Naylor v Young
[2011] QCAT 434
•12 September 2011
| CITATION: | Naylor and Anor v Young and Ors [2011] QCAT 434 |
| PARTIES: | Helen Naylor Simon Whitehead |
| v | |
| Terrance George Young Bryce John Ferguson |
| APPLICATION NUMBER: | BDL202-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 17, 18 February 2011 and 2 March 2011 |
| HEARD AT: | Southport |
| DECISION OF: | Christine Trueman, Adjudicator |
| DELIVERED ON: | 12 September 2011 |
| DELIVERED AT: | Southport |
ORDERS MADE: | [1] The application is dismissed [2] In relation to the counter-application of the Third Respondent, the Applicants are to pay to the Third Respondent the sum of $1975.00 within 7 days. |
| CATCHWORDS: | Dispute as to who bound to contract with the Applicants – Applicants deny they Home Owner Builders – part written and part oral agreement – allegation of defective works – beams installed in the roof by the home owners during roof works performed by the Respondents – liability for roof defects Domestic Building Contracts Act2000, ss 9, 52 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Ms Helen Naylor and Mr Simon Whitehead |
| RESPONDENTS: | Mr Terrance George Young Mr Bruce Robert Trounce Mr Bryce John Ferguson |
REASONS FOR DECISION
Ms Naylor and Mr Simon Whitehead allege that they entered into an oral contract with the First and Second Respondent on 3 December 2009 (“the roof contract’) for them to perform building works to the roof of their home at 9 Fischer Avenue, Southport in Queensland for a total sum of $11,000.00.
The Applicants allege that the works were for the following:
a) removal and disposal of the existing roof sheets from the premises;
b) removal and disposal of all asbestos roof materials from the premises;
c) supervision and instruction by the First and Second Respondent of the Third Respondent (who was engaged by them to undertake carpentry works) and perform work of removing and installing new timber roof battens to the premises;
d) the supply of appropriate roof sarking to the Third Respondent by the First and Second Respondents;
e) supervision by the First and Second Respondents of the Third Respondent to perform the work of installing the sarking supplied by the First and Second Respondent to the premises;
f) installation to the premises of CSR Monier roof tiles supplied by the Applicants to the Third Respondent by the First and Second Respondents.
The Applicants allege that it was an express term of the roof contract that the First and Second Respondent would:
a) at all material times hold and maintain a current valid QBSA license authorising and permitting them to do the works;
b) provide the Applicant with a signed written contract in respect of the works in terms approved by the QBSA;
c) take out and maintain a valid policy or insurance with the QBSA in respect of the works;
d) promptly provide the Applicants with the relevant particulars of the QBSA insurance;
e) supply and install a roof cover by tarpaulin or such other material as reasonably and necessarily required to protect the exposed roof cavity from the weather and in particular rain entering the premises during the works;
f) ensure that all asbestos roof materials and debris was removed from the premises;
g) instruct the Third Respondent as to correct timber battens to be installed;
h) supervise the Third Respondent and ensure that the Third Respondent did supply and properly install the correct timber battens so that they were suitable for the installation of the CSR Monier tiles to the premises;
i) install the new CSR Monier roof tiles in accordance with the manufacturer’s specifications as provided on the CSR Monier web site;
j) supervise the Third Respondent and ensure that the Third Respondent did properly install the sarking;
k) complete the works within two (2) days after commencing the works;
l) would not request, and if they did, would not be entitled to be paid any monies for the works until such time as the works were fully and competently completed.
The Applicants allege that the terms are express terms of the oral contract as on or around 3 December 2009 the First and the Second Respondent verbally discussed with the Applicants and verbally agreed to them.
The Applicants allege that between 3 and 16 December 2009 they entered into a partly oral and partly written contract with the Third Respondent (“the batten contract”) requiring the Third Respondent to perform building works (“the batten works”) to the roof of their home for the total sum of $2000.00.
The Applicants allege that the batten works included:
a) the removal and disposal of the existing timber roof battens;
b) supply and install new timber roof battens to the premises;
c) the installation of the sarking provided to the Third Respondent by the First and Second Respondent.
The Applicants allege that it was an express term of the batten contract that the Third Respondent would:
a) liaise with and take directions from the First and Second Respondent as to the correct battens to be installed;
b) comply with all reasonable instructions and directions of the First and Second Respondent.
The Applicants contend that the implied terms of the batten contract would include:
a) he would supply all plant, equipment and tools of trade required by him to perform the batten works;
b) supply and install roof battens in compliance with the tile manufacturers specifications and the relevant Australian standards;
c) install sarking in compliance with the relevant Australian standards;
d) carry out the batten works in an appropriate and skilful way;
e) carry out the batten works with reasonable care and skill;
f) only use materials which are good and suitable for the purpose for which they are used;
g) perform and or comply with all Standards, building and other laws and or codes as they relevantly apply to the batten and roof works.
The Applicants contend that the roof contract commenced on or around 16 December 2009. The Applicants allege that they supplied to the First and Second Respondent a mains powered grinder at their request. It is alleged the Applicants requested that the grinder be returned to them and the First and Second Respondents failed to do so, and in fact purported to replace the grinder by giving to the Applicants a substitute and different grinder that is defective and was not fitted with a protective guard.
The Applicants content that the First and Second Respondents and or their subcontractors damaged and cracked numerous roof tiles which they had laid on the roof and did not replace them.
The Applicants further allege that the batten contract was breached by the Third Respondent by:
a) the supply and installation of incorrect sized roof battens using a 25mm x 38mm roof batten when the tile manufacturer (CSR Monier) specified a 50mm x 38mm roof batten;
b) supplied and installed roof battens which the Third Respondent knew or ought to have known were less than and different to that specified by the tile manufacturer;
c) supplied and installed roof battens which were undersized and did not comply with the Australian Standard AS 2050-2002;
d) failed to supply and install batten support in various areas where the tiles change direction, and where there were ridge cap tiles and valleys;
e) installed roof battens which the Third Respondent knew or ought to have known would sag under the weight of the tiles and therefore create a wave or dip in the appearance of the roof tiles;
f) performed the batten works inappropriately and in an unskilful way and without reasonable care and skill in that the new roof battens were not affixed horizontally level but directly to the existing roof rafters, and without levelling, straightening or packing;
g) failed to install the sarking correctly in that it did not cover the entire roof area under the tiles and that it sagged, had gaps between the sarking sheets, did not provide proper lapping and was poorly affixed or installed.
The Applicants allege that on 20 December 2009 the contract with the First and Second Respondent was varied by oral agreement between the Second Applicant, (who acted on behalf of himself and the First Applicant) and the First and Second Respondent (“the variation”).
The Applicants allege that the variation to the roof works would be varied to include that the First and Second Respondent would rectify at their own cost any defect in the batten works performed by the Third Respondent and complete at their own costs any batten works not completed by the Third Respondent.
The Applicants allege that as a result of the variation the First and Second Respondents thereon:
a) instructed the Third Respondent not to return to the premises and thereby terminated the contract with the Third Respondent;
b) engaged Matthew of Platinum Roof Restoration who attended the residence on 20 and 21 December 2009 and attempted to perform the works required by the variation.
The Applicants allege that the First and Second Respondents breached the variation contract by:
a) failed or refused to provide the Applicants with a signed written contract;
b) failed or refused to provide the Applicant with details of the QBSA insurances;
c) did not hold QBSA insurance;
d) did not hold the proper or any contractor’s licence of the appropriate class under the Queensland Building Services Authority Act 1991 or Domestic Building Contracts Act 2000 entitling them or either of them to do the works;
e) failed to cover the open roof cavity with tarpaulins or covers and allowed rain to enter the roof cavity and the ceiling of the residence;
f) supplied an inferior wall and metal grade of sarking to the Third Respondent;
g) instructed the Third Respondent to install the inferior grade sarking to the roof;
h) failed to competently or supervise and instruct its subcontractors in that:
§roof tiles were sent up to the roof by the First and Second Respondent and of their subcontractors on a conveyor belt without first ensuring that there was a person at the top of the conveyor belt thereby causing tiles to fall into the roof cavity damaging the ceiling and onto the neighbours adjoining property;
§The First and Second Respondent and their subcontracts were required or permitted to walk on the ceiling rafters and battens rather than on some other stable platform which resulted in the First and or Second and or their subcontractors to step and fall through and damage the ceiling;
i) failed to inform the Third Respondent that the correct size roof batten specified by CSR Monier was 50mm x 38mm roof battens;
j) permitted the Third Respondent to install the incorrect size roof batten, being 25mm x 38mm roof batten when the First and Second Respondent knew or ought to have known that the CSR Monier tile manufacturer specified a 50mm x 38mm roof batten;
k) installed the CSR Monier roof tiles on battens which the First Respondent and the Second Respondent well knew to be less than and different to that specified by the manufacturer;
l) instructed the Third Respondent to install, further or alternatively failed to rectify, further or alternatively laid tiles on battens which were undersized and contrary to Australian Standard AS 2050-2002;
m) failed to instruct the Third Respondent to install batten support in various areas where the tile changed direction, and where ridge cap tiles and valleys were located;
n) installed the ridge capping tiles on top of the new roof tiles when the First Respondent and the Second Respondent well knew that the roof tiles had been defectively installed and would have to be removed and re-laid;
o) failed to instruct the Third Respondent to level and or pack the sagging unlevel roof battens and therefore create a wave or dip in the appearance of the roof tiles;
p) installed tiles which would allow water penetration in moderate to heavy rain;
q) installed valley mouths of inconsistent width and laid tiles which had been cut short and did not overhang the valley gutter by the manufacturers specifications;
r) installed the tile overhang at the fascia over the gutter well in excess of the 50mm required by Australian Standard AS2050 which caused heavy flows of rain water to flow off the roof tiles and not into the gutter;
s) cracked tiles already laid on the roof which it did not then replace and failed to complete the roof works in an appropriate and skilled way;
t) failed to rectify defects created by the Third Respondent;
u) performed the works inappropriately in an unskilled way and without reasonable care and skill in that:
§The new roof battens were not affixed horizontally level but directly to the existing roof rafters without levelling, straightening and packing;
§The tiles were incorrectly laid with inconsistent gapping creating a wave effect;
v) failed to complete the batten works;
w) demanded payment of the contract price even though the works were not complete.
The Applicants allege due to the First and Second Respondents breach of the contract they terminated the contract on 8 March 2010 and suffered loss and damage. They allege that the loss and damages are:
a) $1,101 for tarpaulin hired by the Applicants;
b) $300 for ceiling repairs;
c) $280 to reinstate garden lighting damaged by falling tiles;
d) $45 to reinstate the loss of the mains power grinder;
e) $14,886.36 to Roofs R Us as roof rectification costs paid by the Applicants;
f) $1,466 for replacement of tiles used and or damaged by the Respondents;
g) $239.60 to Queensland Laboratories for independent asbestos testing;
h) $350 to Metro Building Reports for independent assessment and advice concerning the defects and rectification;
i) $1,815 for legal costs incurred by the Applicants in respect of the adjudication.
The Applicants also allege that further, or in the alternative, by reason of breaches by the Third Respondent that the Applicants have suffered loss and damage in the sum of $16,702.36 for the following:
a) $14,886.36 to Roofs R Us as roof rectification costs paid by the Applicants;
b) $1,466 for replacement of tiles used and or damaged by the Respondents;
c) $350 to Metro Building Reports for independent assessment and advice concerning the defects and rectification.
The Applicants allege that as the Respondents are not entitled to be paid the contract sum due to the content of section 43 of the Queensland Building Services Authority Act 1991 and section 52(2) of the Domestic Building Contracts Act 2000 which prohibits the First and Second Respondents from entering into the contract and performing the works.
The Applicants seek relief and orders for the tribunal that include:
a) relief from payment of $14,345.12 or any other sum to the First and or Second Respondents;
b) relief from payment of $2,000 or any other sum to the Third Respondent;
c) the First and Second Respondent pay to the Applicants damages in the sum of $20,437.96 or such other sum assessed by the tribunal; and
d) the First and Second and or Third Respondents pay the Applicants’ costs of and incidental to the Application, to be agreed or failing agreement to be fixed by the Tribunal.
The First, Second & Third Respondents’ Case
The First Respondent was employed and worked for the Second Respondents business, Allsafe Roof Sealers. The Second Respondent is a Licensed Trade Contractor and holds licenses pursuant to section 39 of the Queensland Building Services Authority Act 1991. He holds licenses for roof painting, roof tiling restricted to roof tile maintenance and waterproofing, license number 529418. The First Respondent was not currently licensed under the Queensland Building and Services Authority Act 1991. Both the First and Second Respondents hold the relevant licenses for asbestos removal and disposal.
The Third Respondent is a Licensed Builder and Carpenter and holds license number 1038175.
The First and Second Respondents seek orders from the tribunal that the Applicants claim be dismissed and that the Applicants pay to them the sum of $3,210.00 for additional works undertaken by them at the request of the Applicants. The breakdown of that amount was for:
“removal and replacement of tile, lifting and packing –
34 hours@$80 per hour – Total $2720.00Removal of tiles to tip@ Council site including tip fees $265.00
Labour to assist carpenter (at your request) –
9 hours@$25 per hour Total $225.00
TOTAL:$3210.00”
Further the Respondents are seeking payment from the Applicants in the sum of $12,512.56, as this is the amount already ordered by default judgement in the Magistrates Court of Queensland on 14 May 2010 against the First Applicant, such sum to be paid to the First Respondent. The First Applicant has applied and was successful in being granted a stay on recovery of that judgement pending the outcome of this application.
The First Respondent applied for adjudication pursuant to section 26 of the Building and Construction Industry Payments Act 2004 and a Decision on 20 April 2010 determined that the First Applicant pay to the First Respondent the sum of $10,680.00 including GST on or before 4 March 2010 and that interest would accumulate on the outstanding payment if not paid by 4/3/2010 at a rate of 10% or a daily rate of $2.93.
The First and Second Respondents allege that they met with the Applicants on or around 19 October 2009 to discuss roof works and providing a quotation for removal of Supa 66 roof and to lay new roof tiles which were to be supplied by the Applicants. At this time the Respondents allege they were given 2 pages from plans of alteration of 9 Fisher Avenue, Southport by the Applicants and were asked to quote for the works of removing the existing tiles and to then lay new ones.
The First and Second Respondent allege that the Applicants informed them that they were undertaking extensions and renovations to their residence at 9 Fisher Avenue, Southport, as a Home Owner Builder.
The First and Second Respondents met the Applicants on site on 20 November 2009. They later provided a quote for the works and sent it by email to the First Applicant on that same day. The quote provided for the following works:
a) remove and dispose of supa 66 asbestos roof $5,950.00
b) lay new tiles including bedding and pointing of ridges $5,600.00
i) and hips and flashing to existing house
c) to supply and fix new guttering and fascia to front and
d) paint all guttering and fascia to match $1,300.00
e) to supply tarp (unable to get price but will check
when I get back) plus fix up ridges on top roof
Total Price$12,750.00
The First and Second Respondents allege that at the same time, on 20 October 2009, the First Applicant sent them an email advising that she had arranged for a quotation from another tradesperson named “Bryce”. She also advised the First and Second Respondents that once she had received the quote from Bryce she would “know what the whole job will cost”.
The First and Second Respondents allege that the First Applicant contacted them by email on 20 November 2010 asking:
“is there any room to move on your 5,950 for taking the roof off? Does the 5,600 change now we are not having the front extension added? As for the gutter I think we would just have the front part changed and we will have to do the paining ourselves due to lack of funds.”
The First Respondent alleges he emailed the First Applicant on 1 December 2009 in response to her request about price and that he agreed to reduce the total price to $11,000.00.
The First and Second Respondents allege that the First and Second Applicants sent an email on 3 December 2009 acknowledging and accepting the revised quote and the Applicant confirmed the terms and conditions of the contract and the works to be performed, they include:
a) remove super 66 sheeting and disposing of it
b) prepare valleys and edges with boards, flashing, whatever
c) following Bryce who is sarking and battening, you will install new tile roof
d) make completely waterproof and ensure all flashing, sealant, grout, valleys, gutters etc function so that we have a completed roof
e) make sure facia boards and gutters are secure and functioning as required
f) clean up site and dispose of rubbish.
The First Respondent alleges that in the email of 3 December 2009 the First Applicant requested an onsite meeting with “Bryce, you and your offsider”. The First Respondent alleges he agreed and emailed the Applicants on 4 December 2009 to confirm a meeting on site could occur “next week.”
The First and Second Respondents allege that the works commenced on 15 December 2009. They allege when the tiles were delivered onsite they both noticed a large number of tiles on the pallets were broken. They allege they informed the First Applicant as she had purchased and arranged delivery of the tiles. The Respondents allege that the First Applicant advised that she would contact Monier and she instructed them to “put the broken tiles aside and continue working on the roof.”
The First and Second Respondents allege they removed the old asbestos roof and disposed of it in compliance with all relevant legislative requirements. They allege that at all times the First Applicant was on site and supervising the works.
The First and Second Respondent allege that after removing the tiles the Third Respondent laid the new battens and sarking. They allege they then laid the new tiles to the roof. The First and Second Respondents allege that they were delayed due to both inclement weather and the Christmas break resulting in the bedding and pointing of the ridge capping not being completed as expected.
The First and Second Respondent allege that the bedding and pointing was completed on or around 4 January 2010. It was at this time they allege that there was, what they described as some “kicking up of some tiles”.
The First and Second Respondent allege that a meeting was arranged with the First Respondent, the Second Applicant and the Third Respondent where it was noticed by the Second Applicant that the new battens installed in the roof were a different size than the old battens. The First and Second Respondent state that the new batten was 40mm x 28mm. They gave evidence and alleged that the pieces of the old battens that were examined on site were found to be 60mm x 40mm. The First and Second Respondents allege that they noticed that the roof tiles had not lifted or moved until the bedding and pointing had been completed.
The First and Second Respondents allege that the First Applicant refused to allow the Third Respondent to rectify the problem and she did not want him back on site. The First and Second Respondents allege that at the insistence of the First Applicant, they were instructed to rectify the battens by packing them up to the correct height.
The First and Second Respondents allege that it became apparent there was significant sagging of battens between the roof trusses. They allege they inspected the battens and found that the spacing between the trusses were inconsistent and ranged from 600mm to over 1.2m and the battens that were installed were not adequate to span the larger gaps. They allege that the combination of the sagging battens, the under cured and faulty tiles and combined with persons walking over the roof, caused a large number of the tiles to crack and break.
The First and Second Respondent allege that the First Applicant instructed them to rectify the batten problem, by removing the tiles and packing the battens. They allege that the First Applicant refused to have any dealings with the Third Respondent and was insistent that he was not to come to the property and rectify the works. The First and Second Respondent allege they spend approximately “30 man hours” rectifying the roof battens to the First Applicant’s satisfaction.
The First and Second Respondents allege that an email was sent on 7 January 2010 from the Second Applicant to the First Respondent alleging that the job time had blown out, that the works were not finished and that a BSA contract had not been provided. The Respondents allege that email from the First Applicant attempts to discount the cost of the works and raised issues that the Respondents should take into account before issuing their account.
The First and Second Respondents allege they received a further email from the Second Applicant on 15 February 2010 alleging that the roof works were not performed in a satisfactory manner and that there was sub standard work. The Applicants also state in the email that the works were a joint project with the First and Second Respondents and the Third Respondent from BJF Constructions. The email also refers to building inspection by an expert and a report supporting sub standard work.
The First and Second Respondent allege that they worked on rectifying the battens in the roof up until approximately 16 February 2010. The Second Respondent alleges that at this time “the roof was starting to look OK.”
The First and Second Respondents allege that they received an email from the Second Applicant on 8 March 2010 terminating their contract due to failure by them to deliver workmanship to a reasonable standard and failure to complete the job. The Second Applicant allegedly had “two independent reports on the quality of the work and that both reports condemned the carpentry, the sarking and the tiling works.”
The First Respondent then filed an application for adjudication in relation to the roof replacement at 9 Fisher Avenue, Southport and the Adjudicator, Brian Thomas Egan, made a decision on 20 April 2010 and determined that the adjudicated amount was $10,680.00 including GST.
The First Respondent had a default judgement made in his favour against the First Applicant on 14 May 2010 in the amount of $12,512.56.
The First and Second Respondents allege:
1. that they only quoted and performed the works to remove the asbestos roof and replace tiles to the roof at the property at 9 Fischer Avenue, Southport, Qld;
2. that they never agreed to supply a BSA contract to the Applicants;
3. that they did the works pursuant to their quotation dated 20 October 2009 to a professional and acceptable standard;
4. that the First Applicant was a Home Owner Builder and had informed them that she held a current Permit;
5. that the Third Respondent was an independent Contractor who owned and operated under the business name of “BJF Constructions”;
6. That the Third Respondent was engaged, employed and supervised by the First Applicant as a Home Owner Builder;
7. that the Third Respondent was not well known to them other than his carpentry work was recommended by a Mr Demchenko of Munters Pty Ltd, an Insurance Assessor;
8. that they never agreed to supervise the works of the Third Respondent;
9. that they did not remove the battens from the roof and are not responsible for any works performed by the Third Respondent;
10. that they removed all asbestos from the roof and property pursuant to the relevant legislation;
11. that they advised the First Applicant that the tiles were damaged on arrival to site and that the tiles should be subjected to a strength test;
12. that the First Applicant instructed them to continue to lay the tiles despite the extent of damaged and broken tile in the pallets that were delivered;
13. that they were advised by the Applicants that Monier would be requested to come on site to inspect the damaged tiles;
14. that the First Applicant advised them verbally that she was a Home Owner Builder;
15. That the Second Applicant confirmed by email to the First and Second Respondents that the First Applicant was a Home Owner Builder;
16. that the Applicants advised them on 18 February 2010 that unless they removed the roof and replaced it at their cost that they would not be paid any funds pursuant to the contract;
17. that as a result of the Applicants’ failure to make payment the First Respondent made an application under the Building and Construction Industry Payments Act 2004;
18. that they repaired a hole in the ceiling at their cost at the Applicants’ property and to the Applicants’ satisfaction;
19. that the grinder went missing from site but deny any responsibility for it but replaced the grinder for the applicants as a gesture of good will.
The Third Respondent is the owner of the business trading as BJF Constructions. In his Response he sought the following orders from the tribunal:
a) That the tribunal require the Applicants to provide the Third Respondent with copies of the engineer’s report;
b) That the Applicants pay to the Third Respondent the sum of $1,975.00 for building services;
c) That the Tribunal dismiss that part of the Applicants’ claim for restitution against him in the sum of $20,197.96.
The Third Respondent alleges that he was contacted by the Applicants to supply and quote on carpentry works. He attended the property on or around 20 October 2009 and provided a quotation on 21 October 2009. The quotation was to:
(a) supply and install new battens and to supply and construct new front entry roof. Costs:
1. Supply Battens $1679.00
2. Labour to install battens $1320.00
3. Supply materials F/E roof $ 414.00
4. Labour-construct F/E roof $ 880.00
Total including GST $4293.00
The Third Respondent alleges that the Applicants decided to remove the works to the Front Entry roof from the scope of works and he provided an amended quotation to the First Applicant on or around 21 October 2009 that provided for:
(a) Supply and install new battens
1. Battens $ 635.00
2. Labour to install battens $1040.00
3. Sarking $ 300.00
Total (incl GST) $1975.00
The Third Respondent alleges he commenced works on or around 16 December 2009. He alleges that when he arrived on site the roof was already off and the battens had already been removed and the trusses were exposed. The Third Respondent alleges that he did not remove the original battens, did not quote to do so and was not aware as to the size of the old battens that were in the roof prior to him arriving on site.
The Third Respondent alleges that the First Applicant informed him she was a Home Owner Builder. He alleges that he was not provided with any engineering structural drawings or building plans regarding the rafter spacing and span distances. The Third Respondent alleges he ordered the supply of the materials from his and that they were installed in good faith.
The Third Respondent alleges that the Applicants did not inform him as to the size of the previous battens and that he believed that the battens he installed were appropriate in the circumstances. The Third Respondent alleges that the rafters were spaced at various spans, ranging from 500 to 1 meter. He alleges that the roof required additional rafters but that he was not requested to quote or to complete those works.
The Third Respondent alleges that when he returned to the property to inspect the roof he noted minor defects. He alleges that he and Matthew from Platinum Roofing rectified the problems.
The Third Respondent alleges that at no time after the attendance with Matthew from Platinum Roofing was he ever informed there were ongoing problems with the roof. The Third Respondent alleges that as he was not permitted to return to the property and rectify any further alleged defects, that the Applicants have prevented him from mitigating his losses. He alleges that he performed all works quoted for and as a result he should be paid for those works performed pursuant to the quotation dated 21 October 2009 in the amount of $1975.00.
THE LAW
This Application for domestic building disputes pursuant to the Queensland Building Services Authority Act 1991 (“QBSA Act”) filed by the Applicant Owners seeks orders in relation to relief from payment of the amount claimed by the Respondents and restitution in relation to a residential property located at 9 Fischer Avenue, Southport in Queensland.
The claim relates for work that commenced on 16 December 2009 and the contract amount was $12,975.00. The claim discloses that a complaint has been made by the Applicant to the QBSA on 20 March 2010 and as at the date of filing the claim had not been processed.
The Respondents allege that the First Applicant is a Home Owner Builder but did not have the requisite permit to undertake building works to her property, which is the works subject to this claim. The Respondents allege that the First Applicant holds a Home Owner Permit to undertake works to the new 2 storey extension to her home. That Permit was issued pursuant to section 43E of the QBSA Act, as the works were to be carried out on her land, the section states:
43E When owner-builder permit is required
An owner requires a permit (an owner-builder permit) to carry out owner-builder work on the owner's land.
The Respondents allege that the First Applicant’s Home Owner Permit is limited to the new works being the extension or addition with a Notified value of work of $250,000.00. That was conceded by the First Applicant upon her producing to the tribunal a copy of the Owner Builder Permit issued 7 November 2006.[i]
The Respondents allege that the First Applicant undertook works to her property that were excluded from the Owner Builder Permit and that those works had a value of more than $11,000.00. The Respondents allege that the Applicant was required to have a Home Owner Builder Permit to have undertaken these roof works as they had a value of more than $11,000.00 and by failing to have a permit, is in breach of section 42 of the QBSA Act. A breach of section 42 of the QBSA Act could result in prosecution, the issue of a penalty of up to $25,000 and an order to stop work. Section 42 states:
Unlawful carrying out of building work 42
(1) A person must not carry out, or undertake to carry out, building work (except exempt building work) unless that person holds a contractor’s licence of the appropriate class under this Act.
(2) For the purposes of this section—
(a) a person carries out building work whether that person carries it out personally, or directly or indirectly causes it to be carried out; and
(b) a person is taken to carry out building work if that person provides advisory services, administration services, management services or supervisory services in relation to the building work; and
(c) a person undertakes to carry out building work if that person enters into a contract to carry it out or submits a tender or makes an offer to carry it out.
(3) A person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) An unlicensed person who carries out, in the course of employment, building work for which that person’s employer holds a licence of the appropriate class under this Act does not contravene this section.
(5) An unlicensed person who holds an owner-builder permit does not contravene this section by carrying out building work permitted by the permit.
(6) An unlicensed person who carries out, or undertakes to carry out, building work in partnership with a person who is licensed to carry out building work of the relevant class does not contravene this section.
(7) A person who contravenes this section commits an offence.
Maximum penalty—
(a) for an individual—80 penalty units for a first offence, 120 penalty units for a second offence and 160 penalty units for a third or subsequent offence; and
(b) for a company—160 penalty units for a first offence, 240 penalty units for a second offence and 320 penalty units for a third or subsequent offence.
The Respondents allege that the First Applicant’s Building Permit was restricted only to the new extension to her property at 9 Fisher Avenue, Southport and that those works were limited the new 2 storey extension to her property. The Respondents believed that the Applicants held an Owner-Builder permit for the roof works.
The definition of “carry out”, in relation to Owner-Builder work is contained in section 43D of the QBSA Act, and it states:
43D Definitions for div 8
In this division-- carry out, in relation to owner-builder work, means--
(a) carry out the work personally; or
(b) do both of the following--
(i) engage 1 or more licensed contractors to carry out building work;
(ii) provide building work services that would usually be carried out by a licensed contractor in the course of the contractor's business; or
(c) do a combination of (a) and (b).
Examples of an owner providing building work services-- directing licensed contractors how to perform building work coordinating the scheduling of building work by licensed contractors arranging for payment of subcontractors multiple dwelling means a building comprising 2 or more residential units.
owner includes a person--
(a) who--
(i) holds an estate or interest in land that entitles the person to become an owner (as defined in schedule 2) of the land; or
(ii) is the occupier of land under a lease, licence or other authority from the owner (as defined in schedule 2) of the land; and
(b) who produces, with an application for an owner-builder permit, the written agreement of the owner (as defined in schedule 2) of the land for an owner-builder permit to be issued to the person.
owner-builder course means a course prescribed by regulation.
owner-builder work means building work for a building that is to be used for residential purposes carried out on the owner's land other than the following--
(a) building work for a multiple dwelling;
(b) fire protection work, unless the work is carried out by a person who holds a licence to carry out the work;
(c) building work for which an occupational licence is required (the occupational work), unless the work is carried out by a person who holds a licence to carry out the work.
The relevant subsection is (b) in that it means to both engage one or more licensed contractors to carry out building works and to provide building work services that would usually be carried out by a licensed contractor in the course of the contractor's business.
The term “building work services” is defined in schedule 2 of the QBSA Act and is defined to mean one or more of the following building works:
building work services means 1 or more of the following for building work--
(a) administration services;
(b) advisory services;
(c) management services;
(d) supervisory services.
The Respondents allege that the Applicants should have held an Owner-Builder permit for the roof works and should have met the criteria set out in section 44B of the QBSA Act, which states:
44B Criteria for granting application for permit
(1) The authority may grant the application only if the authority is satisfied--
(a) that the applicant, or each applicant, is the owner of the land; and
(b) that an applicant, or a director of a company that is an applicant, has successfully completed an owner-builder course; and
(c) if the applicant, or any of the applicants, is an individual, that none of the following has been issued with a permit in the 6 years preceding the application--
(i) the applicant, or any of the applicants;
(ii) a company for which an applicant who is an individual is or was a director; and
(d) if the applicant, or any of the applicants, is a company, that none of the following has been issued with a permit in the 6 years preceding the application--
(i) the applicant, or any of the applicants;
(ii) an individual who is or was a director of the company; and
(e) if the applicant, or any of the applicants, is an individual, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application--
(i) the applicant, or any of the applicants;
(ii) a company for which an applicant who is an individual is or was a director; and
(f) if the applicant, or any of the applicants, is a company, that none of the following has had an owner-builder permit cancelled in the 3 years preceding the application--
(i) the applicant, or any of the applicants;
(ii) an individual who is or was a director of the company; and
(g) none of the applicants is a banned individual; and
(h) if an applicant is a company, that none of the directors of the company is a banned individual; and
(i) each applicant is a fit and proper person to hold a permit.
(2) In deciding whether an applicant is a fit and proper person, the authority may have regard only to--
(a) tier 1 defective work carried out by the following persons, whether or not the person received a notice under section 67AH, 67AI, 67AL or 67AM stating a term of ban for the work--
(i) the applicant;
(ii) if the applicant is a company, a director of the applicant; and
(b) if the applicant, or a director of the applicant, is an enforcement debtor under an enforcement order for an infringement notice offence for this Act or the Domestic Building Contracts Act 2000--whether the applicant or director has taken steps under the State Penalties Enforcement Act 1999 to discharge the amount stated in the enforcement order.
(3) However, the authority may not have regard to the matter mentioned in subsection (2)(b) if--
(a) the applicant or director has applied for cancellation of the relevant enforcement order and the application for cancellation has not been finally decided; or
(b) 28 days have not elapsed since the date of the enforcement order.
(4) Despite subsection (1)(c) and (d), the authority may grant an application if--
(a) a regulation prescribes exceptional circumstances in which the authority may grant an application even though a previous permit has been issued in the 6 years preceding the application; and
(b) the authority considers the applicant is able to show the exceptional circumstances.
The Respondents allege that the Applicants would not have been granted an Owner-Builder permit for the roof works as they already held a permit for the new extension and that subsection (d) prevented them for applying for another permit.
The Respondents contend that as the First Applicant was issued a permit for the new 2 story extension she was prevented from supervising and undertaking Owner Builder project to works on the roof to the existing property if it had a value of more than $11,000.00. The Respondents contend that the Applicants undertook Owner-Builder works to the roof of their property without the requisite permit.
The Applicants are seeking to rely upon section 43 of the QBSA Act for relief from payment to the Respondents. That section states:
43 Licensed contractor must ensure building work is personally supervised
(1) For a licensed contractor that is a company, the company and the company's nominee must each ensure that building work carried out by the contractor is personally supervised by--
(a) the company's nominee; or
(b) an officer or employee of the contractor who holds one of the following licences of the relevant class authorising supervision of the building work--
(i) a nominee supervisor's licence;
(ii) a site supervisor's licence;
(iii) a fire protection occupational licence;
(iv) an occupational licence; or
(c) an individual who holds a contractor's licence of the relevant class.
Maximum penalty--
(a) for an individual--200 penalty units; or
(b) for a company--1000 penalty units.
(2) For a licensed contractor that is an individual, the contractor must ensure that building work carried out by the contractor is personally supervised by--
(a) the contractor; or
(b) an employee of the contractor who holds one of the following licences of the relevant class authorising supervision of the building work--
(i) a nominee supervisor's licence;
(ii) a site supervisor's licence;
(iii) a fire protection occupational licence;
(iv) an occupational licence; or
(c) an individual who holds a contractor's licence of the relevant class.
Maximum penalty--200 penalty units.
(3) In this section-- licensed contractor does not include a licensed contractor that is a construction manager.
The Respondents state that as the Applicants were Home Owner Builders that it was their responsibility to ensure that the building works were carried out properly. The Respondents allege that their work was not defective but that they were requested by the First Applicant to provide quotations and perform the roof works which they did and such the works were completed. Further, therefore that they are entitled to be paid for such works.
The Applicants allege that they are not Home Owners Builders for the purpose of the roof works. They conceded that the First Applicant did have a Home Owner Builder permit but that permit only related to the new extension and addition to their home and not to the roof works.
The Respondents allege that the Applicants were Home Owner Builders and told them that they were. The Respondents state that the Applicants now seek to claim they are not Home Owner Builders for the purpose of this application. The definition of “carry-out” in relation to owner-builder work is found in section 43D of the QBSA Act and it means to both engage one or more licensed contractors to carry out building works[ii] and to provide building work services that would be usually carried out by a licensed contractor in the course of the contractor’s business.[iii]
The Respondents claim that the Applicants were Home Owner Builders in that they engaged the Respondents separately, that is the First and Second Respondents were subcontracted and the Third Respondent was subcontracted directly by the Applicants to undertake the works. Further that they were all instructed by the Applicants to perform various works in undertaking the demolition and construction of a roof to a building used for residential purposes on the land that the First Applicant owned. And that, further, the Applicants negotiated, communicated, engaged and directed the Third Respondent directly and independently from the First and Second Respondents.
The First and Second Respondents allege the works performed by them was separate, subject to a particular quote for the works they would perform and that they did not subcontract, or supervise the Third Respondent in relation to the works that he performed. The Third Respondent agreed with that submission of the First and Second Respondent and alleged that he was contracted directly with the Applicants, provided a quote directly to them, negotiated price and scope of the works, provided an amended quote at the specific request of the Applicants and dealt directly with them at all times. The Third Respondent alleged that he dealt with the Applicants regarding the final scope of works, final quote and contract price, start date and in all other regards the works for replacing the battens to the roof of their home.
The Applicants rely on section 52(2) of the Domestic Building Contracts Act 2000 (“the DBC Act”) and allege that the Respondents should not have entered into a contract to carry out the roof works unless they were licensed to do so. The Applicants contend that the First and Second Respondents did not hold the appropriate licenses to perform the roof works. Section 52 of the DBC Act states:
52 Licensing requirement for building contractors
(1) This section applies if—
(a) under the QBSA Act, a building contractor is required to hold a contractor’s licence for carrying out a particular kind of domestic building work; or
(b)under another law of the State, including, for example, the Electrical Safety Act 2002, a building contractor is required to hold a licence, permit or other authorisation for carrying out a particular kind of domestic building work.
(2) The building contractor must not enter into a regulated contract to carry out, or manage the carrying out of, domestic building work of the particular kind, unless the building contractor is appropriately licensed for that kind of domestic building work.
Maximum penalty—80 penalty units.
(3) A building contractor is appropriately licensed for a particular kind of domestic building work if the building contractor—
(a) holds a contractor’s licence authorising the building contractor to carry out that kind of domestic building work; or
(b) holds a licence, permit or other authorisation under a law of the State, other than the QBSA Act, authorising the building contractor to carry out that kind of domestic building work.
The Applicants allege that the contract entered into between them and the First and Second Respondents is a regulated contract pursuant to section 9 of the DBC Act. The section states;
9 Meaning of regulated contract
(1) A regulated contract is a domestic building contract for which the contract price is more than the regulated amount. s 10 12 s 11 Domestic Building Contracts Act 2000
(2) A regulated contract includes a cost plus contract under which the total amount payable for the contracted services is reasonably estimated to be more than the regulated amount.
(3) A regulated contract includes a mixed-purpose contract under which the amount referable to the contracted services is more than the regulated amount.
(4) However, a contract mentioned in subsection (3) is a regulated contract only to the extent to which the contract relates to the contracted services.
The Applicants allege that the contract is a regulated contract as the contract price is greater than the regulated amount. The definition of regulated amount is found in Schedule 2 section 5 of the DBC Act. It states that:
Schedule 2
regulated amount means—
(a) the amount, above $3300, prescribed under a regulation;
or
(b) if an amount is not prescribed for paragraph (a)—$3300.
The Applicants contend that they are not Home Owner Builders. They allege that they engaged the Respondents believing they all held the necessary Licenses and Permits and that despite repeated requests the Respondents commenced the roof works without producing a BSA Contract, evidence of Licenses and the requisite Insurances.
The Respondents contend that the Applicants advised they were Home Owner Builders, that a BSA contract was not required and never requested and that the relevant Licence was held for the asbestos removal from the roof. The Respondents contend that the issue of a BSA contract only arose with the Applicants when payment was due to be made, and issues arose regarding a sag in the roof. The Applicants allege that the First and Second Respondents did not hold the requisite licence to undertake some of the roof works.
The Evidence
The Applicants gave evidence that they did not ever advise the Respondents that they were Home Owner Builders. The Applicants stated that they made the Respondents aware that they required BSA contracts and for proof of current Licenses and Insurance before works could commence. The respondents disputed this evidence in its entirety. The Respondents provided evidence to the tribunal that the first occasion that the issue of a BSA contract being required by the Applicants was a reference to it in an email dated 7 January 2010. This was some twenty one (21) days after the works commenced. The email was sent to the First Respondent by the Second Applicant and states:
“Hi Terry, As the roof is starting to look like it is approaching completion and payment is going to be nearing the top of your priority list I want to make sure you have addressed all the points (below) in earlier emails and conversations.....I am most worried about the issue of the BSA contract... I want to be sure we are covered by the BSA insurances....”.
The Respondents claim that there were never any discussion or emails about a BSA contract prior to this email when the job was at an end. The Second Applicant gave evidence that there were previous emails regarding the BSA contract no other email was produced to the tribunal to support his contentions. The First Respondents referred to an email from the Second Applicant regarding confirmation of quotes, start dates, and the scope of works and an enquiry regarding a BSA licence number. The email does not request the Respondents to provide a BSA contract. The Respondents gave evidence that if a BSA contract was required it would have been requested in that email. The Applicants gave evidence that they could not explain why the email did not request the BSA contract and stated that they were asking the Respondents for it in person when they were on site.
The Applicants gave evidence that they allowed the roof works to commence without the BSA contract having been produced and signed as they were keen to have the roof on before Christmas.
The Respondents gave evidence that they were informed that the First Applicant was a Home Owner Builder who held a permit to undertake the roof works. The Applicants deny this was the case. The Respondents relied upon the content of the same email referred to previously dated 7/1/2010 as evidence of the fact that the First Applicant had a permit as Home Owner Builder for the roof works. The email states:
“We no longer wish to have you do the gutter work. As you know Helen is the owner builder and is managing this job, so I have not had much to do with it. You would do well to avoid dealing with me and keeping her totally in the loop with progress. Email is always best for her, or directly as Bruce has been speaking to her each day he has been on site.”
When this evidence was put to the Second Applicant he gave evidence that the email was a mistake and he did not mean it, that he had made an error as it was not true.
The First and Second Respondents stated that they advised the First Applicant on site that the tiles for the roof were badly broken and damaged when they were delivered. The Applicant conceded that she ordered and paid for the tiles and that she arranged for them to be delivered to the property at the commencement of the works. The Applicant did not concede that the Respondents raised with her that many tiles were cracked and broken on delivery.
The Second Applicant gave evidence that when the timber battens were delivered he rose with the First and Second Respondents and questioned them about the size. He stated that they were smaller. The Respondents stated that this conversation never occurred. The Respondents stated that when the battens were delivered onsite that they had not taken any of the roof off at that point and that the Second Applicant would not have been able to compare the size of the battens delivered with the size of the battens in the roof.
The First and Second Respondents gave evidence that when the new battens were installed in the roof they were not aware of the size or suitability of them as they could not see the battens at all. They said the battens were covered by the sarking and that they merely laid the new tiles on the roof as requested.
The First and Second Respondents stated that it was them that raised with the Second Applicant the initial concern regarding the batten size and potential problems with the roof. The First and Second Respondents stated that they noticed that the back of the roof appeared springy to them after they started laying the tiles. The First and Second Respondents stated that they spoke to the Second Respondent about it. The Second Respondent said he spoke to the Second Applicant and said that he wanted to stop the job and get an engineer’s report regarding the roof problem and it being springy. He stated that the Second Applicant “mumbled something to me about having an engineer look at the roof and that he had been advised that the roof structure was adequate.”
The Second Respondent gave evidence that he believed that the roof trusses appeared in places to be too wide apart to support the battens but when raised with the Second Applicant he was told to “just keep laying the tiles there won’t be a problem.”
The Second Respondent gave evidence that he tried to work though the issues and worked to get the job finished before Christmas but the weather and rain over the Christmas period slowed the job down.
The Second Respondent gave evidence that as a result of this dispute he had telephoned the Gold Coast City Council and was informed by a Certifier that while a permit is not required to undertake these type of roof works that Council required Council approval and Engineers Certification for the job before these type of works could be performed. The Second Respondent stated that at no time was he ever provided with engineers drawings or plans, was not aware that structural beams had been put into the roof both before the works commenced and was never aware that a beam had been installed by the Second Applicant during the roof works.
The Applicants conceded that they had not given engineers drawings or plans to the Respondents as they did not believe that plans were necessary. The Second Respondent said he was concerned with the springy roof and the subsequent damage it was causing to the tiles. The Respondents stated that the springy roof was causing some of the tiles to crack and break.
The Applicants claim as part of their damages the reimbursement costs for the hire of a tarp to cove the roof when it rained during the roof works. The Respondents claim that the roof tarp hire was never part of their quotation. The respondents produced to the tribunal a copy of their quotation and it states that in relation to the tarp hire:
“to supply tarp (unable to get price but will check when I get back)”
The First and Second Respondents gave evidence that the claim for tarp hire, when the cost was specifically excluded from the quote and contract price, is an example of the Applicants propensity to exaggerate their claim and to make up things as they go along. The demand for payment for the tarp hire was stated by the Respondents as a claim that was entirely without merit.
The First and Second Respondents identified another example of the Applicants making claims that were also completely without merit and this was the cost of reimbursement to them of the adjudication fees of $1,815.00. The Respondents provided to the Tribunal a copy of the Decision in the Matter of an Adjudication Application under the Building and Construction Industry Payments Act 2004, being Adjudication Application number: 196/10 of Adjudicator Mr Brian Thomas Egan. The Decision included an apportionment of adjudication fees whereby it was determined that the Claimant (the First Respondent in this case) had to pay 25% and the Respondent (the First Applicant in this case) 75% of the fees. The First and Second Respondents stated that the cost of the adjudicator fees had been solely paid for by them. They indicated that they had done so as the First Applicant refused to pay and without full payment the Adjudicator would not release the Decision. The Respondents gave evidence that the Applicants are claiming as part of their claim to be reimbursed for costs and fees that they had not in fact paid. When this matter was put to the Applicants they conceded that they had not paid the adjudicator’s fees and could not explain why they were then claiming for fees (which they had not paid) to be reimbursed to them.
The First and Second Respondents gave evidence that they removed the asbestos roof from the Applicants’ property and disposed of the asbestos in the appropriate manner. The Applicants allege that the Respondents did not carry out the removal of their asbestos roof in accordance with the relevant guidelines and safety standards. The Applicants are claiming as part of their claim to be reimbursed for the cost of obtaining an Independent Asbestos Testing report from Queensland Laboratories.
The First and Second Respondents gave evidence that they should not be liable for such costs. The Applicants gave evidence that the Respondents caused contamination to their ceiling void and to the gardens and surrounds of their home. They gave evidence that asbestos was also located in an adjoining neighbour’s property. The Respondents gave evidence they should not be liable for the report costs for two reasons:
1. That while part of the asbestos roof was removed by the Respondents; part of the roof had been removed by the builders on site at the same time building the new 2 storey extensions and addition. The Respondents gave evidence that any asbestos that may have been found in the roof, garden or in the neighbours property could not be found to have been placed there by them: and
2. That the content of the report dated 7/4/2010 stated that the dust deposition sample taken from the roof was that the roof was not contaminated and the report states “No Asbestos Detected”. The report also tested a sample of grey fibre cement sheeting which was noted as containing asbestos but the report does not state that the sample taken was located in the garden and could have been a piece left behind by the builders working on the new two storey addition. The sample refers to cement sheeting; the Respondents stated they only dealt with the painted asbestos corrugated sheeting and not the sample mentioned in the test results. The sample relating to the roof which was the area that the Respondents were specifically working on did not show any detection of asbestos.
The tribunal was provided with photos of the property indicating the new two storey extension and its relative proximity to the roof works. The photos indicate that the existing roof is intact. The photo clearly shows that the new extension is nearing completion and is built flush to the side of the existing house. The photo depicts builders still working onsite and scaffold still in place. The Respondents gave evidence the photo was taken prior to them starting their works. The photo clearly shows that roof tiles have been removed and cut away from the roof so as to abut the new extension to the old original cottage. The photo depicts evidence that the roof tiles had been cut away and removed prior to the Respondents undertaking any of their works to the roof.
The Applicants are claiming for the costs of alleged damages to their garden and lights from the actions of the Respondents by allegedly dropping tiles from the roof and around the garden. The Respondents gave evidence that the site was a building site and that if any damage was caused it could have been caused by any number of builders and trade persons who were on the Applicants’ property. The Respondents denied having caused any damage to the garden of the Applicants and stated that this was again an attempt to claim for damages that they did not cause. The Respondents stated that even if damage had been caused, the mere fact that their property was a building site, and in all the circumstances, it would be impossible to identify who had caused the alleged damage. The Respondents stated that the Applicants had not produced any evidence that there had been damage as alleged.
The First and Second Respondents gave evidence that their works were performed pursuant to their quotation and if there was the alleged faulty workmanship, which they denied, the works they performed of laying the tiles and the capping and pointing were done professionally and in a tradesman like manner and that any issues with the battens were not works performed by them or their responsibility. On this basis they gave evidence they did the scope of works they were obligated to do, they did so pursuant to the works described and contained in their quote and what they were contracted to do and as such they are entitled to be paid for those works.
The First and Second Respondents gave evidence that they did not take the Applicants’ grinder and in fact as an offer of good will replaced the grinder that had been lent to them with a brand new one. They claim that the Applicants’ claim for the cost of a new one is without merit and should be dismissed.
The First and Second Respondent disagree with the evidence of the Applicants that they decided not to allow the Third Respondent back onsite to rectify his works. They gave evidence they had no control over the Third Respondent, did not subcontract with him and that they did not agree to undertake the rectification works of the Third Respondent by packing and rectifying the batten works. The Second Respondent gave evidence that he was specifically requested by the Applicants to undertake this further work and believed that he would be paid for the works. He stated that at no time did tiles fall off the roof and damage any of the Applicants’ property as alleged,
The Second Respondent gave evidence that a hole was made in the roof of the Applicants home as a result of putting a foot through it. He stated that the damage resulted from some of the old timber battens breaking due to the timber having rotted. He stated that he repaired the hole along with another three (3) holes in the ceiling that they did not cause and the repairs were completed to the Applicants’ satisfaction.
The First and Second Respondents gave evidence that when they were first asked to quote the works and when they went on site, that there was already asbestos roofing removed and the builders were onsite still to complete the new 2 story new extensions. The site was described by them as:
“a building site with rubble, rubbish and junk strewn everywhere, mobile scaffolding in place, evidence of building works still under way on the site, asbestos all around the house both inside and out, broken wall tiles, some of the ceilings removed from the existing dwelling , sarking exposed in walls and ceiling, a 5 metre hole cut in the dining room wall in the existing dwelling to provide entry to the new extension, no kitchen installed, no internal wall cladding or plaster on some walls and ceilings”.
The Applicants alleged that the Third Respondent has failed in performing the batten works in a professional and tradesman like manner by installing battens to the roof that were the incorrect size. The Applicants gave evidence that the Third Respondent would have known that the battens he installed were the wrong size compared to the battens that were removed from the roof. The Applicants alleged that he replaced new battens that were too thin and small. The Applicants provided evidence to the tribunal that the batten size for a tiled roof would be a particular size and thickness to comply with the Australian standards. The Applicants evidence in this regard was the content of recommendations from a Pioneer Roof Tiles Installation and Specification Manual. It is alleged that for roof tiling installation and specifications for a tiled roof with a rafter spacing of 1000mm, the batten size in millimetres must be 38mm x 50mm.[iv]
The Applicants gave evidence that the battens were 25mm x 38mm and that the rafter spacing for such sized battens was 450mm. The Third Respondent gave evidence and stated that the rafters in the roof were old and spaced at approximately 500mm apart. He gave evidence that the battens were appropriate for the rafter spacing for those sections of the roof. The Third Respondent gave evidence that there were other parts of the roof where the rafters were further apart and conceded they might have been between 600–800mm in spacing. The Third Respondent stated that if the battens he installed were not correct, which he did not admit, that if he had been given plans or structural drawing before commencing the works, then the necessary detailed information in the plans and drawings would have highlighted that the rafter spacing in the roof varied at different points. It was evidence of all the Respondents that the rafter spacing was 450mm apart, at other places 500-600 apart and up to 1 metre in places. The Third Respondent stated that if he had been given plans he could have ensured that the battens that were installed were appropriate for the various rafters spacing.
The Third Respondent gave evidence and stated that he did not have the opportunity to compare the old battens in the roof to the new ones he had ordered. He said he rang his supplier and explained what he needed and the supplier delivered the battens. The Third Respondent stated that he did not remove the old battens from the roof and only installed the new ones. The Applicants disputed this evidence and gave evidence that the old battens were removed by the Third Respondent.
The Third Respondent produced to the tribunal a copy of his quote to support his evidence. The quotation from the Third Respondent’s company, BJF Constructions Pty Ltd for $1975.00 dated 21 October 2009 addressed to the First Applicant[v] clearly describes the scope of works to “Supply and install new battens”. The quote is itemised and list the costs as:
(a) Supply battens $ 635.00
(b) Labour to install battens $1,040.00
(c) Sarking $ 300.00
TOTAL including GST $1,975.00
The quote does not include any costs for removing the old battens. The Third Respondent gave evidence that he did not remove the old battens and when he came onto site the old battens had already been removed.
The Applicants did not provide any evidence in response to the Third Respondent’s evidence that he had not removed the battens and no other evidence was produced to the tribunal during the entire hearing as to who actually had removed the old battens from the roof.
The Third Respondent gave evidence that he met with the First Applicant on site around 9 October and she told him she was a Home Owner Builder. He said that she asked him for a quote and did not ask him for a contract. He stated that he was never advised by the Applicant as to the batten size they required and he never saw the size of the old battens that were removed from the roof. He stated he was never requested to quote for the removal and disposal of the old battens and that his quote was evidence of that.
The Third Respondent gave evidence that he was not requested to allow in his quote to straighten the roof line, to install new beams or install new rafters and that he was not requested to do anything other than install new battens. He stated that he was never given the opportunity to go back to the site and rectify any alleged defects and that he has been prevented from mitigating his loss.
The Third Respondent stated that the information given to him by the First Applicant was insufficient for him to determine the correct size of batten that needed to be used. He said he was never provided with any plans or drawings of the residence and what was to be done. He said when he went to the site to do the quote the roof was still on and he could not see the battens. He was given a “rubbish plan”[vi] which was a plan of the house prepared by InDetail, a friend of the First Applicant, which was inaccurate. He said that it was not the same plans that were council approved. He stated that he had to “guestimate as to how many battens [I] needed”.
The Third Respondent gave evidence that when he went on site that the roof had:
“half the asbestos tiles were removed,.. battens were removed, the back section of the roof was open and I began to install the sarking,...it was difficult to install because the cladding and flashing on one side, where the old and the new extension met..restricted access... it was Ok but there was no edge protection ... the site was in a mess and below average condition... there was asbestos in the bins and plastic wrap covered the back part of the roof... the roof was springy...”.
The Third Respondent gave evidence that the roof was springy before he started his works. He said he was concerned while working on the job, that as the Applicants were Home-Owner builders, there were never any safety measures in place. He said there were no safety railings, harnesses and scaffold around the roof area which should have been installed and supplied by the Applicants as this was their responsibility.
The Third Respondent stated that when he was working on the roof that he cannot recall the beam installed in the roof at the time. During the evidence of the Third Respondent the Applicants produced to the tribunal a Tax Invoice from Gallagher Engineering.[vii] The Invoice dated 10/5/2009 was for the supply and install [sic] steel beams as per Engineers instructions at a cost of $1089.00. The Applicant relied on this to discredit the Third Respondent that the beams were installed in 2009 and prior to him undertaking the roof works.
The Third Respondent gave evidence that at no time was he ever contacted by the Applicants to advise they were unhappy with his workmanship and that there were problems with the job.
At the time the Third Respondent gave this evidence, the Second Applicant sought to clarify the issues regarding the beams in the roof. He said that the tax invoice from Gallagher proved that they had installed two beams in May 2009. It was agreed that there were three structural beams in the roof. The Second Applicant himself confessed earlier in the hearing to installing a beam in the roof. The Second Applicant then gave evidence later in the hearing that “I installed the beam myself, in the roof on day 2 of the roof job, I put the beam in on my own in the roof area where the Second Respondent had told me that the roof was springy.”
Witnesses Evidence
The Applicants called evidence from witnesses regarding the roof works. The Applicants gave evidence that the expert evidence of their witnesses would prove that the roof works were not done in a tradesman like manner, were not completed on time and were defective and that they were forced to terminate the contract with the Respondents on 8 March 2010.
Evidence of Mr Andrew McCarthy
Mr Andrew McCarthy swore an affidavit in the proceedings on 11/2/2011 and prepared a Report for the tribunal regarding the works.[viii]
Mr McCarthy is a Builder registered in both Queensland and New South Wales and holds a QBSA licence number 50301. He deposed that he has 35 years building experience. He is the owner of the business, Metro Building Reports located in Currumbin on the Gold Coast.
Mr McCarthy gave evidence that he first met the Applicants when they engaged him to inspect roof works at their home and he was requested to prepare a report on his observations findings.
Mr McCarthy stated that he attended the premises at 9 Fischer Avenue in Southport on 3 February 2010. He stated that the Second Applicant informed him that a contractor had recently performed works on the roof and installed timber roof battens, sarking insulation and roof tiles. Mr McCarthy’s report was provided to the tribunal annexed to his affidavit.
Mr McCarthy also provided the tribunal with a letter dated the 10/2/2010[ix] whereby it refers to the fact that the report was requested by the Second Applicant on 3/2/2010. The date of the Report was 10/2/2010 and reports on a site inspection on the 3/2/2010. Clearly the letter was a preliminary view and he gave evidence that he was requested to later prepare a report that was to be filed with his affidavit on 11/2/2011.
Mr McCarthy’s report stated “at the outset that this report provided opinion on that which is readily available”. He further states that his report does not provide opinion or warranty on that which cannot be seen. When he was challenged about this he gave evidence that he did not remove any of the tiles to inspect the roof cavity and his report was only based on what he could see from the ground, on a ladder looking at the roof and from inside the property looking from underneath the roof.
Mr McCarthy made findings in his report that:
1. “The monier roof tiles have been incorrectly laid with inconsistent gapping and a wave effect visible to the roof
2. The wave effect is caused when the battens supporting the tiles laid directly on to existing rafter without straightening or packing of any type
3. The works seen are of a very poos standard and not in any way a tradeperson like job
4. The battens under the tiles are undersize for the rafter spacing and as per Australian Standard 2050
5. Ridge caps and valleys have no batten support as required by the Manufacturers recommendations
6. The tiles are lifting, lipping in an uneven finish and moisture penetration may occur in moderate to heavy rain.
7. Roof could be dangerous to any maintenance person
8. Valley mouths are inconsistent and cut tiles do not cover the valley gutter, there are gaps of between 75 and 100 mm
9. The sarking laid under the tiles has large areas of noncompliance as per AS4200.2”
Mr McCarthy stated in his report that the roof would allow water to penetrate the internal of the dwelling. The non-compliant work will also cause ongoing surface water problems which lead to footing subsidence and pest problems. He made recommendations that major remedial work would be required to bring the roof to a satisfactory standard. That included:
· Replacing the battens with AS2050 compliant material
· Straightening the battens in a tradesperson like matter
· Replacing the sarking and relaying to AS4200.2
· Relaying roof tiles as per AS2050
Mr McCarthy also made findings of liability in his report and stated that in his opinion:
“the carpentry batten work to the existing roof was very poorly executed with no thought for the following trades, no tradesperson tile should have laid tiles on what was substandard prepatory work... and.... in doing so the roof tilers ... accepted the previous work as acceptable and should be held accountable.”
Mr McCarthy admitted he did not take any tiles off the roof to have a look. He also stated that he looked from inside the property underneath the rafters. It was put to him if he thought a structural support beam could have rectified the problem. He said he could not comment as it depended on the span. He was cross examined by the Respondents and asked whether criticism of the bunched up sarking would be reduced as it was conceded the photos in question related to sarking installed around a box gutter where access was difficult. Mr McCarthy stated that perhaps he would concede that could be the case.
Mr McCarthy was cross examined regarding a photo of the roof that he took and evidence of a wave effect of the tiles and them appearing wavy. The photo was included in his report. Mr McCarthy was cross examined as to his knowledge of the sky light that had been installed in the middle of the tile roof. He said he knew nothing about it. He was asked if his report would change if he was informed that the roof sky light had been installed after the Respondents had laid the roof tiles. Mr McCarthy gave evidence that the insertion of the sky light would have affected the tiles but not to the extent as evidenced on the roof when he inspected it. Mr McCarthy gave evidence that the roof tiles would have had to be cut either side of the sky light for it to be inserted. He admitted he was not aware that the sky light had been installed by another tradesperson and was not part of the Respondents’ roof works. Mr McCarthy criticised the work and said that some of the tiles had moved and were ‘proud’. He said that when he went to move some of them they were not clipped.
The Respondents put to Mr McCarthy that some of the tiles had been changed and replaced 4 times and that a total of 400 tiles were replaced on the roof as they continued to crack and break. Mr McCarthy said he was not aware of that fact. Mr McCarthy was questioned that if that was the case, and if some tiles were not clipped down properly, would it be reasonable to expect that the replaced tiles are sometimes difficult to access and clip in place. Mr McCarthy conceded that would be a fair explanation as to why some tiles were not clipped.
I find that the content of the reports did not assist the tribunal and were not useful. The report relating to the asbestos testing did not provide any evidence that the Respondents had been tardy when dealing with the roof. The evidence of the asbestos piece found in the garden is in my view to be so trivial and without evidence to prove that the Respondents strewn the piece there, that they should not be held accountable for the cost of such report. There was no evidence provided to the tribunal that satisfied me that the Respondents were solely liable for the asbestos pieces located in the garden and roof cavity areas. I find that the other tradesmen on site could have discarded those pieces when they removed part of the asbestos roof when working on the new two storey extension. The report from Metro in my view was also of little use and I find that the Respondents should not be required to reimburse the Applicants for the cost of that report.
The claim by the Applicants for the cost of replacement tiles in the sum of $1,466 was allegedly supported by receipts[xx] that were contained in a bundle provided to the tribunal. The receipts from Monier were to support a claim for alleged additional tiles that were required to be purchased by the Applicants to finish the roof and as replacements for the tiles that the Respondents broke. The Respondents stated that many tiles were broken in the pallets upon delivery to site. The Respondents stated that they informed the Applicants of this. The Respondents gave evidence they thought that the tiles were a “bad batch” or were “underfired” or “green”. They gave evidence that they requested the Applicants to call Monier to inspect the tiles and to have a strength test done. The Applicants denied this was the case. The Applicants gave evidence that Monier came and inspected the tiles and did not believe they were faulty. The Applicant relied on a letter from Monier[xxi] that stated that “upon inspection no fault was found with the roof tiles”. However, the Applicants conceded that Monier did not undertake a strength test. I would expect Monier to state that the tiles were not faulty as to have to admit otherwise would render them liable to damages. I place little weight on the Monier document.
The Respondents gave evidence that the Monier invoices are inconsistent and suggest that the tiles may have been faulty as the additional tiles were sold to the Applicants at a greatly reduced cost. The Respondents stated that the tiles for the roof works were delivered on site and costs contained in invoice dated 14/12/2009. The unit price for each Nougat Horizon roof tile was $2.18 per tile. The receipt for the ‘replacement’ tiles was a Monier invoice dated 28 April 2010 and notes the same tile listed for a unit price of $0.95 per unit. The Applicants could not adequately explain these inconsistencies. Further the amount claimed for additional replacement tiles was not supported by the invoices. The two relevant invoices dated 30/4/2010 for $93.50 and invoice dated 28/4/2010 for $584.25 do not equate to the amount sought by the Applicants. The Applicants provided to the tribunal two summaries[xxii] in an attempt to explain and substantiate the amount of their claim. The summary in relation to the roof tiles appears to explain that the cost of roof tiles and the amount claimed is actually $2,989.55. This amount was different to the amount for tile replacement claimed in their initial application, in their Statement of Claim, the amount in the Second Applicants Affidavit[xxiii] at paragraph 28(f) deposed on 9/2/2011 and Affidavits of the First Applicant sworn on 9/2/2011 at paragraph 12(ff) of her affidavit.
The Applicants changed the amount claimed for tile replacement during the hearing and amended the claim from $1,466.00 to the amount in the amended summary of $2,989.55. I could not understand why the claim had been inflated during the hearing nor was any additional evidence provided that would have explained the Applicants’ shift in position. I find the increased claim lacked the evidence to support it and the initial claim was without merit. The unexplained shift in the Applicants’ position without any explanation in this regard suggests that the Applicants had a propensity to make things up as they went along and increased their claim at the eleventh hour without reason or explanation. I find there is insufficient evidence that would support an order that the Respondents would be liable for and should make payment of any amount for replacement tiles.
The Applicants claimed for payment to them as reimbursement for the amount they had paid to Roofs R Us in the sum of $14,886.36 for the new roof. The Applicants were vague when questioned by the tribunal about the invoices that supported their claim for the cost of the replacement roof. The invoices provided to the tribunal from Environmental Building Solution & Services – Roofs R Us[xxiv] were confusing and referred to various amounts. The Applicants provided summaries of their claim regarding the costing of the new roof works in an attempt to explain how they had determined that part of the claim for the cost of a new roof, or to rectify the roof, at a cost of $14,886.36. The invoices did not add up to the amount being claimed by the Applicants. The evidence of the Applicants revealed that the cost of the new roof or replacement roof was actually the amount in invoice 4923 dated 18/5/2010 in the sum of $12,376.36 plus GST a total of $13,614.00. The further amount that the Applicants were claiming for was the sum of $1,237.64 which was one half of the amount in invoice 4923B for $2,510.00 dated 15/6/2010. This invoice did not relate to the roof replacement or rectification works but was to:
“supply and fit square guttering to single storey residence, repair fascia, supply and fit downpipes x 2 and to supply ‘A’ frames and labour.”
The Applicants are claiming these costs from the Respondents to have guttering put on their house. These were not even works that were performed by the Respondents and would have had to be paid by the Applicants in any event. The Applicants seek reimbursement for fascia and guttering works to their home when the Respondents were not involved in these types of roof works. The Applicants’ evidence that their claim was to “rectify the roof” is not entirely accurate as it is to replace or rectify the roof and undertake further roof works so as to complete the entire roof. I find that the First and Second Respondent actually did quote to install guttering and fascia and to paint them, their quote was sent by email and dated 20 October 2009, it stated:
“To supply and fix new guttering and fascia to front and paint all guttering and fascia to match $1300”.
The First Applicant advised the First Respondent on 17 November 2009 that she wanted to change the scope of works and remove the guttering and fascia works, the email stated:
“...we have decided not to do the add-on over the front door. Just to leave the roof as is. Could this make any difference to your quote on the re-tiling? Is there any flexibility in your two quotes?”
The First Respondent then amended the quotation and in an email of 17 November 2009 advised the First Applicant:
“I can still do the asbestos removal and the gutter and fascia remova [sic] and i can bring this price down to $7000 i hope this helps you out”.
On 30 November 2009 the First Applicant emailed the First Respondent again requesting him to lower his quotation for the roof works. The email states:
“is there any room to move on your 5,950 for taking the roof off? Does the $5600 change now we are not having the front extension added? As for the gutter I think we would just have the front part changed and we will have to do the painting ourselfs [sic] due to lack of funds.”
The First Respondent replied to the First Applicant’s email confirming that he would drop the total price to $11,000.00 by removing the new fascia and guttering works and advised her on 1 December 2009.
The Second Applicant confirmed the price and scope of works in an email dated 3 December 2009 to the First Respondent and requesting onsite meeting to discuss starting the works. The First Respondent responded in email dated 4 December 2009 that a meeting could be scheduled on site “anytime next week.”
The Respondents removed the replacement of guttering and fascia from their scope of works and revised their quotation accordingly. For the Applicants to now seek reimbursement from the Respondents for those works when they were not included in the quote, were never intending to ever pay the Respondents for the guttering and fascia works seems then rather provocative to now claim the Respondents should pay for one half of those roof costs. There is not evidence that supports the guttering and fascia costs should be paid by the Respondents.
Further, for the Applicants to seek relief from payment to the Respondents and to also be reimbursed for the cost of rectifying and competing all the roof works is to some extent double dipping. The claim by the Applicants, if they were to be successful, would be to not have to pay for any of the roof works performed by the Respondents and for the Respondent to also pay for a new roof to the Applicants home. I find no evidence that would support such an injustice or any reason as to why the Applicants would be entitled to have their home re-roofed without any expense or costs incurred by them at all.
Findings of Applicants as Home Owner Builder
I find that the communication and quotations that were exchanged between all of the parties supports a finding that the Applicants, either separately or jointly engaged the First and Second Respondent to quote and undertake the roof works, attended site meetings, negotiated price and supervised the roof works, that the First Applicant engaged the Third Respondent directly and separate from her dealings with the First and Second Respondents and that she requested site meetings, a quotation, negotiated price, changed the scope of works and sought further quotes for the variations, dealt directly with the Third Respondent regarding commencement of the works and supervised the roof works. The Applicants ordered, paid for and arranged delivery of the roof tiles to the site. The Applicants both directed each of the Respondent Contractors and supervised the roof works.
I find that the Applicants carried out Owner Builder work and pursuant to the QBSA Act should have obtained an owner builder permit for the roof works.
I find that the Applicants were Home Owner builders and that they failed to adequately supervise the roof works. The Applicants’ failure to provide to the Respondents any plans and specifications or engineers reports regarding the roof beams and trusses and dimensions of the roof has directly attributed to the roof problems and alleged defective workmanship.
I find that there are two contracts that exist for the various roof works between the parties. I find that a contract exists between the Applicants and the First and Second Respondent for roof works and that the contract sum was $11,000.00.
I find that a contract exists between the Applicants and the Third Respondent for roof works in the sum of $1,975.00.
I find that all three Respondents are entitled to be paid for the works they completed pursuant to their quotations, which were provided to and accepted by the Applicants. I find that as the First Respondent has already obtained a judgement against the First Applicant for the sum I would have ordered in any event, I make no orders regarding payment to the First and Second Respondents. Although the First and Second Respondents were seeking payment of the $11,000.00 for the initial roof works and a further payment of $2300.00 being for the variation works, I am not satisfied that there was actual agreement by the Applicants to pay them despite the Applicants requesting such works should be performed. The First and Second respondent state that they have calculated the amount by an hourly rate but in the absence of any evidence supporting the fact the Applicants agreed to pay for the variation works, I make no order regarding the variation payment. I find that the Applicants should also pay the Third Respondent the sum of the contract price pursuant to his quotation that was provided and accepted by the Applicants.
Findings that the Applicants did not make full and frank disclosure
I find that the Second Applicant’s disclosure during the hearing that he had installed a beam into the roof during the roof works an obvious example of the Applicants propensity to not disclose that evidence to the tribunal that would not support their case and to only produce that evidence that they choose to disclose. This evidence was only provided after the Applicants’ witness from Roofs R Us gave evidence about the new beam and the Second Applicant was then forced to have to explain. I find that the Second Applicant deliberately attempted to withhold this evidence from the Respondents and the tribunal until the fact was raised by their own witness.
I find that the Applicants have not made full and frank disclosure and the only reason that evidence was adduced during the hearing by the Second Applicant regarding the additional beam inside the roof was due to the fact that their witness, Mr Duffy gave evidence regarding the new beam having been installed into the roof. The Applicants had refused to provide to the Respondents any engineers drawings despite requests to do so, citing that they did not have any. In fact the Third Respondent specifically requested the production of such engineering reports or drawings in his Response. It was then later identified during the tribunal hearing that in fact an engineer had been engaged and consulted regarding the roof and drawings and a report were produced in evidence.
Findings of Credibility and the Applicants
I find the evidence of the Applicants at times contradictory. The Second Applicant attempted to distort the truth. The Second Applicant gave evidence that the only two beams installed in the roof were installed in 2009 by a company called Gallagher. As the hearing continued and it became evidence that the witnesses gave evidence that conflicted with the evidence of the Second Applicant he then conceded that in fact there were three structural beams in the roof and not two as he had previously led the tribunal to believe. The Second Applicant then gave evidence and conceded that he had installed a beam in the roof during the roof works. He said he installed the beam in the roof on day 2 of the roof works. He said he installed it where the Second Respondent had informed him that the roof was ‘springy’. This evidence highlights the propensity for the Second Applicant to distort the truth to suit his own position and that he had misled the Respondents and the tribunal. The Applicants filed affidavits in these proceedings and while they provide evidence in detail regarding the Respondents’ actions or failure to undertake appropriate works at no time had either of the Applicants included in their affidavit material any reference to beams installed during the roof works.
The Applicants provided to the tribunal invoices from Roofs R Us for the rectification roof works. Those invoices were also unusual in that they particularised all the rectification works undertaken to fix the roof but there was an amount that was detailed only as “variation”. This amount was challenged and the witness from Roofs R Us questioned about that amount. The witnesses and the Applicants both gave evidence regarding the variation. Under cross examination the witness from Roofs R Us conceded that the variation was the cost of installing the new rafters in the roof. I find the deliberate classification of those works as a ‘variation’ was an intentional attempt to hide the rafter works and by not identify the works was an attempt to not disclose this evidence to the Respondents or the tribunal. I consider the Applicants likely requested that Roofs R Us prepare the invoice accordingly and that by not highlighting or particularising the installation of the new rafter separately in the total invoice amount of $12,376.36 and by calling it a ‘variation’ is an attempt by the Applicants to hide the facts and distort the truth.
In this regard I find that the Applicants withheld important evidence relevant to their case and did not disclose all of the evidence relating to their claim. I find that the Applicants sought to portray to the tribunal only that evidence that would support their case and in fact attempted to intentionally withhold and deny evidence that conflicted with their evidence or weakened their case. In this regard I refer to the evidence relating to the engineer and plans and a report that had been prepared but neither provided nor disclosed. The fact that the Applicants attempted to cover up the fact that beams had been installed in the roof during the roof works and their own involvement in installing those beams raises concerns that the Applicants themselves could have caused damage to the rafters and battens, causing the roof battens to buckle and bend and make the tiles appear “wavy”.
Further evidence given by the Applicants was that they claimed they were informed and promised by the Respondents that the job would only take two days. The Applicants were adamant that this was the case. The Respondents disputed this fact and stated that at no time did they ever estimate that the roof works would be completed in two days. They said they never said this to the Applicants, they did not include such reference in their quotations and at no time was it ever referred to in communications between the Applicants and the Respondents of the alleged two day time frame. The Respondents gave evidence that it would be impossible for the works of removing an old roof, removing and installing new battens and laying a new tiled roof that required pointing and capping to be ever done in two days. I accept the evidence of the Respondents in this regard and accept that they would not have been able to perform the works in two days and never advised the Applicants of this. I do not believe the Applicants in this regard. The only reference to a delay and time frames for the works to be done were only included in communications of emails around 7 January 2010 when it was close to the Respondents being paid.
I find that the Applicants were often vague when giving evidence about dates, events and times. For example, the First Applicant gave evidence that she did not meet with the Third Respondent until approximately late November early December yet the quotation he provided to her was dated around 20 October 2009. Further example, the Applicants gave evidence that the Third Respondent removed the old battens and replaced them with new ones. The Third Respondent gave evidence that he did not remove the old battens and relied on the scope of works in his quotation to support his contention. The quote did not include the removal of the old battens, only installation of new ones. The Applicants could not explain their position and held onto their position that he had removed the battens. I find that the Third Respondent did not quote to remove the old battens and it would be unlikely he remove them. The Applicants did not give evidence that they saw the Third Respondent remove them and clearly their evidence in contrast to the Third Respondent suggests that the Applicants were not managing their roof works closely as Home Owner Builders as they were not actually sure who had removed the old battens from the roof.
The Applicants’ oral evidence often contradicted the evidence they had deposed in their affidavit material. Even in their affidavit material they could not agree on particular points. For example, the First Applicant deposed in her affidavit sworn on 9/2/2011 at paragraph 8(a) that she told the First and Second Respondent that they would not get paid until the job was completed and every bit of debris had been cleaned up. The Second Applicant deposed in his affidavit sworn on 9/2/2011 at paragraph 6(c)(ii) that the Respondents told him and the First Applicant together that “they did not want any money from us until the end and when we were happy with the entire job”. This evidence is contradictory and both allege different positions in relation as to who agreed who stated how and when payment would be made.
The Second Applicant deposed in his affidavit that the Applicants consulted a structural engineer regarding the strength of the roof and adequacy to hold a heavier tiled roof. The Respondents gave evidence that they asked the Applicants for this information and they were denied any evidence of structural engineer’s opinion, drawings or plans existed or were available. The Second Applicant gave evidence that he told the Respondents that an engineer had been involved with advice and roof strength. The Second Applicant stated at the hearing that he did not give the Respondents the structural engineers’ drawings and plans for the roof works as it was not necessary and they did not need them. This would be in direct conflict with his evidence that he told the Respondents. If the Second Applicant did tell the Respondents about the engineers’ involvement then they would have requested the drawings and plans. The Respondents stated that they requested an engineer get involved and give advice after discovering the extent of the springiness in the roof. The Second Applicant’s refusal to give them the drawings and plans and his position that they did not need them in my view suggest that he did not tell them, as if he did and upon request by the Respondents, he would have given them the drawings and plans he had. I find the evidence inconsistent with his conduct and in the circumstances I find that he probably did not tell the Respondents about the engineers’ involvement until such evidence was needed to support his case in this application.
The Applicants stated they were not Home Owner Builders. The Respondents stated that the Applicants told them that the First Applicant held a Home Owner Builder permit. The Second Applicant sent an email to the First and Second Respondents advising that the First Applicant was the Home Owner Builder and to deal with her, and then later denied it was the case stating the email was wrong, he made a mistake. I accept the evidence of the Respondents in this regard.
The Respondents denied ever being requested by the Applicant to produce a BSA contract. The Applicants gave evidence they repeatedly asked for the Contract and was promised it but it was never provided. When questioned why the allowed the Respondents to start the works without the BSA contract being provided and signed they suggested that they were “trusting and believed the promise that it would be provided and naive and stupid” in hindsight for allowing the works to start without the BSA contract being produced and signed by the parties. The respondents all gave evidence that they were never requested for such a contract and despite email communications between the parties on numerous occasions, prior to and during the works the first occasion the Applicants request a BSA contract is when the job was nearing completion and payment was due. The email of 7the January 2011 from the Applicants to the First and Second Respondent states:
“as the roof job is starting to look like it is approaching completion and payment is going to be nearing the top of your priority list I want to make sure that you have addressed all the points (below)… I am most worried about the issue of the BSA contract… we have asked for it many times, and now you have subbied 2 other organisation in on the job it is hard to know who Is responsible for what…and I know it was stupid to have let you start without the contract but…..”
The Respondents gave evidence that this was the first occasion the issue of a BSA contract had been raised. I accept the evidence of the Respondents in this regard.
On issues of credibility I found the Respondents to be open, honest, and truthful and gave evidence in a manner that they were prepared to admit to failings or mistakes when required. The First and Second Respondent were open and both gave frank evidence regarding the BSA findings, and that a Notice was issued against the Second Respondent. They both gave evidence regarding their discussion with the BSA about the complaint, the Second Respondent admitted he had been fined and said the fine was $2,000.00. The Second Respondent admitted that a complaint had been made to the BSA from the Second Applicant and that a letter from the BSA to the Second Applicant supported that. In contrast I found the Applicants had a propensity to distort the facts regarding important matters regarding their claim if it did not support their case. I find that where the evidence of the Respondents and the Applicants differ I preferred to accept the evidence of the Respondents.
Weight of Expert Evidence – flawed and unhelpful
I find that to a considerable extent that the expert evidence in this case from Mr McCarthy to not be particularly helpful in determining the outcome. I hasten to add that is not to say that this is a reflection on the expert witness himself but due to the fact that the expert evidence and report he prepared was based on a site inspection on 3/2/2010 and a report dated 10/2/2010. The Report provides evidence as to the condition of the roof at that particular time but did not take into account further roof works that were performed by the First and Second Respondents up until 16/2/2010 when the works ceased and the contract was cancelled by the Applicants on 8 March 2010. To some extend the Report was not comprehensive though as the roof tiles were not removed to inspect the roof cavity and the opinion of what was causing the wave effect was based only on what the expert could see for the outside of the roof. Further, the expert was not aware that the sky light was installed to the roof after the works were mostly completed by the Respondents. He was not aware of that fact and gave evidence that he prepared his report and made findings only from an inspection on a ladder looking onto the roof and based only on the information that the Applicants had told him.
To that extent the expert evidence provided to the tribunal was flawed and tainted as it did not provide any expert evidence as to the condition of the roof once the Respondents have completed all works to the roof on 16/2/2010. It was of no fault of the expert as Mr McCarthy was not aware that further works were performed on the roof after his inspection, and prior to the quote and works performed by Roofs R Us.
Contradictory and inconsistent evidence of the Applicants’ witnesses
The evidence of the witness Mr Davis conflicted with the evidence of the witness Mr Duffy who both worked for the same roofing company that rectified the alleged defective works. The evidence in dispute was clearly important and related to the installation of new trusses into the roof. Mr Davis said the trusses were cut and refixed to the roof to take out the bow in the roof. Mr Duffy said that the existing trusses were not cut at all and in fact new trusses were installed in the roof to take out the bow, to lift the roof up and to give the roof better aesthetics. Clearly this evidence was important as to the roof works performed by Roofs R Us.
The evidence was clear and unequivocal that the roof works that were undertaken by Roofs R Us included the installation of new trusses and beams in the roof. This is an important fact in my view as if this had been identified earlier and the beams and trusses installed prior to the Respondents undertaking their roof works the roof problems may not have occurred. The roof works by Roofs R Us and the installation of new roof trusses by lifting and strengthening the beams in the roof would have resulted in alleviating the previous problems.
I find that if the installation of the beams and additional trusses had been undertaken prior to the initial roof works, this application could have been avoided. I find the fact that the beams and additional trusses were not installed in the roof prior to any roof or batten works commencing to be entirely the fault of the Applicants. I find that the act of the Second Applicant, by installing a beam into the roof during the roof and batten works, as evidence of the fact that he believed the advice of the First and Second Respondent that the roof was springy, that the roof may not have been strong enough to hold the new tiled roof and that it required reinforcement, and evidence that the Second Applicant believed that the roof had structural problems holding the additional weight of the new roof. The fact that the Applicants at no time advised the Respondents that they had installed the beam during the works and this fact was never disclosed to the parties or the tribunal until during the hearing. I find that in fact this important evidence was “accidentally discovered” while the witnesses from Roofs R Us were giving evidence and being cross examined about the rafters and beams that were seen in the roof. In my view had these witnesses not gave the evidence they did the tribunal and the Respondents would not have been aware of the fact that new rafters were installed into the roof to fix the bowing of the roof and to strengthen the beams. I find that the Applicants were dishonest by being prepared to manipulate and omit facts to suit their position.
Claim filed by Applicants retaliatory to a judgement in favour of the First Respondent against First Applicant
I find that the Applicants did not file this application for Domestic Building Disputes until 5 July 2010. The Applicants did not file an application seeking orders from relief from payment to the Respondents if they at any time believed that the works were defective and that they should not pay any monies at all to the Respondents. The Applicants did not take such action. This claim, which appears to be filed in retaliation to the act of the First Respondent successfully obtaining judgement for $12,512.56 against the First Applicant in the Southport Magistrates Court file number 1115/10 dated 14/5/2010. The Applicants thereafter filed this application some three weeks after judgement had been entered.
Obligations of the Applicants as Home Owner Builders
I find that the Applicants are the Head Contractors of the roof works and as such are responsible for quality control and standards of workmanship being of the requisite standard. The Applicants, as the Principal Contractor in this case should have obtained a permit noting them as the owner builder. If the Applicants did not feel they had the necessary experience to project manage the roof works they should have employed a suitable supervisor who could have supervised and ensured that the required standards of workmanship were undertaken.
The Applicants were also responsible for the supervision and compliance with safe work practices and on the evidence of the Third Respondent I accept that the necessary safety precautions for roof works including scaffolding, safety barriers and harnesses were not provided.
The Applicants also assume the responsibility for ensuring that the work carried out is to standard and complies with all plans and specifications. In this case the Respondents were not provided with any plans or specifications and in my view this has to some extent been the cause of the roofing problems.
I find that that roof problems that occurred at the Applicants’ property resulted from a combination of mistakes and errors made by them that included; a failure by the Applicants as Home Owner Builders to properly install in the roof the appropriate beams and trusses to adequately hold the weight of a new and heavier tiled roof, failed to provide a copy of the engineers drawings and plans to the Respondents so as to alert them to the possible truss and beam requirements, failed to provide structural plans and drawings detailing the span of the trusses, failed to ensure that the adequate sized battens were installed in the roof prior to the tiles being laid, failed to adequately supervise the roof works undertaken by the Respondents so as to ensure that if further strengthening or lifting of the roof beams and trusses were required that it occurred before the Respondents commenced their roof works, by installing a beam in the roof during the roof works being performed by the Respondents when likely to have caused damage to the roof and caused misalignment and damage to trusses and sarking, failed to install the third beam in the roof in a way that was professional and in a tradesman like manner, and that by the act of the Second Applicant and installing the beam himself into the roof while not holding the requisite Home Owner Builder Permit for the roof and batten works.
Conclusion
After considering all of the evidence of the parties, their witnesses and having carefully considered the content of all of the voluminous exhibits provided to the tribunal and for the reasons set out above I make the following decision and order as follows.
ORDERS:
The application is dismissed.
In relation to the counter-application of the Third Respondent, the Applicants are to pay to the Third Respondent the sum of $1,975.00 within 7 days.
[i] Exhibit 13.
[ii] Section 43D(b)(i).
[iii] Section 43D(b)(ii).
[iv] Exhibit 20.
[v] Exhibit 29
[vi] Exhibit 21.
[vii] Exhibit 32.
[viii] Exhibit 7.
[ix] Exhibit 17.
[x] Exhibit 6.
[xi] Exhibit 10.
[xii] Exhibit 9.
[xiii] Exhibit 18.
[xiv] Exhibit 20.
[xv] Exhibit 21.
[xvi] Exhibit 22.
[xvii] Exhibit 35.
[xviii] Exhibit 28.
[xix] Exhibit 16.
[xx] Exhibit 28.
[xxi] Exhibit 8.
[xxii] Exhibit 33 & 34.
[xxiii] Exhibit 4.
[xxiv] Exhibit 28.
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