Kramer v JW & Mm Haylock Pty Ltd
[2011] QCAT 296
•28 June 2011
| CITATION: | Ms Anna Kramer and Anor v JW & MM Haylock Pty Ltd [2011] QCAT 296 |
| PARTIES: | Ms Anna Kramer Mr Jan Bakker |
| v | |
| JW & MM Haylock Pty Ltd |
| APPLICATION NUMBER: | BDL236-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 2 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Paul Favell, Member |
| DELIVERED ON: | 28 June 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Money claim for defective building work – claimed incorrect finished level of pool – whether construction in accord with contract – construction of contractual documents L’Estrange v F Graucob Ltd [1934] 2 KB 394 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75; [2004] 219 CLR 165 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self representation assisted by Mr Jensen & Co Solicitors |
| RESPONDENT: | Mr J W Haylock of JW and MM Haylock Pty Ltd |
REASONS FOR DECISION
The applicants Jan Bakker and his partner Anna Kramer moved to Australia in August 2004 and March 2005 from Holland and purchased a block of land at Lot 112 (10 Barton Street) Reedy Creek, Queensland. They intended to build a house and lap pool on the site. They had house plans prepared and showed those plans to Glen Reeman, a sales representative of the respondent JM and MM Haylock Pty Ltd trading as Burleigh Pools for the purpose of discussing construction of a pool of the site.
On about 8 August 2007 Burleigh Pools provided a quote of $24,890 for the construction of a pool (Exhibit 3 Page 15). A preliminary agreement was signed by the parties on 1 September 2007 (Exhibit 3 Page 47 – 48).
On 1 September 2007 a Swimming Pool and Spa Association of Queensland Inc (SPASA) Domestic Contract Swimming or Spa Pool Contract No 01109 was signed by the parties (exhibit 3 Page 16-37).
In the General Specifications of the contract the following appeared:
“Datum Point (a fixed reference point used to set the height of the finished coping level of the pool). Datum points must be shown on the Plan and Section (p10):
Described as: Rear Patio
Max Height of Pool ‘Out of Ground’ 00mm
(Finished) Coping:
width: 300mm.
nominal thickness: 8mm
outside vertical edge: 150mm
Top of finished coping to be level with, or 00mm above/below the Datum Point.”
The type of coping was described as “600 x 300 Porcelain Tile” and the interior Finish was described as “150 mm Waterline Tile and 2.3mm White Pebble”.
Page 10 of the contract contained a plan and section of the pool and site but did not show a datum point.
The schedule in the contract described “other documents attached to and forming part of the contract” as including:
a.“other Plans, prepared by HelTech Industries dated 13.02.07” and;
b.“other documents prepared by Burleigh Pools dated 1/9/07”.
Construction of the pool commenced and a concrete pool shell was constructed. Before the construction proceeded further the applicants contended that the pool was built to an incorrect level and eventually terminated the contract on 23 November 2007 and had the pool shell removed from site in August 2008.
The applicants claim that the respondent failed to carry out the works in an appropriate and skilful way, with reasonable care and skill in accordance with the plans and specifications and any other contract document described in the schedule and in accordance with all other laws and legal requirements particularised as:
“(i) The height of the pool on three sides had not allowed for the height to be the same as the patio height. The pool has been constructed on three sides at least 50cm below the datum point.
(ii) The coping exceeds 30cm.
(iii) the pool size in accordance with the contract was 9.1m x 2.5m – it has actually been constructed to a measurement of 8.9m x 2.45 m.”
The Applicants claim $21,400.05, made up of money paid to the respondent, $17,421.00 and moneys paid to have the pool removed, $3,983.05.
The respondent claims that the pool was constructed in accord with the contract and the drawings provided under the contract. It says, the construction, before it was stopped was the construction of the pool shell and was not a construction of the pool to the finished levels which were required by the contract.
In this matter it is necessary to determine what was required by the contract. That is, what level was the pool required to be constructed?
The construction of the pool was to be carried out on a clean site, which subsequently had a retaining wall constructed prior to the pool being commenced. There was, however, no house construction commenced.
The applicants contend that the contractual documents consisted of the general conditions of the SPASA contract, the schedule thereto completed and signed by the parties, the specifications and foundation data prepared by HelTech Industries and plans prepared by the respondent.
The respondent contends that the contract consisted of the first three documents referred to above, but not any plans which were the architectural drawings for the house. During the course of the hearing the applicants seemed to contend that architectural drawings also made up the contract.
In my view, the contract was the domestic contract Swimming or Spa Pool Contract Number 01109 together with the schedule, General Specifications and the plans prepared by HelTech Industries dated the 13/02/07.
The plans created by HelTech Industries contained a construction detail in Sheet 4 of 7 on the left hand corner described as Section A-A. It showed a slab of the house with one side of the pool to be constructed so that it would be immediately under the edge of the house slab and be out of the wall of the house.
Mr Bakker and Ms Kramer claim the datum point is described as “Rear Patio”. That is undoubtedly correct. They also contended, “The top of the rear patio at the pool edge was to be 115mm (85mm step plus 30mm fall) below the top of the adjacent house slab.”
The finished height of the pool is a critical issue in this application.
Ms Kramer’s evidence was to the effect that Mr Reeman from Burleigh Pools told her that she had to sign a mark out form so that Burleigh Pools would be sure that the pool was built on the right property and on the right spot. She had a conversation with Mr White of Burleigh Pools in which she agreed that the position of the pool on the site was correct (exhibit 3). She was not familiar with the term “datum point”.
It was a term of the contract that at the commencement of construction the customer (Mr Bakker and Ms Kramer) should attend the site with the contractor to ensure that the work was commenced in the customer’s preferred location. Clause 6 of the contract dealt with identification of the site. Page 10 of the contract did not show a datum point on the plan and section.
Sheet 4 of 7 of the Heltech plans dated 13 February 2007 attached to the contract in section A-A shows the edge of the pool under the floor slab to be 320mm, plus the depth of a flexible sealant to the pool manufacturer’s requirements, from the top side of the floor slab.
A “Completion of pool markout” form was completed on 10 October 2007 and signed by Ms Kramer, and the builder. It contains the following:
“Datum Point Given by builder 320 Below RL
(360 Below for shell)”.
A letter from Arcuri Lawyers to Burleigh Pools dated 14 November 2007 asserted:
“The pool was not constructed in accordance with plans and engineer’s specifications in that, amongst other things:
(i)The height of the pool on three sides had not allowed for the height to be the same as the patio height in accordance with the plans and specifications (we understand approximately half a metre is involved and the pool has been constructed on three sides one half metre too low);
(ii)The coping exceeds 30cms;
(iii)The pool size as per the contract was 9.1m x 2.5m – it has actually been constructed to a measurement of 8.9m by 2.45m.”
The letter further asserted that, “as a result of the pool not being constructed in accordance with the specifications and contract, the construction of the house property could not be commenced”.
In response to that letter Burleigh Pools contended: “The pool was sold and contracted to be 175mm below the house slab height on 3 sides with the 4th side, the house side, to be 75mm below this. These measurements were changed on site by the supervisor on the day “Hayden” and the surveyor to be 260mm below the nail on the block wall.
That contention is evidenced in the “completion of pool markout” form.
Exhibit 7 is a photo of a nail mark of the RL on the block wall which the evidence disclosed was the point to be used as a datum point for the pool.
I am satisfied from the evidence and particularly the evidence of Trevor White and exhibit 11 that the finish of the pool height was to be 360mm below the pin on the wall. I am also satisfied that pool shell was built so that the finish of the pool would meet that requirement.
The depth of the flexible sealant between the bottom of the floor slab up to the top of the pool wall under the slab was to be 40mm. When added to 320mm the top of the pool wall under was meant to be 360 under the top of the house slab.
The applicants submit that it was an express term of the contract that the top of the finished coping (approx. water level) would be level with the datum point which was the rear patio. That submission relies upon the datum point being the “rear patio”.
“Rear patio” is the description of datum point in the general specifications in the contract. Those general specifications require the top of the finished coping to be level with the datum point.
I do not accept that the top of the finished coping is approximately the water level of the pool. Section A-A of page 4 of 7 of the plans referred to herein shows the water level of the pool lower than the level of the bottom of the flexible sealant between the bottom of the house slab and the side of the pool under the house. The maximum depth of the pool is shown to be 1,500 and level with the underside of the flexible sealant, that is, 360mm below the height of the top of the floor slab.
Sheet 5 of 7 of the Heltech plans under the caption “Footing and Patio Slab – Control joint details” shows a patio slab level with “Swimming pool septic tank or similar excavation”. The level of the top of the patio slab is shown as below the top of the lounge room slab. In my view that diagram is of little assistance in determining the level of the top of the pool. The patio is not beside the pool. Rather it is to the North East of the lounge area. The lounge area is adjacent to the pool. In my view that diagram shows that there is to be a minimum distance of 3,000 between the footing for the patio roof pole and any swimming pool, septic tank or similar excavation.
In my view the datum point was set in by a written variation, namely the “completion of pool markout document” such that it was 320 below RL (360 below for shell). The RL (reduced level) was set by the nail mark in the block wall as 94 which was the finished floor level.
The contract required the top of the finished coping to be level with the datum point.
The section A-A is consistent with the written requirement that there be a 150mm waterline. That requires the finished coping to be at least 150mm above the waterline.
The level readings by Mr Wolbers have the top of the shell pool level as RL 9030 (p. 90 of the applicants material) which he says is 370mm below the designed finished floor level.
Given that RL 9030 is the level of the shell not the finished pool level, in my view, the pool could have been finished to the level required by the contract as I have set out above.
I do not accept the submission made by the applicant that there is “a clear specification providing for the top of finished coping (water height) to be level with the rear patio (datum point) and the waterline tile at 150mm and this specification takes precedence over slab design plans”. That is because the specification does not provide for the top of the finished coping to be water height. The specification described the “datum point” as “rear patio”. The plans included on the contract as part of the contract showed heights for the waterline and the minimum height of the pool finish (above the water height) by reference to the finished floor level in the lounge area of the house. The datum point was varied in writing so that it was RL 94, the finished floor level from which the height of the finished coping level of the pool could be set.
In my view, the construction of the pool shell is consistent with the proper interpretation of the contract with the variation referred to above.
The applicant argued that the completion of pool markout form is not a contractual document and is in the nature of an internal administrative form. It was submitted that the rule in L’Estrange v F GraucobLtd [1934] 2 KB 394 should be applied.
The principle in L’Estrange is that, normally, a party who has signed a written agreement is bound by its terms whether or not, absent fraud, that party had read the agreement or knew of its terms. (See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2003] NSWCA 75.)
That principle was approved by the High Court in Toll and stated as, “where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms and to affect legal relations is bound by those terms and it is immaterial that the person has not read the document” ((2004) 219 CLR 165).
The principle is not breached here. The contract can be varied. Clause 11 allows for variations.
The applicants argue that the form is not a variation because it is non-contractual and does not follow the requirements of clause 11 in that it does not describe the variation and any work to be carried out and it does not give a reason for the variation.
The effect of the completion of pool markout form confirms that “the shape, position and height of the pool is correct”. It is entirely consistent with section A-A in the Heltech Plans sheet 4 of 7 and clarifies the contractual obligations where there was a conflict in the plan section A-A and the description of “Datum Point” in the general specifications.
The circumstances in this case are such that unless there was a RL datum point provided there could be no practical height determined because the house structure, the finished floor level and the patio were yet to be constructed. The contract does not set any specific RL.
A proper interpretation of clause 6 requires the customer to identify the location of the works. To identify the location of the works requires not only identification of the position of the pool on the level site but also identification of the finished height of the pool. Here that identification could not be ascertained by the reference to the content of the contract.
In the absence of the constructed building a datum point identified by an RL was required. The provision of that RL was by the completion of the markout form.
The provision of a RL was necessary to set the height of the top of the finished coping level of the pool (the wording used to describe Datum Point under the General Specifications portion of the contract) where the rear patio had not been constructed.
The provision of the RL by the pool markout form was more than an internal administrative form, it was essential to set the height of the top of the finished coping level of the pool.
There does not appear to be a measurement indicating the height of the top of the patio slab but the drawing showing the patio slab in relation to the interior floor slab in drawing sheet 5 of 7 shows the patio slab on a slope with the join at the house slab being between 100-150mm approximately.
If the RL of the finished level of the house slab was 94, the top of the patio slab was meant to be approximately 92.50 – 93.00. Given the evidence that the top of the pool shell was 90.30, the finished level could have been made level with the patio level.
I am satisfied that the construction of the pool shell was such that it was capable of being finished to either the finished coping level of the RL 90.80 or RL 92.5-93.00. Although the email from Mr. Walker asserts the “finished pool surround should be 93.800” (p. 90 of the applicants’ evidence), that assertion is not explained and does not seem consistent with the evidence. It may have been taken from architectural drawings but those drawings did not form part of the contract.
I am satisfied that the finished pool could be completed so that it complied with a datum level said to be “Rear Patio” or RL 94.
The datum point is not the height of the top of the finished coping level of the pool. It is a reference point to be used to set the height of the top of the finished coping level of the pool.
The evidence shows that there may be a difference of 100-150mm if the datum point is RL 94 or “Rear Patio”.
That difference, however, does not matter because even if the datum point is “Rear Patio”, the only mechanism for determining the finished coping level of the pool is provided for in the plans which form part of the contract. Using those plans and in particular Section A-A on sheet 4 of 7 and the control joint details on sheet 5 of 7, whatever is correctly described as the “Datum Point”, the finished coping level of the pool on a proper construction of the contract is the level shown in Section A-A on sheet 4 of 7, that is, 360mm below the finished level of the final finished level of the house slab or between 210-250mm below the “Rear Patio”.
The words “320 Below RL (360 below far shell)” in the “completion of pool markout” document are not words which provide the datum point or a description of the datum point. They are words which describe the height of the finished level of the pool coping and the pool shell and are a correct interpretation of Section A-A in sheet 4 of 7.
The “completion of pool markout” document indicates that the datum point is given by the builder. The builder gave the datum point by giving a RL for the finished floor level as 94. From there the datum point could be worked out.
Because of the reasons given herein, the applicants were not entitled to terminate the contract. The claim by the applicants is dismissed.