Schulz v Strathlink Body Corporate
[2015] QCAT 193
•25 May 2015
| CITATION: | Schulz v Strathlink Body Corporate [2015] QCAT 193 |
| PARTIES: | Neil Morrison Schulz (Applicant) |
| V | |
| Strathlink Body Corporate cts 32279 | |
| APPLICATION NUMBER: | MCDO9-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 28 April 2015 |
| HEARD AT: | Pine Rivers |
| DECISION OF: | Member Favell |
| DELIVERED ON: | 25 May 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The counterclaim is dismissed and the order is the respondent pay the applicant $10,901.49 by 4pm 22 June 2015. |
| CATCHWORDS: | Minor civil dispute – where contract to build fence – whether frame built as required by contract – whether Australian standards applied |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Neil Morrison Schulz and Raylene Schulz |
| RESPONDENT: | M.J. Mercier |
REASONS FOR DECISION
The Body Corporate for Strathlink desired a “security fence” around the common property. It issued a work order through its body corporate manger on the 11 March 2014 to Mr Schulz.[1]
[1] Attachment 3 to the application.
The work order did not provide very much detail about the work to be done. Under the heading “job details” there appeared “the body corporate has requested that the following work be completed as per attached quoted dated 11 March 2014:
·front fence and entry;
· rear and side fences;
· repair existing fence.”
The attached quote dated 11 March 2014 was addressed to the body corporate Strathlink and was set out as follows: [2]
[2] Attachment 2 to the application.
| Description | Amount |
| Re Property of Strathlink, 27 Southpine Road, Brendale | |
| Front fence and entry
| $10,879.00 |
| Rear and side fences
| $17,305.20 |
| Repair existing fence
| $1,378.30 |
| GST | $2956.25 |
| TOTAL | $32,518.78 |
The amounts of $17,305.20 and $1,378.30 were paid.
On the 18 September 2014 Mr Schulz issued in an invoice 1505 for $13,475.49. It claimed payment for the $10,879.00 portion of the first quotation which had not been paid less a sum $1,114.00 in respect of 2 panels which were to be used elsewhere. To that he sought further payment of $1,345.60 for 2 custom panels made to suit as well as $190.00 for cut off bollards and edging timber on front boundary and dump $695.75 for vac dig holes and $254.10 for cable location off site. There was a GST component of $1,225.04 giving a total claim the subject of this application of $13,475.49.
Mr Schulz says the work has been completed and the black spear top steel fencing was installed as per the accepted quote and input from committee member representatives of the body corporate.
Mr Schulz subcontracted to Jory’s Enterprises of Geebung. The subcontracted work was quoted for an amount $10,879.00.
Mr Schulz says that as agreed by Rod Steley from Strathlink body corporate he requested Mr Jory to arrange a cable location company to locate and mark the cables. He provided a sketch which revealed cables along the front boundary line. Mr Schulz says that in Rod Steley’s absence he discussed the location of cables on the front line with Tracey Johnson also from the body corporate. Mr Schulz showed Mr Johnson where the front fence was to be attached to the centre of an existing signage panel and was told in respect of the location of the front fence “we need to compromise: just inside the bollards will be fine.”
Mr Tracey says that a few days later he utilised a hydraulic excavator to dig the holes to avoid rupturing any cables. The reference in the invoice of 18 September 2014 to “vac dig holes” was in respect of the agreed use of the hydraulic excavator. Whilst digging the holes a concrete slab adjacent to the Telstra box was located and that meant the fence would need to be moved back further to avoid the slab.
As to the location of the fence Mr Schulz says that at an onsite meeting on 9 October 2014 Rod Steley discussed the visual site lines of the fence with him. He was met by Tracey Johnson and Paul Schokker along with Marc Mercier. He advised at the meeting that he or his subcontractor would look at levelling up the panels so that the site line of the fence was uniform. He says a few days later he was driving past and noticed a contractor working on the fence and because it was apparent that the body corporate had arranged for someone other than his subcontractor to work on the fence he was not prepared to touch it.
In response to the application the body corporate seeks an order from the tribunal that Mr Schulz pay to the body corporate $27,746.00 being the rectification costs they say are associated with the rectification of the fence work undertaken by Mr Schulz.
They also seek an order that the $27,746.00.00 sought be paid within 14 days.
In the alternative they seek an order that the applicant carry out the rectification of the fence work in accordance and in compliance with Australian Standards AS1725.1 and AS2423 and pursuant to the expert (interim) report dated 21 October 2014 by Mark Catchpole of Catchpole Building Services and that those works be carried out within 14 days.
The body corporate seeks to make a point that it at all times requested a “security fence”. The body corporate seems to agree that there were difficulties in installing the front fence even though hydraulic excavation could be used for which the body corporate would accept additional cost.
The body corporate asserts that the subcontractor refused to install the front fencing on the property alignment and located the steel fencing approximately 500mm west or inland from the surveyed alignment. They say that no variation to the contract was issued.
The body corporate asserts that there are a number of defects as follows:
(1)misalignment of chain wire fencing on southern and western boundaries;
(2)misalignment of front steel fencing plus vertical and lateral displacement;
(3)several foundations to the chain wire fencing and the steel fencing on the front boundary are located in film material resulting in the fence post being able to rotate and easily withdrawn;
(4)chain wire fabric is non-compliant with Australian standard AS1725 in both mesh size and gauge. The chain wire is also loose (not correctly tensioned) and inadequately secured;
(5)the security fencing component does not comply with Australian Standard AS1725.1 which requires for a security fence that the chain wire mesh be 50mm maximum with a wire gauge of 3.15mm for heavy duty application and 2.55mm for lite weight fabrication;
(6)The chain wire is lite weight in wire gauge and 60mm mesh. The 3 strand barb is not tensioned to at least 1.2km. The fence does not comply with AS1725.1;
(7)The 3 strand barb extension on the southern and western boundaries has not been tensioned;
(8)fence post to the gates on the western boundary are misaligned and fence post foundations are inadequate/loose;
(9)Areas of fencing at the north west corner are inadequately finished with several other minor defects in the fence post/compression/strain rails;
(10)a building permit was not obtained by Schulz therefore the fencing due to its height is not compliant with the BCA (steel front fencing 2.3MH-chain wire fencing 2.25MH);
(11)along the southern boundary the fence is generally on the survey alignment although at the dog leg just prior to the crossing the fencing has for no particular reason departed the surveyor alignment and has been located significantly in the Strathlink property;
(12)The fencing north of the unity water carpark to the western boundary is located more than 900mm outside or west of the survey alignment;
(13)the footings for the fence at both the front alignment and southern/western boundaries are inadequate.
The body corporate relies on a report from Marc Catchpole which is Annexure C-E to their response. He provided his report to assist the body corporate in establishing whether or not the security fencing is fit for purpose or complies with industry standards.
Section 4 of the Building Regulation 2006 (Qld) in schedule 1 provides that building work for a fence is prescribed if the fence is no higher than 2 metres above the fences natural ground surface and is not for a regulated pool.
Under the SustainablePlanning Act 2009 (Qld) chapter 6 part 1 division 2 and section 578 a development permit is required for assessable development and subject to some qualification a development permit is not required for self-assessable work or building work that is exempt to development. Section 20 of the Building Act 1975 (Qld) provides that all building work is assessable development unless under section 22 it is exempt development or under the Sustainable Planning Act 2009 (Qld) or section 21(2) it is self-assessable development. Section 22 provides that building work prescribed under a regulation is declared to be exempt development for the SustainablePlanning Act 2009 (Qld).
The basis for the report by Mr Catchpole is that the Building Act 1975 (Qld) prescribes that fences erected in excess of 2 metres above natural ground in height require a building development approval. He makes that assertion without any further details. He also makes the assertion that the security fence is to be erected to AS1725.1-210.
I note that in the contractual documents, they being the work order and the quote of the 11 March 2014 that the only mention of security fencing appears under the heading “front fence and entry” when it says “supply and install security fencing 2.1 metres high black spear top powder coat.”
There is no requirement in the contractual document requiring Mr Schulz to obtain building development approval.
I note that in section 1 of the Australian Standard 1725.1-2010 it is stated under the heading “scope:” “this standard specifies requirements for chain link fabric for security fencing and gates available in a range of alternatives and combinations with options for fence height, fabric wire coatings, wire service duty, height grade and tables, and types of security fencing design options, depending on agreement between purchaser and manufacturer to suit the circumstances of site security. Purchasers need to carefully consider select and nominate their preference for each component.”
The report identifies some defects and makes some observations under 2 headings “chain wire security fence” and “mental spear top prefabricated panel and post fence.”
The chain wire security fence has been paid for but the metal spear top prefabricated panel and post fence has not. In respect of the chain wire security fence he makes 12 observations as follows:
(1)the chain wire mesh to the fence is poorly tensioned and is very loose and as a result is not industry standard. A tension of 1-1.2kn (12kg) is prescribed by AS1725.1-2010. To that observation Mr Schulz and his witness’s assert that the fence was tensioned when it was finished.
(2)the strain or wires used at the top and bottom of the chain wire fence is not adequately tensioned and is so loose that the strainer wire is draping between clip ties and as a result is not industry standard. To that Mr Schulz says that the fence has been vandalised resulting in its current state.
(3)the barb wire strands that are installed in 3 rows at the top of the fence are extremely loose and can be pulled in any direction with ease so as to allow easy access through the barb wire. The tensioning of the wire is not industry standard. To that allegation Mr Schulz makes the same comments as above.
(4)some of the posts are loose in the ground. Mr Schulz denies that allegation and says that they have been interfered with.
(5)The footings to the fencing is to be of sufficient dimension to support the fence and resist dislodgment by simply pulling on them.
(6)the Australian Standard requires 600d x 250w diameter footings to be installed in the main parts of the fence and 900d x 300w footings at gate posts up to 2.4m in height.
(7)there are several circular posts which are out of plumb and not industry standard.
(8)the visual sight lines of the fence are not uniform in so far that the tops of the fence merely follow the undulations in the ground and do not follow straight lines for various segments of the fence. To that Mr Schulz says that they follow the lay of the land.
(9)the fence does not accurately follow the allotment boundary and that the north-western rear of the property is approximately 700mm on the adjacent allotment of land. To that Mr Schulz says that the location was discussed and agreed upon.
(10)The gates and gate posts are ill fitting and out of alignment and exhibit larger than acceptable gaps. The pair of gates for example exhibit a gap of approximately 1 to 5mm between them. To that Mr Schulz says that is because there were people swinging on them.
(11)The western fence gate posts are loose in the ground and can be seen that the footing is undersized.
(12)the fence as erected is below industry standard and is not fit for purpose and is non-compliant with relevant Australian Standard for security fencing.
In so far as the metal spear top pre-fabricated panel and post fence are concerned the following observations were made by Mr Catchpole:
(1)it was observed that part of the eastern security fence is erected almost 600mm inside the property boundary on the site rather than being erected along the property alignment as would be conventional practice to locate a security boundary fence;
(2)the visual sight lines of the fence are not uniform in so far as the tops of the fence merely follow the undulations in the ground and do not follow straight lines for various segments of the fence;
(3)the fence also has a visible bow of approximately 50mm. Some of the posts are out of plumb to give this appearance;
(4)some of the posts are loose in the ground;
(5)the footings to the fencing is to be of sufficient dimension to support the fence and resist dislodgement by simply pulling on them;
(6)the Australian Standard requires 600d x 250w diameter footings to be installed in the main parts of the fence.
Based on those observations Mr Catchpole is of the opinion that the fence is not industry standard and in many respects not fit for purpose and warrants being rectified by the contractor responsible.
In a report[3] from Nic Fauth it is said with respect to the front metal picket fence:
(1)the metal posts have not been concreted in line or at level;
(2)majority of posts move in the ground and in my opinion have not been dug to the correct level of at least 600mm;
(3)fence panels have not been installed at level and are out of line to each other.
[3] Annexure C-F to the response.
With respect to the chain wire boundary fence he said:
(1)“the majority of posts are very loose in the ground to the point of being able to remove them by hand. I believe the posts have not been concreted to the correct depth of 600m and in my opinion will need to be removed, re dug and reset;
(2)posts are not concreted in line or at level;
(3)3.15 straining wire has not been tensioned at all and will have to be removed and replaced with new wire and tensioned correctly;
(4)chain wire has not been tensioned correctly and has a lot of movement in it chain wire will have to be removed and tensioned;
(5)barb wire has not been tensioned at all and is extremely loose along the majority of the fence and will need to be completly replaced and tensioned correctly;
(6)gate posts have not been installed at level leaving a vary obvious uneven gap between gate and posts. Posts are also set too far apart making gate latch useless;
(7)support rails have been installed too low and will need to be moved to the top of the chain wire.”
Mr Fauth expressed the opinion that both existing fences will have to be dismantled and reinstalled in order for them to be done correctly. The majority of posts will need to be pulled out and reset, all straining wire and barb wire will need to be replaced and tensioned correctly and all chain wire will need to be removed and tensioned correctly. The panels on the front fence should be removed and reinstalled at level and in line to each other.
Since receiving those reports the body corporate has issued a scope of work.[4] I note that the scope of work requires the demolition of the fence except for gate frames and fittings to be retained. It also requires a 50mm x 2.5mm galvanised mesh chain wire with barb selvedge top and knuckle bottom and locate posts on the property alignment. It also requires the work to be done in accordance with AS1725.1 I note that it does not require building approval to be obtained.
[4] Annexure C-G.
Annexure C-H is a quote from Northside Fencing in the sum $27,746.00 to carry out that work.
Annexure C-I is a quote from Hills Fencing and it is in the sum of $32,142.00.
Exhibit 3 is a statement from Dallas Dogger. He was the past chairman of Strathlink Body Corporate he says that the Strathlink complex is adjacent to the Strathpine Railway Station and has suffered in the past from graffiti and other vandalism. He says that Mr Schulz was asked to provide a quote for perimeter fencing of the property and also for substantial square tube fencing at the front of the property.
He said that there was a walk around conducted with Mr Schulz, Perter Moran and Rod Steley a member of the body corporate. They discussed the practical realities of fence alignment especially at the rear property towards the northern side. It was determined that the fence should be aligned to prevent additional costs of building up the land to the existing concrete level. There was a level of discussion about the paved area at the rear of the property and the practical reality at the time was to fence the perimeter of the paved area as the area has been used as a carpark by WorkCover a tenant at the time.
His statement said that “Rod Steley wrote to Neil Schulz on Thursday 31 July at 12.55 pm and he stated: A few of the body corporate committee members have discussed with me the fencing project over the last couple of days. I appreciate the reasons why the fencing at the rear is outside our property alignment and that will be quite acceptable because the Council simply won’t be concerned with the existence of the fence.” Mr Dogger said and that at the time of the walk around a decision had been made to put a fence around the Council area. Mr Dogger confirmed that subsequent to the fence being erected and right at the time of basic completion vandalism attempts were made on the fence.
Mr Dogger said that the original brief to the contractors for fencing did not discuss any Australian Standards nor was that part of the specification. No specifications were provided to anyone other than a general discussion about chain wire and black square tube fencing for the front. He said that the conceptual idea behind the fence was to keep people from walking through the property.
I have had the benefit of viewing the photographs of the fencing. I note some obvious defects in the fencing and vandalism.
Mr Schulz makes the point that his application is with respect to non-payment of a security 2.1m high black spear top front fence not the chain wire fence which has already been paid for.
On the 1 October 2014 Strathlink Body Corporate emailed Mr Schulz a quote dated 26 September 2014 for $2,574.00 from Shoreline Fencing for repairs that were required to the fence.
Mr Schulz submits that the scope of work which is attachment P to exhibit 4 is a different specification to what he was required to provide. I accept that to be so.
Mr Schulz said that hydraulic excavation was used to dig every hole and when it found services in four of the holes it was necessary to move the fence back to the edge of the concrete. He said as telecommunications cabling almost ran parallel with the front boundary it was not an option to drill into the concrete as the purpose of the concrete was to protect the cabling. He said that to work around the cabling it was necessary to have 2 new panels to accommodate the change in spans and that left him with 2.4 metre panels at a cost of $1,114.00 which were to be utilised in the final stage of the front fence. Those items appear in the photographs tendered.
I note that in Rod Steley’s email dated 29 August 2014,[5] Mr Steley after mentioning the vandalism to the back gates would be an extra stated, “the rest of the fencing and barb wire looks okay”.
[5] E-1 to exhibit 4.
Mr Schulz submits that any looseness to the side and rear chain wire fence was caused by vandalism. In the circumstances of his evidence and the evidence from Mr Jory and the contents of the emails attached to exhibit 1 I accept that to be so.
I note Mr Steley email dated 15 September 2014 wherein he says, “further I draw your attention to the single and pair of gates along the rear alignment and ask you to note that the pair of gates is out of alignment after an attempted break through by vandals. The gate hinges on the post are now misaligned and the concrete fittings are loose in the soil.”
I also note his email of 1 October 2014 wherein he said, “there has been some malicious damage to the gates at the rear. The vandals unfortunately swung heavily on the gates to try and gain entry (which they did) and before we had the gates chained shut. This significantly loosened the gate posts in what can be clearly seen to be a fill embankment but that therefore the gate posts should have been taken to a greater depth. We do not hold the contractor responsible for this and we have requested it to be treated as ‘an extra to repair’.”
In his email of 7 October 2014 Mr Steley said “during my own discussions with you and at all times I have advised of rectification of damage such as that created by vandals to the south and rear of the property is to be treated as an extra cost to be met by the body corporate and there is no doubt that vandals have damaged the pair of gates on the rear alignment to the extent that the gate posts have been misaligned and the gates and hinges have also been misaligned on the gate posts themselves. From day one I have advised that needs to be corrected at the expense of the body corporate and is an extra to the contract.”
As to the location of the fence I note the various emails which indicate that members of the body corporate agreed with suggestions as to the location of the fences.
Submissions made on behalf of the body corporate are to the effect that there was an implied term of the contract that the works comply with the relevant Australian Standard applicable in order that the fence be adequately fit for purpose.
In my view that argument is not on strong grounds for two reasons. First there was no mention of the standards in the agreement and second the standards apply to security fencing and that standard was not made clear in the documentation. Further, in my view this was not a case of a supply for a particular purpose.
In my view although the term security fence was used in the quote it was not used in the sense of security fencing as applies to the Australian Standards quoted.
One of the difficulties the body corporate faces here is the lack of detail in the work order and the lack of a formal contract.
In my view the subsequent reports are an attempt to introduce other matters into the contract when they should have been dealt with at the beginning.
I find that Mr Schulz has carried out what he contracted to do. The major defects in the fence are due to vandalism or an inadequacy in the work order. There was not real specification in the work order so as to require anything other than what was provided.
Mr Schulz recognized there were some aspects of the fence which required attending to and in my view it is appropriate to make allowance for them as quoted in the Shoreline Fencing quote of $2,574.00.
The counterclaim is dismissed and the order is the respondent pay the applicant $10,901.49 by 4pm 22 June 2015.
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