Lavender v Brulynca Pty Ltd
[2010] QCAT 697
•18 November 2010
| CITATION: | Lavender and Lavender v Brulynca Pty Ltd and Anor [2010] QCAT 697 |
| PARTIES: | Kevin Lavender June Lavender |
| v | |
| Brulynca Pty Ltd Madmic Pty Ltd Bruce Douglas Kane |
| APPLICATION NUMBER: | BDL119-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 18 November 2010 |
| HEARD AT: | Bundaberg |
| DECISION OF: | Mr Aaron Suthers, Member |
| DELIVERED ON: | 18 November 2010 |
| DELIVERED AT: | Bundaberg |
ORDERS MADE: | [1] That June Lavender be joined as an applicant to these proceedings. [2] That Bruce Douglas Kane be joined as a respondent to these proceedings. [3] That Bruce Douglas Kane pay to the applicants the sum of $3,500.00 within 60 days. [4] That Madmic Pty Ltd pay to the applicants the sum of $2,460.00. |
| CATCHWORDS: | Builder deliberately causing defects |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Kevin Lavender represented by Geoff Cunningham of Payne Butler Lang |
| RESPONDENT: | Brulynca Pty Ltd Madmic Pty Ltd |
REASONS FOR DECISION
On the 24th August 2010 the applicant and his wife, June Lavender of 4 San Vito Court, Bundaberg contracted with Brulynca Pty Ltd trading as the Bundaberg Garage Centre to supply and erect a shed on their premises at that address.
It appears that upon or about that date Brulynca Pty Ltd sold the Bundaberg Garage Centre to a third party. It became apparent during the hearing that this had left Brulynca Pty Ltd, who appeared by its director Bruce Douglas Kane, of the view that the applicant’s claim should be against that third party and not the company. Madmic Pty Ltd appeared by its director Michael Berg and they were contracted to construct the slab for the shed. There was dispute between Mr Lavender on the one hand and both of the respondents on the other as to who contracted Madmic Pty Ltd to undertake the work. The applicant alleged that it was Brulynca Pty Ltd, both of the respondents alleged that it was the applicant.
As it transpired and for reasons I will come to during these reasons, the point has become irrelevant in so far as it does not need to be determined in the issues which will become clear as remaining outstanding.
It is agreed between the parties that on or about the 19th of October 2009 Mr Berg, on behalf of the respondent Madmic, poured a slab for the shed which was to be constructed on the premises. It is also agreed that when Mr Berg returned to the premises, hydration cracks had appeared in that slab.
From that point Mr Berg returned on the 20th of October 2009 and had a discussion with Mr Lavender. Mr Lavender indicated to him that he had had people look at the slab and was told that it was unsatisfactory. Mr Berg gave explanations about the propensity for the concrete to shrink and crack and an arrangement was made for a representative of Boral to attend the premises. This subsequently transpired on the 22nd October and Mr Berg rang Mr Lavender and arranged another meeting to pick up some form work from the property and to finish approximately 25 linear metres of mowing strip and other concreting which were outside the scope of the original contract for the construction of the shed, but it was agreed had been requested by Mr Lavender.
On the 23rd of October 2009 Mr Berg again attended at the premises and completed the mowing strips and other matters which remained outstanding. He then approached Mr Lavender to arrange for payment for the work which he had done and he says and I accept that he was prepared to make an allowance for tiling to cover over the hydration cracks in the concrete slab. The evidence was from both Mr Lavender and also from Mr Berg, the quote had been obtained and the indication was that the tiler was present on that day.
Mr Lavender, then it transpires, declined to pay Mr Berg for any of the work which was undertaken including the provision of the mowing strips and apron for which no complaint was made about hydration cracks or any other defect.
Had the matter laid there as between these parties, the issues for determination by the Tribunal would have been very simple. Unfortunately however, what subsequently transpired was that Mr Berg took umbrage at Mr Lavender’s response and attended his truck to obtain a sledgehammer. When Mr Lavender declined to pay for the work which had been undertaken, Mr Berg then struck the concreting works which he had undertaken on both of the days repeatedly with the sledgehammer causing considerable damage. That damage is evidenced by colour photographs which were received by the Tribunal and are admitted into evidence attached to exhibit A.
Mr Berg gave evidence that he struck the slab approximately 20 or 50 times. It appears that a very thorough and considered approach was taken to ensuring that the slab, apron and concrete mowing strips were struck in relevant places and a number of times with the intention of making them unserviceable. To his credit, Mr Berg indicated on a number of occasions to the Tribunal that he regrets his actions on that day and I accept his evidence in that regard. Unfortunately however the result remains irrespective of his view of his behaviour on that day.
[10] At the outset of the hearing the parties consented to Ms June Lavender, the co owner of the property and co contractor with Brulynca Pty Ltd, being joined as an applicant to the proceeding. The basis for this was pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act being that Ms Lavender was a person who should be bound by or have the benefit of a decision of the Tribunal in the proceeding with the consent of all the parties I so ordered.
[11] During the course of the hearing Mr Kane, who appeared on behalf of Brulynca Pty Ltd, indicated that he had not received a demand from the applicant for the monies which were claimed and it appears that there was some confusion at least on his part about the material which he had in fact received from the applicant.
[12] The matter was stood down for a period and upon reflection as to his and the company’s position Mr Kane and the applicants reached some consent as to the claim against Brulynca Pty Ltd. It should be noted that Brulynca Pty Ltd has now been de registered but it was common ground between the parties that Mr Kane had intended to be joined and in fact consented to be joined as a party to the proceedings. The orders which Mr Kane consented to were that he, Bruce Douglas Kane, be joined as a respondent to the proceedings and that he, Bruce Douglas Kane, pay to the applicants the sum of $3,500.00 within 60 days and I so ordered.
[13] This left live in the proceedings only the applicant’s claim in the sum of $2,832.50 for the cutting and removal of all of the concrete works from the premises and the respondents counter claim for the value of the mowing strip which he installed at the premises which remained undamaged despite his actions on the 23rd of October 2009.
[14] In this regard I will deal firstly with the issues which were to be determined and that was:
i) Whether the entire concreting works including the original slab needed to be removed or whether it could have been repaired and;
ii) What amount of the mowing strip was left undamaged and what allowance should be made for this concreting work as a counter claim.
[15] In relation to the first issue the evidence of Mr Kevin Lavender was that he took some advice before arranging for the removal of the entire concrete works other than the undamaged mowing strip. He says that he contacted Mr Mick Rendell, a Queensland Building Services Authority Inspector, who had investigated complaints he had made as to the works undertaken by Madmic Pty Ltd and that Mr Rendell had told him that the slab had “had it” and that Mr Rendell agreed that the slab should come up. Mr Rendell was called to give evidence by the applicant and his evidence was somewhat contradictory to that of Mr Kevin Lavender. He said that he told the applicant Mr Lavender that it was his choice as to what happened to the slab although he did agree that in its current state it was unserviceable. He gave evidence that the slab could have been covered with a form of covercrete and this evidence was supported by Mr Berg who indicated that at least for the area of the original slab, this would have been a suitable and satisfactory repair for not only the hydration cracks but the damage he did with the sledgehammer. Mr Rendell’s evidence was that the hydration cracks on their own would not have been of a serious nature and would not have lead to any action by the QBSA.
[16] I accept that the damage done to the original slab could have been remedied by the application of covercrete. This was the evidence not only of the respondent but also of the only independent person to give evidence in these proceedings, Mr Rendell, a Building Inspector of some experience.
[17] The respondent agreed that the apron which he damaged with the sledgehammer whilst wet and the areas of the mowing strips that he damaged would have to have been removed in any event. He estimated, doing his best, that the cost of this would have been approximately $1,200.00 to $1,500.00. He estimated that the cost in material only in applying covercrete to the original slab would have been approximately $400 and he complained of the Lavender’s not allowing him to remedy the work.
[18] With respect to Mr Berg given the rather outrageous incident which took place on the 23rd of October 2009, it is not unreasonable for the Lavender’s not to have invited him to remedy the work which was done and it was accepted by Mr Berg, to his credit, that the costs which he estimated were costs without any allowance for profit and indeed in relation to the covercreting were a cost for material only.
[19] Whilst I accept his evidence that the shed slab itself could have been remedied in this way I am left in the unfortunate position that there is no evidence before me as to what this would cost on a commercial basis. I also have concerns that both Mr Rendell gave evidence, and to a lessor extent Mr Berg, accepted that the application of covercrete would require ongoing maintenance from time to time. Again no allowance or evidence was provided to me as to the ongoing cost of this and I am concerned that even if the matter were adjourned and both cases fully and completely put before the Tribunal, that the cost including ongoing cost of removal of the apron and damaged mowing strips, coating the original slab with covercrete and ongoing maintenance are likely to reach a sum similar to the $2,832.50 claimed by the applicants for the removal of the concreting works in total. Based on that I do accept the amount which was paid by the applicants for the removal of the concrete works in the sum of $2,832.50.
[20] The second issue for determination was what allowance for the undamaged mowing strips should be made. The work was performed by Mr Berg at a cost of $1,000.00. This sum was agreed between the parties and Mr Cunningham in his submissions on behalf of the applicants accepted that in whatever proportion the Tribunal found the total cost allowable should be $1,000.00.
[21] The evidence of Mr Lavender was that only approximately one third of the mowing strip was left serviceable after Mr Berg damaged the remaining concrete. I accept that he has done his best in estimating this amount however I was persuaded by the evidence of Mr Berg who made what I felt was a genuine attempt to calculate this area and he did so in his best estimate that two thirds of the mowing strip remained serviceable after his actions.
[22] The reasons I accept the respondent despite the fact that I accept that both the applicant Mr Lavender and Mr Berg did their best was that Mr Berg is experienced in this form of work and it was apparent that he not only did the work but made a genuine attempt to calculate the undamaged amounts during his evidence. I will therefore allow as a counter claim two thirds of the cost of the mowing strip in the sum of $660.00. The applicant is entitled to their filing fee in the sum of $250.00 and service fees in the sum of $37.50 and I therefore allow the total sum of $2,440.00.
Orders
The orders of the Tribunal therefore will be:
That June Lavender be joined as an applicant to these proceedings.
That Bruce Douglas Kane be joined as a respondent to these proceedings.
That Bruce Douglas Kane pay to the applicants the sum of $3,500.00 within 60 days.
That Madmic Pty Ltd pay to the applicants the sum of $2,460.00.
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