Mecano Sheds Pty Ltd v Jakobsen - [2014] QCAT 244

CITATION:

Mecano Sheds Pty Ltd v Jakobsen [2014] QCAT 244

PARTIES:	Mecano Sheds Pty Ltd (Applicant)
v
Jorgen Jakobsen (Respondent)

APPLICATION NUMBER:

BDL008 – 14

MATTER TYPE:

Building matters

HEARING DATE:

30 May 2014

HEARD AT:

Hervey Bay

DECISION OF:

Member Milburn

DELIVERED ON:

2 June 2014

DELIVERED AT:

Hervey Bay

ORDERS MADE:

Mr Jakobsen is ordered to pay to Mecano Sheds Pty Ltd the sum of $3450.

CATCHWORDS:

Building dispute – duty to mitigate loss – denial of opportunity to remedy defects – inability to mitigate due to the actions of the homeowner – acceptance of the construction by the owner

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mecano Sheds Pty Ltd represented by Mr Geoff Yelaska, director

RESPONDENT:

Jorgen Jakobsen

REASONS FOR DECISION

Mr Jakobsen brought an application before the tribunal dated 30 January 2014. He requested the tribunal order Mecano Sheds Pty Ltd to remove a shed as supplied to him at his address in Bundaberg and either replace it or provide him with a full refund. He also sought compensation for any legal or administration fees incurred by him in relation to this case and for personal damages. Finally he sought an order of the tribunal to compel a representative of Mecano Sheds to provide an official apology to his extended family. The tribunal has no power to make an order to compel a party to provide an official apology to another and the tribunal cannot consider making an order in relation to ‘personal damages’ given the vague nature of the claim sought. Essentially then, the tribunal is asked to consider a compensation claim in relation to the allegations brought by Mr Jakobsen.
Mr Jakobsen sought redress because: the shed did not comply with the description as ordered; it was incomplete; the concrete slab upon which it was constructed was poured without proper preparation, foundations and formwork; the shed was poorly erected. In support of this claim he says that there was no site supervision undertaken by Mecano Sheds prior to the pouring of the slab. He was unable to particularise why that is an issue and this aspect of his complaint is discounted by the tribunal as irrelevant. He phoned a representative of the company to complain that occupational and health and safety laws had been breached during construction. Such laws may or may not have been breached, but it is not a question to be determined by the tribunal as it is, in so far as his claim is concerned, irrelevant. He argued that the drawings, as submitted to the relevant building inspector, had been altered by Mecano Sheds in order to pass inspection. That point was not substantiated to the satisfaction of the tribunal but in any event, once again, Mr Jakobsen has been unable to identify how that might affect the quantum of his claim or identify how his position had been altered or his interests compromised as a result.
Mr Jakobsen felt his application to the tribunal was necessary because Mecano Sheds had failed to provide any adequate voluntary resolution of his complaint (where he requested the company fix the problems he had identified and bring the shed to an "as new" condition), failed to acknowledge the full scope of damage caused through their construction and had wrongly defended its builders, despite what was described by Mr Jakobsen as "overwhelming evidence of gross incompetency". Mr Jakobsen was able to convince the tribunal that there was some evidence of incompetency on the part of the shed builder. Mr Jakobsen was unable to convince the tribunal that the company had wrongly defended its position in this regard; as the company, through its director Mr Yelaska,[1] had readily admitted that in this instance the erection of the shed had been completed, in some ways, poorly.
[1]Mr Yelaska gave evidence at the hearing of this matter.
The shed, as ordered, was to be constructed over the Christmas 2013/New Year 2014 period and, as a result of what Mr Jakobsen described as a botched effort, it caused, he says, "anguish, disappointment and inconvenience to the buyer and family over Christmas". The tribunal is not in a position to provide a remedy to Mr Jakobsen in relation to these personal issues complaints, whether justified or not.
Mecano Sheds operates from its commercial premises at Gympie. Before Mr Jakobsen brought his application, Mecano Sheds brought its own application against him, which was filed at the tribunal registry on 13 January 2014. It was a simple application, claiming payment for an amount outstanding in the sum of $3450. The company says that the contract amount was $22,885, of which the sum of $19,435 had been paid, leaving the residual amount outstanding as claimed. It sought one further order of the tribunal and that was an order "to be allowed to attend the site and fix the minor issues by the builder involved". The company says that the second order is necessary because Mr Jakobsen had refused its representatives entry to his premises to fix the defective work, and categorised as minor issues, which it acknowledged had been detected and which the company claimed could be rectified. The company stated in its application that it was ready and able to rectify the issues and should be given the opportunity to do so. In support of its claim it says that the shed was inspected by a private certifier, who passed it as acceptable and consequently issued a final inspection certificate. That is, notwithstanding the minor issues that had been detected. The tribunal concludes that Mr Jakobsen did not make it possible for the company to attempt to rectify such issues.
This case largely turns on the issue of mitigation of loss. Both parties have acknowledged that there are issues in relation to the construction of the shed which need to be remedied. In short, Mr Jakobsen requests a full refund and the shed building company requests a modest outstanding amount and an opportunity to rectify outstanding issues.
Given that both parties have made applications, I have, for the sake of convenience, nominated Mecano Sheds Pty Ltd as the applicant, given that it filed its application prior to the application filed by Mr Jakobsen.
The evidence presented to the tribunal on behalf of the applicant company comprises primarily of a statement, oral evidence and further material from Ms Toni Power, the Bundaberg based manager of Mecano Sheds. According to her evidence, the job was problematic from the outset. Understandably, the concrete slab needs to be poured before the shed can be erected on site. It was at the stage of making arrangements for the pour of the concrete slab that problems first arose. According to information received by Ms Power, when Mr Jakobsen was contacted on 6 November 2013 by the site foreman an argument arose and Mr Jakobsen complained that the concreter should have arranged to attend upon his site to undertake an inspection on a preliminary basis. Instead, the first contact from the concreter was to do more than complete a site inspection. It was to attend to "prepare and set up for the slab pour[2]". Mr Jakobsen was not able to demonstrate to the tribunal why there was any good reason he delayed the progress of the matter simply because he felt it necessary for the company to undertake a ‘preliminary inspection’ prior to pouring the concrete slab. The tribunal finds that Mr Jakobsen unreasonably and unnecessary obstructed the concreter engaged by the company, which therefore caused consequent delay to the progress of the contractual arrangements. The evidence to the tribunal that this caused the concreter inconvenience and disrupted his work timetable is accepted. I accept the evidence of Ms Power that she attempted to contact Mr Jakobsen to discuss this preliminary issue and that Mr Jakobsen was highly agitated. She says that in her attempt to resolve this preliminary issue she could not "get a word in" and at one point Mr Jakobsen yelled, "Oh shut up". I accept that the reality of the situation is Mr Jakobsen had not moved his belongings[3] out of the way of the intended site pour and had not made suitable preliminary arrangements or organised for someone to assist him in this regard. It was for that reason that Mr Jakobsen did not want the concreter to commence as he had planned.
[2]Undated statement of Ms Toni Power received by the tribunal registry on 2 May 2014
[3]The belongings were substantial. They included a cold room, which was not readily movable.
From the outset, Mr Jakobsen had caused considerable upset and delay with consequent financial implications to the builder and/or the builder’s concreter in circumstances where he had been entirely to blame. The contract, which was called a supply agreement, clearly provides that it is the responsibility of the owner and not the shed constructor to prepare the site ready for the construction of the shed. Clause 5 (d) provides that:
“The customer agrees that it is not the responsibility of Mecano to do any earth works. It is agreed that the customer is to have a levelled, unobstructed pad ready for slab preparation with a maximum of 500 mm tolerance. Mecano will not engage in any slab work until the site is level or unless other arrangements have been made."
Mr Jakobsen had an opportunity to remove his personal belongings and in particular his substantial cold room, from the subject site before commencement of the concrete pour and had failed to do so. The tribunal does not find that alternate arrangements had been made. His aggressive response was most unhelpful. This finding taints the evidence of Mr Jakobsen in relation to other issues.
The concrete slab was poured and the shed was constructed. Mr Jakobsen was not happy and expressed his dissatisfaction with "the finished look of his shed". He once again launched into a tirade; again directed towards Ms Toni Power. He emphatically said that he had not received what he had paid for. He raised the issue of the ceiling height of the shed. There is substance to his argument in this regard. He says that he wanted the ceiling height of 2700 mm. Ms Power said that the contract provided for a standard shed height of 2700 mm which she says is to the eaves or top of the gutter. She said that is how all shed companies quote and in this regard, the tribunal has seen the concurrence agency conditions which allow a shed height of 2700 mm, a copy of the contract which shows the shed height as sold was 2700 mm and a copy of the building permit from the private certifier to this effect. The concurrence agency’s conditions for development clearly stated that:
“The eaves height of the shed must not exceed 2.7 m (measured from the top of the slab)".
This concurrence agency approval was obtained by Mr Jakobsen independently of, and prior to, the involvement of Mecano Sheds. Mr Jakobsen asserted[4] that the definition of an eave is the lowest point of the roof. He was not able to support the statement with evidence. Mr Jakobsen produced the concurrence agency approval letter and it contained conditions which in many ways, predetermined and constrained the extent to which Ms Power could draft the supply agreement contract. The tribunal finds that the shed was built in accordance with the terms of the contract, the concurrence agencies conditions, and it was, on that basis, appropriately certified by the private certifier as being acceptable. The issue, however, is whether there was some misrepresentation in relation to the height of the ceiling shed. I accept that it is at a lower height than Mr Jakobsen had expected it would be. The question however is whether Mr Jakobsen is entitled, at law, to receive a shed at the height he had expected. That could occur, notwithstanding the terms of the contract, if the tribunal was satisfied that the shed builder had misrepresented the position to Mr Jakobsen or had failed to comply with its obligations under the Australian Consumer Law.
[4]Mr Jakobsen included this comment at page 3 of his statement presented to the Tribunal.
A shed, of course, is not a dwelling house and the tribunal accepts that generally speaking sheds are not completed with a ceiling. In his own mind, Mr Jakobsen wanted to have a shed which incorporated a ceiling height of 2700 mm. That is, he wanted a finished ceiling height of 2700 mm, but did not explain this fact to the representatives of the company at the time that the contract was made between them. The tribunal finds that Mr Jakobsen did not convey this message to the shed building company representatives and that at no time during the quoting process did he ever mention that he wanted a finished ceiling height of 2700 mm. The method that Mr Jakobsen intended to employ for the purpose of lining the ceiling appears to be unusual and quite specific. What he intended to do was line the ceiling with sheeting using 40 mm ceiling batons and 60 mm Styrofoam sheeting. I find that the representatives of the shed building company, who were involved in the quoting and contractual process, in all likelihood would have queried him in relation to this technique had it been brought to their attention. I accept the evidence of Ms Toni Power, who gave evidence as to the industry standards, where she says. "It is important to note here that throughout the shed industry the standard height always refers to the eave or top of gutter unless otherwise stated[5]." The contract entered into between the respective parties was supplemented, albeit after the initial contract was signed, by plans and specifications. In my view the plans clearly indicate that the shed was to be constructed whereby the exterior walls were to be 2700 mm to the intersection of the wall and the roofline; that is to say to the point of the eaves. None of the drawings suggest in any way that the proposed ceiling height as anticipated by Mr Jakobsen was in any way reflected in the plans, nor could it be given my finding that it was not discussed at the contract negotiation stage. In short, the tribunal is not satisfied that the company had failed to fulfil its obligations in this regard. The tribunal finds that the shed was provided as per the terms of the concurrence agency condition (sourced by Mr Jakobsen himself), the description outlined in the contract and in accordance with standard industry practice. The tribunal finds that Mecano Sheds had not breached any obligation owed to Mr Jakobsen under Australian Consumer Law in this regard. Mr Jakobsen was not entitled to refuse to accept the shed because of the height to which it was built. Consequently, on that basis, Mr Jakobsen was obliged to pay the balance of money which was due and payable to the shed building company.
[5]Undated statement of Ms Toni Power received by the tribunal registry on 2 May 2014
Mr Jakobsen did raise other issues in relation to the finished product, and initially complained of a number of problems, including that in relation to the completed shed:
a)    There was a gap above the roller door which was too large.
b)    A door was hung the wrong way.
c)    There were roof screws left sticking out of the trusses and if someone walked on the roof it would pierce the "cheap thin cladding."
d)    The height of the roller doors was too low.
e)    The window lintel over the roller door was not centred.
f)     The flashing was inadequate.
g)    The ridge cap was poorly constructed.
h)    The wall frame was not joined together correctly.
i)     The cyclone roller doors were not subject to manufacturer’s warranty because they were not fitted by an authorised fitter and not to specification.
j)     The finished product was inadequate.
I accept that there is some substance to the complaints made by Mr Jakobsen in this regard. Ms Toni Power agreed to arrange for the building inspector Mr Wal Kenney to undertake an on-site inspection, which was subsequently completed on 4 December 2013. At that time the building inspector made note that down pipes were not installed. This ought to have been done. I find that Mr Jakobsen instructed the builders not to install the downpipes, as would normally have been done, on the basis that he was running them to a tank and would attend to the matter himself. This point is significant for two reasons; the first is that the building company cannot be held liable in relation to the issue given that Mr Jakobsen had intervened and secondly that it is evidence of acceptance of the shed which may, and I find in this case does, limit Mr Jakobsen's claim. I accept that the building inspector did indicate that save for the downpipe issues the shed was constructed sufficiently well to pass the inspection. Mr Kenney returned following the completion of Mr Jakobsen's work and was satisfied that what had been done was sufficiently appropriate to enable him to certify that the structure as inspected complied with the building approval. His certification in this regard was reduced to writing and is dated 11 December 2013. I find that the certification is prima-facie evidence that the builder had complied with all relevant statutory and contractual obligations. Mr Jakobsen has not presented any evidence to satisfy the tribunal that the prima-facie presumption that I draw from the certification process should be overturned.
The certification process was supplemented by an on-site inspection by Mr Geoff Yelaska on 9 December 2013, undertaken in the presence of Mr Jakobsen. Mr Yelaska is a principal of the building company. I accept the evidence of Mr Yelaska. He says that as result of this inspection Mr Jakobsen raised a number of issues, only some of which had been previously discussed. In short, it is my finding that the builder made every attempt during this process to satisfy Mr Jakobsen, but that Mr Jakobsen for his own reasons and not in good faith rejected the genuine attempts of the builder to satisfy him in relation to the number of outstanding issues. The issues raised by Mr Jakobsen, which the builder indicated could be rectified[6] related to:
a)    the corner flashing, which, according to Mr Jakobsen was "a little flimsy"; a point which was accepted by Mr Yelaska as capable of rectification;
b)    the way the cladding was cut; which Mr Yelaska accepted could and would be rectified with new sheeting;
c)    the flashing on top of the windows; which was accepted by Mr Yelaska as inadequate and capable of rectification;
d)    a number of support brackets supplied by an outside supplier, and relevant to the window locks on the roller doors, where Mr Yelaska agreed to undertake further enquiries and conceded that if the brackets needed to be rectified his company would correct the issue;
e)    the join in the centre of the barge capping; which Mr Yelaska accepted as capable of rectification;
f)     the sharp edges which could be trimmed and which were considered by Mr Yelaska as capable of rectification;
g)    the gap at the top of the front roller doors which could be rectified by the door being raised another 300 mm to 400 mm, with the roll being concealed above the ceiling; conceded by Mr Yelaska as being an appropriate complaint and fixable; and
h)    a similar issue associated with the roller door on the west wall; which Mr Yelaska accepted could be fixed by an additional head piece with cladding to suit.
[6]The tribunal notes the contents of the letter from Mr Yelaska to Mr Jakobsen, which is dated 10 December 2013 and which identifies the items which were the subject of discussions between Mr Yelaska and Mr Jakobsen during a site visit conducted on 9 December 2013.
The other issue which was discussed by Mr Yelaska and Mr Jakobsen on-site, related to the matter of ceiling height. I have addressed this issue above do not propose to revisit it.
Mr Jacobsen did not provide any evidence to support his contention that the concrete slab upon which the shed was constructed was poured without proper preparation, foundations and formwork. His claim in this regard is rejected.

I am of the view that there were issues of relatively minor concern relating to the construction of the shed which were properly raised by Mr Jakobsen in making his complaint. I totally reject the assertion made by Mr Jacobsen that the issues of concern were of sufficient import and extent so as to warrant an order for the destruction of the shed and further remedy. I accept the statement made by the company in its application where it is stated that "every attempt we have made to rectify the minor issues has been denied and counteracted with a request for us to pay the respondent[7]." However I find that through his actions, Mr Jakobsen has made it impossible for the shed builder to deal with and rectify the outstanding issues. The tribunal is not prepared to make an order for compensation claimed by the owner associated with rectification work in circumstances where the owner has failed to provide the builder with an adequate opportunity to rectify the outstanding issues.
[7]Paragraph 4 of section 2 of part C of the application dated 13 January 2014, filed with the tribunal on 13 January 2014.
Mecano Sheds has shown good faith of this process. Mecano Sheds provided Mr Jakobsen with the shed by way of hand over, even though it was entitled to insist upon final payment before doing so. Mecano Sheds has consistently offered to rectify acknowledged problems, save for the height of the building, and Mr Jakobsen has wrongly refused representatives of the company entry to his premises in order to do so.
Mr Jakobsen wrongly denied Mecano Sheds an opportunity to make good and remedy defects. Given that Mr Jakobsen has refused to allow Mecano Sheds to mitigate its loss I make no order against Mecano Sheds. Mr Jakobsen may have recourse through the Queensland Building and Construction Commission, but that is not a matter for consideration by the tribunal.
Mr Jakobsen presented his case and his material poorly. His material contained argumentative statements which were of little assistance to the tribunal. Mr Jakobsen did not produce any expert evidence to support his claim; although he did provide a number of photographs which were of considerable assistance to the tribunal. Mr Jakobsen did not produce any evidence associated with the likely cost of rectification of work said to be required. The tribunal accepts that it is a tribunal established to enable parties to be self-represented, however it is nevertheless a forum where parties need to prepare in an adequate manner. Mr Jakobsen would no doubt vehemently object to a statement that he had underprepared. The tribunal is not making comment in relation to the length of time that Mr Jacobsen spent in preparing for his case; no doubt, he spent a very considerable period of time. In doing so, the comment is meant to reflect the focus of his preparation. Instead of identifying the issues which would be of concern to the tribunal and addressing them accordingly, Mr Jakobsen provided material which was, in many ways, argumentative and irrelevant.
The applicant’s contention that an amount of $3450 remains outstanding was not in dispute. Accordingly, I order that Mr Jakobsen pay to Mecano Sheds Pty Ltd the sum of $3450. I do not accede to the company's request to make an order it be allowed to attend at the respondent’s residence to rectify work outstanding. Given Mr Jakobsen's actions I will not impose an obligation upon Mecano Sheds to undertake further work at the respondent’s premises or pay compensation in lieu. I make no order in favour of the respondent, Mr Jakobsen. I make no further orders.