Kerry Watson Homes Pty Ltd v Hervey Bay Roofing Fascia & Gutter Pty Ltd
[2011] QCAT 406
•24 August 2011
| CITATION: | Kerry Watson Homes Pty Ltd v Hervey Bay Roofing Fascia & Gutter Pty Ltd [2011] QCAT 406 |
| PARTIES: | Kerry Watson Homes Pty Ltd |
| v | |
| Hervey Bay Roofing Fascia & Gutter Pty Ltd |
| APPLICATION NUMBER: | BDL269-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | Part heard 14 February 2011 |
| HEARD AT: | Part heard at Gladstone / Final hearing on the papers |
| DECISION OF: | Ms Philippa Beckinsale, Member |
| DELIVERED ON: | 24 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent pay the Applicant the sum of four thousand eight hundred and thirty dollars and fifty cents ($4,830.50). |
| CATCHWORDS: | Domestic building dispute heard in the absence of the Respondent – part heard with directions for filing further material in relation to costs – final hearing on the papers |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Kerry Watson Homes Pty Ltd represented by Mr Kerry Watson |
| RESPONDENT: | No appearance |
REASONS FOR DECISION
This matter proceeded to hearing in Gladstone on 14 February 2011. It is an application for the restitution of costs incurred by the Applicant in rectifying defective building work by the Respondent and repairing damage resulting from the defective work. The Applicant also seeks costs of the QCAT application.
An Affidavit of Service of the Application on the Respondent was filed by the Applicant on 6 September 2010. No Response was filed. Nor did the Respondent file material by 22 November 2010 as directed at a directions hearing on 17 November 2010 and accordingly the matter proceeded directly to hearing. A Notice of Hearing was forwarded to the Respondent on 20 January 2011.
Mr Kerry Steven Watson, who is the proprietor and managing director of the applicant company, appeared for the Applicant. There was no appearance for the Respondent.
At the hearing the documents relied on by the Applicant were:
· Application filed 25 August 2010 with attached Alleged Defective Work/Incomplete Work Schedule
· Witness Statement of Robert Eric Schmidt dated 8.12.10
· Invoices to the Applicant as follows:
From BC & DJ Richards Plasterers
·Dated 22.2.09 for $75.00
·Dated 3.7.09 for $55.00
From Alan Boyd Painting and Decorating
·Dated 23.2.09 for $220.00
·Dated 6.7.09 for $220.00.
The Applicant had also raised invoices dated 26.8.10 to the Respondent for the Applicant carrying out repairs in the sum of $385.00.
Additionally, the Applicant raised an invoice to the Respondent for the costs of the Applicant’s QCAT application for $479.00 dated 27 August 2010. The Tribunal will treat this as an application for costs.
Mr Watson gave oral evidence at the hearing as follows.
The applicant company built a home for Mr Schmidt at 11 Johnson Street, Gladstone, which was completed in 2008. The Respondent was subcontracted by the Applicant to install the home’s roof, fascia, guttering, battens and insulation.
The owner moved in and after a period of rainfall, contacted Mr Watson to advise that water was getting into the ceiling of the home’s garage. A site meeting, or meetings, were arranged with Mr Rex Abberton who worked for the Respondent. Mr Watson said after that, Mr Abberton telephoned him to advise he’d fixed the problem so Mr Watson went ahead with repairing the damage caused by the water running from the ceiling down the wall of the garage.
[10] The problem, after rainfall, reoccurred. It was arranged that Mr Abberton came again. Mr Watson recollected that there was quite a delay before further repairs were effected.
[11] After further rainfall, water re-entered the garage roof. Someone else employed by the Respondent, whose name is not known by Mr Watson, came and looked and said what needed to be fixed and suggested the Applicant carry out the work or have someone else carry out the work. At that time Mr Watson’s preference was that the Respondent carry out the work. He stated that the Respondent had been contracted to do the roofing, fascia, guttering, battens and roof insulation at a cost of $24,000-$28,000 and sought that the Respondent fix the defective roof and pay the costs of repairs to paint and plaster required due to the water getting in.
[12] Mr Schmidt also gave oral evidence. His recollection of events is set out in his statement dated 8 December 2010. Mr. Schmidt outlined that he believed Mr Abberton’s first attempt to repair the leak involved “pumping in silicon”. On the second attempt he says Mr Abberton pulled part of the roof sheeting off and carried out modifications which he is unable to detail.
[13] Mr Schmidt says that another tradesman employed by the Respondent, whose name he also does not know, came in May 2009 as Mr Abberton was by then no longer working for the Respondent. Mr Schmidt says in his statement: “He carried out a comprehensive inspection and advised that the roofing had not been done correctly in the first place. He drew me diagrams and explained how it should have been done, but didn’t do any work to fix the problem.” Mr Schmidt confirmed to date no one has since attended to fix his roof.
[14] Mr Watson, for the Applicant, at the hearing originally took the approach that the Respondent should be ordered to carry out the necessary rectification work to fix the leaking roof, pay costs incurred to date of carrying out repairs to paint and plaster work and the Applicant’s costs of the application. He had not, therefore, quantified the cost of rectification. Once informed that this tribunal cannot enforce an order for rectification Mr Watson said he would either obtain quotes to have repairs carried out or have the repairs carried out. Accordingly directions were made that the Applicant file material in relation to the cost of rectification by 28 March 2011 with the Respondent to file any such material by 2 May 2011. The hearing was adjourned part heard pending receipt of this further material with final determination to be on the papers unless otherwise requested.
[15] The Applicant has filed a letter dated 23 March 2011 which states, in part, “we would like to claim recompense for the costs to rectify the faulty roofing at 11 Johnson Street, Gladstone…please find enclosed … copies of supplier tax invoices pertaining to said repairs”. These are as follows:
· Invoice from Alan Boyd Painter and Decorator in the sum of $308.00 for “Painting to water damaged ceiling. Repaint complete garage ceiling. Bleed seal water damage then all 2 coats ceiling flat.”
· Invoice from BC & DJ Richards Plasterers in the sum of $350.00 for “Repairs to water damaged ceiling. Supply and fit cornice. Materials supplied: plastering compounds, cornice.”
· Invoice from Darrin Watson Roofing Contractor in the sum of $2117.50 for “Remove portico roof. Measure flashings and box gutter required to fix leak. Re-install portico roof. Supply and fit new corrugated sheet, box gutter and spill over flashing. Price includes compriband and silicone.”
· Invoice from Regen Dunn Contracting in the sum of $275.00 for “Labour to fix roof.”
[16] No material was received from the Respondent.
[17] The tribunal is satisfied that the Respondent was contracted by the Applicant to install the roof, fascia, guttering, battens and roof insulation to a dwelling built by the Applicant at 11 Johnson Street, Gladstone.
[18] The tribunal accepts the Applicant’s evidence, provided by Mr Watson and Mr Schmidt, that after periods of rainfall, water entered the roof of the dwelling damaging the ceiling and walls of the garage.
[19] The tribunal accepts the Applicant’s evidence that the Respondent’s agent, Mr Abberton, attempted to rectify the defect to the roof, that is, water entering the roof, on two occasions and that after each occasion, the Applicant caused repairs to be effected to the ceiling, cornice and walls of the garage.
[20] In the tribunal’s view it was reasonable that repairs be effected on these occasions as the expectation was that the roof had been rectified so that rain would be prevented from entering.
[21] The total costs of these repairs detailed in paragraph 4 above, including the Applicant’s own costs in the sum of $385.00, is $955.00.
[22] The tribunal accepts the Applicant’s evidence that further attempts to have the Respondent rectify the defective roof after rain continued to enter have been unsuccessful.
[23] The tribunal considers it reasonable for the Applicant to have carried out the rectification of the apparently defective roof to prevent the future ingress of rain and to have repaired the damaged ceiling, cornice and wall.
[24] Evidence has not been provided as to specifically what was defective in the roof constructed by the Respondent but the invoice provided by the Applicant from Darrin Watson Roofing Contractors sets out the work done by that business and in the absence of any evidence from the Respondent the tribunal considers the work paid for by the Applicant was necessary and the costs reasonable.
[25] Accordingly the tribunal allows the further costs of the invoices sent with the letter dated 23 March 2011 which total $3,620.50.
[26] The Applicant, as noted, has provided an invoice for the Applicant’s costs of its application to QCAT which the tribunal will treat as an application for costs.
[27] The starting position in relation to costs, as provided for by section 100 of the Queensland Civil and Administrative Act 2009, as amended, is that each party usually bears the party’s own costs. Section 102 of the act provides that a party may be required to pay all or a stated part of the costs in a proceeding if the tribunal considers such order to be in the interests of justice.
[28] The tribunal considers it is in the interests of justice that the Respondent pay the filing fee in the sum of $255.00 paid by the Applicant but will not make an order for payment of further costs.
[29] The amounts which the tribunal will order the Respondent to pay are the sum of $955.00 paid for repairs after the Respondent’s agent purportedly fixed the roof, the sum of $3,620.50 paid for alterations to the roof and further repairs and the filing fee in the sum of $255.00, a total of $4,830.50. Accordingly the tribunal orders the Respondent pay to the Applicant the sum of four thousand, eight hundred and thirty dollars and fifty cents.
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