Randall v Domestic Maintenance Pty Ltd
[2012] QCAT 266
•28 June 2012
| CITATION: | Randall and Anor v Domestic Maintenance Pty Ltd [2012] QCAT 266 |
| PARTIES: | Peter Randall Selinda Randall (Applicants) |
| v | |
| Domestic Maintenance Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL399-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 18 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | William LeMass, Member |
| DELIVERED ON: | 28 June 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent pay to the applicants the sum of $18,068.00 within 30 days. |
| CATCHWORDS: | Domestic Building Contracts Act 2000, s 44 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr and Mrs Randall |
| RESPONDENT: | Mr and Mrs Jackson |
REASONS FOR DECISION
This matter concerns the construction of paving works upon a concrete slab surrounding a pool at the applicants’ residence at Upper Kedron in Brisbane.
The works have failed catastrophically, can not be repaired and must be removed at substantial cost.
The works render the pool unsafe to be used further necessitating removal.
The nature of the failure of the works is that the slab and paving have sunk below the level of the pool coping to the extent of some 200mm causing substantial cracking, trip hazards and the pool gate to permanently remain unlocked.
The applicants contend that the respondent is liable for the repayment of the whole of the contract price for the works and the payment of the costs of removal of the works and replacement of associated works.
It is fundamental to understand why the works have failed and whom if anyone should have taken account of the reason for the failure in order to prevent that failure.
Reasons for failure
The evidence before the Tribunal universally accepted that the cause of the collapse of the works is at its most basic, the downwards vertical movement of the land directly under the slab as measured against the height of the pool which has remained (more or less) at its original level.
There are many hypotheses as to why the ground would move and these are contained in the experts’ reports, however again it is universally accepted that at least a substantial contributing factor is that such ground is uncompacted fill.
The evidence of Mr Beal, engineer, in his report exhibit 2 at page 5 clause 2.1.1 is as follows:
“Self evidently, the drop in the paving has occurred due to the settlement of the ground supporting the paving relative to non settlement or at least lesser settlement of the pool coping and the pool structure, the latter having been provided with some form of more deeply founded footing system.”
Mr Beal then goes on to outline 5 possible reasons for the ground settlement which may have acted he says either alone or in combination.
The evidence of Mr Fox, engineer, at exhibit 9 page 6 paragraph 4.3 is as follows:
“In my opinion there is no doubt that the ground on which the concourse slab was cast was unstable, and the ground under its own weight would have settled vertically and displaced sideways to the north, irrespective of whether or not the concourse slab was constructed. The ground instability most probably resulted from a combination of vertical settlement due to compaction under self weight of uncontrolled filling … I note that some settlement of filling behind domestic cantilever retaining walls is normal and to be expected.”
The evidence of Mr Morrison, Engineer in exhibit 4 at page 5 clause 5.1 is as follows:
“Clearly the pavers placed by Domestic Maintenance (DM) have settled relative to the pool coping pavers up to 25mm (photo 1) along the inside length (closest to the house) and up to 75mm in the north western corner of the pool (photo 2). The present concourse condition is not acceptable under any circumstances.”
Further at the experts’ conclave the only point which was agreed was the subsidence issue and I quote from the notes:
1.The experts agree that the damage to the slab and tiling is due to the subsidence of the slab relative to the pool and coping.
2.The subsidence of the slab is due to instability of the ground supporting the slab.
Responsibility for determining and avoiding the cause of failure
The Domestic Building Contracts Act 2000 regulates the home building trades in Queensland. Its purpose is stated at section 3:
(a) to achieve a reasonable balance between the interests of building contractors and building owners; and
(b) to maintain appropriate standards of conduct in the building industry.
The Act defines domestic building work in section 8 as including:
(3)Domestic building work includes—
(a)work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and
(b)work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.
(4) Without limiting subsection (3), associated work includes—
(a)landscaping; and
(b)paving; and ...
The works the subject of this matter are domestic building work as defined by the Act.
Section 44 of the Act sets out the standard expected of a contractor carrying out such works.
44. Standard of work and exercise of care and skill
The building contractor warrants the subject work will be carried out—
(a)in an appropriate and skilful way; and
(b)with reasonable care and skill.
Has the respondent acted in this matter in a manner consistent with this standard? The works have failed completely; they are unsafe and must be removed at a substantial cost which must be borne by someone. If the builder is not to be responsible for this failure then it should reasonably be identified as to why. In this regard the respondent builder says in his evidence:
§He was not told by the owner that the land was filled (this is the subject matter of a credit conflict).
§It was not the term of his licence or other obligation to find out about the existence of fill.
§He advised the owner not to put the pavers flush with the pool but to leave a lip because of the possibility of movement.
§If told it was a fill site he would have obtained engineering advice.
§Says he looked over the retaining wall.
§Says in submissions that, if we had known (that it was a fill site) we would never have done the job.
Mr Morrison, engineer, says of the builder’s responsibilities:
1. The paving contractor has been asked to place his product on a defective surface.
2. The fill was defective as found by Compass Pools but this fact was not passed on to the paving contractor.
3. The fill has been settling since the completion of the house, something that the owner knew or ought to have known.
7. Considering the mechanisms of movement discussed a repair of the paved area by any means is not a solution.
9. There is no way that Domestic Maintenance Pty Ltd can be held responsible for the distress to this site when the cause (the boulder wall) is not their doing.
Further in evidence Mr Morrison makes a persuasive illustration, he says:
“A finishing trade has to assume the previous work is satisfactory” and gives the example that, “a roof fixer is entitled to assume that the joists and trusses to which he is attaching the roof are satisfactory.”
The contrary is said by the applicants’ evidence, they say that Ms Randall told the respondent that the site was filled.
The engineer Beal describes the site as originally having a substantial fall of some 7 metres. The site being filled and retained by a boulder wall of some 4 metres in height and a similarly substantial return along the western boundary.
At page 7 clause 2.3 Beal says as follows:
“2.3 attribution of paving defect
We have been asked if the contractor responsible for the paving ought to have recognised the potential for deleterious differential movement between the paving and the pool coping.
In our opinion the answer is yes.
It ought to have been obvious that there was a high likelihood of such movement particularly given that it was quite apparent from the height of the boulder retaining wall and the configuration of the site that there was likely to be a thickness of several metres of fill under the area to be paved … However, given the configuration of the site, it was a relevant question in relation to the proposed paving task … the potential for differential movement between the paving and the coping would arise on any but the most stable sites.
2.4The options for the paving contractor were either to refuse the job or else adopt measures to overcome the problem … or alternatively supporting the entire paving on footings founded through the fill so as to better match the settlement performance of the pool.”
The engineer Fox says at page 7, clause 4.4:
“4.4 Responsibility for damage
The use of uncontrolled filling in the backyard was normal and structurally suitable for the house and pool structure. Indeed it would have been difficult to achieve controlled filling in most of the backyard due to the technical difficulty in compacting filling behind a retaining wall or against the pool. Irrespective of whether or not the filling was controlled filling, the differential settlement between the concourse slab and the pool/house/patio slab was effectively inevitable as some settlement of the filling was almost certain to occur. The substantial depth of filling which was obvious from simple inspection of the topography of the area meant that the amount of settlement was likely to be significant.
22.Not withstanding the actual design and construction of the boulder wall, some loss of support of retained soil, and consequent settlement of the soil surface, were virtually inevitable and to be expected.
23… It followed that the intended construction which had no capacity to resist or “absorb” any significant amount of differential settlement between the pool coping and the abutting concourse was highly likely to prove unsatisfactory.
24.In my opinion an experienced contractor engaged to provide the concourse slab would have been aware of the reliance being placed on his advice by the owners, and certainly should have appreciated the risk of unsatisfactory concourse performance posed by the site, filling and nearby retaining wall.”
Mr Clayton, a builder and representative of the Building Services Authority, who was called and gave evidence said, in his evidence as follows:
“A competent person would have to determine if there is fill there.”
“On a flat site you might not pick it up but this site has a 4 metre retaining wall.”
With respect to the work being exempt he says:
“that is irrelevant, it still needs to perform as a building.”
“A retaining wall, 900ml from the edge of the concrete, 3.5 metres high, that to me would have rung, about fill, there is going to be a problem with the soil.”
Mr Morrison in examination was asked about piers, “If piered would it have still been damaged?” He advised, “work would still be flawed because whilst aligning with the pool there would be a gap underneath allowing vermin.”
The pool
I propose briefly to deal with the evidence relating to the pool. The pool builder was called and gave evidence that they discovered the existence of fill extending below the depth of the pool. As a result there was a substantial variation whereby piers were drilled into natural ground and on top of those piers a concrete “table” was poured and the pool sat upon that concrete table – see exhibit 7.
The coping, that part of the pool at the surface being the ledge around the outside of the pool, concrete, some 300mm wide was also piered substantially to below the depth of the pool at 1200ml centres. The pool builder did not have engineering advice but made the decision to pier upon his own assessment of the soil quality and compaction on site.
Conclusion
I am satisfied that the subject works are domestic building works. In any contract for such works whether or not in writing it is implied that those works need to be reasonably satisfactory.
Further, such satisfactory standard is set out specifically in section 44 above.
It is not sufficient to establish that the works are unsatisfactory, rather that it was the defective works or method of the builder that caused the failure.[1]
[1] Dean v QBSA and Ownit Homes QR183-05 paragraph 16.
I find in this matter that the siting of a substantial concrete slab within some 1.2 metres of a 4 metre retaining wall is not works undertaken in an appropriate and skilful way or with reasonable care and skill if the construction of such works fails to take account of the likelihood of those works being the subject of subsidence because of the existence of fill.
I am persuaded in this regard by the evidence of Mr Fox, Mr Hughes and Mr Clayton. Whilst I am mindful of the evidence of Mr Morrison concerning the obligations of a finishing trade, I do not accept that a person licensed to construct substantial concrete structures which are meant to be robust and perform as building works can in these particular circumstances accept blindly that the soil upon which he stands is either properly compacted or will not be the subject of subsidence. Particularly, when he is standing just a metre away from a 4 metre boulder wall over which he has already looked.
He is not in those circumstances entitled as a finishing trade to assume that the ground is natural ground and sufficient to accept and support the structure he constructs. At the very least he should have perceived the problem and brought it to the attention of the owners.
This is not analogous to Mr Morrison’s submissions with respect to a finishing trade contractor. Mr Jackson was not laying tiles upon an existing slab that he may have been entitled to believe had been properly constructed. He was constructing very substantial works where the potential damage of those works failing is great and is in fact now great because they have failed.
I accept that Mr Jackson honestly just did not consider that the site was filled despite it being remarkably obvious from all physical site indicators. I acknowledge and sympathise with Mr and Mrs Jackson, the directors of the respondent for the impost this will place upon them as the owners of a small business.
This is not a case for rectification. Because of the extent of fill, rectification may not be possible at all, or, at any reasonable expense. A different solution must now be found. This contract has failed for a total lack of consideration.[2]
[2] Pole v Hicks [2012] QCAT 5 the decision of Member Howard at paragraph 15.
Accordingly the whole of the contract price should be repaid. The removal of the works is a cost directly attributable to the failure of the works and is a substantial cost which should not be borne by the homeowner in these circumstances.
The applicants also seek the cost associated with the reconstruction of a glass wall fence. This cost is said to be incurred the works will need to be disassembled and removed and this fence is on top of the works.
It was agreed by the applicants in the hearing to be an enormous cost. It involves the cutting and removal of the fence’s foundations, the storage and then re erection of the glass wall.
It would be reasonably foreseeable that the failure of these works would necessitate the re erection of a pool fence of the type ordinarily bolted together and this could have been achieved at a reasonable cost. However the costs associated with this glass wall are enormously expensive and in my opinion were not a foreseeable cost and are too remote to be sheeted home to this respondent at all. Accordingly the following are the only amounts in the application that I have found that the applicant has satisfactorily proved should be paid by the respondent to the applicant. Accordingly I make an order that the respondent pay to the applicants the sums as follows:
a) Removal of slab and pavers $ 7,348.00
b) Reimbursement of funds paid
by the applicant to the respondent $10,720.00=$18,068.00
The parties were self represented in the matter and it is not an appropriate matter in my opinion to order the payment of costs.
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