Quality Roofing Services P/L v McIntyre
[2017] SADC 62
•22 June 2017
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
QUALITY ROOFING SERVICES P/L v MCINTYRE & ANOR
[2017] SADC 62
Judgment of Her Honour Judge Tracey
22 June 2017
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT - DAMAGES
Plaintiff claimed progress payment for construction of verandahs on the Defendants' property - Defendants denied liability and cross claimed for breach of contract - verandahs not structurally adequate or compliant with Council approvals - whether construction was in accordance with the contract - whether it could be brought into compliance - whether demolition required.
Development Act 1993 s85, referred to.
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; Manufacturers Mutual Insurance Limited v Withers (1988) 5 ANZ ins cases 60-853; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Colby Corporation Pty Ltd v Commissioner of Taxation DJ Cremean, M Whitten and M Sharkey, Brooking on Building Contracts, LexisNexis Butterworths 5th ed, 2014 at 2.16, considered.
CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS - REMUNERATION - RECOVERY ON QUANTUM MERUIT
Whether builder licensed - effect of Building Work Contractors Act 1995 - inadvertence defence - quantum meruit - whether Defendants received benefit - liability for costs in ERD Court proceedings.
Held:
1. The construction accorded with the design agreed between the parties.
2. Defendants not liable to install footings.
3. Verandahs could have been brought into compliance with both structural adequacy and Council approvals.
4. Plaintiff not appropriately licensed. Inadvertence defence was not available. Entitled to quantum meruit, less cost of rectification.
5. Defendants to indemnify Plaintiff for ERD Court costs.
Building Work Contractors Act 1995 ss3, 6(2)(b), 12(1)(3) and 59; Builders Licensing Act 1971 (NSW) s39, s45, referred to.
A1 Quality Concrete Tanks Pty Ltd v Civil & Allied Technical Constructions Pty Ltd [2014] VCC 1239; Hann v Barker [2012] SADC 122; W Cook Builders Pty Ltd v Lumbers & Ors [2005] SADC 153; Vizzari Builders Pty Ltd & Anor v Misale & Anor [2011] SADC 86; Nunkuwarrin Yunti v A L Seeley Constructions Pty Ltd (1998) 72 SASR 21; Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; City of Charles Sturt v McIntyre & Anor [2014] SAERDC 45; Cordon Investments v Lesdor Properties [2010] NSWSC 1073; Nguyen v Luxury Design Homes [2004] NSWCA 178; Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221; Craven-Ellis v Canons Ltd [1936] 2 KB 403; Edelman and Bant Unjust Enrichment Oxford and Portland Oregon 2nd ed (2016) 63; J W Carter Contract Law in Australia 6th ed 2013 38-14; Bellgrove v Eldridge (1954) 90 CLR 613, considered.
QUALITY ROOFING SERVICES P/L v MCINTYRE & ANOR
[2017] SADC 62INTRODUCTION
The plaintiff, Quality Roofing Services Pty Ltd (‘QRS’) issued proceedings in the Magistrates Court against Leonard and Julie McIntyre (‘the Defendants’), seeking payment of a progress claim it had submitted concerning work carried out at the Defendants’ home in West Lakes (‘the property’). QRS sought payment in the sum of $37,360 plus interest.
The proceedings were transferred to the District Court. The Defendants filed a Defence denying they were liable to pay the progress claim and cross claimed alleging QRS breached the contract entered into by the parties. The Defendants alleged QRS breached the duty of care it owed and breached the statutory duties owed pursuant to the Building Work Contractors Act 1995 (‘the Act’).
In addition to the damages, interest and costs, the Defendants sought the following orders:[1]
[1] Paragraph 40 Third Defence and Cross Action (counter claim) filed on 25/2/15.
1.A declaration that the contract obliged QRS to construct the verandah roof extending along the western side connected to the verandah roof extending along the southern side on one level, by continuous join without any gap or opening;
2.A declaration that:
(1) the erected verandah did not comply with the contract, and
(2) the contract was lawfully terminated by the Defendants.
3.A declaration that the plaintiff had no legal right to unilaterally vary the specifications of the verandah as agreed in the contract; and/or construct the erected verandah without the prior consent of the Defendants.
4.A declaration pursuant to s 38 of the Act that condition 2.3 of the SA Quality Home Improvements Terms and Conditions entitling QRS to interest at the rate of 1.5% monthly compounding daily is void and unenforceable or otherwise that the said condition is unenforceable as a penalty;
5.An order that QRS indemnify the Defendants for the amount of the legal costs the Defendants are required to pay the Council with respect to Environment, Resources and Development Court of South Australia (‘ERD Court’) proceedings;
6.An order under s 37(6)(b) of the Act that QRS pay compensation to be assessed and determined with respect to:
(1)the costs and expert fees incurred to obtain advice on how to rectify and an assessment of the rectification works required to the erected verandah to achieve compliance with the contract and to be constructed with structural adequacy;
(2)reimbursement on a full indemnity basis of the legal costs of and incidental to the ERD Court proceedings incurred by the Defendants, and;
(3)the annoyance, distress, anxiety and inconvenience and the loss of enjoyment of property suffered by the Defendants caused by QRS’ refusal to act in accordance with the Schedule of Rectification Works and/or voluntarily remove the verandah or to refrain from objecting to the consent removal order and the steps taken by the Defendants to obtain the removal of the verandah lawfully.
Overview
In around June 2011, Mr McIntyre contacted QRS asking for a quote for the construction of a verandah, roof restoration and the installation of new gutters at the property. Matthew Ryan (‘Mr Ryan’) a salesperson with QRS, met with Mr McIntyre at the property and discussed the scope of the works in order to prepare a quote.
The Quote,[2] dated 29 June 2011, was made up of three separate quotes for roof restoration work, replacement of gutters and downpipes and to:
Supply and install a new Curved Verandah attached to main residence using a roof mounted kingpost system. Approximately 3.9 metres wide x 6 metres long on southern side of main residence connecting to a 1.5 metre wide x 7.5 metre long section, then 3.5 metres wide across the full distance of the residence on water side.
[2] Exhibit P3.
In addition, the Quote also referred to ‘optional extras,’ relating to work to enclose the verandah (‘the enclosure’).
On 7 July 2011 Mr Ryan again attended at the property, meeting with both Defendants, discussing changes they wished to make to the Quote as regards the enclosure and the installation of another verandah to the northern aspect of the property. There is a dispute as to what documents were received by the Defendants at that meeting. Both parties agree Mr Ryan completed a pro forma document titled ‘CONSTRUCTION PLAN’[3] (‘Construction Plan’), a copy of which was given to the Defendants. The Defendants however deny they received a document titled ‘CONTRACT DETAILS’[4] (‘Contract Details’), also dated 7 July 2011, which QRS allege was prepared by Mr Ryan to be used in reference to the Construction Plan.
[3] Exhibit P5.
[4] Exhibit P4.
On 17 August 2011, Mr Matthew Hann (‘Mr Hann’) a draftsperson employed by QRS, lodged an application for development approval for the verandah with The City of Charles Sturt (‘Council’).[5] The application included a site and floor plans and site elevation for the verandah, drawn by Mr Hann, which made no reference to an enclosure.
[5] Exhibit P21.
The roof restoration work was carried out by QRS between early September and 20 September 2011.
On 23 September 2011, Council granted Development Plan Consent in relation to the construction of the verandah, which provided that the ‘verandah shall not be enclosed on any side with any solid material, roller door, or the like’.
On 27 September 2011, Mr Ryan and Greg Dalgarno (‘Mr Dalgarno’), a building supervisor employed by QRS, attended at the property to conduct a check measure (‘Check Measure’) in the presence of Mr McIntyre. Variations to the design of the enclosure were discussed. A document titled ‘VARIATION TO CONTRACT’(‘Variation Document’)[6] was prepared by Mr Ryan following the meeting.
[6] Exhibit P7.
Building Rules Approval was granted by PBS Australia (‘PBS’) a private building certifier on 6 October 2011 and on 12 October, Council granted Development Approval for the verandah as a ‘category 1’ development.
QRS says that on 18 October 2011, CAD drawings (‘CAD drawings’) of the verandah were prepared by Mr Dalgarno and on or about 25 October 2011, forwarded to the Defendants.[7]
[7] The Defendants dispute ever receiving these CAD drawings.
Between about 8 November 2011 and 18 November 2011, QRS built a verandah to the southern and western elevations of the house.
Between 18 November 2011 and 28 November 2011, ‘In and Out Living’, the paving contractor engaged by the Defendants, laid paving under the verandah.
From 29 November 2011, there was email communication between QRS and Ms McIntyre commencing with her request for ‘plans for works including 3D views as requested so I can get an idea on what we have purchased’[8] and on 7 December 2011, Ms McIntyre informed QRS ‘the verandah needs to be finished before any money is paid’[9] in response to QRS’ invoice number 18307[10] in the sum of $37,360.
[8] Exhibit P8.
[9] Exhibit P9.
[10] Exhibit D103.
By email dated 12 January 2012,[11] Ms McIntyre asked for ‘the plans, front elevations and a building schedule as per the quotation’ before any further work was carried out and expressed dissatisfaction with the ‘verandah and how it is to be joined’, adding that if a front elevation and plans had been supplied prior to the commencement of the construction, the problem ‘could have been avoided’.
[11] Exhibit D15.
On 3 February 2012, Ms McIntyre sent a series of emails to QRS demanding the verandah be pulled down.[12] On 13 February she asked officers from Council to attend and inspect the verandah.
[12] Exhibit P10.
On 14 February, Vincent Barry, (‘Mr Barry’) Director of QRS[13] offered by email to build a ‘return hip end’ in store for Ms McIntyre to inspect. Ms McIntyre replied,[14] asking him to ‘hold off’ until 3D plans were provided to her. On 15 February 2012, Mr Barry emailed a copy of the CAD drawings to Ms McIntyre, commenting that ‘I believe you have already received these’. The following day Ms McIntyre informed Mr Barry she had never seen the CAD drawings which showed a gap between the two elevations.
[13] Exhibit D16.
[14] Exhibit D17.
Council inspection revealed the verandah as it had been erected, differed from the drawings which were the subject of the Development Approval and on 15 February 2012, Council informed Ms McIntyre that as a consequence, a further Development Application needed to be lodged.
On 17 February 2012, QRS forwarded an exit proposal[15] to the Defendants ‘as requested’[16] offering to either leave the work as is and not return to the project, with the Defendants to pay $27,500, or to remove the verandahs and make good the roof tiles and pavers, with the Defendants to pay $30,800. Ms McIntyre responded in the following terms:[17]
Thanks for that, but disagree on all counts, will consider our options, not yours, over the weekend’.
[15] Exhibit P66.
[16] The Defendants deny having made such request.
[17] Exhibit P67.
On that same day, QRS submitted an application (‘Amendment Application’) to Council to amend the plans previously approved to reflect the ‘as constructed’ verandah, stating in the cover letter:[18]
Although the structure has not changed in size, certain changes needed to be made in beam height and also the radius of the curved sections for the development to be feasible from a construction standpoint.
[18] Exhibit P30.
Attached to that letter was a plan drawn by Mr Dalgarno dated 18 October 2011, incorporating amendments made by Mr Hann.
On 24 February 2012, having been informed by Council that QRS had lodged an Amendment Application, Ms McIntyre, wrote to Council advising that she and her husband objected to the Amendment Application being assessed.[19] Consequently, Council declined to entertain the application.
[19] Exhibit D105.
On 9 July 2013 Mr Mazzarolo, a qualified structural engineer/building surveyor with the Council, carried out an inspection of the verandah and concluded it did not comply with the Development Approval and may be structurally unsound.
What next took place as regards the verandah is set out in the decision of ERD Court[20] following application by Council in January 2014, seeking orders for the removal of the verandah, as follows:
·in August 2013 Council wrote to QRS directing it to remedy the situation by obtaining the consent of the Defendants to enter the land and demolish the verandah. At the same time it wrote to the Defendants directing them to remove the verandah. In the event that the verandah was not removed Council threatened proceedings against QRS and the Defendants.
·in response to Council’s letter in September 2013, the Defendants agreed to give permission to QRS to enter the land and remove the verandah. QRS did not take up the invitation to remove it and later that month the Defendants applied to demolish it themselves. However, in October 2013 the Defendants withdrew their application to demolish the verandah.
·in September 2013 the Defendants also applied to construct a new verandah which application was granted. Then in October 2013 they applied to construct a two storey addition to the existing dwelling on the land which application was granted in January 2014.
·during 2014 this upper level addition was constructed. As part of the work involved in the addition the southern section of the verandah was taken down.
[20] City of Charles Sturt v McIntyre & Anor [2014] SAERDC 45.
The ERD Court decided the structure was unauthorised and needed to be removed. The Defendants were ordered to remove the verandah within 60 days.
Each party seeks indemnification from the other for the legal costs and disbursements incurred in the ERD Court proceedings.
The issues
The fundamental dispute between the parties and the one which affects the outcome of other issues in dispute, concerned whether the structure QRS built was in accordance with the contract. The Defendants alleged the contract was for a single arc roof verandah in a return style, which had a ‘hip’ in the south western corner, whereas QRS alleged the terms of the quote made it clear that two verandahs were to be constructed, one on each of the southern and western sides of the property.
Other disputes included whether:
·certain documentation had been provided by QRS to the Defendants.
·Mr McIntyre had told QRS he would arrange for the installation of a concrete strip footing across the southern elevation to which QRS was to attach the verandah and for the current footing on the western side to be improved.
·the final design of the enclosure would be decided upon once the verandahs had been installed.
·the verandah as constructed was structurally adequate and compliant with the National Construction Code Series 2011 (‘NCC-2011’).[21]
·any structural inadequacy that was identified could be rectified without demolition of the verandah.
·QRS and its sub-contractors were appropriately licensed to carry out and supervise the work.
[21] Agreed as another way of describing the Building Code of Australia.
On 15 October 2015, the Court ordered there be two separate conclaves of experts. The first involved engineers Trevor John (‘Mr John’) and Trevor Kokkinakis (‘Mr Kokkinakis’), resulting in a joint position paper concerning the structural adequacy of the verandah and whether the verandah could be brought into compliance. [22] Mr John and Mr Kokkinakis both gave evidence at trial.
[22] Exhibit P and D46.
The second conclave involved quantity surveyors John Deans (‘Mr Deans’) and Chris Sale, (‘Mr Sale’) concerning the cost to perform the work on which the engineers had opined, resulting in a joint position paper.[23]
[23] Exhibit P and D127.
THE PLAINTIFF’S CASE
QRS says:
·QRS built the verandahs in accordance with the contract.
·The contract comprises the Quote, the Construction Plan, the Contract Details and the Variation Document.
·It was agreed that Mr McIntyre would cause a concrete strip footing to be installed across the southern elevation of the house for QRS to attach the verandahs and would improve the footing on the western boundary.
·The final design of the enclosure to the verandah on the southern elevation would be decided once the verandahs had been installed.
·There was to be a gutter between the verandahs.
·It was lawful and appropriate to design the verandahs in accordance with the South Australian Housing Code Design Wind Speed Map[24] (‘Wind Speed Map’) and it was not necessary for the verandah to be designed using a wind speed derived from AS1170.2-2011.
[24] Exhibit P6.
·While the verandah was not compliant with NCC-2011 as at 17 August 2011, it could have been brought into compliance with a design wind speed of both 28 m/s and 33 m/s.
·All of the building works were authorised under the terms of QRS’ builders licence, and was properly supervised by a supervisor nominated and approved under that licence. If not, then the ‘inadvertence’ defence under s 6(2)(b) of the Act is available, and the Court should find that any breach by QRS of s 6(1) should not disentitle it to be paid the contract price;
·Even if the Court finds that the ‘inadvertence’ defence is not available, QRS is entitled to be paid for the building works it did carry out on a ‘quantum meruit’ basis.
·Whether or not the fence or enclosure would be built is not relevant to QRS’ entitlement to be paid the progress payment.
·The Court should find that it was agreed between Mr Ryan and Mr McIntyre that the final design of the fence or enclosure to the verandah would be deferred pending completion of the verandah.
·The Defendants had not finally concluded on the exact design of the fence or enclosure.
·QRS was not obliged to build a fence or enclosure in that this part of the scope of works was deferred until after the verandah had been erected, and in particular after the strip footing had been laid so that the finished floor levels of the verandah could be determined to enable the final design of the fence or enclosure to be agreed.
·The reason the Defendants have insisted that the verandah was to be fully enclosed was to take advantage of the reference in the planning approval issued that the verandah not be enclosed, and for no other legitimate reason.
·In any event, if the Defendants had asked for the fence or enclosure to fully enclose the southern verandah and part of the western verandah, this would have been built by QRS. Because the fence or enclosure had not been built, it was hypothetical to assert that QRS would not have fully enclosed the verandah.
·The reason QRS did not obtain development approval for the fence or enclosure was because it had been agreed that the final design would be deferred.
·The Defendants obtained planning approval for the construction of a verandah designed by Greg Donnell & Associates, (‘Greg Donnell Design’) a design which showed a fully enclosed verandah with specifications matching exactly drawings prepared by QRS, except the Greg Donnell Design showed the issue of the glass panels had been resolved.
·The Defendants are entitled to deduct the cost of carrying out the rectification works recommended by Mr John (as agreed by the expert quantity surveyors to be the sum of $9,457 or if the works in relation to the footings are removed, $3,733.70) from the contract price of $37,360.00, leaving the sum of $27,903 or $35,286.60 as payable, plus interest on that amount from the date that payment was due, being 7 days from 30 November 2011. If the amount payable is the quantum meruit amount of $39,020.30, then the amount payable is $29,563.30 or $35,286.60, plus interest from the date of completion of the verandahs, as this is when the Defendants received the benefit of those verandahs.
·QRS are entitled to be indemnified by the Defendants for the legal costs and disbursement incurred in the ERD Court action (including the amount it was required to pay the Council for its legal costs).
THE DEFENDANTS’ CASE
The Defendants say:
·Mr McIntyre made clear to Mr Ryan he wanted a single continuous verandah running down the south side of the house and then continuing around on the western side.
·The Defendants were not given the Contract Details. The document did not exist in the form in which it is in the exhibit at the meeting on 7 July 2011 as it incorporates and reflects changes that were not made until September 2011.
·The contract also included fully enclosing the verandah so as to provide a complete seal against wind and rain.
·There was no agreement that the Defendants or their paver would install footings or that there was an agreement for the footings to be ‘temporary’.
·Payment of the progress claim sought by QRS, is only payable when the verandah was constructed and erected in accordance with the agreement between the parties, compliant with the relevant development approvals and structurally adequate.
·In maintaining a commitment to perform only in a manner inconsistent with the terms of the contract, QRS repudiated the contract, which was ultimately accepted by the Defendants.
·QRS was not licensed to do aspects of the work, and are thereby prohibited from successfully recovering for the price.
·As they have ultimately received no benefit from the project and are without anything of value from QRS, QRS cannot recover pursuant to a claim for quantum meruit.
THE WITNESSES
Assessment of witnesses
In assessing the evidence of the witnesses it is relevant to note that discussions concerning the agreements between the parties were conducted back in 2011. No doubt recollections have been affected by the delay which quite properly explain vagueness about what was said and when, but which has made an assessment of the evidence more difficult.
The Defendants are both involved in their kitchen design and construction company. Each has experience in design and is familiar with building concepts and drawings and I have considered their evidence, particularly as to the drawings, against that background.
Clearly Mr McIntyre’s recollection did suffer from the delay. In particular, I note his evidence of when it was he first met with Mr Dalgarno and his denial until part way through cross examination that a Check Measure occurred. Overall my assessment of his evidence was that he was struggling to recall meetings and discussions in any real detail and his ability to recall certain matters, but not others, can only be ascribed to reconstruction.
Ms McIntyre had very definite views about what had been constructed, but was not involved in the initial design stage with her husband and Mr Ryan. Her evidence was of little or no value with respect to a number of the issues to be determined. It was apparent from her evidence and in particular her interaction with the media,[25] making what could only be described as veiled threats, that she was determined that she would not accept ‘the Monstrosity’[26] as she described the verandah and wanted to move on. It was telling that what the Defendants went on to later build, bore no resemblance to what was designed by QRS, or even the Defendants’ own version of that design.
[25] See Exhibit P122 where in an email to Mr Ryan, Ms McIntyre on 2.11.11, wrote: ‘Please action immediately, another one of my very good mates, Frank Pangallo Today Tonight, god I hate me.’
[26] Exhibit P64.
Mr Ryan was at times argumentative. He was clearly frustrated by the allegation that he had not provided the Defendants with a copy of the Contract Details and it appeared his frustration arose from genuine incredulity that the contract could have been accepted by the Defendants without having had some reference to the alphabetised references on the Construction Plan.
Having made those specific observations, in my view, all lay witnesses called at trial were doing their best to recall details accurately, but their recollections were clouded to some extent by their interest in the matter.
Matthew Ryan
In 2011 Mr Ryan was working for QRS as a sales representative, having worked there for approximately five years and previously as a tradesman working in roof plumbing.
All dealings in relation to the matter at least initially, were with Mr McIntyre, who he said was ‘pretty clear’ on what he wanted, that is, a curved verandah running down one side of the house, and across the front of the house. The roof tiles also needed some rejuvenation and the gutters needed to be done, together with a few other bits and pieces.
As regards to how the verandah was to be fixed to the roof, Mr McIntyre seemed pretty sure about a ‘king post’ sort of set up, but could not recall if Mr McIntyre actually used the those words.[27] Mr Ryan explained a king post design attaches the verandah to the roof on posts, leaving an air gap.
[27] T18.
Mr Ryan said he gathered Mr McIntyre knew of the type of verandahs QRS built, in that he seemed knowledgeable about the construction industry generally. Mr Ryan thought Mr McIntyre had visited the QRS display centre as he made reference to the curved verandah ‘like the one at the display centre.’[28] It was, he said, obvious Mr McIntyre was ‘pretty clued in’.
[28] T20.
The only thing discussed about the shape of the verandah was that it was to be curved. As regards the meeting of the verandahs at the south-western corner, Mr Ryan said it was not discussed at all because there was only one way it could happen. Construction employing a ‘hip joint’ was definitely never discussed. If it had been raised, Mr Ryan said he would have strongly advised against it.[29] He would not have said it could not be done, but would definitely have said he needed to go back and get some engineering advice to see how it could work.
[29] T24.
At the first meeting Mr McIntyre described a barbecue and set-up for an outdoor kitchen and talked about a full height wall, then a windbreak with glass panels to get the view, down to the south-western corner. There were to be blinds on the next bay and gates. Mr McIntyre wanted a full height wall to put his barbecue against. The issues of ventilation and heat were discussed but Mr Ryan said he was under the impression that those issues were not finalised. The idea was to get the verandah built and to finalise all those things later. Mr Ryan prepared and sent the Quote to the Defendants.
Within about a week Mr McIntyre said they would go ahead with all of the quoted work. Mr Ryan visited the site again with his Construction Plan pad. Normally contract details are set out on the one document but in this case, because there were so many items to be described on the Construction Plan, he prepared the Contract Details document.
Mr Ryan described standing at the kitchen bench with the Defendants, going through the Construction Plan with reference to the Contract Details, at length. The main issue was the height of the wall of the enclosure, Mr McIntyre deciding it was best to make it 900 mm, reducing it by 200 mm, to give a clear view over the lake.
Mr Ryan said he amended the Contract Details document by crossing out the 1.1 m in (d), (f) and (h) and writing .9 on each, in accordance with the discussion.[30]
[30] T31.
Mr Ryan witnessed Mr McIntyre’s signature where provided for on the Construction Plan. He had multiple copies of the Contract Details document and left one with the Defendants.[31]
[31] T33.
Mr Ryan said he completed the Construction Plan by detailing the PRODUCT as ‘curved verandah’ and WIND SPEED as ‘33’. He said that he determined the appropriate wind speed by reference to the Wind Speed Map that gives ‘a pretty good indication of what wind speeds apply’. The area of the Defendants’ property fell he said, into a ‘28’ class,[32] but in accordance with his practice, he applied a higher wind speed to cover himself price wise, should Council decide a higher wind speed was necessary.
[32] Australian Standard 4055 as wind class N1.
As regards any further discussion about the design of the verandah, Mr Ryan said they just ran through the contract, which he said clearly showed the design. He was not asked by either of the Defendants anything about the south-western corner.
He had no further contact with the Defendants until the Check Measure, which he attended with Mr Dalgarno and Mr McIntyre. Mr McIntyre made a couple of changes to the southern wall for the installation of glass panels allowing a view out to the park; a gate at the south-western corner; another verandah on the northern side; and roller panel-lift doors. Mr Ryan described the discussions as ‘very casual’.[33]
[33] T38.
Mr Ryan said that at the Check Measure there were discussions about the footings ‘at length’.[34] He understood the Defendants were having paving done in addition to the QRS work. He said he had a clear recollection about the discussion because there was a little drop in the ground from where the pavers were going and he picked one up which was quite loose, and asked Mr Dalgarno what needed to be done. Mr McIntyre told them he would arrange for a concrete plinth the whole way around.
[34] T39.
Mr Ryan said a verandah can be fixed with either an in-ground connector or bolted-down. In this case the verandah was to be bolted-down.
Mr Ryan prepared the Variation Document sometime after the Check Measure, detailing all the things Mr McIntyre had added to the job, which needed to be priced.[35] The document was sent to the Defendants and returned signed and dated 30 September 2011.[36]
[35] T41.
[36] Exhibit P7.
Mr Ryan said he had no further meetings with the Defendants until it went ‘pear-shaped’. He had heard from Mr McIntyre a few days into construction that Ms McIntyre did not like the curved bars used in the construction, which must be changed as she did not like the colour. Mr Ryan said he explained the bars could not be powder coated or painted. After that call, he never heard about the issue again despite Mr McIntyre sounding adamant they were to be changed.[37] He heard nothing further until the ‘hip’ issue arose a couple of weeks after the verandah was constructed.
[37] T42.
The Defendants said they wanted a ‘hip’ and a meeting was arranged, attended by himself, Mr Dalgarno and the Defendants. He said this had not been mentioned before. The Defendants explained they were the laughing stock of the neighbourhood.[38] Mr Ryan said he recalled asking Mr Dalgarno whether a ‘hip’ could be constructed and was told ‘it probably could’, but that ‘it would not work’. The meeting concluded with an agreement QRS would seek engineering advice, organise a variation, and give the Defendants the option of having a ‘hip’ installed.
[38] T31.
Mr Ryan said that it was ‘pretty much just standard’ for him to have seen the documents drawn by Mr Dalgarno[39] as the supervisor usually sends them to him and he then forwards them to the customer. He said he instructed the receptionist at QRS to send Mr Dalgarno’s drawings to the Defendants.[40]
[39] Exhibit P34.
[40] T44.
On 29 November 2011 he received an email[41] from Ms McIntyre, in the following terms:
Hi Matt
Can you please email plans for works including 3D views as requested so I can get an idea on what we have purchased. Particularly I would like to see both views of the roof gables, as it is now and how I thought it should look as per our last meeting.
The paving is being done at this moment and will be finished by end of the week, hopefully.
We will be away on the 8th and would like to be clear on expected works, however it looks at this stage we will be needing security fencing. I will organize the fencing and my son will be keeping watch on our home.
Thanks
Kind Regards,
Julie McIntyre[41] Exhibit P8.
Mr Ryan responded to that email on 30 September 2011 in the following terms:[42]
[42] Ibid.
Hi Julie,
I have spoken to Greg regarding the drawings and he has spent a lot of time trying to get the 3D views that you are after and is having difficulties with them.
To have a hip beam as you have mentioned can be done, but you would have to have two hip bars as the sheets would not meet in the middle as they are different radius.
The larger curve is a complete curve which curves back to your roof on your house whereas your smaller curve only curves up. This makes the meeting point of the two curves different which in turn needs the 2 hip bars.
I really believe that it will look a lot better with a lexan infill as is apposed (sic) to a hip. It certainly will be no eye-sore when completed.
In regards to the drawings are you able to send me a couple of photo’s taken from the foot path looking at the corner section and your house and I will photoshop/draw in the proposed finishes.
I think this is the only way we are going to be able to give you a real 3D view of your project.
I am at home for the next 2 days, so I can work on it then, if its not possible to email me a couple of photo’s let me know and I will organise for someone to call through and take some.
regards
Mr Ryan said the issue of 3D views had never been raised beforehand by either defendant. He felt it was ‘quite bizarre’, to be asking for drawings when they had already built the structure and were trying to arrive at an outcome.[43]
[43] T46.
Mr Ryan received a further email from Ms McIntyre dated 7 December 2011.[44] In that email Ms McIntyre listed a number of items that needed to be finished by QRS before any money was paid. She wrote in the following terms:
[44] Exhibit P9.
Hi Matt,
The veranda needs to be finished before any money is paid.
Block in Ends re: front elevation drawings TBC
Downpipes
Leaf guard
Flashing
PaintAnd before you say “But Len Said” it was you who held up the paving guy, so now there is no time before Xmas to complete.
So anways (sic) have a great Xmas, a safe one and we will see you in the New Year.
Cheers
Kind Regards
Julie McIntyreMr Ryan said that as at 7 December 2011, the only work to be done on the verandah was the infills with Lexan sheeting enclosing the ends where the verandahs met, to make it watertight.
There was a series of further email correspondence between himself and Ms McIntyre, commencing on 3 February 2012, wherein Ms McIntyre raised issues she had with the design of the verandah.[45]
[45] Exhibit P10.
Mr Ryan said that he was pretty sure the last time he went to the property was with Mr Dalgarno before Christmas when they were trying to get the ‘hip thing’ sorted out, a couple of weeks after the frame went up. At that meeting, Mr McIntyre told him that 'You're dealing with her now', meaning Ms McIntyre, then walked off and started painting a wall.[46]
[46] T48.
In cross examination, Mr Ryan agreed Mr McIntyre told him one of the reasons he wanted to get a quote on a verandah was to fully enclose the area and provide full protection against wind and rain.
Mr Ryan said because of Mr McIntyre’s knowledge in the building industry, it was an ‘easy quote’.[47] He said he had worked in Roxby Downs for a few years where the Defendants’ kitchen company installed kitchens for Western Mining, and he knew the Defendants’ sons.
[47] T54.
Mr Ryan agreed that when he first met Mr McIntyre, he told him what he wanted was an arc, curved roof verandah to be constructed along the southern side of the residence connecting to and extending along the western or lake side. Mr Ryan agreed Mr McIntyre made reference to wanting the design to be the same as at the display centre which, Mr Ryan said, was on king posts.[48]
[48] T55.
He said Mr McIntyre wanted the verandah built in that way to allow for ventilation, and that Mr McIntyre was very clear on the design of the verandah but was not clear on what was going to happen with the enclosure. In answer to the suggestion Mr McIntyre was sure about what he wanted for the enclosure, Mr Ryan gave the following evidence:[49]
Not really, no. He wasn't sure about the ventilation. He was very clear on the design of the verandah but he was certainly not clear on what was going to happen with that enclosure and that became apparent when he changed it all, and I had that feeling as well because I was suggesting ventilation on that side. I was quite adamant that it would have been a good thing to do and, like I said, I was pretty sure that wasn't going to be the finished product.
[49] T58.
Mr Ryan did not accept Mr McIntyre told him he wanted a full enclosure with no gaps or openings on the whole of the southwestern side and for three metres along the western side, so that they could use and enjoy that area even in windy and blustery and rainy conditions.[50]
[50] T59.
In response to whether the clear instruction that Mr McIntyre gave was that the verandah roof would extend continuously along the western side to the south-western corner and then connect to and extend continuously along the southern side, Mr Ryan said: [51]
If you want to class that as saying 'I want a curved verandah all the way down to there and then a curved verandah all the way across the front', then yep, that's what he said.
[51] T62.
He said there was no 'continuously' and that what was said was:[52]
There was 'I want a verandah, curved, run straight down to that corner, I want it all the way across the front'. This all happened in, like, five minutes. It was one of the shortest and easiest quotes I ever done. That's - when I say he was very clear, it was - it wasn't stand there and talk about his blinds and his fence and his timber posts. It was 'Yep, I want a verandah down there, I'm going to put a barbie here, that will go to there, I want one right across - the same curve across the front' and then we were talking about other things. That was almost it with the verandah.
[52] T63.
Further, Mr Ryan said:[53]
It was the wave of an arm, 'Yep, I want a curved verandah all the way down there, one all the way across the front'. 'Yeah, yeah, yes, no worries, we can do that.' That was it, end of discussion.
[53] Ibid.
When it was suggested Mr Ryan may have forgotten what had occurred by virtue of the time delay and the many verandahs he had quoted on in the meantime, Mr Ryan said the verandah would not have been designed like it was if it had been spoken about in the way the Defendants alleged. He said if the Defendants had wanted a ‘hip’, it would have been discussed and:[54]
I would have had to get some serious engineering, some other plans, there would have been a whole heap of stuff because the costing would have just been completely different, it would have been blown out of the water. So it would have - the design would have just been absolutely different. It was never discussed, I'm telling you now, a hundred-per-cent sure, because I don't guess things when I do quotes, we've got software that basically quotes things for us. Anything out of the ordinary which that end - the way that they're suggesting, I would class definitely as out of the ordinary, it's something I couldn't have costed let alone even know if it was possible to do. So it would have required getting engineers involved, ra ra. It would have been a whole process for me.
[54] T66.
Mr Ryan denied he was now regretful that he did not realise these things at the time, reiterating he designed and quoted for what was wanted.
When it was put to him that as regards the shape of the verandah, Mr McIntyre made the motion with his arm so as to indicate that what he wanted was a roof flowing continuously around the corner in one piece, Mr Ryan said that he did not recall that being the case and added:[55]
It didn't happen, no. There might have been an arm wave, like I said, 'A verandah down here to the front and a verandah across the whole -' you know '- down the side and then one across there'. I think that was probably where the arm was waved around but, like I said, it was a very, very short visit for a quote of this nature. I could have been with other customers there for two hours and been back six times to do something of this nature and this was like a 10, 15 minute thing; in, out, bang, I had my stuff, measurements, gone.
[55] T67.
Mr Ryan said he told Mr McIntyre that the enclosure details could be changed and that it was not critical to get them finalised then in that:[56]
I said to Len a number of times ‘those types of things can be changed, it’s not critical that we get them now, they can be changed. What was needed was to get the design itself’ - which he was very clear on – ‘into Council and we can get the verandah built’- which you always do - you can't do anything of the screens, walls or anything until the verandah is up because they're all critical measurements. So there is quite a large time frame for them to change their mind, which they did.
[56] T69.
Mr Ryan said he did not think the issue of the location of the property was on the shoreline of the lake and heavily exposed to the prevailing winds and rains from the south and from the west was discussed, but that it went without saying.[57]
[57] Ibid.
Mr Ryan accepted price was not the issue for the Defendants and that they wanted him to be very clear on what they wanted, and that QRS could do it.
Mr Ryan said he thought the second meeting went for about twenty to thirty minutes and while both Defendants were there, Ms McIntyre did not speak. She was he said,’ around the place, probably in earshot.’
Mr Ryan said he had provided an unamended version of the Contract Details at the meeting on 7 July 2011. Only amendments to paragraphs d), f) and h) were made on that day. Mr Ryan said he had not crossed out a) which read:
Full Height 50 mm Insulated Bondor Wall, approximately 14 m long along southern boundary stopping at the waterfront corner.
Changes to a) would have been some time after the 7 July meeting, once the Check Measure was done, probably by the supervisor.[58]
[58] T79.
With respect to paragraph d), Mr Ryan said he made those changes on both his and the Defendants' copy. It was he said, ridiculous to suggest that the Defendants had not received a copy of the document. He was adamant the document was given to the Defendants when they signed the Construction Plan, but without paragraph a) on the Contract Details having been crossed out.[59]
[59] T81.
Mr Ryan agreed paragraph a) reflected Mr McIntyre’s instructions, namely a full height wall and there was no mention of a ‘fence’ that did not rise to the full height of the underside of the verandah.
Mr Ryan said the drawing on the Construction Plan illustrated exactly what was discussed. If there was to be a ‘hip’, there would be a ‘hip’ drawn.[60]
[60] T85.
When he and Mr Dalgarno attended the Check Measure, they were in the kitchen and Mr McIntyre said they had taken too long and ‘Julie's changed her mind again'.[61]
[61] T88.
Mr Ryan agreed he attended a meeting with Mr Dalgarno and the Defendants at a time put to him as ‘on or around late November or a little later’[62]. He accepted Ms McIntyre might have said something to the effect of why it was the verandah could not be a ‘return-style’. She was, Mr Ryan said, saying they were a laughing stock, that it was really hot and it should be done like a ‘bullnose’. He denied telling the Defendants not to worry. In evidence he said:[63]
We all pretty much knew that the verandah was going to be a hot box because it's all polycarb. I am suspecting they didn't like it. They got that westerly sun and as you can see from those photos we had the infill that wasn't put in yet and they would have just got that sun belting straight through and gone 'We don't like this'. With that infill it would have looked fine.
[62] The meeting is likely to have been some time before 29 November 2011 in view of the email Exhibit P8 from Ms McIntyre to Mr Ryan.
[63] T95.
He denied Ms McIntyre asked to see the plans, rather she was saying she wanted to see 3D drawings. Mr Ryan said that Ms McIntyre had already seen the plans as ‘customers always get copies of the plans’.[64]
[64] T95.
Mr Ryan said it was not unusual and in fact, quite common, for a customer to say they would organise the concrete foundations when paving is being done. QRS bolt down ‘lots’ of verandahs to whatever is in place and would not have ordered a bolt down verandah if there was not going to be one.
Mr Ryan agreed that at the QRS display centre, there were possibly examples of verandas which are curved and the support sides are on the same plane, that is, level. The Defendants said what they had seen was what they liked and wanted.
Matthew Hann
Mr Hann had been employed by QRS as a draftsperson for just over seven years. His day to day role was taking care of all Council approval processes, that is, drawing up plans and submitting applications to Council for development approval for the projects QRS was undertaking. When drawing up plans for submission to Council, he usually had a copy of the contract the client had signed and a sketch for what he called a ‘site plan’ to submit to Council.
Mr Hann completed the Development Application Form[65] for the Defendants’ project. He described the three stages involved in gaining planning approval, that is, Planning Consent, Building and Rules Consent and Full Development Approval.
[65] Exhibit P21.
Mr Hann prepared a site plan, floor plan and elevations[66] which were incorporated into the documents that went to Council and agreed the verandah depicted in those plans showed two verandahs, that is, a verandah on the western side of the property and another on the southern side. The western elevation represented the height to the underside of the beam and also the height to the highest part of the roof. Mr Hann arrived at those figures from looking at the contract where the eave was written as 2400 mm high. He explained that because king posts were to be used, he did a site elevation setting the king post back on the roof with a slight rise, coming to the height of the front beam. He said that on the contract, the job was sold as being fixed by king posts, which are roof mounted. Mr Hann described his calculations in the following terms:
… as I said, I drafted it up on CAD, drew the eave 2.4 metres high and then worked my way back to the king post and then put, I think it would have been, to the best of my memory, about 150 mm rise and then you’ve got your 158 mm edge beam on top of that.
[66] Exhibit P21.
Mr Hann performed a similar calculation to arrive a height of 3570 mm on the side elevation.
Mr Hann said he checked the appropriate wind speed himself for preparation of his plans for submission to Council. He used the Wind Speed Map. He determined the speed to be 28 m/sec, related to a specific wind speed category, N1.
Development Plan Consent was received from Council dated 23 September 2011[67] and forwarded to PBS to issue Building Rules Consent.[68] Included were documents titled ‘Standard Pergola Design for Light and Space Constructions’ apparently prepared by Axilite Consulting Structural Engineers (‘Axilite drawings’).[69] Mr Hann described those drawings as acting as span tables for the certifier to look over and give Building Rules Consent to say it was structurally sound. The documents were supplied to him when he was working at QRS and he did not know who produced these documents.
[67] Exhibit P22.
[68] Exhibit P23.
[69] Exhibit P23.
The private certifier granted Building Rules Consent on 6 October 2011[70] and Full Development Approval was received from Council by letter dated 12 October 2011.[71]
[70] Exhibit P24.
[71] Exhibit P25.
On 25 October 2011 Mr Hann wrote to Council enclosing an application for planning consent for the construction of an additional structure on the northern side,[72] which was ultimately granted on 30 January 2012.
[72] Exhibit P26.
On 17 February 2012, QRS made a formal request for an amendment to the Development Application.[73]
[73] Exhibit P30.
Mr Hann said that:
We became aware that the beam height on the structure was actually going to be built at a lower height than what was approved, so we submitted to Council for an amendment to the original approval.
The original approval showed a beam height at 3.21 metres. Mr Hann said once the supervisor had gone to do his final Check Measure, it turned out the beam height was 2.2 metres, so Mr Hann made application to amend the approval. Mr Hann did not hear back from Council regarding this Amendment Application.[74]
[74] T143.
On 31 May 2012 Mr Hann emailed Mr Travaglione at Council, following up on why Development Planning Consent had not been granted on the ‘minor variations’.[75] Council responded by letter dated 6 June 2012[76] advising:
The owners of the property advised Council in writing that they were halting the construction process until some discrepancies with the verandah design were resolved.
[75] Exhibit P31.
[76] Exhibit P32.
Council advised QRS that without the owner’s consent, it could not make a decision on an existing application.
In cross examination in regard to the site plan he prepared,[77] Mr Hann agreed that the impression given from the document is of a single continuous roof, but explained that such a plan does not indicate how the structure goes together. It purely shows site coverage, regardless of how it is to be constructed and the floor plan does not show how the verandahs were going to connect. He said ‘that‘s probably more of a determination by the supervisor when they order the job’.
[77] Tender Book 33.
Mr Hann was referred to the Development Plan Consent dated 23 September 2011. In particular, at page 52, the note that the verandah ‘shall not be enclosed on any side with any solid material, roller door, or the like.’ Mr Hann understood the design had been approved as an open sided structure and if it was to be enclosed, would need further approvals from Council.
The brief to PBS by letter dated 4 October 2011[78] did not include the page where it is stated that the Development Plan Consent from Council is subject to a condition that the verandah not be enclosed. Mr Hann said it was his usual practice to include it.
[78] Exhibit P23.
Mr Hann said he could not recall anybody giving him direction or instruction as to how to use the Axilite drawings. He said:
These were the specifications that I was given, we had a curved roof verandah, these related to curved roofed structures, so they were sent through with the application to the certifiers.
On his understanding, the structure was a standard, open sided verandah with no enclosure.
Mr Hann agreed that if the structure were to be fully enclosed it would require engineering consideration and input. His understanding however was that if attached to the actual structure itself, that is, the beams and base, it would affect the structure, but if it was to be a free standing wall or fence in between posts and not attached to the structure, it would not have any effect.
Mr Hann said if the verandah was to be enclosed, an engineering report would be required, which would dictate whether they needed to upgrade the footings or not or whether they would build the enclosure free standing to the existing structure or not.[79]
[79] T161.
Mr Hann was referred to the notes on the Axilite documents referring to the pergola being designed for three sides open and to not enclose the pergola. Another note read ‘pergola must not be constructed closer than 500 metres from any shore line.’ Mr Hann said that variations to the contract would have been part of the sale person’s job to negotiate and settle and then deliver to him in his role to seek the relevant approvals.
Mr Hann said he anticipated the approval process for the Amendment Application would be a lot faster. Mr Hann had no recollection of being aware that the job would include enclosing fully the south side and partially the west side by the combination of low walls and glass.
If Mr Hann had been given Exhibit P34 which indicated glass panels and the notes as to how they were to be sealed against the columns so as to create a complete enclosure, he believed the matter would have to go back to the certifiers to ascertain whether it was still structurally adequate.
Gregory Dalgarno
Mr Dalgarno ceased working for QRS in 2012. His role was as carport, verandah building supervisor, meaning he was to arrange all the materials and draw up the plans for verandahs and carports that had been sold. He supervised the building of the Defendants’ work.
He met with the Defendants and Mr Ryan on site, to discuss the Defendants’ plans. He thought the meeting took place on 27 September 2011. He prepared Exhibit P34 on 18 October 2011, after the Check Measure, the information coming from what he described as the contract and the discussions with Mr McIntyre on site at the meeting. The purpose of such drawings was to provide him with information on which to base an order for the required materials and also to give instructions to the installer.
Mr Dalgarno said letter ‘C’ that had been placed at various points along the southern aspect of the verandah meant ‘we would bolt those columns to concrete.’[80] He said he put the ‘Cs’ on the drawing because at the meeting, Mr McIntyre had told him there would be a strip footing along that boundary and the verandah would bolt to that footing. Mr McIntyre said he had plans to have the strip footing in place before the verandah was constructed. Mr Dalgarno said in the event the verandah was not to be bolted to a strip footing, but by way of individual footings, the reference he would have used would be the letter ‘E’, meaning column to earth. He used ‘C’ on the western aspect of the verandah because he knew from his discussions with Mr McIntyre, that there was a strip footing there that was going to be improved as well.
[80] T181.
With respect to the notes on Exhibit P34 detailing the scope of work, Note 8, which read: ‘columns along the rear of property, remove bricks from garden edge fix columns to concrete foundation,’ (‘Note 8’) reflected the plan to have columns along the western side. This note reflected the proposed removal of the bricks along the wall and bolting to the foundation below. Note 9, which read: ‘columns to left side of house fix to concrete foundation’ (‘Note 9’) meant the columns would be bolted along the southern side to a concrete foundation, namely the strip footing.
With respect to the glass panels shown on Exhibit P34 along the southern elevation, Mr Dalgarno gave the following evidence:
Q.Those glass panels that we see indicated on your drawing, were they installed, were they part of the construction.
A.Not at that point, no.
Q.Why not.
A.Because the foundation wasn't done when we built the verandah and they were to be measured and worked out, exact details, and go back to council how that was all going to work after the verandah was built.
Q.But why did you include them on your drawing then.
A.Just for future reference so that everybody knew what was going to be there.
Q.And why was that important in terms of this drawing, to know what might be there in the future.
A.Just so everyone's aware of what the end product is going to look like, so the importance of what each aspect of the job.
Q.Is what might occur in the future - was that important from the point of view of what you were putting on the drawing.
A.Yes.
Q.Why was it important.
A.Well, because I had to allow for what will be there in the end.
Contrary to Note 9, fixing to the concrete foundation did not occur because the paver that Mr McIntyre had engaged was falling behind his schedule.
Mr Dalgarno said he had a discussion with Mr McIntyre, possibly over the phone, concerning scheduling the construction. Mr McIntyre told him neither the paving nor the strip footing had been done so Mr Dalgarno told him they would work around that and concrete the posts into the ground. When he was told the paving contractor was behind, at that point he did nothing. He said:
… we just proceeded. I overlooked the fact that I didn’t supply any concrete on the job to which, when the installer got there, he told me he needed some concrete to concrete the posts into the ground.[81]
[81] T187.
As a result of Mr Dalgarno’s discussion with the installer, Mr Dalgarno ordered the ‘bits and pieces’ and concrete required for the job.[82]
[82] Exhibit P36.
Mr Dalgarno said all the measurements reflected on the documents he prepared, arose from the discussions he had with Mr McIntyre and Mr Ryan at the Check Measure. Heights were discussed so that the gutter on the new verandah would line up at the height of the house gutter. The ‘gutter’ reflected in the plan, which ran between the two verandahs, was not ultimately built. When about 90% of the framework had been installed, Mr McIntyre asked him if the gutter could be removed and the two verandahs could be joined together because he thought it would look better. Mr Dalgarno told him they could and then ordered[83] the necessary parts, namely small pieces of beam to fill the gap and a joiner to join the beams together. The invoices for the parts are dated 15 November 2011.[84]
[83] T190.
[84] Exhibit P35.
Mr Dalgarno said there was another meeting on site after Christmas. He met with the Defendants and Mr Ryan. At that meeting, the Defendants said the design of the structure was not what they thought it would be and Mr McIntyre for the first time, said there should be a ‘hip’ on the end. Mr Dalgarno said he told Mr McIntyre he did not think it was possible, considering the design of the structure in that there were two different widths, curves and radiuses.
Mr McIntyre had tried to compare it to a bullnose verandah which Mr Dalgarno explained was a different type of structure and would not work in this case. The meeting went for quite a while and Mr McIntyre walked off half way through, leaving Mr Dalgarno and Mr Ryan with Ms McIntyre to discuss it further. Mr McIntyre had said ‘I will leave you two with Julie’ and then wandered off to continue working on the house, painting a wall. The conversation continued with Ms McIntyre to the effect that the Defendants did not see the plans and what they had was not what they originally wanted.
Cross Examination
In cross examination Mr Dalgarno agreed that with respect to Exhibit P34 he had included a reference to five glass panels on the southern side. Each measured about 3½ metres wide. There was also a panel on the lake or western side, of about the same dimension. These details appeared to have been edited out of the document in Exhibit P30, that is the Amendment Application. The amendments were not made by him.
Mr Dalgarno said that while the purpose of the plan drawn up after a check measure is to order materials and to give instructions to the installer, the document was also, generally, forwarded to the owners by either email or post. Mr Dalgarno said it was part of his normal practice to email the plan to the sales person so that he could forward it on to the client. Sometimes, Mr Dalgarno said, he would email plans directly to the customer. An email from himself to Mr Ryan on 25 October 2011 showed he had asked Mr Ryan to forward Exhibit P34 to the customer.
Mr Dalgarno was asked whether before Check Measure, it had been his understanding that QRS would be responsible for the strip footing. Mr Dalgarno said:[85]
Well, not before the Check Measure, because it’s irrelevant before the Check Measure, on my part. That’s why I have a Check Measure meeting, to check those details.
[85] T200.
Mr Dalgarno disagreed that the design of the infill wall structure topped with glass was not a job out of the ordinary for QRS at the time.
When asked whether it was unusual for clients to say they were going to do the strip footing, Mr Dalgarno said Mr McIntyre had told him he had a paver who was going to do paving and footings and this was quite common. Mr Dalgarno agreed that at the time of the Check Measure, he had not given any plans or drawings to Mr McIntyre for the paving contractor to work from.[86]
[86] T201.
Mr Dalgarno agreed if concrete strip footings were going to be done they would be in the order of 14 metres in length on the southern side and 13 metres along the lakeside. He also agreed some consideration would be required as to the type of concrete needed, whether reinforcing was needed, and how wide and deep the concrete strip was to be. Delivery, pouring, setting and curing of the concrete would need to be organised. Mr Dalgarno agreed that at the meeting with Mr McIntyre none of these issues were raised.[87] The only thing that Mr McIntyre said was that he had ‘organised it’.
[87] T203.
Mr Dalgarno said if Mr McIntyre was not going to put a strip footing there, he would not have designed the job as he did. Rather he would have shown it connected into the ground.[88]
[88] Ibid.
As to how Mr McIntyre might achieve the strip footings at a later date, Mr Dalgarno said it would easily be done by propping up the structure with Acrow props and removing the concrete.[89]
[89] T211-12.
Mr Dalgarno said the western side was bolted to the existing footing. He did not notice they were totally inadequate to support the weight of the roof either with or without the infill wall structure, the gates or the balustrade.
Mr Dalgarno rejected that someone had overlooked the need to organise and arrange the concrete for the footings. Mr Dalgarno reiterated that the concrete strip footing was never QRS’ job because it was not on the contract.[90]
[90] T214.
Mr Dalgarno denied that general industry use of the letter ‘C’ is to indicate ‘column’. He said the installers used by QRS knew what the symbols were and the supervisors at QRS all used the same symbols.[91]
[91] T225.
There was further examination of Mr Dalgarno as to an in-ground connector he had been shown in cross-examination,[92] which he said, is concreted into the ground to hold the verandah in place. Mr Dalgarno said he had not expected to need to use these in-ground connectors in this job, in that he had expected to bolt down to a new strip footing on one side and an existing strip footing on the other. That is, he said, why Notes 8 and 9 read as they did. A drawing he had prepared dated 18 October 2011 showed a plate that would be bolted down to the concrete strip footings.[93]
[92] Exhibit P39.
[93] Exhibit P38.
Brenton Biggs
Mr Biggs is a building works contractor engaged by QRS to construct the verandah at the Defendants’ property. He first became involved when he received Exhibit P34 in the mail from Mr Dalgarno. He was given a start date and attended the property on that date. Once he introduced himself to Mr McIntyre, he walked around the property to ascertain exactly where the structure was going and did a quick run through of the plans and the scope of the work with Mr McIntyre. He showed Mr McIntyre Exhibit P34 and discussed them with him. Mr McIntyre did not raise any issues in relation to the plans. He asked Mr McIntyre about the absence of a concrete footing and plinth along the southern side[94] and was told it had never been done. Mr Biggs contacted Mr Dalgarno who said he would speak with Mr McIntyre. Mr Dalgarno got back to him the same day saying he had spoken to Mr McIntyre, the work had not been done, and he would arrange for concrete to be delivered. The posts would need to go into the ground and the strip footing and plinth wall would need to be done at a later date.
[94] T263.
Mr Biggs said he understood the ‘C’ on the drawings denoted the verandah was to be bolted to concrete because ‘that’s ... the way they do it.’[95] He said that if it was to have been to earth, it would have been noted as an ‘E’.
[95] T265.
The scope of the works on Exhibit P34 indicated that the posts on the southern side were to be bolted to concrete and on the western side, he said:
…there was an existing strip footing there, we were to remove the bricks from the brick wall where the posts were going and to bolt to the strip footing.
Mr Biggs explained that when a structure was to be fixed to earth, galvanised inserts are inserted inside a post then placed into a hole and filled with concrete.[96] Mr Biggs used some inserts he had in his kit. The holes he dug were approximately 400 mm x 500 mm deep.
[96] T266.
On the western side, Mr Biggs removed brickwork so he could get access to the strip footing that was underneath and then the posts were bolted to that strip footing. Mr Biggs understood that at the corner of the two verandahs there would have been a curved gutter where the two verandahs met.
Mr Biggs said he was on site for approximately two weeks and had dealings with Mr McIntyre during that time, but none with Ms McIntyre. The only issue Mr McIntyre raised during the construction, after Mr McIntyre had discussed the matter with his wife, was that Mr McIntyre did not want the gap with the gutter, but rather, wanted the southern verandah to actually abut against the western verandah. Mr Biggs spoke to Mr Dalgarno and in the end an extra piece of beam was ordered and placed to extend the beam above the house. Ultimately the beam was extended so it would butt up against the western verandah.
Mr Biggs said no other issues were raised by the Defendants while he was on the job and neither indicated they were not happy with the work.
In cross examination, with respect to the glass panels shown on Exhibit P34, Mr Biggs said he did not understand they were part of his scope of work, given they were not referred to on his contract sheet. He said he builds verandahs and ‘things like glass panelling, that type of stuff, that is not within my scope of works to do’. [97]
[97] T274.
Mr Biggs said that from Notes 8 and 9 on Exhibit P34, his brief was to ‘fix’ things but the concrete foundations were to be done by somebody else and were going to be there when he started. The adequacy or the strength of the footings, he said, was nothing to do with him.
Mr Biggs was sure Mr Dalgarno did not tell him that he had overlooked the concrete foundations. Mr Dalgarno told him to pour a standard footing, temporarily sufficient until the concrete plinth foundation wall was poured. Mr McIntyre had told him the paver was behind schedule or something to that effect.
Mr Biggs confirmed that when he arrived on site he was expecting there to be a concrete strip footing on the southern side. On the western side what he saw was what he was expecting to see, given the plan and scope of works included the removal of some bricks. His expectation was that it was not the final work to be done on either side and was temporary.[98]
[98] T288.
In re-examination, Mr Biggs was referred to an order by QRS to All Steel Fabrications dated 26 October 2011.[99] The order included ‘supply footing plates optic galv’. Mr Biggs explained that they were the plates that were to be attached to the bottom of the posts on the boundary of the structure and bolted to the concrete on the western side. On the southern side, because the concrete footing was not there as it was supposed to be, he had to dig the holes and pour footings.
[99] Exhibit P42.
Tony Travaglione
Mr Travaglione is employed at the Council as a development officer. His duties involve the assessment of development applications and inspections.
Mr Travaglione prepared an affidavit in relation to proceedings brought by Council against the Defendants and QRS.[100]
[100] Exhibit P47.
On 13 February 2012, Ms McIntyre attended Council’s offices raising concerns about the appearance of the structure and the way it had been constructed, asking if Council would look at it to ensure the structure had been built in accordance with the approved plans.
On 14 February 2012, Mr Travaglione undertook an inspection and observed the structure was different in appearance to the design Council had approved. He emailed Ms McIntyre on 15 February 2012 informing her that from the Council’s point of view, any changes to the verandah needed to be rectified by submitting amended drawings reflecting the actual appearance of the curved verandah, through a formal Development Application. He noted the Development Application had not included new fencing within the design and therefore she would be required to lodge a Development Application for the proposed glass fencing. Mr Travaglione said he understood the situation was that the owner requested the structure to be partly enclosed which was not included as part of the application to Council and Ms McIntyre wanted clarification as to what would be required to get approval.
Ms McIntyre replied on 15 February 2012, informing Mr Travaglione that ‘we have stopped SA Quality from any further work at this stage I really don’t know what will happen’.
Mr Travaglione said QRS wrote to Council by letter dated 17 February 2012, submitting a retrospective development application. On 24 February 2012 Council development officer, Ms Leah Wojtkowski, emailed Ms McIntyre regarding the QRS letter. Ms Wojtkowski asked Ms McIntyre whether she was willing for the Amendment Application to be lodged. Ms McIntyre replied that QRS had not informed her that they were lodging the Amendment Application and she strongly objected to the Council assessing the application. Mr Travaglione said Council’s concern was if the application was assessed and they knew the owner had not given permission for the development to occur, then Council would be just wasting its time assessing the application.
Council’s formal response to QRS in relation to the application to amend the Development Application was as set out in its letter to QRS dated 4 June 2012. In that letter Council advised that:
Without the owner’s consent council cannot make a decision on an existing application. This is standard practise as without owner’s consent any decision would in effect be invalid as it could not be carried out on the owner’s property’.
The solicitors acting on behalf of the Defendants emailed Mr Travaglione on 16 November 2012, seeking a meeting between the Defendants and Mr Travaglione, and noting as follows:
The grant of development approval was subject to a condition that the verandah shall not be enclosed on any side with any solid material, roller door or the like. But the domestic building contract in this matter was that the whole of the southern side and three metres of the western side from the south western corner was to be completely enclosed with a Bondor wall approximately for half the elevation height from ground level and the remaining height to the verandah roofing to be enclosed by reinforced safety glass. The enclosure on the southern side was to be constructed on the boundary with the adjoining property. To undertake the enclosure now would breach the condition imposed as above stated. We do need to discuss the verandah as erected, the condition banning the enclosure and whether the City of Charles Sturt will consider revoking the condition.
Mr Travaglione said Council would have been concerned if the Defendants wanted to apply to enclose the verandah and it would have required approval from a planning point of view. Council would consider the application if it was lodged.[101]
[101] Exhibit P48.
On 5 December 2012, the Defendants’ solicitor forwarded a report by TMK Consulting Engineers (‘TMK’) dated 17 September 2012.[102] On 21 January 2013 Mr Travaglione emailed Ms Wojtkowski and Dennis Farrow, the team leader in the building section of the Council, enclosing the TMK report. In his email, Mr Travaglione said:
Taking into account that the verandah has not been built in accordance with the approved plans and council has evidence that the structure may have structural concerns, would it be appropriate for John Mazz[103] to also investigate the situation and report back to determine what action council should be taking.
[102] Exhibit P49.
[103] John Mazz refers to building supervisor Mr John Mazzarolo.
Mr Travaglione wrote to the Defendants and QRS by letter dated 22 August 2013,[104] advising it was Council’s position that the work undertaken on the property was an unauthorised development and the parties could either remove or demolish the structure. The Council gave the following directions to remedy the breaches by:
1.Either removing/demolishing the unauthorised curved verandah structure or converting the curved verandah into the structure the subject of the development authorisation for DA 252-2143-11; and
2.Ensuring that stormwater is disposed of in such a manner that it does not flow or discharge onto land of adjoining owners.
[104] Exhibit P51.
Mr Travaglione said Council was giving the parties the opportunity to address the concerns it had. From Council’s point of view the rectification work could not be carried out because Council did not have the permission of the owner to process the application.
Ms McIntyre emailed him on 27 August 2013 asking whether she could show him a plan of the verandah drawn and engineered by TMK. She said she wanted some idea if the verandah would be approved with the enclosure and that the enclosure was always part of the renovations. Mr Travaglione informed Ms McIntyre that the concerns with the enclosure should be directed initially to the planner to look at:
The amenity aspect of your proposal and ensure that it meets the objectives and principles of development control for your residential area. If they are satisfied with this aspect, then the building aspects of structural adequateness and compliance with the Building Code can be assessed by Council or a Private Certifier’.[105]
[105] T108.
The Defendants made an application for the construction of a verandah on their premises described as a ‘partly enclosed verandah’, lodged on 23 September 2013.[106] Ms Zoe Garnot, a member of Council’s planning team, wrote to the Defendants on 27 September 2013 informing them Council had granted Development Plan Consent. In order to build the structure, building rules consent would have subsequently been required.[107]
[106] Exhibit P54.
[107] Exhibit P54.
The Defendants made an application dated 24 September 2013 relating to the demolition of the existing verandah.[108] Mr Travaglione said Development Plan Consent to demolish the verandah would have required building rules consent. With respect to whether, in the event building rules consent had been granted, there would have been any need for Council to pursue its application in the ERD Court to demolish the verandah, Mr Travaglione said:[109]
We would probably want some assurance that the structure will be demolished so we would ensure and it may require us even physically going out there or someone taking photographs to make sure the structure has been removed, before we would stop that procedure going to Court.
[108] Exhibit P55.
[109] T437.
Ms McIntyre emailed Mr Travaglione as follows:[110]
My application yesterday 24 September 2013 to demolish the verandah is as an interested party. We are in support of Council making its own application to the ERD Court for SAQ to demolish. You have my assurance that we will support Council’s application to the ERD Court to demolish should we be called as witness.
[110] Exhibit P56.
In a letter emailed on 1 October 2013, sent at 11.13 pm, Ms McIntyre withdrew the application to remove or demolish the verandah.[111] Ms McIntyre had sent an email at 10.07 am[112] asking for a copy of the TMK application and original copy of the demolish proposal. Ms McIntyre stated: ‘my feeling is that QRS will do anything to stay out of the ERD Court for fear of prosecution. I am wanting the case to be decided in the ERD Court’.
[111] Exhibit P57.
[112] Exhibit P58.
Mr Travaglione emailed Mr Mazzarolo on 15 October 2013 following on from an email from the Council’s solicitors. Council brought proceedings pursuant to s 85 of the Development Act, 1993 in relation to demolition of the verandah. Mr Travaglione noted that:
as you may be aware, the owner has withdrawn their application to demolish the existing veranda. This leaves no choice for Council but to commence section 85 proceedings.’
By order dated 28 January 2014, permission was granted to serve a summons on the Defendants and QRS for a breach of s 85 of the Development Act.
Council’s solicitors informed Mr Mazzarolo that following an inspection, a two storey addition to the Defendants’ house meant that it was now not possible for the Defendants or QRS to convert the verandah to what was originally approved. Accordingly, solicitors for Council recommended the summons be amended to require QRS to pay the Defendants the cost to remove the verandah completely.[113]
[113] Exhibit P60.
Mr Mazzarolo emailed Council’s solicitors on 9 September 2014 after reading reports from Mr Kokkinakis and Mr John. Mr Mazzarolo said as follows:[114]
The TMK report is much more detailed and concludes the veranda should be removed. The argument for removal is more persuasive than the one for attention and fixing it up. The Fyfe report talks mostly about the wind loading, and suggests the veranda can be fixed but that a structural reanalysis will be required. The problem here is that the end result may not look very good, and probably won’t be acceptable to the owners. In any case, like most structures of this type, they can be fixed to comply with the Code. I think it can be fixed, but it may be more economical to remove it. The two reports don’t contradict each other. TMK has done more to address the structural differences, whereas Fyfe have said a re-design is required. Both are heading in the same direction; it depends on what outcome is desired by each of the parties.
[114] Exhibit P61.
Mr Travaglione said in circumstances where development application is made by a builder, and a decision granting Development Plan Consent is made by the Council, it is invariably the case that owners of the property are sent a copy of that decision as well as the builder.
In cross examination Mr Travaglione explained that if the Defendants did wish to apply to enclose one side of the verandah that would have required Development Plan Consent. In regards to building rules consent, it was a structure 1.8 metres in height so therefore would not require building approval but would still require Council to issue full development approval.
With respect to the Amendment Application dated 17 February 2012, if it had been granted, it would require building approval because of the nature of the development. It was to be fully enclosed and not a fence per se and would have required the full three steps. If that had been approved and if the owners wished to install glass to fully enclose the structure, it would require another application for the full three consents.
Mr Travaglione could not recall if Ms McIntyre told him when she visited initially, that she did not have any of the documents that had been lodged with Council.
It appeared from the affidavit that Mr Mazzarolo had filed in the ERD Court proceedings, that he inspected the structure on 12 July 2013 for the purpose of comparing the ‘as built’ verandah structure with the plans that had been approved. He prepared a report dated 16 July 2013 expressing the view the verandah may be structurally unsound, relying on the TMK report dated 17 September 2012. Mr Mazzarolo had said that it is:
Highly likely that the fixings at the base of the columns do not comply with the generic drawings either. If the fixings are insufficient, the columns may be pulled away from the slab under the wind uplift condition. This will result in the veranda being damaged at best, and totally collapsing at worst.
Mr Travaglioni was asked about a directions hearing held in the ERD Court in 2014 where Council and the Defendants were agreed on orders that the structure be removed, but representatives from QRS were opposed. Mr Travaglione said if all parties had agreed the structure could have been taken down, there would have been no need for the ERD case.
Vincent Barry
Mr Barry is the sole director of QRS, which trades under the name SA Quality Home Improvements. Since 2002 QRS has been operating from an address at Clarence Gardens. Mr Barry said he had no involvement in the early stages of the contract with the Defendants.
Mr John described his analysis as different from that undertaken by Mr Kokkinakis, who had assessed each member individually and not as a whole. It was, he said, a simpler way of doing the analysis but would result in Mr Kokkinakis arriving at a more conservative design than the one he had undertaken.
It was apparent from Mr John’s evidence that he was critical of Mr Kokkinakis’ use of a different wind speed in his assessment, that is ASNZS 1170.2 (‘AS 1170.2’)[232] Mr John said, using this standard would produce a more conservative design relative to the requirements of the NCC-2011.
[232] I note Exhibit P6 provides that ‘Design wind speed may also be determined by individual site assessment in accordance with AS4055 or AS/NZS 1170.2’.
I note Mr Kokkinakis adhered to the view that application of the standard AS 1170.2 was required and yet acknowledged that it was appropriate for QRS to use the Wind Speed Map ‘from a legal compliance viewpoint, but not from an engineering perspective’.[233]
[233] Conclave Report [5.2].
The king post issue
The experts disagreed in relation to the support provided by the king posts installed by QRS to the edge beam of the verandah above the existing house.[234]
[234] Conclave Report [13.3.9].
Mr Kokkinakis said the king posts provided only vertical support to the verandah, subject to checking and possible modification of tie-down. Mr John on the other hand said the king posts provided vertical and horizontal support. Mr John said he considered that the horizontal resistance provided by the king posts was extremely significant in the total analysis of the structure[235] and that the size of the footings and the columns would increase very significantly if the horizontal resistance of the king posts was ignored. QRS submitted that disregarding the horizontal support provided by the king posts had led Mr Kokkinakis to increase the size of the footings and the columns, resulting in an overly conservative engineering approach.
[235] T353-354.
Could a wall be constructed?
Mr Kokkinakis’ opinion was that a wall complying with the Defendants’ contended construction could not be constructed in accordance with NCC-2011, whereas Mr John stated that such a wall could be built to comply, if structural steelwork was provided as part of the framing and such steelwork could have been incorporated within the 90mm width of the timber frame.
The essential difference between the experts was Mr Kokkinakis’ opinion that because the wall formed part of the Defendants’ contended construction for the verandah and enclosure as a whole, the wall could not be considered as complying without the verandah also complying.[236]
[236] Conclave Report [13.3.8].
In his evidence, Mr John said:[237]
If the verandah had been constructed and had remained and they now decided – and it had not been demolished – and now decided to infill that, it would be possible to construct a wall between the existing columns without relying on those existing columns in any way, as a free-standing wall.
[237] T326.
Mr John noted that Mr Kokkinakis had in fact designed an infill wall for the structure[238] using steel in his design of that wall. Clearly, according to Mr John, this design showed that a wall could be built which complied with the intent of the Defendants’ contended construction.
[238] Exhibit P44.
Both experts agreed that a wall complying with QRS’ contended construction could have been constructed in accordance with the NCC-2011[239] and that the inclusion of glass above the blue board in the south-west corner would make no difference to their opinions in relation to the ‘fence’ as described in drawings C and D.[240] They also agreed the Defendants’ contended construction could be built, if steel was used as designed by Mr Kokkinakis.
[239] Conclave Report [13.3.4].
[240] Conclave Report [13.5].
In light of this evidence, I have concluded that QRS’ contended construction could be built and the contract completed.
Was it possible to achieve conformity with the approved plans?
Mr Kokkinakis was of the view that the extent of the modifications required would mean that any modification would have been ‘impractical, expensive and possibly aesthetically compromised’ with a demolition and rebuild the most effective solution.[241]
[241] Conclave Report [13.3.9].
Mr John’s opinion was that the verandah could have been modified to comply with the structural requirements of NCC-2011 without demolition, and a wall complying with both QRS’ contended construction and the intent of the Defendants’ contended wall construction, could have been constructed without the need for demolition.
Mr John’s recommendations
In his report dated 12 March 2014, and in his evidence,[242] Mr John detailed the work required in order to bring the structure into compliance with the structural requirements of the NCC, using the N2 wind speed rating. Mr John described the works as being required and being of a practical solution. In his report, Mr John recommended as follows:
[242] T357-358.
RaftersFor the 7 aluminium rafters to the eastern (wide) section of the southern verandah only fix the Lexan H-mould to the aluminium rafters with screws at 300m centres for the central 1800mm width of roof.
Facia beamWhere beam is supported by existing garage roof strengthen existing timber roof rafter with proprietary rafter strengthening bracket and fix the rafter to the existing wall studs with proprietary steel tie-down strap fixed to each member with 3 x 3.1mm nails.
FootingsExpose and examine each footing.
Where the existing footings are less than 650mm square x 750mm deep, strengthening of the existing footings will be required. The details for required strengthening will be determined on a footing-by-footing basis but would typically require excavating alongside the existing footings, inserting dowel bars into the existing footings and pouring additional concrete to increase the size of the footing.
Timber rafter Where the existing rafter of the house supports a King post, fix the rafter to the exiting (sic) top plate with proprietary Tripl-grip connector each side.
Lintel beam For the existing timber lintel beam over the bay window on the western side fix the lintel to the existing wall studs at each end with proprietary steel tie-down strap fixed to each member with 3 x 3.1mm nails.
When asked to comment on Mr Kokkinakis’ opinion as to the extent of modifications that would be required, Mr John described in some detail what was involved in his recommended work. In particular, he said, in a worst case scenario, if the footing was completely inadequate, the columns could be supported temporarily and you could excavate underneath the columns, using holding down bolts connecting through the existing base plate into the new concrete.[243]
[243] T362.
The Defendants say that to achieve conformity would have necessitated the removal of the verandah, which QRS has never been prepared to do. I note however that QRS offered by its Reply to Third Defence and Defence to Third Cross Action[244] filed 19 February 2013, to carry out the remedial works recommended by Mr John.[245]
[244] [25].
[245] Report of Fyfe Pty Ltd 13 February 2013 [15].
QRS argued that demolition was completely unnecessary and that compliance with NCC-2011 could have been achieved with the recommended building works suggested by Mr John and costed by Mr Deans and Mr Sale to be $9,457.00, including GST.[246]
[246] Exhibit P and D127.
In any event, both experts agreed that the verandahs could have been brought into compliance with the requirements of the NCC-2011 and both agreed that both contended constructions could have been built and would have been compliant with the NCC-2011.
Clearly both engineering experts are equally experienced and qualified and are highly reputable. I have however placed greater reliance on the views of Mr John given he had undertaken a more sophisticated and detailed analysis of the structural adequacy of the verandahs as a whole. Mr Kokkinakis’ views, by virtue of his use of AS1170.2 and his rejection of the horizontal restraint of the king posts, were unnecessarily conservative.
The issues raised by Mr Kokkinakis as relevant to whether rectification work should be carried out were in the main, matters that would have been relevant to the builder, tasked with the job to make sure the construction was compliant, in this case obviously, QRS.[247]
[247] See Mr John’s evidence T364, T366.
Were QRS and its sub-contractors appropriately licensed to carry out and supervise the works?
QRS submitted that all of the works it carried out for the Defendants were authorised under the terms of its builders licence, and was properly supervised by a supervisor nominated and approved to that builders licence.
Under s 12(1) of the Act, QRS, as a licensed building work contractor, is required to comply with three criteria regarding supervision of building work it undertakes. First, a registered building work supervisor must supervise building work undertaken at all times during the currency of QRS’ licence. Secondly, building work of any kind performed under the authority of the licence must be properly supervised. Thirdly, the supervisor’s registration must authorise the supervision of building work of the kind being carried out.
The word performed is defined by s 3 of the Act:
perform, in relation to building work, includes—
(a)cause building work to be performed; or
(b)organise or arrange for the performance of building work
Section 12(3) sets out the ramifications for a building contractor’s licence if compliance with s 12(1) does not occur, either because building work is not supervised at all by a registered building work supervisor, because it is not supervised properly or because the supervisor’s registration does not cover supervision of a type of work that is carried out. The import of this section is that a building work contractor has 28 days, starting from the date that one of the three conditions stipulated by s 12(1) is not complied with, to remedy this non-compliance. After the expiration of 28 days the building work contractor’s licence is ‘suspended’.
‘Suspension’ is not defined under the Act, but it follows from a plain construction of the word, and from an analysis of the structure of the legislation, that suspension of a licence resulting from non-compliance with s 12(1) after the elapsing of 28 days is automatic and means the licence held by the contractor is in abeyance.
QRS was licensed as a building work contractor[248] under provisions of the Act as at 22 March 2013. This licence was limited to ‘roof plumbing, fencing excluding brick and brush, carports, pergolas and verandahs’ between 1 February 2010 and 21 March 2013. A certificate produced to the Defendants by a delegate for the Commissioner for Consumer Affairs under the ambit of s 59(3)(a) of the Act confirms this.[249]
[248] Licence BLD 50985.
[249] Exhibits D82 and D125.
Mr Barry was the holder of a building work supervisor registration[250] with limitations, between 1 January 2010 and 11 November 2015 inclusive.[251] In his evidence, Mr Barry said that Mr Ben Lee supervised the roof restoration work conducted on the property. The Defendants tendered a certificate produced under the ambit of s 59 which outlined QRS did not have a nominated and approved building work supervisor named Ben Lee or Benjamin Lee during the relevant period of the roof restoration work.[252] An attached certificate also confirmed Mr Lee was not a registered building work contractor.
[250] Licence BLD 159115.
[251] Exhibit D123.
[252] Exhibit D124.
Taking these pieces of evidence together, it was submitted that QRS failed to comply with any of the requirements under s 12(1), outlined above, in that Mr Lee was not registered as a supervisor and did not properly supervise the work as he was absent from the property on at least one occasion and allowed significant damage to be caused to the roof whilst purporting to supervise the restoration work.
If this was accepted, it would follow that the 28 day period from which QRS was required to remedy these contraventions of s 12(1) would begin from the point when work was performed but not properly supervised or not supervised by a registered supervisor. It was contended by the Defendants that this period began on 7 July 2011 when the contract, which included the roof restoration work, was signed by Mr McIntyre, as this involved organising or arranging for the performance of building work. It is clear that by the time that the roof restoration and guttering work started at the property in early September 2011, Mr Lee was purporting to be the supervisor. This would mean that QRS had 28 days from early September 2011 to remedy breaches of s 12(1). This did not occur.
Mr Barry said Mr Dalgarno supervised the verandah construction. Contrasting the position with Mr Lee, the Defendants said that while Mr Dalgarno was licensed as a supervisor, this registration did not authorise the supervision of the building of verandahs or enclosures. Particularly, Mr Dalgarno’s supervisor registration was limited to ‘structural steel erection limited to pergolas; carpentry and joinery limited to pergolas.’[253]
[253] Exhibit D82.
Reference was made to Exhibits D81 and D126, which set out a glossary of building terms. Relevantly, ‘Pergola’ is an ‘open-roofed framework over a path, terrace or patio, supported on posts or columns’. ‘Verandah’ is defined as an ‘open or partly open portion of a house or building, or a roof space attached to a building outside the principal rooms, and covered either by the main roof or a separate lower roof’. It is apparent then that terms verandah and pergola describe different structures. A structure would not be a verandah, therefore, if it was to be fully enclosed by walls or glass or a combination of both as it would no longer be open or partly open. Arguably, the structure QRS designed and built cannot properly be described as a verandah, given it was constructed to sit above the main roof.[254]
[254] T394.
Again, using the definition of ‘perform’ under the Act, work was performed in relation to the verandah during the Check Measure on 27 September 2011 as this involved arranging for the performance of the building work. On this analysis, QRS had 28 days from 27 September 2011 to remedy this discrete breach of s 12(1). This did not occur.
If it is accepted that both or either of the roof restoration or verandah construction phases led to breaches of s 12(1) of the Act, s 12(3) operates to suspend QRS’ building contractor’s licence, either from early October or from 25 October 2011.
Section 6(2)(b) of the Act provides a defence to QRS if it can satisfy the Court that its failure to comply with s 12(1) resulted from ‘inadvertence only’.
A number of unreported cases have dealt with this section. In particular, in A1 Quality Concrete Tanks Pty Ltd v Civil & Allied Technical Constructions Pty Ltd[255] the trial judge canvassed the meaning of ‘inadvertence’ having regard to a number of judgments considering the phrase in the context of different legislation. In that case, the judge found that the inadvertence defence was open to the owner of a business operating almost exclusively in Victoria and thereafter approached in Victoria by a South Australian resident to do building work in South Australia. The builder in this instance was genuinely unaware of the licensing regime in South Australia. Of note is the fact that the Judge considered the fact that the builder did not advertise its business in South Australia to be a relevant factor.
[255] [2014] VCC 1239.
Contrasting those particular facts, in Hann v Barker[256] and W Cook Builders Pty Ltd v Lumbers & Ors,[257] it was held that where a builder knows of the statutory regime but does not apply for an endorsement for a specific aspect of building work, the inadvertence defence will not be open.
[256] [2012] SADC 122.
[257] [2005] SADC 153.
As in this case it is clear that Mr Barry, while not understanding the process fully,[258] as the owner and operator of QRS, knew of the licensing regime and QRS cannot in my view, avail itself of the inadvertence defence.
[258] T522.
Under s 6(2)(a), it is established that a person required by the Act to be licensed as a building work contractor is not entitled to any fee, other consideration or compensation under or in relation to a contract with another on whose behalf the person performed work as a building work contractor unless the person was authorised to perform the work under a licence.
This section, however, has not been interpreted to exclude the operation of a quantum meruit claim for reasonable work done by a builder falling foul of s 12(1).
In Vizzari Builders Pty Ltd & Anor v Misale & Anor[259] Judge Clayton quoted from Nunkuwarrin Yunti v AL Seeley Constructions Pty Ltd[260] in which Doyle CJ said, when considering a statutory predecessor to s 6(2)(a):
When I consider the language of s 39, and the policy considerations, I conclude that s 39 should be read as denying an entitlement to recover only moneys due under the relevant contract, and not moneys recoverable under a restitutionary claim...[261]
[259] [2011] SADC 86.
[260] (1998) 72 SASR 21.
[261] Ibid at [23].
Judge Clayton went on to conclude, making further reference to Nunkuwarrin Yunti v AL Seeley Constructions Pty Ltd:
Prior J said there was no proper basis upon which s39 or any other provision in the Builders Licensing Act called for a different result in this State. There is no reason why the same reasoning cannot be applied to subs 6(2) of the Building Work Contractors Act also.[262]
[262] At [84].
On the facts of this case, the issue in dispute is whether the Defendants have been conferred a benefit by the construction of the verandah by QRS notwithstanding breach of the licensing legislation.
It was contended by the Defendants that they have not had any benefit due to the demolition of the verandah following the outcome of the ERD Court trial. QRS on the other hand, contended that they built what the Defendants contracted to be built and therefore they enjoyed the benefit.
In Pavey & Matthews Pty Ltd v Paul[263] the High Court held that Ms Paul could not rely on the Builders Licensing Act 1971 (NSW) which provided that contracts for building work were not enforceable by a builder unless in writing. The company was a licensed builder and carried out renovations to a cottage for Ms Paul. The work was done pursuant to an oral agreement providing that Ms Paul would pay a reasonable remuneration, calculated by reference to prevailing rates in the building industry. The work was completed and Ms Paul took occupation of the cottage, but refused to pay the amount claimed by the company. The court made it clear that an unjust enrichment does not arise unless the benefit in question was freely accepted. It would not have been enough for the company merely to show that it had done the work.
[263] (1987) 162 CLR 221.
The NSW Act precluded an action for breach of contract but the company had an independent right to restitution, based on unjust enrichment, which was not affected by the NSW Act. The Court said:
The obligation does not arise from agreement at all. It is an obligation or debt imposed by law which “arises from the defendant having taken the benefit of the work done, goods supplied, or services rendered.”[264]
[264] Deane J quoting from Phillips v Ellinson Brothers Pty Ltd (1941) 65 CLR 221 at 235.
It is clear from the High Court’s decision that an unjust enrichment does not arise unless the benefit the subject of the contract was freely accepted.
The Defendants say they did not accept QRS’ work and did not take the benefit of it, arguing that a benefit would need to be incontrovertible, with the test to be satisfied being that no reasonable person would deny that a benefit was received.[265] The Defendants say this test cannot be satisfied given that the verandah was not what was agreed, was structurally unsound, had no proper approval and was ultimately demolished. Furthermore, it must be shown that the proprietor has taken the benefit of the work in the exercise of some choice that was actually open. The Defendants did not choose to accept the work, so no quantum meruit claim either in contract or in restitution arises.
[265] Craven-Ellis v Canons Ltd [1936] 2 KB 403.
Whether or not a defendant has chosen the benefit is to be assessed objectively, and where the defendant manifested a choice for the service, his subjective thoughts are irrelevant.[266]
[266] Edelman and Bant, Unjust Enrichment Oxford and Portland, Oregon, 2nd ed. 2016 63.
In my view, the fact the verandah was removed is not the point. Having found that what was built was as agreed between the parties, the Defendants received the benefit which they had requested,[267] and QRS is entitled to the progress payment less the value of the remedial works.
Legal costs and disbursements incurred in the ERD Court Action
[267] See JW Carter Contract Law in Australia 6th ed. 2013 38-14.
322 of 2013
The costs decision in the ERD Court action has been deferred pending the outcome of this action. The parties seek orders in relation to that with each party also seeking an indemnity from each other for the costs they have been ordered to pay to the City of Charles Sturt.
The ERD Court was not able to order rectification works to the verandahs as the Defendants had withdrawn their consent for any further work to be carried out. I accept that the ERD Court action was necessitated by the Defendants insisting that the verandahs should have been constructed with a ‘hip’.
The Defendants relied on the proposition that the verandah was not what they wanted to justify their refusal to allow the Council to assess the Amendment Application to amend the development approval; to justify denying QRS the ability to bring the verandah into compliance with the approved plan; and, to justify refusing QRS the ability to carry out the remedial works recommended by Mr John.[268] As I have already noted, QRS offered to carry out the remedial works recommended by Mr John.
[268] T861.
Had the Defendants allowed Council to assess the Amendment Application and allowed QRS to carry out the remedial works then the verandahs would have been compliant, avoiding the ERD Court action. I accept QRS’ submission that the Defendants chose not to do either in an effort to achieve their desired outcome in the District Court action, namely the demolition and removal of the verandah. That this was so, is plainly evident from the email correspondence between Ms McIntyre and Mr Travaglione.
By 1 October 2013 Mr Pangallo was involved and had sent a number of emails to Mr Barry. It is evident that Ms McIntyre, in bringing Mr Pangallo into the matter, was trying to exert pressure on QRS. I accept Mr Barry withdrew QRS’ consent for the verandahs to be demolished because he was concerned at the prospect of Mr Pangallo’s involvement.
QRS submits that the ERD Court action arose only because of the Defendants’ conduct and that the Defendants could have authorised QRS to carry out the remedial works without prejudice to their position in the District Court.
CONCLUSION
The appropriate remedy for what was clearly QRS’ defective building work, is the reasonable cost of rectification, provided of course the work to rectify is a reasonable course to take.[269]
[269] Bellgrove v Eldridge (1954) 90 CLR 613.
Having both found that QRS built the verandahs in accordance with the contract and the verandahs could have been brought into compliance, QRS is entitled to be paid on a quantum meruit basis the sum of $37,360 (GST inc).
Having found in favour of the Defendants in relation to the issue of the footings, QRS are not entitled to have the cost of the footings taken into account.
The Defendants are entitled to deduct the cost of carrying out the rectification works recommended by Mr John as agreed by the expert quantity surveyors to be in the sum of $9,457. QRS are thereby entitled to payment in the sum of $27,903 plus interest from the date of completion of the verandahs.
I accept that the Defendants took positive steps to encourage Council to issue proceedings, and for that reason I order that the Defendants pay QRS’ costs of the ERD Court action, and indemnify QRS for the costs it has paid to Council.
Given I have concluded QRS was correct in the contractual stance it adopted, there was no basis for the Defendants insisting that QRS rectify the works to bring it into conformity with the design they wanted. QRS offered to and could have carried out the rectification work set out by Mr John. Retrospective approval for the verandah that had been built could have been given. The contractual stance adopted by the Defendants meant this could not proceed. The Defendants’ cross-action is dismissed.
I will hear the parties in relation to the final orders and costs.
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