Monsour v C & R Darvill Pty Ltd
[2022] QCAT 302
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302
PARTIES:
MARIE MONSOUR (first applicant)
BRUCE MONSOUR (second applicant)
v
C & R DARVILL PTY LTD ATF C & R DARVILL FAMILY TRUST (respondent)
APPLICATION NO/S:
BDL065-18
MATTER TYPE:
Building matters
DELIVERED ON:
27 July 2022
HEARING DATE:
27-30 October 2020, 16-17 February 2021, 24-25 June 2021
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. The applicants pay the respondent the sum of $134,407.62 within 14 days of the date hereof.
2. The parties file in the Tribunal and give to each other any submissions on costs within 21 days of the date hereof and file in the Tribunal and give to the other any submissions in response within 21 days thereafter.
3. The decision on costs will be determined on the papers.
CATCHWORDS:
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where expert opinion evidence given – where the expert failed to explain in his reports the basis of his conclusions - where the expert quantity surveyor admitted at hearing to being instructed by the client to insert certain reduced figures in his reports – where the expert appeared to lack independence and a suspicion the expert’s report lacked independence in other respects – whether weight was to be given to the reports or the evidence excluded.
CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTIONS FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION - where the builder issued a progress claim – where the owners challenged the claims made as to stage of completion of work – where the builder issued an amended progress claim – where the owners refused to pay – where – where the general conditions excluded any retentions save at practical completion stage – whether the owners repudiated their obligations under the contract – where the builder was entitled to terminate the contract for breach – where the builder was excluded from site – where notice of intention to terminate the contract was given – where it was found the builder was entitled to terminate the contract on that alternate ground as well – where the builder was entitled to recover for outstanding value of work done but not the full amount of the amended progress claim.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION - where the builder claimed payment of variations – where the provisions of the Domestic Building Contracts Act (2000) (Qld) (repealed) applied – where variation claims did not comply with the statutory requirements – where application was made for payment on the grounds of exceptional circumstances – where the grounds of exceptional circumstances were established – where the owners were ordered to pay for variations as assessed by the Tribunal
Domestic Building Contracts Act 2000 (Qld) (repealed), s 84
Uniform Civil Procedure Rules 1999 (Qld), r 428Allaro Homes Cairns Pty Ltd v O’Reilly & Anor [2012] QCA 286
Finance and Guarantee Company v Auswild (2019) 59 VR 288
Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
Robinson v Harman (1848) 1 Ex Rep 850Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11
APPEARANCES & REPRESENTATION:
Applicants:
Self-represented
Respondent:
G Sheahan of Counsel instructed by All Building Law
REASONS FOR DECISION
Mrs Monsour owns a residential property in Brisbane. She and her husband Dr Monsour (together ‘the Monsours’) entered into a building contract with C & R Darvill Pty Ltd (‘the builder’) on 19 December 2014 for substantial renovations and additions to the home. It was a fixed price contract for $1,407,268.13.
Building work commenced on 27 January 2015. The date for practical completion was 9 February 2016.
There were numerous variations to the contract according to the builder. The builder’s variation claims did not comply with the requirements applying at the time under the Domestic Building Contracts Act (2000) (Qld) (repealed) (‘DBCA’). The Monsours paid some but not all.
The work slowed. The builder claimed the Monsours, in particular Dr Monsour, were interfering with its work, its workers and subcontractors and causing further disruption by failing to supply agreed services and contractors in a timely fashion.
In result, the builder proposed that the contract change from fixed price to cost plus. The Monsours refused to do that.
Over the course of the project the builder submitted monthly progress claims. The Monsours paid the builder for the first eleven but not progress claim 12.[1] They challenged that claim. The builder issued a reduced amended progress claim 12 but the Monsours still refused to pay.
[1]Ex 68.
The Monsours had formed a suspicion that they were being overcharged by the builder for the work being done.
On 28 June 2016 the Monsours gave notice terminating the contract.
On 30 June 2016 the builder gave notice terminating the contract in turn.
The parties do not dispute that the contract was terminated by 30 June 2016.
The Monsours initiated proceedings in the Tribunal and as at date of hearing seek to recover an amount of $152,480.46 as an overpayment to the builder, to recover $71,446.37 paid for variations, and they seek damages of $36,019.42 as the cost of rectification of defective work. They also seek relief from payment of the monies claimed owing by the builder.
By way of amended counter application the builder claims $70,958.41 owed for amended progress claim 12, unpaid variations of $113,584.71 on the basis of exceptional circumstances applying pursuant to s 84(4) of the DBCA, and costs. The builder had reduced its initial claim for unpaid variations from $159,052.71 in the amended counter application and at hearing also resiled from a claim for loss of profit of $42,961.92.
Background
Dr Monsour lives and works away from Brisbane from Monday to Thursday inclusive. He returns to Brisbane for Friday, Saturday and Sunday of each week.
Dr Monsour was responsible for drawing up the specifications (schedule of finishes) under the contract.
By Appendix Part J - special conditions to the contract, there was to be a two hour site meeting each week and “all other correspondence by email for refences (sic)”. The email address for the builder was that of Mr Darvill, its director, and for the owners the email address of Dr Monsour.
By Appendix Part D the parties agreed that there would be monthly progress payments “as per progress claim schedule”. The progress claim schedule identified 93 different aspects of the scope of work making up the contract price.
The Monsours lived on site throughout the construction, or at least Mrs Monsour did, with Dr Monsour there for site meetings each Friday and then over the weekend.
According to Dr Monsour, he and his wife made few changes to the project during the course of the build, but he identified numerous mistakes made by the builder through the course of construction and he required they be fixed.
The issues
The following, I determine, are the relevant issues to be decided in the dispute:
(a)Which party was in breach when the contract was terminated, which party was entitled to terminate, with what result?
(b)Are the Monsours entitled to recover an amount of $152,480.46 from the builder as an overpayment?
(c)Are the Monsours entitled to $36,019.42 for costs of rectification of defective work?
(d)Is the builder entitled to recover $70,958.41 for progress claim 12 as amended?
(e)Are the Monsours entitled to recover $71,446.37 paid for variations?
(f)Is the builder entitled to payment for variations in an amount of $113,584.71 on the grounds of exceptional circumstances?
Which party was in breach when the contract was terminated, which party was entitled to terminate, with what result?
The most significant document in building disputes is usually the building contract. That holds true here.
By clause 11.6 of the general conditions the builder was entitled to claim payment of the contract price progressively on completion of the stages set out in Part D of the Appendix to the Schedule to the contract.
Part D provided two methods for the contractor to claim payment at designated stages of construction. The first and most common, Method A, was not used here.
Instead the parties agreed on Method B which provided for payment of a 5% deposit and then “monthly progress payments as per progress claim schedule – 90% – $1,266,541.32; practical completion stage 5% – $70,363.40.”
The builder issued 12 progress claims over 12 months of work. The last was progress claim 12 issued on 15 January 2016 in the sum of $100,246.86. Part of that was an amount of $12,158.85 claimed for a variation (variation 14).
Dr Monsour queried progress claim 12. He maintained some of the work claimed for payment had not been done. In response the builder issued a revised progress claim 12 on 22 March 2016 in the amount of $70,958.41. The claim for payment of variation 14 did not change but the claim for the value of work done under the original scope of work was reduced by $29,288.45.
The Monsours refused to pay the builder however. In their statement of evidence, the Monsours give the reason for that as the “unrealistically hasty reissuing of the amended progress claim 12”.[2] There was no specific challenge to any particular item of claim.
[2]Ex 13 [17].
The required time for payment of progress claims was 5 business days.[3] Given amended progress claim 12 was issued on 22 March 2016, if valid, it was required to be paid by Tuesday 29 March 2016.
[3]Contract schedule item 20.
On 24 March 2016 the builder claimed additional payment of a number of further variations. None of them were paid either.
The parties by this stage had entirely fallen into. The Monsours claimed the builder had deliberately slowed work on site over January and February 2016. The builder denied that and said that essential owner supplied goods and services were not being made available to it.
The builder had written to Dr Monsour on 28 October 2015 to say the job had reached a critical point given the numerous changes being made by the Monsours and through their delay in providing required owner supplied goods and services. That was proving frustrating and in consequence the builder asked for their approval to move from the fixed price contract to a costs plus arrangement.
The Monsours refused. The Monsours claimed it was that refusal which triggered the builder’s slow down. The Monsours denied the slowdown was caused by them.
On 10 May 2016 the builder issued a notice of intention to terminate the contract based on the failure of the Monsours to provide necessary goods and services as required under the contract.
On 3 June 2016 the Monsours issued their own notice of intention to terminate the contract based on the builder’s substantial breach of contract in failing to proceed appropriately with the work under the contract.
On 28 June 2016 the Monsours gave notice of termination of the contract based on a number of claimed substantial breaches of contract.
On 30 June 2016 the builder gave notice of termination of the contract accepting the repudiation of the contract by the Monsours on failure to remedy the builder’s notice of intention to terminate. The builder issued its own notice of termination on 28 June 2016.
The failure to pay amended progress claim 12
As stated, Part D of the Appendix to the Schedule to the contract provided for two methods for the builder to claim payment. The parties agreed on Method B which provided, after deposit, for “monthly progress payments as per progress claim schedule – 90% – $1,266,541.32; practical completion stage 5% – $70,363.40.”
The stages for progress claims were perhaps necessarily arbitrary and broad brush in the sense that they were not linked to completion of work at defined stages of construction, such as would be the case under Method A.
Apart from the time consideration (monthly), I determine that what was required of the builder to make valid progress claims was to claim an honest and reasonable estimate of the value of work done across the 93 items of work listed in the progress claim schedule as at time of charge.
Mr Darvill for the builder said at hearing that the initial progress claim 12 was based on the calculations of work done recorded by then site foreman, Mr Carstens. Mr Carstens had left the builder’s employ at about that time. The percentage calculations of completed work, Mr Darvill admits, were wrong in a number of respects. When the rather obvious inaccuracies were raised by a representative of Dr Monsour, the builder recalculated the claim and re-issued amended progress claim 12 for a lesser amount. Mr Darvill said in cross-examination concerning the mistaken initial progress claim:
Damian oversaw that. Damian had it at 100 per cent. Damian left the company. The progress claim was put through based on Damian’s information. When it was brought to my attention about that, I was a little bit taken aback, so I mustered the troops into the office – being Darren, I think Steve Paikin was there, Peter the estimator, and myself – and we went through and revised progress payment 12.[4]
[4]Transcript (‘T’) 6-99 Line (‘L’) 7-12.
I accept Mr Darvill’s evidence about the circumstances resulting in amended progress claim 12 being issued. His evidence that his site foreman was responsible for calculations finds some support in an email from Mr Carstens dated 28 May 2015 to Mrs Darvill back at the builder’s office with the subject line “Dickson progress claim 4 percentages”, and his comment “I have spent some time with Darren today looking at variations that we can bill.”[5]
[5]Ex 37 email attached to paid variation 1 and 2 concerning excavation and concrete.
I accept amended progress claim 12 was an honest estimate by the builder of the value of work done and unpaid as at date of issue.
Was the amended progress claim a reasonable estimation of work done and unpaid however?
The evidence of the quantity surveyors
After the contract was terminated the Monsours engaged Mr Davies of Michael Davies Consulting Pty Ltd to assess the value of work done by the builder. Mr Davies advised the Monsours that in his opinion they had overpaid for the work done to the date of termination of the contract by $152,480.46.
Mr Davies gave evidence at the hearing. He claimed expertise as a quantity surveyor. He provided reports. His evidence troubles me.
By Tribunal Practice Direction 4 of 2009 concerning expert evidence:
4. An expert owes a duty to assist the tribunal which overrides any obligation to any party to the proceeding or any person who is liable for their fee or expenses. The expert’s role is to assist and advise the tribunal on issues in dispute within the expert’s area of expertise. A person must not give, and an expert must not accept, instructions to adopt or reject a particular opinion in relation to an issue in dispute in a proceeding.
Conclaves and joint reports
5. All experts engaged for a hearing must attend a conclave convened by a member, adjudicator or the principal registrar. The purpose of the conclave is to identify and clarify areas of agreement and disagreement amongst the experts on any issue in dispute, and the reasons for any disagreement.
…
17. Each expert must prepare a written statement of their evidence.
…
22. The statement of evidence must satisfy the requirements of rule 428 of the Uniform Civil Procedure Rules.
Rule 428 of the Uniform Civil Procedure Rules referred to provides:
428 Requirements for report
1. An expert’s report must be addressed to the court and signed by the expert.
2. The report must include the following information—
(a)the expert’s qualifications;
(b)all material facts, whether written or oral, on which the report is based;
(c)references to any literature or other material relied on by the expert to prepare the report;
(d)for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report –
(i)a description of what was done;
(ii)whether the inspection, examination or experiment was done by the expert or under the expert’s supervision;
(iii)the name and qualifications of any other person involved; and the result
(e)if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
(f)a summary of the conclusions reached by the expert;
(g)a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
3. The expert must confirm, at the end of the report—
(a)the factual matters stated in the report are, as far as the expert knows, true;
(b)the expert has made all enquiries considered appropriate;
(c)the opinions stated in the report are genuinely held by the expert;
(d)the report contains reference to all matters the expert considers significant;
(e)the expert understands the expert’s duty to the court and has complied with the duty.
Two reports by Mr Davies were tendered in evidence. They are similar although the second, which purports to address the requirements of the Practice Direction, is a little more detailed. The second report adds a summary of his calculations and singles out and lists some items he identifies as incomplete.[6]
[6]Ex 19.
Mr Ray, another quantity surveyor engaged by the builder, attended the hearing. On the first day the parties’ two expert quantity surveyors were asked to engage in a conclave arranged for the following morning. Both parties had filed expert evidence late and there had been no conclave between them.
A Senior Member of the Tribunal was made available for the conclave the following day to assist them to prepare a joint report. The builder’s expert, Mr Ray, was prepared to go into conclave, but Mr Davies would not, which left the experts to give separate independent evidence.
Mr Davies was asked by Counsel about the variations claimed by the builder. He answered that he had not given any consideration to variations. He said he was instructed to ignore variations by his client. He had been given copies of the variation claims, but only for the purpose of information, not to consider whether the variation work was done.
That the contract was varied is beyond doubt. There were very significant engineering changes made at minimum.
A Form 16 certificate prepared by the project engineers was put into evidence.[7] That disclosed 28 inspections on site by the engineers over the period 4 February 2015 to 20 January 2016, when the builder was working there.
[7]Ex 69.
The Form 16 also lists 16 additional engineering drawings prepared during the course of construction. According to Mr Davies reports, none of those engineering drawings were provided to him.
Regardless that Dr Monsour denies instructing the engineers to do most of the additional engineering work, Mr Davies’ failure to consider the scope of work as varied by engineering changes limits the value of his evidence to the Tribunal.
It was put to Mr Davies by Counsel that his reports give no indication of the methodology adopted to make his findings about percentile completion of various items of work, and they should have done so to persuade the Tribunal. Surprisingly Mr Davies agreed:
I put it to you that a properly prepared expert report, from a quantity surveyor as experienced as you are, would have included some method or record of the analysis by which you arrived at these various component percentages in order for this to be in any way persuasive?‑‑‑I have to agree with that – with what you’re saying. [8]
[8]T2-46 L41.
For example, where the builder reduced its claim from 100% completion of concrete in progress claim 12 to 92.2% in amended progress claim 12, Mr Davies further reduced it to 85%, but without explaining why. He made numerous similar reductions across many of the 93 items comprising the progress claim schedule, none with an explanation why the percentile completion amounts were reduced in his reports.
Mr Davies does make some very broad brush comments about 19 specific items of work. One is about a boulder wall. He describes that as ‘not installed’.
In fact the boulder wall was the subject of an agreed variation to remove it from the scope of work and allow the Monsours a credit of $34,100.[9] The parties agreed to substitute a block wall instead. Given Mr Davies had the benefit of visiting the site after the builder left, and presumably saw the block wall constructed instead of boulder wall, and that he was given a copy of the variation claim documents from the builder for information purposes, it seems somewhat bizarre to then focus only on the original boulder wall specification and describe that as “not installed”.
[9]Variation 13.
Then there was an exchange between Mr Davies and Counsel concerning scaffolding costs, a matter of some marked contention between the parties:
Can I ask you to turn to the schedule again and, specifically, item 44?‑‑‑Yes.
That shows the contract price of $51,102.26?‑‑‑Yes.
The Darvill claim is 80 per cent of that?‑‑‑Yes.
Coming to $40,000-odd. Now, in the next column where you have otherwise ascribed percentages, including zero per cent on some occasions, there is no percentage figure there but you have come up with a figure of $1584?‑‑‑Yes.
And what’s that – and what is that based on?‑‑‑It was based on information provided by my client ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ as to an agreement reached on a rate.
Can you remember precisely what you were instructed?‑‑‑Yes. I was requested to insert – insert that in the claim.
You were requested to insert a figure into your report?‑‑‑I was given information. Yes.
No. You said you were instructed ‑ ‑ ‑?‑‑‑Yes. Okay.
‑ ‑ ‑ to insert a figure?‑‑‑Yes.[10]
[10]T2-49-L35 – T2-50 L11.
An expert is entitled to seek information from a party, but not to be instructed by the party as to what his opinion should be. If that is the case, then the expert opinion is not an expert opinion but that of the non-expert client and that adds nothing to the evidence to assist the Tribunal in determining issues of fact in dispute.
Mr Davies admission that his very large reduction (near $40,000) of the builder’s claim for scaffolding costs was based on nothing more than an instruction to put a reduced figure creates the suspicion that his reports may be similarly affected in other respects. It is certainly evidence of a partisan attitude adopted by Mr Davies in completing his reports. Mr Davies gives every appearance of acting, not as independent expert, but as advocate for the Monsours.
The sanction for failure to fulfill the obligations imposed on experts set out in Practice Direction 4 is not the exclusion of the expert’s evidence, but rather the failure to persuade.[11]
[11]Finance and Guarantee Company v Auswild (2019) 59 VR 288 [59-60] citing Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622 and Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4) (2012) 202 FCR 564, 570 [35]: In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert’s evidence, but rather, the significant risk that it will fail to persuade.
I give little weight to Mr Davies reports and evidence generally in consequence, not only on the basis of perceived lack of objectivity and independence in respect of opinions held, but also his failure to explain the basis of his calculations.
Mr Ray was the expert quantity surveyor who gave evidence for the builder. Where Mr Davies’ reports and evidence conflicts with that of Mr Ray’s, I prefer the latter.
Mr Ray impressed me as an expert witness. He had been asked to prepare an independent assessment of the level of progress made on site as at termination of the contract. His reports[12] set out and explain in detail the information he was provided and its source (from the contractor, given Mr Ray was engaged many months after the builder had left the site and another builder had commenced working there) and his calculations and conclusions based on the information provided are also set out in significant detail.
[12]The initial report of 20 October was superseded by an amended report of 12 February 2021.
Mr Ray concludes from his assessment that the value of original work done (no variations included) to date of issue of amended progress claim 12 was $1,112,206.37. He notes the builder’s calculation for that same work was $1,149,496.59. The difference is $37,290.22, a difference of 3.24 percent.
With variations 1 to 37 inclusive added, he calculates the value of that work was $1,310,240.65. The builder’s total for that was $1,353,372.47, a difference of $43,031.82, or 3.28 percent across the project.
Mr Ray calculates the cost to complete as at date of termination by reference to the original contract price of $1,407,268.13 (excluding variations) as $237,970.94 meaning 16.9 percent of the contract was yet to be performed.
He calculates the cost to complete as at date of termination on an adjusted contract price of $1,629,871.71 (including variations) as $319,631.06, meaning 19.6 percent of the contract was yet to be performed.
I accept Mr Ray’s figures as correct. That means the builder’s amended progress claim 12 was inaccurate. Nevertheless, I find it was a valid progress claim.
I find it was an honest and reasonable assessment by the builder of the value of work outstanding in circumstances where the site foreman, who usually took responsibility for calculating the value of work done, had but recently left beforehand, and the builder immediately acted to correct acknowledged inaccuracies in progress claim 12 using the resources available. The builder’s estimates throughout the project were generally within range given the regime of monthly progress claims was always going to be very much an estimate of partially completed items of work. That was why Method B was adopted.
Amended progress claim 12 claimed in respect of 26 separate items of work. Mr Darvill reassessed those 26 items of work and re-issued amended progress claim 12 in respect of those 26 items. As at the date of claim the value of work completed over the 26 items concerned totalled $228,724.73. Mr Ray’s calculations for the same 26 items he assessed as worth $216,159.47, a difference of only $12,565.26.
Generally, as stated, over all 12 progress claims, the builder’s calculations as compared with Mr Ray’s were not far apart, within 3.2% of the value of the contract without variations and 3.28% with variations.
Based on Mr Ray’s calculations there remained 16.9 percent of the value of the contract excluding variations, and 19.6 per cent of the value of the contract with variations, yet to be performed and billed where discrepancies, including overclaims, could be reconciled.
Indeed the scheme of the contract general conditions addresses and provides for such inexactitudes of claim. The scheme ensures the builder is appropriately financed throughout the project to cover the costs of the build with guaranteed progress payments, whilst also guarding that the owners pay no more than the agreed fixed price (plus variations, if any) at end of day.
By clause 11.8 of the general conditions:
No retentions or set off
The Owner acknowledges that, subject to Clause 18.2,[13] the Owner has no right of set off under the Contract or otherwise, that is to deduct any amount from a progress payment due to the Contractor under Clause 11.7, or to hold any retentions for defects or omissions.
[13]Clause 18.2 concerns liquidated damages and is not relevant to the matter at hand.
A reconciliation of payment and work done is specifically provided for at practical completion stage. By clause 17.7:
On giving the defects document to the owner, and notwithstanding that Practical Completion Stage may have been reached with minor omissions or defects, the owner must pay the Practical Completion Stage claim to the contractor in accordance with the contract.
If the owner wishes to take possession of the works but disputes the amount payable to the contractor and the contractor is a member of the Master Builders Queensland, the owner may pay the disputed amount into the Master Builders Queensland Holding Account.
The owner is to then give the contractor a receipt showing that the disputed money has been deposited and the owner must pay the undisputed amount to the contractor. On receiving the receipt and payment, the contractor is to hand the keys to the owner and give the owner vacant possession of the works.
Master Builders Queensland must ensure that any money received into the Holding account by the Association is released:
(a) upon receipt of written instructions signed by the contractor and owner;
(b) upon receipt of a determination or order from the Tribunal;
(c) by order of a court; or
(d) by a written decision of an adjudicator.
Clause 17.7 applied regardless that the Monsours were in occupation of the premises throughout the construction. The builder was a member of Master Builders Queensland. Amended progress claim 12 was valid and the Monsours had no right to withhold payment. They did not have Mr Davies report available to them at the time. They had no evidence to challenge the validity of amended progress claim 12 at the time. They simply refused to pay it.
I find the Monsours were in substantial breach of the contract in failing to pay amended progress claim 12 when it fell due on 29 March 2016.
Before considering what follows from that finding I address the issue of scaffolding which featured as an issue in dispute of significance between the parties and to the detriment of Mr Davies evidence.
Scaffolding
Mr Ray calculated the value of scaffolding to date of termination at $46,005.36. Mr Davies calculation was $1,584 as instructed by Dr Monsour.
Under the contract, scaffolding was a prime cost (‘pc’) item and the amount allowed was $51,102.26.
According to Mr Darvill there were a number of different aspects to the scaffolding requirements on this site. One was hire of fixed scaffolding. The rest described by Mr Darvill as builder’s scaffolding, either owned by the builder or built as required on site as the profile of the construction required.
The cost of scaffolding claimed by the builder in amended progress claim 12 was $10,220.45, taking the total claimed for scaffolding to 80% of the total pc amount.
Dr Monsour claimed the builder did not have significant use for builder’s scaffolding and the cost of hire was very much less than charged or should have been much less than charged.
In respect of hire charges, Dr Monsour tendered an email from the scaffold hire company dated 13 April 2016 forwarding copies of invoices to the builder. The invoices total $9,570.[14] I accept these were reasonable hire charges.
[14]Ex 16 document 74.
I also accept Mr Darvill’s explanation however about the use of builder’s scaffolding and the labour cost associated with its use over the period of one year of construction leading up to termination. I reject the claim by Dr Monsour that little use would have been required of such. Dr Monsour was only on site on Friday of each week and the weekends, and he has no building experience. The site was difficult, on the side of hilly land, as evidenced by the change in construction of the roof from truss to rafter due to the difficulty in raising trusses on the site.
Similarly I give little weight to the view expressed by Mr Girdis in support of the position adopted by Dr Monsour. Mr Girdis, who described his occupation as a development manager, and who only acted as Dr Monsour’s representative in dealings with the builder over the late period February and March 2016, seemed, as with Dr Monsour, to have little understanding of the concept of builder’s scaffolding as explained by Mr Darvill. Mr Girdis thought scaffolding was limited to something that remained fixed in place and not generally moved through the course of construction.[15]
[15]T1-37 L2.
I accept Mr Ray’s estimate of the cost of scaffolding.
The builder’s notice of intention to terminate
Even if the Monsours were not in breach in failing to pay amended progress claim 12, I find the builder was in any case entitled to terminate the contract pursuant to its notice of termination given on 30 June 2016.
The builder gave notice of intention to terminate on 10 May 2016 on the grounds the Monsours had refused the builder free and uninterrupted access to the site and on the grounds the Monsours had failed to provide owner supplied items and services within a reasonable time to avoid the builder being obstructed, interfered with, delayed or hindered in the performance of the contract work.[16]
[16]Ex 36.
By clause 7.2 of the contract:
Contractor to have free and uninterrupted access to Site and existing buildings
As soon as practicable after the date of this contract, and by the time stated in item 13 of the Schedule, the owner must provide to the contractor free and uninterrupted occupation of, and access to, the site and to any existing buildings necessary to carry out the works.
By clause 11.12:
Owner not to interfere with the carrying out of the Works
(a) The owner must not obstruct, interfere with or hinder the carrying out of the works. The owner must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of the works.
Mr Paikin was employed in January 2016 by the builder as a project manager for various of the builder’s jobs. Mr Darvill said that at the time he had eight other construction projects on foot. When Mr Paikin became involved in the subject site he prepared a project schedule input sheet (a Gantt chart)[17] to organise and coordinate the supply of goods and work by the builder, its contractors, and Dr Monsour’s separately engaged contractors and owner supplied goods required under the contract.
[17]A Gantt chart or project schedule is not uncommonly used in construction projects to coordinate and facilitate timely supply of products and trade services which are often interdependent.
Mr Paikin said the builder was not being informed about the activities or scheduled attendances of Dr Monsour’s contractors, and the owner supplied goods were not forthcoming.
The Gantt chart was prepared after Mr Girdis, the Monsours’ representative, asked on 10 March 2016 for a “schedule of works to complete”.[18] In the email Mr Girdis said the Monsours were:
…concerned with the drop off in workforce at the jobsite generally during February but particularly during the past week or so. We also noticed builders (sic) tools being removed off site. Are you able to provide any information that might explain above?[19]
[18]Ex 48.
[19]Ex 48.
Mr Paikin forwarded an initial draft of a project schedule to Mr Girdis later that same day asking him to complete the start and finish times for the owner supplied items listed.[20]
[20]Ex 28.
Not having received a reply by 21 March 2016, Mr Paikin asked Mr Girdis about completion of the schedule.[21] He reminded Mr Girdis the latter had agreed at a site meeting on 11 March 2016 to provide the information.
[21]Ex 48.
Mr Paikin said no dates were ever provided.[22]
[22]T6-132 L19.
Accordingly Mr Paikin had to make various assumptions about the work being done by Dr Monsour’s contractors and the timing for that and he prepared a progress schedule to take the project through to near completion.[23]
[23]Ex 47.
The initial and final draft of the progress schedule[24] shows the Monsours with numerous responsibilities for work outstanding and to be done on site: the supply of windows and doors, tiling, kitchen cabinetry and appliances, painting, drainage, air-conditioning, exterior ceiling linings, gutters and downpipes and water tanks.
[24]Ex 28 and Ex 47.
Mr Girdis was asked in cross-examination:
Mr Girdis, can I ask, did Mr Darvill – or perhaps it was Mr Paikin – ask you at some stage for detailed drawings to be provided for the various changes or whatever works were being done at the time. Do you recall Mr Darvill or Mr Pakin if they could be provided with drawings, detailed, working drawings? ---
There was – we’ve touched – we’ve discussed this earlier and it – there was a constant – between Steve Paikin and I, there was this call for, “We can’t proceed because we don’t have drawings.” And that was the subject of – of a – that email that you showed me earlier. This was a theme running through, shall we say, they – the builders expressed concern to us as to – our concern was there was nobody on the site. Their – their address to our concern is, “We don’t have drawings,” or, “We don’t have specifications,” or, “We don’t have owner-supplied” – you can have owner-supplied fittings or – I think in this case, for example, windows. So there’s – that’s the conflict that we had.
Well, in terms of being asked about drawings --- ? --- Drawings.
--- to provide drawings, did you ask Dr Monsour for the provision of those drawings? Do you recall doing that? ---Well, that was our discussion in the – having been asked, I would then refer ---
Yes? --- --- anything that I was asked to Dr Monsour. I mean, I wouldn’t keep it from them. If I felt that drawings could get the builder re-established and all would be moving forward again, then – I mean, that would have been the – that would have been the easiest thing to do. I don’t recall there being sufficient – there were – I did see some sketches around for some architectural changes and I have seen A4 size engineering changes, as I mentioned before. I don’t recall we were waiting on change drawings, in the sense, but there were detailed changes.
Do you recall asking – I’ll ask it again in a different way. Do you recall asking Dr Monsour for those detailed drawings that were being requested by Roger Darvill?--- Well, I would express to Dr Monsour that that is – that is what I’m hearing from---
Yes? --- the builders. I wouldn’t keep – as I think I said before, I didn’t keep it to myself.
And so the outcome of that was did Dr Monsour refuse to give you those --- ? --- I don’t ---
--- direct drawings? --- --- I don’t regard it as a matter of refusing to give it to me. I don’t – I don’t think that Dr Monsour entirely believed that that was the reason for our lack of progress on site. That’s – that is – it wasn’t a matter of refusal. I mean, it wasn’t – it’s not – it wasn’t as if I said, “I need the drawings and I’m not getting them.”[25]
[25]T1-57 L46 – T1-58 L41.
On 21 March 2016 Mr Paikin specifically asked, again, for information previously requested about the pool bathroom and BBQ areas to enable the builder’s scaffolders to set up for work in those areas.
On 24 March 2016 Mr Girdis wrote to the builder to say the Monsours were considering their position. He said the variation requests made by the builder were unacceptable. He noted no work had been done on site that week and then said that the Monsours requested “…no re-establishment on site occur prior to resolution of all outstanding contract matters between the principals.”[26]
[26]Ex 48.
On 30 March 2016 the builder advised Mr Girdis that the scaffolders had been postponed and re-scheduled for 4 April 2016.
Mr Paikin said in evidence that by the end of March the site was “demobilised”.[27]
[27]T6-138 L46.
The scaffolders returned as advised on 4 April 2016, but by email that day Mr Girdis informed the builder:
… By our email of 24/3/16 we repeat our instruction no work is to re-establish on site until further notice. Please contact your scaffolder immediately and request they leave site.[28]
[28]Ex 48.
I make the following findings.
The builder did not purposely slow construction on site at any time. Though the builder asked the Monsours to change the contract from fixed price to cost plus, I determine the refusal by the Monsours to do that did not cause the builder to slow or stop work.
Rather the builder’s construction schedule was initially hindered then brought to a stop by the failure of the Monsours to provide owner supplied goods and trade services required by the builder to continue work.
The builder’s exclusion from the work site on and from 4 April 2016 and the failure to supply requested necessary goods and trade services was a repudiation by the Monsours of their obligations under the contract. The builder was entitled to serve the notice of intention to terminate the contract on 10 May 2016.
The failure of the Monsours to rectify the identified breaches within the time set under the notice then entitled the builder to terminate the contract, which it did on 28 June 2016.
A number of consequences follow from my finding that the contract was validly terminated by the builder because of the breaches of contract by the Monsours.
A party in substantial breach
By clause 20.3 of the general conditions the owner is not entitled to terminate the contract if the owner is in substantial breach.
“Substantial breach” is defined in clause 1 of the general conditions as “a contracting party’s failure or refusal to perform a substantial obligation under the contract (e.g. owner fails to make payment on time)”.
The Monsours were in substantial breach of their obligations under the contract when they purported to issue their notice of intention to terminate on 3 June 2016 and when they issued the following notice of termination on 28 June 2016. Such notices were therefore ineffective, and indeed in themselves constituted repudiation of the contract.
The builder is entitled to rely upon the failure to pay amended progress claim 12 as a substantial breach of the contract and as grounds to terminate, regardless that it was not referred to in the notice of intention to terminate of 10 May 2016.
As explained by Mason J in Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245:
26. Shepherd v. Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 stands as authority for the general proposition that a termination of a contract may be justified by reference to any ground that was valid at the time of termination, even though it was not relied on at the time and even though the ground actually relied on is found to be without substance.[29]
[29][26].
Given I find the Monsours were in breach of contract and I accept Mr Ray’s estimates for the value of work done up to and including amended progress claim 12 rather than Mr Davies’ figures, there are two consequences that follow.
The Monsours are not entitled to recover $152,480.46, or any other amount, from the builder as an overpayment. There was no overpayment, and even if there had been, given the Monsours were in breach, they are not entitled to claim general law damages.
As to the builder’s claim to recover the outstanding amended progress claim 12, by clause 22.4 the builder is entitled to recover all loss, costs, expenses and damages in connection with the owners’ breach. Clause 22.2 provided that the right of the builder to rely on the notice of termination procedures set out in clause 22 was without prejudice to any other rights or remedies available to the builder, which means an action claiming general damages was also available.
Regardless which avenue is taken, any assessment of damages follows the general rule, which is that a claimant is entitled to be placed, so far as money can do it, in the same position they would have been in had the contract been performed.[30] The amount claimed in amended progress claim 12 cannot be considered in isolation. On Mr Ray’s figures, which I accept, there was an overclaim across all progress claims when considered together, which means the builder is not entitled to the simple difference between the value of amended progress claim 12 and variation 14 ($58,799.56).
[30]Robinson v Harman (1848) 1 Ex Rep 850.
According to Mr Ray, the builder’s total progress claims excluding variations was $1,149,496.59. Mr Ray’s calculation for that work was $1,112,206.37,[31] a difference of $37,290.22. That is the amount outstanding to the builder and that amount is allowed.
[31]Ex 31Appendix E.
Claim for rectification of defective work
As stated, given the Monsours were in breach under the contract, they have no entitlement to claim general law damages against the builder. Clearly the Monsours are not entitled to damages for incomplete work. Any such was yet to be done and the builder would have been entitled to charge for it.
However the builder is not entitled to be placed in better position than it would have been in had the contract been performed. Any cost of rectification of defective work the builder has saved in terminating the contract must be taken into account in assessing the builder’s entitlement to damages.[32]
[32]As we explained in Worthington v Ryan; Ryan v Worthington [2021] QCATA 138 [95].
A consequence of the Monsours’ breach of contract and builder’s entitlement to terminate is that the builder was deprived of the opportunity to rectify defective work during the defects liability period. A contractor’s cost of rectification is generally acknowledged to be less than that charged by a third party contractor called in to do the work later.
The Monsours claim $36,019.42 for costs of rectification of defective work. There is little evidence offered in support of the claim.
Mr French, who trades under the name Featherstone Constructions, was engaged by the Monsours to finish work at the site after the contract with the builder was terminated. It is not clear whether he entered into a building contract with the Monsours. If he did, it was not put into evidence. His experience and qualifications are unclear. He gave no indication what his qualifications were in his statement of evidence and described himself at hearing as a building supervisor rather than a building contractor or a site supervisor. If his only qualification is site supervisor, he is not qualified to enter into building contracts, only act as an employee to a contractor.
Mr French said in evidence that he worked for the Monsours on an hourly rate (not an entirely dissimilar arrangement, I note, to the cost plus contract proposal suggested by the builder in its letter of 28 October 2015 but rejected by the Monsours).
In his statement of evidence Mr French merely says “… a lot of the work done by C & R was either defective or not up to the requested standard and therefore had to be completely redone.”[33] He gives no details about that defective or substandard work save in a separate document entitled Featherstone Repairs to Defective Works (‘the French schedule’) which is to be found attached to a statement of evidence by the Monsours rather appended to the statement of evidence by Mr French.[34] Mr French however refers to that document in his statement of evidence.
[33]Ex 7 [4].
[34]Ex 13 document 26.
The French schedule is one single page divided into columns. There are 25 items of claimed defective work noted. The columns are variously entitled Description, Hours allocated, Labour cost, Material and Total cost. Item 1 for example describes the item of claim as copper downpipes, hours allocated 64, labour cost $5,984, material $715 and total cost $6,699.
There is another document attached to the Monsours statement of evidence called a Defective Works Table (‘the table’)[35] which refers to and purports to add to these 25 items of claim. It is unclear who prepared it, most probably the Monsours.
[35]Ex 13 attached but not identified by number.
In this document the claim for cost of repairs for item 1 is increased to $9,465.50 with the addition of a cost of an engineering firm to replace two “columns“ (the copper downpipes) and refixing the bases. Here the repair work is described as “replace galv. Post. Insert PVC pipe in galv post to prevent electrolysis. Recentre post. Provide adequate support. Redo base.” The description of the defect is also expanded as follows:
Copper downpipes at back of house. QBCC found the istallation (sic) of support posts not completed to an acceptable industry standard. The posts were not centred. Copper joined to galv steel will cause electrolysis. Posts not fixed properly at the base creating area that could hold water. Post not protected with protective coating.[36]
[36]Ex 13 unpaginated A3 sheets.
Fourteen items refer to a Queensland Building and Construction Commission (‘QBCC’) report.
There were two QBCC reports however, an initial report and a second report (‘review report’), the latter reviewing and setting aside in large part the initial report. The final review report reduced the directions to rectify defective work given the builder to three, those items listed 1, 2 and 4 in the table.
Items 1,2 and 4
Item 1 concerning copper pipes was canvassed in some detail at hearing. QBCC identified the problem as follows:
the installation of the galvanised steel posts (x2) to the rear of the dwelling supporting the roof to the outdoor patio have not been completed in accordance with acceptable practice for construction using dissimilar metals as the copper downpipes are discharging directly into the galvanised steel posts, which will cause accelerated galvanic corrosion to the posts and a subsequent reduction in the structural performance of the dwelling.
Item 2 is described as:
the installation of the reinforced concrete columns (x2) to the front of the dwelling in the outdoor area have not been completed to a reasonable standard expected of a suitably qualified and competent tradesperson, as the faces of the columns are bowed and out of square, most likely due to formwork movement during the concrete pour. The columns require rectification via grinding and/or building out the face with render to achieve a satisfactory finish.
Item 4 is described as:
the installation of the infills to the concrete patio slab to the top verandah at the front of the dwelling have not been completed in accordance with good building practice, as the use of material (fibre cement sheet) which is dissimilar to the surrounding substrate (concrete) will result in an unacceptable finish to the subsequent tiling works due to the need for movement joints to be incorporated right through the bedding and the tiles for the full perimeter of the junction between the dissimilar materials.
With respect to item 1, the builder proposed to solve the problem of stormwater running from copper to galvanised steel by running a plastic flexible product called stormflex inside the galvanised steel post to connect with an existing PVC stormwater line. There is no direction concerning the method of rectification. QBCC does not do that. How a builder complies with a direction to rectify is a matter left to the builder.
The builder proposed its solution. Dr Monsour disagreed.
I find that Mr Darvill’s proposal would have proven adequate to address Dr Monsour’s primary complaint about electrolysis. The proposal was supported by an engineer, Mr Tanner, who provided a statement of evidence. Mr Tanner attached to his statement a copy of a hand drawn sketch on the builder’s letterhead paper showing the proposed connection between stormflex and PVC pipe. Mr Tanner refers to the sketch in his report. He does not see any problem with the design.
There is also a statement of evidence by an engineer, P C Wisowaty, who states the welded join of the columns concerned had been reviewed and the joining method proposed by the builder was structurally adequate.[37]
[37]Ex 74.
Finally there is a statement of evidence from welding contractors certifying successful trial welding performed to test the rectification work (which involved welding on site) proposed by the builder.[38]
[38]Ex 75 and 76.
Though Mr Tanner and the other professional and tradesmen providing statements of evidence were not called and subject to cross-examination, I accept their evidence to the objections of Mr French and Dr Monsour unsupported by independent expert evidence.[39]
[39]s 28(3)(b) and (c) QCAT Act, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.
Mr French said the proposal wouldn’t work because the stormflex had a diameter of 70mm and therefore it could not connect with an adequate seal to a 100mm fixed PVC stormwater pipe. He said under the contract specifications it required a sealed connection.[40]
[40]T1-81 L7.
Dr Monsour was of similar view. He required 100mm PVC used inside the columns, not 70mm stormflex, because, as he stated in cross-examination:
--- The diameter there is different to the diameter here. It’s specified by 100 mil PVC pipe. So down to the ground – you’ve got a PVC pipe sitting down there. That won’t go through it. So if you want to put a reduction column in that to get through that part, you’re left with then a smaller diameter; right? Then you’ve got a pipe down to the ground and then you’ve got a PVC pipe. You can’t glue them. You can’t join them. So you – the problem – the reason why I designed this was to stop ... electrolysis.
Excellent. Well ‑ ‑ ‑?‑‑‑And ‑ ‑ ‑
‑ ‑ ‑ assuming that’s right – assuming that’s right; okay?‑‑‑And that’s a structural column.
Yes?‑‑‑Not only that, as soon as you weld that, you get rid of the – you get rid of the galvanising. And you can’t regalvanise this once you weld it – weld it – the inside of that column.[41]
[41]T4-147 L25-40.
According to Mr Darvill at hearing however, who had hand drawn the diagram attached to Mr Tanner’s statement of evidence, the water from the stormflex fell into a sump or transition box and then got away via the PVC piping. Mr Darvill said he had taken further advice from the engineer to the job, Mr Sheedy, and raised the issue of condensation with him. They had agreed he would seal the area with a special 80 MPa high strength grout in liquid form to take it up above ground line.[42]
[42]T6-46 L9-15.
In the builder’s drawing attached to Mr Tanner’s statement there is a diagram of the baseplate of the galvanised column with the notation “Sikaflex seal gal. baseplate to concrete footing.”
There is no evidence that the steel columns would ever be affected by storm water using the builder’s proposed solution.
The engineer, Mr Tanner, was happy with the design. In his statement of evidence he commented he holds the position of Adjunct Associate Professor, Advanced Water Management Centre, University of Queensland. He said in his statement that the drainage works were likely to have sufficient capacity for the required flow as set out under Australian Standard AS 3500.
I accept the engineers’ opinions that the builder’s proposed solution would have been structurally sound. I prefer the evidence of the witnesses for the builder about this issue rather than the opinions expressed by Dr Monsour and Mr French.
In fact however, the remedial work proposed by the builder was never done. The issue of the galvanised columns was one of the three matters of defective work the QBCC directed the builder to rectify. Mr Darvill and his workers attended on site to do the work but were told by Mr French, who was on site, they were not to attempt to rectify the stormwater issue using the builder’s solution. Mrs Monsour was there at the time. She said they could continue with other rectification work but not the galvanised columns. Mr Darvill and his workers left the site however.
By clause 19.3 of the contract general conditions:
19.3 Contractor must rectify defects identified during the defects liability period
Subject to reasonable access being provided, the contractor must within 20 business days of the expiry of the defects liability period, rectify any defects notified to the contractor under clause 19.2 during usual business hours and at no cost to the owner. The contractor is not responsible for rectifying any alleged defects which arise from the fact that something is still to be supplied or done by the owner or which relate to the maintenance of an item which is to be performed by the owner or is the responsibility of the owner.
In respect of rectification of the stormwater problem I find no reasonable access was provided to the builder, and on that alternate basis as well, the builder had no further responsibility to rectify it.
The refusal of access did not apply to the other two items singled out for rectification by QBCC however. They form the Monsours’ claims for rectification of defective work, items 2 and 4. I find the builder could have attended to them on the day. The nature of the defects is explained in the review report and supported by photographs. I accept both defects would have required remediation during the defects liability period had the contract continued to completion.
In respect of item 2, the complaint about bowed columns, there is an invoice from Kennards Hire for hire of a large handheld concrete mower together with a diamond disc, industrial vacuum cleaner and safety welding respirator. I consider the builder would have been required to make similar hire and therefore I accept the Kennards Hire cost. As to labour, I accept the time claimed by Mr French to grind off the bowed surfaces of 11 hours. The builder made no comment about this item of claim, and similarly with respect to item 4, because the builder relied on exclusion from site to remove responsibility to rectify, which I reject.
Mr French claims an hourly rate of $93.50 however, almost double that charged by Mr Darvill, who consistently charged at $55 per hour in his variation claims,. I allow 11 hours at $55 per hour which totals $550 and cost of hire of $311.90, which totals $861.90.
With respect to item 4, the complaint about fibre cement sheeting infill, Mr French claims six hours work and the cost of materials at $99. Again I have no evidence about the hours claimed or work done from the builder and therefore accept the time claimed and work done by Mr French, which is 6 hours, but reduced to $55 per hour.
In the table there is an additional claim of $646.80 for “saw cut and drill”. There is no receipt to support that extra charge in the referenced document[43] nor does Mr French make reference to it. I limit the claim to six hours at $55 per hour which totals $330, plus the outlay of $99 referred to in the French schedule, which makes a total of $429.
[43]Ex 15 document 29.
Items 6, 7, 8, 9, 10, 12, 13, 17, 19 and 22
Generally, all these claimed items of defective work suffer from a paucity of evidence in support. There are only the comments found in the table, whose authorship is unclear, the unhelpful broad brush evidence given by Mr French that a lot of the work done by the builder was defective, and the separate French schedule apparently based on hours of work performed by Mr French.
I find that the Monsours generally fail to prove the items of complaint amount to defective work by the builder in respect of the scope of work under the contract, fail to prove that the work done by Mr French was necessary to remedy such defective work, and fail to prove that such charges were reasonable costs of rectification. The mere existence of an invoice for work done in the absence of evidence that establishes the original work was defective, that it was within the scope of work of the contract, and that the remedial work and its costs are reasonable, is not enough. This is especially so in the matter at hand given the claims by the builder that the Monsours were constantly changing the scope of work of the contract and that the claimed remedial work was work done a long time after the builder had left the site.
In respect of the added frieze, he said that was a change to the original drawings whereby a frieze was to be added to all bulkheads in areas with recessed ceilings.[101]
[101]T8-44 L30.
In cross-examination Mr Darvell said Mr Gannon knew about the matter but that:
I know that we had to change the construction because of what Mr Monsour wanted on site. Then we got the sheeting there to sheet it. Then we had to return it. So there is a portion sitting in there and Darren can clarify that, because he was the one physically on site.
So you may still be pursuing the $9133?‑‑‑A portion.
A portion of it?‑‑‑A portion of it. Yeah.[102]
[102]T7-65 L39-46.
The evidence by both parties is unsatisfactory. On the evidence led I accept the claim save for the costs of the plasterer. There is no invoice in evidence to support a claim that a plasterer attended to do work. The sheeting was returned, and presumably these were the sheets to be set by the plasterer. I accept the builder’s own costs for building bulkheads however.
I allow the variation claim in the amount of $3,353 for labour and costs plus 20% builder’s margin on that plus 10% GST which totals at $4,425.96.
Variation 36 – Extra plastering
The variation claim document is dated 23 March 2016 and the work done described as “extra plastering to kitchen area as advised by email from Damien”. The claim is for $1,709.40.
The email (Damien Carstens worked for the builder) referred to is addressed to Dr Monsour and copied to Mr Gannon and Mr Darvill and a copy is with the builder’s tendered variation document. The email is dated 12 October 2015 and as relevant states:
Subject: Minutes of meeting 9th of October
Bruce Marie
Notes form (sic) Friday’s meeting.
…Item 7 kitchen ceiling to be replaced; Bruce and Marie would prefer full removal and reinstatement. I explained that this will come at extra cost.
When the email was put to Dr Monsour he did not agree it was accurate. He said that the kitchen had been built to the specifications of the house. He was not informed about any plastering being required. When pressed by Counsel Dr Monsour changed his evidence. He said the builder did not take the whole ceiling out of the kitchen right down to the end where the bench was. “They joined the ceilings up, old with new but they left old down there.”[103]
[103]T4-131 L34.
I find extra work was done in the kitchen and I accept the builder’s claim for $1,709.40 for this variation.
Variation 37 – top level bulkheads
The variation claim document is dated 23 March 2016 and the description of the work is extra ply, blueboard, hardiflex, shadow line, setting, cornices and labour to construct bulkheads to owners’ details. The amount claimed is $9,133.94.
Mr Darvill said at hearing that the builder resiled from pursuing this claim.
The variations allowed the Builder
I find the builder is therefore entitled to be paid the following amounts for variations:
Variation Amount
7 $ 5,807.59
10 $ 2,402.40
14 $12,158.85
16 $ 3,115.20
17 $ 2,811.60
18 $ 145.20
19 $21,326.20
20 $ 4,356.00
22 $ 554.40
23 $ 217.80
25 $ 871.20
26 $ 2,323.20
30 $29,040.00
32 $ 263.74
33 $ 2,512.96
34 $ 5,121.60
35 $ 4,425.96
36 $ 1,709.40
Total $99,163.30
Conclusion
The claim by the Monsours to recover an overpayment of money to the builder fails. Similarly their claim to recover the payments already made for variations.
The builder is entitled to payment of $37,290.22 for outstanding amended progress payment 12, less the value of defects that would have been required to be rectified at practical completion in the sum of $2,045.90. That leaves a balance of $35,244.32. I determine the builder should also be entitled to recover variations to the value of $99,163.30.
The total amount therefore owed the builder is $134,407.62.
Costs
Both parties claimed costs.
The parties shall make submissions about that.
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