Pulitano v Mikescapes Pty Ltd

[2010] QCAT 248

Pulitano v Mikescapes Pty Ltd [2010] QCAT 248

PARTIES:	Filip & Anna Pulitano
v
Mikescapes Pty Ltd

APPLICATION NUMBER:   BD218-08     

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Dr Bridget Cullen Mandikos

DELIVERED ON: 7 June 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The Respondent, Mikescapes  Pty Ltd, to pay the Applicants’ Filip and Anna Pulitano, the sum of $12,012.00 no later than 4:00 pm on Friday, 9 July 2010.

CATCHWORDS :  Rectification of defective building work pursuant to contract, measure of quantum, Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8.

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

Background

1. The Applicants in this matter, Filip and Anna Pulitano (“The Pulitanos”), entered into a contract with the Respondent, Mikescapes Pty Ltd (“Mikescapes”) for landscaping works at their Jasmine Crescent, Shailer Park, property. 

1. Following an oral hearing on 15 April 2010, I delivered an ex tempore decision in the Pulitano's favour, and ordered that the parties make written submissions as to the appropriate quantum of loss, with respect to the paving works that took place at the property.  The reason for the matter being part-heard with regard to the issue concerning quantum was that I was not satisfied with the material before QCAT on this issue.

1. Although there were allegations raised in the Pulitano’s Statement of Claim relating to a retaining wall and the proper planting of plants, at hearing, the matters that were disputed related to the paving works that took place at the property.  It was alleged that:

Pavers

1.        Pavers used in the works were broken, chipped and cracked;

2.        Mikescapes' workmanship was uneven, pavers were loose or became loose over time;

3.        Grout washing not completed in initial stages of the works;

4.        Grout washing completed in March 2007 was ineffective and failed to rectify the cracked pavers;

Driveway

1.        The works completed on the driveway at the worksite were uneven;

2.        Concrete laid on the surface of the driveway was uneven;

3.        Pavers laid on driveway were uneven, chipped and broken;

4.        Pavers on the driveway are not secure, and move when walked or driven on.

1. I have now received submissions on the issue of quantum from both parties. 

1. The Pulitano's annex to their solicitor's covering letter the affidavit of Mr Jason Flynn, of Brisbane's Prestige Walls, sworn to on 13 May 2010, together with one exhibit consisting of a quotation to "renew paved driveway and make good".

1. Mikescapes submission consists of a solicitor's covering letter, a solicitor's affidavit sworn to on 14 May 2010, and an exhibit from ADA Paving and Landscaping, in the form of a paving quote.

Appropriate measure of quantum

1. Prior to receipt of the parties' submissions on quantum, and following the hearing on 15 April 2010, I advised the parties that it was my view that the appropriate measure of loss in this matter would be the cost of rectification, in contrast to the cost of replacing the entire driveway.  My views are, in broad terms, supported by the decisions in Bellgrove v Eldridge (1954) 90 CLR 613 and more recently, Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8 ("Tabcorp"). 

1. The rule expounded in Bellgrove v Eldridge, as it applies to defective building work performed pursuant to a contract (as is the case here) is that a liable contractor is to pay a recovering owner an amount of money equal to the cost of rectifying the defect, such that the building work is substantially in accordance with the contract.  The appropriateness of Bellgrove v Eldridge as the starting point in assessing any damages was confirmed by the High Court in Tabcorp.

1. In Bellgrove v Eldridge, the High Court determined that it was both necessary and reasonable that the rectification work be performed. The expert evidence in Bellgrove v Eldridge supported a conclusion that the only satisfactory way of rectification was to demolish and rebuild the home.   A similar argument is raised by the Pulitanos in their material relevant to quantum.

Evidence before QCAT on quantum

1. In his affidavit, Mr Jason Flynn ("Mr Flynn"), of Brisbane's Prestige Walls, concludes that "the total cost of the work will be less if all of the existing pavers are removed." This is for the reason that whilst some pavers that are not damaged might be salvaged, it would cost more time in labour to salvage some pavers, than it would to remove them all and start afresh.  Mr Flynn's view is that rectification "cannot be done properly without removing and replacing all of the existing pavers."  The quotation for rectification prepared by Mr Flynn, on behalf of Brisbane's Prestige Walls, is for an amount of $12,012.00, inclusive of GST.

1. The quotation submitted by Mikescapes, prepared by ADA Paving and Landscaping ("ADA"), is for a lesser amount, of $10,281.00, inclusive of GST.  Mikescapes has also submitted a solicitor's affidavit, which asserts that the appropriate costs for rectification should be limited to $6,458.00, inclusive of GST.

1. It is not entirely clear to me the basis upon which Mikescapes asserts that a lesser amount that that contained in ADA's quote is warranted, as this is not clearly set out in the accompanying solicitor's affidavit.  The affidavit prepared by the solicitor includes a figure of $35.00 for "First grade pavers $35.00 per sq metre - $350.00 (say - 10 sq metres v $35.00)" in place of the figure contained in the ADA quote of (1) "First grade pavers $35.00 per sq metre - $3675.00".  There is no explanation provided for this reduction, in terms of the work necessary to perform rectification, on Mikescapes' material.  Further, the affidavit prepared by the solicitor deducts the cost of one of 2 skip bins recommended by ADA, at an additional savings of $498.00.  Again, the reasons for this reduction have not been articulated in Mikescapes' material. 

1. I presume that the lower figures reflected in Mikescapes' solicitor's affidavit are for the reason that they submit that it is not necessary to replace all of the pavers, and there will be a corresponding reduction in the amount of waste that would necessitate a skip.  Ideally, any evidence about what work is necessary to achieve rectification should have come from ADA who prepared the quotation.  By contrast, the Pulitano's material is quite clear in this regard, and in weighing the evidence about quantum, I prefer the evidence of Mr Flynn, who outlines the reasons for and scope of work necessary, as opposed to the evidence submitted by Mikescapes' solicitor, which merely annexes the quotation of ADA.

1. In the circumstances, I consider that the appropriate quantum of loss is that represented on the quotation prepared by Mr Flynn for Brisbane's Prestige Walls, in the amount of $12,012.00, inclusive of GST.

Order

1. The Respondent, Mikescapes Pty Ltd, to pay the Applicants', Filip and Anna Pulitano, the sum of $12,012.00 no later than 4.00 pm on Friday, 9 July 2010.