculation of Mr Gillham’s damages
VA01
VA02
VA03
VA04
VA05
VA06
VA07
VA09
VA10
VA11
VA12
VA14
VA16
VA18
VA19
VA20
VA21
VA22
VA29
Provisional Sum – Tiling labour remaining unclaimed
Less variation amount to be refunded
$ 10,773.84
$ 5,431.69
$ 497.31
$ 1,258.40
$ 8,315.45
$ 601.37
$ 324.28
$ 2,262.70
$ 7,502.00
$ 1,560.90
$ 726.00
-
$ 580.80
$ 889.35
$ 681.47
($33,000.00)
$ 467.50
($11,000.00)
$ 1,140.30
($ 8,684.50)
($ 302.50)
($ 8,715.24)
Sub-total
$78,323.65
Less damages including costs of rectification of defective and incomplete work
Scott schedule 2
Scott schedule 3
Scott schedule 4
Scott schedule 5
Scott schedule 6
Scott schedule 7
Scott schedule 8
Scott schedule 10
Scott schedule 11 & 20
Scott schedule 12
Scott schedule 13
Scott schedule 14
Scott schedule 15
Scott schedule 16
Scott schedule 17 & 18
Scott schedule 19
Scott schedule 21
Scott schedule 23
Scott schedule 25
Scott schedule 26
Scott schedule 27
Scott schedule 28
Scott schedule 29
Scott schedule 32
Scott schedule 33
Scott schedule 34
Scott schedule 35
Scott schedule 36
Scott schedule 37
Scott schedule 40
Scott schedule 41
Scott schedule 42
Scott schedule 43
Scott schedule 46
Scott schedule 47
Scott schedule 48
Scott schedule 49
Scott schedule 50 & 60
Scott schedule 51 & 52
Scott schedule 53
Scott schedule 54
Scott schedule 55
Scott schedule 56
Scott schedule 57
Scott schedule 58
Scott schedule 59
Scott schedule 62
Scott schedule 64
Scott schedule 67
Scott schedule 70
Scott schedule 73
Scott schedule 76
Crack
Battery/cables
$ 2,223.88
$ 1,998.58
$ 457.97
$ 3,659.00
$ 694.46
$ 448.67
$ 3,784.00
$ 1,524.60
$ 176.64
$ 620.49
$ 16.27
$ 23.23
$ 338.07
$ 532.40
$ 387.74
$ 605.00
$ 131.00
$ 21.53
$ 977.20
$ 82.12
$ 187.21
$ 970.08
$ 2,057.00
$ 646.79
$ 58.13
$ 1,018.28
$ 602.99
$ 363.00
$ 390.59
$ 2,163.25
$ 1,049.19
$ 222.62
$ 434.93
$ 102.54
$ 88.87
$ 88.87
$ 22.60
$ 70.29
$ 228.48
$ 500.00
$ 969.57
$ 302.50
$ 266.20
$ 6,046.78
$ 32.55
$ 34.47
$ 620.51
$ 93.61
$ 801.35
$ 190.37
$ 62.99
$ 68.73
$ 3,025.00
$ 190.25
$ 42,673.44
Sub-total
$ 35,650.21
Less other amounts owing under the Contract Electricity
$ 414.73
Sub-total
$ 35,235.48
Less Liquidated damages
$ 20,800.00
Sub-total
$ 14,435.48
Plus interest owing on Builder’s claims
$ 8,122.79
Sub-total
$ 22,558.27
Less interest owing on Mr Gillham’s claims
$ 9,810.71
Amount owing to the Builder
$ 12,747.56
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