Oswin v Conn & Conn
[2013] QCAT 273
| CITATION: | Oswin v Conn & Conn [2013] QCAT 273 |
| PARTIES: | Denis Oswin (Applicant) |
| v | |
| Timothy Conn and Caroline Conn (Respondents) |
| APPLICATION NUMBER: | BDL259-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 31 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 14 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant pay to the Respondents the sum of $13,442.00 within 28 days from the date hereof. |
| CATCHWORDS: | Where Building Dispute – Where defects – Where provisional sum claimed – Where Minor Works Contract – Where Expert Joint Report – Cost of rectifying defective work– Costs Domestic Building Contracts Act 2000 s 67 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | In person |
REASONS FOR DECISION
Background
This dispute arises out of an agreement to remove an existing deck and replace it with a new one at the premises of Mr and Ms Conn at 33 Wongabel Street, Kenmore.
The agreement was ultimately reduced to a Master Builders Minor Works Contract dated 6 March 2012. The agreed price was $43,941. Mr Oswin says that this sum was payable by way of progress payments and a final payment of $2,348 was due on practical completion.
The dispute now existing can be categorised generally in 2 separate parts. Firstly there is claim for damages for defective works and this is the subject of Mr and Mrs Conn’s Counter-Claim. Secondly a lot of time and effort has been put into disputing the rights and wrongs of The Practical Completion notice, a Suspension notice, a Termination Notice and various legal points surrounding these.
Legal Issues
Dealing with the second point first, both parties conceded during the hearing of this matter that none of these issues about notices and breach was in any way relevant to an assessment of damages. Mr and Mrs Conn assert that they are relevant but only to the issue of any costs order that may be made. It seems particularly important to me that no remedy is sought in respect of these alleged breaches either in the Application or the Cross Application. Consequently these are issues that it is not necessary for me to decide.
In my view it is also unnecessary to decide whether the works had reached Practical Completion stage at the time of the giving of the notice as if the Counter Application is allowed in full or part the work that is being compensated will be sufficient to bring the Works to a stage of Practical Completion and the value of the Works received will be the full contract price.
The Evidence
The evidence was primarily written consisting of Statements of Evidence from each side with evidence from each of the parties, together with an expert engineer and builder for each side. Importantly there was an Expert Joint Report which did not identify any areas of disagreement.
The only oral evidence at the hearing was from Conn and Mr Dixon, builder. The evidence of each of them was primarily directed to the cost of rectification of the defective works.
The Application
Turning to the Application itself, I note that Mr and Mrs Conn assert that the $150 claimed as part of the electrical works is not payable because the claim does not comply with the contract or the provisions the Domestic Building Contracts Act 2000 section 67. While there is a denial of the balance of the claim it appears to be on the basis that the works were not practically complete rather than on the basis of any mathematical or other error.
It seems to me that the complaint in respect of the claim in respect of electrical is justified as no proper tax invoices have been provided in support of that claim. Therefore it seems to me that the appropriate adjustment to be made, once the extent of any Counter Claim has been determined, is $2,198.
Defective Works
The issue of the Counter Application is more difficult and is the subject of 2 expert reports from each side. There is, fortunately, a Joint Expert Report which has been prepared in accordance with Practice Direction No 4 of 2009. As it does not identify any areas of disagreement I am prepared to conclude that there were none.
Mr and Ms Conn have specifically given evidence that they accept the experts report in full[1] . Mr Oswin has said that he accepts it subject to the matters raised in his Response[2] received by the Tribunal on 2 May 2013.
[1] See their Statement of Evidence.
[2] See Further Response filed 3 May 2013.
Specifically those issues are the ones contained in paragraph 5(a), 8(b), 13(c), 14(a) and (b), 15(a) and (b) and 17(a) and (b).
In respect of these issues Mr Oswin, in evidence, accepted that the engineers giving expert evidence were more appropriately qualified than him. With due respect to his expertise, that is the case. Further his statements in respect of some items, that there were no mandatory standards, ignores the fact that the contract incorporates certain warranties into the equation which must be considered. This includes that the works are to be carried out in an appropriate and skilful way[3]. This provision stands alone from any requirement to comply with standards.
[3] See General Conditions of Contract Clause 1.1.
The exception in this regard is the dispute about the electrical work. In short Mr and Mrs Conn assert that the lighting installation was not done as they directed. Both parties accept that this was a matter about which the Builder was to follow the directions of the Owners. The problem is that both parties disagree about what those directions were. This may well be a case where the parties were simply working under different understandings. However the evidence is that Mr Oswin got Mr Conn on the phone to clarify the place for installation; that it would have been no more difficult to put them where Mr and Mrs Conn now say they want them and indeed it would probably have been easier. It would not make sense to intentionally disregard a direction and I don’t believe that Mr Oswin did that. I therefore find that the lights were at least installed where Mr Oswin believed they should be installed and I therefore find that he should not now have to bear the cost moving them.
Paragraph 15(a) and (b), dealing with the moving of the gas bottle require some comment. Despite the assertion by Mr Oswin that these were not part of the works they plainly were[4].
[4] Statement of Evidence attachment TC040 at Point 8.
Cost of Carrying Out Rectification
The evidence in this respect came from 2 sources, namely the report and evidence of Mr Dixon[5] and the Submissions and evidence of Mr Oswin[6].
[5] Exhibit 2.
[6] Exhibit 3.
The cost estimates of each party really could not have been further apart. The total of the costs of items 1 to 16 of Mr Dixon’s report is $18,225.90, whereas the total extracted from Mr Oswin’s submission is something less than $5,000. In submissions, working from Mr Dixon’s earlier report, Mr Oswin came up with a figure of $6,284 as being reasonable. Working from that report he submitted that the cost estimated by Mr Dixon came to $16,025. In reality that figure does not seem to be that far off the mark. If one looks at the cost of replacing the decking boards by way of example, in the earlier report this was $4,945 whereas in the later it was $5,676. That difference is not explained and there are similar discrepancies elsewhere.
The figures provided by Mr Oswin seemed certainly to be too low. He did not build in any margins and worked on extraordinarily low labour rates. On the other hand that of Mr Dixon seems to be on the high side. He conceded that there was no magic to his figures and admitted in providing them he was working on the general basis that there were likely to be all sorts of things that could go wrong in carrying out rectification. He also noted that if you got 5 people to quote on the job you would come up with 5 different answers. He further appeared to concede that if the job was well planned to keep things moving there could be savings made. Finally, while he did have literature to support the hourly rates he selected he did concede that many people charged at lower rates.
Overall it seems to me that there is little point in trying to calculate the precise cost of each item. Rather a more general approach seems justified and in the circumstances it seems to me that an appropriate allowance is $15,000. In arriving at this figure I have had account of the fact that the plans called for 6 struts whereas in fact only 4 are needed and will ultimately be provided. An adjustment in favour of Mr and Mrs Conn should be allowed for that, though I am given no precise manner of calculating it.
Decision
Setting off the claim of Mr Oswin in the sum of $2,198 I find in favour of Mr and Mrs Conn in the sum of $12,802.
I would also allow interest on that sum. The precise rate at which interest should be allowed is not prescribed. Currently money invested would not even return 5% per annum though I am prepared to allow that as a rate. Further the precise time from which interest should be allowed has not been the subject of submissions or comment, nevertheless it seems to me that a period of one year would be appropriate. I therefore would allow interest in the sum of $640, making a total of $13,442.
Costs
It should be noted that neither party ever had leave to be legally represented. Nevertheless it is equally clear that both Parties utilised lawyers fairly extensively during the course of the proceedings.
Mr and Mrs Conn seek an order for the payment of their legal costs which is opposed by Mr Oswin.
It should be noted that Mr Conn, in submissions, sought the cost expended in obtaining his expert reports as damages on the basis that they incorporated some type of certification that was needed. While they certainly may have provided him with a level of comfort I cannot see that they amount to certification. Really they are simply experts report and generally would be part of costs rather than being a measure of damages in their own right. I will consider them in that light.
The starting point for any order for costs is of course section 100 of the Queensland Civil and Administrative Tribunal Act 2009 which states that generally each party pays its own costs. Mr and Mrs Conn submit that the usual practice should not apply because Mr Oswin, they say, conducted the proceedings vexatiously, thus enlivening section 102(3)(a)
The meaning of “vexatious” has been defined as “A legal action or proceeding initiated maliciously and without Probable Cause by an individual who is not acting in Good Faith for the purpose of annoying or embarrassing an opponent.”[7]
[7] >
I was not able to find any of these elements in the way Mr Oswin conducted his case. Certainly I could understand that Mr and Mrs Conn would have preferred that he had conducted it in accordance with their preferences, and in particular had engaged in the alternatives to an application to this Tribunal. One can certainly see the potential the alternative courses provided. But however much one might wish that an alternative approach had been adopted Mr Oswin embarked on a course leally open to him in accordance with legal advice. There is no evidence before me that would lead me to conclude that his behaviour at any time fell within the meaning of the term, “vexatious”.
In the circumstances I can’t see that there is any reason to displace the normal rule and I am therefore not prepared to make an order for costs.
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