Kramer v JW & Mm Haylock Pty Ltd - [2011] QCAT 296

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] QCAT 296
Decision Date: 28 June 2011

CaseChat Overview and Summary

The case of Kramer v JW & Mm Haylock Pty Ltd was heard by the Supreme Court of Queensland. The plaintiff, Kramer, sought to recover damages for alleged defective building work in relation to a pool constructed by the defendants, JW & Mm Haylock Pty Ltd. The primary contention was that the pool's finished level was incorrect, which led to dissatisfaction and potential safety concerns. The court was tasked with determining whether the construction adhered to the terms of the contract and interpreting the relevant contractual documents to resolve the dispute.

The legal issues before the court centred on the interpretation of the contract between the parties and the extent to which the construction work complied with the agreed specifications. Specifically, the court needed to assess whether the defendants had met their obligations under the contract and whether the plaintiff's claims regarding the pool's finished level were substantiated. The construction of the contractual documents and the identification of the precise obligations of each party were crucial in reaching a decision.

The Supreme Court meticulously examined the contractual documents to determine the scope of work and the standards to which the defendants were required to adhere. It was found that the defendants had fulfilled their contractual obligations as per the agreed specifications and that the plaintiff's claims regarding the pool's finished level were not supported by the evidence presented. Consequently, the court dismissed the application, finding that the defendants had met their contractual obligations and that the plaintiff's claims were unfounded.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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