Naganowska v Paddison
[2015] QCAT 276
•15 July 2015
| CITATION: | Naganowska v Paddison [2015] QCAT 276 |
| PARTIES: | Elizabeth Naganowska (Applicant) |
| v | |
| Brian Paddison (Respondent) |
| APPLICATION NUMBER: | BDL173-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 27 May 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Holzberger |
| DELIVERED ON: | 15 July 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Application is dismissed. 2. Each party is to bear their own costs of the Application. |
| CATCHWORDS: | DOMESTIC BUILDING DISPUTE – breach of contract – quantum of damages – onus of proof Domestic Building Contracts Act 2000 (Qld), s 7 |
APPEARANCES:
| APPLICANT: | Elizabeth Naganowska |
| RESPONDENT: | Brian Paddison |
REASONS FOR DECISION
Ms Naganowska is the owner of a vacant block of land at 48 Yacht Street, Russell Island. She proposed to construct a dwelling on the block and obtained an owner builder’s permit for that purpose on 26 September 2013.
She retained a draftsperson, Deidre Sanmungan to, among other things, make application to the Redland City Council for a drainage/plumbing permit. Ms Sanmungan in turn retained the services of Mr Paddison to provide the necessary Property Assessment Report.
In September 2013 Mr Paddison delivered his Property Assessment Report to Ms Sanmungan with an invoice for $350.00 and a quotation to supply and install a septic system on the block. Both the invoice and the quote were addressed to Ms Naganowska. The invoice was subsequently paid and the quotation accepted.
Originally Ms Naganowska was dealing with another builder but when those negotiations soured she began dealing with Brett Worcester and entered into an agreement with him on 4 February 2014. Mr Worcester was a respondent to these proceedings but Ms Naganowska’s claims against him have been settled.
Ms Naganowska acknowledges in her application and in the evidence she gave to the Tribunal that she had no building knowledge or experience. Her contract with Mr Worcester provided for him to be paid at an hourly rate but that does not really reflect the agreement between them. He was in effect the builder and she was his labourer. She was reliant on his building experience and expertise. Their agreement specifically authorised Mr Worcester to engage contractors and suppliers on her behalf although she was to attend to payment of them directly.
Mr Worcester also engaged Mr Paddison to design and install the septic system for the project. In consultation with Mr Paddison Mr Worcester decided to reposition the septic system from one side of the house to the other. A resubmission fee of $220.00 was paid to the Redland City Council for that purpose however Ms Naganowska now has some doubts as to whether that amendment has been approved by Council. She agreed in evidence that Mr Worcester was the party responsible for the decision and had authority pursuant to their contract to make it.
Without any involvement by Mr Paddison, Mr Worcester undertook site works on 24 March 2014. After the completion of those works Ms Naganowska became concerned about water pooling on the site.
She arranged a meeting with Mr Paddison on site in early March 2014. Recollections vary as to what occurred at that meeting but both parties agreed that the site works undertaken by Mr Worcester were incorrect and needed rectification. Mr Paddison agreed to attend to that rectification.
Ms Naganowska says that Mr Paddison agreed to attend to those rectification works at his cost. Mr Paddison says he only agreed to provide his time without charge. Nothing turns on this as Ms Naganowska has not paid the invoice Mr Paddison subsequently rendered and Mr Paddison has not counterclaimed for that fee and his evidence is that he has written off the amount. It does however epitomise the lack of effective communication between Ms Naganowska and Mr Paddison.
Ms Naganowska and Mr Paddison again met on site on 15 May 2014. Also in attendance was Mr Bonnett of JSB’s Earthmoving with his earthmoving equipment. Mr Bonnett was Mr Paddison’s subcontractor. Both parties agree:
a) that Mr Paddison proposed to repair the site by carrying out a further cut at the street frontage of the property;
b) Ms Naganowska did not agree to that proposal;
c) Mr Paddison proposed that the only other option was to rebuild the block;
d) Ms Naganowska opted for the rebuilding option; and
e) Mr Paddison conferred with Mr Bonnett and then left the site before the completion of the works.
Ms Naganowska remained on site while Mr Bonnett undertook the works but says that she could not see what was being done at the back of the property because of her position on the block and the presence of soil on the site.
On completion of the works she immediately registered her complaint with Mr Bonnett who telephoned Mr Paddison.
Mr Paddison did not return to the site.
Ms Naganowska contacted Mr Paddison by email the following day expressing quite clearly her concerns about the changing of the levels at the back of the property.
Mr Paddison did not respond to that email or subsequent emails sent on 21 May or an SMS message sent on 27 May.
Mr Paddison delivered a tax invoice to Ms Naganowska dated 29 May 2014. By email the following day Ms Naganowska refused to pay. Mr Paddison threatened to lodge a claim for its recovery and by letter dated 22 June 2014 advised that he was no longer prepared to continue working with her and threatened to advise suppliers and contractors of the difficulties he had working with her.
Consequently Ms Naganowska claims from Mr Paddison damages in respect of two matters:
a) the cost of the “Council submission” that is to say the cost of obtaining and amending the plumbing/drainage permit; and
b) a proportion of the cost of restoring the block to its original levels.
In addition, she claims the sum of $642.50 for costs of and related to her application.
Evidence
Ms Naganowska relies on her Amended Application for Domestic Building Disputes filed in the Tribunal on 11 November 2014 and correspondence from her in response to Tribunal’s directions for delivery of witness statements received by the Tribunal on 6 March 2015. The amended application effectively contains her statement of evidence. Correspondence received subsequently provides further explanation to the various documents attached to the amended application.
Ms Naganowska gave oral evidence. There were no further witness statements produced and no witnesses were called on her behalf.
Mr Paddison did not respond to the amended application or provide any witness statements as directed. On 5 January 2015 he filed in the Tribunal an application for extension of time which in addition to a request for extension of time contained the following:
2(a)Have the complaint struck off as I am not a builder;
(b)Have given no building advice to applicant;
(c)Have no QBCC licence nor do I require one;
(d)QCAT therefore have no jurisdiction over me.
In correspondence dated 31 January 2015 Mr Paddison repeated his objections and advised that he would not be attending the “so called” compulsory conference and would return any further correspondence from the Tribunal unopened. He said:
I am appalled that you should have progressed this matter so far without even the most rudimentary checks.
Notwithstanding Mr Paddison appeared in person at the hearing. His only explanation for his failure to respond or comply with the Tribunal’s directions was that he could not believe that the matter has progressed to hearing.
I allowed him to give oral evidence. For reasons which will appear later I do not believe that allowing that evidence disadvantaged Ms Naganowska in fact. Nothing that Mr Paddison said in evidence or submissions resulted in or contributed to any finding of fact adverse to her.
The Tribunal’s task was made more difficulty by the deficiencies in the material and evidence relied on by both parties. Ms Naganowska questioned whether the work undertaken by Mr Paddison was satisfactory and while she is of the opinion that it is not, she lacks the necessary expertise and experience to answer that question either way. Mr Trewern’s letter, which I will deal with later, is of some assistance but it does not address a number of issues relevant to her claims. It is unfortunate that he was not called to give evidence.
Mr Paddison on the other hand neither responded to the application nor prepared statements of evidence and his evidence suffered greatly as a consequence. It was largely disorganised and off point.
I found both witnesses to be truthful but both lacked objectivity.
Ms Naganowska’s anger is evident in her application and her demeanour at the hearing was combative. She believes that she is the victim of unscrupulous behaviour by Mr Paddison and Mr Worcester. She does not accept responsibility for anything that has occurred.
Mr Paddison on the other hand did not see fit to offer a response or comments on the concerns first raised by Ms Naganowska on 24 March 2014 until the hearing of this matter. In response to a question from me as to whether he had in fact inspected the site after completion of the site works during his submissions Mr Paddison responded that he had attended at the site in the weeks before the hearing. He effectively dismissed Ms Naganowska’s claims that the work had not been carried out properly without actually inspecting the works.
He does not concede that there is any problem with the execution of the site works despite the damage to neighbouring properties clearly indicating that there are.
That is not to say that he is an unpleasant or overbearing man. He is not. He appears however to be a man with an unshakeable belief in his expertise. It would in my opinion be difficult for him to accept any blame for anything related to his work and that certainly is the case here.
At the conclusion of his evidence in chief, Mr Paddison asserted that Redland Natural Waste Disposals was a business conducted by a company of which he was the sole director and that accordingly Ms Naganowska had commenced proceedings against the wrong respondent. I propose to deal first with that assertion and his objection to jurisdiction.
Jurisdiction
The Tribunal has jurisdiction to decide building disputes.[1] Domestic building work is defined to include a claim or dispute between a building owner and building contractor relating to the performance of reviewable domestic work.[2]
[1]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) s 77(1).
[2]Ibid, Schedule 2.
Domestic building work includes site works relating to the construction of a domestic dwelling.[3] Site works for that purpose were undertaken by Mr Paddison.
[3]Domestic Building Contracts Act 2000 (Qld) (DBC Act) s 7.
Mr Paddison is a building contractor because his business includes the carrying out of building work.
I find that the Tribunal has jurisdiction to hear this matter.
Wrong respondent
Mr Paddison conceded in evidence that he had never disclosed to Ms Naganowska that he acted as a director or employee of a company and did not contend that he acted as a director or employee of a company at any time in these proceedings before conclusion of his evidence in chief.
Nothing in his tax invoice or quote to Ms Naganowska delivered in September 2013 gives any indication that he acted in any capacity other than his own.
There is no mention of any company on his letterhead. On the tax invoice and quote under the trading name “Redland Natural Waste Disposals” appear the words ‘Brian J Paddison’.
He has signed the quote apparently in his own capacity.
Mr Paddison has clearly held himself out to be the provider of services, not some unnamed company. I find that he is the appropriate respondent.
The Council submission claim
Ms Naganowska claims an amount of $1,387.00 for the costs of obtaining and amending the drainage/plumbing permit from the Redland City Council which she says have been thrown away firstly because the status of the permit is uncertain and secondly because Mr Paddison’s threats to inform suppliers and contractors of her conduct will mean the system will need to be redesigned.
This part of the claim cannot succeed.
Mr Paddison was retained by Ms Sanmungan to prepare a Property Assessment Report. He did and the plumbing/drainage permit was duly obtained. He was entitled to be paid and was in fact paid.
Ms Naganowska had not spoken to or engaged Mr Paddison directly prior to their discussions in May 2015. Until then he was a subcontractor engaged by Mr Worcester. The extent of his involvement in the decision to relocate the septic system is unclear but regardless the decision to relocate was Mr Worcester’s to make. Ms Naganowska conceded as much in evidence.
I am not satisfied that the costs have been thrown away. It is Ms Naganowska’s evidence that she does not have an amended plan stamped to indicate the Council’s approval and has not received responses to emails to the Council. She has been told over the telephone by a Council officer that the changes had been approved. It is not for Mr Paddison or the Tribunal to resolve Ms Naganowska’s concern in this regard. There is simply no evidence the permit is not in place.
There is no evidence that Mr Paddison has made good on this threats to inform suppliers and contractors of her behaviour. There is no evidence that Ms Naganowska has attempted to engage alternate contractors or suppliers. There is no evidence that she would need to make fresh application to the Council should she change contractors or suppliers.
Earthworks claim
Ms Naganowska claims damages for site works carried out by Mr Paddison and his subcontractor Mr Bonnett for an amount of $2,107.50 being 50% of her estimate of the costs of restoring the block to its original levels.
The basis of her claim is not clearly set out in her application. She uses many descriptors for Mr Paddison’s conduct but I understand the essence of her claim to be that his conduct breached his contractual obligations to her or that he negligently completed the works.
I find that Mr Paddison has contracted with Ms Naganowska to carry out site works to the property to repair the damage caused by Mr Worcester and to make provision for drainage. The contract was oral and formed by the two meetings between the parties in May 2014 described earlier. It is agreed that Ms Naganowska’s instruction to Mr Paddison was to rebuild the block. Ms Naganowska clearly does not believe that this instruction was carried out.
Ms Naganowska relies on a letter addressed to her dated 3 October 2014 from WA Trewern, Consulting Structural Engineer. Mr Trewern had earlier been retained by Ms Sanmungan to design footings and slab for the project.
Mr Trewern was briefed by Ms Naganowska to prepare this letter. She says in evidence that Mr Trewern relied on site plans and drawings in his possession. She did not provide any plans or documents to him. Mr Trewern does not say what drawings he relied on nor are they attached to his report or at least the copy filed in the Tribunal.
In the letter Mr Trewern states:
The site has now been cut leaving a 500mm battered bank extending across the rear area and the remainder of the site cut to suit only the level of the proposed garage slab floor. To fulfil the owner’s requirements part of this flat area would have to be filled and compacted (preferred option) or else the main part of the house be supported on steel posts.
He goes on to say that the site is no longer self‑draining and that it must now be filled/compacted or piered or alternatively a system of drains installed to dispose of stormwater.
He says that there is a cost to this but does not say what that cost is.
He confirmed the evidence of Ms Naganowska that in carrying out his work Mr Bonnett damaged two adjoining properties resulting in a battered bank on the property on the left hand side (from the street) and an amount of spoil from the excavation on the property at the rear.
Ms Naganowska says that some of this spoil has been stolen from the site and to fill and compact she proposes she would need to buy soil. Neither she or nor Mr Trewern estimated the quantity needed or the cost of it. Whilst Mr Trewern’s letter is helpful to a limited extent it is silent on a number of matters which are critical to Ms Naganowska’s case. Whether this is due to the limitations of his briefing or his unwillingness to commit or offer an opinion is unclear but I suspect it is the former.
Ms Naganowska complains in her application and in her evidence that in their two meetings Mr Paddison was dismissive of her and in particular at the second meeting said ‘that he had a life of experience in the field; gave me a pat on the shoulder and said that I was worried too much, all would be fine and that the operator knew what to do …’.
He did not respond to her after her concerns were raised with him by Mr Bonnett. He did not respond to her email of 16 May which clearly set out her concerns despite exchanging emails with her about the payment of his fees.
I find that Mr Paddison performed the works negligently and is in breach of his contractual obligations to Ms Naganowska in two regards. Firstly, he failed to carry out her instructions. Secondly he failed to properly supervise the works carried out by his subcontractor.
There was ineffective communication between the two parties about the nature and extent of the works and the possible outcomes of them.
Ms Naganowska must take some responsibility for this. She told Mr Paddison by email after the event that she wanted the back of the property to remain level so she could park a caravan there. She does not suggest that she told him this before the works commenced. However, Ms Naganowska’s lack of building experience was or should have been obvious to Mr Paddison. The outcome of site works is not obvious particularly to someone of limited experience. Mr Paddison acknowledges in his evidence that Ms Naganowska would not accept his proposal to do a further cut albeit to the front of the block. Notwithstanding this Mr Paddison did not explain what he intended to do or the effect it would have on the block.
If a cut at the back of the block was necessary to rebuild the block, and I have no evidence that that is the case, he was at least obliged to advise her that that was the case before going ahead with the work.
It is evident if only from the damage to adjoining properties that the works by Mr Bonnett were unsatisfactory. Mr Paddison gave directions to Mr Bonnett and left the site. He was alerted by Mr Bonnett of Ms Naganowska’s complaint but did not return to the site. His supervision was at best inadequate and at worst non-existent.
Damages
Before considering the consequences of Mr Paddison’s breach I will deal with Part C paragraph 5 of Ms Naganowska’s amended application. That section is headed “Financial Claims – Comprehensive list of damages, costs and losses caused by the Respondents”.
In that section Ms Naganowska says that she has spent $54,000.00 since commencing the project and goes on to provide a list of what she has achieved for that amount consisting of some 13 items.
Those items are either dealt with in her specific claims against Mr Paddison, relate only to her claims against Mr Worcester or are in the nature of pain and suffering claims which are not matters for this Tribunal.
I have found that Mr Paddison breached his contract with Ms Naganowska and performed the site works negligently. The relief Ms Naganowska seeks is a proportion of the costs of restoration of the property to its original levels.
I had some concerns that the proposed restoration was an appropriate remedy. Mr Trewern says in his letter that only part of the site would need to be filled and compacted for the construction to proceed. That assumes of course that the construction will proceed. Ms Naganowska’s evidence is that it may not.
In those circumstances I accept that the cost of restoration is a reasonable basis for assessing the damage she has suffered.
That however is the point where deficiencies in her evidence become insurmountable.
Ms Naganowska claims 50% of the total restoration costs from Mr Paddison. There is no evidence which supports that proportion.
The list of attachments contained in her amended application includes an item specified as “08C Quote for damage repair”. After that item the words “to be confirmed” are handwritten. There is no attachment numbered 08C in the amended application.
In her letter to the Tribunal dated 22 February 2015 received by the Tribunal on 6 March 2015 in relation to item 08C, she says that the quote would need to be confirmed when the work commences. “I sought a quotes [sic] for this job from a builder who visited the site and provided an approximate estimate of $3,500.00. The final figure will depend on the cost of materials”.
In her evidence Ms Naganowska said that the quote was obtained by her from a Mr Gold, a builder of some repute and that despite a request for a written quote he had not provided it. While I do not doubt the truth of her evidence it is not sufficient to discharge the onus she bears to prove her damages.
In circumstances where I am unable to rely on the estimate of her damages or the proportion that is to be attributed to Mr Paddison, any assessment of damage against Mr Paddison would be a guess.
I dismiss the application with each party to bear their own costs of the proceedings.
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