Lewis v Gold Coast Unique Homes Pty Ltd
[2011] QCAT 438
•14 September 2011
| CITATION: | Lewis v Gold Coast Unique Homes Pty Ltd [2011] QCAT 438 |
| PARTIES: | James Lewis (Applicant/Appellant) |
| v | |
| Gold Coast Unique Homes Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL014-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 29 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Christopher Coyne, Member |
| DELIVERED ON: | 14 September 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent will carry out the following works within a period of 6 weeks from 29 July 2011: (i) by reference to the defects list filed on 8 March 2011 items number 2, 8, 9, the painting of the soffit in 13, cleaning of the balustrade in 16, 28. (ii) by reference to the defects in dispute list: pay any insurance excess for the water damage claim in 6, “step out” the cupboard above the refrigerator/freezer and to place a matching panel at the side of the fridge where it protrudes, item 26 & 27. 2. Upon completion of the works, an independent inspector from the Master Builders Association is to conduct an inspection and the parties are to be bound by the inspectors report on the works. 3. Each party pay their own costs of and incidental to the application. |
| CATCHWORDS: | Building Contract – defective work |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | James Taylor |
REASONS FOR DECISION
Introduction
By application filed on 21 January 2011, the applicant sought:
1. Rectification of defects in the sum of $84,000;
2. Rectification of incomplete works in the sum of $38,000;
3. Damages for breach of contract in the sum of $10,000;
4. Cost of filing the application in the sum of $255.
On the 28th of February 2011 the respondent builder filed a defence disputing the applicant’s claim.
The parties have attended a compulsory conference at which conference an agreement was reached on a number of issues in dispute.
Evidence
The applicant, James Lewis, was sworn and gave evidence at the hearing. He relied upon his statement of evidence dated 14 July 2011. The applicant was given leave to adduce further evidence by way of photographs which were marked exhibits a and b.
Mr James Taylor, a director of the respondent building company, attended the hearing, was sworn and gave evidence on behalf of the respondent. He relied upon his affidavit sworn 26 July 2011.
Mr Brett Lambert, a painter, also attended the hearing and gave evidence on behalf of the respondent. He relied upon his affidavit sworn 25 July 2011.
The matters in dispute are conveniently set out in the applicant’s statement of evidence.
Paint Used
It is the applicant’s case that he specified a platinum finish with Dulux deluxe paints. Once the painting was completed, the applicant became aware that Taubmans paint had been substituted for the Dulux paint.
The respondent, in his affidavit states that at the relevant time, his company was having service problems with the Dulux representative and a decision was made to substitute Taubmans paint. He says that the Taubmans paint used was a similar quality if not superior to Dulux paints. His evidence was that the paints were “wash and wear”. Mr Taylor’s evidence was corroborated by the painter, Brett Lambert. Mr Lambert said that the Taubmans paints were of a higher grade and were a “wash and wear” paint. The respondent’s inclusions brochure, which is annexure 3 to Mr Lewis’ statement of evidence, contains the note:
“Gold Coast Unique Homes Pty Ltd reserves the right at any time to replace with similar items or replacement items at any time without notice.”
There was no evidence given by or on behalf of the applicant to support his contentions that the Taubmans’ paints used were of an inferior quality and were not “wash and wear”. The applicant’s claim in this regard is therefore dismissed.
Garage position
The original plans signed by the parties provided for a “breezeway” between the garage and the house which was to be 1,200mm wide. Subsequent to the signing of the contract plans, the Sanctuary Cove Body Corporate (SCBC) advised of a requirement that the breezeway be 1,500mm. New plans were drawn and provided to the SCBC which were approved.
By oversight, the copy of the plans provided to the site surveyor were the original set showing the 1,200mm breezeway. Once the dwelling garage had been constructed, the respondent took up the issue with the SCBC, which in turn, relaxed the requirement for the 1,500mm breezeway and returned to the applicant his bond paid in relation to the construction of the house.
The “breezeway” was constructed at 1,200mm in accordance with the original signed contract drawings. Requirements for the 1,500mm breezeway was that of the body corporate which subsequently relaxed that requirement. In cross examination, Mr Lewis accepted that he could still drive a golf buggy into the garage but said that it would be easier if there was a greater distance to the front steps of the house.
The applicant provided no evidence of any loss or relevant breach of contract. The applicant’s claim in this regard is dismissed.
Defects list (filed 8 March 2011)
The defects which remain in issue are numbered as follows:
1. Missing drainage between the pool and the house:
The respondent denied that there was any drainage missing and advised that the water pooling occurred as a result of the angling of some tiling. The respondent agreed to rectify the water pooling by re-laying the tiles where this occurred. This was acceptable to the applicant.
8. Powder room: unfinished marble edging/silicon: lumpy wall:
The respondent agreed to rectify these works. This was acceptable to the applicant.
9. Laundry/linen: excess glue on shelves:
The respondent agreed to rectify these works. This was acceptable to the applicant.
13. Garage door frame having a 30mm fall and paint missing:
The respondent agreed to have that part of the soffit which appears not to have been painted rectified. The respondent disputes that there is a 30mm difference in level measured at the top of the garage door opening across the width of the doorway. It was not possible from the photographs tendered to discern a difference in the level from one side of the garage opening to the other. It was the respondent’s evidence that any difference was within normal building tolerance. In the absence of any demonstrable evidence on this issue the applicant’s claim fails.
16. Balustrade:
The respondent agreed to have any stains removed from the stainless steel post. This was acceptable to the applicant.
17. Paint on granite bench top and in kitchen:
Apart from the applicant’s statement, there was no evidence to support this claim. The respondent denied there was any defective work requiring rectification. In the absence of any evidence on this issue the applicant’s claim fails.
28. Upstairs linen cupboard: door frame too short:
The respondent agreed to carry out rectification works. This was acceptable to the applicant.
Defects in dispute
1. Driveway cracking:
The applicant’s evidence consisted of a number of photographs showing what appeared to be hairline cracks and minor spawling of the concrete cover. It was the respondent’s evidence that the driveway was structurally sound and that hairline cracks can occur when the underlying soil is highly reactive. The respondent also suggested that the crack in the corner of the driveway near the road entrance could have been due to a heavy truck turning into the driveway. The applicant has been in residence for 21 months and the driveway has no doubt been subject to a fair degree of use and exposure to climatic changes during that period of time. Again, in the absence of any evidence that the driveway does not meet the contract specifications or the requisite building standards, the applicant’s claim fails.
6. Lounge: water damage to blinds:
The respondent’s evidence was that the damage to the blinds was caused by storm damage. The roofing contractor, Monier Roofing, installed further flashing to rectify the problem. The respondent’s evidence was that any damage to the blinds was minimal and would in any event be covered by the applicant’s insurance. The respondent offered to pay the applicant’s insurance excess, should an insurance claim be made. This was acceptable to the applicant.
18. Gap between coffee machine and top of cabinet:
The applicant’s photographs showed that there was a gap, although it was not apparent that this could be classified as “excessive”. The respondent’s evidence was that the recess had been designed for a coffee machine of another brand. When that machine could not be purchased, the current Bosch machine was substituted. The respondent has proposed a remedy of placing some packing under the machine which would reduce the gap to approximately 2.5mm at the top and the bottom. This is not acceptable to the applicant.
It was my understanding that the applicant specified all of the appliances by brand and model number. As appears to have been the case, the coffee machine specified was not available, and it can hardly be the respondent’s responsibility the substitute machine isn’t an exact match in size. The applicant’s claim therefore fails.
Gap between fridge/freezer and cabinet surrounds: chip on top right:
It was the respondent’s evidence that the kitchen had been constructed in accordance with the relevant contract drawings. The applicant has chosen a particular brand and model of refrigerator/freezer which requires a greater depth than provided for in the building drawings. It was the applicant’s evidence that he sent an email to the respondent’s cabinet maker setting out details of the appliances. It was his understanding that the cabinet maker had the relevant brochures which contained the measurements. The photographs produced did not demonstrate to me that the gaps between the fridge and the surrounding cabinets were excessive. It was the respondent’s evidence that gaps were within industry tolerance and were required to enable air circulation for the compressor. What is apparent is that the fridge protrudes up to 15cm. It was the respondent’s evidence that the greater depth cannot be accommodated within the current design of the kitchen. His offer was to “step out” the cupboard over the fridge and to place a matching panel over the side of the refrigerator which protrudes. This offer was acceptable to the applicant.
After the conclusion of the hearing the applicant sent a letter to the Tribunal registry in which he purported to withdraw his agreement to the respondent’s proposal to extend the fridge panel and cabinets. As the hearing had concluded, it is not appropriate that I receive any further evidence or submissions from the parties. As it appears that the applicant wants to resile from the agreement reached during the hearing, it is appropriate that I make some comments in relation to the state of the evidence of this issue. I accept the respondent’s evidence that the kitchen has been constructed in accordance with the contract plans and specifications. The applicant’s evidence is that he sent an email to the respondent’s cabinet maker setting out details of the appliances. That email was not produced. Details of the fridge/freezer were not produced. The cabinet maker was not called to give evidence or respond to this allegation. I would have been hesitant in accepting the applicant’s uncorroborated evidence. During the hearing I formed the view that the applicant’s evidence was unreliable and the applicant was prone to exaggeration. By way of example, the exchanges said to have taken place with the painter, lead me to accept the evidence of the painter and the respondent over that of the applicant. On the state of the evidence available on the hearing, I would not have been inclined to find in favour of the applicant on this issue. However, it was unnecessary for me to do so bearing in mind the agreement reached on the day.
26. Ensuite 2 grout on top corner of shower missing: toilet door frame and door from bedroom 2 cracked at the hinge:
The respondent agreed to rectify these works. This was acceptable to the applicant.
27. Bedroom 3: right hand shelf unfinished, lumpy wall behind robe door:
The respondent advised that if there was any item which required attention he would attend to the same. This was acceptable to the applicant.
Parties agreement
It was agreed that the works will be carried out by the respondent within 6 weeks within the date of hearing.
The applicant agreed to provide the respondent and his tradesmen/subcontractors reasonable access to carry out the works.
On completion of the works, the parties agreed that an inspector from the Master Builders Association would be appointed to conduct a final inspection on the works completed. Both the parties agreed to be bound by any determination of that inspector.
Orders
Upon hearing the applicant and Mr James Taylor on behalf of the respondent, the Queensland Civil and Administrative Tribunal makes the following orders:
1. The Respondent will carry out the following works within a period of 6 weeks from 29 July 2011:
(i)by reference to the defects list filed on 8 March 2011 items number 2, 8, 9, the painting of the soffit in 13, cleaning of the balustrade in 16, 28.
(ii)by reference to the defects in dispute list: pay any insurance excess for the water damage claim in 6, “step out” the cupboard above the refrigerator/freezer and to place a matching panel at the side of the fridge where it protrudes, item 26 & 27.
2.Upon completion of the works, an independent inspector from the Master Builders Association is to conduct an inspection and the parties are to be bound by the inspectors report on the works.
3.Each party pay their own costs of and incidental to the application.
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