Rowan v Colenden Pty Ltd t/as Pilks Pine
[2013] QCAT 670
| CITATION: | Rowan v Colenden Pty Ltd t/as Pilks Pine The Timber Depot Pty Ltd & Mikescapes Pty Ltd [2013] QCAT 670 |
| PARTIES: | Adrian Rowan Colleen Rowan (Applicants) |
| v | |
| Colenden Pty Ltd t/as Pilks Pine The Timber Depot Pty Ltd Mikescapes Pty Ltd (Respondents) |
| APPLICATION NUMBER: | MCDO989-13 |
| MATTER TYPE: | Other minor civil dispute matter |
| HEARING DATE: | 2 September 2013 & 10 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 18 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The respondent Mikescapes Pty Ltd pay to the applicants the sum of $6,325. |
| CATCHWORDS: | Construction contract – expectation of acceptable quality – product failure – Trade Practices Act 1974 (Cth) considerations – parties to the construction contract – contractual relevance of other parties Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Adrian Rowan & Colleen Rowan |
| RESPONDENT: | Mr Sipple, Director Colenden Pty Ltd Mr Patel, Director, Timber Depot Pty Ltd Mr Bloomfield, Director, Mikescapes Pty Ltd |
REASONS FOR DECISION
Application
By application filed 17 May 2013 the applicants Mr and Mrs Rowan seek the sum of $11,750 being the replacement cost of a failed timber retaining wall constructed in August 2008 at 15 Oatland Crescent, Holland Park West (‘the property’).
Background and evidence
In about August 2008 Mikescapes Pty Ltd (‘Mikescapes’) in the course of undertaking landscape works at the property constructed a retaining wall to the rear elevation of the property approximately 1 metre high and some 26 metres long. It consisted of hardwood posts set in concrete with treated pine wales of approximately 2.4 metres in length. Unremarkably the wall was not sealed being designed to drain water along an agriculture line at the base of the wall.
In about April 2011 at the time of a regular pest inspection Mr and Mrs Rowan were made aware of deterioration of one of the wales. Mr Bloomfield of Mikescapes attended to replacement of that pine wale with a hardwood wale. Mr Bloomfield considered this a minor rectification.
Some 12 months later in April 2012 at the time of the next pest inspection Mr and Mrs Rowan were informed of the further deterioration of wales. Thereafter it appears deterioration of wales continued and/or accelerated.
In October 2012 Mr and Mrs Rowan contacted the Building Services Authority (‘BSA’) which conducted an inspection on 5 November 2012. Mr Bloomfield attended on the date of inspection along with the BSA representative and a representative on behalf of Mr and Mrs Rowan. The BSA in its visual inspection report of 6 November 2012 records ‘it was evident that the wales to the retaining wall have deteriorated in random localities across the span of the works … a close inspection of the uncut wales revealed deterioration across the length of the wale indicating that the preservative treatment has not adequately permeated the timber’. The report went on to indicate that the licensee (Mr Bloomfield) who was present had produced an invoice ‘indicating a delivery address, size of the wales and treatment to H4 class which under normal circumstances would be deemed fit for purpose’. The BSA report concluded that the complaint had been identified ‘as a product failure and not defective construction work and … will not be directing the licensee to rectify the retaining wall’. The BSA’s report makes it clear it did not consider the preservative level to be that indicated on the invoice.
The timber supplied by Mikescapes for the retaining wall construction had been purchased from the Timber Depot Pty Ltd (‘Timber Depot’), a retailer of timber products. Mr Patel of Timber Depot indicated that its customer MIkescapes purchased the timber in July 2008 with instructions for delivery to 15 Oatland Crescent, Holland Park; that Timber Depot was not aware what the timber was to be used for, how much it was resold for or what any construction work involved. Mr Patel asserted that the Timber Depot sold the timber to Mikescapes and that it was Mikescapes that resold the timber to Mr and Mrs Rowan; that Timber Depot did not manufacture the timber products.
Up until June 2008 all timber sold by Timber Depot was sourced from Colenden Pty Ltd trading as Pilks Pine, a timber miller providing treated timber products to retailers and represented at hearing by Mr Sipple. Thereafter although Pilks Pine remained a major supplier some timber was sourced by Timber Depot from other mills. Mr Patel could not say whether the timber supplied by Timber Depot to Mikescapes was sourced from Pilks Pine or from some other supplier; that there were no tags on the retaining wall timber at the time of his inspection in April/May 2012 that might identify the source of and treatment applied to that timber. Mr Patel also questioned whether the pine wales were the best option for the style of wall given that there was increased moisture due to the close proximity of a mango tree.
Mr Sipple asserted there was no evidence that he supplied the timber in question; that if he did ‘I’d put my hand up’. Mr Sipple as a miller and therefore effectively a manufacturer of the sort of timber product in issue detailed how timber, particularly pine, should be properly treated indicating that to get preservative solution into the timber it would need to be ‘steamed’. He indicated, that in any event, all his pine was steam treated and that the timber in question could not have been his. He indicated correctly treated pine ‘can last’ and conversely that he had seen hardwood eaten out in two years. Photographs produced by Mr and Mrs Rowan confirmed the collapsing state of the retaining wall.
Mr Bloomfield indicated that one hardwood post had twisted and that the pine wales had rotted and were ‘imploding’.
Mr Rowan indicated that he thought the hardwood posts were going the same way as the pine wales.
The hearing of 2 September 2013 was adjourned to allow Mr Rowan to obtain quotes for a retaining wall utilising pine wales as the replacement quote produced with the initiating application provided for an all hardwood retaining wall. It was indicated to Mr Rowan that if he was going to assert a quote inclusive of new posts that some evidence as to why it would be necessary to replace the existing posts would be required.
At the reconvened hearing on 10 October 2013 Mr Rowan produced two replacement quotes as follows.
Luscious Gardens & Gorgeous Landscapes Pty Ltd for a CCA pine treated replacement wall at $6,260. The quote included the statement ‘it is my recommendation that the posts be removed and replaced as it appears there is excessive moisture in these and I believe they will fail in time like the wall’.
P & D Macks Pty Ltd for total wall replacement at $6,050. It is not clear whether this quote is for a pine sleeper wall or hardwood wall but in any event is of a lesser sum than the first quote. The quote states that ‘there appears to be moisture in the posts which will require removal as they will deteriorate over time’.
The Australian Consumer law
The Australian Consumer Law (ACL) was introduced as from 1 January 2011 as Schedule 2 to the Competition and Consumer Act 2010 (Cth) (successor to Trade Practices Act 1974 (Cth)(‘TPA’)).
At the time of construction of the retaining wall in August 2008 the legislation, if it applied, would have been the TPA. Whilst the definition of goods in the TPA was generous in that it went beyond what might be termed a dictionary definition of goods and specifically included minerals trees and crops whether on, under or attached to land or not it did not include goods which were affixed to land or to other goods which themselves may have been fixed to land. Such were considered to become fixtures upon being affixed to land thus losing their character as goods and becoming part of the land itself. Thus the retaining wall which might properly be characterised as goods affixed to land were not goods for the purposes of the TPA. Whilst it might be said that a service was provided to Mr and Mrs Rowan i.e. the labour to construct the retaining wall it was the product ultimately provided, that is, the retaining wall that Mr and Mrs Rowan primarily paid for. Nor can it be said that Timber Depot was the supplier of timber to Mr and Mrs Rowan. Timber Depot supplied the timber products to Mikescapes which effectively resold the timber products to Mr and Mrs Rowan.
It cannot be discerned who manufactured the timber products i.e. milled and treated the timber for sale to the retailer Timber Depot.
Conclusions
The timber sleeper wall was constructed in about August 2008 as part of major landscaping undertaken by Mikescapes. Whilst other aspects of the landscaping functioned adequately (including it appears another retaining wall) the retaining wall in question has deteriorated, by any measure, at an unacceptable rate with timber deterioration being first observed in April 2011 less than two years after construction.
Whilst some discussion took place around the applicability of the TPA and which entities were suppliers or resellers it became clear that the retaining wall could not be classified as goods or services to which the TPA applied in 2008. Because it was impossible to identify who manufactured the timber products in 2008 no liability can devolve on Pilks Pine.
In terms of the contractual obligations of Mikescapes to construct the retaining wall to an acceptable standard such that it would last for a reasonable length of time it is clear there has been a complete failure. By any standard a newly constructed treated timber retaining wall, whether treated pine or hardwood, should not start to deteriorate within two years of construction and ‘implode’ within the following couple of years.
There is no contractual nexis between Mr and Mrs Rowan and Timber Depot and nor, obviously therefore, with Pilks Pine.
Mr Bloomfield of Mikescapes was present at the onsite meeting in November 2012. Whilst the BSA concluded there was a product failure and no defective workmanship that report was primarily prepared for licensing compliance purposes only.
Ample opportunity for rectification of the retaining wall has been afforded to Mikescapes, at the least, since November 2012. At the hearing of 2 September 2013 it was made clear to all parties that quotes were to be obtained by Mr and Mrs Rowan for the replacement of the retaining wall which in terms of the photos produced and the evidence of Mr and Mrs Rowan the Tribunal is satisfied is collapsing at an accelerating rate, is beyond repair and poses some danger to persons.
Mr and Mrs Rowan are entitled to a replacement retaining wall. The lesser of the two quotes obtained by them ie the quote from P & D Macks Pty Ltd is acceptable for this purpose being in any event the lesser of the two quotes obtained.
It may well be the case the Mikescapes itself has remedies available to it arising out of these events but that is for Mikescapes to consider in another context.
The Tribunal allows as recoverable the application fee of $275.
Order
The respondent Mikescapes Pty Ltd pay to the applicants the sum of $6,325.
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