Ryan & Ryan v Cornwall
[2010] QCAT 695
•29 November 2010
| CITATION: | Ryan & Ryan v Cornwall [2010] QCAT 695 |
| PARTIES: | Mr David John Ryan and Mrs Rene Marea Ryan |
| v | |
| Mr Kenneth Edward Cornwall |
| APPLICATION NUMBER: | BDL010-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 29 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Barry Cotterell, Member |
| DELIVERED ON: | 29 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The Tribunal orders that the claim is dismissed. [2] The Respondent shall file and serve submissions on the issue of costs by 4pm on 6 December 2010; [3] The Applicants shall file and serve any response by 4pm on 20 December 2010; [4] The question of costs shall be determined on the papers. |
| CATCHWORDS: | Building matter – claim for damages for defective workmanship – Claim under Bryan v Maloney (1995) 182 CLR 609 – tiling alleged to be defective by repairing tiler |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr David John Ryan & Mrs Rene Marea Ryan |
| RESPONDENT: | Mr Kenneth Edward Cornwall |
REASONS FOR DECISION
The Applicants case is for damages for negligent building work by the Respondent in reliance on Bryan v Maloney (1995) 182 CLR 609. Under that case damage is sustained when physical damage first became apparent.
Tiling was installed by licenced tilers employed by Newby Enterprises Pty Limited. The Respondent builder was on site and supervised all work. Waterproofing was installed by a licenced waterproofer and a waterproofing certificate was in evidence as Exhibit 1.
Work was finished in 2001 and the house was sold to the Applicants by the Respondent and his wife by an REIQ contract dated 4 February 2002.
QCAT has previously found that warranties under the Domestic Building Contracts Act 2000 had expired in September 2007.
The Applicants claim that on 18 September 2008 they contacted the Respondent by phone due to the grouting of the tiles falling out and drumminess. The Respondent called on 3 October 2008 and left his card at the other house he had built in the area. The card was given to the Applicants who phoned the builder who said he would attend. There was no explanation as to why he did not follow-up. This application may have been avoided if he had.
Mrs Ryan said that she contacted Brent Dennis, a tiler and waterproofer, who attended before September 2008 and suggested they contact the builder. Mr Dennis, however, gave evidence that he attended in February 2009 and quoted for what he thought was a small job ($6,715.50 plus tiles). He subsequently invoiced them for $8,285.20 including $55 for a “written report on tiling faults”. There was no explanation offered for these differences.
The Applicants’ case depends on the expertise and evidence of Mr Dennis as no one else inspected the alleged defective building work. The Building Services Authority were never contacted and the Respondent only saw the work after Mr Dennis had removed most of the tiles.
Mr Dennis stated at the hearing that only a couple of metres of tiles were not drummy. He ascertained they were drummy he said by tapping on them.
The floor tiles he replaced were in the bathroom, laundry, WC, kitchen, family dining room, lounge, entry and ensuite and WC. He also replaced all of the wall tiles in the bathroom and the ensuite.
[10] Mr Dennis was cross-examined about removing and relaying the existing tiles or using an injection method to reglue the tiles. He stated that he had not used the injection method. He stated that he removed all of the wall tiles to fix the waterproofing problem. He also said that the wall tiles fell off.
[11] He could not explain why these problems were not apparent from February 2002 to September 2008.
[12] Mrs Ryan gave evidence that they bought the tiles and were told that the existing ones were out of date and that they would never find them.
[13] Mrs Ryan gave evidence of grout problems and drumminess in September 2008 but by February 2009 it seems 3 to 4 tiles were popping up, others were cracking and she described them as dangerous.
[14] However, while she contacted the Respondent in September and again in October 2008, she did not do anything else to contact him until after contracting Mr Dennis in February 2009. He was not written to or told that all of the tiles in the house were to be removed and replaced.
[15] The Tribunal notes that Cooloola Tile Company issued an order No 2019 for this purpose dated 9 January 2009.
[16] On this basis, the Tribunal finds that the Applicants ordered replacement tiles for the house before Mr Dennis commenced his work and determined that all of the tiles needed to be replaced.
[17] The Tribunal finds that the building work, being the tiling, was not defectively carried out. It makes this finding on the basis that if the tiling was defective it would have been obvious well within the normal 6 years and 6 months which the law uses as a warranty period.
[18] The Tribunal rejects the evidence of Mr Dennis because there was no evidence of his expertise in the field of building or tiling. At the time he was recently licenced. The Tribunal finds that his experience in rectification of tiling work was severely limited.
[19] In carrying out this work for the Applicants, Mr Dennis failed to mitigate their damages. He could have carried out the work in other less expensive ways. For example, ways which did not involve replacing all floor and wall tiles in the entire house.
[20] On the basis of the evidence of Mr Dennis the Tribunal finds that it is not satisfied that the work he carried out was necessary or reasonable.
[21] The Tribunal finds that the Applicants’ case must be dismissed and orders accordingly.
[22] The Respondent seeks an order for costs even though neither party was represented before the Tribunal today although it is noted that they were on prior occasions. Under these circumstances the Tribunal will order that the parties file and serve submissions on the issue of costs.
Orders
The Tribunal orders that the claim is dismissed.
[2] The Respondent shall file and serve submissions on the issue of costs by 4pm on 6 December 2010;
[3] The Applicants shall file and serve any response by 4pm on 20 December 2010;
[4] The question of costs shall be determined on the papers.
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