Osborne v Peter Boyd Enterprises Pty Ltd
[2011] QCAT 28
•17 January 2011
| CITATION: | Osborne v Peter Boyd Enterprises Pty Ltd [2011] QCAT 028 |
| PARTIES: | Garth Wilfred Osborne |
| v | |
| Peter Boyd Enterprises Pty Ltd Superior Precast ABN 92083458593 |
| APPLICATION NUMBER: | 2141/10 |
| MATTER TYPE: | Other Minor Civil Disputes |
| HEARING DATE: | 23 December 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Jarro |
| DELIVERED ON: | 17 January 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondent is to pay to the Applicant $7,170.50 within 30 days |
| CATCHWORDS : | MINOR CIVIL DISPUTE – provision of inground water tank; lifting of water tank; warranty |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Mr Obsorne, self-represented |
| RESPONDENT: | Mr Boyd, self-represented |
REASONS FOR DECISION
Introduction
On 9 September 2010, the Applicant obtained judgment against the Respondent in the sum of $7,170.50 – comprising of a claim of $7,078.50 together with the relevant QCAT filing fee on 9 September 2010. On 16 November 2010, the Respondent successfully set aside the original decision and the application was reopened and heard on 23 December 2010.
In his application, the Applicant seeks an order for payment of money to compensate him for the cost of removal and replacement of an alleged faulty 22,500 litre concrete tank supplied by the Respondent. He asserts that he “had been sold a product with intrinsic faults which was pre-destined to fail, given the passage of a moderate period of time”. He alleges that the Respondent supplied him with an inferior quality water tank which caused the “integrity of the shell to fail”. This is against a background where concrete tank was supplied with a 10 year warranty.
The Respondent disputes the allegations made by the Applicant; hence the need for a hearing of this minor civil dispute.
Jurisdiction
Section 3(b) of the Queensland Civil & Administrative Tribunal Act 2009 provides that the Tribunal must deal with matters in a way that is fair, just, economical, informal and quick. Minor civil dispute proceedings are conducted in an informal way that minimises costs however the Tribunal must ensure that proceedings are conducted in a way that reflects the substantial merits of the case and with as little technicality and formality, and with as much speed as the legislation and a proper consideration of the matters before it, permit.
Uncontested Facts
The uncontested facts are as follows:
a. In or about April 2007, the Respondent supplied to the Applicant one 22,500 litre (5,000 gal.) reinforced concrete tank at a cost of $3,327.50 (inclusive of GST);
b. The Respondent provided a 10 year warranty in relation to the concrete tank;
c. At the time of sale, the Respondent provided a number of instructions in relation to the supply and installation of the concrete tank;
d. In early May 2007, the concrete tank was lowered into the ground at the Applicant’s property and the Applicant took steps to engage a plumber to connect stormwater drainage to it;
e. In about early November 2008, the concrete tank “lifted” from where it was placed on the Applicant’s property.
Applicant’s Evidence
In his evidence, the Applicant stated that on 10 May 2007, when the concrete tank was being crane-lifted off the delivery truck to be placed into a prepared sand-bedded hole, he was only able to briefly inspect the underside of its floor. He discovered liberal application of what appeared to be strips of a solastic product. Once the tank was lowered into the ground, he also discovered liberal application of the same solastic product on the inner aspect of the tank, being on the floor and on parts of the walls. He queried this with the delivery driver. It is not uncommon for solastic products to be used to cover superficial shrinkage cracks within the concrete.
The Applicant engaged the services of a plumber, Mr Graham Wenham. Mr Wenham provided an affidavit before the Tribunal which indicated that the connection of the stormwater drainage to the concrete tank was done in accordance with Australian Standards and with Brisbane City Council By-Laws. That evidence reveals that the inlet to the concrete tank connections were made with approved flexible connections and the overflow to the rubble pit was achieved three metres from the tank on the downhill side. At the time of connection, there was no evidence of groundwater infiltration. Rain ensued at the end of the day of installation and, according to the plumber there was no evidence of subsidence due to faulty connections. In the plumber’s view, it would seem implausible for the tank to lift from its bed in the ground due to infusion of foundation, unless the concrete tank does not maintain the integrity of its shell.
The Applicant stated that the system appeared to function properly over the next 16 months with the collected rainwater being used solely for gardening purposes.
However on or about 5 November 2008, the Applicant discovered that the concrete tank lifted by about 250mm. He checked the water level with a dipstick and found that it was about half capacity. He could hear an audible intermittent gurgle. There was no damage to inlet plumbing because the connecting inlet point was of a flexible joiner variety and with the rising of the concrete tank, the connection had merely slipped off the attaching tank mounting. The Applicant then made contact with the Respondent who suggested that soil subsidence had possibly caused some plumbing/drainage problem resulting in water intrusion into the tank foundation. The Applicant stated that he attempted to explain to the Respondent that because they had not had any rain for at least a week (and at best it had been little more than a light shower) there could be no other source of water in the region where the tank was located. The Applicant also suggested to the Respondent that if the water had found its way to the foundation of the tank, it could only have come from the tank itself.
The following day, the Respondent arranged for Mr Bob Bickerdike to inspect the concrete tank. By that stage, the Applicant indicated the tank had risen by about 750mm. According to the Applicant, Mr Bickerdike removed the manhole inspection cover which allowed for the inspection of the inner floor and wall, and Mr Bickerdike pointed out that there appeared to be a fault in the wall which clearly showed water intrusion. Mr Bickerdike came with a digital camera and took a number of photographs of the fault.
The Applicant produced photographs which demonstrated that solastic products were applied to the inner aspects of the water tank, together with cracks within the water tank showing leaks. The Respondent stated, which I accept and as I understand is not disputed by the Applicant, that the solastic products were used to cover superficial shrinkage cracks within the concrete. This is supported too by the evidence of the Applicant about the delivery driver’s comments in relation to the solastic products. The photographs reveal though, as the Applicant has indicated, quite liberal application of the solastic products to the relevant concrete tank in question.
In addition, the Applicant produced photographs from other tank distributors, depicting similar tanks to that supplied by the Respondent. Those photographs reveal no application of the solastic products.
The Applicant also provided evidence by way of relevant daily weather observations over the pertinent period of the rainfall (or lack thereof) to demonstrate his contention that there was no excessive downpour, to hypothesise, as suggested by the Respondent, of external infusion of the foundation of the concrete tank.
To support the amount claimed in the application, the Applicant produced two quotes to demonstrate the cost in replacing the concrete tank. He tendered a quotation from Quality Tanks for an amount of $7,078.50 (inclusive of GST) to remove the existing concrete tank and replace it with an equivalent 22,500 litre standard concrete tank. In addition, a further quote was provided by Monocast Tanks for $8,591.50 (inclusive of GST) to remove the existing concrete tank and replace it with a similar one. In addition, the Applicant provided evidence that the consultants from both Quality Tanks and Monocast Tanks were not prepared to provide any warranty should they attempt to undertake the repair process as they were of the view that attempting to crane-lift the tank from its present position, could likely prove to be too stressful for the integrity of the entire structure, and thus their only recommendation was to have the tank replaced.
The Applicant submitted that the appropriate order was for the Respondent to pay the costs of the lowest quote (as provided by Quality Tanks) in order to satisfy his complaint against the Respondent.
Respondent’s Evidence
The Respondent accepted that the Applicant telephoned him on 5 November 2008 to advise that the water pump had lifted about 18 inches in the last 24 hours and appeared to be leaking. The following day, the Respondent spoke with the Applicant and advised that it was strange for a tank to hold water for over 12 months and not move at all until now. He suggested that subsidence may have caused the problem.
The Respondent arranged for Mr Bob Bickerdike to attend the site the next day. According to the Respondent, Mr Bickerdike reported that the tank appeared to have risen approximately ¾ of a metre in a level position. The surrounding ground, along with the rest of the property was very wet with water lying due to heavy rain. When looking into the tank via the manhole, Mr Bickerdike estimated that there was approximately ½ litre of water present and he could see some cracks travelling up the wall from the base without any repair which could have been caused with the clay heave. At the time of Mr Bickerdike’s inspection, there was no substantial evidence to him as to why the tank had risen, namely because it was after the fact that plumbing fittings already sheared and he is not an engineer. Unfortunately for both parties and the Tribunal, Mr Bickerdike did not give evidence at the hearing.
The daily weather report observations indicate that on the day of Mr Bickerdike’s inspection (6 November 2008), approximately 28.4mm of rain fell. Prior to that date though, there was little, if any, rain as submitted by the Applicant.
When asked what caused the concrete tank to lift, the Respondent was unable to provide any suggestion to the satisfaction of the Tribunal as to the reason.
The Respondent wrote to the Applicant on 11 December 2008 offering to help repair any cracks that had appeared in the concrete tank as a result of the tank floating due to clay heave. He also relevantly indicated that he could not accept the fact that he supplied the Applicant with a defective product as concrete completes its curing process at 28 days and shrinkage cracks develop, more commonly in the early stages of curing, and are not detrimental to the integrity of the product. In his letter written to the Applicant, the Respondent assured the Applicant that if the concrete tank was defective, it would have leaked one or two loads of water (which the Respondent recommended the Applicant put into the tank on its installation) to prevent lifting and experienced the rising of the tank in the first couple of weeks, not 17 months later.
Attached to the Respondent’s letter was a statement by Ken Brown & Associates (Consulting Structural & Civil Engineers). The statement shows that the tanks constructed by the Respondent are used with high strength, locally supplied ready mixed concrete. The quality and consistency of the concrete is strictly controlled and guaranteed by the supplier. The concrete tanks are otherwise constructed in accordance with the relevant Australian Standards. The engineer’s statement indicates that fine cracks will appear in the finished surface of any concrete structure, and vary in width and length; however, cracks in the range of 0.5mm-1.0mm are by definition not structurally significant and do not warrant repair as the repair would be more unsightly than the original crack. Site conditions will affect the long term performance of the tank after installation. Whilst I accept the observations made by Ken Brown & Associates, the observations though relate to the Respondent’s concrete tanks in general and were not necessarily directed to the supply of the Applicant’s concrete tank.
Findings
The Applicant bears onus to prove to the requisite standard (being on the balance of probabilities) that the nature of the claim is met.
The Tribunal accepts the Applicant’s contention that he was supplied with an inferior concrete tank which caused the integrity of the shell of the tank to fail over a period of time. At the time of supply, the Applicant was provided with a concrete tank that had solastic, liberal application on the underside and inner aspects of the tank which differed from that of other comparable concrete tanks. The Applicant appropriately followed the instructions of the Respondent pertaining to the suitable installation of the tank. He arranged for the concrete tank to be placed within an appropriate sand bedded hole and engaged a plumber who, with approved flexible connections, connected the stormwater drainage to the concrete tank in accordance with Australian Standards and Brisbane City Council By-Laws. The daily weather observations support the Applicant’s contention to disprove the Respondent’s proposition that external infusion of the foundation caused the concrete tank to lift.
The Respondent submitted that he was not sure if it was mother nature or introduced moisture which caused the tank to lift. The Tribunal has difficulty in accepting this submission in the absence of any independent supporting evidence. Further the Tribunal does not accept the Respondent’s submission that the site condition, particularly having regard to the plumber’s evidence, that the clay soils caused the tank to lift. The Tribunal is otherwise unable to accept that the product supplied was not defective.
Moreover, a 10 year warranty was provided by the Respondent. The nature of a warranty is an express promise that certain facts are as they are represented to be. It is the promise of a manufacturer of goods in relation to its obligations if the goods prove defective.
Further and in any event, pursuant to the Sale of Goods Act 1896, a number of terms described variously as conditions or warranties are to be implied into a contract of sale of goods in certain circumstances. Relevantly, the goods shall be reasonably fit for the purpose for which they are required, particularly in circumstances where:
a. the Applicant expressly or by implication made known to the Respondent the particular purpose for which the water tank was required;
b. as to show that the Applicant relied on the Respondent’s skill or judgment;
c. the concrete tank was of a description which is in the course of the Respondent’s business to supply; and,
d. the contract is not for the sale of a specified article under its patent or other trade name.
The concrete tank in this instance was not reasonably fit for the purpose for which it was required. A 10 year warranty has been given. As such, the goods are covered within the relevant warranty period for which the Respondent has warranted the quality of the concrete tank.
The Applicant is otherwise entitled to have the defective tank removed and replaced with an equivalent concrete tank. In the circumstances, the appropriate order should be for the Respondent to pay the costs of the lowest quote (as submitted by the Applicant, being the quote provided by Quality Tanks) in order to satisfy the dispute.
Accordingly the Respondent is ordered to pay to the Applicant, within 30 days, the amount of $7,078.50 together with a $92 filing fee.
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