Roberts v Artbest Pty Ltd
[2013] QCAT 28
•25 January 2013
| CITATION: | Roberts v Artbest Pty Ltd and Ors [2013] QCAT 28 |
| PARTIES: | Christine Louise Roberts (Applicant) |
| v | |
| Artbest Pty Ltd Steven Trappes Janine Maloney (Respondents) |
| APPLICATION NUMBER: | BDL357-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 19 October 2012 |
| HEARD AT: | Mackay |
| DECISION OF: | Graham Quinlivan, Member |
| DELIVERED ON: | 25 January 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application is dismissed. |
| CATCHWORDS: | Domestic building dispute – terms of agreement |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Christine Roberts |
| RESPONDENT: | Stephen Trappes and Janine Maloney |
REASONS FOR DECISION
On 9 December 2011 Ms Christine Roberts brought an application in the Queensland Civil and Administrative Tribunal (QCAT) against Artbest Pty Ltd (Artbest) and Mr Steve Trappes and Ms Janine Maloney seeking the following orders:
·The Applicants be paid by the Respondents the sum of $50,000 by way of damages;
·The Applicants be paid the sum of $12,018 for rectification of the defective work;
·Costs; and
·Interest.
The application was listed for hearing in Mackay on 18 October 2012.
Applicant’s case
The applicant claims that she retained the services of the respondents to carry out certain ground works at her property, 28 Burston St North Mackay. She contends that as a consequence of the drainage work undertaken, the property now regularly floods and suffers seepage.
The applicant submitted a report from a geo-technical engineer, which she claims, particularises the problem at the property and comments on the extent and quality of work undertaken by the respondents.
In her statement dated 13 April 2012, the applicant sets out that she lives in the jointly owned property with her elderly mother. They were seeking renovation works to be carried out on the property because they had water enter the bottom level of the property when it used to rain heavily.
The applicant had obtained an estimate of the cost to rectify the problem from the engineer of approximately $15,000. In cross-examination at the hearing she agreed that the quote from the engineer was for $20-25,000.
Subsequently she alleges that she entered into an agreement with the respondent Steve Trappes to do the work for $7,000. She alleges that Mr Trappes advised her that engineers don’t know what they are talking about and that he was sure he could do the job. Mr Trappes specifically denies this assertion.
The work was completed and Mr Trappes presented her with an invoice for $15,000. A few weeks later there was more wet weather and water came into the house again.
The applicant’s case can be summarised as follows:
·She engaged Mr Trappes on the recommendation of his partner Ms Maloney who is also a respondent;
·He was engaged to stop water coming into the downstairs area of her house;
·She relied on various representations from Mr Trappes and Ms Maloney and Artblest, that the work would be done competently;
·She has paid for the work that was undertaken but it was not fit for the purpose and completely failed;
·She has since had to engage another builder to rectify the work. This has cost a significant amount of money;
·Additional work was also required because of damage as a result of water ingress since the original work was done;
·She seeks that the respondents pay the applicant what she has had to pay or will have to pay to other parties to rectify the losses that have suffered as a result of the defective work.
At the hearing the applicant explained that she was seeking the amount of $50,000 to cover herself but she would be happy to get back the money she had paid. The amount she identified as having been paid was $15,304.70.
The applicant admitted that there was no council approval for the renovations to the property downstairs because it did not involve structural work. She was not able to say if any “wet sealing” had been done. The applicant further acknowledged that she did not manage the subsequent work that was done at the property and as a result could not say what was involved.
Respondent’s case
The respondents Stephen Trappes and Janine Maloney deny that they entered into any contract with the applicant, but submit that the applicant retained the services of Artbest to carry out ground works. In cross-examination Mr Trappes admitted that he had been a director of Artbest but stated that he had resigned in 2009. There was no evidence regarding the current circumstances of Artbest.
The respondents state that the drainage was performed in a proper and workmanlike manner and was not the cause of any flooding or seepage.
The respondents argue that prior to retaining Artbest the applicant advised that she had had advice on the drainage solution from an engineer but the solution was too expensive and that she wanted to engage Artbest to construct some drains but in a more cost effective manner than recommended by the engineer.
The respondents claim that the “Contract” between the applicant and Artbest was for the company “to excavate and install a subsoil drain with associated field sumps”. They submit that the company carried out the work, the subject of the retainer with proper care and skill.
Further the respondents claim that the problems with the flooding are not caused by any work undertaken by Artbest but rather are a result of the existing state of the applicant’s property, together with their failure to implement a more expensive drainage system and/or the failure of the applicant’s builder to properly waterproof the lower section of the dwelling.
The respondents seek that the application be dismissed.
Consideration
The evidence indicates that the work that has led to this dispute commenced on 31 March 2009. It is difficult to determine from the evidence when the work was completed but Ms Maloney states that she remembers it taking longer “than necessary” because of the rain in April 2009.
There is only limited evidence regarding the details provided by the applicant regarding details of her discussions with the engineer apart from the estimated amount required to fix the problem.
A statement was provided by Mr Jason Mordey who was employed to do the work. He sets out the details of the actual work undertaken. In particular Mr Mordey sets out the following matters:
·His estimate for the work was $8,000-$12,000 with the respondent supplying materials;
·When it started to rain, there was a river of water running onto the property;
·Arrangements were made with the neighbour to rectify this problem;
·A licensed plumber was engaged to hook up the pipes from next door;
·He used a laser to set the trench depth that made the trench approximately 1,400mm below the surface at the highest point;
·Mr Mordey also detailed a significant number of other steps including other drainage taken to re-direct the storm water to the street;
·In particular he stated that “(a)fter we installed our “aggie line”… we then filled the trench with 20mm clean rock to approx 100mm below the surface we then shaped the ground to form a slight v drain following our trench line to deal with surface water and to direct it to the trench and pit”.
·He stated that the applicant admitted in other proceedings regarding the same facts, that she was happy with the work and was only disputing the amount invoiced.
The applicant provided a report from Mr E Birdie, the engineer, dated 26 November 2010. Mr Birdie inspected the property on 23 November 2010 more than 18 months after the work was completed. Mr Birdie also acknowledged that he looked at the property in March 2009 during the renovation works.
Mr Birdie expressed the view that “the subsoil drain as constructed is not effective. It is at best a juvenile attempt to control seepage with no regard to building floor levels, material types and quantum of flow. The drawdown line is currently not sufficiently low to bring the saturation line below the lounge floor slab”.
At the hearing Mr Birdie was only available by teleconference. In cross-examination he acknowledged that his report was based on an inspection where he just looked at the levels. He did not dig down into the drains or conduct any other assessments. He indicated that he had “eyeballed” the area. Mr Birdie also suggested that the inside of the building needed an inspection or renovation and there needed to be work inside to fix the problem.
This evidence is contrary to that of Mr Trappes and Mr Mordey who claim that the work they undertook involved establishing a subsoil intercept drain along the back of the property and excavation to a depth of over 1.4m to cut off water to be 100mm below floor level. In conjunction with the builder doing the renovations at the property they then laid a number of other drains to ensure that they could tie the pipes to the gutter.
The respondent Ms Janine Maloney gave evidence that prior to the work being undertaken the applicant had complained that she felt “ripped off” because she hadn’t been told about the flooding problem by the agents when she bought the property. She had said that she had told by an engineer that the cost would be over $20,000 and that she should not have to pay for it. As a result she was seeking a cheaper solution without getting the engineer involved.
Ms Maloney claims that the applicant had asked for help to fix the problem of drainage and not the internal house problems.
Ms Maloney states that a previous dispute, referred to by Mr Mordey, was in relation to the same circumstances and it resulted in a court order that the applicant pay the full amount of the invoice provided by Artbest. The total amount was $15,424.83.
Based on the evidence provided by the parties, the Tribunal makes the following findings:
·In March 2011 the parties entered into an arrangement for certain drainage works to be undertaken at the applicant’s property at 28 Burston Street, North Mackay. The actual terms of the agreement and the parties to it are vague and remain in dispute.
·The work started on or about 31 March 2011 and was completed some time after that.
·The work was of a satisfactory standard.
·Subsequently a dispute arose regarding the cost of the work. The dispute was resolved in a decision by this Tribunal in favour of the respondents.
·At the date of the hearing the applicant continued to experience problems with flooding and water seepage to the lower level of her property.
The applicant has sought damages of $50,000, an amount of $12,018 for rectification of the “defective work”, plus costs and interest. However, she admitted she would be satisfied to be reimbursed the amount she had paid.
The Tribunal is not satisfied, on the balance of probabilities, that the applicant has established that the agreement with the respondent was such that it can be said that the respondents are in any way responsible for the problems that she continues to experience.
The evidence of the expert witness Mr Bridie does not demonstrate that there is any link between the situation as he observed it some 18 months after the work was completed and the actual work that was undertaken at the time.
The evidence from Mr Mordey was frank and helpful. He outlined the various steps that were taken to address the problem. In relation to the work he stated that “it was a very wet season the year that we were doing this job and the house in question was dry when we left the site”.
The Tribunal is not satisfied that the respondents are responsible for any of the problems that the applicant has encountered.
[34] The application of Ms Christine Roberts dated 9 December 2011 for payment of damages, costs of rectification, costs and interest is dismissed.
0
0
0