Robert Genge v Paragon Portfolio Pty Ltd

CITATION: Robert Genge v Paragon Portfolio Pty Ltd [2011] QCAT 234

PARTIES:	Robert Genge t/a Jak Genge Building
v
Paragon Portfolio Pty Ltd t/a Style Plantation Cairns

APPLICATION NUMBER:   BDL219-10

MATTER TYPE: Building matters

HEARING DATE: 05 April 2011

HEARD AT: Brisbane

DECISION OF: Anne Forbes, Member

DELIVERED ON: 31 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:     

1.    The Respondent shall pay to the Applicant, by way of damages, the sum of $26,906.00 within 28 days of service of this decision upon it.

2.    Interest at the rate of 10 per centum per annum (10%) shall be payable upon the balance from time to time of said sum from the date of this decision until payment.

CATCHWORDS:

Building sub-contract – defective work – action by head contractor – respondent in breach of tribunal orders or directions – judgment by default

Queensland Civil and Administrative Tribunal Act 2009, s 48

APPEARANCES and REPRESENTATION (if any):

Decision determined on the papers.

REASONS FOR DECISION

1. Robert Genge filed this Application against the Respondent (“Paragon”) on 15 July 2010, seeking damages, interest and costs for breach of warranty and negligence, and alternatively for rectification of defective work.[1]

   [1]The claim for rectification has been abandoned, as the Respondent no longer holds an appropriate  builder’s licence.

1. The relevant contract was made on or about 16 April 2007.  It was for the installation of bamboo strip flooring on the ground floor of a building constructed by the Applicant for Jan and Julian Warnock at 7 Lee Street, Freshwater, near Cairns.  The contract price was $15,840.95, which the Applicant paid in full.

1. The Respondent commenced work on or about 24 April 2007 and finished on 21 December 2007.  At that time the Respondent was licensed as a “low rise” builder, and held itself out as an experienced provider of bamboo flooring.

1. As the Applicant alleges, it was soon apparent that the Respondent’s work was sub-standard.  In March 2008, just three months after completion, severe “cupping” and “ripping” affected the bamboo flooring of the entire ground floor at 7 Lee St Freshwater.  Then, and on several subsequent occasions from 2008 to 2010, the Applicant requested the Respondent’s alter ego, Shane Kenneth Wegner, to rectify the faulty workmanship.  No rectification or compensation has been forthcoming.  The Warnocks complained to the Building Services Authority (“the BSA”) in February 2010; the BSA ordered the Respondent to make repairs within 28 days, but the Respondent did not comply.

1. In essence, the Applicant says that the problem was caused by the Respondent’s failure to waterproof properly the concrete slab on which the flooring was laid, or to “acclimatise” flooring before installation, or both.  It is undisputed that, in October 2009, laboratory tests ordered by the Applicant disclosed a moisture content of 9.2% - 10.6% in 3 samples taken from the floor.  A copy of the laboratory report was sent to the Respondent, but no remedial action followed.

1. The Applicant accepts that he is responsible to the building owners to remedy the allegedly…