Phelps v Robel - [2012] QCAT 650

CITATION:

Phelps v Robel [2012] QCAT 650

PARTIES:	Elsie Jennie Phelps
v
Dennis William Lindsay Robel t/as Burleigh Kitchens & Joinery

APPLICATION NUMBER:

MCDO114-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

7 November 2012

HEARD AT:

Southport

DECISION OF:

Paul Favell, Member

DELIVERED ON:

19 December 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Minor civil dispute – Application for rectification of renovation work – whether what was supplied was in accord with contractual terms

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Elsie Jennie Phelps represented by herself

RESPONDENT:

Burleigh Kitchens & Joinery represented by Dennis William Robel

REASONS FOR DECISION

The applicant, Elsie Jennie Phelps, is 80 years of age and is cared for by her daughter, Linda Lorraine Phelps. The respondent, Dennis William Lindsay Robel, was contracted to carry out a number of renovations on kitchens and bathrooms owned by the applicant.
Following a mediation attended by both the applicant and the respondent on 13 February 2012, the issues that remained in dispute were:
a)    The adequacy of the surface of laminex in the kitchens;
b)    Shelf over the refrigerator; and
c)    Vanities in the ensuites.
On each of these points, the applicant seeks an order from the Tribunal requiring rectification of work done.
The applicant accepted a written quote dated 15 May 2011 from the respondent for the supply and installation of a kitchen and vanity cabinets in a bathroom and ensuites in 3 units at Palm Beach.
That quote was incorporated into a written contract dated 15 May 2011 (Exhibit 2).
The quote described the tops in the kitchen as “32mm Postform Tops – colour: Laminex New Antique White” and the doors as “16mm Laminate board – colour: Laminex New Antique White”.
The applicant complains that the respondent used a laminate of two different textures. She says the tops in the kitchen are the correct material – the Laminex Group New Antique White Natural finish No 204 Smooth Finish, but the cupboards and drawers are different in colour and texture to the tops.
The respondent says that the smooth finish is not available for doors and drawers and the available textural finish has a colour variation to the smooth tops.
When the finish was discussed the applicant had produced a sample which had the words “New Antique White Natural finishe Laminex 204” on it. One was a smooth finish. The other side of the exhibit (part of Exhibit 27), which has the world “Phelps” written on it, shows an alternate finish. Exhibit 25 is an example of “33m Post formed Laminex High Pressure Laminate on HMR Particle board, New Antique White.”
Exhibit 26 is a sample of “16mm Laminex Vertiboard MR New Antique White. Flint on HMR Particle board.”
Exhibit 3 is a contract for work described in clause 9 as “Kitchen Joinery.” The contract documents are set out in clause 8 and include the schedule, the general conditions, plans and specifications and a shop drawing.
Clause 7.2 of the conditions of contract provides:
“7.2We will use our best efforts to match the colour or grain of the product to any sample selected or provided by you, but we have no liability if they are different.”
The contracts for each unit and the vanities were in the same terms (Exhibits 1, 2, 4 and 5).
Exhibit 7 is a shop drawing which for the kitchen has the description “Top = 32mm P/Form Laminex New Antique White, Doors = 16mm Laminate Board.”
The applicant has produced photographs showing how she wanted the rangehoods placed (exhibits 10 and 11). She says she showed the respondent her own rangehood as an example of what she wanted.
Exhibit 12 shows what the applicant says is a standard design for a shelf over fridge which she says was shown to the respondent. She complains about venting which was placed in the self over fridge as show in Exhibit 13.
The complaints concerning the installation of the rangehoods are set out in Exhibit 14. The complaints about the vanities are contained in Exhibits 15 to 23.
The applicant in part relies upon evidence (Exhibit 24) to establish that Antique White is available in HMR Particle board 16mm 2400 x 1200 and MR MDF Board 16mm and 18mm 2400 x 1200 from the Laminex Group. Exhibit 24 also contains emails from the Laminex Group to the effect that New Antique White in the smooth finish such as to allow the making of 16mm vertical cupboard doors and drawers. The Exhibit also establishes “the colour chips only show the finish available in high pressure laminate, which is primarily for benchtop applications. The Laminex Group do not merchandise any of (the) low pressure laminates which are panels used for vertical applications including doors and cabinetry.” The Laminex Group only supply the flint finish in the low pressure laminates (letter dated 16 August 2011 Part of Exhibit 24.)
Paul Goodwin for the Laminex Group gave evidence and was cross-examined. The effect of his evidence both in writing and orally was that “the reference to 204” referred to “New Antique White” the colour not the surface finish. The colour is available both in High Pressure Laminate (HPL) as Lammex Redback Postformable Laminate and Low Pressure Laminate (LPL) as Lamiwood prefinished board. HPL is used primarily on bench tops but can be used on vertical surfaces if specified. HPL is a more expensive option for vertical applications because the laminate sheet is required to be hand laminated onto the substrate then fabricated to size. It is generally accepted in the industry that unless specified otherwise, fabricators will price on using LPL for doors and cupboards. The sample chips are a guide to colour only. HPL is a natural finish (smooth) and the LPL is a flint finish (stippled finish).
The oral evidence for Mr Goodwin was to the effect that the smooth finish is available as a laminate but not in a 16mm board. Lamiwood is laminated board and it is a flint finish.
The real question for the Tribunal is whether the smooth finish was agreed to for the vertical surfaces of the kitchen. I am not satisfied that the contract specifies that finish for the vertical surfaces.
I am not satisfied that the applicant specified a smooth finish on the vertical surfaces. I am not satisfied the contract requires the smooth surfaces. In my view the applicant was supplied with what she contracted for. It may be that she thought she was ordering the smooth surface but I am not satisfied that such a requirement was communicated to the respondent and was agreed.
As to the rangehood issue, I am satisfied that the applicant supplied the rangehood. I am satisfied the rangehood has been installed in accord with the installation instructions, the manufacturer’s specifications and the plans which were part of the contract.
As to the shelf over refrigerator issue I am satisfied that the shelf has been supplied and fitted in accord with the plans which formed part of the contract.
For the reasons given above the appropriate order is that the application is dismissed.