McCarthy v Chopiany
[2015] QCAT 382
•28 September 2015
| CITATION: | McCarthy v Chopiany [2015] QCAT 382 |
| PARTIES: | Darren McCarthy (Applicant) | |
| v | ||
| Michael Chopiany | ||
| APPLICATION NUMBER: | BDL291-14 | |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 August 2015 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Member McLean Williams | |
| DELIVERED ON: | 28 September 2015 | |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal orders as follows: Within 21 days from the date of these orders The Respondent will provide the Applicant with a list of three (3) alternate roofing contractors who are available to perform the remediation works specified by the Tribunal The Applicant shall then have the right to select a roofing contractor from those three firms, who will then perform rectification works in accordance with the matters specified in the schedule to these orders. Rectification works are to be paid for by the Respondent; Within five (5) days after completion of the rectification works, the Applicant is required to pay the Respondent the sum of $8,000. To the extent that there is any subsequent dispute about the standard of the rectification works, the acceptability or otherwise of the rectification works is to be determined by Mr Luke Owen-Jones. If Mr Owen Jones is required to make any determination, his fees are to be met by the Respondent. The rectification works specified by the Tribunal are as follows: · Misaligned roof screws: Roofing screws that are very obviously out of alignment are to be removed and the residue holes are to be made good by means of a combination of rivet and neutral cure silicone. Efforts are to be made where necessary to improve the visual appearance of lines of roof screws when their appearance is assessed as unsightly from ordinary viewing vantage points. · Excessive sealant: Instances of excessive sealant residue on the roof are to be cleaned. · Missing screws, under-tensioned and over-tensioned screws: Tension on screws will be inspected and adjusted where necessary. Damaged washers will be replaced. Screw patterns will be adjusted in accordance with the requirements of the roofing and walling installation manual; · Valley gutters/valley ends: variations in the ends of valley gutters are to be trimmed and straightened in order to ensure alignment of gutter ends and a neat visual appearance, particularly wherever visible from ground height. · Flashing installation: where necessary, excessive/unacceptable gaps on the flashing are to be rectified. Any unfinished flashings where the roof abuts external wall cladding are to be completed. · Hip and ridge cappings are to be rectified by the reduction of excessively large scribed gaps and the installation of sealant in a manner that meets with the manufacturer’s recommendations. Damaged sections of capping should be repaired, or if necessary replaced. Incomplete hip-end flashings are to be finished off correctly. · Cut sheets on the main section of the front elevation: Consideration is to be given to replacing these sheets if deemed necessary by the installer for aesthetic reasons. · Swarf: all swarf is to be removed from the roof and gutters. | |
| CATCHWORDS: | Building matters - dispute between builder and roofing subcontractor - Subcontractor claim for outstanding payment - counterclaim by builder for defective works - dispute as to extent of necessary rectification - Scope of rectification assessed by the Tribunal | |
APPEARANCES and REPRESENTATION (If any):
Applicant, in person
Respondent, in person
| REASONS FOR DECISION |
Factual Background and Applicant’s Position:
Mr Michael Chopiany is a licensed roofing and cladding contractor who trades under the name of Resurrected Roofs Pty Ltd, and conducts business primarily on the Sunshine Coast. Mr Chopiany is the sole corporate officer of Resurrected Roofs Pty Ltd.
On 11 September 2014, Mr Chopiany received a telephone call from a Deborah Crosby, who advised that she and her husband, Mr Darren McCarthy, were building a new home, on acreage, at Dulong. Deborah Crosby asked Mr Chopiany to come out to the construction site at Dulong and meet with her husband, in order to quote for the installation of their new roof.
Mr McCarthy is a registered builder who operates under the name of Cohiba Constructions and was building the house at Dulong, with his wife named as the client.
The following day Mr Chopiany met with Mr McCarthy on site and was told that Mr McCarthy would supply all the necessary materials, and the scaffolding, and Mr Chopiany was to quote on the basis of ‘labour only’. Mr McCarthy wanted the job done within 9 days, if possible.
On 13 September 2014 Mr Chopiany sent Mr McCarthy a quote via text message, indicating that the job could be done for $8,800 (inclusive of GST), yet Mr Chopiany also advised that because of other jobs for which he was already obligated, he did not think that he could complete the requested works within the desired period of 9 days. On that same day, Mr McCarthy responded to that text with another text that simply read: “that’s fine”.
On 15 September 2014 Mr Chopiany arranged for sub-contractors to commence installation of the roofing battens at the house at Dulong. Yet, when Mr Chopiany’s sub-contractors arrived on site they telephoned him and said they would have to increase their own quote for the job, because they had not realised: (a) how steep (and hence difficult) the roof was; and (b), how complex the job was, given the unusually high number of hips and valleys incorporated into the roof design. Mr Chopiany then contacted Mr McCarthy – again by telephone - and advised that his original quote was too low and was insufficient to cover his own costs such that he would need to increase the quoted price to $11,000, (inclusive of GST). Mr Chopiany says that approximately 10 minutes later Mr McCarthy called him back and told him that the proposed price increase was acceptable, and to proceed with the roof installation.
I accept Mr Chopiany’s evidence that the contracting parties agreed to increase the price for the roof installation to $11,000, inclusive of GST, and that this oral variation occurred on 15 September 2014.
On 29 September Mr Chopiany received a progress payment of $3,000 from Mr McCarthy. To date, this is the only payment that he has received for any of his work on the roof at Dulong Road.
By 8 October 2014 the roof installation had been substantially completed. Late that afternoon Mr Chopiany sent Mr McCarthy a text message providing bank details and requesting payment of the remaining $8,000. However, the following day, Mr Chopiany received a text message in reply from Mr McCarthy advising that he was very unhappy with many aspects of the job.
On 10 October 2014 the two gentlemen met on site and had a discussion about the roof. Mr McCarthy indicated that he was unhappy with the standard of Mr Chopiany’s work and suggested that both parties should now engage their own independent certifier in order to inspect the roof, and advise. Mr McCarthy complained that the roof had been “completely ruined”, by poor workmanship and that it would now need to be replaced, particularly because:
-the valleys were rough and irregular,
-roof sheets had been misaligned and cut out of square;
-the visual line of screws across the roof were not straight and did not accord with an industry expectation of alignment to within +/- 5 millimteres;
-the roof was dirty and still covered in swarf and excess sealant;
-flashings were incomplete; and
-there were numerous unnecessary dents and scratches in the colourbond steel (thus placing the sheets at risk of rusting), as well as numerous unnecessary screw holes.
Mr Chopiany advised Mr McCarthy that the flashings had been left off the roof quite deliberately - because these could not be installed until the (incomplete) wall cladding had been finished by the carpenters, yet he otherwise agreed that there were still a number of minor matters that required at worst a few hours rectification, and that he was more than happy to attend to these things. Although happy to attend to rectification, Mr Chopiany strenuously rejected any suggestion that the roof needed to be replaced altogether.
On 13 October 2014, Mr Chopiany made arrangements for a Mr Luke Owen-Jones (a building certifier), to inspect the roof. During Mr Owen-Jones’ inspection with Mr Chopiany, these two gentlemen were joined by Mr McCarthy and further discussions ensued. Mr Owen-Jones also identified a number of aspects of the work that required rectification and Mr Chopiany again made it clear that he was more than willing to attend to those things. However, by that stage Mr McCarthy refused to let Mr Chopiany attend to rectification, and in fact withdrew Mr Chopiany’s permission to access the site.
Mr Luke Owen-Jones has since produced a report of his inspection that is dated 17 October 2014 (Exhibit Three).
Meanwhile, Mr McCarthy retained his own independent certifier, a Mr Paul Bloomer of Coastal Home and Building Inspections. Mr Bloomer inspected the roof on 15 October 2014 and produced a report that same day (now Exhibit One)
On 22 October 2014, Mr Chopiany sent Mr McCarthy an invoice (No 1508), in the amount of $8,000.
On 30 October 2014, Mr Chopiany e-mailed[1] Mr McCarthy and indicated that despite his being owed $8,000, he would nonetheless accept $5,800 (as a sign of goodwill), and offered to attend to various rectification works that had been specified by Mr Chopiany on the basis of the report he had received from Mr Luke Owen-Jones.
[1]See Annexure MEC 12 to the Affidavit of Mr Chopiany affirmed on 24 February 2015.
In a response dated 1 November 2014 sent by e-mail, Mr McCarthy indicated that would make a final payment of $5,800 yet on the proviso that Mr Chopiany undertook rectification in accordance with the different list of defects listed by Mr McCarthy in his e-mail, which were based on the report that he had received from Mr Paul Bloomer. That list of works included a requirement that Mr Chopiany replace all sheets that were scratched, or in any way damaged, as well as that Mr Chopiany meet the costs of all materials and scaffolding himself. These demands were refused by Mr Chopiany, who contends that these demands are excessive, and unreasonable.
By this stage the parties were at an impasse. On 10 November 2014 Mr Chopiany commenced QCAT proceedings seeking the payment of $8,000 together with interest and costs.
Respondent’s Position
On 4 December 2014, Mr McCarthy commenced his own claim in the Tribunal against Mr Chopiany seeking the sum of $58,805.00 in order to rectify the defective work performed by Mr Chopiany (to replace the roof); as well as relief from any requirement to now pay the $8,000 claimed by Mr Chopiany. In the contentions supporting that cross-application Mr McCarthy relies on the building inspection report that he had obtained from Mr Bloomer.
The two competing claims have been consolidated by an order of the Tribunal and are now described as matter BDL291-14. Mr McCarthy is named in the consolidated proceedings as the Applicant and Mr Chopiany is now named as the Respondent, notwithstanding that Mr Chopiany had commenced his minor debt claim first in time.
The matter came on for hearing before me, at Maroochydore, on 21 August 2015. Each of Mr McCarthy and Mr Chopiany were self-acting. In addition to taking evidence from the bar table from each of them, the Tribunal heard oral evidence from Mr Bloomer and Mr Luke Owen-Jones. In addition to their respective individual reports (received into evidence in these proceedings as Exhibits 1 & 3), Mr Bloomer and Mr Owen-Jones participated in an expert’s conclave on 21 August 2015, and thereby produced a joint experts’ report (now Exhibit 2).
Although Mr McCarthy has maintained that the entire roof needs replacing, at the end of it, neither Mr Bloomer’s opinion, nor that of Mr Owen-Jones lends any proper support for that proposed course of action.
Numerous photographs were put into evidence before me, and I have now had the benefit of a close reading of the two expert reports, and their joint report. The photographs reveal the roof to be very steeply pitched one, with a ‘relatively complex’ design. Mr Chopiany says that these features made it a very difficult roof to install and the challenges were then only compounded because he was short-handed on the job because a number of men in his usual installation crew flatly refused to do the job, owing to the steepness of the roof. Mr Chopiany candidly admits that, in consequence of these problems, there were a ‘higher than usual’ number of defects at the end. These are now amply revealed in the photographs that I have seen. Importantly, it needs to be recorded here that despite the observed defects, the roof does not leak. The defects are therefore cosmetic, rather than structural.
Both Mr Bloomer and Mr Owen-Jones were of the view that there were several aspects of the roof that require rectification, yet as I have previously mentioned, neither of the experts would support the roof being replaced.
Although Mr McCarthy is of the view that roof sheets that have been scratched or cut need to be replaced, the need for that is not supported by any of the technical literature that I have examined as part of my deliberations. In this regard, the Bluescope “Technical Bulletin No. 2”, as issued on September 2013,[2] indicates that cut edges and scratches in colour bond steel are not at risk of corrosion, because of the product design, which intends for surface layers of zinc, aluminium, and magnesium to sacrificially corrode, in order to protect any exposed steel at cut edges.
[2]Annexure MEC 17 to the affidavit of Michael Ernest Chopiany affirmed on 24 February 2015
Mr McCarthy is of the further view that sheets that have redundant or misaligned screw holes should also be replaced in their entirety, because he says these are unsightly, and because any competent and tradesman-like installation requires that screw-line alignment should have a tolerance of “no worse than” +/- 5mm. Yet, Mr Owen-Jones observed in his evidence (and I now accept), that there is no industry standard in relation to this screw-line tolerance, and it is accepted practice in the roofing industry to fill additional (ie unnecessary) screw holes by means of rivets and silicone. Although the photographs do reveal a number of misaligned screws that are unsightly, on balance, I am of the view that to require the total replacement of sheets because there are some misaligned screws would be excessive, and is unwarranted. Mr Chopiany has proposed that misaligned screws be removed and the holes then filled by means of riveting. I regard that as an acceptable solution. Although there are some scratches on the roof, most of these are less than 2mm in width and these are not visible from the ground. Again, the manufacturer’s technical bulletins makes clear that scratches less than 2mm ought be left untreated, because the steel of the roof will be sufficiently protected by galvanic action. On this basis there is no reasonably justifiable basis requiring that all the sheets on the roof to be replaced. There are a few other problems with this roof that do require remedial attention. In particular, the scribing of some of the ridge capping is not as neat as it could be, and several roofing screws have been either over- or under-tensioned; and some screws are missing altogether. Some of the cut edges where these meet at the valleys also need to be recut to neaten the finished appearance of the roof.
It seems to me that the most appropriate course of action in this case, - particularly given Mr Chopiany’s willingness to acknowledge that the roof has aspects that still require work - is to now order that the applicant arrange for rectification works to be performed on the roof in accordance with a scope of works that has been specified by the Tribunal, in light of the evidence.
Mr McCarthy has expressed a very clear unwillingness to have Mr Chopiany return to site. Given the conflict that has previously arisen between the parties in this case I will not now order that the rectification works be performed by Mr Chopiany.
Accordingly, the Tribunal will instead order that Mr Chopiany has 21 days from the date of these orders to provide Mr McCarthy with a list of three (3) alternate roofing contractors who are available to perform the remediation works specified by the Tribunal and Mr McCarthy shall then have the right to select a roofing contractor from those three firms, who will then perform rectification works in accordance with the matters specified in the schedule to these orders. These remediation works are to be paid for by Mr Chopiany, and within five (5) days after completion of the rectification works, Mr McCarthy is required to pay Mr Chopiany the sum of $8,000. To the extent that there is any subsequent dispute about the standard of the rectification works, the acceptability or otherwise of the works is to be determined by Mr Luke Owen-Jones. If Mr Owen Jones is required to make any determination, his fees are to be met by Mr Chopiany.
The scope of the remediation works ordered by QCAT will be confined to the following:
·Misaligned roof screws: Roofing screws that are very obviously out of alignment are to be removed and the residue holes are to be made good by means of a combination of rivet and neutral cure silicone. Efforts are to be made where necessary to improve the visual appearance of lines of roof screws when their appearance is assessed as unsightly when able to be easily viewed.
·Excessive sealant: Instances of excessive sealant residue on the roof is to be cleaned.
·Missing screws, under-tensioned and over-tensioned screws: Tension on screws will be inspected and adjusted where necessary. Damaged washers will be replaced. Screw patterns will be adjusted in accordance with the requirements of the roofing and walling installation manual;
·Valley gutters/valley ends: variations in the ends of valley gutters are to be trimmed and straightened in order to ensure alignment of gutter ends and a neat visual appearance, particularly wherever visible from ground height.
·Flashing installation: where necessary, excessive/unacceptable gaps on the flashing are to be rectified. Any unfinished flashings where the roof abuts external wall cladding are to be completed
·Hip and ridge cappings are to be rectified by the reduction of scribed gaps and the installation of sealant in a manner that meets with the manufacturer’s recommendations. Damaged sections of capping should be repaired or if necessary replaced. Incomplete hip-end flashings are to be finished off correctly.
·Cut sheets on the main section of the front elevation: Consideration is to be given to replacing these sheets if deemed necessary by the installer for aesthetic reasons.
·Swarf: all swarf is to be removed from the roof and gutters.
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