Savvas v Hayes

[2011] QCAT 596

CITATION: Savvas v Hayes [2011] QCAT 596

PARTIES:	Mr Adrian Savvas
v
Ms Lee Hayes (aka McKenzie)

APPLICATION NUMBER:   BDL092-11

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Member

DELIVERED ON: 30 November 2011

DELIVERED AT: Brisbane

ORDERS MADE:      1.    Application of Mr Adrian Savvas dismissed.

CATCHWORDS:  BUILDING DISPUTE – where leak under driveway slab – where developer responsible for driveway – where claim against builder settled – where claim against developer – whether developer responsible for leak

APPEARANCES and REPRESENTATION (if any):

This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. In 2010, Mr Savvas noticed that there was a water leak underneath his driveway.  It transpired that the leak was coming from two sources: a faulty join in the water line from the street to the house and a broken stormwater pipe in the same general area.  Mr Savvas had the water line repaired.  The builder fixed the stormwater pipe but did not accept liability for the cost of detecting the leak, repairing the water line or the cost of reinstating the driveway slab.

2. Mr Savvas then ascertained that the slab was constructed by the developer of his home, not the builder.  He has brought proceedings against Ms Hayes as the developer.

3. The evidence that Ms Hayes is the developer appears to be a set of plans prepared by the builder which names her as the client.  While that is not ideal evidence, I note that Ms Hayes has been served with all material relating to this claim and she has not bothered to file any documents in response.  I find, therefore, that Ms Hayes was the developer for the purposes of Mr Savvas’ application.

4. The plans show a notation on the driveway slab “Driveway by Owner”.  As there is no evidence to the contrary, I am prepared to find that Ms Hayes was responsible for the laying of the driveway slab.

5. The tribunal has a report from Mr Pitchers, a civil engineer, dated 7 August 2011.  Mr Pitchers states that the cracking of the driveway was “highly likely” to have developed as a result of the leaking water pipe and that the driveway can only be rectified through the removal and replacement of the slab.  I have no reason to doubt Mr Pitchers’ conclusions.  I therefore find that the slab needs replacement.  Ms Savvas has supplied a quote for this work in the sum of $5,240 + GST.  I accept that amount. 

6. Mr Savvas’ claim for the costs in rectifying the problem is:

Cost to repair slab	$5,764.00
Balance of claim after settlement with builder	1,130.00
$6,894.00

1. The tribunal has a report from Terry Adcock Plumbing Solutions dated 18 March 2011 which states:

a)The water line was approximately 1.2m below the slab.

b)There is no reason why the water line should be run under the slab.

c)A substandard backfill had been performed, with too much rubble around the join which created, over time, the breakdown of the join in the pipe.

d)Mr Adcock could not find any colleague who would join a line under a slab, join a water line at all if it was a straight run or even run a line under a slab unless there was no viable alternative.

e)The line could have been run from the meter to the tap in a virtual straight line.

1. It is implicit in Mr Adcock’s last comment that the run from the meter to the tap could have been achieved without going under the slab.

2. The real question is whether Ms Hayes is responsible for the water leak.  Based upon the reports from Messrs Adcock and Pitchers, I find that the cause of the water leak is a combination of:

a)Placing the water line under the slab; and

b)Unsuitable fill between the water line and the driveway slab.

[10]  Responsibility for the placement of the water line must lie with the builder, rather than the developer, Ms Hayes.  I am also not persuaded that Ms Hayes is responsible for the placement of almost one metre of fill over the water line.  Doing landscaping works and installing a 100 mm thick driveway does not, in ordinary circumstances, require a person to backfill an excavation of that magnitude.  The more logical conclusion is that the builder installed the water main, backfilled the trench and then left the site for Ms Hayes to conduct landscaping works and have the driveway installed.

[11]  It follows, therefore, that I am not satisfied that Ms Hayes is responsible for the costs incurred by Mr Savvas in rectifying the leaking pipes and the consequential damage.  Even if I was satisfied, Mr Savvas has not provided copies of invoices for the plumbing repair costs ($480), material costs ($80) or the provision of a bin ($140) and there is no justification for Mr Savvas’ claim for the costs of his own labour at $45 per hour.  I would not be inclined to include any of those amounts in Mr Savvas’ claim for compensation.

[12]  The claim is dismissed.