Kingwill v Maxicorp Pty Ltd
[2013] QCAT 417
| CITATION: | Kingwill v Maxicorp Pty Ltd [2013] QCAT 417 |
| PARTIES: | Richard Brandon Kingwill and Kerry Kingwill (Applicants) |
| v | |
| Maxicorp Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL213-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 20 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Maxicorp Pty Ltd is to pay Richard Brandon Kingwill and Kerry Kingwill the sum of $500 by 4pm 27 August 2013. 2. Each of the parties are to file in the Tribunal a copy and provide a copy to the other party of any submissions: a) on costs generally setting out the legal basis and details of any amounts claimed on or before 4pm on 17 September 2013; and b) in reply to such written submissions on or before 4pm on 1 October 2013. 3. Unless any party requests an oral hearing in relation to any application for costs such application shall be determined on the papers not before 1 October, 2013. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – owners claim that the house was not built in accordance with the contract – owners claim the builder was negligent Domestic Building Contracts Act 2000 (Qld) Part 7 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Richard Brandon Kingwill and Kerry Kingwill represented by Richard Brandon Kingwill |
| RESPONDENT: | Maxicorp Pty Ltd represented by Simeon Marshall, director |
REASONS FOR DECISION
Mr and Mrs Kingwill entered into a contract with Maxicorp, a building contractor for the construction of a house at Cashmere. The contract is dated 11 February 2011. They claim that the house was not built in accordance with the contract in a number of respects and that Maxicorp was negligent. Mr and Mrs Kingwill claim damages and costs in the sum of $265, being the filing fee. Maxicorp denies liability and seeks its costs. As the applicants they are required to prove their claims on the balance of probabilities.
Garage Floor - $11,660
Mr and Mrs Kingwill claim that the garage floor is uneven, contrary to the plans, which form part of the contract. Mr and Mrs Kingwill rely upon the fact that the plans do not depict a sloping surface. The amount claimed comprises the cost of rectifying the surface in the sum of $9,300 and the cost of removal, storage and return of the goods in the garage in the sum of $2,330.
Mr Kingwill contends that part of the area is a workshop, he wants to set up various pieces of equipment and the slope will cause issues of instability. Maxicorp does not dispute that the garage floor as constructed is slightly sloped away from the walls and in the area between the 2 garage doors.
I am not satisfied that Mr and Mrs Kingwill have established that the garage floor is not constructed in accordance with the contract.
Mr and Mrs Kingwill have not provided any evidence in support of a contention that the floor creates safety hazards. Nor have they provided any expert evidence of the manner in which such a slope ought to have been depicted on the plans.
Maxicorp has lead evidence from a number of persons including industry professionals that this mode of construction is not uncommon in the industry and is designed to enhance drainage of water which minimises safety hazards in the form of ponding and slips and trips on wet surfaces.
It is not disputed that the floor as constructed complies with the Building Code of Australia. It is not disputed that the contract does not expressly provide that the garage floor is to be level.
Mr Marshall, who, I accept, has significant experience in the building industry:
a)does not deny that the plans do not indicate the as constructed slope;
b)gave evidence that there is no symbolic way of showing the sloping;
c)gave evidence that the costs of the rectification are unreasonable where the floor complies with the Building Code of Australia and that the workshop equipment could be stabilised by the use of levelling jacks.
Tiling - $4,247
Mr and Mrs Kingwill claim that the above vanity tile grouting and shower tile grouting lines are not in alignment as shown in the Wet Area Details drawings and claim that the tiles above the vanities should be removed and replaced and that the cost of doing so is $4,247 based upon a quote received from Maxicorp.
Mr Kingwill contends that the word “indicative” on the drawing means “pointing out” and that as the tiles were not laid as indicated on the drawings the work was not done in accordance with the contract.
I am not satisfied that the word “indicative” can be elevated to a contractual promise to only lay tiles in the manner depicted by the drawing particularly when:
a)the note states “all tile layouts are indicative only”. The interpretation contended for by Mr and Mrs Kingwill would make the word “only” after “indicative” meaningless;
b)there is an additional note on the drawings which states “builder to ensure wall tile grout lines align with floor tile grout lines”. The note in relation to tile layouts is readily distinguishable from this note. If the alignment of other tile grout lines was contractually required it could have been similarly specified;
c)there is no other express requirement in the contract or in the Building Code of Australia to align the tiles;
d)different sized tiles were requested by Mr and Mrs Kingwill to those represented in the elevation;
e)a vanity of a different height and length was requested by Mr and Mrs Kingwill to that represented in the elevation.
Ceiling Lights and Fan - $1,485
Mr and Mrs Kingwill claim that the ceiling lights and the fan have not been installed in the locations shown on the plans and that the cost of moving them and repairing the ceiling will cost $1,485 in accordance with a quote received.
I find that the ceiling lights and the fan have not been installed in the locations shown on the plans and that the reasonable cost of rectification is $500.
Maxicorp contends that the structural members in the ceiling space some times require the lights and ceiling fans to be located other than strictly in accordance with the plan. The subcontractor asserted that the down lights were spaced evenly away from the timber trusses to avoid a fire hazard and the ceiling fan was installed in the centre of the down lights.
Mr Kingwill gave evidence that:
a)the subcontractor had incorrectly identified that there were 4 down lights when there were in fact 2;
b)he had inspected the roof cavity and the structural members do not interfere with the placement.
I accept Mr Kingwill’s evidence which is based on a recent inspection rather than a generic observation or the recollection of a subcontractor who had not been at the premises for some time.
Based on his inspection Mr Kingwill conceded that it would only be necessary to move one light rather than both as per the quote and therefore the rectification costs would be less than claimed.
Mr Marshall gave evidence that the cost of rectification was excessive and that a reasonable cost to rectify would be in the order of $500.
In the absence of evidence of costs of rectification as now proposed by Mr Kingwill I accept the evidence of Mr Marshall.
Faulty Plumbing Work - $350
Mr and Mrs Kingwill claim that Maxicorp is responsible for the loss of approximately 41,000 litres of water from their water tank due to its negligence. During the course of the hearing Mr Kingwill amended the amount of this claim as he conceded that the cost of 41,000 litres was $350.
I am not satisfied that Maxicorp is responsible for the loss of water from the tank.
There is little evidence in relations to this item. Mr Kingwill gave evidence that:
a)they purchased 66,000 litres of water to fill the tank;
b)on 22 October 2011 he attended site and found the pump on and observed that the tank was nearly down to its fire fighting reserve level of 25,000 litres; and
c)they purchased 24,000 litres of replacement water.
Mr Kingwill claims that the water pump was left on by Maxicorp and that some pipe work was damaged by Maxicorp causing loss of water from the tank. Mr Kingwill acknowledged that he made these assumptions. Whilst it is possible that the assumptions are correct there is no corroborating evidence or admissions as to who caused damage to the pipe work and in what circumstances or as to who left the pump on. There is insufficient evidence to make a positive finding against Maxicorp.
Slab Level - $335
Mr and Mrs Kingwill claim that the slab level was not within required tolerances and that they paid $335 to bring the slab into the required tolerance to lay the timber flooring.
I am not satisfied that the claimed tolerances formed part of the contract nor that the tolerances were not met.
Mr Kingwill gave evidence that he:
a)emailed Maxicorp on 10 May 2011[1] enquiring about whether a tolerance requested by their floor covering supplier could be met;
b)was informed orally that the requested tolerance could not be met but that a tolerance of 3mm per 3 m could be achieved;[2]
c)accepted this;[3]
d)did not raise this alleged defect with Maxicorp prior to having the work undertaken due to timing issues;
e)lost the invoice and had not been able to obtain a replacement copy; and
f)had paid cash.
[1] A number of months after the contract was entered into.
[2] The evidence is unclear as to who on behalf of Maxicorp provided this information and whether the representative had authority to bind Maxicorp.
[3] The evidence is unclear as to how Mr Kingwill is said to have conveyed acceptance.
The Contract does not expressly provide that the slab is to have a tolerance of 3mm per 3 m. There is no evidence that this requirement was a variation which was reduced to writing as required by the contract[4] and the Domestic Building Contracts Act 2000 (Qld)[5].
[4] Clause 20.
[5] Part 7.
The slab as constructed was certified to be in accordance with the Building Code of Australia.
Mr Kingwill provided a photograph and gave evidence of measurements he personally took. However no independent evidence was produced by Mr and Mrs Kingwill to independently verify the levels of the slab and Maxicorp was not afforded an opportunity to inspect the alleged defect nor to rectify it.
Silicon - $2,075
Mr and Mrs Kingwill claim that they had verbally requested prior to the brick work being completed that grey silicon be used to more closely match the brickwork. Opaque silicon has been used. Mr Kingwill gave evidence that Denis Whalley, an employee of Maxicorp, agreed to the verbal request. They claim the costs of removing the silicon and replacing it with grey silicon in the sum $2,075 in accordance with a quote received.
I am not satisfied that the terms of the contract were varied to provide for grey silicon.
The terms of the contract does not specify the colour of silicon to be used. It is not disputed that opaque silicon is the domestic building standard. The contract provides a mechanism for owners to request a variation[6]. There is no evidence that Maxicorp agreed to carry out the variation by giving the owner a variation document signed by Maxicorp as required by the contract. I am not satisfied that Mr Whalley had authority to bind Maxicorp in circumstances where the contract provides for variations to be in writing unless the work is required to be performed urgently and where the Domestic Building Contracts Act 2000 (Qld) imposes a similar requirement for written variations.
[6] Clause 20.2.
Outside Lights - $250
Mr and Mrs Kingwill claim $250 as 2 outside lights have not been fitted so that they are in alignment. They contend that one is fitted one brick higher than the other. No photographic evidence was presented. Mr Kingwill gave evidence that:
a)he did not have a quote for the rectification work;
b)he has attended a Beacon Lighting store and has identified replacement light fittings at a cost of $75 each, totalling $150 and that he has estimated that an electrician would charge approximately $100 to fit the lights.
I am not satisfied that Mr and Mrs Kingwill are entitled to any amount for this item.
The contract[7] provides that Maxicorp is required to rectify any defects due to the works not being in accordance with the contract that appear and are notified in writing within 6 calendar months after the date for practical completion. There is no express requirement to rectify such a defect notified after the defects liability period.
[7] Clause 27.1
Mr Kingwill admitted that he notified this matter after the 6 months defect liability period expired. There is no suggestion that the matter could not have been detected before the period expired.
Summary
Maxicorp is to pay Mr and Mrs Kingwill the sum of $500.
Both parties sought orders for costs. It is appropriate to make directions to allow the parties to make submissions, if they wish to do so, as to appropriate orders for costs before making any costs orders.
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