Martinecz v Mackay & Sons Pty Ltd
[2024] QCAT 133
•4 April 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Martinecz v Mackay & Sons Pty Ltd [2024] QCAT 133
PARTIES:
CHRISTINE MARTINECZ (applicant)
v
MACKAY & SONS PTY LTD (respondent)
APPLICATION NO/S:
BDL252-21
MATTER TYPE:
Building matters
DELIVERED ON:
4 April 2024
HEARING DATE:
31 January 2024 and 23 February 2024
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
Christine Martinecz pay Mackay & Sons Pty Ltd the sum of $9,485.01 for claim plus interest of $5516.38 within 7 days of receipt of decision.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a builder sold a removal home to the applicant – where the parties executed two contracts, a purchase contract and a stumping contract – where the parties each commenced minor civil dispute proceedings against the other – where the two proceedings were transferred to the building list – where the owner’s claims for compensation for defective or incomplete work failed – where the owner’s claim for compensation for misrepresentation also failed – where the builder succeeded in recovering monies owing for work done under the contracts
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 84
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
Ms Martinecz agreed to buy a removal home from the respondent builder. The parties entered into two written contracts to facilitate that: a contract dated 7 September 2018 to purchase a house removed from its original location to the builders holding yard and to be moved again to her property on Macleay Island for the price of $80,000, and a second stumping contract dated 19 February 2019 for a price of $26,212.50.
The house was moved from the holding yard to Ms Martinecz’ land on Macleay Island on about 1 March 2019.
Ms Martinecz was disappointed at the condition of the house, cut into 2 parts, on arrival. The builder re-joined the house and re-stumped it and claimed both contracts had been completed in accordance with their terms but Ms Martinecz was not satisfied. She refused to pay balance monies claimed owing.
The builder filed a minor civil dispute – minor debt application in the Tribunal claiming payment of balance monies owing under both contracts totalling $14,485.01 plus interest.
Subsequently Ms Martinecz filed a minor civil dispute – consumer dispute application in the Tribunal claiming $24,526 compensation from the builder.
On 1 November 2021 the Tribunal directed that both matters be transferred to the Tribunal’s building list with Ms Martinecz deemed applicant and the builder the respondent to her claim, and the builder the applicant and Ms Martinecz the respondent to the builder’s counter application.
The claims by Ms Martinecz
Ms Martinecz filed a lot of material but the case she makes can only be described as broad-brush at best. She maintains a generic claim that the builder’s work was poor and the house was not returned on completion of the builder’s work to the condition it was in when she first inspected it before removal. Her claim lacks particulars and supporting evidence. Her focus primarily centred on the condition of the house when she first saw it. when it arrived onsite and before the builder had rejoined the divided halves and re-stumped it and done other building work.
She provides many photographs of the poor condition of the house on arrival on-site, but none after his stumping and at date of completion of work by the builder.
The builder denies the house was not returned to the condition it was in at the holding yard at completion of his work. Unfortunately the builder similarly fails to provide photographic evidence of the condition of the house at completion.
There is no list of defective or incomplete work. There is only a list of payments made by Ms Martinecz after the builder left site which she in turn wants the builder to pay her[1] and which I address as follows:
Close Up Building Inspections Invoice 1006/20 rectify roof $4,191; Close Up Building Inspections Invoice 156/1086/19 $2,860
[1]Exhibit 1.
Mr Watson, a retired builder, issued invoice 1006/20 for work he said he did for Ms Martinecz on the main roof. He had not filed any statement of evidence as at date of hearing though both parties had been directed to do that. He said invoice 1006/20 was for scaffolding erected to provide him with safe access to the roof area. Three sheets of iron had to be unscrewed and refitted. They were fitted the wrong way around and did not overlap adjacent sheets by two crests as required. He also purchased more roofing screws to screw down the roof properly, there being too few generally across all roof sheets.
Mr Watson said he was charged $1,860 for scaffolding, but he did not have an invoice for that. He purchased 3 new sheets and fixings for $360. His labour and plant cost was $3,810. On top of that he added GST of $381, which made a total of $4,191.
With respect to Invoice 156/1086/19 for $2,860, Mr Watson said this work was done to waterproof the roof at the front entry. He said all of that area was in “pretty bad condition.” He did this work first, then when it rained they found water entered from the roof above and he “pushed the scaffolding up higher” and did the work detailed in invoice 1006/20.
Mr Watson was unable to recall just what work he did on the roof at the front entry to justify his charge of $2,860.
With respect to the main roof, Mr Watson conceded there were at least 4 screws in every sheet. Turning to the contracts signed by the parties, on the third page of the purchase contract under the heading “House preparation – please refer to appendix A”, items 2 and 3 state:
2 Roof will be lowered, roof to be re-pitched using existing materials and roof sheeting tacked on with 4 screws per sheet only
3 Houses are sold in as is condition
Mr Mackay for the builder stated in his evidence that the minimal screw down of roofing sheets is purposely done to enable a final framing inspection to take place. In the purchase contract there are a list of additional services the builder will provide for a price. Amongst them is cyclone-proofing the house, which would entail a final framing inspection and then final fixing of the roof according to Mr Mackay. Under the purchase contract Ms Martinecz ticked a box which showed she did not engage or agree to pay the builder to do that additional work.
I determine it was no responsibility of the builder under the contract to do more than screw the roof down with 4 screws in every sheet and this was done. The cost incurred by Ms Martinecz having the roof finally screwed down by Mr Watson is a cost she must bear.
In respect of the costs involved in waterproofing the front entry roof which Mr Watson said was in “pretty bad condition”, this is similarly a cost Ms Martinecz must bear given the house was sold in as is condition under the purchase contract, and there is no evidence that the poor condition of the front entrance roof was contributed to in any way by the actions of the builder or any failure of performance of the builder.
Rent of $2,000 offered due to extensive delay
Ms Martinecz claims she was offered an amount of $2,000 to cover her rent during the delayed completion of the house. There was a delay caused by the architect preparing incorrect plans, only discovered by the builder when re-stumping the house. That error is addressed below.
Under cover of without prejudice correspondence (wrongly tendered by Ms Martinecz) dated 12 June 2019 the builder offered to apply a credit of 8 weeks rent at $250 per week “to assist in closing off the outstanding invoices on completion”. I accept that offer was made conditional on the payment by Ms Martinecz of all outstanding invoices issued by the builder. Ms Martinecz did not do that and therefore the without prejudice offer did not become an open agreement between the parties giving Ms Martinecz an entitlement to be paid the amount of $2000 for rent.
Cleaning Invoice 53 - $791.85; Cleaning Invoice 51 - $1,099.96
There is an invoice from Don Burnett, another builder, directed to Ms Martinecz. Invoice 53 is in the sum of $791.85 and the work is described as cleaning the roof space and removal of rubbish including ducting.
Invoice 51 is in the sum of $1099.96 and the work is described simply as removal property at Boat Harbour, Macleay Island, 24 hours, $1,050.
Ms Martinecz claims the builder engaged Mr Burnett but she had to pay. She says she paid the invoices but they should have been the builder’s responsibility.
The builder denies engaging Mr Burnett and points to clause 15.51 of the general terms and conditions of the stumping contract which provides:
Rubbish will be placed in bins if provided otherwise it will be left in a pile on site.
In contradiction of her claim that the builder engaged Mr Burnett, put into evidence by Ms Martinecz are notes she wrote on a copy of Mr Burnett’s invoice 51 which state:
I was devasted when I saw the house on arrival. I called Don as a witness to liaise with Mackays on the numerous issues from stumping to no connections installed, tree branches and all of Mackays’ rubbish left in the house as per photo.
Ms Martinecz also confirmed in giving her evidence at hearing that she was the one that called Mr Burnett. She said she did that when she saw the house arrive.[2] The house was a mess when it arrived, and she needed a witness, which was Mr Burnett.
[2]Transcript 1-85 Line 16.
I find responsibility to pay the cleaning invoices from Mr Burnett falls to Ms Martinecz, not the builder. It was no part of the contracts between the parties that the builder would be responsible for cleaning or the costs of cleaning.
Solicitor’s fees Invoice 6292829; Solicitor’s fees Invoice 6289516
Ms Martinecz engaged a solicitor to act for her to pursue her initial minor civil dispute – consumer dispute and defend against the builders minor civil dispute – minor debt claim. They do not relate to any substantive issue between the parties associated with defective building work or incomplete building work.
By Rule 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) the only legal costs that can be claimed in minor civil dispute – minor debt matters are those incurred by the builder, not the respondent, and the only costs that can be claimed in minor civil dispute – consumer dispute matters is the filing fee.
The solicitor’s work was done and fees rendered prior to the matter becoming a building dispute on 1 November 2021 and it was only after the Tribunal directed the matter be determined as a building dispute that a possibility arose of orders for more extensive costs.
The legal costs incurred by Ms Martinecz now claimed in this proceeding cannot be recovered from the builder.
The builder’s counter application
The builder’s counter application seeks payment of outstanding invoices totalling $14,485.01 plus interest.
The builder claims payment of two invoices outstanding in respect of the stumping contract. First, payment of Invoice 6489 dated 26 February 2019 with the work described as:
Foundation payment as per agreed contract for the foundation at 9 Boat Harbour Avenue Macleay Island. $9,174.38
Second, Invoice 6490 dated 27 March 2019 with the work described as:
Stump balance payment as per agreed contract for the foundation at 9 Boat Harbour Avenue Macleay Island. $1310.63
The payment schedule set out in the stumping contract provides for 4 payments: a deposit of $1,310.63, a payment of $14,416.88 once pier footings are excavated, $9,174.38 to be paid when concrete is poured into the pier holes and a final payment of $1,310.63 on completion of the stumping work and the house lowered. With GST that brought the total price to $26,212.50.
The builder says the payment for pouring the concrete into the pier holes and the final payment has not been made.
Above that under the heading “Specification applicable to this contract” there is a table of charges for various items of work. The total noted for the charges is $26,212.50. In fact however, the figures add up to only $21,212.50.
The confusion arises from the first item of work, described as:
75 x 75 Standard SHS steel posts at 900 mm above ground all stump holes up to 900 mm deep x 450 mm diameter
The cost of that item is noted simply as ‘Allowance’.
Beneath that table the contract price is stated to be $26,212.50 and then there appears a schedule of payments based on a contract price of $26,212.50.
In a preamble to the purchase contract the following appears:
Standard low-set stumping has been included (75 x 75 x 3.5 Duragal SHS columns, up to 900 mm above ground x 600 mm deep) any variance to this is an additional charge.
In the earlier purchase contract, under a subheading “Foundations” there is this, “Mackays have included a low-set stumping allowance of $5000 as specified below,” and then follows the same description of the type of posts referred to in the preamble to the stumping contract and in the Specifications in the stumping contract (75 x 75 Standard SHS steel posts at 900 mm above ground).
The purchase contract makes provision for additional charges if the purchaser does not use the builder to re-stump the relocated house. Here the builder was engaged to re-stump the house.
I interpret the stumping contract between the parties as follows. There was a base charge of $5,000 for the builder re-stumping the house at a height of 900 mm. The parties agreed to raise the house however to 3 m above ground which incurred an additional charge of $3,600. That made the agreed price of the stumping contract $26,212.50.
The purchase contract also provided, however:
Upon receipt of signed stumping documentation for the approved stumping specifications, the Stump allowance will be credited from the allocation in your purchase contract payment schedule.
The purchase contract payment schedule included as part of the total cost of $80,000, an amount of $5,000 paid as a stump allowance.
I determine a credit of $5000 should have been allowed Ms Martinecz in the stumping contract and it was not.
I find the price payable under the stumping contract was $21,212.50 with a credit of $5,000 from the purchase contract, making a total of $26,212.50.
I determine the work required of the builder under the stumping contract was done and the builder entitled to claim the balance monies on the price, $9,174.38 plus $1,310.63, but less the credit of $5,000 payable under the purchase contract, making a balance due under the stumping contract of $5,485.01.
The builder additionally claims payment of invoice 5965 for $4,000 in respect of the final payment due under the purchase contract. Both the payment schedule to that contract and clause 4.11.8 of its general terms and conditions state the balance payment is due on completion without defining what that means.
Clause 4.11.1 states all payments save the deposit are due on receipt of an invoice. The invoice for the final payment under the purchase contract is dated 31 May 2019. I find the builder completed the required work under the purchase contract. I find the final payment of $4,000 was due and payable to the builder from 1 June 2019.
Ms Martinecz owes the builder $9,485.01 in total.
Misleading advertising
There is one final matter to be addressed.
Ms Martinecz claims the sum of $9,975 for the builder’s “misleading advertising”. She says the house dimensions were 14.87 m2 less than advertised. The builder included “empty space” in the advertisement. The wrong measurements were passed onto the architect, and the plans she drew, relying on the measurements, were wrong.
The measurements were in a brochure prepared by the builder. There does not appear to have been any area calculation, merely the description “2 bedroom; 2 Bathroom; 2 sections; 11.8m x 13.1m.”
There is a plan drawing of the house with the linear measurements, and a note that measurements were approximates only.
There was no claim in the brochure concerned that the square metreage of the house was the sum total of the multiplication of the two linear measurements. The plan shows bedrooms, living room, kitchen, an entry (and a deck extending out from the rear of the back wall) and it is not suggested the plan is misleading.
The architect who relied on the measurements gave evidence. She said she could have come to the builder’s yard to measure the house before drawing her plans but did not because the yard was two hours away and she did not feel safe going there. She did not elaborate on the safety issue that kept her from doing what she agreed would usually have been her practice, that is to attend and take measurements herself.
The result was that the drawings and siting of posts for the house on Macleay Island were initially wrong. This was discovered by the builders when they started to stump the house and it caused delay. Ms Martinecz blames the builder for the wrong measurements and the delay. The delay seems wholly attributable to the erroneous plans of the architect.
Having said that, regardless of the author of the problems, the matter was rectified, the builder did not charge Ms Martinecz anything extra for delay and the architect did not charge Ms Martinecz for the wrong plans.
The builder offered to pay rent to cover the delay period subject to payment of their invoices, however Ms Martinecz refused the offer.
Ms Martinecz has suffered no quantifiable loss. She is not entitled to recover for the so called misrepresentation of the builder as to size of the house.
Interest
The builder claims interest pursuant to the agreements.
By clause 4.11.1 of the purchase contract, save for the deposit, all other charges are due upon receipt of an invoice. By clause 5.1 late payment attracts interest at the rate of 12% per annum.
By clause 4.13.2 of the stumping contract, payments for amounts other than the balancing/positioning invoice are due upon receipt of invoice. By clause 5.1 of the general conditions to that contract as well, any late payment attracts interest at the rate of 12% per annum.
The final payment of $4,000 was due and payable to the builder from 1 June 2019. All monies due the builder were due for payment by that time. Ms Martinecz must pay interest on the outstanding sum of $9,485.01 from 1 June 2019, which I calculate to date of decision is $5,516.38.
Conclusion
Ms Martinecz fails on her claim. The builder succeeds on its counter application in the sum of $9,485.01 for claim and interest of $5516.38.
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