Rowan v Nass

[2021] QCAT 357

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rowan v Nass [2021] QCAT 357

PARTIES:

ROBERT ROWAN

(applicant)

v

SHANE LESLIE NASS T/AS TROPICAL NORTH SWIMMING POOLS N SPAS

(respondent)

APPLICATION NO/S:

BDL118-20

MATTER TYPE:

Building matters

DELIVERED ON:

19 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

ORDERS:

1.   The application for a domestic building dispute is dismissed.

CATCHWORDS:

CONTRACT-BUILDING – ENGINEERING AND RELATED CONTRACTS – where dispute about the depth of the pool – whether pool built to contractual specifications

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 2, Schedule 1B, s 4, s 77

APPEARANCES & REPRESENTATION

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Mr Rowan claims that the swimming pool that he engaged the Shane Nass, t/a Tropical North Swimming Pools and Spas to build, was not built to specifications agreed between the parties. Specifically, he claims that the pool was to be 2m at its deepest and was constructed to be 1.6m pool at its deepest. He seeks restitution of      $7, 600 which he indicates is equivalent to 20% of the contract price, representing the 20% reduced capacity than what he understood he contracted for. He claims that the reduced depth inhibits the potential for diving, and the reduced water volume is likely to lead to higher costs due to evaporation and extra chemicals. 

2. The Respondent seeks orders that the application be dismissed, arguing the contractual documents in totality, including the engineering plans indicate that the maximum pool depth is to be 1.8m at its maximum and that this was what was constructed. 

3. The Contractual documents that form part of this agreement are:

   (a)The contract between the parties dated 15 April 2019;[1]

   (b)The engineering plans prepared by LCJ Engineers Drawing number TNSSP014SO2A and TNSPO14 SO3A dated 18 September 2019.[2]

   The evidence of Mr Rowan:

   [1]Exhibit 1.

   [2]Exhibit 2.

4. On 15 April 2019, Mr Rowan signed the written contract between the parties for a pool, and works were completed on 27 November 2019. He highlighted that Schedule 4 of this written agreement specified construction of a pool of 1.2m at its shallowest and 2 metres at its deepest.  

5. Mr Rowan claims that on completion and filling of the pool that it became apparent that the pool was not 2 metres deep and this was reported to the QBCC but was informed that being a contractual dispute, it was not within their scope.

6. Mr Rowan provided evidence of a Cadastral Engineer Surveyor, Dale Ian Atkinson dated 3 November 2020, who measured the depth average in normal conditions to be 1.6metres.[3]

   [3]Exhibit 3.

7. He submits that he sought guidance from the Housing Industry Association (HIA), who informed him that depth was open to interpretation between the parties, he further sought guidance from Master Builders Association, who referred to Australian Standard 2783-192 as determining standards around of depth. Instead of putting this standard before the Tribunal in support of his case, he has provided copies of email correspondence of these two opinions sought,[4] which without the specified standard, offer little but two interpretations from industry bodies.

   [4]Exhibit 4.

8. Mr Rowan draws attention to the engineering plans of LCJ Engineers which state: ‘any changes to ground conditions should be notified’ and that if their drawings were followed ‘the elements should be structurally adequate.’ He highlights dimensions noted in his evidence,[5] stating “where the pool edge is highlighted, a distance of  75mm to the water level from the structural top of the pool, and relying on the above standard which taking the pool depth from the structural top of the pool the depth should be 1.925m.”  His evidence, relying on the Cadastral Engineer, shows a depth of 1.6m.

   [5]Exhibit 5, item 5, page 11, Applicants Statement.

9. He further relies on a report of STP Consultants, following an inspection on 16 January 2021.[6] The report considers LCJ Engineers Drawing number TNSP014-S02(A) and S03(A). The report relies on the depth measurement of Cadastral Engineer Dale Ian Atkinson determined at 1600mm.

   [6]Exhibit 6.

10. The report comments:

    The radius was measured of the pool wall to floor was measured to be approximately 300mm.

    This report goes on to say:

    It is noted that where the pool depth at the perimeter is up to or equal to 1000mm, a wall to floor radius of 900mm is documented. Where the pool depth exceeds 1000mm, a wall to floor radius of 900mm is documented. The 900 radius is also documented when the pool wall is above ground level.

    The report concludes:

    The pool to floor radius does not appear to be in accordance with the structural details. The original pool designer should be contacted for comment.

Mr Nass’s evidence

1. Mr Nass argues that it was not until some three months after completion that concerns about the pool depth were brought to his attention. He submits that the contractual documents gave precedence to the Engineering drawings in determining depth, and that the pool has been built to the structural requirements in the engineering plans. He claims that there was no express requirement for 2 metre pool and that this was not quoted for, and such a specification would have been a more expensive construction than that quoted and delivered.

2. He relies upon the evidence of the original pool designers LCJ Engineers response to STP’s report to argue that the pool was built to design specifications. LCJ Engineers draw attention to two separate dimensions being accommodated in the plans: a pool fully in the ground which exceeds 1000mm depth, and a second when the pool is out of the ground up to maximum of 1500mm.

3. LCJ Engineers letter of 3 February 2021[7] refutes that the pool was not built according to the structural details, noting that drawing TNSP014S02 RevA nominates a wall to floor radius for a pool fully in the ground, and which exceeds a maximum of 1000mm depth. They note this relates to a pool below ground level. They point out “our drawings also nominate the wall construction where the pool is a maximum of 1500mm out of the ground, and identify this drawing to be the relevant drawing.  They state:

   This detail does not nominate the radius, however it is drawn as radius of 900mm. Within our notes on this drawing we nominate that all concrete was to have a 300mm minimum radius to water face. This pool has been measured on site to be approximately 600mm to 1500m out of the ground. We have reviewed this detail and confirm a wall to floor radius of 300mm will be adequate”.

   [7]Exhibit 7.

4. LCJ Engineers report confirms the adequacy of the 300mm floor to wall radius being within their specifications and indicates this was within the range specified in structural plans.

5. Further, Mr Nass submits that Mr Dale Atkinsons measurements address the water level at 1.6m, and that water level is at the owner’s discretion.

   Discussion

6. This dispute relates to a contractual dispute about the terms of the construction of a residential swimming pool. I am satisfied that this is within the meaning of a domestic building dispute contained at Schedule 1B Section 4 Queensland Building and Construction Act 1991 (Qld) where domestic building work includes work associated with the improvement of a home, including the erection or construction of a fixture associated with a home. I am satisfied that the Tribunal has the jurisdiction to hear and determine the dispute pursuant to section 77 of this Act.

7. In this matter, the terms of the agreement are governed by the contract and the engineering plans. The key issue in this matter is whether the pool has been built to contractual specifications, and whether a breach of contract exists.

8. Schedule 1 Item 8 of the written contract of 15 April 2019[8] states the works are to be a concrete swimming pool as per quote of 14 Feb 2019. Specifications are stated at Item 5 of Schedule 4 of this contract and state the pool is to be 1.2m at its shallowest and 2m at its deepest.

   [8]Exhibit 1.

9. These specifications are noted at Schedule 4 to be “nominal and may vary to align with existing building.”  This alerts the parties that these dimensions stated at Schedule 4 are not determinative. 

10. Clause 18 of the contract states that:

    Special conditions, general conditions, plans, specifications and other documents listed in Item 7 have precedence in that order if there is any inconsistency between them.

11. This indicates that the engineering plans will override the specifications negotiated between the parties. 

12. It is uncontested that the applicant received the engineering plans prior to commencement of the works. 

13. The engineering plans record that design and workmanship shall be based on AS2783-1992, Concrete Swimming Pools Code. 

14. The applicant submits that Clause 10.2 of this code should determine the issue of pool depth. His Statement of the Tribunal claims that he has attached this Standards at item 2, page 2 of his submission. This item, however, does not contain the standard, but two industry bodies interpretation of the standard. The HIA’s communication with the applicant suggests that the measure is open to interpretation between the parties, and the Master Builder comments refer to clause 10.2 of the Australian Standards, noting the measurement of depth is from the pool shell not the waterline. At best, the applicant’s submissions and evidence provides the Tribunal with a vague interpretation from a third party, not the reference point that the applicant seeks to draw the Tribunals attention to. The omission of the standards upon which he seeks to rely does not assist his case, and the opinions of third parties are not relevant to this determination.

15. The Respondent submits that the depth of the pool is measured from to the top of the coping not the water level, and there the pool depth is 1.8m, and within the engineering plan that takes precedence to the terms in the written document. He argues that applicant did not seek to negotiate different terms and that no special conditions were negotiated to take precedence over these plans. 

16. The material before the Tribunal from the QBCC indicates pool depth is 1.6m at deepest from the waterline and 1.8m from the coping tiles. It confirms that the structural engineers’ plans show a pool depth maximum of 1.8m. Its independence in this matter is a relevant consideration, and likely to have measured from the point identified in the relevant Standards.

17. The applicants evidence presents a Cadastral engineer measurement pool depth assessed at 1.6m. There is no written indication whether this is measured from the waterline or the coping, or what standard directed the measurement. Visual inspection of the photo does seem to suggest that the waterline is the base of the measurement.

18. The designing engineers have had the opportunity to scrutinise the measurements and reports of the applicants engineering report, and deny that the pool is not built to the specifications in the plan.

19. The weight of the evidence indicates substantial compliance with the contract given LPC’s evidence of the pool was constructed within structural details specified in the engineering plans. Therefore, there is no basis for a claim for restitution, and the application filed 11 June 2020 is dismissed.