Pelham v Keko

[2021] QCAT 363

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pelham v Keko and Anor [2021] QCAT 363

PARTIES:

ROSS HENRY PELHAM AND TAMI SHAN PELHAM

(applicant)

v

JOHN OLE KEKO
BLACKSTORM ENGINEERS PTY LTD

(respondent)

APPLICATION NO/S:

BDL152-20

MATTER TYPE:

Building matters

DELIVERED ON:

3 September 2021

HEARING DATE:

23 August 2021

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal orders:

1.   Blackstorm Engineers Pty Ltd be joined as a respondent;

2.   The respondents pay the applicants the sum of $2,380.80 by 4:00 pm 15 October 2021

CATCHWORDS:

CONTRACTS – CONSIDERATION – FAILURE OF CONSIDERATION – where homeowner commissioned engineering drawings which were wholly unsuitable and unusable – where homeowner engaged other engineers to complete the task.

Queensland Building and Construction Act 1991. (Qld) Schedules 1B and 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Baltic Shipping Company v Dillon [1993] 67 ALJR 228

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

1. Ross and Tammy Pelham (the homeowners) are claiming a refund of professional fees of $2,860.00 paid to John Ole Keko, a structural engineer, they engaged to provide engineering drawings in respect of the home they were having constructed.

2. The homeowners allege that the drawings that were provided including several revisions were useless for their purpose. They could not be interpreted by the trades they engaged to quote on various aspect of construction. It is alleged that, eventually, they engaged another structural engineer who carried out the task successfully, promptly and at half the price.

3. They also seek an order that Mr Keko be restrained from advertising services for residential designs. Costs are also claimed.  

Jurisdiction

1. The Queensland Building and Construction Act 1991. (Qld) (QBCC Act) defines ‘domestic building dispute’ as including a claim arising between a building owner  … and an engineer …’.[1] ‘Reviewable domestic work’ means domestic building work under schedule 1B, section 4, except that for applying schedule 1B, section 4(8), the definition excluded building work under the schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition.[2] The excluded building work referred to as excepted includes ‘(b) design work carried out by an architect, engineer or draftsperson’ and (c) the preparation of plans, specifications or bills of quantity for carrying out domestic building work’.[3]

   [1]Schedule 2 (Definition of “domestic building dispute”) QBCC Act.

   [2]Ibid, Schedule 2

   [3]Schedule 1B section 1

2. Although, the claim here is modest, it is not a minor civil dispute within the meaning of the definition as it is excluded as the QBCC Act confers jurisdiction on the Tribunal.[4]

   [4]Queensland Civil and Administrative Tribunal Act 2009 (Qld) Schedule 3 Minor Civil Dispute ss. (2).

3. I am satisfied that this is a building dispute and that the Tribunal has jurisdiction to hear it.

History

1. Mr Keko responded to the homeowners’ advertisement for a structural engineer to do a slab design for the home they were constructing at Eli Waters.  They wished to have the engineering drawings completed before Christmas 2019 to enable them to obtain quotations from the various trades that would be involved. Ms Pelham said Mr Keko told her he could meet that deadline.

2. The homeowners provided their house plans prepared by a drafting firm. On 18 December 2019 they received a quote. It read, in part, as follows:

1. Structural engineering design such as slabs, footings, tie down and bracing And issue of RPEQ Engineer Form 15 in accordance with Professional Engineers Act 2002 (QLD), QBCC, Building Code of Australia and relevant Australian standards

·     AS 3600-2009 – Concrete Structure Code

·     AS 4100 – Steel Structures

·     AS 1684.2 – 2010 Residential timber framed construction

·     AS 2870 – 2011 Residential Slabs & Footings

$3,200.00

2. Final site inspection and issue of RPEQ Engineer Form 16 in accordance with Professional Engineers Act 2002 (QLD), QBCC, Building Code of Australia and all of the above mentioned Australian Standards

$750

1. The above quotation was amended and the price adjusted to $2,600.00 plus GST, when it was pointed out to Mr Keko that it was a steel construction, the reference to “AS 1684.2 – 2010 Residential timber framed construction” was then deleted.

Correct Respondent

1. Both quotations were provided by Blackstorm Engineers Pty Ltd. The quotation contained conditions of sale that the quote was valid for 7 days with delivery in 5 working days.

2. Nearly all discussions were had with Mr Keko and correspondence although on Blackstorm Engineers Pty Ltd letter head are signed by Mr Keko as principal engineer.

3. The domestic building dispute application filed by the applicants identifies ‘John Ole Keko of Blackstorm Engineers’ as the Respondent. No issue was taken by Mr Keko that the respondent is not correctly identified in the application.

4. The Tribunal can make an order joining a party to a proceeding on its own initiative.[5] It would be consistent with the object of the Tribunal of justice and fairness that Blackstorm Engineers Pty Ltd be joined as a party. To do so, in all the circumstances, would not cause the compony any prejudice.

   [5]S.42 QCAT Act

5. Therefore, I order that Blackstorm Engineers Pty Ltd be joined as a party to the proceedings.

The Respondent’s case

1. Mr Keko’s defence was that there was nothing wrong with the drawings. He criticised the house plans he had been provided, yet did not voice that criticism at the time, but only after the dispute arose.  He stated in his response that the drawings that were provided were not the final set of drawings and were not signed and therefore could not be relied upon. He relied upon the drawing book instructions on the drawings. He was asked to identify these notes whilst giving evidence a circled in red what he was referring to. What he circled were these notes:

   DESIGN REPEAT NOTE

   The design represented within this set of drawings is for an individual building. It cannot be used again on another site, without prior checking with designer. This applies also to all consultant documents that support these drawings.

   SET of DOCUMENTS NOTE

   The builder is advised to provide a full set of these drawings to all supporting trades and suppliers, so that each has full knowledge of the project. If separated, the builder to ensure the recipient has all necessary drawings.

2. The notes circled appear to have no relevance to the issue of their suitability

3. Payment of the $2,860.00 was required in advance. The homeowners paid the said sum.

Consideration

1. On receipt of the plans the homeowners noted some glaring errors. For instance, the floor height between the house was 800 mm when the plans showed it be 100 mm. The house was drawn in full brick veneer when walls were described in the plans as Apex Baybridge 200 series ivory coloured block walls, smooth finish with approved clear waterproof finish. The concrete slab had been increased from 100 mm to 125mm. Other discrepancies were identified by the homeowners and discussed with Mr Keko.

2. The drawings were questioned by the concreters who were asked to quote as they made no reference to how the steel was to connect the bock work to slab or footings. There was also confusion as the drawing showed both an edge beam design and a footings/blockwork design. 

3. In response to enquiries about these discrepancies Mr Keko replied in an email:

   In engineering design we have concept design, preliminary design, issue for council approval, issue for construction, amendment during construction and issue As-Constructed

4. Ms Pelham says that Mr Keko offered to send her house designer drawings that he worked with that were straight forward and he do not have to guess the preferred outcome. This indicated to Ms Pelham that Mr Keko did not understand the house plans. She then sent him a 3D drawing to assist him in understanding what the house looked like.

5. After several revisions the drawings were presented to a concreter who advised them that the plans were drawn with not much thought and did not make sense, they were missing details, and the design was unusually difficult. He volunteered to speak to the Blackstorm Engineers and did so. Mr Keko accused him of threatening and racial abuse and refused to talk further with him. Ms Pelham said other contractors who were asked to quote were critical of the drawings.

6. Unfortunately, the engineers who subsequently prepared drawings were not called to give evidence and did not provide a statement, although their drawings were in evidence.

7. I am cognisant of the objects of this Tribunal which are, inter alia, ‘to deal with matters in a way that is accessible, fair, just, economical, informal and quick ...’.[6] However, even the relaxation of some of the procedural and evidential formalities required of a court of record contained in s.28 of QCAT Act does not overcome the requirement to prove one’s case. Although there are obvious deficiencies in the drawings provided by the respondent, it is not possible for me to determine that there has been a total failure of consideration. Incomplete performance of the contract does not amount to a total failure of consideration as the innocent party has received something for their money.[7] It is not possible for me to determine whether the engineers who subsequently provided drawings received some benefit from the respondent’s documents.

   [6]QCAT Act s. 3 (b).

   [7]Baltic Shipping Company v Dillon [1993] 67 ALJR 228

8. I am satisfied on the evidence that there were many deficiencies with the drawings which necessitated the homeowners engage other engineers, Engineers Plus Pty Ltd, to prepare drawings at a cost of $1,650 inclusive of GST.

9. In addition to a refund of monies paid the homeowners want Mr Keko restrained from advertising services for residential designs. The Applicants have made a complaint to the Board of Professional Engineers of Queensland about Mr Keko’s conduct. That is the appropriate body to consider such matters. I was advised that the Board is still considering the matter. I decline to consider any restraint.

10. Costs of $730.80 are also claimed being filing fees and solicitors’ costs. The Tribunal has powers to award costs pursuant to s77(3) of the Queensland Building and Construction Commission Act 1991 displacing the usual no costs provision in Tribunal matters as provided by s100 of the QCAT Act.

11. I would allow the costs of $730.80.

12. I order the Respondents to pay the Applicants the amount of $2,380.80.