Ordermore Pty Ltd v MacKenzie
[2013] QCAT 402
| CITATION: | Ordermore Pty Ltd v MacKenzie & Anor [2013] QCAT 402 |
| PARTIES: | Ordermore Pty Ltd (Applicant) |
| v | |
| Edward MacKenzie and Catherine MacKenzie (Respondent) |
| APPLICATION NUMBER: | BDL256-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 11 & 12 June 2013 and 21 June 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 1 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the application be dismissed. 2. The Applicant, Ordermore Pty Ltd pay the Respondent Edward MacKenzie and Catherine MacKenzie the sum of $8,750.00 within 28 days from the date of this Order. |
| CATCHWORDS: | BUILDING MATTERS - Building dispute where fibreglass pool buckled in ground – where experts disagree about the cause of buckling – where effect of AS 1839:1994 disputed by experts – whether cause of buckling breach of contract or drainage works. Domestic Building Contracts Act 2000 s 44. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr. Grattidge, Director of the Applicant Company |
| RESPONDENT: | In person |
REASONS FOR DECISION
Background:
This dispute involves the construction of a fibreglass pool on premises owned by Mr. and Mrs. MacKenzie at 1/5 Velvedere Place, Maroochy River. The pool was constructed by Ordermore Pty Ltd for the MacKenzie’s pursuant to a written Contract.
It is common ground that the pool has buckled both in the floor and along one side so that it is not currently within acceptable tolerances.
The principal question for determination by the Tribunal is the reason for the buckling of the shell.
Evidence:
The lay evidence consisted of written statements[1] supplemented by oral evidence by both Mr. and Mrs. MacKenzie and by Mr. Grattidge for Ordermore Pty Ltd. In addition photographs of the site at various stages, were provided.[2]
[1] See exhibit 2 and letter of Troy Grattidge dated 28 November 2012.
[2] See exhibits 3 and 7.
In some respects, not a lot turned on this evidence though it should be noted that Mr. Grattidge was not present when the pool was laid and did not personally have a lot to do with the actual construction. Hence his efforts to discredit the MacKenzie’s was largely ineffectual as he was unable to adduce any reliable evidence to the contrary.
One aspect of significance that did come from the evidence of Mrs. MacKenzie in particular, was that the pool is not positioned where they wanted it which was on level ground almost adjacent to their home. The MacKenzie’s say that whilst they accepted the pool’s current position, they only did so reluctantly.
As it turns out, the positioning of the pool seems to have been of significance in the problems that have subsequently developed. The site of the pool has been described by the MacKenzie’s as being in an old water course. It seems however that this was not the case and it was accepted that it was not the case by both experts, Mr. Covey for the McKenzie’s and Mr. Lindsay for Ordermore Pty Ltd. Their evidence will be dealt with in more detail in due course.
It also seems apparent from the photographs that it is not currently in any water course.
It is apparent however that it was placed on a slope leading to an old water course and was placed in the vicinity both of overflow pipes from rain water tanks and near an onsite sewerage facility that was constructed below natural ground level.
Mr Lindsay gave evidence that the sewerage facility acted to trap natural flow of the water down hill and effectively acted as a dam.
Ultimately I formed the view that neither of the man-made features may have added much to the problem but they perhaps should have been considered in conjunction with the terrain and served as a signal for the site as a potential problem from a drainage perspective.
Expert Evidence
Other evidence which was much more telling and of significance was that of the 2 experts – Mr. Covey for the MacKenzie’s and Mr. Lindsay for the Applicant. They have each provided a written report[3] which has been supplemented by oral evidence. A summary of their respective positions is as follows.
[3]See exhibit 4 and exhibit 19 - Note the joint experts report was not actually signed by Mr Lindsay but he stated in final form it did represent his view.
Mr Covey believed that the problem, at least by the time of the hearing, was that there was inadequate drainage provided during the construction of the pool. In particular, it was his view that the relevant Australian standard[4] required not only a stand pipe, but additionally off to the side of that part way up a further pipe draining to a low point on the property. An example of this can be seen in Figure 4[5] of the relevant Standard. He is of the view that if such a drainage pipe had been provided, the water levels would not have got as high and the pressure would not have built up to the extent that it did and in particular, to the extent where the integrity of the shell was impacted. He conceded that a small retaining wall put in by the owners may have had some impact but being 5% or less when one looks at the problem as a whole.
[4] AS/NZS 1839:1994.
[5] See figure 4 on page 11 of the Standard.
Mr Lindsay, on the other hand, in evidence and in the joint report, considered that the retaining wall or perhaps more accurately, the failure to provide adequate drainage for the retaining wall, caused far more water to gather in the vicinity of the pool and in particular, under the pool and this was the primary cause of the problem.
The retaining wall
In the circumstances, it is worth considering in more detail, the history of the retaining wall. The pool itself, it is apparent from the photos provided, was installed in a cut made by Ordermore Pty Ltd into the side of the hill. It was explained by Mr. Joel Grattidge that it is necessary for a cut to be made when installing a fibreglass pool in the side of the hill as you cannot have a fibreglass pool with one side standing higher out of the ground than the other. Given this cut, the obvious course for the owners was to retain that and this was the course that the MacKenzie’s adopted. They also concreted around the pool itself. Indeed, Mr. Grattidge conceded in evidence that this is what he would have expected to occur and that it is effectively the usual course for an owner to take.
The wall was professionally constructed as were the concrete surrounds.
The Tribunal is told that the area behind the wall had Ag pipe and was filled with drainage gravel. It had a couple of inches of clay over it at the top of the drainage gravel.[6]
[6] Evidence of Mrs MacKenzie.
Mr. Lindsay is adamant that the efforts to drain the water away from the pool and in particular, from the wall were not effective and indeed, the wall actually trapped the water flowing down the hill and forced it underground. This, he says, is a major cause of the problem.
When asked about the second pipe described in relation to Mr. Covey’s evidence, he stated that he does not believe that the relevant Australian standard requires it. All the standard requires, he says, is a pipe with an opening to the atmosphere below the level of the pool. As constructed, he said, it was adequate. He concedes that the addition of the concrete surround complicated the issue but his response was that as it was added after the event by the owner, it is the owner’s problem.
In these circumstances, it clearly becomes necessary to consider which expert evidence is to be preferred.
Both engineers were, in my view, appropriately qualified to give expert evidence. Neither side took issue with their levels of expertise and in the circumstances, it does not appear appropriate to prefer one over the other based purely on this matter.
Overall, I found the evidence of Mr. Covey to be more compelling. Whether or not the Australian Standard in fact requires it, the provision of the second pipe was certainly contemplated by the Standard as is indicated by the inclusion of the diagram previously referred to. When considered in conjunction with the known difficulties of the site, good building practice, in my view, really compelled such a pipe to be installed.
I note that Mr. Lindsay was of the view that it was impractical to install such a pipe. With due respect to his expertise, I do not accept that this is the case at all. Certainly it would come at a cost but if it cannot be put into a pool constructed on a reasonable slope such as this, it could never be put in anywhere at all.
Practical sense would suggest that the installation of such a pipe would have had a dramatic impact on the water levels and hence the pressure that could have built up around the shell.
Additionally, I was somewhat unconvinced by an answer Mr. Lindsay gave to a question which was to the effect that had the retaining wall not been installed, would not the pool itself have acted as the same kind of barrier to have also forced the water underground. His response was to effect that it would not be the case as the water would have flowed over the side of the pool and into it.
Quite frankly, it was agreed and photographs showed[7] that the pool was laid with a significant lip sticking out of the ground . It was hard to imagine the degree of inundation that would be required to overflow this. Even then, practical sense would suggest that the greater volume of water would be trapped outside.
[7] See Exhibit 7.
In the circumstances, I find that it was the failure of the builder to install the second pipe that was the primary cause of the buckling problems. Additionally, I find that regardless of whether or not the Australian Standard strictly required it good building practice and the terms of the Master Builder’s Contract used in this case[8] and the provisions of the Domestic Building Contracts Act 2000[9] required that such drainage be installed in this particular location. The work as performed was not carried out in an appropriate and skilful way.
[8]Only the Contract Schedule was put in evidence but the words used in the contract mirror the provisions of the Domestic Contracts.
[9]See section 44 of the Domestic Building Contracts Act 2000 which requires the Work to be carried out in an appropriate and skilful way and with reasonable care and skill.
Accordingly, I find that the cause of the pool buckling was the negligence and/or breach of contract by the pool builder in carrying out the pool construction.
For the record I note that this is plainly envisaged, in the Australian Standard, to be part of the construction of the pool itself, and does not fall into the category of drainage, the contractual responsibility for which lay with the Owners. Indeed the only way it could be effectively installed was during the construction as part of the Stand Pipe arrangement, the responsibility for which plainly lay with Ordermore.
The Application
Ordermore Pty Ltd claims the sum of $500.00 being what it was said was an agreed contribution to drainage works put in in an attempt to alleviate the problems that arose.
As I found that the problem was created by the builder’s negligence and/or breach of Contract, it seems wrong to expect the owner to bear any part of the cost of rectification.
The Application is therefore dismissed.
The Cross-Application
Having regard to the matters raised, the Cross-Application should succeed. However quantifying the loss is somewhat more difficult than might appear on its face.
Ordinary legal principle requires that the party who has suffered damage as a result of the breach of contract or negligence of the other party should be put into a position as close as possible to that if the negligence or breach of contract had not occurred. Mrs. MacKenzie urged me to simply award them by way of damages the amount that they paid for the pool. Not surprisingly, given her lack of legal training, I was not overly persuaded that this was an appropriate assessment of their loss.
Ordermore Pty Ltd really did not address the issue at all either in evidence or submissions but rather concentrated virtually exclusively on attempting to lay the blame for the problem at the feet of the MacKenzie’s.
During the course of the evidence, at such times as was possible, I attempted to consider the question of, firstly whether the pool could be repaired and secondly, the cost of such repair. To an extent, the MacKenzie’s conceded that this was an appropriate line of enquiry as they did produce one quote for repair[10]. Additionally in closing submissions, Mrs. MacKenzie indicated that whilst she would not have the Applicant’s back, she would be prepared to consider repair from an alternative source.
[10] See quote by Affordable Pool and Spa Repairs dated 31/05/13.
Can the Pool be repaired?
Some doubt was thrown on this by the provisions of quote provided which stated that it was possible that the pool could crack during the process. By way of contrast, Mr. Grattidge said that there is no doubt at all that the pool could be repaired and at a fairly minimal cost which he put at a couple of thousand dollars.
Mr. Covey indicated that he had no experience with this and could not assist.
By way of contrast, Mr. Lindsay did give some evidence on this which was helpful. He gave specific evidence of one case where he had seen such a repair done by the shell being removed in it’s entirety from the ground and re-installed.
Further I am aware, from my own experience of one other case where this same thing was effectively done.
Mr. Lindsay also gave additional evidence of the steps that would ordinarily be taken to attempt to straighten the pool out. Without going into the processes involved in any detail I formed the impression that it would not be simple process. Certainly it would involve removing the water, removing the concrete surrounds, significant excavation and careful working.
To add to my view in this regard, Mr. Joel Grattidge, in closing submissions, conceded that the process is quite possible and could bring the pool back within acceptable tolerances but it would be unlikely to be able to be completely straightened.
Overall, I formed the view that repair was a difficult, though not impossible, option. Even if it resulted in the shell cracking, Mr Lindsay gave evidence that the cracking would be able to be repaired.
Accordingly, it seems that the appropriate level of damages is a reasonable cost to repair the pool.
Cost of Repair
Unfortunately, this was an area in which evidence was scant at best such as it was, it came from the 2 sources already discussed, namely the quote provided and Mr Grattidge’s evidence. I strongly felt that Mr. Grattidge was very much understating the difficulties particularly when one considered the evidence of Mr. Lindsay and the concession of his brother, Mr Joel Grattidge.
Also the issue of the removal and reinstatement of the concrete surrounds would in its own right be a significant cost. On the other hand, so far as the quote for repair was concerned, evidence was adduced that the person writing the quote was not the holder of an appropriate BSA Licence to do the work.
Further, Mr Grattidge was very condescending of the rectification processes described in the quote. Nevertheless, whether or not that person could in fact carry out the works, the quote does seem to consider most aspects of the work that would be required. There may perhaps be arguments about whether concrete should be used, but I note Mr Lindsay explained that it is not standard concrete that is being discussed in these circumstances. It may therefore, possibly be used. I also think there needs to be some allowance for the fact that cracking and hence repair of the shell is a real possibility.
In the circumstances, I find that a quote provides the most reliable evidence for the cost of repair available to me.
I therefore find:
(a) That the pool is able to be repaired;
(b) That the appropriate measure of damages is the cost of repair to the pool as repairing it would put the owner’s back in the position that they would have been but for the negligence and/or breach of contract from the pool builder where the cost of repair is the sum of $8,750.
In the circumstances, I find that Ordermore Pty Ltd is liable to pay the MacKenzie’s damages in the sum of $8,750. Such payment should be made within twenty-eight (28) days from the date of this Decision.
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