Oksanen v Stevens
[2016] QCAT 372
•14 October 2016
| CITATION: | Oksanen v Stevens [2016] QCAT 372 |
| PARTIES: | Heidi Marja Oksanen (Applicant) |
| v | |
| Graham Roy Stevens (Respondent) |
| APPLICATION NUMBER: | BDL224-15 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 September 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 14 October 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Graham Roy Stevens must pay to Heidi Marja Oksanen the sum of $12,267.50 by 4pm on 11 November 2016. |
| CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where oral contract – where construction non-compliant with Queensland Development Code – whether breach of contract – whether damages should be awarded – whether rectification is feasible – whether construction must be removed and replaced Bankruptcy Act 1966 (Cth), s 58(3) |
APPEARANCES:
| APPLICANT: | Ms Heidi Marja Oksanen |
| RESPONDENT: | Mr Graham Roy Stevens did not appear at the hearing |
REASONS FOR DECISION
The dispute
Ms Heidi Marja Oksanen owns her own home. Through word of mouth, Ms Oksanen heard that Mr Graham Roy Stevens was a concreter and performed concreting works. She contacted him.[1] They met and had a discussion at her property. She showed him the plans that had been prepared originally for her home, but he suggested that the driveway could be wider than those plans if she would prefer it. She agreed that that was preferable. He told her that he was a licenced concreter with 20 years of experience and that the driveway would be compliant with all necessary requirements.
[1]Exhibit 2, paragraph 2 and attachment 1, text message16 February 2015.
He provided a hand-written quote for the job, although not on letterhead. She asked for a formal quote[2] but he did not provide it. Although the work was not done until April 2015, in March 2015 Ms Oksanen engaged Mr Stevens to undertake concreting of the wider driveway at her home. Ms Oksanen says he was her only contact for the job. He arranged all of the materials and the labour, including a bobcat and driver. There was no written contract for the works. The only paperwork Ms Oksanen received from Mr Stevens was the quote.
[2]Exhibit 2, paragraph 9 and attachment 1, text messages 11 April 2015.
She says that she asked Mr Stevens for his bank account details on numerous occasions, so that she could deposit payment for the work into his account. He did not respond to her requests. Ultimately, after the works were completed she says he told her that she would have to pay him in cash because he needed to pay for the materials. She did pay him in cash in several instalments. In total she paid $7674.40 to Mr Stevens for the works. He did not give her a receipt, although she had him sign a handwritten document she had prepared acknowledging receipt of the amounts.
After the concrete had been allowed to set in accordance with Mr Stevens instructions, Ms Oksanen subsequently attempted to drive her car down the driveway and into her garage. However, she says that the underside of her front bumper bar scraped the concrete in front of the garage. She was unable to get her car into the garage without causing damage to it. She then attempted to reverse her car into the garage, but had to stop to avoid damaging her muffler.
Ms Oksanen then asked Mr Stevens to fix the driveway,[3] however he did not attempt rectification. In August 2015 she made a complaint to the Queensland Building and Construction Commission (QBCC) about the work. QBCC issued a direction to rectify to Mr Stevens for non-compliance with the requirements of the Queensland Development Code (QDC).[4] She discovered at this stage that he was not a licenced concreter.
[3]Exhibit 2, paragraph 9 and attachment 1, text messages 6 May 2015 to 22 July 2015.
[4]Exhibit 2, paragraphs 10-11 and attachment 6.
She filed an application for a domestic building dispute. Initially she sought orders for restitution, plus her filing fee in the Tribunal of $305. Before the hearing, she filed documents relied upon in support of the claim and set out that she seeks, (instead of restitution), damages in respect of the non-compliant driveway. In particular, she seeks damages for rectification based on Mr Phil Kelley’s cost estimate in the amount of $10,875 plus GST ($11,962.50), together with her filing fee in the Tribunal.
Mr Stevens filed a response to Ms Oksanen’s application and a brief unsigned statement in response to Ms Oksanen material. Essentially, he says that he did not sign a contract with Ms Oksanen; he did not give Ms Oksanen a receipt; and that Ms Oksanen was the ‘cash payer and controller’: he claims that he is a day labourer with no responsibility for the works. He suggests that if Ms Oksanen was not happy with the works she would not have paid for them. He insinuates, rather than says outright, that she paid all of the workers individually. He also claims he has only ever been a day labourer and has never claimed to be registered with QBCC.
Mr Stevens’ non-attendance at the hearing and his bankruptcy
In the days prior to the hearing, Mr Stevens sought leave of the Tribunal to attend the hearing by telephone. His application was refused. He failed to attend on the day of the hearing. However, pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal is entitled to proceed in a party’s absence if satisfied the party has been given notice.[5] The file reveals that notice was sent to Mr Stevens in compliance with the QCAT Act. Clearly, he received it: it prompted his application to attend by telephone.
[5]QCAT Act s 93.
Shortly before the hearing, Ms Oksanen filed a bankruptcy search which shows that Mr Stevens is bankrupt and has been since 29 October 2014.[6] Before the hearing proceeded, Ms Oksanen obtained, from the representatives for the trustee in bankruptcy, email confirmation that the Trustee has no objection to the proceedings in QCAT, as they commenced after the date of the bankruptcy.[7]
[6]Exhibit 5.
[7]Exhibit 6. Note that section 58(3) of Bankruptcy Act 1966 (Cth) provides that after a debtor has become bankrupt it is not competent for a creditor to either enforce or remedy against the person in respect of a provable debt or except with the leave of the court commence proceedings in respect of a provable debt. It appears that the Trustee has no interest in or objection to the proceedings because Mr Stevens was already bankrupt when the works were undertaken at Ms Oksanen’s home, and do not consider the proceedings do not relate to a provable debt in the bankruptcy.
Having regard to notice having been given and the attitude of the Trustee in bankruptcy, I was satisfied that the hearing could proceed.
The expert evidence
Ms Oksanen obtained an expert report[8] from Mr Phil Kelly, a building consultant and inspector. In Mr Kelly’s opinion, the 12 metre driveway is non-compliant with the QDC.
[8]Exhibit 4.
In particular, he says the slope of the main section of the driveway between the top and bottom transition zones was measured as at 14.2 degrees over 3.8 meters. This is a change of 1 in 4. The bottom of the driveway transition zone was measured at 16.3 degrees equating to a change of 1 in 3.4. The top of the driveway transition zone measures 8.7 degrees equating to transition zone of 1 in 6.5. The bottom transition zone is less than 1 metre, so he took two measurements of the driveway slope near the bottom of the driveway and across the smaller transition zone, to determine the slope change. He also notes two visible scrapes in the driveway concrete which, in his opinion, looked like the result of attempts to drive in and out of the garage using the driveway.
He explains that the QDC requires that the driveway gradient must be a maximum of 1 in 5, or it may be one in 1 in 4 provided the length of the driveway exceeds six meters and there is a change in gradient not less than 1 meter in length and not greater than 1 in 8 at the ends of the 1 in 4 section of the driveway. The QDC further requires that a vehicle must be able to travel the length of the driveway without scratches, scrapes, dents and removal of the finished surface of the vehicle or driveway.
Because of what Mr Kelly describes as ‘the excessive gradient measures at the bottom of the driveway from apex at the top’,[9] it is his opinion that the entire driveway must be removed to achieve compliance with the QDC. At the hearing, he explained that attempts to repair it would not result in a compliant driveway because it was not adequately excavated. He could see no alternative but to remove and replace it in its entirety.
[9]Exhibit 4, paragraph 1.18.
Was there a contract between the parties?
Mr Stevens chose not to attend the hearing and defend his assertions. Further, his statements about how the events unfolded are vague and inherently improbable, suggesting the homeowner arranged all of the works and materials and took responsibility for ensuring the driveway was compliant. On the other hand, Ms Oksanen impressed me as a truthful witness. Also, she presented documentary evidence which supports some of the evidence she gives about the way events unfolded, in particular, the copies of text messages between her and Mr Stevens. I accept her evidence and version of events. I also accept Mr Kelly’s evidence.
On that basis, I am satisfied that Mr Stevens is a building contractor,[10] and that he told Ms Oksanen that he was QBCC registered and that the works would be compliant. The driveway construction is domestic building work.[11] I am further satisfied that he and Ms Oksanen, a building owner, agreed that Mr Stevens would undertake domestic building works at her property namely, by construction of the driveway as they had discussed, for the price of $7674.40. I find that this is a domestic building contract.[12]
[10]Domestic Building Contracts Act 2000 (Qld), Schedule 2, Dictionary, ‘building contractor.’ Although the Domestic Building Contracts Act 2000 (Qld) was repealed as of 1 July 2015, it continues to apply to domestic building contracts entered into before the repeal and to parties to those contracts: Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1 s 62.
[11]Domestic Building Contracts Act 2000 (Qld) s 8.
[12]Domestic Building Contracts Act 2000 (Qld) s 7.
Accordingly, Mr Stevens warranted that the work would be carried out in accordance with legal requirements[13] and in an appropriate and skilful way and with reasonable care and skill.[14]
[13]Domestic Building Contracts Act 2000 (Qld) s 43.
[14]Domestic Building Contracts Act 2000 (Qld) s 44.
Based on Mr Kelly’s evidence, I find that the driveway is not compliant with the QDC. The gradient is in excess of the allowable limits specified in the QDC. Ms Oksanen can not use the driveway without damaging the surface of her vehicle or the driveway. I am satisfied that Mr Stevens did not construct the driveway in accordance with requirements or in an appropriate way and with reasonable care.
I accept that the driveway can not be rectified and that the only way to fix it is to remove the existing driveway and construct a new one. I further accept the cost estimate provided by Mr Kelly to perform these works is reasonable. I am satisfied that Ms Oksanen should be awarded damages for breach of the domestic building contract in the amount of the reasonable costs of rectification, that is, $11,962.50 (including GST). Further, as a result of Mr Stevens breach of contract and failure to rectify the works, she has incurred costs of filing fees in the Tribunal of $305. I am satisfied that that it is in the interests of justice in the circumstances to award costs of the filing fee of $305 to Ms Oksanen.
Orders
I make order accordingly for Mr Stevens to pay these amounts to Ms Oksanen within 28 days.
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