NQ Sheds and Patios Pty Ltd v Lanzi - [2020] QCAT 417

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

NQ Sheds and Patios Pty Ltd v Lanzi & Anor [2020] QCAT 417

PARTIES: NQ SHEDS AND PATIOS PTY LTD

(applicant)

v

ANTHONY VICTOR LANZI
ANGELA JOY VICO

(respondents)

APPLICATION NO/S:

BDL105-20

MATTER TYPE:

Building matters

DELIVERED ON:

6 November 2020

HEARING DATE:

27 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1. The respondents must pay the applicant the sum of $6, 867.31 by 4:00pm on 23 November 2020.

2. The counterclaim is dismissed.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF CONTRACT – where contract to construct and install a shed - where customer has responsibility under the contract to provide a site plan – where gutter of shed as constructed encroached the rear property – whether respondents required to pay the amount owing under the contract – whether respondents entitled to a set-off based on the estimated cost of a boundary re-alignment

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondents:

J. Fuller (solicitor) of Marino Lawyers

REASONS FOR DECISION

On 15 May 2020 NQ Sheds and Patios Pty Ltd (NQ Sheds) filed an application for a domestic building dispute in the Tribunal seeking the sum of $8, 787.31 from Anthony Lanzi and Angela Vico.
NQ Sheds entered into a contract with Mr Lanzi and Ms Vico (the respondents) to build them a shed on property owned by Ms Vico at Babinda, south of Cairns. The contract was for the construction and installation of a shed 6.5m x 12m x 3.2m high for the sum of $44, 754.00. The contract was varied during the performance of the works to include a ‘PA door’ at a cost of $780.00. The shed has been constructed and installed but the respondents refuse to pay the final amount owing under the contract, that is, the sum of $6 867.31 on the basis the gutter of the shed encroaches over the rear boundary of their property at one corner of the property.
NQ Sheds seek payment of $6 867.31 plus an amount of $1 920 being the sum they incurred in materials and wages as a result they say of having agreed with the respondents that NQ Sheds would, without admitting liability, remedy the problem by removing the back gutter and replacing it with a box gutter. NQ Sheds claim that when they arrived at the respondents’ property to do the work, they were refused access.
The respondents in their response “dispute that any money remains owing to the applicant” due to the encroachment and due to additional defects, namely dents in the roof and front gutter edge, sagging insulation and joining tape that is falling off. The respondents seek an order that they be relieved of making any further payment to NQ Sheds on the basis the respondents are prepared, at their own cost, to rectify all of the above issues. The respondents submitted at the hearing that the cost of obtaining a boundary re-alignment would be in the order of $9, 000 to $10, 000 and that this amount, should, in effect, be set-off against the amount claimed by NQ Sheds.
On 24 April 2018 NQ Sheds sent to the respondents a four page quote for the construction of a shed as well as an additional page headed NQ Sheds and Patios Pty Ltd, Terms & Conditions of Sale which had provision for signature by both parties at the bottom of the page.
The quote was accepted on 29 June 2018 and at that time a contract was formed between NQ Sheds and the respondents for the construction and installation of a shed.
After 29 June 2018, but before the commencement of construction, a Site Plan was produced by NQ Sheds in consultation with Mr Lanzi on NQ Sheds letterhead. The site plan had been approved by the respondents. The site plan purports to show the boundaries of the respondents’ property and the proposed location of the shed on the property. There are handwritten notations on the plan by Mr Lanzi which indicate that the shed is to be 200mm inside the western side and rear boundaries. Mr Lanzi is a registered builder. A sewer line is also shown on the plan running just under the eastern front corner of the shed in its proposed location. The site plan was prepared by NQ Sheds at their premises in consultation with Mr Lanzi and was ultimately approved by him.
NQ Sheds attended on site to construct the shed on 9 August 2018. When NQ Sheds arrived they saw that Mr Lanzi had marked out with wooden pegs where he wanted the shed to go. Mr Lanzi was not there at the time and, in fact, had gone out to sea for 9 days. NQ Sheds examined the positioning of the pegs and formed the view that if the shed was constructed in the exact location of the pegging that the shed would be on land of the neighbour to the rear of the property. NQ Sheds attempted to determine the back boundary by running string lines with neighbouring fence lines. They then moved the pegs in from the back and side boundaries in an attempt to square the eventual slab.
On 23 August 2018 NQ Sheds delivered the shed kit and on 30 August 2018, the shed was installed. As matters transpired, the shed was constructed in a way that the slab did not encroach at all on the neighbours’ land to the rear, but where a survey report subsequently obtained by Mr Lanzi, which had the boundaries marked on it, showed that the gutter was encroaching on one corner of the back boundary.
That the gutter of the shed encroached the land to the rear was discovered some months later by the respondents, when, in the course of negotiations to purchase the land to the rear, the respondents received a survey plan from the owners to the rear which showed the encroachment. The Survey Plan was dated 3 April 2019.
NQ Sheds sent four invoices to the respondents totalling $45, 534.00 as follows:
(a)Invoice 1995, Deposit $4, 475.40 dated 10 May 2018;
(b)Invoice 2051, Slab $9, 031.00 dated 18 June 2018;
(c)Invoice 2092, Kit materials $27, 553.00 dated 27 July 2018 (which included a $780 variation for the inclusion of the PA door);
(d)Invoice 2149, Install $4, 474.60 dated 31 August 2018.
The respondents have paid NQ Sheds the sum of $38, 666.69 as follows:
(a)$640.70 on or about 1 March 2018;
(b)$3, 844.70 on or about 18 June 2018;
(c)$19, 000 on or about 13 August 2018;
(d)$8, 681.29 on or about 14 August 2018;
(e)$1, 500 on or about 11 October 2018;
(f)$1, 500.00 on or about 17 October 2018;
(g)$1, 500 on or about 28 November 2018;
(h)$500.00 on or about 23 January 2019; and
(i)$1, 500.00 on or about 21 February 2019.
NQ is owed a further $6, 867.31 under the contract.
On 10 October 2018 the respondents proposed, by text message to Marcus Burtt of NQ Sheds, that the glass sliding door be moved, that the respondents pay off the shed at a rate of $1, 500.00 per month including interest at a rate of 5% per annum compounding monthly on any amounts unpaid. In response, NQ Sheds gave the respondents a credit in lieu of moving the glass sliding door for $600, commenced charging interest and began accepting payment of the $1, 500 monthly instalments.
The respondents refused to pay the outstanding amount on or about 9 May 2019, and raised the prospect of a claim for $9, 000 for the need to re-align their rear boundary.
In an attempt to resolve the issue, NQ Sheds offered to remove the rear gutter and replace it with a box gutter at their cost. Mr Lanzi agreed subject to NQ Sheds also remedying defects he claimed to have identified. NQ Sheds agreed that they could remedy any defects at the same time they did the gutter replacement work and requested a list of defects from the respondents. A list of defects was not provided but NQ Sheds went ahead with the design and manufacture of the customised box gutter.
The parties agreed that the rectification works would take place on either Monday the 9th or Tuesday the 10^th of September 2019. The respondents’ solicitors wrote to NQ Sheds on or around 4:00pm on Friday, 6^th of September 2019 asking what time NQ Sheds would be attending at the property to do the work. On Monday 9 September at 7am two employees from NQ Sheds arrived at the respondents’ property to do the rectification work. Mr Lanzi said they could not go ahead with the work as he had a court appearance that morning and needed to be present when the work was done. Mr Lanzi later “changed his mind” about the box guttering and decided that he wanted to proceed instead with an application for a boundary re-alignment. There was no evidence that the application for boundary re-alignment had been progressed in anyway.
Consideration
The issue is whether the respondents can lawfully refuse to pay the money outstanding under the contract because the shed is not 200mm inside the western side and rear boundaries and where the gutter encroaches some part of the rear boundary. In my view it is not, for two reasons. First, it was not the responsibility of NQ Sheds under the contract to provide a site plan and to properly establish the correct positioning of the shed. Secondly, the respondents have failed to demonstrate any cause of action against the applicant which would permit a set-off or counterclaim, nor have they provided any sufficient evidence of damages.
The respondents raised some defects in their response: the roof sheets of the shed have been screwed down too tightly causing the roof to dent; dents along the front gutter edge from boots of the Applicant’s employees; all insulation is sagging and joining tape is falling off. NQ Sheds dispute that the defects were caused by them. The issue was not explored in the hearing. In any event, there was no evidence as to the cost of rectifying those defects. Given the fairly minor nature of the defects and the lack of any evidence as to the cost of rectifying them, I am not prepared to allow any amount by way of cross-claim for the defects.
The purpose of a site plan is to properly identify the boundaries, sewer lines and any relevant structures and to indicate vis a vis those boundaries, sewer line and other structures where the proposed structure is intended to be positioned on the property.
In this case the site plan was approved by Mr Lanzi on behalf of the respondents. The site plan however did not identify with any accuracy the relevant boundaries of his property. It did not therefore, with any accuracy, identify where the proposed structure was to go, in relation to those boundaries.
The site plan is clearly the responsibility of the csutomer. The contract makes this clear. Clause 6 of the contract provides, relevantly:
(f) Upon request the Customer is responsible for providing the supplier with a Council-issued sewer plan showing distances to boundaries and sewer depth.
(g) The Customer is responsible for providing the Supplier with a site plan showing the position of the proposed structure, distance to boundaries and any existing structures on the site.
If Mr Lanzi was unclear about where his boundaries were, it was incumbent on him to obtain, at his cost, a survey plan. Instead, Mr Lanzi approved a site plan that did not accurately show the relative positions of the boundaries, his home, the sewer line and the intended shed. Further, Mr Lanzi pegged out the position of the proposed shed which would have encroached further into the neighbour’s rear property.
NQ Sheds were required to construct the shed in accordance with the site plan viewed in the context of the pegging carried out by Mr Lanzi. There was no contractual obligation on the part of NQ Sheds to undertake a survey plan (which would have been costly) nor did the respondents request subsequently that a survey plan be undertaken to verify the location of the boundaries of their property.
In those circumstances, I do not find a breach of contract by NQ Sheds. They are, accordingly, entitled to be paid the amount outstanding under the contract.
Although I have found no breach, I will, for completeness, consider the respondents’ counter-claim. The respondents submitted by way of counter-claim:
In the circumstances, the Respondents’ are prepared to rectify all of the above issues at a cost to themselves subject to no further payment being required to be made to the Applicant. The cost to rectify the above issues, including the moving of the slab or a boundary realignment, would far outweigh the costs the Applicant states the Respondents’ owe to it. …
In the alternative, the Respondents’ submit that they are prepared to pay to the Applicant the sums outlined in paragraph 24 of Annexure A to Domestic Building Dispute, provided the Applicant arrange for the slab and shed on the slab to be moved to the correct positioning in accordance with the Site Plan attached to the contract and the above defects in paragraph 24(b) above be rectified.
The respondents did not demonstrate any cause of action against NQ Sheds. Nor was there evidence as to the cost of the boundary alignment. Further, there was real doubt about whether the boundary re-alignment was the proper measure of damage, since changing the guttering for a much lesser cost was evidently a satisfactory solution. I therefore would refuse any counter-claim on this basis.
NQ Sheds have also claimed $1 920 being the cost they expended in obtaining the box guttering and in lost wages. It was not clear, on the evidence, that the parties had reached a concluded settlement agreement. In that case, I do not order that the respondents also pay damages to NQ Sheds in that sum.
Accordingly, as NQ Sheds claim $6 867.31 is owing under the contract, I order that the respondents pay this amount to NQ Sheds by 4:00pm on 23 November 2020. I dismiss the counterclaim.