Pirie v Walsh t/as Absolut Custom Glass Systems
[2022] QCAT 101
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Pirie v Walsh t/as Absolut Custom Glass Systems & ors [2022] QCAT 101
PARTIES: DAVID PIRIE (applicant)
v
JASON WALSH T/AS ABSOLUT CUSTOM GLASS SYSTEMS ELEMENT DESIGN (AUST) PTY LTD (respondents)
APPLICATION NO/S:
BDL291-20
MATTER TYPE:
Building matters
DELIVERED ON:
29 March 2022
HEARING DATE:
16 September 2021
Closing submissions filed on 14 October 2021; 16 November 2021; and 24 November 2021
HEARD AT:
Brisbane
DECISION OF:
A/ Senior Member Traves
ORDERS:
1. The respondents must pay to the applicant the sum of $19,096 within thirty (30) days from the date of this order.
2. The claim by the respondents is dismissed.
CATCHWORDS:
CONTRACTS – BUILIDNG, ENGINEERING AND RELATED CONTRACTS – whether work was defective – whether applicant entitled to damages for breach of implied terms – whether proposed rectification works reasonable and necessary – whether damages proved – whether respondent entitled to recover an amount for labour and materials
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B
Electronic Transactions (Queensland) Act 2001 (Qld), s 14
Bellgrove v Eldridge (1954) 90 CLR 613
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
On 4 December 2020, an application for a domestic building dispute was filed by Make Shore Pty Ltd as trustee for the Pirie Self Managed Superannuation Fund seeking relief against Jason Walsh t/as Absolut Custom Glass Systems from the payment of $4,785, an award of damages in the sum of $20,000 and costs of $400.
On 12 May 2021, Jason Walsh on behalf of Element Design Pty Ltd (t/a Absolut Custom Glass Systems), filed a counter-application/response seeking orders that David Pirie or Makeshore Pty Ltd or the self managed superannuation fund pay the amount of $4,500 to Element Design Pty Ltd for materials and labour, $352 for filing fees, $160 for service costs as well as interest on the amount of $4,500 since 5 August 2020, the date of their invoice. They also seek their costs (in an amount to be determined) of having their staff assist in preparing the matter.
On 26 August 2021 the applicant’s name was changed to David Pirie.
On 2 September 2021 David Pirie filed a response to the counter-application seeking orders that the application be struck out and that Jason Walsh and Element Designs Pty Ltd be held ‘individually and separately liable’ to pay damages to David Pirie in an amount to be assessed by the Tribunal and for the refund of all filing fees paid.
On 10 September 2021 an application was filed by Jason Walsh seeking an order correcting the name of the respondent to Element Design Pty Ltd t/as Absolut Custom Glass Systems. On 13 September 2021 the Tribunal made an order joining Element Design (Aust) Pty Ltd to the proceeding.
Background
The agreement
On 4 June 2020 David Pirie accepted by text quote 3403. The quote dated 3 June 2020 was from Jason Walsh of Absolut Custom Glass Systems who had attended the site that day.
The terms of the quote were as follows:
17.9 of semi frameless glass balustrade 10 & 12 m glass.
¾ system posts prior to water proofing second coat.
To comply Form 15 – 16 & refit existing structure & nano rail to meet Code.
Total: $5 000.
GST: $500.
Total including GST: $5 500.
Neither party submitted that a breach of the agreement reached between them could not be relied upon because the agreement did not satisfy the formal requirements of the Queensland Building and Construction Commission Act 1999 (Qld).[1] It may have been open to do so, but I express no concluded view. I note, in particular, that the communications constituting the contract may have been subject to the Electronic Transactions (Queensland) Act 2001 (Qld). These matters ought, in the ordinary course, have been raised by the parties had they wished to agitate them. Moreover, the position of one may have been affected by the position taken by the other. In the circumstances, I make no findings in relation to this issue.
[1]Schedule 1B.
Performance
On 3 August 2020 two installers attended the property to commence installation of the balustrade. Mr Pirie says they left the site saying they needed more materials. They returned approximately 7-10 days later and completed the job.
Before completion of the work, and on 5 August, an invoice was sent to Mr Pirie claiming $5,555.00 was due.
Mr Pirie sent Mr Walsh an email stating he was unhappy with the standard of work carried out. Mr Walsh agreed to attend the property to inspect the balustrade.
Mr Walsh attended the property at some time during the week commencing 24 August 2020. Mr Pirie raised concerns with him about the glass balustrade not being level. Mr Pirie said that Mr Walsh told him he “did not think it was a problem”. Mr Pirie handed over $2,500 in cash to him as part payment of the works.
On 1 September 2020 Mr Pirie wrote to the accounts section regarding the invoice sent on 5 August stating that $2,500 had been paid in cash to Jason the week before and raised issues with the installation:
Many of the panels are simply not level
Some panels are not situated in the middle of the timber supports as was required
One panel is fixed off at the very extreme of the timber support, approx. 50mm off centre and on an angle
The top railing (nano rail) is not fixed off to the timber uprights as is required at law.
Many of the black caps over the fixing points are falling off or will fall off within a short period of time.
Mr Pirie also requested that his email be passed on to Mr Walsh so that he could organise to view the job.
On 2 September Mr Walsh attended the property on a Harley Davidson motorbike and drove in a way which Mr Pirie said was designed to intimidate him and his family. Mr Pirie recounts in an email of 5 September to Mr Walsh that when Jason came inside and saw the balustrade he became less aggressive and returned the $2,500 cash that had been paid by Mr Pirie for the system.
Mr Walsh agreed that upon inspection, he would need to get some custom manufactured glass made to suit one opening and custom made brackets to ensure there was a solid fixing to the building at the end of each glass section. Mr Walsh agreed that he returned the $2,500 cash but that he said to Mr Pirie they would require payment in full once the rectification works had been completed.
On 5 September 2020 Mr Pirie set out in further detail what he regarded as issues with the balustrade system. Mr Pirie highlighted the issue with the external corner posts which he said were not in the correct place so that the appearance of the balustrade was “all crooked”. Mr Pirie states:
I highlight this problem because you need to explain IN WRITING how you are going to rectify this fault without further damaging the veranda. I say further damaging because what has been installed is substandard and an eyesore that devalues the property. This is important because a lot of money and many hours of work has gone into flooring and waterproofing this veranda deck. What your trades have done is to locate the external corner posts to fit the glass rather than to fit the correct line of balustrade. For this reason, I ask the question. Are the glass panels on the end returns (the sides) “custom glass” or are they “off the shelf panels”?
The respondents say they subsequently ordered the custom glass and custom stainless-steel brackets to be manufactured and powder coated to suit the rest of the balustrade.
On 29 September an email was sent on behalf of the respondents to Mr Pirie which stated:
Hi David
Jason has asked me to send through the following in regard to rectifying the glass balustrade at [deleted]. We intend to:
1.Get all the panels level
2.Situate the panels in the centre of the timber uprights, as best can be achieved
3.Plumb panel up that is not plumb
4.We have had some custom wall plates made so the railing can be mechanically fixed to the structure at the end of each run
5.Replace black caps.
We have had a panel of glass manufactured for this and the brackets modified and powder coated. If you could please pay the deposit invoice that has been sent through….
On 5 October 2020 Mr Pirie responded as follows:
It concerns me greatly that you claim the rectification work will “not take more than a couple of hours”…yet you can’t explain how you will reposition the corner posts that have been fixed off incorrectly. The posts are not inline with the rest of the balustrade posts so the appearance of the barrier is that it is all crooked.
Mr Walsh said they responded in detail as to how they would rectify the issues and what materials they would need. He says they had no intention of passing on the costs associated with the extra custom-made materials required.
On 8 October 2020 Mr Walsh sent an email to Mr Pirie demanding payment of a $4, 500 deposit before work would be completed, with the balance due on completion.
Mr Pirie refused to allow Mr Walsh or anyone from his company to attend the property and has not paid anything towards the cost of the work.
On 12 October 2020 Mr Pirie wrote to Mr Walsh purporting to terminate the agreement between them.
Applicant’s submissions
In short, Mr Pirie claims the work carried out by or on behalf of Mr Walsh is defective and in substantial breach of contract in that the job performed was unsupervised, the building material substandard and the labour performed without due care or skill.
Mr Pirie claims the parties had verbally agreed that the black aluminium posts and glass balustrade would be fixed off in the centre of the new white timber posts that support the roof of the veranda.
Mr Pirie claimed the following terms were implied in the contract:
(a)The black aluminium posts installed would be in alignment, that is, they would line up;
(b)The black aluminium posts fixed off against the timber would be structurally lawful and comply with industry regulation;
(c)The glass panels installed would be level;
(d)The glass panels would be securely positioned within the recess of the aluminium post and comply with industry regulation;
(e)The top rail (Nano rail) would be level;
(f)The fixing of the Nano rail would comply with industry regulations and industry practice;
(g)The finishing caps installed would be to industry standard.
Mr Pirie claims the contract has been breached as follows:
(a)Mr Walsh has used ‘off-the-shelf’ glass that does not correctly fit into the area measured for the balustrade and, as a result, the balustrade system is crooked and defective;
(b)The outside corner posts fixed off to the tile floor are incorrectly placed. Two posts in particular are not in alignment with the rest of the balustrade. In the front right corner, the glass panel is 40-50mm out of alignment;
(c)The black aluminium posts or brackets fixed to the white timber posts have been modified by being cut in half and are non-compliant with regulation. A number of these posts/brackets have not been centred and are not in alignment;
(d)The glass installed is not level;
(e)A number of glass panels are not correctly fixed within the bracket recess. The fixing does not comply with industry regulation;
(f)The top Nano rail is not level. It goes up and down varying between 5 and 15mm off level;
(g)The Nano rail is defective in that it has been siliconed directly to the glass;
(h)The material used for the finishing caps is substandard and not suitable for their purpose.
Mr Pirie claims he is entitled to be put back in the position he would have been in had the work been undertaken correctly. He seeks damages for the following rectification work:
(a)Complete removal of the balustrade;
(b)Immediate installation of a safety rail and scaffold;
(c)Reinstatement of tile floor, including replacement of waterproofing, to what it was prior to work being done by the applicant;
(d)Retiling and grouting;
(e)Repaint and repair white timber posts;
(f)Installing a correct balustrade system;
(g)Removing scaffolding and safety rail.
In his closing submissions, Mr Pirie claimed an amount of $43,923.00 for the cost of rectification, $814 for the cost of obtaining the engineer’s report and $352.00 for the QCAT filing fee. Mr Pirie submitted that there is no independent evidence before the Tribunal to support the respondent’s claim that the rectification costs would be less than $1,000.
Respondent’s submissions
Mr Walsh submitted that the new aluminium posts were to be centred as close as possible to the centre and that due to the shape of the balcony not being square, that they were in fact set as close as possible to the centre.
In relation to the other alleged defects, he submitted:
(a)The black aluminium posts were set as close as possible in alignment.
(b)They did not quote custom glass panels to be manufactured for the project. The reason why the price was so economical was because they used off the shelf standard sizes. They admit that due to the size of one of the openings, that one panel was required to be manufactured locally to fit. However, they say they have not been allowed back on site to install it.
(c)In relation to the outside corner posts not being in alignment with the balustrade, they say they had to work with a balcony that was not square and that they have done their best to make it work. Any alignment, if required, is minimal.
(d)The black aluminium posts or brackets fixed to the white timber posts have not been modified by being cut in half. They are called a “half-post” and are manufactured this way for this type of application.
(e)The glass installed may in some places not be level. We are unsure why as we cannot gain access to the site.
(f)The glass panels are held in place by posts, not by brackets. If the applicant is referring to the end of glass wall brackets, then we may agree. They have had custom wall plates manufactured by their welder and powder coated, ready for installation.
(g)He was unable to confirm this as he could not attend the site. However, Mr Walsh said that the mill that produces the Nano rail does occasionally have some discrepancies and can have slight twists which makes the top of the rail not level.
(h)The Nano rail has been silicone to the glass which is acceptable industry standard and better than the alternative “plastic sleeve” method.
The respondent seeks the following orders, by way of counter-application:
(a)Payment of $4,500 for work that has been carried out and for materials and labour.
(b)The cost of the MCD filing fee (the application was originally commenced as an application for a minor civil dispute) and the cost of having the matter transferred to the building list of $352.
(c)The service charge of $160.
(d)Interest on the $4,500 amount outstanding since the invoice on 5 August 2020.
(e)Costs of staff time incurred in completing paperwork for this matter.
(f)That custom manufactured materials be made available to David Pirie: namely, one piece of 12mm toughened glass, numerous wall plates in black to suit application where the Nano rail must be secured to the structure; and custom made post caps that have been made to suit.[2]
[2]Although in other material filed, Element Design Pty Ltd state that they will dispose of the custom manufactured glass and brackets. See, Response filed on 4 January 2021, Annexure A, Application for minor debt dispute, item 20.
The respondent says they reduced the cost of the contract, although the work is more than 90% complete, to cover cost of labour and materials. They say they are out of pocket for the costs of materials, plus the custom manufactured materials and the labour costs for the time staff were there.
They say while it was ‘regretful’ the workmanship on the day was not up to standard, they have not been permitted to rectify the work.
Was the work defective?
Mr Whitty gave evidence for the applicant. He is a builder/plasterer with 44 years of experience in the building industry. Mr Whitty supervised the renovation of the veranda area during 2020. Mr Whitty gave evidence that, prior to the installation of the balustrade system, he was aware that noggins to support the future balustrade posts had been placed under the veranda in the locations marked by Mr Walsh.
Mr Whitty inspected the balustrade installation and identified the following defects:
1.Many of the aluminium posts did not have caps to seal the top of the post. The material used for the caps is substandard and not suitable for this application. Also of concern is the water build up internally in the posts and its effect on the bottom of the pose where it is fixed to the fibre cement floor.
2.The glass panels are not level. Certain panels are not fitted correctly and are less than 4mm within the post recess. Other panels are sitting off centre in the post recess. As a result, the top rail is not level and in the worst affected area it is out by 15mm to 20mm. The top railing dips up and down over the entire installation.
3.The top rail is not connected to the timber posts.
4.Various glass panels are not the correct size. Two of the smaller panels have been fitted off at extreme angles. The panels are not in line with the rest of the job. Both are out between 30mm and 50mm.
5.Both end corner posts are out of line with the rest of the balustrade and have been attached to the floor in the wrong location. The front right corner post is about 30mm out. The front left corner post is about 15mm out.[3]
[3]Report by Steve Whitty dated 5 February 2021 at 2.
Mr Whitty states in his report that while he is ‘not quoting this job’ you would have to allow a budget of approximately $15,000 to $20,000 as there are “plenty of unknowns” including: finding a balustrade company prepared to look at the job; whether the balustrade installation has compromised the waterproofing; how many tiles will need to be replaced; and whether the existing glass panels can be reused. Mr Whitty says that if he was to do the job he would remove and replace the entire balustrade system which would be ‘easier and cheaper’. Mr Pirie also relied on evidence from Mr Whitty that the cost of removing and replacing the balustrade system was $13,500. Mr Belyea of SRB Consulting Engineers, structural engineers, also gave evidence for the applicant. An inspection of the balustrade system was conducted on 1 June 2021 and a report produced on 3 June 2021.
Mr Belyea reported that they were unable to certify the approximately 20 linear metres of semi-frameless glass balustrade installed to the elevated south-east external deck arrangement as a consequence of, but not limited to:
(a)Not being provided with a Form 15 Design Compliance certificate for a C3 load rating applicable to the arrangement;
(b)Having been informed the external deck was fully constructed/completed prior to the installation of the handrail system (tiled on the top surface and sheeted to the soffit surface) meant that structural members to securely attach the handrail fixing posts could not be accurately located. Therefore, the existing base plate (approx. 75mm) centres for the (x4 off per mounting) no 14 Type 17 bugle head wood screws are highly unlikely to exactly match the underlying external timber deck framing members, viz: a significant number of fixing screws are anticipated to be mounted into the underlying compressed fibreboard deck boards only – the soffit sheeting to the deck will therefore need to be stripped for at least 600mm of the leading edge to accurately evaluate these structural fixings;
(c)The glass infill baluster panels are only nominally engaged to the accompanying support posts in at least three instances; and
(d)The end posts/channel affixed to the building façade at each termination end of the arrangement appear to be attached to the nominal compressed fibreboard façade panels, only – and on the balance of probability, not engaged or adequately affixed to the main building framing.[4]
[4]Ibid at 1.1.
The report also identified a number of cosmetic issues (not of structural concern) which required addressing, including: variable top rail level/height; inadequate or missing top post caps; the SW handrail post having a significant off-vertical lean and appearing to be approximately 30mm out of alignment with the remaining arrangement, likely requiring removal and reinstallation and subsequent deck repairs; misalignment between top rail sections, in-plane.[5]
[5]Ibid at 4.1.
Mr Belyea gave evidence in the hearing that he could not be satisfied that the bugle screws were fully engaged as he could not see if the supports under the fibre sheeting were correctly placed. He said that it needed to be verified that the balustrade installation is fixed off to each of the subframe under the tile floor and the building frame in the walls where the balustrade channel is fixed to the building’s façade.
Mr Belyea recommended a minimum 1.0m exclusion zone off the handrail structure until the key issues identified in his report were addressed.
For proof of rectification costs, the applicant relied on a quotation by Amalgamated Property Group dated 14 June 2021. The quote is for $43,923.00 (including GST) and is to remove all existing tiles, screed, old delaminating membranes and sealant, re waterproof, re tile and replace the balustrade system.
Mr Beales, of Amalgamated Property Group, was also called by the applicant. Mr Beales attended the hearing by telephone and stated, in reference to the quote, that the entire tiled area would need to be removed and re-installed. Mr Beales said that the waterproof membrane had been compromised due to the posts being installed post waterproofing. Mr Beales itemised his quote as follows:
(a)Removal and replacement of existing balustrade (approx. 20 LM’s): $13 000;
(b)Invasive investigation of the substrates to assess the subframe and installation of required supports: $4 000;
(c)Installation of edge protection to comply with OH & S compliances: $4, 430;
(d)Balcony tile removal and replacement: $13 500;
(e)Miscellaneous cost, rubbish removal, site establishment and exit: $5 000.[6]
[6]Exhibit 5: Email from Tony Beales to David Pirie dated 13 September 2021.
In cross examination, Mr Beales explained that the $13,000 is for 20 linear metres of standard 50mm glass panels at a rate of approximately $500-$600 per metre. Mr Beales was of the view that it was not possible to remove the balustrade without replacing the tiles because the post centres would need to be moved. When questioned further as to whether removal of all tiles was necessary, he said that you could move individual tiles but that when he replaces a section of tiling he becomes responsible for the entire deck. So, although it is theoretically possible to replace only some tiles along the edge, they always quote the whole area so that they can give a warranty in respect of the whole area. Mr Beales said that he was also not prepared to be responsible in that event for the waterproofing, so would need to re-do the waterproofing as well.
The respondents rely on a generic Form 15 issued by the glass balustrade supplier written by Mr Ron Bell of Summermore Engineers. The Form states that when installation is carried out as per the drawings that are part of the Form, the balustrades meet the relevant Australian Standards.
The respondents did not call evidence from an independent expert. The respondent admitted that there were issues with the installation but that they had always intended to return to fix them. Further, that the rectification works only required posts to be re-positioned and to engage a tiler to fill old holes which they estimate would cost less than $1,000 or to use the same holes but with custom made posts.
I find that the respondents breached its contract with Mr Pirie by failing to install the balustrade system in accordance with the requirements of the contract including a failure to exercise due care and skill. I accept the evidence of Mr Whitty, Mr Belyea and Mr Beales in so far as it concerns the defective work. That evidence was not seriously challenged, and the respondents accepted that the work was defective. Accordingly, I find that the work was defective in the manners described by Mr Whitty and which is consistent with the evidence of the other experts that the balustrade system required replacement.
I would only add that a domestic building dispute may include a claim or dispute in negligence relating to the performance of reviewable domestic work.[7] A building owner, in order to establish negligence by a builder, must prove that: the builder owed to the owner a duty of care; the builder breached the duty; as a result of the breach of duty, the owner has suffered loss.
[7]QBCC Act, sch 2 (definition of ‘domestic building dispute’).
Generally speaking, a builder owes to an owner a duty to perform building works in an appropriate and skilful way and with reasonable care and skill.
Mr Pirie has not framed his claim in negligence. However, the matters which I have found constituted breaches of contract by the respondents would also constitute negligence. I find accordingly. The measure of damages is the same.
Damages
Where a building owner sustains a loss by reason of a breach of contract by a builder, the building owner is, so far as money can do it, entitled to be placed in the same situation, with respect to damages, as if the contract had been performed.[8] The measure of damages recoverable by a building owner for breach of a building contract is the difference between the contract price for the work and the cost of making the work conform to the contract, subject to undertaking the work necessary to achieve conformity being a reasonable course to adopt.[9] In assessing the building owner’s damages, the builder must be given credit for any unpaid part of the contract sum.[10]
[8]Robinson v Harman (1848) 1 Ex 850; 154 ER 363.
[9]Bellgrove v Eldridge (1954) 90 CLR 613.
[10]Ventura v Svirac (1961) WAR 63 cited with approval in Corporation of the City of Adelaide v Jennings Industries Ltd (1985) 156 CLR 274.
The issue becomes the measure of damages required to put the applicants in the position they would have been had the contract been performed. Mr Pirie claims that amount to be the amount required to remove all of the tiles, relay them and then install the balustrades.
The principal reason it is said that the whole of the balcony work needs to be done again is that the waterproofing cannot otherwise be guaranteed. However, the evidence favours the view that even had the contract been performed by Mr Walsh as it should have been, the water proofing could not have been guaranteed. Mr Walsh gave evidence that he told Mr Pirie at the time of quoting that the posts needed to be installed prior to the water proofing. The respondents also relied on the quote which indicates that they should be installing the posts prior to completion of the waterproofing.[11] Mr Walsh said that he explained to Mr Pirie that this was the only option and that if they turn up at a job when the waterproofing has been completed, that they cannot guarantee the waterproofing. Mr Walsh said that when Mr Pirie called him to let him know he could proceed with the balustrade installation but that the waterproofing had been done, that he said to Mr Pirie words to the effect: “Why did you do that? I told you we needed to install the posts first. We cannot warrant the waterproofing now”.
[11]Exhibit 6: Statement by Jason Walsh dated 11 May 2021 at [4].
I accept Mr Walsh’s evidence that he made clear to Mr Pirie that the posts should be installed prior to waterproofing. This is also confirmed by the quote. Mr Pirie was warned about proceeding first with waterproofing but he went ahead with it prior to the installation, because, he said, it was more convenient to do it when all the trades were already there.
It follows that to award damages being the value of the work alluded to by Mr Beale would be to put Mr Pirie in a better position than he would have been had the contract been performed.
Had the contract ben performed, Mr Walsh would have properly installed balustrades, albeit there would have been a remaining risk that the water proofing would not be assured. There is evidence as to the cost of that work.
Mr Whitty stated that, when installing a semi frameless glass balustrade it is critically important to fix off the aluminium posts in the correct location or the whole system will be off centre. In his view, both returns needed to be taken apart and redone; the two corner posts relocated and custom glass panels supplied to fit correctly; and the top railing removed and fixed to timber supports. Once the work was taken apart, Mr Whitty said that the waterproofing and tiling under the posts would also need to be ‘looked at’, in particular, the tiling under the corner posts would need to be removed and replaced without damaging surrounding tiles; the waterproofing under the tiles redone; and the tiles re-laid.[12]
[12]Ibid.
This description of work captures both the replacement of the balustrades and localised work involving the tiles to deal with waterproofing.
Mr Whitty said that (while not quoting) the work he considered necessary would cost in the vicinity of $15,000 to $20,000. That range included, potentially, a broader scope of work and a component for risk. Elsewhere, Mr Whitty gave evidence that it would cost $13,500 to remove and replace the balustrade system.
Mr Beale’s estimate of the total cost of replacement of the balcony included a component for removal and replacement of existing balustrade (approx. 20 LM’s): $13,000. This figure is consistent with the evidence of Mr Whitty.
Doing the best I can, I will allow $13,500 for the cost of replacing the balustrades. This is the amount which Mr Whitty said it would cost to replace the balustrade system. It is in accordance with the evidence of Mr Beale, who was of the opinion that replacement of the balustrade system would cost $13,000. The amount allowed is less than the range of $15,000 to $20,000 referred to by Mr Whitty, and less than the sum of $43,923 referred to by Mr Beale, but the replacement of the balustrades did not constitute the whole of the work contemplated by those estimates.
I am not inclined to allow the further cost of replacing the whole of the tiles on the balcony. This was quantified by Mr Whitty at $13,000. To allow that component would, in my view, be to put the applicant in a better position than he would have been had the contract been performed. In particular, in that regard, I accept that Mr Pirie was told that the balustrades should be installed before the tiling and that to do otherwise may be to compromise water proofing. Mr Pirie relied in this respect on Mr Walsh’s statement where he states:
If there is any claim that we have damaged the water proofing of the balcony in question we would rely on the original quote given to David Pirie, clearly stating that we would prefer to be on site to install the posts prior to waterproofing and the waterproof membrane could be made around the posts. This is the ideal way to set the posts, but there are occasions where this is not possible. If that is the case then after the holes are drilled for the posts or spigots then each holed [sic] is filled with poly-urethane prior to the posts being screwed down. This is accepted industry practice if no other alternative is available.[13]
[13]Statement by Jason Walsh dated 11 May 2021 at [18].
I do not consider this explanation by Mr Walsh to mean that he resiles from the position adopted by the quote. Mr Walsh explained when cross examined by Mr Pirie that if they install balustrading after the tiling that he cannot guarantee the waterproofing.
There is a further component in the estimate of Mr Beale for “invasive investigation of the substrates to assess the subframe and installation of required supports: $4000”. This relates to the need to ensure that the noggins are positioned over timber support and that the structural members are securely attached to the handrail fixing posts.
I accept the evidence of Mr Whitty that both corner posts need to be relocated. He also gave evidence that a number of the glass panels are not of the correct size; that two of the smaller panels had been fitted off at extreme angles; and that both returns needed to be taken apart and redone. Mr Whitty gave evidence that if he was to do the job he would remove and replace the entire balustrade system, which would be cheaper and easier.
Mr Walsh said that he had marked where the noggins were to go under the veranda. He said that this was crucial as when the time comes for balustrade posts to be installed the noggins and blocks are covered by tiling and concrete sheeting. He said that they have to trust that the noggins are placed correctly as the only way to verify this would involve destroying the floor. Mr Walsh said that the installers are experienced and can tell when the post screws hit noggins or timber structures, as opposed to fibre sheeting. If they hit noggins there is a ‘grab’ whereas if they go through sheeting the screw just spins. The respondent argued, in the alternative, that any lack of adequate support in the form of noggins or timber blocks placed at appropriate locations for the posts and handrail fixings was the fault of the applicant as they had asked him to attend to this and he had not.
It is not clear to me on the evidence the extent to which this work remains necessary if the balustrade system is replaced. Logically, if that was to occur, the investigative work would not be necessary - proper support would be installed under the new balustrade posts.
I am, therefore, not inclined to allow this component.
I do not allow the sum of $5 000 for miscellaneous costs, rubbish removal, site establishment and exit. When asked about this item Mr Beales said it was for bringing certain equipment on site, including an amenity. I consider this item, without further supporting evidence or explanation excessive, and am not inclined to allow it.
Mr Beales was not asked in the hearing about the item in his quote which referred to “installation of edge protection to comply with OH & S compliances” for $4,430. I understand it relates to barricading to make rectification work safe while it is being undertaken. Mr Pirie has claimed an amount for immediate installation of scaffolding and safety railing upon commencement of the rectification work and its removal once the work has been completed. I am satisfied that edge protection is required and, given there was no evidence to the contrary, will allow the amount of $4,430 for that purpose.
I will therefore allow the sum of $13,500 for the replacement of the balustrade system as well as $4,430 for edge protection, comprising a total sum of $17,930.
Claim by the Respondents
The Respondents claim the sum of $4,500 for work carried out and for materials and labour. I will not allow the claim. The work done was of no value to the applicants and the materials used likely to be wasted.
There is no basis upon which the associated costs which are claimed should be allowed.
I therefore dismiss the respondents’ claim.
Costs
Mr Pirie has been successful in his claim and I will allow the costs claimed by him, being $814 for the expert’s report and $352 for the filing fee.
Orders
I order:
(i) The respondents must pay to the applicant the sum of $19,096 within thirty (30) days from the date of this order.
(ii) The claim by the respondents is dismissed.
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