Mead v Walker
[2017] QCAT 432
•4 December 2017
CITATION: | Mead v Walker [2017] QCAT 432 |
PARTIES: | Gary Mead |
| v | |
| Scott Walker (Respondent) | |
APPLICATION NUMBER: | BDL316-16 |
MATTER TYPE: | Building matters |
HEARING DATE: | 1 September 2017 |
HEARD AT: | Maroochydore |
DECISION OF: | Member Howe |
DELIVERED ON: | 4 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The applicant pay the respondent the sum of $3,150 within 14 days of the date of order. 2. Any application for costs be made by filing in the Tribunal any submissions and evidence about costs and providing a copy to the other party by 11 December 2017. 3. Any submissions in reply by the other party be filed in the Tribunal and a copy provided to the party making the application for costs by 18 December 2017. 4. The application for costs be determined on the papers. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF COTNRACT – DAMAGES – where oral agreement as to painting work – scope of contract – where defective work – costs of rectification Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, Bellgrove v Eldridge (1954) 90 CLR 613 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272; [2009] HCA 8 |
APPEARANCES: | |
APPLICANT: | Gary Mead appeared in person |
| RESPONDENT: | Scott Walker appeared in person |
REASONS FOR DECISION
Mr Mead is a painter and he entered into an agreement with Mr Walker to paint the inside of Mr Walker’s house. They initially agreed on a price of $3,920 inclusive of GST. Mr Mead says there was additional work agreed to be done for $300. There was no written contract between the parties. Mr Walker verbally accepted an emailed quote from Mr Mead.
Mr Mead started the job on 15 September 2016 and the work was done over a couple of months because Mr Mead had other work on. Mr Walker found problems with the work. He made a part payment of $1,600 only and required the work to be remedied before he would pay the balance. Despite Mr Mead returning on a number of occasions to fix things, Mr Walker maintained the job was poorly done and he refused to pay the rest.
Mr Mead subsequently sued in the tribunal for the balance of $2,620 owing plus filing fee.
Mr Walker has counterclaimed for the costs of rectification of the painting work. The quotes for that range from $6,270 to $11,550.
The Agreement between the Parties
Prior to giving his quote Mr Mead went through the house with Mr Walker talking about the job. According to Mr Mead, he understood all he was asked to do was a simple refresh paint job. Mr Walker would do some of the work himself. Some rooms were painted in dark shades and he was asked to paint those dark areas to match the lighter shades in the house. He would supply paint for the ceilings and Mr Walker would paint the ceilings. Where the rooms had dark shade painted walls he would paint three coats of colour that matched to the rest of the house. In some rooms such as the bedrooms the walls were already under-coated white and he would apply two coats there. In the rest of the house where the walls were already painted in the lighter desirable shade he would paint one coat in colour matching paint.
Mr Mead said he understood Mr Walker wanted a cheap job and that is what he did. He said his low quote reflects that understanding. He said such things as Mr Walker wanting to do the ceilings himself; asking for a cash price; performing floor sanding himself; instructing him to use a roller on VJ walls instead of a brush (which would not give as good a job); changing the colour of the smaller darker areas to match the colour of the larger lighter areas instead of the other way around; and generally choosing all of the cheapest options, led him to believe Mr Walker’s priority was a cheap job. According to Mr Mead he was not engaged to paint to the Australian standard. If he had been his quote would have been two to three times more expensive.
Mr Walker denies any request on his part or agreement between the parties that they had agreed on a cheap job below usual standards. He simply asked Mr Mead to quote to paint internally, he was given a price, and he expected a good tradesman-like finish to the work. He says instead the work was performed poorly and he has been left with a poorly painted interior to his home. He says it was agreed that in bedroom one where the walls were already under-coated Mr Mead was supposed to paint two coats but only two walls had two coats applied and the rest given only one coat. In bedroom two all the walls were to be painted in two coats but only two walls were painted, the rest were not. There were runs in the paint, unpainted areas in doorways, some coats of paint were thin and lacked cover and there was grit or rubbish in the final coat at various places throughout the house.
Mr Mead’s quotation given on 12 September 2016 states that Mr Mead would patch any damaged areas of walls throughout and “sand undercoat”. Mr Mead said that referred only to the areas of patching, not generally throughout the house. Additionally he was to under-coat bare timber, putty nail holes and gaps and cracks to walls and timberwork; repaint walls with Dulux wash and wear low Sheen acrylic; sand all timber work and doors; repaint timber work with Dulux Aqua-enamel gloss colour matched; and repaint doors with Dulux Aqua-enamel semi-gloss colour matched. His quote for that is noted as “Cash $3920”.
Significantly, Mr Mead does not claim the parties agreed or discussed between themselves that the job would be to any particular standard, nor indeed talked about a cheap job below generally accepted standards. Mr Mead says in his statement of evidence[1] that because Mr Walker chose all of the cheapest options “all indications given to me” suggested that Mr Walker wanted “a cheap refresh of paint work, and to unify colour scheme throughout with no emphasis given to existing imperfections.”
[1]Ex 1 page 1.
Mr Mead said if he was engaged to paint “to standard” then he would have charged a price similar to some of the quotes given to Mr Walker to rectify the work. Mr Walker disputes Mr Mead’s assertion that he gave an indication that he wanted a cheap job below standard.
Mr Walker refused to pay the balance of Mr Mead’s account. Mr Walker engaged a painting consultant, Mr Englert. Mr Englert inspected the work and wrote a report.[2] He concluded the job was not up to the Australian standard AS2311:2009 Guide for the Painting of Buildings. He found many instances where the work would have to be done again. He found foreign matter, as he described it, in the paint in various rooms and in various places, poor coverage of paint on some walls and he found a number of window frames and doors and door frames poorly painted.
[2]Ex 4, 12 December 2016.
He said that in his opinion the foreign matter found throughout the house at various places was contained in the last layer of paint applied by Mr Mead. He said if he did not think that was the case and suspected the foreign matter was already there in previous coats he would not have commented on it. However the grit or dirt or whatever the foreign matter was, was sharply defined and that indicated there was very little paint over it, namely only the final coat applied by Mr Mead.
Mr Dan Walker, a painting contractor (no relation to the respondent), provided a quotation to rectify the paint defects based on Mr Englert’s report. He also provided a separate report about the defective work.[3] He referred to the bedroom one walls being patchy and that one could see through the paint to the under white coat. He referred to numerous paint drips and dags on the VJ walls. He says a wall in the cupboard was missed. The walls in the large dining room were “sheery” and not uniform in respect of sheen level. He refers to the kitchen walls having foreign matter present in the paint work. In respect of the woodwork he says all the woodwork required attention. He noted the skirting boards had an excessive amount of foreign matter present and also some crazing in bedroom two.
[3]Ex 7.
In respect of the alleged foreign matter present in the paint, Mr Mead suggested dust from outside the building or dust from recently performed floor sanding before the painting was done but after he had given his quote could have been the problem, if there was a problem. He didn’t admit there was. However, Mr Englert said it was in any case the contractor’s responsibility to ensure the surfaces to be painted were clean to prevent contamination happening. I accept that was indeed the responsibility of the painting contractor.
I also accept the evidence given by Mr Englert that there was foreign matter throughout the paint and his general opinion that the work was below usual contractor standard. He appeared to me to be knowledgeable in the trade and gave his evidence in an independent fashion about what he found in his visit to the house. In so far as his evidence conflicts with that of Mr Mead, I prefer Mr Englert’s evidence.
Mr Walker was not called to give his evidence and make himself available for cross-examination and I accord less weight to his statement of evidence accordingly, but I note it generally accords with that of Mr Englert.
The agreed cost of the work was in excess of the regulated amount under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), that is over $3,300, and therefore it was a regulated contract under Schedule 1B of the QBCC Act. By s 19 of Schedule 1B, certain warranties were therefore incorporated into the agreement. By s 20 the contractor warranted that the materials to be supplied would be good and suitable for the purpose of use. By s 22 the contractor also warranted that the work would be carried out in an appropriate and skilful way and with reasonable care and skill.
I conclude that there was foreign matter either in the paint or on the interior surfaces before the paint was applied, as was suggested by Mr Englert, and using such tainted product or failing to properly prepare the surface to be painted breached the s 19 warranty. Further, I find the work performed was not carried out in an appropriate and skilful way with reasonable care and skill and the contractor was also in breach of his s 22 warranty.
I find it was never discussed between the parties nor agreed that the job would be a cheap job below usual standards nor that the statutory warranties abovementioned would therefore not apply. Mr Mead concedes there was no actual discussion between the parties about a cheap job or below standard work.
There is also no evidence before the tribunal to suggest that Mr Mead’s quote for the work was so obviously low that Mr Walker should have realised that the job was going to be cheap and below trade standard.
I conclude that the agreement between the parties was simply one where for a price of $3,920 Mr Mead would paint the interior of Mr Walker’s house. There was no discussion about standard and there was no basis upon which the statutory warranties did not apply. As stated I accept the evidence of Mr Englert that the job was not performed to an acceptable contractor standard or in a tradesman like fashion.
Cost of Rectification
In Bellgrove v Eldridge,[4] the High Court adopted a statement of principle about damages in building cases as espoused in Hudson on Building Contracts, namely:
The measure of the damages recoverable by the building owner for the breach of a building contract is, it is submitted, the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract….
[4](1954) 90 CLR 613.
The High Court qualified that with the requirement that not only must the work to be undertaken be necessary to produce conformity to the contract but also it must be a reasonable course to adopt.[5] The High Court subsequently said in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd[6] that the test of “unreasonableness” is only to be satisfied by fairly exceptional circumstances.
[5]Ibid, 618.
[6][2009] HCA 8; (2009) 236 CLR 272.
There are no exceptional circumstances here making rectification as proposed by the owner unreasonable.
Mr Walker submitted a number or quotations for rectification of the work. He said, as indeed reference was made in a number of quotations, to the quotations being based on Mr Englert’s report (Dec Con report) and findings. Mr Mead challenges that and says a number of the quotations are for a full repaint throughout.
Mr Close of Creative Coatings quotes $6,270 inclusive of GST to repaint and repair as listed in Mr Englert’s report. He gives no details of the breakdown of his quotation.
Brush Right Painting quotes $8,350 inclusive of GST. This quotation says it includes repainting all walls, all windows, window frames, doors, door frames, cutting in of correct colour to corners (sic).
Xtreme Finishes quotes a price of $10,230 and refers to sanding and patching all interior walls and undercoating patches and applying two coats of paint, sanding and undercoating and coating all architraves with one coat of gloss enamel and sanding and coating all windows and doors and applying one coat of satin enamel.
Finally Dan Walker quotes $11,550 inclusive of GST. His quotation is detailed and follows the Dec Con report in all material respects.
The Dec Con report mentions the cornice to be repainted. The Dan Walker quotation refers to three rooms. Mr Mead said he cut in the bottom of the cornice with paint to match the ceilings in the future when Mr Walker painted the ceilings himself. I accept his explanation why he painted the bottom of the cornice in those rooms and I accept that course was agreed between them and that Mr Walker was to paint the ceilings himself in due course. The cost of repainting the cornice and also the ceilings in the affected rooms should not be borne by Mr Mead. The difficulty is that that cost is unknown. None of the contractors gave a price for that work alone.
The quotes by Brush Right Painting and Xtreme Finishes exceed the defects to be remedied, which I conclude are accurately listed in the Dec Con report, and therefore those quotations cannot be relied on. Further, the Dan Walker quotation seems excessive given the quotations of the other contractors and specifies more extensive work than the Dec Con report covers.
In the circumstances I conclude the Creative Coatings quote of $6,270 is reasonable and appropriate, save that there should be a reduction for the cost of painting the ceilings and cornice in three rooms. I reduce the quote by $500 to reflect that reduction, leaving the cost of rectification at $5,770.
From that the balance owing to Mr Mead under the contract must be subtracted. If it is not taken into account then Mr Mead achieves a windfall with the finished job only costing him the $1,600 paid to date. Mr Mead claims a balance of $2,620, of which $300 is for additional work Mr Mead was asked to do for Mr Walker towards the end of the job. I accept Mr Mead’s evidence that those extras have not been paid for and are due. Taking that into account Mr Mead must pay a balance amount of $3,150 to Mr Walker.
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