Parker v Wakeling - [2014] QCAT 240

CITATION:

Parker v Wakeling [2014] QCAT 240

PARTIES:	Shane and Joanne Parker (Applicants)
v
Brendan Wakeling (Respondent)

APPLICATION NUMBER:

BDL189-13

MATTER TYPE:

Building matters

HEARING DATES:

12 and 13 February 2013

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

26 May 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondent pay to the Applicants the sum of $13,165.70 within sixty (60) days of the date of these orders.

CATCHWORDS:

Building dispute – arising in circumstances where the Applicant husband and the Respondent are cousins – Respondent retained to construct a deck, cheaply and on oral terms – Applicants oftentimes interventionist and requiring construction be undertaken in an inappropriate manner – Dispute about payment and quality of works; project abandoned by respondent – Deck ultimately requiring substantial demolition and reconstruction by a third party – Applicant sues for cost of reconstruction – Determination of apportionment

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

By the Applicants, in person.

RESPONDENT:

By the Respondent, in person

REASONS FOR DECISION
The Applicant’s Case

By an application filed in the Tribunal on 1 August 2013, Shane and Joanne Parker (“the applicants”) bring a claim against Mr Brendan Wakeling seeking damages of $24,389.58, and costs. That claim is referable to the construction of a deck by Mr Wakeling, at the Parker’s home at Burpengary. Mr Wakeling is a carpenter by trade. He and Mr Parker are also first cousins.
Mr Wakeling commenced the deck on 26 November 2012 yet ceased working on it in early 2013, after a dispute with his cousin about payment. At that time Mr Wakeling had been paid all but $1,400 of the amount that he had quoted.
Since that time Mr and Mrs Parker have had the deck re-constructed by a builder, Mr Ray Town, who virtually rebuilt the entire deck, quoting $16,416.50 in order to do that. At the end of the job Mr Town was paid a significantly higher sum than that quoted. I infer that this was mostly because of additional works, beyond the scope of works originally undertaken by the respondent.
Most of the applicant’s evidence before the Tribunal was given by Mr Parker rather than Mrs Parker, on the basis that it was Shane Parker who primarily dealt with his cousin. Mr Parker stated that he and his wife had engaged Mr Wakeling to build a new deck onto the back of their recently acquired home at Burpengary. After an initial approach to enquire whether Mr Wakeling might be interested in the job; and then an on-site discussion, Mr Parker said that Mr Wakeling told him to go and get some plans drawn up, and to obtain Council approval. The Parkers did that, obtaining a set of plans from “Studio Arkitecture”, which were then approved by the Council. All of this happened in early November 2012.
After Mr Parker had obtained the plans, he obtained a quote from his cousin. That quote became ‘exhibit 1’ in the proceedings. It indicates that Mr Wakeling required $21,467.84 for materials and labour in order to construct the deck. Apart from the quote (a one page document), there was no written contract. Mr and Mrs Parker say that the agreement was a simple one, requiring Mr Wakeling to build the deck shown in the approved plans, for the price quoted by Wakeling, in exhibit 1.
In late November 2012 Mr Wakeling asked his cousin to provide $2,000.00 as a deposit, as well as $200.00 for QBSA insurance. Mr Parker also says that Mr Wakeling asked to be paid in cash. The Parkers were more than happy to pay Mr Wakeling in cash. Mr Wakeling then started work on the deck, on 26 November 2012.
Mr Parker says he became concerned that the job was too big and too complex for his cousin, around the time that the respondent started to do the footings for the deck posts. Mr Parker thought these holes to be much too shallow, and he raised that concern with Mr Wakeling. Yet, Mr Parker says that the respondent assured him that the footings would be okay. Rather than have an engineer inspect the footings, before the concrete was poured, Mr Wakeling took a quick photograph on his mobile phone, and then proceeded to pour the concrete. Mr Parker was quite concerned by that.
From that point forward, Mr Parker’s concerns only mounted. He says that it soon became quite clear to him that Mr Wakeling really had no idea about what he was doing, and that he did not seem overly keen to be working on this job. Mr Parker said that oftentimes Mr Wakeling was late to arrive on site and then quick to leave, and not much progress was made in between. As the deck was constructed there were obvious signs of poor workmanship, and some very obvious departures from what was shown on the approved plans.
Although the plans show a roof and an enclosed area over the stairs, Mr Parker says that as a result of all the issues and difficulties that had already arisen by that stage he instructed Mr Wakeling not to construct these elements.
Towards the end of the job, at a point where Mr and Mrs Parker had already paid Mr Wakeling all but $1,400.00 of the full amount quoted, they say that Mr Wakeling just abandoned the job. Mr Parker then had to arrange for Mr Town to come and complete the deck. Mr Town told them that the deck would need to be almost fully demolished, in order to remediate it.
Mr and Mrs Parker have since paid Mr Town $32,486.67, a figure that is clearly a good deal higher than Mr Town’s original quote and a figure that is far higher than the amount that was paid to the respondent. The evidence before the Tribunal does not explain the difference, yet I infer it to be as the result of extra works performed by Mr Town that were not ever part of the original scope of works undertaken by Mr Wakeling.

The Applicant’s Evidence

Mr Ray Town came to QCAT and gave evidence for Mr and Mrs Parker. His evidence before the Tribunal consisted of his explaining, in some detail, all of the instances of poor workmanship that he had discovered in the respondent’s deck construction, as well as the steps that were required to rectify these. A list of the problems described by Mr Town in his oral evidence has also been documented in an undated letter filed as evidence before QCAT that was originally sent by Mr Town to Mr and Mrs Parker. Although it is not necessary for me to traverse the entire list of defects identified by Mr Town, it bears stating that the defective aspects of the deck found by Mr Town were very extensive. Wrong materials were used; numerous aspects of the deck did not comply with the structural requirements of the Building Code of Australia (BCA); and numerous instances of very poor workmanship were detected. In some instances, poor construction techniques have lead to other, consequential problems, such as water ingress, thus causing damage to other parts of the building.
Mr Town summarised his evidence by stating that in the 39 years that he has worked as a builder he had never before come across a deck that had been as poorly constructed, as was this one. Mr Town informed the Tribunal that his impression was that the deck had been constructed by an inexperienced person, one with insufficient experience to know how to make the on-site adjustments that are inevitably necessary in order for the deck shown on the plan to marry with the existing house. When it was put to Mr Town that Mr Wakeling was a qualified carpenter, he said that this did not surprise him, yet nor did it alter his impression. In his experience, newly qualified tradesmen still do not tend to have the experience necessary to be able to take on a construction as large as this one - at least not without guidance from an older, more experienced tradesman.
Mr Town told the Tribunal that the steps required by him and his workers to remediate the deck were time consuming. Certainly, it took far more time to rebuild the deck, than would have been the case had Mr Town been asked to construct the deck in the first place. This contributed to the cost for Mr Town to reconstruct the deck. Mr Town also told the Tribunal that quite a lot of the materials that Mr Wakeling had previously used could not then be salvaged, for re-use by him.
A set of colour photographs was put into evidence. The significance of each of these was explained to the Tribunal. It is very clear from the photographs that many aspects of the original deck construction were undertaken quite poorly.
In addition to calling Mr Town, Mr and Mrs Parker also obtained an expert report from a firm of building consultants, Jeffrey Hills & Associates. The Jeffrey Hills & Associates report was given by Mr Blair Ripley, who is a senior building inspector employed by Jeffrey Hills & Associates. Mr Ripley came to the Tribunal and gave some oral evidence, and his report was also received before the Tribunal. His findings and conclusions were consistent with the opinions previously expressed by Mr Town. Although I will not repeat all of the content of Mr Ripley’s report, it is salient to note some of his key findings:
Set Out – although the plans specified a deck that was to be 7.22 metres long and 5 metres wide, the deck - as constructed - turned out to be 6.795 metres long, and 5.24 metres wide.
The external stairs to the deck - had been installed in the wrong location and not in accordance with the approved plans.
The concrete footings – none of these conformed to the approved plans, and all of these are structurally inadequate.
The steel posts – two of the five steel posts used in the deck construction were not galvanised (as required by the approved plans), and nor were these of the required gauge. The diagonal bracings used on the steel posts did not meet the specification required by the plan, because these were constructed using plain black steel, and because they are undersized, and thus structurally inadequate.
The timber decking did not comply with the plans or the Building Code of Australia and had been very roughly installed.
The roofing framework had been poorly constructed, and was inadequate. The rubber ‘deck tight’ seals around the posts protruding through the house roof were all undersized, and had been forced into position, thereby splitting and ruining them. There was evidence of water ingress into the house as a consequence, as well as evidence of substantial water damage.
The stair treads were too narrow, and did not conform with the approved plans. The ‘rise and go’ of the stairs did not match that specified in the plans and did not conform to the requirements of the Australian Building Code.
The balustrade – had been poorly installed and was not safe.
The timber privacy screens – had been poorly and inadequately constructed.
The French doors onto the deck – had been improperly installed.
The roof beams – some of these were the wrong specification, and none of the beams had been installed in a tradesman-like manner.
In summary, Mr Ripley was of the opinion that the structure of the deck examined by him (prior to the reconstruction by Mr Town) was totally inadequate, and unsafe. Until these matters were properly rectified, it was Mr Ripley’s opinion that the deck that he inspected was never likely to obtain final Council approval.

The Respondent’s Case

Mr Wakeling was self-acting in these proceedings. He did not call any witnesses, and gave only limited direct evidence in response to the claims by Mr and Mrs Parker. Mr Wakeling also asked limited, mostly ineffectual, questions when it came time for the Applicant’s witnesses to be cross-examined. It became quite clear to me that Mr Wakeling was overwhelmed by the Tribunal process, and had considerable difficulty knowing how to conduct his case as the respondent. Because of that, and at least to the extent possible, Mr Wakeling was given assistance by the Tribunal. Mr Wakeling had however filed some written materials, and was largely content to rely upon these documents. I have taken all of these into account.
At the end of it, Mr Wakeling’s evidence informed the Tribunal that he is a self-employed carpenter who had completed his apprenticeship about three years prior to taking on this job. Mr Wakeling wanted to tell me - and I of course accept - that he has never previously had any complaints about the quality of his work.
Very early in the piece when the plans were still being drawn up, Mr Wakeling says that he met with his cousin on site, together with the architect. At that meeting the architect made a number of sensible suggestions, yet almost all of these were vetoed by Mr Parker, who was intent not to spend money if that could be avoided. Mr Wakeling says that this became the ‘defining theme’ for the whole job. As part of that, Mr Parker told him that he already had three old steel posts that he wanted re-used and Mr Wakeling says that after the architect had discussed the matter with the engineer, the steel posts that Mr Parker had provided were approved for use in the project. The architect also told them both that there were many aspects of the job that would become ‘challenges’ during the construction and these would need to be resolved, as the job proceeded.
However, once the job had started, Mr Wakeling says that his cousin was “in the driver’s seat”, and made the all the key decisions; and that Mr Parker was dealing directly with the architect. At that time it also became very clear to Mr Wakeling that Shane Parker would ignore any advice in relation to structural issues if he felt the advice to be too expensive. Mr Wakeling essentially said that the way that the job unfolded, his role became a limited one - to order the materials using his trade account, and to perform carpentry tasks - and that he never actually got to properly control the project, which was being run by his cousin.
In relation to the footings, Mr Wakeling says that the problems were caused by the fact that the architect had recommended that all of the existing slab work underneath the deck be removed, yet Mr Parker refused to do that, because of the cost. When it came time for him to dig the footings Mr Wakeling says that he told Mr Parker that the holes needed to be dug and then left exposed for an engineer to inspect, yet Mr Parker was not happy with the delay and insisted that Mr Wakeling proceed to pour the footings, even before these had been inspected; hence the reason that he had used his mobile phone to take a picture of the holes, before the concrete was poured.
Throughout the job Mr Wakeling says that it was an absolute struggle for him to be paid by his cousin. On the first day Shane Parker even offered his jet ski, in lieu of cash, yet Mr Wakeling refused, because he really needed the money.
Mr Wakeling also said that there were no problems with any of the materials that he had supplied, as all of these had been supplied brand new, directly from Bunnings. He had provided a copy of the approved plans to the building rep at the trade desk at Bunnings, who then did a ‘materials take-off’ directly from the plans, and the materials were then delivered direct to site by Bunnings. On this basis, Mr Wakeling says that all of the materials ordered by him were to the engineer’s specification. Mr Wakeling therefore says that any of the materials that were used in the construction of the deck that were later found not to conform with the requirements of the Building Code of Australia must therefore be those materials that Mr Parker already had on site, and that Shane had insisted needed to be used in the project, in order to save money. An example of that is provided by the stairs, as Shane Parker requested that Mr Wakeling re-use the old stairs, rather than have him build a new set.
Although Mr Parker had assured Mr Wakeling that he would work on the job as a labourer, Mr Wakeling says that Mr Parker was frequently either unavailable, or unwilling to work, as promised. As the job progressed, Mr Wakeling says it became harder and harder for him to receive any payments. When invoices were submitted, Shane would sometimes pay less than the invoiced amount. Mr Wakeling says that things became so financially desperate for him that he reached a stage where he could not even afford to pay his own phone bill. By the end of January Mr Wakeling says that he was forced by financial circumstances to walk away from the job, despite his still being owed about $1,400.00.
Although Mr Wakeling admits that the deck is a different size to the approved plans, Mr Wakeling also says that the changes to the deck’s dimensions were made with the agreement of Mr Parker.
In summary, and although acknowledging that this job ultimately turned out badly, Mr Wakeling says that this was the consequence of confounding circumstances, mostly beyond his control, including:
·       Mr Parker wanting the deck to be built as cheaply as possible;
·       the Parkers’ failing to pay in a timely manner, thus creating extreme financial difficulties for him, thereby making it exceedingly difficult for him to perform the job properly, oftentimes forcing him to look for other work whilst he should have been working on this job;
·       Mr Parker failing to work on the job “as an extra set of hands”, in the manner promised, and then asking Mr Wakeling to do a number of additional jobs (for no extra payment), including the removal of a tree and breaking up and removing an old concrete path;
·       Mr Parker insisting that Mr Wakeling use, wherever possible, second-hand materials, from a stockpile of old building materials that Mr Parker had accumulated for these purposes in his backyard; and
·       Mr Parker being highly interventionist and insisting that Mr Wakeling adopt a number of cheap, expedient “workarounds” (in the process necessitating departures from the requirements of the approved plans), rather than allowing him to get on and do the job properly.
·       Mr Wakeling not even being allowed to employ his own labourer, with Mr Parker insisting that Mr Wakeling employ his own friend, Mr Andrew Sirs.
At the end of it, I feel that I have no alternative other than to accept the uncontested evidence of Mr Town and Mr Ripley in relation to the quality of the deck construction. This deck was very poorly constructed, and it did need to be demolished.
Although I accept the evidence of Mr Wakeling about the problems that were caused for him by his cousin Shane Parker, it seems to me that he must still take primary responsibility for the outcome, as he was the licensed tradesman who had agreed to take on the job. In my assessment, this job was just too big for Mr Wakeling, and probably beyond his level of experience at the time. Had he been a more experienced tradesman, then I think Mr Wakeling would have had the insight to know that what was being expected of him by his cousin was totally unreasonable, and a recipe for problems. I do have a great deal of sympathy for Mr Wakeling. My clear impression is that Joanne and Shane Parker were absolutely intent on constructing the deck as cheaply as possible, and that many of the inadequate aspects of this deck are directly attributable to their insistence that the deck be constructed quickly and cheaply. It also seems clear to me that Mr Wakeling was trying to do his cousin a favour by pricing the job so modestly, and that has now come back to haunt him. It also seems clear to me that Mr Wakeling had insufficient control over the course of the job and that Mr Parker has the type of personality wherein he was able to completely dominate his cousin, insisting that Mr Wakeling proceed in a direction where another tradesman – perhaps one with a stronger personality - may have been able to refuse to go. Mr Wakeling did not stand up to his cousin, yet as the licensed tradesman, should have.
At the end of it, I cannot therefore escape from concluding that the standard of the carpentry works performed by Mr Wakeling was below that which ought to have been expected from any carpenter, even one who has only recently qualified in his trade.

Mr Wakeling was only paid $5,400.00 for labour and the rest of the monies charged by him ($14,667.84) were for materials. When the deck was reconstructed by Mr Ray Town the cost to Mr and Mrs Parker was initially quoted as $16,416.50 yet ultimately it appears to have cost the Parkers far more than this, given that their claim against Mr Wakeling is now for $24,389.58, and Mr Town was ultimately paid a sum more than $32,000.
Although Mr Town’s evidence was that a lot of the materials that Mr Wakeling had originally used could not be recycled, it is still the case that Mr Town did try and re-use as much of the original materials as possible, although there is no evidence before me regarding the extent to which the deck was rebuilt using the existing materials supplied by Mr Wakeling. Equally, I accept that Mr Parker insisted on Mr Wakeling using some materials that were not suitable, such that the Applicant must carry some responsibility for some of the problems found with the materials used in the deck before it was reconstructed. Both these factors must be kept in mind when determining an appropriate sum for compensation.
The claim against Mr Wakeling is for $24,389.58. This is more than Mr Wakeling was ever paid for this job, and the basis for that figure is not sufficiently clear to me, given that Mr Town was then paid a higher amount again.
For reasons that I have made clear in preceding paragraphs, I am of the view that the applicants must share some of the responsibility for the circumstances that gave rise to this disastrous deck construction. In my assessment, the appropriate apportionment of responsibility is to initially find Mr Wakeling 70% responsible for the poor outcome and to hold the applicants (or at least Mr Parker) 30% to blame for the poor outcome. Given that it is clear that some of the materials supplied by Mr Wakeling were then later re-used by Mr Town and some of the problems also arose as the result of Shane Parker insisting that his cousin use inferior materials in some aspects of the construction, some further adjustment then becomes necessary in order to do justice between the parties and so as to ensure that the applicants do not now benefit from a windfall. Doing the best I can, on limited evidence, I make that allowance by further adjusting the apportionment, to become instead only 60:40, in favour of the applicant. Then, in my assessment, the appropriate figure for crystallising the actual compensation sum is the lower figure originally quoted by Mr Wakeling ($21,467.84); given that the higher sum now claimed by the applicants has not been sufficiently particularised before the Tribunal.
Accordingly, the respondent should now be required to pay the applicants 60% of $21,467.84, or in other words $12,880.70. The applicants also seek their legal costs of this claim, including some solicitor’s fees, as were incurred by them. During the hearing, as well as during all steps taken before the tribunal after the initial filing of the application, the parties were self-represented. Accordingly I will not allow any solicitor’s fees as part of an award of costs, and I fix the applicant’s entitlement to costs at the amount of their QCAT filing fee, only: being an amount of $285.

Orders

I order that the Respondent now pay to the Applicants the sum of $13,165.70 within 60 days of the date of these orders.