Robert Genge v Paragon Portfolio Pty Ltd
[2011] QCAT 234
•31 May 2011
| 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
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.
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.
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.
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.
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.
The Applicant accepts that he is responsible to the building owners to remedy the allegedly defective work of his sub-contractor Paragon, and says that the cost of doing so will be $26,906.00, and that is the amount of the amended claim.[2]
[2] Amended statement of Robert Genge, filed 18 April 2011.
Paragon’s Response
The Respondent filed a Response on 19 November 2010. It admits the alleged agreement (subject to a reservation to be mentioned shortly). It also admits payment of $15,840.95, the results of the Applicant’s laboratory test, the order of the QBA, and the Applicant’s repeated (but unrequited) demands for remedial action.
However, the Respondent claims that its quotation, which the Applicant accepted orally, was accompanied by a printed “Bamboo Flooring Warranty”, exempting it from liability in the present circumstances. But the Applicant, for his part, says that the warranty form, whatever it efficacy might have been, is an afterthought which forms no part of the subject agreement.
The Respondent further says that the failure of the bamboo flooring is due to one or more of three causes, none of which is its responsibility: (1) removal of paint overspray by the Applicant; (2) the Applicant’s failure to seal the concrete slab properly; (3) entry of rainwater due to inadequate drainage.
[10] In relation to item (2), the Applicant points out that the Respondent’s quotation includes an amount of $807.95 for “moisture barrier to slab”.
The Present Position
[11] The foregoing summary suggests that there are substantial issues of fact and law before the Tribunal. But that is no longer the case.
[12] On 19 November 2010 a compulsory conference was held in Cairns. The mediator adjourned that process, estimating that there was a 25% chance of settlement. At the same time the Respondent was directed to file and serve an expert’s report by 30 January 2011, and each party was directed to lodge witness statements and any other relevant documents by 23 February 2011.
[13] On 21 February 2011 time for production of the Respondent’s expert’s report was extended to 11 March 2011, and other relevant documents were to be filed by 1 April 2011.
[14] At a directions hearing on 5 April 2011 the Applicant appeared by telephone. There was no appearance by or for the Respondent. The parties were directed to lodge witness statements etc by 13 April 2011. The Applicant complied by letter and enclosures which reached the Tribunal on 18 April, but the Respondent has not complied.
[15] On 5 April 2011, following the directions hearing that day, the Registry, by telephone, informed the Respondent of the orders just made. On 8 April 2011 the Registry emailed to the Respondent a copy of those orders, and noted that its former solicitors had just withdrawn from the proceedings.
[16] On 13 April 2011, one Allyson Paull sent an email to the Registry stating that “Shane” (meaning Shane Wegner, director of the Respondent) would be absent from Cairns until the following day, and complaining that the Respondent was not given an opportunity to be heard at the hearing on 5 April. However, written notice of that hearing was sent to the Respondent’s solicitors on 21 March 2011, and in the seven weeks that have now elapsed since 13 April, no communication, let alone the material ordered on 5 April, has been received from the Respondent.
[17] The Tribunal has already granted the Respondent several indulgences. Four months elapsed between the filing of the Application and the production of the Response. As appears above, the Respondent received extensions of time on 21 February 2011, and again on 5 April 2011. The Respondent’s former solicitors, in default of instructions, have withdrawn, and according to the Applicant, the Respondent’s builder’s licence is no longer in force.
[18] In particular, the Respondent has not lodged any evidence or submissions in answer to the amended claim for $26,906.00, filed on 18 April 2011. The work needs to be wholly redone. Four years ago it cost almost $16,000, and remedial building work tends to be more expensive than original construction.
[19] In these circumstances, I turn to section 48 of the Queensland Civil and Administrative Tribunal Act 2009. It enables the Tribunal, on the application of a party, or on its own initiative, to make a final decision in an applicant’s favour if (inter alia) a respondent fails to comply with an order or direction, or acts (or, I infer, fails to act) vexatiously, to the disadvantage of another party. In this case the Applicant would clearly be disadvantaged if the matter lingers any longer in limbo. I propose to apply section 48.
[20] As the Applicant has succeeded without the necessity for a trial I do not consider this to be a proper case for an award of costs under section 102.
ORDERS
[21] 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.
[22] 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.
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