Performance Pool Equipment v Foster - [2013] QCAT 267

CITATION:

Performance Pool Equipment v Foster [2013] QCAT 267

PARTIES:	PERFORMANCE POOL EQUIPMENT (AUSTRALIA) Pty Ltd (Applicant)
v
ROBERT FOSTER (Respondent)

APPLICATION NUMBER:

BDL045-13

MATTER TYPE:

Building matters

HEARING DATE:

3 June 2013

HEARD AT:

Brisbane

DECISION OF:

R F King-Scott, Member

DELIVERED ON:

24 June 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondent pay the Applicant the sum of $4,490.00 by 4.00 pm on 31 July 2013.

CATCHWORDS:

CONTRACT – where variations not in writing and not authorised – apparent authority of wife.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Be Salisbury, Director of Performance Pool Equipment (Australia) Pty Ltd

RESPONDENT:

In person

REASONS FOR DECISION

Mr Robert Foster contracted with Performance Pool Equipment (Australia) Pty Ltd [“PPE”] to build a pool at his residence at 390 Cardena Court, Augustine Heights.
Mr Foster met a salesman from PPE at the Home Show and asked for a quote. A site visit was made and a quotation was provided to Mr Foster. The salesman, Peter Irvine [who did not give evidence] allowed in the quotation a sum of $2,000 for an excavation allowance. Mr Foster, in evidence, said that he was not satisfied that amount adequately covered the potential costs of excavation and had Mr Irvine change the estimate to $3,000. Subsequently, that found its way into the contract as Item 7 which was the estimated cost of standard excavation to accommodate the structural shell together with the cost of carting any excavated material to a suitable “free cost” tip site located within 5kms by road from the site. It was a provisional sum.
The contract, which was a Master Builders’ Pool Building Contract, was signed by the parties on or about 14 May 2012.
The registered proprietor of the land at Cardena Court, Augustine Heights was Robert Foster. His wife, Samantha, was neither a registered proprietor nor a party to the contract.
Work commenced on 24 July 2012 and progressed to Stage 4 which was coping and tiling. Stage 1 [completion of excavation and delivery of reinforcement to site] and Stage 2 [completion of structural shell and internal plumbing] were completed and paid for subject to a variation in respect of the excavation costs which I will refer to later.
Stage 3 [delivery of filtration and/or equipment] has not been performed or paid for.
Stage 4 [completion of coping and/or tiling] has been completed but not paid for and is subject to dispute.
Stage 5 [completion of internal lining and initial chemical treatment] also has not been performed nor paid for.
The contract sum for the pool works was $35,000. I am advised by the Applicant and it is not disputed by the Respondent that to date $22,750 has been paid.
The works under the contract have been suspended from about 7 November 2012. The Respondent, by Notice dated 8 November 2012, has terminated the contract.
The initial Application in this matter was for payment of the sum of $11,318.25 which essentially comprised the cost of variations as well as the hire cost for temporary fencing which remains in place to this day and is incurring a charge of $110 per month.
The first disputed variation is found in Invoice #530 and refers to “Variation to pool construction contract (changed or additional works – excavation overburden above contract allowance)”. The Invoice is dated 30 July 2012 and the amount claimed is $1,529.25.
Clause 12 of the contract provides for variations by agreement. It requires that variations be reduced to writing and signed by the parties.
Clause 12.3 provides:
The parties may agree to vary the Works by adding or omitting work from the Works.
The Contractor must ensure the parties agreement to vary the Works is put in writing in a variation document signed by the Contractor and the Owner within the shortest practicable time and before any work the subject of the variation is carried out.
Mr Salisbury gave evidence on behalf of the Applicant, candidly stating in his evidence that he did not give written notice of the variation to Mr Foster. He thinks he may have given it verbally and cannot recall that he received any negative response. Mr Foster says he was not given notice of this additional sum.
It seems to me that in the circumstances it is not recoverable.
Invoice #783 relate to a further variation described as “Variation to pool construction contract change to additional works – extra steel supply and placement raised block for costs for engineer site visit to advise engineering plan”. The amount claimed is $704. The Invoice is dated 2/11/12 but Mr Salisbury said in evidence that this work took place very early in the pool construction. He said he was concerned about workplace health and safety requirements and unilaterally decided to have this work carried out. Again, he quite candidly said he could not recall whether he verbally raised it with Mr Foster or not, but it does not appear that he referred to the amount being claimed.
I have no hesitation in determining that it was not raised with Mr Foster and as it has not been reduced to writing nor proper notice given nor the consent of the Respondent obtained, that it is not recoverable.
The next issue relates to Invoice #716 described as “Variation to pool construction contract change to additional works as per email 22/08/12 – water line tiles stacked stone to water feature face and additional to retaining walls”. The amount claimed is $5,035 which comprises $1,195 for the water line tiles, $1,405 for the stacked stone for water feature and $1,638 for the retaining wall.
Variations were sought by the Applicant for these additional costs in emails starting on 14 August 2012, with an email from Mr Salisbury to Mr Foster advising him where he could see a colour selection on-line and other information. Mr Foster responded on 15 August 2012 saying in respect of the coping tiles that he wanted confirmation that they were within the allowed price, but accepting the stacked stone for water feature and the water line tiles. In relation to the retaining wall, he requested limestone cover.
Mr Salisbury responded on 22 August 2012 with further details and costings.
Not included in that email trail was an email subsequently tendered by Mr Foster where Mr Foster responded to the 22 August 2012 email stating:
Ben, I am currently in the UK. No hurry. Will sort when I get back in a couple of weeks.
Mr Salisbury responded to the effect:
Hi Robert – no problems. Have a safe trip. ... Ben.
The Applicant says that the variation prices were accepted by an email from Sam Foster to Mr Salisbury dated 18 September 2012 which was in response to an email from Mr Salisbury of the same date asking for acceptance of the variations as he wanted to “push forward to completion of your pool”.
Sam Foster said in her email:
We are happy to move forward with the variations and can confirm we would prefer square edge coping tiles.
Mr Salisbury says he copied Mr Foster in respect to these emails; however, the ones from his iPhone do not confirm this to be the case. Mr Foster says that whilst in the United Kingdom, he did not have email facilities.
I should interpolate here that in response to a sudden family crisis Mr Foster was required to travel to the United Kingdom. He was away for some six weeks or so.
Mr Foster says that his wife, Sam, did not have authority to bind him in respect of the contract. I take account that the contract is for the family home and that Mr Foster and his wife live there with their children. Mr and Mrs Foster have the benefit of the work and materials for which this amount is claimed. They are not estranged and, if need be, I would find that his wife had ostensible authority to act on his behalf.
The Domestic Building Contracts Act 2000 (the Act) applies to the pool construction. The variations relied on in the email trail do not comply with the contract or Part 7 of the Act as they are not signed by the owner or the builder for that matter. I do not consider the builder can recover under Section 84 of the Act.
I therefore disallow the amount of $5,035.00.
The costs of stage 4, which I was advised was completed, was $3,500.00 I allow that sum.
The cost of fence rental I also find recoverable and allow that up to the end of July 2013. At $110.00 per month that amounts to $990.00.
The Applicant filed an Amended Application on 27 May to include a claim for damages for breach of contract being the loss of expectation. The amount remaining in the contract for Stages 3, 5 and 6, less the cost to complete the swimming pool. The amount claimed is $2,129.04.
I am not prepared to allow damages for the loss of expectation under the contract because, in my opinion, the Applicant was responsible for the contract not reaching completion, because of the disputed unauthorised variations.
Therefore, the Tribunal orders Robert Foster pay Performance Pool Equipment (Australia) Pty Ltd the sum of $4,490.00 by 4.00 pm on 31 July 2013.