Peter Campbell Landscapes v Stormont
[2010] QCAT 463
•21 September 2010
CITATION: Peter Campbell Landscapes v Stormont [2010] QCAT 463
PARTIES: | PETER CAMPBELL T/A PETER CAMPBELL LANDSCAPES |
| V | |
| DELMA STORMONT | |
APPLICATION NUMBER: | BDL015-09 |
MATTER TYPE: | Building Matters |
HEARING DATE: | 24 June 2010 |
HEARD AT: | Brisbane |
DECISION OF: | Mr Paul Favell |
DELIVERED ON: | 21 September 2010 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The Tribunal orders the respondent pay the applicant the sum of $1965.33 by 4pm 22 October 2010. |
CATCHWORDS: | Domestic Building Contract – defective work – claim for unpaid money |
APPEARANCES AND REPRESENTATION: | Applicant: Mr Peter Campbell Respondent: Mrs Delma Stormont |
REASONS FOR DECISION
Introduction
On or about 20 June 2009 the parties entered into a building contract (“the contract”) to carry out landscape works at a site situated at 111 Sackville Street, Greenslopes.
Factual Background and Claims
The Respondent had engaged the Applicant to complete works on two previous occasions where the same form of contract had been used.
The Applicant claims the Respondent still owes money under the contract.
The Respondent refuses to pay any outstanding money claiming that the work was not of the same standard as the two previous occasions.
Applicant’s Claim
The Applicant claims that under the contract the Respondent was required to pay $39,451.50 in the form of:
(a)a deposit;
(b)progress payments for works completed and works under construction; and
(c)a final payment due on completion.
After receiving the deposit, the Applicant commenced works under the contract on or about 23 June 2009.
As works progressed the Respondent paid the Applicant progress payments of $11,000 and $15,000 on 28 June and 28 July 2009 respectively.
The Applicant claims that $5,451.50 is still outstanding under the contract.
The Applicant further claims $917.78 in extra work that was completed beyond the contract including for soil and bobcat hire. The sum of $245 filing costs is also claimed. The claimant abandoned a further claim of $1,200 and the progress payment invoice claim of 10 August 2009 was varied accordingly as was the amended claim.
Respondent’s Response and Counterclaim
10. The Respondent agrees that she has paid $34,000 under the contract, however claims that she has paid a further $4,342.54 in various costs, leaving a balance of $1,108.96 on the contract.
11. The Respondent claims that much of the work done was unsatisfactory or incomplete which the Applicant has refused to rectify and accordingly the Respondent claims she is not liable to pay the outstanding balance.
12. The Respondent further claims that she is entitled to be reimbursed for the costs of rectifying all defective and incomplete work. The Respondent contends that the cost of rectification is $9,575.35 which exceeds the outstanding balance claimed by the Applicant.
13. The Respondent also claims that she is not required to pay for the costs of the extra work claimed by the Applicant as they were never specified as extra costs or agreed upon before the works were installed.
14. The Respondent further claims that she has already paid for the fencing, gates and soil costs contained within the extra works claimed by the Applicant. The Applicant admits that the Respondent has paid $3,306 which sum he had not taken into account when framing his claim (exhibit 3).
15. I heard evidence from both the Applicant and the Respondent and I accept that both of them were truthful to the best of their recollection and understanding. Unfortunately the contractual documentation was not specific as to the extent of work to be carried out.
16. The contractual documentation was made up of a quote dated 15 June 2009 (exhibit 1) and a document described as “Job acceptance and payment conditions” (exhibit 2).
17. Exhibit 1 included the following words:
“Dear Delma,
Thank you for the opportunity to quote on the landscape works to your property. After my site visits and calculations your investment will be $39,451.50 including GST.
Please find below a breakdown of the proposed works.
Battons around house.
·Cutting off of battons to a suitable height above ground level to limit contact with ground level.
Stormwater and Downpipes
·Repairs to stormwater pipes nearby entry into office.
Swale Drain and Pipe Connection
·Swale drain to be dug above existing brick wall.
·Swale drain to be connected into existing house stormwater.
Clothes Lines
·Supply and install two clothes lines.
·One to existing clothes line area.
·One to garage area for dogs rugs etc.
Driveway Works
·Install 2 x Driveway tracks.
·Install 2 x Garden edges.
·Soil and re-turfing to driveway area.
Gates and Motors (Driveway)
·Supply and install 2 x 1.5m driveway gates.
·Supply and install 1 x 1.0m pedestrian gate.
·Supply and install remote control gate motors.
·Supply and install keypad etc for pedestrian gate.
·Priming first coat of paint to all 3 gates.
·Supply and install intercom etc for pedestrian gate.
Fence to Entry Area
·Supply and install approximately 4m of timber fence to this area 1.2m high.
Side Fence
·Supply and install approximately 28m of timber fence to western boundary, 1.8m high.
Front Fence
·Approximately 10m of timber fence to area near house.
·Gate to match driveway pedestrian gate.
·Priming first coat of paint to gate.
Removal and Dumping of Fences to be Replaced.
Gravel to Side Area, Garage
·Supply and install gravel to two sides of garage.
Supply and Install approximately 4m of fence to existing clothes line area, back porch.
Timber Edge Back Fence Area
·Supply and install approximately 10m of timber edging to this area.
Eastern Boundary Fence Area
·Concrete sleepers or wire to be installed to keep balls and dogs in.
Existing Paved Entry Path.
·Paving repairs to this area.
Existing Red Brick Wall.
·Supply and install best as possible matching brick wall – 11m long x 1.2m high.
Install of Client Supplied Water Feature.
Minor Repairs to Existing Garden Lighting.
Spraying of all Weeds.
Moving of onsite Mulch to Areas Required.
General Clean of Whole Yard on Completion.
If you have any questions regarding any part of the above works please contact me.”
18. Exhibit 2 included the following words:
“JOB ACCEPTANCE AND PAYMENT CONDITIONS
Contractors Copy
·A deposit of $8,000.00 will be required before works commence.
·Payments will fall due for works completed and works under construction.
·Final payment due on completion.
I Delma Stormont have read and fully understand the scope of works, terms and conditions and payment system and agree for words to commence at 111 Sackville St, Greenslopes.”
Signed by Delma Stormont dated 20 June 2009
19. It is convenient to separately deal with each of the items for which payment is claimed and the claims made in response.
20. On 6 October 2009 the applicant made a “Final demand” for payment. That final demand was met by a phone call message seeking work to be done on the gates. On 7 October the applicant wrote to the respondent and advised that on payment of the outstanding demand the gates would be rectified.
21. By a letter dated 18 October 2009 the respondent replied as follows:
“Re: Landscaping issues at 111 Sackville Street, Greenslopes that have either not been finalised or have not been satisfactorily completed by Peter Campbell
1.Cleaning of the cement alleyway between number 109 and 111 Sackville Street.
2.‘Swale Drain and Pipe Connection’: not carried out as requested.
3.Mowing strip on the side of the driveway adjacent to 109 Sackville Street – approximately 5.4 metres short. Turfing approximately 4.4 metres.
4.‘Gates and Motors (Driveway): Gates do not close properly.
5.Existing Paved Entry Path, replacement of border pavers done: replacement of cracked pavers and levelling not done.
6.Existing Red Brick Wall: Devaluation of the feature when the old red brick wall was demolished by the bobcat, and the old red bricks were not used to restore the site where they had been. This side of the steps is now approximately 8 cm lower that the opposite side.
7.Installation of driveway lights.
8.Installation of security locks on the gates to the back yard.
9.Pressure cleaning old brick wall.
Please note:
·The term ‘final payment’ refers to the payment that is to be made after all of the work is performed to satisfactory standard and is acceptable to me. ‘Final payment’ means that no further issues, whatsoever, relating to the work at 111 Sackville Street will be entered into after the date of the ‘final payment’.
·The monetary value of the final payment is yet to be determined, as is the debtor of the final payment.
·Peter Campbell’s written response to this letter is required by 4 p.m. on Monday 2 November, 2009.
·Should Peter Campbell wish to discuss any of these issues, a suitable time must be negotiated, 24 hours notice must be given, and an independent witness must be present at the meeting.”
22. The amended claim by Peter Campbell and the response by Delma Stormont along with my comments is conveniently summarised as follows:
(a)There is a dispute as to whether various battons around the house were cut off to a suitable height above ground level. The respondent contended that one board remains uncut providing a conduit for white ants to enter the house. The applicant conceded that was so and agreed during his evidence that $33 should be allowed for that work to be done.
(b)The contract provided for the construction of a swale drain. I am satisfied that such a drain was constructed. The respondent however contended that it was not as she required it to be built. She wanted the drain to trap storm water coming from the uphill property so that the upper area of her garden had a water source that otherwise would be run-off. She gave evidence that what she wanted was a trench that was to be filled with leaf litter and mulch and at the same time manage the excess run off. Mrs Stormont gave evidence that she had a conversation with Mr Campbell when she replanned what she wanted and said he appeared to understand her intentions. Mr Campbell denies he was told that Mrs Stormont told him she wanted a water retention system or mentioned leaf litter and mulch. The evidence from both the parties is uncertain about what was conveyed or agreed. The quote does however provide for a “Swale drain and pipe connection”. It was to be “dug above existing brick wall” and was “to be connected into existing house stormwater”. I am satisfied that what was set out in the quote has now been done.
(c)Part of the work to be done was the supply and installation of various gates and motors. Mr Campbell gave evidence that the gates and motors were installed and were working after he left the site. Mrs Stormont gave evidence that the gates were not closing properly and she engaged Vellnagel Bros to adjust and fix the gates. I accept that the gates were not working properly and that there were aspects of the work as set out in the Vellnagel Bros Invoice dated 18 December 2009 which required rectification and adjustment. The cost to rectify the gates was $420.00.
(d)Mrs Stormont gave evidence that on occasions the keypad/intercom at the pedestrian gate did not work. Mr Campbell accepted that if the keypad/intercom was not always working it would need to be rectified. Mrs Stormont obtained a quote from K2 Electrical to repair the intercom and fit a new post top and coach light at the front gate and tidy up and terminate spare cabling beside the pond for $396. Mr Campbell correctly contends in my view that the installation of lights at the gate was not part of the contract and accordingly I do not allow the claim of $70 for the cost of the lights. I accept the evidence of Mr Campbell that the cost of rectifying the keypad-intercom should be $150 and I allow that amount as an expense to Mrs Stormont to rectify the work.
(e)Mrs Stormont gave evidence that not all of the garden edges and driveway work was carried out. Mr Campbell accepts that he had to leave some portions uncompleted because of the need to put post holes in. I accept the evidence of Mr Campbell that a reasonable cost to complete the works would be $200 inclusive of GST.
(f)Mrs Stormont claimed that there are portions of the driveway which required further turf and top soil. Mr Campbell admitted the claim of $45 for missing turf. He said that to level the areas in the driveway complained of should cost $105. I accept that evidence.
(g)The contract required the supply and installation of driveway gates. Mrs Stormont complains that the gates do not match the fence and need to be replaced. Mr Campbell gave evidence that the gates are solid timber so dogs could not escape and were picked by Mrs Stormont. Mrs Stormont admitted that she did agree to the gates but only did so because she was told that she could not get the same as the original gates. In my view Mr Campbell has supplied and installed the gates as he was required to do.
(h)Mrs Stormont claimed that keyed locks are required at the gates. Mr Campbell contends that the contract did not provide for keyed locks at the gate. That in my view is correct.
(i)Mrs Stormont claimed the back landing near 4m of fencing installed satisfactorily by Mr Campbell needed repair. She claims the cost of work to the area. Mr Campbell gave evidence that repair to the back landing was not part of the contract. In my view that is correct.
(j)Mrs Stormont claimed that one panel of fencing on the eastern boundary fence area was not done and wire meshing was not done in 2 of the 8 panels of fencing. The photos provided illustrate that to be correct. Mrs Stormont claimed $638 for those items. Mr Campbell contended that $638 was excessive and itemised the work to be done. His explanation was credible and I accept that $80 is a reasonable cost.
(k)The contract required work to be done on an existing red brick wall, namely “supply and install best as possible matching brick wall – 11m long x 1.2m high”. Mrs Stormont complained that when the part of wall to be replaced was demolished, the old red bricks were not used to restore the wall and the repaired side of the wall is approximately 8cm lower than the opposite side. The height difference is evident. Mr Campbell gave evidence that in order to repair the wall it was necessary to demolish the right side of stairs onwards. I accept that evidence. He contended that Mrs Stormont visited the site and selected the bricks with him on the day of delivery to site and was present at the delivery of the bricks. Mrs Stormont accepts that to be correct. Mr Campbell gave evidence that the footings had moved giving rise to the difference in height. I accept the evidence that Mr Campbell did supply and install “best as possible matching brick wall”. Given the involvement of Mrs Stormont, I find the contract has been performed in that regard.
(l)Mrs Stormont claimed for the cost of pressure cleaning the old red bricks. She gave evidence that that was suggested after the work had commenced. Mr Campbell contended that pressure cleaning was not part of the contract. In my view that is correct.
(m)Mrs Stormont claimed that a tap which was part of a water feature installed by Mr Campbell fell off when she was showing the feature to a visitor. I accept that evidence. She claims $110 to rectify. Mr Campbell gave evidence that such a claim is excessive and that the tap could be rectified for $55. I accept that evidence.
(n)Mrs Stormont claimed that a pond light is missing. Mr Campbell denies installing a light or having a light installed. He gave evidence that he did not take any light. Mrs Stormont gave evidence that she did not see Mr Campbell take the light. I do not find that Mr Campbell took the light or had anything to do with any missing light.
(o)Mrs Stormont claimed that new fence installed did not adequately meet the ground and it should be rectified. Mr Campbell gave evidence that the fence was off the ground at places because the fence is a constant height and the contour of the ground varies. I accept that to be so and find that the fence has been constructed as contracted.
(p)Mrs Stormont claimed $9.95 for poison to control weeds growing in an area over which Mr Campbell spread top soil. Mr Campbell did not contest the claim.
(q)Mrs Stormont claimed $957 for paving repairs to damage done by a bobcat used by Mr Campbell. She says Mr Campbell did paving work such that water ponds in the middle of the paved area. However she did not produce evidence of any damage. I accept the evidence of Mr Campbell that he pulled the paving up and re-laid it satisfactorily.
(r)Mrs Stormont claimed a refund of $578.80 because of what she claimed was a overpayment to Chris De Jong. She claimed that such a refund was agreed. Mr Campbell disputed the claim and gave evidence that he did not agree to any refund. An invoice from Chris De Jong was produced but it itemised the supply and installation of a double power point and single power point near the gate as well as a sensor at the front gate together with a transformer and switchboard. Mr Campbell gave evidence that no allowance was made for electrical work but the contract did not exclude electrical work for the installation of the motors included in the contract. He gave evidence that the refund claimed was for work outside of the contract. That seems to be correct. I do not have evidence of Mr De Jong being paid by Mrs Stormont for included electrical work.
23. Based on the original claim by Mr Campbell and his concession that he had not taken into account a payment of $3,306 when framing his claim (exhibit 3) the claim by the applicant is $5451.51 less $3,306 ($2,145.50) plus $917.78 (bobcat and soil extra) namely $3,063.28. I accept that if it were not for defective work or incomplete work the applicant would be entitled to the sum of $3,063.28. I accept that the extra work for the bobcat and soil was requested and the work performed. The applicant is entitled to be paid for that work.
24. Much of the difficulty here arises because of the uncertainty in the scope of work because of the relatively vague nature the contractual documentation. The respondent had a view of how the work was to be carried out and what was to be included. That was not however reflected in the documentation. Subject to what I have said I am of the view that the work set out in the documentation was done. Totalling the amounts allowed as discussed above the sum of $1097.95 should be deducted from the amended claimed sum of $3,063.28. I find that the respondent should pay the applicant $1965.33 and I so order.
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