Leadbetter v Tapscott Homes Pty Ltd - [2020] QCAT 416

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Leadbetter v Tapscott Homes Pty Ltd [2020] QCAT 416

PARTIES: JAYNE LEADBETTER

(applicant)

v

TAPSCOTT HOMES PTY LTD

(respondent)

APPLICATION NO/S:

BDL317-19

MATTER TYPE:

Building matters

DELIVERED ON:

5 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Tapscott Homes Pty Ltd must pay to Jayne Leadbetter the sum of SIX THOUSAND SEVEN HUNDRED DOLLARS ($6,700.00) for claim and THREE HUNDRED AND FORTY FIVE DOLLARS AND EIGHTY CENTS ($345.80) for costs within fourteen days.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where parties entered into a building contract for construction of a driveway – where driveway was constructed partially on an adjoining property – where respondent failed to carry out building works in an appropriate and skilful way and with reasonable care and skill in breach of contract

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where applicant entitled to recover cost of relocating driveway – where relocation both reasonable and necessary

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(2), s 77(3)(h), sch 1B, s 1, s 3, s 4, s 5, s 7, sch 2

Bellgrove v Eldridge (1954) 90 CLR 613

Robinson v Harman (1848) 1 Ex 850

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

What is this dispute about?

Ms Leadbetter entered into a contract with Tapscott for the construction of a residential dwelling. The building works included the construction of a concrete driveway. Unfortunately, the driveway was constructed partially on an adjoining property. This led to Ms Leadbetter and Tapscott falling into dispute with the result that these proceedings were commenced by Ms Leadbetter. [1]
[1]Application for domestic building disputes filed 18 December 2019.
The only issue in dispute is the liability of Tapscott in relation to the construction of the driveway partly on the adjoining property.
The dispute now falls for determination. In accordance with directions made by the tribunal, the dispute is to be decided on the papers.
Preliminary findings
The dispute between the parties is governed by the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
I find as follows:
(a)Ms Leadbetter was a building owner;[2]
(b)Tapscott was a building contractor;[3]
(c)The parties entered into a building contract dated 24 March 2019 (‘the contract’);
(d)The contract was a level 2 regulated contract for the performance of domestic building work;[4]
(e)The dispute between the parties is a domestic building dispute;[5]
(f)Prior to commencing these proceedings, Ms Leadbetter complied with a process established by the QBCC to attempt to resolve the dispute;[6]
(g)The tribunal has jurisdiction to decide the dispute.[7]
[2]QBCC Act, Schedule 1B, s 1.
[3]Ibid.
[4]Ibid, Schedule 1B, s 1, s 3, s 4, s 5, s 7.
[5]Ibid, Schedule 2.
[6]Ibid, s 77(2).
[7]Ibid, s 77(1).
None of these findings should be contentious as between the parties.
The contract
The contract relevantly provided as follows:
(a)The contract documents comprised: the contract and general conditions; specifications; plans; New Home Quotation Premier Range; Building Specification Premier Range; Working Drawings WD03; M17-140 Structural Engineering; M17-140 Effluent Design; Premier Colour Selection;[8]
(b)The works comprised the construction of ‘(l)ow set brick veneer dwelling with Master Ensuite & Walk in Robe, Theatre room & Double garage’;[9]
(c)Tapscott was responsible for obtaining all planning approvals, building permits and statutory consents required in respect of the contract works;[10]
(d)By clause 9.1, Ms Leadbetter was, unless otherwise stated in the contract, required to identify the land, the site and the siting of the works prior to commencement;
(e)The ‘land’ was defined by reference to the real property description;[11]
(f)The ‘site’ was defined as ‘the whole of or that part of the land reasonably required by the builder for the carrying out and completion of the works;[12]
(g)The ‘works’ was defined as ‘the works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents including variations;[13]
(h)By clause 9.2, if Tapscott was of the opinion that the boundaries of the land or the site or the siting of the works were unclear, Tapscott was required to give Ms Leadbetter notice in writing asking her to provide a survey of the land or the site as required;
(i)By clause 9.3, if notice pursuant to clause 9.2 was given by Tapscott, and Ms Leadbetter failed to provide a survey, Ms Leadbetter would be deemed to have requested a variation for Tapscott to obtain the survey;
(j)By clause 33.1, Tapscott warranted that the works would be carried out in an appropriate and skilful way and with reasonable care and skill[14] and in accordance with the plans and the specifications.[15]
[8]Contract, Schedule 1 - item 16.
[9]Ibid, Schedule 1 - item 9.
[10]Ibid, clause 2.3, Schedule 1 – item 10.
[11]Ibid, clause 35.1, Schedule 1 - item 11.
[12]Ibid, clause 35.1.
[13]Ibid.
[14]Ibid, clause 33.1(c).
[15]Ibid, clause 33.1(d).
Attached to Tapscott’s response is an extract from what is said to be the building specification. Only two pages from what is obviously a much more extensive document are attached. However, accepting that the documents form part of the specifications and thereby the contract:
(a)Clause 1 required Ms Leadbetter to provide all site details including identification of all boundaries;
(b)Clause 23(f) required Ms Leadbetter to ‘supply the following services and acknowledges the following:- … The subject land must be clearly defined and marked on site with all boundary survey pegs which are clearly visible.’
What do the parties say?
It became apparent at an early stage of the build that it was necessary to change the location of the building site. Referring to this issue in the application for domestic building disputes, Ms Leadbetter states that Tapscott failed to provide a written variation in relation to moving the house ‘10 metres to the right in order to comply with the MCU for the development – the house had to be built on the raised pad pertaining to the block’. Ms Leadbetter says in the application, referring to the site plans, that ‘… it is clearly obvious that moving the house 10 metres to the right would in effect place the bottom portion of the driveway into Lot 24.’ It should be noted here that lot 24 is the lot adjoining Ms Leadbetter’s land. Ms Leadbetter’s land is lot 23.
In the response, Tapscott disputes all of the allegations in the application and says:[16]
I dispute this claim as I feel I did not need a variation for this action as it was clearly defined on the building approval by the certifier that the dwelling must only be constructed on the original building pad provided as part of the original MCU for the Development (Attachment 1) this approval was provided to the applicant by the Certifier.
[16]Response filed 28 May 2020.
Tapscott says:
(a)had Ms Leadbetter provided survey pegs ‘as requested on numerous occasions’, ‘we could not possibly be in this situation’;
(b)Ms Leadbetter thought that the property boundaries were 20 metres from where they actually are;
(c)When Mr Scott Tapscott, the director of Tapscott, was notified by the surveyor that the building pad was not in the position indicated on the plans provided to Tapscott by Ms Leadbetter, Mr Tapscott advised Ms Leadbetter that the house was required to be moved 10 metres to the east to ensure that it was located in accordance with the building approval;
(d)At no stage did either Tapscott or Ms Leadbetter consider the location of the driveway in the context of the requirement to move the house as both Mr Tapscott and Ms Leadbetter thought that lot 23 was larger than it actually was.
The parties were directed to file statements of evidence. Ms Leadbetter complied with the direction. Tapscott did not.
Ms Leadbetter says in her statement of evidence:[17]
[17]Statement of Jayne Leadbetter filed 12 March 2020.
(a)The house was required to be constructed on a raised pad. Accordingly it was necessary for the house pad to be moved 10 metres to the right. Tapscott should have been aware that this would result in the driveway being partially constructed on lot 24;
(b)In August 2019 she was notified by the owner of lot 24 that the driveway on her land encroached onto the neighbour’s lot;
(c)She subsequently obtained from the Department of Natural Resources, Mines and Energy a photographic image of the position of the driveway vis-à-vis lot 23 and lot 24 which showed that part of the driveway was situated on lot 24;
(d)On 29 August 2019 she provided Mr Brett Tapscott from Tapscott Homes Pty Ltd with a copy of the photographic image;
(e)Mr Tapscott attended at the property on 3 September 2019 and advised Ms Leadbetter that he accepted no responsibility for the encroachment of the driveway onto lot 24;
(f)Subsequent efforts to negotiate a resolution of the dispute with Tapscott through the QBCC were unsuccessful;
(g)In February 2020 Ms Leadbetter was contacted by the owner of lot 24 proposing a number of alternative solutions to resolve the issue of the driveway:
(i)      Relocating the driveway;
(ii)      Creating an easement;
(iii)     Selling lot 24 to Ms Leadbetter;
(iv)     Selling a portion of lot 24 to Ms Leadbetter for a token sum with a subsequent re-alignment of the property boundaries.

I will address later in these reasons the evidence in relation to the cost of the various options to which I have referred.

Discussion

The determination of this matter turns on the answer to the following question: who had the contractual responsibility to ensure that the driveway was constructed without encroaching on lot 24?
The contract required Ms Leadbetter, prior to commencement of the works, to identify the land, the site and siting of the works. The first thing to note is there is no evidence that Ms Leadbetter failed to comply with the requirements of clause 9.1 of the contract, or the specifications, to identify the land. There is reference to this issue in the response by Tapscott:
At no point did I or the applicant discuss the driveway and it did not come into consideration as the applicant and myself both thought (in the absence of survey pegs) that the acreage block was indeed larger than it actually was.
The reference by Tapscott to ‘the absence of survey pegs’ is relevant. Tapscott refers in its response to ‘numerous requests’ made of Ms Leadbetter to provide survey pegs. Tapscott has presented no evidence to support this assertion. Certainly there is no evidence from Ms Leadbetter that she was asked to provide survey pegs or that there was any uncertainty regarding the boundaries of lot 23.
As I have observed, Tapscott has filed no statements of evidence. It is appropriate here to note that a direction was made by the Tribunal that all evidence sought to be relied upon by a party was required to be in a statement of evidence from a witness.[18] A party who fails to comply with a direction to file statements of evidence does so at their peril when it comes time to decide a proceeding.
[18]Directions dated 4 February 2020.
It is entirely unclear from the response, and in the absence of any statements of evidence filed by Tapscott, what the ‘numerous requests’ made of Ms Leadbetter were for, whether the requests were made before or after the building works commenced, why the requests were made, whether the requests were complied with and when, and if such requests were not complied with what Tapscott did as a result of such non-compliance.
That Tapscott says it made numerous requests of Ms Leadbetter to provide survey pegs speaks of some lack of certainty, at least on Tapscott’s part, as to the location of the boundaries of the land. If Tapscott was of the opinion that the boundaries of the land were unclear it could have availed itself of clause 9.2 of the contract and requested that Ms Leadbetter provide it with a survey plan. There is no evidence that Tapscott made any such request.
The approved plans and Drawing WD03 form part of the contract documents. Drawing WD03 is endorsed with the following words:
Note: Dwelling must only be constructed on the original building pad provided as part of the original MCU for the development.
The ‘original MCU’ is clearly a reference to Material Change of Use. Although there is no direct evidence on this point, I infer that the reference to ‘development’ is a reference to the subdivision of land creating lot 23 as well as the surrounding lots. Support for this inference is found in the reference in Tapscott’s response to it having ‘built a lot of homes in the Estate’. I infer that the ‘Estate’ referred to by Tapscott is the ‘development’.
Documentation evidencing the site of the original building pad provided as part of the MCU is not before the Tribunal. However it seems reasonably clear from the evidence of Ms Leadbetter and the response by Tapscott, and I find, that the location of the dwelling on Drawing WD03 did not accord with the site of the original building pad provided as part of the MCU. This conclusion is supported by the (uncontentious) evidence that, prior to commencement of the works, the site of the dwelling was required to be relocated 10 metres to the east presumably so that it was, in fact, constructed on the original building pad.
There is little evidence about how and when these events came to pass. What evidence there is, is Ms Leadbetter’s. Ms Leadbetter simply says that she was not provided with a written variation in relation to the change in the location of the dwelling although nothing appears to turn on this omission.
It is clear that the location of the dwelling on the lot changed significantly before the commencement of the building works. A distance of 10 metres is not an insignificant distance, even on an acreage lot. It is apparent from the aerial photograph of lot 23 provided by the Department of Natural Resources, Mines and Energy that the dwelling is located relatively close to the roadway. To accommodate the changed location of the dwelling it seems that Tapscott maintained the position of the driveway vis-à-vis the dwelling as far as possible consistently with Drawing WD03. In order to achieve this, and to accommodate the eastward shift of the dwelling, the end of the driveway was required to be curved to the southwest.
On Drawing WD03, immediately adjacent to, and external to, the southern boundary of lot 23 there is a small square marked ‘Power’. Ms Leadbetter says in her evidence that this is the location of the electricity supply box. She says that on Drawing WD03 the driveway is located to the left of the electricity supply box. As constructed, the driveway is located to the right of the electricity supply box. I accept the evidence of Ms Leadbetter regarding the location of the electricity supply box and the position of the driveway as constructed.
On any view of the plans and Drawing WD03, and noting the position of the electricity supply box vis-à-vis the boundaries of lot 23, constructing the driveway to the right of the electricity supply box would take the driveway outside the boundaries of lot 23. At the very least, the risk was significant. It is clear from the aerial photograph that this is precisely what occurred.
In my view it should have been apparent to Tapscott that moving the location of the site of the construction of the dwelling 10 metres to the east would potentially impact upon the location of the driveway by reference to the boundary between lot 23 and lot 24. This is readily apparent from the final design and construction of the driveway which clearly changed to accommodate the relocation of the site. It should also have been apparent to Tapscott that, in constructing the driveway to the east of the electricity supply box, there was at the very least a significant risk that the driveway could encroach on lot 24.
In light of the evidence available to Tapscott to which I have referred, and in particular the location of the electricity supply box, prudence and good building practices dictated that Tapscott should have confirmed the location of the boundaries of lot 23 before commencing construction of the driveway. Had Tapscott simply constructed the driveway to the west of the electricity supply box the encroachment on lot 24 would have been avoided.
The contract required Tapscott to carry out the works in an appropriate and skilful way and with reasonable skill and care. Building works should not be undertaken such that the works encroach on an adjoining lot. For the foregoing reasons I am satisfied on the evidence that, in undertaking the construction of the driveway, Tapscott, in breach of the contract, failed to carry out the works in an appropriate and skilful way and with reasonable skill and care by constructing the driveway partially on lot 24.
Damages
Ms Leadbetter is entitled to recover damages being the difference between the contract price of the work and the cost of making the work conform to the contract subject to the rectification works being necessary and reasonable.[19] The contract required the construction of a driveway, situated entirely on lot 23, from the dwelling to the road. I note that the contract price has been paid in full.
[19]Robinson v Harman (1848) 1 Ex 850; Bellgrove v Eldridge (1954) 90 CLR 613.
I have referred earlier in these reasons to the owner of lot 24 presenting to Ms Leadbetter a number of options to resolve the issue of the driveway encroachment. The evidence about those options is:
(a)Relocating the driveway. There are two quotes attached to the originating application in respect of the cost of relocating the driveway. These quotes are for $7,510.00 and $6,416.63;
(b)Creating an easement. There is, attached to Ms Leadbetter’s statement, an email communication between Mr Tapscott and the owner of lot 24. The owner of lot 24 states that Ms Leadbetter would be required to be responsible for the costs associated with the creation of the easement in addition to which Ms Leadbetter would be required to pay to the owner of lot 24 an amount of $3,950.00 and the owner’s legal fees;
(c)Selling lot 24 to Ms Leadbetter. The owner of lot 24 indicated that a sale price would be $79,000.00. In an email communication between the owner of lot 24 and Mr Tapscott, the owner stated that the parties could ‘agree a special price for the lot below market’;
(d)Selling a portion of lot 24 to Ms Leadbetter for a token sum with a subsequent re-alignment of the property boundaries. Attached to Ms Leadbetter’s statement is an email from a surveyor stating that the cost of re-alignment of the boundary between lots 23 and 24 would be $9,440.00 including GST.
Ms Leadbetter claims the cost of relocating the driveway. In my view the relocation of the driveway is the most reasonable course to adopt. It is clearly work necessary to be undertaken in order to remedy the encroachment issue.
Ms Leadbetter claims the amount of $6,700.00 being the amount paid to have the driveway relocated. While Ms Leadbetter has not provided a tax invoice or other evidence in relation to the payment of the amount claimed, I accept her evidence that the amount has been paid. I also accept that the amount claimed is reasonable noting the two quotes for the relocation works to which I have referred.

By s 77(3)(h) of the QBCC Act, the tribunal may award costs in a building dispute. Ms Leadbetter is entitled to recover the filing fees paid on the application.
Orders
Tapscott Homes Pty Ltd must pay to Jayne Leadbetter the sum of $6,700.00 and costs in the amount of $345.80 within fourteen days.