Milestone v Dawson
[2012] QCAT 368
•14 August 2012
| CITATION: | Milestone v Dawson and Anor [2012] QCAT 368 |
| PARTIES: | Colin John Milestone trading as C J & S Milestone |
| v | |
| Kelvin Dawson Leta Dawson |
| APPLICATION NUMBER: | BDL263-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 7 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Member |
| DELIVERED ON: | 14 August 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Colin John Milestone t/as CJ & S Milestone is ordered to pay damages of $13,581.00 to Kelvin Dawson and Leta Dawson for breach of contract. 2. Both parties are to ensure that the $10,000.00 held by the Queensland Master Builders Association on trust for the parties is released to Kelvin Dawson and Leta Dawson in part satisfaction of this order. 3. The following directions are given to deal with that part of Kelvin Dawson and Leta Dawson’s counter application which concerns outstanding defects identified during the defects liability period (the “defects claim”): (1) The defects claim is adjourned to the Registry. (2) Kelvin Dawson and Leta Dawson shall provide the Queensland Building Services Authority (“QBSA”) with one (1) copy, Colin John Milestone with one (1) copy and the Tribunal with two (2) copies of an “outstanding defects list” by 24 August 2012. (3) The outstanding defects list shall be a list of any defects identified during the defects liability period which have not yet been rectified. (4) Kelvin Dawson and Leta Dawson shall provide the Queensland Building Services Authority (“QBSA”) with one (1) copy of this order by 24 August 2012. (5) Colin John Milestone shall provide the QBSA with one (1) copy, Kelvin Dawson & Leta Dawson with one (1) copy and the Tribunal with two (2) copies of his comments on the outstanding defects list by 7 September 2012. (6) Pursuant to sections 111(1)(d) and 111(2) of the Queensland Civil and Administrative Tribunal Act 2009, the QBSA as assessor is requested to investigate and give a written report to the Tribunal on the matters contained in the outstanding defects list and Colin John Milestone’s comments upon it. (7) Following receipt of the written report of the QBSA the Tribunal shall send it to the parties. (8) Upon the request of either party the Tribunal shall list the defects claim for a directions hearing. (9) If neither party has requested the Tribunal to list the defects claim for a directions hearing within 4 months after receiving the written report of the QBSA it shall be automatically dismissed. |
| CATCHWORDS: | BUILDING DISPUTE – whether work done in accordance with contract – whether work defective Domestic Building Contracts Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | In person |
REASONS FOR DECISION
Background and issues
Mr Milestone is a licensed builder who trades as C J & S Milestone. In 2010 he built a house in Chermside West for Mr and Mrs Dawson.
Mr and Mrs Dawson complain that the exterior of the house was not painted, as was required by the contract. They say that this has resulted in an exterior colour different from that specified, and that the colour varies in different parts of the exterior where it should be the same. They seek as compensation the cost of painting the exterior of the house. Mr Milestone’s answer to this claim is that there was an agreement or understanding that pre-coloured rendering was to be used instead of rendering and painting, and so he was not required to do any more than this. In any case he says the end result is satisfactory.
Mr and Mrs Dawson also complain that there are certain defects in the workmanship in and around areas where NRG Greenboard was applied as external cladding. They seek an order that Mr Milestone rectifies this work, alternatively they claim damages in respect of this. Mr Milestone denies this claim, saying that all work was done in a workmanlike manner.
Mr and Mrs Dawson paid the sum of $10,000 to the Queensland Master Builders Association (of which Mr Milestone is a member) to be held by them on trust pending resolution of these disputes. This money is currently held in their trust account. In this application, Mr Milestone seeks payment to him of this money. In their counter application Mr and Mrs Dawson say it should be paid to them instead, and they claim damages as well.
Mr and Mrs Dawson also have a list of more minor defects and in their counter application they seek an order that Mr Milestone rectifies these, alternatively they claim damages. The $10,000 held in trust is not affected by the claim relating to these minor defects.
The contractual obligations
The house was built pursuant to a written contract dated 21 April 2010 on the Master Builders Residential Building Contract standard form at a contract price of $655,925.
There are certain parts of the contract which are relevant to the claim relating to external painting. Clause 10.1(a)(iii) of the General Conditions of the contract required the builder “to carry out the works in accordance with the Plans and Specifications”. This obligation corresponds with that in section 45 of the Domestic Building Contracts Act 2000.
As provided in the Definitions in the General Conditions of the contract, the “Plans” are those set out in Item 5(a) of the schedule, and the “Specifications” are those set out in Item 5(b) of the schedule. The “Works” which the builder was required to carry out was described in Item 3 of the Schedule to the contract as a “new 2 storey dwelling as per plans”. The Special Conditions (Part J) of the Schedule states that “the contract is to be read in conjunction with specification dated 12 April 2010 and signed plans”.
Item 3 and Part J of the Schedule corresponded with the quotation from Mr Milestone which was accepted by Mr and Mrs Dawson, for the construction of the house “as per plans & specifications supplied by owner”.
[10] The plans were professionally prepared. They identify two relevant areas of external cladding. The first was area C2, which covered the living wing and the garage. The second was C3 which covered the sleeping wing.
[11] The plans specify C2 as to have a “rendered and painted finish” and “FC (colour – Dulux - Whisper White)” and C3 as to have “NRG Greenboard, rendered and painted (colour - Dulux White on White – high gloss)”.
[12] Clause 3.3 of the general terms of the contract provide that the specifications take precedence over the plans, however there is nothing in the specifications of relevance to this case which override anything on the plans.
[13] The external painting required by the plans corresponded to the builder’s quotation which under “External Cladding” referred to external wall sheeting being “painted to owners’ choice”.
[14] It is clear from the above that the builder had a contractual obligation to render and paint the C2 and C3 areas of the exterior of the property.
[15] Of relevance both to this claim and also to the second part of the claim which concerns defects in and around areas where NRG Greenboard was applied as external cladding, the relevant parts of clause 10.1(a) of the general terms of the contract required the builder to carry out the work in an appropriate and skilful way and with reasonable care and skill. These obligations correspond with those in section 44 of the Domestic Building Contracts Act 2000.
Was there a variation of the obligation to paint the exterior?
[16] Mr Milestone relies on an agreement between himself and the owner which he says permitted him (either directly or through his subcontractors) to finish the C2 and C3 areas of the exterior of the property with pre-coloured render only, rather than render and paint as stated on the plans. The agreement he says, is recorded in writing in a record of a meeting held on 29 September 2010.
[17] On the evidence which I heard about this matter, there was no such agreement. During the currency of the project, Mr Milestone and Mr and Mrs Dawson used to hold weekly meetings. At these meetings it was normal for numerous issues to be discussed concerning progress of the project and day to day matters concerning it. After each meeting Mr Dawson would email Mr Milestone with a record of what was discussed and agreed. If things were not agreed at the meeting itself, then the written record from Mr Dawson might indicate his later agreement to matters raised in the meeting.
[18] On 29 September 2010 there was one such weekly meeting. Mrs Dawson did not attend this one, only Mr Dawson and Mr Milestone did so. At the meeting Mr Milestone suggested to Mr Dawson that he would use a pre-coloured render called Rockcote on the external cladding. In his mind, Mr Milestone’s intention was that because the render he was going to use was pre-coloured, it would not require painting. Whilst Mr Milestone may have intimated this to Mr Dawson at the meeting, Mr Dawson did not leave the meeting clear in his mind that this had been said. The way it was left was that Mr Dawson would come back to Mr Milestone on the point having researched the use of Rockcote for the render.
[19] Following the meeting, Mr Dawson emailed a written record of the meeting[1]. With respect to the discussion about the render this states:
“Col requested Render topcote to be changed to Rockcote? Cement render to be used in other coats. Rockcote render is satisfactory to rendered areas. Any painted FC sheet must be skim coated first”.
[1] Page 56 of the Respondents’ documents.
[20] It is significant that this does not say that the external cladding would not be painted, or that there would be a variation from the plans. Indeed the words “any painted FC sheet must be skim coated first” suggests the opposite, at least in those areas which were to be covered with FC (Fibre Cement) sheet, which was the C2 areas.
[21] It is clear from the above that no firm agreement was reached to vary the contract by removing the obligation to paint. I would point out that by Part 7 of the Domestic Building Contracts Act 2000, variations need to be in writing and in a particular form. This is reflected also in Clause 1.10 of the general terms of the specification, and also Clause 12 of the general conditions of the contract. However, this alleged variation does not fail for lack of form. On my finding it was not agreed as a variation at all.
Subsequent events concerning the cladding
[22] Two months after the meeting, Mr and Mrs Dawson decided on the colours they wanted for the external cladding. Although such colours were in fact specified on the plans, it was understood by all parties that a final decision would be made by the owners as the contract progressed.
[23] Mr and Mrs Dawson informed Mr Milestone of their choice by email on 29 November 2010[2].
[2] Page 75 of the Respondents’ documents.
[24] For the C2 and C3 areas of cladding they chose Dulux colours. Unknown to Mr and Mrs Dawson at the time, in order to use authentic Dulux colours it was necessary to use Dulux products. Mr Milestone was however aware of this, and he therefore decided not to use Rockcote render after all, but instead to use Dulux products which were similar to Rockcote, and capable of being pre-coloured.
[25] On my finding, at the same time as making this decision and probably because of it, Mr Milestone also decided that the render finish did not need a final topcoat. His reasoning was twofold. Firstly he thought that Dulux could tint the render so that it would be the owners’ required colour. Secondly, he was aware that a topcoat was optional, and was recommendation by Dulux only in exceptional situations. He had in mind the Dulux data sheet which recommends a topcoat “for severe environments (coastal/industrial), or in commercial applications where additional dirt pick up resistance is required”.
[26] The decision about using the Dulux products for the render and also not to paint it was made by Mr Milestone unilaterally. He did not discuss it with Mr and Mrs Dawson.
[27] The C2 cladding was therefore rendered using tinted Dulux AcraTex Hebel PowerFinish and the C3 areas using tinted Dulux AcraTex Renderwall, and both were left unpainted. As it turned out, the tinting of the render did not achieve the correct colour. It was substantially darker than the true colour chosen by Mr and Mrs Dawson. It was put to me that the reason for this on a technical level was because in order to retain its consistency the render could only be mixed with a limited amount of tint and the chosen colour was very light so it could not be achieved. This seems a reasonable explanation, but it is not necessary for me to make any findings about this.
[28] Another problem with the render-only approach was that it was more difficult to achieve consistency in colour. Mr Milestone explained that was because there would be more than one person applying the render at the same time and it is natural for each person to apply it differently. Hence it can appear different in colour from one area to the next. I have seen a picture of one external area of the house and a difference can clearly be seen. I note from the Dulux data sheet for the product that to ensure colour uniformity a topcoat of Dulux AcraTex 955 AcraShield is recommended. It was agreed on both sides that this product is properly described as “paint”. Had this been done this colour inconsistency would not have occurred.
[29] A witness was called by Mr Milestone who told me that he would not recommend applying Dulux AcraTex 955 AcraShield onto Dulux AcraTex Hebel PowerFinish. This was Darren Lawrence, director of Paramount Solid Plasterers who were the sub-contractors on site who carried out the external rendering. He considered that any paint on top of render will cause problems because it forms a plastic coat which will not move with the render and will get brittle and crack. He was of the view that the recommendation by Dulux to top Dulux AcraTex Hebel PowerFinish with Dulux AcraTex 955 AcraShield was an attempt by Dulux to make more money. I do not accept this evidence. It turned out that in making this comment, Mr Lawrence was not taking into account that the two finishes are acrylic based and are therefore suitable for use together. He accepted that AcraShield is more flexible that ordinary paint. Also he had never known or monitored any building where the two had been applied.
[30] So the fact remains that:
(a)despite a contractual requirement to paint the exterior cladding this was not done, and
(b)this resulted in the cladding being the wrong colour than that specified, and
(c)it resulted in an inconsistency of colour on the exterior of the house.
[31] This was therefore a breach of contract (a failure to carry out the works in accordance with the plans), and was also a failure to do the work in an appropriate and skilful way and with reasonable care and skill. Because of this breach, Mr and Mrs Dawson are entitled (as far as possible) financially to be put in the position in which they would have been had the contract been performed. The Dulux recommended topcoat is Dulux AcraTex 955 AcraShield and so the correct level of compensation is the reasonable cost of applying this with an appropriate primer, if necessary. Mr and Mrs Dawson have obtained two quotations for this work and Mr Milestone has no real objection to the lowest of these, which does appear to be a reasonable quotation, at a price of $13,581 including GST. This is the award that I make under this head.
Alleged defects in and around areas where NRG Greenboard was applied
[32] This is in the areas marked C3 on the plan.
[33] These defects are properly considered in these three areas:
(a)Cracks which have appeared in the render.
(b)Alleged insufficient fall to window sills.
(c)One or more door jambs made of polystyrene now covered with an aluminium corner strip.
[34] As for the cracks, some of these were settlement cracks which appeared as the building naturally settled after building, and those were dealt with by Mr Milestone as part of his responsibility for defects and also as part of the warranty he provided.
[35] A crack has subsequently appeared and is shown in the top photograph on page 27 of the Respondents’ documents. It is adjacent to and seemingly running roughly along the position of an expansion joint at the bottom of a window.
[36] There is nothing to suggest that this crack has appeared or developed by reason of any bad workmanship. It is unlikely that the materials used for the render can be blamed, since on my finding Dulux proprietary products as supplied by Dulux were used for the C3 areas (Dulux AcraTex Renderwall). It is suggested by Mr Dawson in his statement of evidence that this was the wrong render to use or that it had been badly applied. However, Darren Lawrence director of Paramount Solid Plasterers who did this work gave evidence as to this process and I am satisfied from this evidence that the materials used were suitable and their application was appropriate. I do not find this item proved.
[37] As for the insufficient fall to sills, Mr and Mrs Dawson say that the fall should be 15°. However the only evidence which supports this is the NRG Greenboard specification, where 15° is referred to. However there is nothing to suggest that a smaller fall would not be adequate. It is true that Mr and Mrs Dawson did have some ponding on the sill, but this was rectified by Mr Milestone and I think is very unlikely that it was due to an inadequate fall. The photograph relied on by Mr and Mrs Dawson does show a fall and I do not accept their evidence that some sills are flat.
[38] I also take into account here the evidence of Mr Lawrence who was of the view that the fall was adequate and in fact better designed at 8° or 9° because it was then possible to leave more of a lip.
[39] I also take into account here the evidence of Scott Lehn, General Manager for NRG Building Systems. He made a statutory declaration on 21 February 2012 and I allowed this evidence to be relied on despite Mr Lehn not being available for cross-examination. He was of the view that sufficient fall had been applied. He referred to a technical manual on the matter which was not put before me.
[40] As for the door jambs made of polystyrene and covered by an aluminium angle piece, whilst I do find it very strange that this method of construction was used, Mr Milestone says that there is nothing wrong with this. Mr and Mrs Dawson have put no evidence before me sufficient to prove that this was defective workmanship. Whilst Mr Lehn says that the “applied finish and Greenboard™ installation is one of the best I have inspected” he does not specifically refer to the jambs and so he does not assist on this particular issue.
Outstanding defects claim
[41] In the counter-application Mr and Mrs Dawson refer to a number of minor defects which they identified during the defects liability period. It is agreed that Mr Milestone dealt with a number of these defects in the usual way, but Mr and Mrs Dawson say there are probably about 15 which are still not resolved to their satisfaction. However, Mr Milestone while pointing out that he will honour his warranty on the building, disputes that they are properly regarded as defects. There is very little evidence before me on these matters.
[42] Having discussed this with the parties, I am going to direct that the Building Services Authority are asked to give advice to the Tribunal about these matters pursuant to section 111 of the Queensland Civil and Administrative Tribunal Act 2009. And I have given directions appropriate to achieve this.
Conclusion
[43] The application by Mr Milestone to have released to him the $10,000 lodged with the Queensland Master Builders Association, fails.
[44] I order that Mr Milestone pay to Mr and Mrs Dawson damages for breach of contract in the sum of $13,581 and that both parties ensure that the $10,000 held by the Queensland Master Builders Association be released to Mr and Mrs Dawson in part satisfaction of this order.
[45] In so far as the counter application is concerned with issue 4 in the letter of 6 March 2011 (alleged defects in and around areas where NRG Greenboard was applied), the counter application fails.
[46] The remaining parts of the counter application are adjourned as provided for in the directions.
[47] Since Mr Milestone was largely unsuccessful in his application, he is not entitled to recover his filing fee.
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