McLachlan v Murray
[2011] QCAT 143
•14 April 2011
| CITATION: | McLachlan v Murray [2011] QCAT 143 |
| PARTIES: | Mr Steven Joseph Clive McLachlan |
| v | |
| Mr Craig Murray |
| APPLICATION NUMBER: | BDL357-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Kate Buxton, Adjudicator |
| DELIVERED ON: | 14 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Respondent pay to the Applicant the sum of $998.30 in claim and filing fee within 30 days of the date of this order. |
| CATCHWORDS: | Domestic building dispute – works to caravan – proper measure of losses sustained |
APPEARANCES and REPRESENTATION (if any):
| Hearing was on the papers. |
REASONS FOR DECISION
By application filed 9 November 2010 the applicant homeowner, Mr McLachlan, seeks rectification of defective work to the estimated value of $1,696.60.
This application was commenced as a domestic building matter although, as it relates to a caravan, it is excluded from the scope of the Domestic Building Contracts Act 2000. I am therefore dealing with it as a minor civil dispute and have made the necessary order transferring it to that list.
In March and April of 2010 Mr McLachlan engaged Mr Murray, a cabinet maker, to undertake renovations to his caravan. Mr McLachlan paid to Mr Murray the sums of $2,500 prior to the works commencing[1], $1,000.00 once work had commenced[2] and $850.00 upon completion.[3]
[1] ANZ lodgement receipt dated 13/03/2010 annexed to the application.
[2] ANZ lodgement receipt dated 19/03/2010 annexed to the application.
[3] ANZ lodgement receipt dated 23/04/2010 annexed to the application.
The circumstances surrounding Mr Murray’s engagement, the work done and the payments received have been summarised, from Mr McLachlan’s point of view, in attachment one to his application.
He explained that the work undertaken on the caravan was for the purpose of Mr and Mrs McLachlan moving into it when they were due to vacate their house on 26 April 2010. Therefore, time was of the essence to them. I accept that this was communicated to Mr Murray and that the various delays prior to completion of the job caused distress to Mr and Mrs McLachlan as 26 April 2010 approached.
Upon completion of the job Mr Murray requested a final payment of $1,250.00 (having already received of $3,500.00 at that point). Mr McLachlan explained to Mr Murray that:
a)The work fell short of his expectations; and
b)The work was not to schedule.
In light of these factors Mr McLachlan offered, and Mr Murray accepted, a figure of $850.00 as final payment for the work (thereby discounting the final invoice by $400.00).
After the job was complete Mr McLachlan noted two issues:
The shower door has dropped, Mr Murray was invited and did in fact attend to attempt to rectify this issue; and
Staining at the base of the shower, indicating water ingress into the frame. Mr Murray was invited to attend to rectify this issue but has not done so.
It is this second issue, of water ingress in the base of the shower and the attendant framing, which is at the heart of this dispute.
At the time of filing this application the issue had not been rectified and the claim was for the anticipated costs to Mr Murray of doing so. Pursuant to QCAT’s directions made on 25 February 2011 Mr McLachlan produced receipts,[4] together with an email setting out his calculations of the cost of removing the existing shower and rebuilding it. His claim can be summarised as follows:
a)Labour – 24 hours at $35 per hour for work undertaken by Mr McLachlan himself to remove, dump and rebuild the shower, total $840.00.
b)Materials: including shower tray and incidentals, totalling $856.60.
c)Filing fee of $255.00.
[4] Bundled together and marked “exhibit 1”.
As to the labour component, Mr McLachlan has not produced evidence as to the reasonableness or otherwise of the hourly rate sought. I accept that he has undertaken the rectification work himself and that this took him 24 hours to complete. However, he has not provided any evidence of his special skills or qualifications which would permit him to recover a tradesman’s hourly rate of $35. Indeed, had a tradesman undertaken the work it may have been completed in significantly less time than 24 hours. I will allow the claim for 24 hours labour but at the rate of $20.00 per hour to reflect the cost of unskilled labour. This is the proper measure of losses sustained by Mr McLachlan based on the evidence he has produced and comes to a figure of $480.00.
[10] As to the materials, the receipts produced by Mr McLachlan are largely legible and I accept that they refer to materials used in rebuilding the shower. There is a receipt from Caboolture discount handyman materials, which is undated but where the total amount of $585.00 can be easily read. Unfortunately, the two items which are claimed are not legible on the receipt and the amount cannot be read on the copy tendered to QCAT. Doing the best I can to reconstruct the most likely content of this receipt, taking into account the other items on the receipt and the total, which are clear, I will treat this invoice as demonstrating a claim for materials in the sum of $179.10. When added to the other (legible) receipts in exhibit 1, Mr McLachlan has produced evidence to sustain a claim for materials in the sum of $663.30 being the sum of the receipts claimed.
[11] The amounts of $480.00 for labour, $663.30 for materials and $255.00 filing fee total $1,398.30.
[12] Having established the proper measure of the applicant’s claim, the next question is whether the respondent is liable to pay this amount. Mr Murray has not participated in any meaningful way in these proceedings. He has not filed material and has not appeared when invited to do so. I conclude from this that he does not seriously dispute the liability issues raised against him. It is in this context that I have been asked to determine this matter on the papers, on the basis of the material filed by the applicant, and without the need for a hearing.
[13] I have also had the benefit of some photographs, attached to the application, which show the extent of the framing and water damage, the subject of this complaint. I accept that a water proof shower was part of the works that Mr Murray agreed to provide and that he has not done so. He is therefore liable for the cost incurred by Mr McLachlan in rectifying the work itself.
[14] This liability is subject to one issue to which I alluded to earlier. When the file invoices rendered by Mr Murray to Mr McLachlan[5] it referred to a “discount” of $400.00. This is the same amount referred in Mr McLachlan’s summary as a reduction due to, amongst other things, the work falling short of expectations.
[5] Attachment 2 to the application.
[15] In my view, the proper characterisation of this payment is a reduction of the overall quoted cost for the job. No specific evidence has been provided by Mr McLachlan as to which aspects of the job were defective. He stated, and I accept, that the water ingress issue was not identified until after this discount was given. However it appears, in the absence of any other explanation, that this was a reduction to the contract price offered and accepted because of concerns already in place in relation to the quality of the work. In those circumstances, it must be taken into account as an amount already credited to Mr McLachlan in terms of assessing the remaining claims against Mr Murray.
[16] I have already indicated that the claim (including filing fee) totals $1,398.30. Taking into account the benefit already received by Mr McLachlan of the reduction in the contract price of $400.00, the amount payable by Mr Murray is $998.30. I order that the Respondent, Mr Murray, pay to the Applicant the sum of $998.30 in claim and filing fees within 30 days of the date of this order.
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