Peachey v Carroll - [2020] QCAT 415

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Peachey & Anor v Carroll [2020] QCAT 415

PARTIES:
ROBERT JOHN PEACHEY

JODY LEE PEACHEY

(applicants)

v

CRAIG THOMAS CARROLL

(respondent)

APPLICATION NO/S:

BDL247-18

MATTER TYPE:

Building matters

DELIVERED ON:

3 November 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1. The respondent must pay the applicants the sum of $15,879.74 by 4:00pm on 30 November 2020.

2. The respondent must pay the applicants’ costs of and incidental to this application fixed in the amount of $965.25 by 4:00pm on 30 November 2020.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where contract to construct a swimming pool – where contract included tiling around the pool - where tiling on slab around the pool was defective – where applicants claim cost of rectifying defective work – where applicants claimed costs of the proceedings

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 2

Queensland Civil and Administrative TribunalAct 2009 (Qld), s 107

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 20 September 2018 Robert Peachey filed an application for a building dispute against Cozy Pools and Spas claiming an amount of $15,000 for rectification costs of defective work relating to the installation of granite tiles surrounding an inground swimming pool. Jody Peachey was joined as an applicant on 9 May 2019.
The application seeks the “removal and replacement of defective granite pool surround tiles” on the basis that the “contractor and independent expert all agree tiles have been laid incorrectly causing tiles to be stained”. The response filed by Craig Carroll t/as Cozy Pools & Spas seeks by way of counterclaim all amounts outstanding under the contract, totalling $9,383.66. It appears from the material filed, that the amount now outstanding under the contract is $1,000.
The issue in dispute relates to whether the tiling was defective work and whether, if so, Mr Carroll is responsible for the cost of rectifying that work.
Background
Mr Peachey and Mr Carroll entered into a contract for the construction of a swimming pool at Mr Peachey’s residence in Annerley on 22 June 2017. Construction of the pool commenced on 14 September 2017 and was completed on 11 July 2018.
The contract was for $78,688.00 and included a final payment of $1,000 upon practical completion. This amount remains unpaid as Mr Peachey maintains that the works have not reached practical completion, given Mr Carroll’s failure to comply with clauses 17.1, 17.3, 17.5, 17.6 of the contract.
Mr Carroll sub-contracted the tiling. The tiling surrounding the swimming pool was performed by Nu-Tiling and Pool Renovations (the sub-contractor). It was agreed by the parties that Mr Peachey had sealed the tiles, the subject of this proceeding, with a breathable sealer recommended and supplied by the supplier of the granite tiles.
On 14 December 2017 Mr Peachey first noticed issues relating to the appearance of the tiles surrounding the pool, which Mr Peachey considered looked “stained”.
A representative of Mr Carroll’s attended the site on 5 April 2018 and, according to Mr Peachey, said that the “marks would fade over time”. On 31 July 2018 the sub-contractor offered to replace 10 tiles. Mr Peachey sent photos of the impacted tiles by text message to the sub-contractor, explaining that all the tiles surrounding the pool were affected and that the replacement of 10 tiles would not be sufficient to remedy the defect.
On 9 June 2018 Mr Carroll forwarded a letter from the tile supplier which stated that the colour variation in the tiles had been caused by the sealer. The sealer had been applied by Mr Peachey.
On 21 November 2018 Mr William Pullar, a QBCC Inspector, attended Mr Peachey’s premises to inspect the pool and surrounding tiles. A report was written by Mr Pullar dated 27 November 2018. The report states:
The Owner identified that although reflective staining to the surface of the tiling was initially evident to a small portion of the tiles the marks were now visible to the surface of most of the tiles laid on the slab beside the pool.
The granite tiles installed directly to the pool coping immediately around the pool did not show reflective staining.
The Contractor stated at the Inspection that the underlying slab beside the pool had been installed with no falls. A cement based bed had been installed on top of the slab to provide a fall to the granite tiling towards the swimming pool and the tiles laid on the bed.
It was concluded at the Inspection that the reflective staining to the granite tiles was efflorescence from the cement based tile bed installed beneath the tiles, and the notched trowel pattern to the surface caused by differing levels of absorption of salts from the bed through the adhesive as a consequence of installation methods used by the tiler.
The installation of the natural granite tiles to the slab beside the swimming pool has not been completed to a standard of workmanship and finish expected of a competent holder of a Trade Contractor’s Licence as reflective staining is visible to tiles throughout the installation resulting in an unattractive and unacceptable appearance.
The QBCC issued a Direction to Rectify to Mr Carroll on 3 December 2018 which required the tiling to the slab to the swimming pool to be rectified and all disturbed areas made good, by 22 January 2019.
On 20 November 2019 the Tribunal directed that Mr and Mrs Peachey file a statement addressing a number of issues, including whether the defective work had been rectified and, if it had not, details of the anticipated cost of that rectification work or, if the work had been rectified, evidence of payment of the rectification costs. In response, Mr and Mrs Peachey filed a statement which said that the defective work (the tiling beside the pool) had not been rectified and that the anticipated cost to rectify the defective work was $15,879.74. In support of the anticipated cost, a quotation from Perc Tiling was provided (No 3204) for the work for $11,429 and a second quote from Perc Tiling (No 3205) for the cost of 40m² of light grey granite paver tiles for $3,326.40. The quotes from Perc Tiling did not include cleaning of the finished product. An invoice from Australia Blue Pty Ltd (Invoice no 00001887) was provided for $1,124.34 for the cost of cleaning the stone and sealing it with Intensifia. The amounts total $15,879.74.
Mr and Mrs Peachey also include as an attachment to their statement an invoice from All Building Law for $965.25, being costs they have incurred in the course of these proceedings.
There has been no material filed by Mr Carroll since the filing of his response in October 2018, despite Tribunal directions requiring him to file statements of evidence by 3 April 2019 and, due to non-compliance, by 16 August 2019. Mr Carroll also failed to attend the compulsory conference held in this matter on 6 February 2019.
On 20 November 2019 the Tribunal directed that if Mr Carroll did not file his statements of evidence by 11 December 2019 that Mr and Mrs Peachey may be entitled to a final decision in the proceeding. Further, that if they are entitled to a final decision as a result of non-compliance by Mr Carroll with the directions, that the matter will be determined on the papers, without the need for an oral hearing.
Consideration
The Tribunal has jurisdiction to determine the application pursuant to s 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld)[1] and has the power to award damages, in this case, for the cost of remedying defective work.[2]
[1]See definition of ‘domestic building dispute’, Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld).
[2]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3).
I am satisfied that the tiling on the slab around the swimming pool was defective for the reasons set out by Mr Pullar of the QBCC.
I am also satisfied that this work was included in the contract for the construction of the inground swimming pool entered into between the parties.
Further, I accept that the works to rectify the defective tiling will cost in total $15,879.74 based on the quotations provided.
It has been necessary for Mr and Mrs Peachey to bring these proceedings. As matters transpired, Mr Carroll did not attempt to defend them. In the circumstances I order that Mr Carroll pay Mr and Mrs Peachey’s costs of and incidental to the application, fixed at $965.25.[3]
[3]Queensland Building and Construction Commission Act 1991 (Qld), s 77; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 107.
Accordingly, I order that Mr Carroll pay $15,879.74 in damages and $965.25 in costs to Mr and Mrs Peachey by 4:00pm on 30 November 2020.