Langham v Peter Anthony Painting & Plastering
[2011] QCAT 80
•3 March 2011
| CITATION: | Langham & Anor v Peter Anthony Painting & Plastering [2011] QCAT 80 |
| PARTIES: | Mr Geoffrey Edwin Langham Ms Diane Sharon Earnshaw-Grice |
| v | |
| Peter Anthony Clarke t/a Peter Anthony Painting & Plastering |
| APPLICATION NUMBER: | BDL032-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15, 16 and 17 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Barry Cotterell, Member |
| DELIVERED ON: | 3 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Tribunal orders that that the Respondent pay the Applicants the sum of $29,489 by 21 March 2011. [2] If the Applicants wish to apply for a costs order, the application and submissions clearly setting out the amounts claimed and why shall be filed and served within 14 days of this order and the application shall be determined on the papers. |
| CATCHWORDS : | Building matter – claim for damages for defective workmanship – painting alleged to be defective – unlicensed contracting Queensland Building Services Authority Act 1991, s 42 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Geoffrey Edwin Langham |
| RESPONDENT: | Peter Anthony Clarke t/a Peter Anthony Painting & Plastering |
REASONS FOR DECISION
This is an Application for damages for rectification in the sum of $65,752 arising out of a painting contract initially for $10,750 but subsequently increased to $19,750 with the addition of further works including items not related to painting at 352 Bayview Street, Hollywell (the property).
BACKGROUND
The Applicants are from New Zealand and have stated that they were not aware of the licencing laws in Queensland relating to painters. The Respondent is from the United Kingdom. At the relevant time the Respondent did not hold a licence as a painter in Queensland. He has subsequently been fined by the Queensland Building Services Authority for unlicenced contracting and advertising by an unlicensed person in February 2009.
The Respondent also did not use the required contract when his quote No 68 of 30 January 2008 was accepted by the Applicants. In fact, he did not convert the quote into a written contract in breach of section 67G of the Queensland Building Services Authority Act 1991 which requires building contracts to be in writing.
The Respondent commenced the work of the initial contract on 4 February 2008 and on 3 March 2008 he gave the Applicants an amended quote No 71 of 3 March 2008. This took the total cost of the job to $19,750. Again the Respondent failed to use the required, or any contract when the Applicants accepted the quote on 5 March 2008.
On 17 May 2008, the Applicants wished to discuss with the Respondent a list of items they considered needed rectifying. At that stage there was still $4,000 owing to the Respondent under the quote of $19,750. Mr Langham requested that the Respondent return the keys to the property which occurred and Mr Langham handed the Respondent an envelope which the Respondent later found to contain $1,000.
The Applicants claim that the Respondent “abandoned” the job on 17 May 2008 whereas the Respondent says he took the advice of his solicitor to stay calm and leave the site. He clearly had the intention of not returning.
The Respondent was not satisfied with the short payment and by invoices 10, 13, 14 and 15 dated 6 June 2008, he claimed $5,820 from the Applicants.
The Respondent then proceeded to try and sue the Applicants in the Magistrates Court. In the Plaint No M2576 of 2008 he attempted to name the male Applicant but instead of LANGHAM he used LANGLEY. This Plaint was unable to be served for obvious reasons but the Respondent has since accused Mr Langham of evading service and the relationship further soured.
Coincidentally on the evening of 6 June 2008 or morning of 7 June 2008, the front fence of the property was graffittied by persons unknown. This was reported to the Police but the culprit has not been identified or apprehended.
[10] Eventually the Magistrates Court became aware that the issues involved more than a small debts claim and because the Court did not have jurisdiction for the other issues the Plaint was dismissed without a bar on the Respondent commencing fresh proceedings in another jurisdiction.
[11] The Applicants then brought these proceedings which they commenced on 15 December 2009 in this Tribunal.
THE HEARING
[12] The hearing went for 2 full days and a short morning. The Applicants’ witnesses were Mr Langham; Ms Earnshaw-Grice; Mr George Englert, who inspected the property on 27 February 2009 and prepared a detailed report for the Master Painters Australia dated 2 March 2009; Mr Christopher Lethlean from Amalgamated Painters who provided the Applicant with a quote for recticification dated 20 May 2010 in the sum of $57,980 plus GST; Mr Neil Gittus from N & M Painting who provided the Applicants with a quote to rectify the painting for $15,950 plus $935 to rectify the driveway dated 20 February 2009; Mr Ian Gregory of Canal Moorings & Salvage who provided a quote to rectify the jetty for $3,756 dated 26 May 2010; Mr Luke Ellis of Beautiful Homes and Gardens who provided a quote to rectify the garden for $1,595 dated 21 May 2010; and Jason Berg of On Top Roof Restoration who provided a quote for $2,354 to rectify the roof dated 21 September 2010.
[13] The Respondent’s witnesses were Mr Clarke, Mr John McGill, a painter who worked at the property with the Respondent for 5 weeks and Mr Terrance McManus, the Respondent’s expert witness who had inspected the property and provided a one page report dated 29 April 2010.
THE EVIDENCE
The Photographic Evidence
[14] Strangely Mr Englert did not take any photographs to attach to his report. The photographs produced to the Tribunal were taken by the Applicants at various times and were provided to the Tribunal as 36 pages with up to 8 photographs per page. However, none of the photographs had captions or dates. On the first day of the hearing, the Tribunal asked the Applicants for the dates of various photographs. Ms Earnshaw-Grice was able to provide the dates of each of the photographs from a print-out of the photograph files from her computer.
[15] At the end of the second day of the hearing when the Respondent entered the witness box he challenged the lack of dates on the photographs and asserted that the dates were not accurate. He also asserted that the dates had been altered. He asserted, for example, that the photographs taken of the unpainted roof tiles were taken during the painting and not after the job was finished. The Tribunal noted that this differed from his previous assertion that the tiles had been replaced after the job was finished. The Applicants undertook to add dates to each of the photographs on the 36 pages overnight.
[16] On the morning of the third day, the Tribunal and the Respondent were given the photographs on the 36 pages with the addition of the date each photograph was taken.
[17] The Tribunal is of the opinion that Ms Earnshaw-Grice who provided the dates the photographs were taken was a reliable witness and notes that she was not cross-examined about the dates of the photographs or challenged that she had altered the dates.
[18] The Tribunal finds that the dates provided by the Applicants in relation to the photographs are accurate and relies upon those photographs and the dates as an accurate representation of what each photograph depicts was in existence on that date.
[19] The Tribunal noted that the existence of the orange roof tiles on the photographs taken by the Applicants on 27 January 2009 was confirmed by the report of Mr Englert of 27 February 2009.
The Roof
[20] The most telling photographs of defective workmanship were those taken of the roof. Mr Englert in his report identified that there was a significant section of the roof on the canal side of the property where the original orange tiles were unpainted. The photographs taken by the Applicants on 27 January 2009 showed this section of 8 tiles wide and 2 tiles high.
[21] The other photographs taken at the same time show, in the opinion of the Tribunal, inadequate paint coverage of the tiles. The Respondent said that he used 2 coats of paint but based on the photographs, the Tribunal finds that only one coat was applied to most of the roof and the original colour shows both through the paint and where it was inadequately applied. Because of the section of the tiles not painted, the Tribunal finds that this work was done defectively and without proper supervision by the Respondent.
[22] The Tribunal notes that the Respondent gave evidence that the roof had been given two coats of paint. The Tribunal accepts the submission of the Applicants that the roof could only have been given one coat as it would be an absurdity to suggest that a square metre section could be missed twice. Therefore, the Tribunal rejects this evidence from the Respondent.
[23] Exhibit 2 shows the roof from a distance in a recent advertisement for sale of the property and it is clear that the roof is quite patchy. Mr Langham stated that he applied a coat of paint over the unpainted tiles and that the other section which stands out is where the Respondent applied the wrong paint and then painted over it with the black paint.
[24] This work clearly requires rectification. The Tribunal finds that the rectification will involve the repainting of the entire roof.
[25] Mr Berg of Top Roof Restoration has provided a quote for $2,354 to carry out this work which the Tribunal finds was carried out by the Respondent who failed to do the work in a professional and satisfactory manner.
[26] The Tribunal notes that the Respondent quoted $3,500 to respray the roof in his quote of 3 March 2008.
The Reports of Mr Englert and Mr McManus
[27] The report of Mr Englert details the defective work carried out by the Respondent. The criticisms in the report were not challenged by the Respondent when Mr Englert was available for cross-examination.
[28] At the hearing, the Respondent said that he had tried to engage Mr Englert to prepare a report but found that Mr Englert had prepared a report for the Applicants. The Respondent engaged Mr McManus in 2010.
[29] Mr Englert’s report was 5 pages including 3 pages of detail. Mr McManus, on the other hand provided only a one page report. The Tribunal accepts the evidence of Mr Englert in preference to that of Mr McManus when their evidence is in conflict.
[30] With regard to the orange tiles on the roof, Mr McManus did not go onto the roof but after sighting the tiles from the jetty gave the opinion that the tiles had been replaced after the job was completed by the Respondent. The Tribunal rejects this explanation on the basis that the painting around the edge of the unpainted tiles clearly shows the painting ceasing erratically and that tiles had not been placed over a properly painted surface.
[31] The Tribunal also rejects the evidence of Mr John McGill and the Respondent in regard to the painting of this section of the roof.
The Remaining Painting Defects
[32] As stated above, the Tribunal accepts the report of Mr Englert and, therefore, finds that the defects he identified require rectification.
[33] The Applicants have provided 2 quotes to do this work. The first quote by N & M Painting was for $15,950 plus $935 for rectification of the driveway and was dated 20 February 2009. Both quotes included GST. Mr Gittus stated at the hearing that this quote need to be adjusted by adding a further $5,000 to rectify the door frames and an additional $4 to 5,000 to replace the doors which he said would be cheaper than rectifying them.
[34] The N & M quote included an unspecified amount to “paint to match where other painters missed approximately 2M²”. Mr Langham has already painted the area where the tiles were missed but on the basis of Exhibit 2 and the Tribunal’s decision above that the whole roof needs to be rectified the N & M quote needs to be reduced to avoid duplicating the damages. Under these circumstances the Tribunal intends to deduct $1,000.
[35] While, at the hearing, it became known that the driveway has been rectified by unspecified persons, the Tribunal considers that the cost of rectification is a legitimate claim and the only quote for doing this work available to the Tribunal is that provided by N & M.
[36] The second quote was provided by Christopher Lethlean of Amalgamated Painters dated 20 May 2010 and is for $57,980 plus GST. Mr Lethlean was given a copy of Mr Englert’s report but was instructed by Mr Langham as to the standard of the work to be achieved. In the opinion of the Tribunal, Mr Lethlean’s work would involve much more than simply rectifying the work of the Respondent. The result envisaged would give the Applicants the equivalent of a newly painted newly built house. This is not what they contracted with the Respondent to do.
[37] The Tribunal rejects the quote of Amalgamated Painters as being excessive rectification under the circumstances where the Respondent was contracted to paint an established house which had been painted an unknown number of times. He was also told that the Applicants were painting the house prior to sale. While this may justify a more cosmetic paint job than if the owners are intending to continue to reside in the property, it does not authorise the contractor to do anything less than a professional paint job. The Respondent failed in this regard.
[38] On the basis of all of the evidence, the Tribunal finds that the cost of rectification of the painting defects, including the roof, amounts to:
Top Roof Restoration quote $ 2,354
N & M Painting quote $15,950
Adjustment for door frames $ 5,000
Adjustment for doors $ 5,000
Less roof rectification -$ 1,000
Rectification of driveway $ 935
Total $28,239
The Gardening Contract
[39] The Applicants arranged with the Respondent for a friend of the Respondent to do landscaping and gardening work at the property and the Respondent provided the quote of $1,250 from his friend. In fact the Respondent did the work and, at the hearing, the Respondent confirmed that he did this type of work regularly.
[40] The contract was oral and was for $1,250. The work required remained unclear to the Tribunal as was what was actually performed. Some of the work involved cutting back bushes and rectifying the lawn which the Respondent said was subsequently damaged by the Applicants’ dogs.
[41] Mr Luke Ellis of Beautiful Homes and Gardens gave evidence that he would expect to have to redo some of the work within 6 months and it would depend on the amount of maintenance carried out by the owner. There was no evidence of any maintenance since May 2008.
[42] On the basis of the time that has passed since May 2008, the Tribunal finds that the quote by Beautiful Homes and Gardens relates to work which would have to be carried out by the Applicants either as maintenance or again being required and should not be a charge for damages on the Respondent. Another reason for dismissing the claim is that the Applicants admit that they have not been charged for this work or paid for it.
[43] Therefore, this claim is dismissed.
The Jetty
[44] The second quote to the Applicants from the Respondent dated 3 March 2008 refers to “Rebuild Pontoon and Paint $1,250”.
[45] Page 13 of the photographs shows the Respondent’s work on the Jetty. The Applicants argue that the hardiplank used by the Respondent was inappropriate. The Respondent said that he also used 6 lengths of treated pine on the Jetty. Ian Gregory of Canal Moorings and Salvage provided a report dated 26 May 2010 and, at the hearing, stated that treated pine was not suitable or allowed for this use as it deteriorates. He also said that if he had been asked to do the work for $1,250 he would have walked away. He also said that the hardiplank was not suitable.
[46] Under these circumstances, the Tribunal finds that the most appropriate order to make is to order that the Respondent is not entitled to payment for this work which was unsatisfactory.
Section 42 of the Queensland Building Services Authority Act 1991
[47] Under section 42 the Respondent, who was unlicenced at the relevant time, is not entitled to payment for his own labour or for any profit.
[48]
The relevant parts of Section 42 state as follows:
Division 7 Requirement to be licensed
42 Unlawful carrying out of building work
(1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act.
(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
(a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b) does not include allowance for any of the following—
(i) the supply of the person’s own labour;
(ii) the making of a profit by the person for carrying out the building work;
(iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.
[49] The Respondent informed the Tribunal at the hearing that from the $18,000 he had been paid he did not receive any wages or profit. The Tribunal accepts this evidence.
[50] The Respondent, however, has claimed $5,820 for extras in Invoices Nos 10, 13, 14 and 15 all dated 6 June 2009. The Applicants have denied that these monies are owing and they have not been paid.
[51]
These claims related to variations to the contract and come within the requirements of section 84 of the Domestic Building Contracts Act 2000 which states as follows:
84 Right of building contractor to recover amount for variation
(1) This section applies if—
(a) the building contractor under a regulated contract gives effect to a variation of the contract; and
(b) the variation consists of—
(i) an addition to the subject work; or
(ii) an omission from the subject work that results in the building contractor incurring additional costs.
(2) If the variation was originally sought by the building owner, the building contractor may recover an amount for the variation—
(a) only if the building contractor has complied with sections 79, 80, 82 and 83; or
(b) only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
(3) If the variation is not a variation that was originally sought by the building owner, the building contractor may recover an amount for the variation—(a) only if—
(i) the building contractor has complied with sections 79, 80, 82 and 83; and
(ii) the ground of unforeseen circumstances applies; or
(b) only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
(4) The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that—
(a) either of the following applies—
(i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation;
(ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and
(b) it would not be unfair to the building owner for the building contractor to recover an amount.
(5) For subsection (3)(a)(ii), the ground of unforeseen circumstances applies if the variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was
entered into.
(6) If the building contractor is entitled to recover an amount for the variation of a fixed price contract, the amount is—
(a) the increase in the contract price stated, or worked out in the way stated, in the appropriate variation document for the variation; or
(b) if paragraph (a) does not apply—the cost of carrying out the variation plus a reasonable profit.
(7) If the building contractor is entitled to recover an amount for the variation of a cost plus contract, the amount is the amount worked out in the way stated in the contract.
[52] This requires a determination of whether or not the Respondent has complied with sections 79, 80, 82 and 83 of the Domestic Building Contracts Act 2000.
[53]
Sections 79 and 83 of the Domestic Building Contracts Act 2000 state as follows:
Part 7 Variations of contracts
79 Variations must be in writing(1) The building contractor under a regulated contract must ensure any variation of the contract agreed to between the building contractor and building owner is put into written form—
(a) within the shortest practicable time; and
(b) for a variation consisting of an addition to the subject work—before any domestic building work the subject of the variation is carried out.
Maximum penalty—20 penalty units.
(2) Subsection (1) does not apply to a building contractor for a variation of a contract if—
(a) the variation is for domestic building work that is required to be carried out urgently; and
(b) it is not reasonably practicable, in the particular circumstances, to produce a variation document before carrying out the work.
(3) Subsection (4) applies if—
(a) a proposed variation of a regulated contract has not yet been agreed to between the building contractor under the contract and the building owner, but is proposed to come into existence on the signing of a variation document by the owner and the contractor; and
(b) the variation document is to be the first and only agreement between the building contractor and the building owner for the particular variation.
(4) If the proposed variation consists of an addition to the subject work, the building contractor must ensure that no domestic building work the subject of the proposed variation is carried out until the variation document has been signed.
Maximum penalty—20 penalty units.
(5) …
82 Variation document must be signed
As soon as practicable after an appropriate variation document is made, the building contractor must—(a) sign the document; and
(b) take all reasonable steps to try to ensure the document is signed by the building owner.
Maximum penalty—20 penalty units.
[54] The Applicants stated that they were not aware of these variations until after 6 June 2008 by which time the Respondent had ceased work on the property. The Respondent gave no evidence of providing the Applicants with variations in writing and of seeking to obtain their signed agreement. Therefore, the Respondent has failed to comply with the requirement of section 67G of the Queensland Building Services Authority Act 1991, which requires building contracts to be in writing, and he also failed to comply with the Domestic Building Contracts Act 2000 in relation to variations to the contract.
[55] Therefore, the Tribunal finds that the Respondent has failed to comply with sections 79, 80, 82 and 83; and also finds that the ground of unforeseen circumstances does not arise on the evidence.
[56]
Under section 84(4), the Tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that—
(a) either of the following applies—
(i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation;
(ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and
(b) it would not be unfair to the building owner for the building contractor to recover an amount.
[57] Sub-section 84(4) was not addressed by the Respondent either before or at the hearing and, therefore, there is no evidence upon which the Tribunal could rely to approve the recovery of the amounts claimed by the Respondent. Therefore, the amounts claimed in the Respondent’s invoices of 6 June 2008 must be dismissed.
The Respondent’s conduct at the Hearing
[58] On the morning of the third day of the hearing the Respondent was given a copy of the 36 pages of photographs from the Applicants’ evidence with the date each photograph was taken. He then returned to the witness box so that he could comment on each and all of the photographs.
[59] The Respondent had a triple by-pass operation since this dispute commenced and stated that he has not worked for 13 months and has not been able to afford the cost of rehabilitation. In the witness box on the third day he stated that his tablets were only good for 45 minutes and he was at the Tribunal on his own as his wife had “collapsed last night”. She had been suffering from laryngitis on the previous 2 days and on the second day advised the Tribunal that she would be seeking medical attention.
[60] Instead of commenting on the photographs, the Respondent began a criticism of the preparation process in the Tribunal leading to the hearing, including the fact that he was denied legal representation when the male Applicant was a solicitor of 30 years’ experience. He then refused to comment on the photographs, refused to be cross-examined and left the Tribunal. He did not criticise the way the Tribunal was conducted.
[61] Given the fact that neither party was legally represented, the Tribunal had done everything possible to ensure a fair hearing to both parties. The fact that the male Applicant was a solicitor did not prejudice the Respondent at the hearing. As frequently happens with self-represented parties, the Respondent failed to put his case to the Applicants’ witnesses and had difficulty in cross-examining them. The Tribunal asked the witnesses questions where their evidence needed clarification.
[62] On the afternoon of the second day, the parties had some settlement discussions and the Tribunal informed the parties that, if they could not settle the matter, the Tribunal would make a decision on the evidence presented to the Tribunal and give reasons for the decision. The Respondent was aware of this before he left the Tribunal on the third day of the hearing.
SUMMARY
[63] For the reasons set out above, the Applicants are entitled to damages from the Respondent as follows:
The Painting Rectification $28,239
The Gardening Contract nil
The Jetty Contract $ 1,250
The Respondent’s Extras Claim nil
TOTAL $29,489
[64] Therefore, the Tribunal orders that the Respondent pay the Applicants the sum of $29,489 by 21 March 2011.
[65] If the Applicants wish to apply for a costs order, the application and submissions clearly setting out the amounts claimed and why shall be filed and served within 14 days of this order and the application shall be determined on the papers.
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