Martin v Metricon Homes QLD
[2011] QCAT 308
•5 July 2011
| CITATION: | Martin v Metricon Homes QLD [2011] QCAT 308 |
| PARTIES: | Ryan Martin (Applicant/Appellant) |
| v | |
| Metricon Homes QLD (Respondent) |
| APPLICATION NUMBER: | BDL276-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 17 June 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Susan Gardiner, Member |
| DELIVERED ON: | 5 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
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| CATCHWORDS: | Building matter – claim for costs for defective workmanship and compensation for breach of contract – Domestic Building Contracts Act 2000. |
APPEARANCES and REPRESENTATION (if any):
Mr Ryan Martin appeared in person
Mr Chris Roberts represented Metricon Homes QLD
REASONS FOR DECISION
In September 2009, Ryan Martin and his wife entered into a contract with Metricon Homes QLD to build a house at lot 13, Hanwood Court, Gilston. The house was completed in June 2010. There is no money owing to the builder under the contract.
Mr Ryan filed an application for a domestic building dispute in August 2010 with this Tribunal alleging 7 issues arising from the build that he says remain outstanding in the work performed by the builder Metricon Homes Queensland.
QCAT is empowered by the Building Services Authority Act 1991[1] to decide a building dispute[2]. The contract in dispute is also reviewable domestic building work under the Domestic Contracts Act 2000. This Act contains a number of implied warranties in every regulated contract[3].
[1] sections 76 and 77
[2] Defined under schedule 2 of tis Act to include a domestic building dispute.
[3] See Part 4 of that Act
The alleged issues as set out in Mr Martin’s application are:
1.The storm water hold tank does not comply to plan detail and AS35004 requirements;
2.The HSTP tanks are not to plan detail location;
3.The front door handle is not as sold “as to studio M” upgrade;
4.The garage door bulkhead needs to be rectified so that door will close flush;
5.There are excess gaps around all windows and the Builder has added aluminium angles over window top of gaps to try to hide this;
6.The ensuite window in the main bedroom is out of level;
7.The front bedroom window (elevation A) is not to plan detail.
These issues are either alleged defects or breaches of the building contract with Metricon. Each of these issues will now be addressed in turn.
Stormwater
A stormwater plan was provided to the Tribunal and used as a reference in the hearing by all parties. The plan showed points a to b and b to c being the stormwater piping around the house on the lot and points c to d being the stormwater piping from the corner of the house to the legal point of discharge on Hanwood Court.
Mr Martin does not contest the piping laid between points c to d (the corner of the house to the road). Based however on the report of Mr Damien Ignacz, Mr Martin does say that points a to c (the piping around the house) does not meet the Australian Standards 3500 which requires a fall of 1 in 100 in the stormwater system. These were the engineering specifications in Metricon’s plans.
Mr Mark Nicholas, the expert on behalf of Metricon, agrees that the stormwater drainage between points a and c has a slightly less fall than the requirements of the Australian Standard. Mr Nicholas says in order to overcome this problem larger pipes were laid in the sections that did not meet the Australian Standards in relation to fall. In Mr Nicholas’ view, the fall on the property was only marginally outside the Australian Standards and laying the bigger pipes would solve the problem. When questioned, Mr Nicholas said that he would be prepared to do this in the same circumstances but that he would require both the consent of the builder and the homeowner so that his liability at anytime in the future was not brought into question.
Mr Ignacz, on behalf of Mr Martin, said that he has always complied with the Australian Standards and that where it required cutting rock (as was the case here) he would insist on the extra costs to ensure that the fall met the Australian Standards.
[10] The decision to lay the larger pipes and not cut rock to ensure that the fall was correct (thereby saving Mr Martin some costs) seems, on the evidence, to have been made by the plumber subcontractor employed by Metricon and the site supervisor. Mr Martin at no time was asked to consent to this method of ensuring the flow and avoiding the strict compliance with the Australian Standards.
[11] Mr Carr, the subcontractor employed by Metricon to lay the pipes, gave evidence of a meeting with Mr Martin which had occurred onsite concerning some possible damage to the pipes leading from the house to the curb. After the meeting and before Mr Carr left the site, Mr Martin told Mr Carr that he knew the stormwater lines would flow with no problems. This conversation was not denied by Mr Martin.
[12] However it remains that the stormwater pipes were positioned using larger pipes to counter a lack in the appropriate fall (the fall not meeting the Australian Standards as required by AS3500). Mr Martin alleges that this will cause backflow difficulties in the future and that the Australian Standards are minimum standards only and should be adhered to.
[13] I am satisfied that the Australian Standards have not been met in relation to sections a to c of the stormwater system. I am also satisfied that currently the system is working efficiently and that there is no obvious detriment to Mr Martin by laying the larger pipes to accommodate the water release where the gradient does not meet the Australian Standards.
[14] However, without Mr Martin’s consent, Metricon has made this alteration so that the drainage system does not meet the Australian Standards. I accept that the Australian Standards should be met unless the homeowner consents to this variation. This has not happened here. Mr Martin is entitled to some compensation for the decision that was taken by Metricon without his knowledge or consent. I am not satisfied that the system as installed by Metricon is of itself a defect. I am satisfied it marginally does not meet the Australian Standards and this was undertaken without Mr Martin’s consent.
[15] I am not prepared to award Mr Martin the full compensation as indicated by his expert Mr Ignacz to relay the complete system because I am not satisfied that the system is not working satisfactorily. I will however award him an amount of money for the lack of due process that occurred in Metricon’s decision making around the laying of the pipes without his consent. Mr Nicholas provided no costing. Mr Ignacz suggested that somewhere between $2,500 and $4,000 was an appropriate amount to relay the piping that did not meet the Australian Standards. When pressed he suggested a halfway point between these two amounts which would be an amount of $3,250. As I am not compensating Mr Martin to relay all of the pipes but rather for the avoidance by Metricon of the Australian Standards without his consent, I will award Mr Martin the sum of $2,000 in compensation for this issue.
HSTP Tanks not in plan location
[16] The issue is the location of the septic tanks on the property. To understand the confusion that has arisen between the parties it is necessary to understand the procedure undertaken by Metricon to source the tanks and to decide the location.
[17] Once the building process had started between Metricon and Mr and Mrs Martin, on 31 August 2009 Metricon requested an onsite assessment by Peter Boyd Enterprises to design and site the septic tanks.
[18] Metricon’s site assessment request attached to it a plan drawn showing Mr Martin’s nominated position for the HSTP unit. The plan also showed the type of system to be installed in Metricon’s assessment was a Biotreat home sewage treatment plant. A Biotreat Sewage Plant involved one tank only.
[19] The proposal by Peter Boyd Enterprises returned to Metricon and which went to the Council for approval was for an Aquanova System. This sewage system involves two tanks. The installation of the Aquanova system was duly approved by the Gold Coast City Council and installed by Peter Boyd Enterprises at the appropriate early time in the building process in approximately the position as indicated by Mr Martin in his original plan.
[20] Mr Martin wanted the sewage tank (one as he thought) installed in line with the bedroom of his house. In fact the twin tank system was installed slightly further over towards the front portico of the house and because two tanks were installed, in plain view of the front door of Mr and Mrs Martin’s property.
[21] The positioning of the tanks at installation was further complicated because a variation between Mr Martin and Metricon (signed by both parties) which moved the house one metre also affected the positioning of the tanks.
[22] Mr Martin does not dispute that the Aquanova System was the appropriate sewage system. Mr Martin says he was never told that the facility had changed from the one tank Biotreat system to the two tank Aquanova system and that because of this oversight, the positioning of the tanks has caused him and his wife considerable stress.
[23] The evidence that Mr Martin was not advised of the change to the Aquanova system (and hence two tanks) was not disputed by Metricon and it appears that there was a communication breakdown in the organisation around this issue. Peter Boyd Enterprises never suggested anything other than the Aquanova and at no time did they know that Mr Martin did not understand that the two tank system was to be installed.
[24] Mr Martin is seeking sufficient funds to completely relocate both tanks. It is apparent from the photographs that have been supplied that even if the tank had been a single tank and placed exactly in the position that Mr Martin first wanted, the tank would have been visible from Mr Martin’s front door although much more to one side and a single tank not a double.
[25] The joint sewage expert report completed by Mr Steve Boyd and Mr Wayne Dyer indicates that both experts agree that the treatment plant’s position was located on a Metricon construction plan denoted by a single circle on the plan. This single circle has added to the confusion because the symbol used on the CAD drawing is a generic symbol for a sewage tank and no matter how many number of tanks are installed would always be shown as a single circle. However Mr Martin has assumed when reading the drawings that the single circle denoted a single tank.
[26] Both experts also agree that the Aquanova was the only system which could have been employed on Mr Martin’s property and that given the limited area in which the tank could be placed, the present position was considered to be the most desirable and effective outcome. Mr Dyer, on behalf of Mr Martin, however goes on to say that he believed that the treatment plant could have been positioned at the edge of the fill batter whereas Mr Boyd believes that the treatment plant could not have been positioned there because of the Australian Standards for plumbing and drainage and the instability of the treatment plant if placed in fill.
[27] Mr Dyer was not available at the hearing for cross examination on behalf of the applicant. His evidence therefore must be accorded a lesser weight than that of the other experts both on this issue and on other building issues than those experts who attended for cross examination. However Mr Dyer does question why Mr Martin was not included in the decision to reposition the treatment tanks.
[28] Again the internal communication within Metricon appears to have let the company down. Although the plumber and the builder both accepted that the two tank system needed to be installed Mr Martin was never advised of this and in fact the company issued on 23 June 2010 a somewhat confused unsigned letter to Mr Martin attempting to identify which system was to be installed. This letter has internal mistakes and does not reflect well on the quality control of processes within Metricon.
[29] Mr Martin provided two quotes as costing for the repositioning of the tanks. These quotes ranged from $5,115 to $5,770.
[30] I do not believe it is reasonable in these circumstances for Metricon to pay for the complete repositioning of the tanks. I accept that a mistake has been made and that Mr Martin was under a misapprehension that one tank was to be installed instead of two. However the positioning of the tank was made more difficult by the agreed variation to shift the house one metre which meant that even if one tank had gone in, it would have been closer to the portico than originally anticipated by Mr Martin. There is no dispute that the Aquanova two tank system is the appropriate tank system for the property. Mr Martin and his wife look to be compensated for the aesthetic view over the two tank sewage system as opposed to the original view they would have had over a one tank system. I am satisfied that some compensation for this aesthetic detriment to their view from their front door is appropriate but I do not accept that they are entitled to reposition the whole system at Metricon’s cost.
[31] It is appropriate to award Mr and Mrs Martin an amount of money to aesthetically change their view of the tanks by landscaping means. As I have no estimates from either party provided in the evidence as to an amount that is appropriate to aesthetically disguise these tanks I am left to an estimate to what I think is an appropriate amount of compensation covered in any landscaping undertaken by Mr and Mrs Martin. I will award an amount of $600.00 for landscaping.
Front door handle
[32] Mr and Mrs Martin originally viewed the home that they built as a display home. Having decided on the home style that they chose, the evidence is that Mr and Mrs Martin were referred to a Metricon office to discuss the specific individual items that were to make up their home.
[33] One of the upgraded choices made was to upgrade the front door they saw in the display home to a door with 8 panels of glass rather than 6 and to upgrade the door handle hardware.
[34] Mr Martin now complains that the handle has been placed too high on the door. He says that his children can not reach it and that it has been installed not in accordance with the brochure that was provided on the day they chose the handle. He says that the brochure shows the door handle installed at a lower position.
[35] Metricon say that the door handle is at the same height or thereabouts as the other door handles in the house and that is installed in line with the door handle as shown in the display home.
[36] There is no Australian Standard which sets out door handle heights that either party could point me too.
[37] With a lack of an Australian Standard, I am not satisfied that Mr Martin has an argument in relation to the height of this handle. I place no reliance on his argument concerning his children and as there is no Australian Standard, there is no external guide which shows me that the placement of the current handle is either right or wrong.
[38] I do not accept that the placement of the door handle is a defect. Mr Martin is awarded no compensation for this issue.
Garage door bulkhead
[39] Both building experts agree that the garage door requires rectification. The garage door is binding on the bulkhead when it is operated.
[40] What is not agreed is the amount required to rectify this issue. Mr Dickson, on behalf of Metricon, estimates the cost to rectify at $350. His explanation to the Tribunal in cross examination is that is the cost of a qualified tradesperson to adjust the side brackets and to seal any void areas so that the garage door will not rub.
[41] Mr Dyer, on behalf of Mr Martin, opined that it would cost $1,410 inclusive of GST to rectify the bulkhead so that it runs straight and to realign the doors so that an even margin is obtained. Mr Dyer observes that the bulkhead over the opening of the garage is bowed at the middle and as a result is rubbing on the top panel of the door, removing the paint and dislodging the PVC strip installed as a cover mould. Mr Dyer indicates that he could see evidence that the brackets to the side of the door had been adjusted on the sides of opening in an attempt to prevent the door from rubbing.
[42] Although the Tribunal acknowledges Mr Dyer was not available for cross examination, in consideration of the costing reports provided by both experts, I am satisfied that it is appropriate to rectify the bulkhead so that it runs straight and that the doors are realigned. I therefore accept that this will be more than simply moving the side brackets in order to correct what is an accepted defect. I prefer the costings provided by Mr Dyer on this issue to rectify the bulkhead bow as well as the rubbing and will award Mr Martin $1,410 to compensate him for the rectification costs.
Excessive gaps around all windows
[43] In his evidence to the Tribunal, Mr Martin spoke at length about the steps taken by him and his wife in the planning of this home to “personalise” a standard plan provided by Metricon. In particular Mr and Mrs Martin were at pains to pay extra amounts of money to ensure that the windows were bricked to the nearest corresponding brick course. This personalised attention to, in particular windows, was not disputed by Metricon during the hearing.
[44] It is agreed in the joint report of the experts concerning this issue that the gauge of brickwork is incorrect where strips have been placed over windows. While this is accepted by the joint report as a defect, both experts agree that demolishing the brickwork to remedy the windows would create more damage with minimal gain in their view to Mr and Mrs Martin.
[45] It is uncontested evidence from Mr Martin that he intends to rectify the brickwork around the windows.
[46] In his costings report, Mr Dyer estimates that it would cost $24,400 inclusive of GST to remove and reinstate linings, joinery, realign windows and reinstate the brickwork to correct the windows and brickwork to suit the gauge around the home. This is not inclusive of the ensuite window. Mr Dickson in his report while accepting that it is a defect, does not believe the cost to rectify versus the outcome is warranted. Mr Dickson does not give an estimate of how much he believes the rectification work would cost if undertaken.
[47] I accept that Mr and Mrs Martin negotiated personalising the standard plan of Metricon and that this personalisation extended to the brickwork around the windows. I also accept that the evidence of the joint report that shows that both experts agree that the gauge of the brickwork is incorrect where the cover strips have been placed over windows. I also accept the uncontested evidence of Mr Martin that he intends to rectify the brickwork around the windows.
[48] I will therefore award Mr Martin compensation to undertake this rectification. The only evidence provided to the Tribunal on the costing of such rectification is Mr Dyer at an amount of $24,400. Mr Dyer was not available to test this by cross examination however Mr Dickson gives me no alternative costing. I must therefore accept the evidence as provided by Mr Dyer and will award Mr Martin the sum of $24,400 for compensation for this defective work.
Ensuite window in main bedroom
[49] The joint report of the builders Mr Dyer and Mr Dickson indicates that both experts agree that the sill requires levelling. The report also indicates that both experts agree that the window should not be removed for rectification purposes.
[50] Mr Dickson estimates the cost to rectify this at $350. Mr Dyer estimates the cost at $1,900. In cross examination, Mr Dickson explained that the cost of $350 would be to remove or reinstate the tile course immediately below the window by recutting the tiles and ensuring they are parallel with the window frame sill. Water proofing the sill and tiles would also need to be undertaken. Mr Dickson does not believe that the window needs to be removed or readjusted as it appears to comply with the tolerances as noted in Australian Standards 3700-2001 and Australian Standards 3700SUPP5-1992. Evidence was provided by Metricon that identical tiles are still available from the same tiling batch as used in Mr and Mrs Martin’s bathroom and that sufficient of these tiles are on long term hold by the tile supplier so that these tiles could be easily matched.
[51] Mr Dyer’s evidence of costs was not able to be tested because he did not appear for cross examination.
[52] In the circumstances, as between the two experts, I must give greater weight to the explanation, both in the report and under cross examination, by Mr Dickson and will award Mr Martin the reasonable costs of reinstating the tile course set in the sum of $350.
Bedroom one window
[53] Both building experts agree that the window has not been installed according to the plan, However both building experts also find no defect in the installation work.
[54] The placement of this window was one of the “personalised” touches changed on the standard plan by Mr and Mrs Martin. Mr and Mrs Martin wanted the window off centre and not aligned to the window on the plan above it.
[55] For reasons not explained by Metricon, the window was placed parallel to the window above it and not installed according to the plan. Mr and Mrs Martin are entitled to have some compensation for the failure by Metricon to build this home in accordance with the agreed plans between the parties.
[56] The issue to be determined by me is the compensation to be awarded to Mr Martin for this breach of contract. It is again uncontested evidence from Mr Martin that he intends to reposition the window to conform to the original plan.
[57] Both experts agree that demolishing the brickwork to realign the window would create more damage with minimal gain. It is an issue of aesthetics for Mr and Mrs Martin and compensation for their contract with Metricon not being adhered to.
[58] Mr Dickson gives me no estimate of costs to resite the window as he says that it is not necessary to do so. Mr Dyer’s untested evidence is that to rectify and realign the window would cost $3,700 inclusive of GST.
[59] Mr and Mrs Martin have not been given that which they contracted for and Metricon has no signed variation allowing the window to be shifted. There was no consultation with Mr and Mrs Martin before placing the window where they did. Mr and Mrs Martin intend to realign the window and are entitled to the costs of this breach of contract. The only costing is the untested evidence of Mr Dyer and I will accept this amount. I will award Mr Martin the sum of $3,700 for this breach of contract.
Conclusion
[60] Having addressed all of the issues contained in this application the following amounts are awarded to Mr Martin:
Stormwater $ 2,000
HSTP Tanks $ 600
Front door handle $ 0
Garage door bulkhead $ 1,410
Excessive gaps around windows $24,400
Ensuite window $ 350
Bedroom one window $ 3,700
Total $32,460Metricon will pay Mr Martin $32,460 within 14 days of this order.
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