Oakey v O'Keefe
[2024] QCAT 195
•14 May 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Oakey v O’Keefe and Anor [2024] QCAT 195
PARTIES:
DAVID OAKEY (applicant)
v
MICHAEL ERIC O’ KEEFE (first respondent)
STATEWIDE POOL LINERS PTY LTD (second respondent)
APPLICATION NO:
BDL036-19
MATTER TYPE:
Building matters
DELIVERED ON:
14 May 2024
HEARING DATE:
20 October 2022
7 December 2022
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
1. The amended application for domestic building disputes filed on the 28th of July 2021 is dismissed.
2. Any submissions in relation to costs must be filed by 4:00 PM on 11 June 2024
3. Any application for costs will be determined by the tribunal on the papers.
CATCHWORDS:
CONTRACTS – BUILDING – whether the settlement agreement is binding – whether the applicant established defective work – remedy.
Queensland Civil and Administrative Tribunal Act 2009
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondents:
Frews Solicitors for the first and second respondents
REASONS FOR DECISION
On or around 14 May 2013, Michael O'Keefe, a Director of Statewide Pool Liners Pty Ltd (‘Statewide’) provided David Oakey a written quote to replace the pool liner in a pool at Mr Oakey's property at North MacLean for a sum of $4,500.
Later that month, Mr O'Keefe agreed to reduce the amount to $3,500 and that amount was paid by Mr Oakey on or around 26 May 2013.
After a decade of hostilities, Mr Oakey made a claim against Statewide and Mr O'Keefe which was particularised by Mr Oakey in a letter to the Tribunal dated 29 October 2022 in a sum of $413,939, including $200,000 compensation for psychological and emotional distress and $167,950 for the replacement of the pool itself. Both Mr Oakey and Mr O'Keefe claimed to be suffering from depression as a result of those hostilities.
Mr O’ Keefe drained the pool and removed the liner on 18 May 2013, but the liner was not replaced, and the pool was not filled until mid-June 2015.
Mr O'Keefe says the delay was caused by Mr Oakey's failure to complete the deck and pool fence around the pool. It was Mr O'Keefe's view that the pool could not be filled with water prior to the completion of the fence. He was also of the view that construction of the fence and deck would make damage to the newly installed liner.
Mr Oakey denies ever being told this. He says that the lengthy delay was caused by Mr O'Keefe.
Shortly after the pool was filled, Mr Oakey contacted Mr O'Keefe by telephone and text complaining that the pool was leaking.
On or around 12 August 2015, Mr O'Keefe, at his own expense, attended the property with a “pool leak detection specialist” diver who inspected the pool, identified, and fixed a minor crack.
In or around mid-2016, Mr O'Keefe engaged solicitors to act on his behalf and as a result, on or around 8 July 2016, Mr O'Keefe and his solicitors met Mr Oakey on site to inspect the pool.
Also, in attendance at this meeting was Mr Oakey's lawyer, an engineer and the owner of the pool company that originally built Mr Oakey's pool.
It is Mr O'Keefe's evidence that the pool was in poor condition and the fence and deck had not been completed. No leaks, he said, were detected.
On or around 4 August 2016, Statewide and Mr O'Keefe entered into an agreement to settle the dispute (‘settlement agreement’) by way of an exchange of emails with Mr Oakey’s solicitors which required, among other things, that Mr O'Keefe remove the existing pool liner, inspect, and repair any cracks and install a new liner. After seeking two (2) extensions of time to carry out the works, the works were, according to Mr O’Keefe, completed on 10 October 2016.
The next day, Mr O'Keefe received an email from Mr Oakey’s solicitors advising that Mr Oakey was not satisfied with the works and that they were “not satisfactory”, specifying a number of specific complaints.[1]
[1]Statement of Michael O'Keefe filed 13 May 2022, 89 [30].
On the 14 October 2016, Mr O'Keefe emailed Mr Oakey’s solicitors and advised that he did not agree with Mr Oakey’s complaints. Mr Oakey solicitors responded later that day that they had no further instructions.
Mr Oakey continued to contact Mr O'Keefe with complaints from time to time. In 2018, Mr Oakey made a complaint to the Queensland Building and Construction Commission (‘QBCC’).
Mr Oakley's application, filed in the Tribunal on 4 February 2019, named only Mr O'Keefe as respondent. Mr O’Keefe’s response was filed on 14 March 2019.
On 29 June 2021, Statewide was joined as a respondent and Mr Oakey was directed to file an amended application particularising his claim against each entity. On 28 July 2021, he filed two applications, one naming Mr O’Keefe and one naming “Woodgate Business Services trading as Statewide Pool Liners PTY LTD” which appear to otherwise be in identical terms, save the description of Mr O'Keefe as “the company representative” in the later application. An amended response was filed on 13 May 2022.
I am satisfied that the settlement agreement made on the 4 August 2016 resolved all issues in dispute up to that date. While Mr O'Keefe failed to comply with the time limit imposed, there was no attempt to terminate the agreement and Mr Oakey has waived any non-compliance in that regard.
Mr Oakey’s solicitor’s email on 10 November 2016 to Mr O'Keefe raised a number of issues he had with the work, but so far as I can see none related to cracks or leaks. If the defects are proven that does not give Mr Oakey a cause to reactivate the matter, but rather the right to damages for breach of the agreement or enforce the agreement in another jurisdiction.
On or about the 27 November 2018, Mr O'Keefe, Mr Oakey and the pool builder, Mr Stephenson, met on site with Rodney Turkington, a QBCC inspector. On or about the 19 December 2018, QBCC advised that it did not regard the items inspected to be defective building work.
I have not been provided with a copy of Mr Oakey's complaint to QBCC, but he did attach to his application a copy of the report dated 11 December 2018 (‘inspection report’).
At the time of inspection, the pool was filled with water, but had no working filtration system. As a result, the water was green. Duck faeces were in and around the pool and part of the pool fence was still missing.
In the inspection report, it is noted that, presumably on information provided by Mr Oakey, the pool had been in that condition for approximately two (2) years.
It appears from the inspection report that Mr. Oakey's complaint was that there was a crack in or near the skimmer box that became apparent sometime after the works carried out by Mr O'Keefe in October 2016.
Mr Oakey. insisted that the crack was caused by the pool being empty for extended period of time from 2013 onwards. If the pool was empty, he asserts, it is more susceptible to cracking and, thus, lagging from ground movement.
Mr Stephenson's evidence is that he removed decking near the skimmer box and dug out soil surrounding and under the skimmer box and could not detect any leak or moisture consistent with leak.
Mr O'Keefe agreed with Mr Stephenson.
Mr Oakey says that the leak was only apparent when the filtration system was working.
There is no evidence Mr O'Keefe or Statewide has carried on any works on the pool after the work specified in the settlement agreement. The question then, is whether the settlement agreement precludes any claim against Mr O'Keefe and/or Statewide for damage sufficient suffered as a result of their actions or inactions between 2013 and 2016.
Mr Oakey blames the time delays and periods when the pool was empty on Mr O'Keefe. Exhibit one in this proceeding is a document titled, “transaction of texts between myself and Michael O'Keefe of Statewide pool liners” which sets out the date, time and contents of texts passing between them from 19 October 1993 until the 11 August 2015. Mr O'Keefe did not contest the accuracy of the document.
Mr O'Keefe, on the other hand, says the delays were caused by Mr Oakey's failure to complete the deck around the pool and the pool fence. Despite his advice that the works could not be undertaken until he did so at the time of quoting and on several occasions after that. Mr Oakey denies any such statement.
The assertion was first made by Mr O'Keefe in his response to the original application. He says that he made the advice verbally.
I prefer Mr Oakey's evidence on this point.
Over the course of approximately 65 text messages exchanged between 19 October 2013 and 11 August 2015, there is no mention of the decking and pool fence. The texts do, however, indicate a number of instances where Mr O'Keefe said he would attend but did not. They also evidenced a number of explanations for his nonattendance, including waiting on parts, rain in Port Macquarie and partners involved in motor vehicle accidents.
EXPERT EVIDENCE
Mr Oakey relies on two (2) reports by Rob Steele, Managing Director of Steel Consulting Pty Ltd, the first report dated 7 February 2020 (exhibit 5) and the second report dated 25 February 2020 (exhibit 6).
Mr Steele described the pool as being constructed using precast segmented concrete walls, a type of construction popular 30 years ago but rarely used today.
Mr Steele inspected the pool in January 2020. At the time, the pool was filled to the skimmer box and because the filtration system was not working discolouration of the water prevented inspection below the water line. This is also true of the inspections conducted by Mr Turkington, Michael O'Connor and Mr Stephenson.
Mr Steele comments about the cracking did not come from his observation on site, but rather Mr Oakey's instructions and photographs, presumably taken by Mr Oakey prior to the installation of the last liner installed by Mr O’Keefe in 2018.
Mr Steele commented at paragraph 5.8 of his first report that not all damaged concrete was repaired, this must be taken to mean not repaired, at the time the photographs were taken. The report does not, in my view, establish that the pool was, at the time of his inspection, leaking.
Mr Oakey instructed Mr Steele that the pool was empty for 18 months. I have found the period is likely to be between 14 and 18 months.
Mr Steele opines in his second report:
2.1 Why has the pool cracked?
2.1.1 The principal cause of the cracking is the length of time the pool is left empty and with no liner in place.
2.1.2 The design principle of this type of pool requires the pool to be filled at all times, requiring the pool water to balance the soil pressure behind the wall.
There is some discrepancy between his recommendations for repair between the two reports. In the first paragraph 17 details, nine steps for repair using the existing structure. The second report makes identical recommendations in paragraph 8, but in paragraph 2.2 he opined:
2.2.1 The pool must be completely built.
2.2.2 The design of this pool; constructed some 30 years ago, does not comply with Australia Pool design code. (refer item 9.3 below)
2.2.3 Reconstructed pool should be required to be a solid concrete construction as defined in the Australian Pool Design code.
Mathew Yourell, an engineer and owner and Director of Newport Consulting Engineers Pty Ltd, which specialises in engineering design for swimming pools, also, provided a report on behalf of Mr. O’Keefe.
Mr Yourell agreed in cross examination that he had not inspected the pool. Normally this would dictate that a report prepared on that basis receive little weight, however, as I have found, none of the other inspections form the basis of the opinions expressed in their conclusions as inspection below the water line was not possible. All the experts have relied on the instructions and photos given to them.
Mr. Yourell’s assessment in section 3 of his report stated:
1.The crack is not caused by the pool being left empty;
2.The crack in question is not caused by the installation or [SIC] a liner;
3.The crack in question is likely to be caused by ground movement; and
4.The ground movement that likely caused the crack in question could not have been prevented by the pool being filled with water.
In oral evidence, Mr Yourell disagreed with Mr Steele’s conclusion that the pool had to be replaced rather than repaired, he said. the pool could be rebuilt and that the Australian Pool Design Code referred to by Mr Steele applied only to inground concrete pools.
Further, in oral evidence, it was put to him that Mr Oakey claimed that the pool only leaked when the filtration system was operating. Mr Yourell said in those circumstances the leak was a plumbing issue rather than a crack in the pool.
Rodney Cameron has been working in the swimming pool industry since 1968 and currently owns and operates Rod Cameron Pools Pty Ltd. He is familiar with concrete pre-engineered pools.
Mr Cameron said, “it is common for these pools to be left empty for several years without causing any issues to the structural integrity of the pool”.[2]
[2] Affidavit of Rodney Cameron filed 13th of May 2022, paragraph 10.
He opined that the crack was likely caused by ground movement and that pre-engineered pools are highly susceptible to cracking where there is ground movement.
Melvin Stephenson has been involved in the building industry since 1979. In 1982, he established Pioneer Pools Pty Ltd and was a director of it until his retirement in 2008. Pioneer Pools built Mr Oakey's pool around 30 years ago.
Mr Stephenson inspected the pool with Mr Turkington, Mr O'Keefe and Mr Oakey on 27 November 2018.
On that date, Mr Stephenson dug around it under the skimmer box and was unable to detect any moisture in the soil consistent with the leak.
Mr Stephenson, like Mr Cameron, said the substantial structural integrity was not affected by the poor being left empty “for several years” and the crack was likely caused by ground movement.
I have some reservations about the expert evidence as a whole. None of the experts have inspected the pool below the water line, Mr Yourell and Mr Cameron have not inspected it at all.
All have relied on photographs taken by Mr Oakey at some time before the installation of the liner in 2018. No one has identified an actual crack in the pool. The only evidence that pool is leaking comes from Mr Oakey. None of the experts identified the leak. I am not satisfied as a consequence that the pool is actually leaking.
I do not accept Mr Steele's evidence that the pool needs to be replaced with a concrete pool.
That opinion is inconsistent with the detailed recommendations for repairs which appear in both of his reports. The cost of carrying out those repairs is no doubt substantial but remains uncosted. It is difficult to imagine it exceeding the replacement costs claimed by Mr Oakey.
I accept that the pool remained empty for a substantial period of time between May 2013 and June 2015, and it did so because of Mr O'Keefe's failure to attend to the works when he said he would. The evidence does not, however, establish that the pool being empty as the cause of the leak that Mr. Oakey now complains of. Mr Steele says that it is, however, Mr Yourell, Mr Cameron and Mr Stevenson say it is not. All agreed that the ground movement was the likely cause. It cannot, in my view, be safely concluded that damage would not have occurred had the pool been filled. The onus is on Mr Oakey to establish that the pool being empty is the cause of the cracking and the cracking has caused the pool to leak.
For completeness, I am of the view that the settlement agreement does settle all claims in respect of Mr O'Keefe's work on the pool between 2013 and 2018. Despite the fact that those words were not specifically used in the agreement itself. When considered as a whole, the agreement cannot, in my view, be construed any other way.
Accordingly, Mr Oakey's application is dismissed. Mr O'Keefe's solicitor has foreshadowed a cost application and I have made Directions accordingly.
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