Mossdru Concreting & Landscape v Total Enterprises Pty Ltd
[2010] QCAT 455
•15 September 2010
| CITATION: | Mossdru Concreting & Landscape v Total Enterprises Pty Ltd [2010] QCAT 455 | |
| PARTIES: | Mr Domenic Luliano t/a Mossdru Concreting & Landscape | |
| v | ||
| Total Enterprises Pty Ltd | ||
| APPLICATION NUMBER: | BN089-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15 September 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | Insert date |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent pay the applicant $16,754.61 within 21 days of the date of this order. |
| CATCHWORDS : | BUILDING DISPUTE – where labour only contract for laying concrete – where extra concrete laid – whether respondent requested extra concrete – whether respondent liable to pay for extra concrete – where defects in concrete – COSTS - where no leave for legal representation – where outlays incurred in ASIC searches Queensland Civil and Administrative Tribunal Act ss 100, 102 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Domenic LULIANO |
| RESPONDENT: | Total Enterprises Pty Ltd represented by Paul POOLE, director |
REASONS FOR DECISION
At the end of 2008, Mr Luliano completed some concreting work for Total Enterprises Pty Ltd (“Total”). He rendered two invoices totalling $33,054.45. Total has paid Mr Luliano $14,202.70. Mr Luliano brought these proceedings to recover the balance of $18,851.75.
Total’s defence to the claim has a number of elements:
a)In the defence filed on 5 November 2009, Total claimed that it did not enter into a contract with Mr Luliano.
b)The works were not completed according to plan, nor as requested by Mr Poole, a director of Total.
c)The work was not poured or finished as specified.
Total also filed a counterclaim in the sum of $14,500 for the cost of rectifying Mr Luliano’s non-complying work:
a)concrete poured outside the scope of works;
b)concrete poured on private property;
c)incorrect camber on roadway;
d)insufficient fall to a drainage pit; and
e)damage to an electrical conduit.
Original scope of works
By the time of the hearing, Total conceded that there was a contract with Mr Luliano. The terms of that contract are contained in Mr Luliano’s quote dated 26 October 2008 and a set of plans that indicated the scope of works.
Mr Luliano quoted a labour rate of $14.50 per square metre and $350 for the supply and installation of Sicaflex into the cut joints. The supply of any other materials was an additional cost.
The plans show the original scope of works. Mr Poole gave evidence that the area of concreting as per the plan was 1684m2 but that changes to the design reduced the area to 1607m2.
Mr Luliano’s invoice no. 023 of 16 December (2008) claims payment for 1620 m2. For reasons that I will address later, I am prepared to accept Mr Luliano’s figure. Setting aside the issues of Total’s counterclaim, I find that Mr Luliano is entitled to payment of that invoice in the sum of $26,375.25.
Additional section “A”
Exhibit A to Mr Poole’s affidavit sworn 11 January 2010 shows two additional areas of concreting performed by Mr Luliano that are outside the scope of works. Those areas are the basis of Total’s claim that Mr Luliano poured concrete outside the scope of works.
At the hearing, Mr Poole conceded that section “A” was performed at his request and that Total has no complaint about the work. He told the tribunal that the area of section “A” is 110m2. Mr Luliano has not made a claim for payment for this work.
Additional section “B”
10. This area, along the boundary of lot 2, is the source of conflict between the parties. Mr Luliano says that Mr Poole asked him to pour this additional area. He says that Mr Poole asked him to pour up to “the peg” and this is what he did. The area of this section is 72 m2. Mr Luliano has not made a claim for payment for this work.
11. Mr Poole denies that he requested the additional concrete. He says that the area to be concreted was clearly marked on the plans and pegged out on the ground. Mr Luliano poured to a boundary peg, not the concrete pegs as he should have done. Mr Poole says that he would never have asked Mr Luliano to pour the additional concrete given the trouble that it has caused.
12. The setout coordinates and control line setout details for the concreting are clearly marked in the roadworks and earthworks setout plan. The distance between the end of the concrete described in the scope of works, and presumably pegged out on the ground, and the actual edge of the finished concrete is approximately 20 metres. I cannot see how Mr Luliano could have mistaken setout pegs for boundary pegs in those circumstances. I think the more likely explanation is that Mr Poole did ask Mr Luliano to pour up to the pegs.
Costs of rectification of section “B”
13. I will deal with the quantum of rectification of section B as Mr Poole claims that this extra concrete has resulted in significant expense and inconvenience for Total:
a)Because the concrete extends from lot 2 into lots 3 and 9 and the common property, Total had to realign the boundary.
b)As the additional concrete is not shown in the approved plans, the council requires it removal.
c)Mr Poole had to purchase lot 2 because the council’s requirements made it difficult to sell.
14. These proceedings cannot deal with any alleged loss to Mr Poole, as he is not a party to the proceeding.
15. I have some difficulty with Mr Poole’s evidence. Although numerous costs are mentioned, there is scant evidence to support these claims. I issued a direction on 3 August 2010 inviting the parties to file further material specifically because there was no objective material to support the quantum of Total’s counterclaim. Total did file further material but I am still left with some difficulty.
16. As to the cost of realignment:
a)It is difficult to see how Mr Luliano can be responsible for the cost of realignment of the boundary if he poured up to the boundary pegs, and it transpires that the boundary pegs do not, in fact, represent the boundary. That must be an issue for the surveyor.
b)In his affidavit, Mr Poole asserted that the cost of realigning the boundary was “approximately $7000.” The actual evidence of the cost of realignment is an email from the civil engineer to Total dated 19 February 2009 in which he advises that “The surveyor has advised a cost of $2650 plus GST.” There is no invoice from the surveyor. There is no evidence of a payment from Total to the surveyor. There is no explanation as to the difference between $2915 (the surveyor’s quote including GST) and the $7000 referred to in Mr Poole’s affidavit.
17. As to the cost of removing the section B concrete:
a)Mr Luliano says that he offered to remove the offending concrete at his own cost. Mr Poole says he could not have accepted that offer because Mr Luliano is not an accredited civil contractor.
b)Mr Poole now owns lot 2. The obligation to remove the concrete rests with him.
c)Mr Poole asserted in his affidavit that the cost of removing the section B concrete was $12,000. In response to my direction of 3 August 2010, Total has supplied a quote that provides two options for removal. The highest of these is $8525. Again, Total has not explained the difference between Mr Poole’s affidavit and the subsequent quote.
18. I do not accept Total’s counterclaim in respect of the section B concrete.
Incorrect camber to driveway and insufficient fall to a drainage pit
19. Although he was not called to give evidence, I accept that by email of 9 February 2009, Mr Farrington, a civil engineer, advised Total that these were problems preventing certification of the works. I also accept the truth of those statements.
20. Mr Luliano says that he was not responsible for the setout of the works; he was simply required to pour and finish 150 mm of concrete. He says that, due to the geology of the area, Total found it very difficult to excavate to a sufficient depth and that in no case did he need to add screeded sand to achieve the proper levels. Therefore, if the finished level is too high, that is because Total’s earthworks did not make sufficient allowance for the concrete.
21. That may be true however Mr Luliano was supplied with a set of road longitudinal sections which show the finished levels. He was required to achieve these levels. If that required additional excavation, then he should have addressed that with Total before the pour.
22. Mr Poole says, in his affidavit, that the cost of rectifying this work was about $8000. There are no invoices to that effect. When I asked how that amount was constituted, Mr Poole informed the tribunal that it was work done by a subcontractor for Total. When asked whether there were any invoices from the subcontractor, Mr Poole told the tribunal that it was just a claim for wages. That statement does not explain the assertion in Mr Poole’s affidavit that there was a cost in labour and materials.
23. While I accept that Total is entitled to compensation for these errors in the concreting, I am not satisfied that the amount claimed is justifiable.
Damage to an electrical conduit
24. Mr Farrington’s email does not refer to any damage to electrical conduit. Mr Poole does not indicate the cost of rectification of that damage. I cannot take this issue any further.
Invoice 088
25. Mr Luliano issued invoice no. 088 on 15 December (2008) for $6,679.20. He claims $1,518 labour for filling joints with Sicaflex and $4554 labour for cutting joints in the concrete.
26. Mr Poole says that this invoice was not provided to Total, the work was included in invoice no. 023 and that Total had to hire the concrete cutting saw at a cost of $2400. Importantly, Total does not deny the work was done by Mr Luliano.
27. I do not accept Mr Luliano’s claim of $1,518 for filling the joints. The quote of 26 October 2008 provides an amount of $350 to supply and fill in cut joints and this is the amount that has been claimed in invoice no. 023.
28. I do accept Mr Luliano’s claim for $4554 for cutting the joints. This work was not included in the quote of 26 October 2008 and he did not charge for it in invoice no. 023. Mr Luliano was providing labour. It is, therefore, not surprising that Total had to hire the concrete saw.
Conclusion
29. I have already mentioned my difficulty with some of Total’s evidence. I am also concerned that Total may have been attempting to “double dip”. It obviously made a decision in December 2008, prior to the quantification of its alleged loss, not to pay Mr Luliano the full amount of his invoice. By the time its defence was filed, Total had quantified its loss to almost exactly the same amount as it had withheld from Mr Luliano. Total then went on to claim that same amount as damages in its counterclaim. The nature of the defence leaves me with the distinct impression that Total “doth protesteth too much”[1] In the absence of invoices or independent evidence to support the amount of Total’s claim, I am left with no alternative but to reject the defence and the counterclaim.
[1] Hamlet, Act 3, Scene 2
30. The undisputed evidence is that Mr Luliano is entitled to payment for 1717m2 of concrete at $14.50 per metre. In fact, invoice no. 23 only claims for 1620m2. Even though this exceeds the area of the original scope of works, I am prepared to accept Mr Luliano’s entitlement to the amount as claimed.
31. I am satisfied that Total had to undertake some rectification work but I am not satisfied as to the quantum of that claim. Total may take some comfort from the fact that I am not awarding Mr Luliano a further $1,406.50, being the difference between the area claimed in invoice 23 and the actual, undisputed area laid.
32. I accept Mr Luliano’s claim for $4554 for cutting the joints.
33. Mr Luliano provided the tribunal with an invoice from his solicitors for $547.86. Of that invoice, $450 is for professional fees, $20 for scanning, copying and incidentals and $28.06 relates to a company search. Section 100 of the Queensland Civil and Administrative Tribunal Act provides that, other than as provided under the Act or an enabling Act, each party to a proceeding must bear the party’s own costs. The matters to which I may have regard in determining whether to award costs are set out in section 102 of the Act. There is nothing in this proceeding that persuades me to alter the presumption in section 100. I am, however, prepared to award Mr Luliano $28.06 for the cost of the company search.
34. I calculate Mr Luliano’s entitlement as follows:
Invoice 23 $26,375.25 Cost of cutting concrete 4,554.00 Company search 28.06 $30,957.31 Less payment by Total 14,202.70 $16,754.61
35. I order that Total pay Mr Luliano $16,754.61 within 21 days of the date of this order.
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