Scott Macleod Constructions Pty Ltd v Abercrombie
[2013] QCAT 214
| CITATION: | Scott Macleod Constructions Pty Ltd v Abercrombie & Anor [2013] QCAT 214 |
| PARTIES: | Scott Macleod Constructions Pty Ltd |
| v | |
| Alan Abercrombie & Sandra Abercrombie |
| APPLICATION NUMBER: | BDL317-11 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | 30 November 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 15 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant pay to the Respondents the sum of $1,675.00 within 14 days of the date of this decision. 2. The Respondents, without delay, take all necessary steps to obtain building development approval and final certification with respect to the works the subject of the contract between the parties. 3. The Applicant provide all necessary assistance to the respondents for the purpose of the respondents obtaining building development approval and final certification with respect to the contract works, including, but not limited to: a. the provision of all certificates, plans, drawings and documents in its possession or power to any certifier engaged by the respondents; b. The completion of any application or other documents required by the Hinchinbrook Shire Council or certifier engaged by the respondents; c. rectification of the risers and goings to the installed stairs in order to comply with the Building Code of Australia; d. attendance at site, upon receipt of 7 days notice, to provide explanations or necessary demonstrations of contract works performed by the applicant to persons engaged by the respondents for the purpose of obtaining building development approval and final certification. 4. The Respondents pay to the Applicant the sum of $9,167.39 within 14 days of notification to them that building development approval has been granted and a final certificate for the contract works has issued. 5. The Applicant commence the following rectification work within 7 days of payment of the final claim: a. capping of the end of carport beams with a neatly fitted compatible steel plate; b. fitting a railing to the back stairs and deck in accordance with the plans forming part of the contract; c. installation of insulation under the bathroom and laundry roofs in accordance with the contract; d. fix the internal stairs securely to the wall; e. repair gyprock which has separated from the wall under the internal stairs; f. rectification of hinges and door locks to all internal doors; g. rectification of outstanding items on the agreed minor defect or omission list dated 22 December, 2010. |
| CATCHWORDS: | Domestic building contract - Lack of building development approval – lack of final certification – rectification of defects. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Scott Macleod Constructions Pty Ltd represented by Scott Macleod, Director. |
| RESPONDENT: | Alan Abercrombie and Sandra Abercrombie, self -represented. |
REASONS FOR DECISION
The applicant is a builder who carried out domestic building work for the respondents, who are owners of a property at 146 Patterson Parade, Lucinda. The builder seeks recovery of the final claim pursuant to the contract in the sum of $15,248.25 together with interest and costs of debt recovery.
The owners assert that the final claim is not payable because no building development approval for relevant parts of the contract works was obtained by the builder and there has been no final certification of the works. They submitted at the hearing that they were seeking orders:
·that the builder provide building approvals and certification for the works,
·for re-imbursement of the cost of rectification of defects in the sum of $27,918.00 plus a further estimated $6,500.00 for defective work yet to be performed and $3,000.00 to $4,000.00 for the cost of obtaining building permits and certification depending upon the outcome of the proceedings.
At the hearing of this matter Mr Macleod, a Director of the applicant, gave evidence for the applicant. He filed no statement of evidence and called no witnesses, however, he relied upon a report by Abscan Building consultants filed 16 October, 2012 and a number of supporting documents. Mr Abercrombie gave evidence on behalf of the respondents. He called no witnesses, however, he relied upon his statement of evidence filed 5 November, 2012, a report prepared by him collating the claim and an addendum to that report, a letter from Steve McKenzie Consultant Engineer and various supporting documents.
The parties entered into a Standard HIA Contract for Alteration, Addition and Renovation, dated 23 August, 2010, with respect to the dwelling at 146 Patterson Parade, Lucinda. The contract refers to and includes a quotation dated 13 June, 2010 and Plans of Mark Hall Building Design WD1-7.
The contract works were to enclose underneath a two story home, install a rear deck and carport, install walls and a bathroom, replace the existing roof and install metal facias, more particularly described in the quotation and plans. A previous building contractor raised the lowset timber dwelling onto steel posts and poured the concrete slab.
The contract price was $87,782.15. The parties agreed in writing to 7 variations, including variation number 7, dated 13 December, 2010: “1. Arrange Development Approval and finalise paperwork for submission, submit previous contractors certificates. 2. Approval and Inspection fee.”
Contract works were performed. Payments were made, except for the final payment. A certificate of practical completion was signed by the builder on 18 December, 2010 and by the owners on 22 December, 2010. A defects list was prepared and agreed.
The following facts are uncontested, except where specifically noted.
On 26 December, 2010 water penetrated the front doors into the house.
Work was carried out by the owners in preparation for cyclone Yasi.
In early February, 2011 cyclone Yasi struck. The property suffered damage which Mr Abercrombie said in evidence was different to the allegedly defective work related to the contract works.
The owners became aware on 17 February, 2011 that the builder had not obtained a building permit for the works and that a number of matters were outstanding to enable the issue of a building permit and final certification.
On 18 February, 2011 Mr Macleod sought a date from the owners as to when he could travel to site to complete outstanding items for the certifier and practical completion items.
The owners advised by email on 18 February, 2011 to the builder that nothing could be done at the site until the insurance assessor had carried out his site inspection.
Apart from a disputed conversation which may have occurred on Anzac day, 2011 the only other communication occurred by email exchange on 16 and 17 October, 2011, when Mr Macleod sought final payment and said that he would attend by the end of October to finish the work. Mr Abercrombie responded that Mr Macleod had not obtained relevant statutory approvals and that he was in breach of contract.
On 3 November, 2011 the builder applied to this Tribunal for payment of the final payment under the contract.
On 25 November, 2011 the owners provided a response and counter-application.
On 28 June, 2012 the Certifier issued a Form 22 Notice of Discontinuance of Engagement.
On 26 July, 2012 the Hinchinbrook Shire Council issued a show cause notice for the building works on the basis that the carport and deck were being constructed without a building development permit.
On 29 October, 2012 the Hinchinbrook Shire Council notified the owner that the following were required to complete the certification assessment process –
1.building permit for the re -roof, ground level works, deck and carport;
2.plumbing permit for the works conducted to ground floor;
3.mandatory inspection certificates for deck footings, steel reinforcement to masonry walls, roof frame (re-roo), wall frame (internal bracing wall) and final inspection;
4.amended plan showing new layout of the bathroom and bedrooms constructed to the ground floor level.
[21] Following a compulsory conference in these proceedings on 7 March, 2012, the builder agreed to take all reasonable steps to obtain building approval and final certification for the works. It was agreed that he was not to return to the site however an engineer engaged by him may do so. Mr Macleod asserts that he attempted to comply and provided a number of documents however the certifier disengaged and he was unable to take the matter further.
[22] Mr Abercrombie gave evidence that he is working with the Hinchinbrook Council in relation to the building permits and certification and that they are prepared to await the outcome of these proceedings before taking further steps.
Status of the Contract
[23] There is no evidence before the Tribunal of either party seeking to terminate the contract pursuant to its terms. No evidence was given that the contract was terminated at common law or abandoned. In fact at the hearing Mr Macleod said that the applicant was still prepared to complete the works including the defective work in order to avoid the costs of another contractor doing so. Mr Abercrombie expressed a reluctance to have Mr Macleod return to the site, but did not submit that the contract had been terminated.
[24] On the basis of the evidence before me, I find that the contract remains on foot.
Effect of no building permits and final certification
[25] The builder does not deny that he has not obtained a building development approval or building permit, pursuant to the Building Act 1975 and the Sustainable Planning Act 2009, in relation to relevant contract works or that final certification has not been achieved. The builder does not deny that it was contractually obliged to do so.
[26] Mr Macleod’s evidence is that he engaged a building certifier to undertake this work. His understanding from the certifier was that work could be commenced without a building permit and that he should take photographs of the start of the work.
[27] Mr Macleod also asserted that after being advised of the certifier’s requirements on 31 January, 2011 he was impeded in returning to the site. Mr Macleod did not attend a meeting on site with the certifier on 11 February, 2011 to address outstanding issues, because he says that he did not know about the meeting.
[28] Mr Macleod’s further evidence is that could not attend to outstanding issues which would have enabled certification, because he was denied access to the site in an email on 18 February, 2011 and in a telephone conversation on Anzac Day, 2011.
[29] Mr Abercrombie gave evidence that on 11 February, 2011, Mr Macleod was still present on the site because he observed food in the fridge and washing in the machine. Mr Macleod or his workers were allowed by the owners to stay at the dwelling whilst undertaking the work.
[30] Mr Abercrombie’s evidence is that he sent an email on 18 February, 2011 stating: “Nothing can be done at the site until after the Insurance Assessor has carried out his site inspection. I would appreciate it if you could concentrate on the supply of the appropriate documents requested by the certifier.”
[31] Mr Abercrombie denied any recollection of a conversation with Mr Macleod on Anzac day (25 April, 2011).
[32] Mr Abercrombie said that his next contact with Mr Macleod was the email exchange on 16 and 17 October, 2011.
[33] Mr Abercrombie’s evidence was that he does not want the builder further engaged on the site. He estimated the cost of obtaining building permits and certification, including engineering services to update drawings, obtaining energy efficiency schedules and structural updating to be in the order of $3,000.00 to $4,000.00.
[34] Clauses 1 and 11 of the contract provide that the builder’s obligations are to comply with all laws and lawful requirements of any statutory or other authority with respect to the carrying out of the works.
[35] Section 43 of the Domestic Building Contracts Act 2000 provides that the builder warrants the work will be carried out in accordance with all relevant laws and legal requirements, including, the Building Act 1975.
[36] I find that the builder has not complied with its contractual obligations or statutory warranty, to ensure an appropriate building permit was obtained and that final certification was obtained. I find that the builder was not obstructed or impeded in attending to these outstanding matters. I accept the evidence of Mr Abercrombie in this regard. If Mr Macleod had been impeded from returning to site, one would have expected him to make complaint and to exercise his rights under the contract. He did not do so. The matter appears to have been allowed to drift by both parties, as neither pressed the other to resolve the matter over a period of many months.
[37] As a result of the builder’s breach of contract, Mr and Mrs Abercrombie are entitled to damages sufficient to put them in the position they would have been in, had the contract been performed. If the contract had been performed they would have been obliged to pay the sum of $1,325.00 inclusive of GST, being the agreed sum pursuant to variation number 7 for arranging building development approval and paying approval and inspection fees. That sum has not been paid to the builder.
[38] In the absence of any other evidence or challenge to the evidence as to the cost of complying with the development approval requirements of the Hinchinbrook Shire Council and obtaining final certification, I find that Mr and Mrs Abercrombie are entitled to recover from Scott Macleod Constructions Pty Ltd, the sum of $1,675.00, being the sum claimed of $3,000.00 less the sum they would have paid in any event for arranging building development approval and paying approval and inspection fees of $1,325.00.
[39] In addition, I consider that Scott Macleod Constructions Pty Ltd should, by way of completion of incomplete work, provide all necessary assistance to Mr and Mrs Abercrombie for the purpose of their obtaining building development approval and final certification, including providing all certificates, plans, drawings and documents in its power or possession to any certifier engaged by Mr and Mrs Abercrombie, rectifying risers and goings to installed stairs (discussed later in this decision) and attending at site to provide explanations and demonstrations.
Builder’s claim
[40] Having found that the builder has not obtained relevant building permits or obtained final certification the question arises as to whether the builder is entitled to recover its claimed amount.
[41] Mr Abercrombie submits that he is entitled to set off his claims against the builder’s final claim, under clause 4.8 of the contract.
[42] The builder asserts in its application that upon practical completion the final claim is not subject to statutory approvals, certificates and certification. Further, approvals and certification are subject to variation number 7- invoice 416, which remains unpaid.
[43] Section 67 of the Domestic Building Contracts Act 2000 provides in relation to alteration and repair of a home to a stage suitable for occupation that a building contractor must not demand all or part of the completion payment unless the practical completion stage has been reached.
[44] Completion payment is defined in the Act to mean a payment required under the contract to be made for the practical completion stage. Practical completion stage is defined to mean when the work has been completed in accordance with the contract and all relevant statutory requirements, apart from minor omissions or minor defects and the dwelling is reasonably suitable for habitation.
[45] I find in accordance with section 67 of the Domestic Building Contracts Act 2000 that the builder is not currently entitled to payment of its final claim because it did not cause the dwelling to reach practical completion stage, in that all relevant statutory requirements with respect to obtaining building development approval and a final certificate were not met by it.
[46] However, upon all relevant statutory requirements being met with respect to building development approval and the issue of a final certificate, the dwelling will have reached practical completion stage in accordance with the contract and the Domestic Building Contracts Act 2000, whereupon the builder will be entitled to payment of the final claim. As a certificate of practical completion has been signed by both parties, including a list of agreed defects I consider the requirements of ss 67(4) and (5) of the Domestic Building Contracts Act 2000 have been met.
[47] In relation to the amount of the builder’s claim I accept the submissions of Mr Abercrombie and find that the final claim amounts to $13,362.39 in accordance with his reconciliation set out in Exhibit 6. Exhibit 6 is a facsimile transmission dated 16 December, 2010, with attached handwritten calculations and explanations made by Mr Abercrombie to a document prepared by the builder’s accountant. I note that during evidence Mr Macleod affirmed the amount calculated by Mr Abercrombie but said that he claimed an amount for a “BSA top up”. I note a BSA top up is accounted for in Mr Abercrombie’s reconciliation. I also note the withdrawal of the claim for building approval (variation 7) which had formed part of the builder’s original claim. As the sum is not currently due I decline to order the payment of interest or debt collection costs, as sought by the builder.
[48] As a result of these matters, I order that upon building development approval with respect to the contract works being granted and the issue of a final certificate, that Mr and Mrs Abercrombie pay to Scott Macleod Constructions Pty Ltd the amount of the final claim in the sum of $13,362.39 less such sums as may be awarded in relation to their counter-application.
Mr and Mrs Abercrombie’s claims
[49] Mr Abercrombie has compiled two reports which set out his and his wife’s claims for the cost of repair of allegedly defective work. Mr Abercrombie addressed the contents of the reports at the hearing and was cross examined. In relation to the cost of repair Mr Abercrombie did not have copies of invoices for work performed, nor quotes for work to be done. He relied upon his memory for the cost of work.
[50] In relation to estimates Mr Abercrombie asked the Tribunal to recognise his expertise based upon having worked for 49 years in an engineering office for a government owned corporation dealing with design, costing and implementation of buildings. I consider Mr Abercrombie to be a truthful witness and have largely accepted his evidence in relation to costs incurred, however, I am reluctant to award payment of large sums on the basis of an estimate only. Mr Abercrombie is not a quantity surveyor and he has not provided any support for the means of calculation of his estimates. In those circumstances, I consider it more just to require the builder to attend to rectification work, which is discussed in relation to the claims analysed later in this decision.
[51] Mr Abercrombie tendered a letter from Steve McKenzie consultant engineer, dated 1 November, 2012 who appeared to have seen some photographs of the contract works and made comments on the standard of workmanship. Mr McKenzie was not called to give evidence. I note that he also failed to attend the expert’s conclave called in this matter. I attribute no weight to his letter on the basis that he has not visited the site and his comments are general in nature.
[52] The builder relied upon a report of Abscan building consultants, dated 12 October, 2012. The report reveals that the author, Mr Malcolm, conducted a site inspection and analysed the contract documents. Mr Malcolm attended the fruitless conclave.
[53] Mr Malcolm was not called to give evidence or to be cross examined. Despite this I have accepted his evidence where expert opinion is helpful to the Tribunal, on the basis of his expertise as a building consultant, set out in his report, and because he is the only expert to have considered Mr Abercrombie’s claims by way of a site visit and reference to the contract and the plans for the work.
[54] Mr and Mrs Abercrombie make the following claims in relation to urgent repair of contract work which they say needed to be performed in preparation for Cyclone Yasi.
Welding
(a) Mr Abercrombie’s report and evidence was that welding at the carport, back deck and stairs was required because the welds were of poor quality. No expert evidence was called to that effect. Mr Abercrombie held that opinion on the basis of advice from a local fabricator. He recalled that the cost of all welding was $300-$400.
I accept that Mr Abercrombie was a truthful witness and on that basis I accept that repair work to the welds was necessary in urgent circumstances. I award the respondents $300 for the cost of that work.
(b) In relation to a claim for the cost of lateral bracing added to tubular steel posts on the back deck, I have had regard to the contract documents and accept the submissions of Mr Malcolm that this work was outside the scope of work in the builder’s contract and that lateral bracing of steel posts on the back deck was the responsibility of the first contractor who installed the posts. I reject the claim.
(c) Mr Abercrombie’s report refers to repair of end caps on carport beams, removal of wooden plugs and replacement with proper welded plates. The claim appears to be acknowledged by Mr Malcolm. I understood from Mr Abercrombie’s evidence that that cost of all welding work performed before the cyclone was in the order of $300-$400. It therefore falls within the previous award.
(d) Mr Abercrombie’s report asserts that it was necessary to repair bottom end bracing on the front Sun Room timber uprights with metal plates welded to steel support posts and bolted to timber uprights.
Having regard to the contract documents, I accept the submissions of Mr Malcolm that this work was outside the scope of the contract and should have been the responsibility of the first contractor who raised the house. I reject the claim.
Carpentry
(a) Mr Abercrombie gave evidence that he incurred a cost of $500.00 for carpentry work performed prior to the cyclone. I understand this cost to cover:
· securing the existing door on the front sun room, where old stairs were removed. I note Mr Malcolm’s report shows a photograph of horizontal bracing to the front door installed by the builder. I reject that claim on the basis that appropriate work was performed by the builder.
· Repair of the south east corner of the upstairs building to make it waterproof. Mr Malcolm notes and I accept, having regard to the contract documents, that this item of work is not listed in the contract scope of works. For this reason I reject this claim.
· Installation of an additional patio bolt to front double doors. Mr Abercrombie’s report says that the front doors were not locking properly and were opening in a small gust of wind. Mr Macleod does not directly address this issue. Mr Malcolm cannot speak from his direct observation. I accept the requirement for additional patio bolts. No separate claim for the cost of the bolts is given in evidence. Accordingly I can make no award in this regard.
· Re-installation of front double door weather strips to make the door weatherproof. I accept Mr Abercrombie’s evidence that water penetrated the doors during the cyclone, however, I accept Mr Macleod’s evidence that he installed weather strips. I accept Mr Malcolm’s evidence that external timber double doors will leak water under high winds and driving rain and that it is virtually impossible to weatherproof timber double doors under these conditions. I reject the claim.
Plumbing
(a) Mr Abercrombie gave evidence that it cost $1,200.00 to re-instate guttering on the main roof and to install 2 downpipes before the cyclone. Mr Macleod gave evidence that these matters would have been attended to during the defects liability period. He said they did not need to be attended to before the cyclone. Mr Abercrombie responded that water was pouring in through light fittings. I accept the need for urgent repair. I award the sum of $1,200 to the respondents.
(b) Mr Abercrombie gave evidence that he spent $200.00 repairing a damaged gully trap which he said was a health hazard because it had no seal.
Mr Malcolm said in his report that at the time of his inspection a concrete pathway had been installed over the location so he was unable to inspect the gully trap. He makes the point that the contractor who raised the house and poured the concrete ground slab, prior to the builder arriving on site, should have applied for and obtained Council approval for the drainage works installed in that concrete slab. He commented and I agree that there are no sewer drainage works listed in the quoted scope of works by the builder.
On the basis of Mr Malcolm’s analysis of responsibility for the gully trap I find that the builder was not responsible for this work and reject the claim.
(c) Mr Abercrombie’s report refers to the requirement to urgently check and refix the main roof flashing incorrectly installed by the builder. Mr Malcolm found that the flashing was not to tradesman’s standards. I accept that is the case, however, no cost was attributed to this issue by Mr Abercrombie accordingly I make no award.
(d) Mr Abercrombie’s report refers to the requirement to urgently install 5 temporary seals around the front windows and louvers to make them waterproof. His evidence was that water was coming through the bricks and onto the floor and that it was evident the window opening was not sealed before the windows were put in. Mr Macleod denied that and said the windows were installed and sealed. Mr Malcolm said that at the time of his report the seals to the perimeter of window junctions with the rendered block work openings were satisfactory.
Mr Abercrombie attributed no cost to this work. I accept on the basis of his observations as to the entry of water that the work was defective, but in the absence of evidence as to cost, can make no award in this regard.
[55] Mr Abercrombie’s report sets out a number of items of work which he says are not compliant with the Building Code of Australia. In relation to gutters and downpipes to the main roof, laundry roof and carport roof and roof cladding to the carport roof, Mr Maclean notes that the building certifier has not raised these issues. I note the email from the certifier attached to Mr Abercrombie’s statement and agree that these items do not appear. On this basis I find that they are not work requiring attention.
[56] Mr Abercrombie also asserts stair construction at the front step, the step at back door and steps on the back landing do not comply with the Building Code of Australia. Mr Malcolm says that the drawings provided to the builder were insufficient to determine finished levels to anticipated paving works and that it was impossible for the builder to achieve the required step heights in compliance with the Building Code of Australia, in those circumstances. I accept Mr Malcolm’s analysis of the drawings, which accords with my own review and find that this aspect of Mr and Mrs Abercrombie’s complaint is not made out. However I note as recorded in Mr Malcolm’s report that the builder does not dispute the requirement for 190mm maximum risers and 240mm goings to be consistent with plus or minus 5mm to the installed stairs. I find that this is a defect which is required to be rectified to achieve final certification. It is a matter raised by the certifier. I order that the builder attend to this item of rectification.
[57] In relation to the other matters raised by the certifier, I note that from the exchange of email correspondence tendered at the hearing, some of the certifier’s requirements have been met. Subsequent to the compulsory conference in this matter Mr Macleod provided some of the material required by the certifier and filed copies in the Tribunal. I have also found that some of the matters raised by the certifier fall outside the builder’s scope of work. However, I have recognised the necessity of ensuring building permits and final certification are obtained and accepted Mr Abercrombie’s estimate of the cost of doing so. I have awarded a sum by way of damages in relation to this aspect of the claim to enable Mr Abercrombie to ensure the building permit and final certification are obtained by a combination of the owners work and the builder taking all necessary steps.
[58] In addition to work done urgently in preparation for cyclone Yasi and the work required by the certifier, Mr and Mrs Abercrombie claim for reimbursement of rectification work undertaken by them and for the estimated cost of undertaking further repairs.
[59] The Abercrombie’s have reinstalled most of the windows and louvers at the property and formed a new sloping sill. This appears to be in addition to the temporary work performed prior to the cyclone. Mr Malcolm makes the point that it is not possible to judge whether the windows and louvers needed to be removed as a result of the work done by the Abercrombies. One window, at the rear of the house which had not been touched appeared to him to be well sealed to the perimeter of the frame and did not need to be resealed.
[60] An estimate of $10,000.00 for this work was given in Mr Abercrombie’s report, however he gave no evidence of the actual cost.
[61] I am not prepared to make any award in respect of the windows. The issue was not raised by the certifier. It does not appear in the defects list prepared at the time of purported practical completion. There is no independent evidence or even photographs before the Tribunal as to the nature and extent of the defective work. Finally there is no clear evidence of the cost of the work.
[62] Mr Abercrombie further claims in his report for the cost of installing guttering and downpipes on the main roof and installation of an additional downpipe to the carport. This claim has been earlier dealt with and met.
[63] Mr Abercrombie claims for the cost of steel plates to be welded to the end of carport beams. Mr Malcolm comments that although not set out in the defects list, capping the ends of steel beams with a neatly fitted compatible steel plate is standard tradesman’s practice. I find that this work would normally be done during the defects liability period. I am not satisfied that Mr Abercrombie’s estimate of $2,000.00 is accurate. It appears to be a substantial sum for relatively small job. I decline to order payment of a sum for the cost of rectification, however, I order that Mr Macleod attend to rectification to the extent that the work has not already been done as part of the cyclone preparation work.
[64] A claim is made in the sum of $1,500.00 for the estimated cost of additional security bolts and new weather seals on the bottom of the front doors. I have previously rejected the claim which was made as part of the urgent repairs claim. In addition I accept Mr Malcolm’s evidence that the solid timber rebated double front doors are of good quality as is the Lockwood door furniture hardware and is compliant with the contracted works.
[65] Mr Abercrombie again claims in relation to the repair of an allegedly faulty bathroom gully trap and estimates the cost of rectification to be $2,300.00. The claim has previously been rejected.
[66] The next claim is for the repair of dry rotten timber in the south east corner of the existing building. Mr Abercrombie said he has had that work performed at a cost of $873.00. I have previously found in accordance with Mr Malcolm’s analysis and Mr Macleod’s evidence that this work did not form part of the contract works. The claim is rejected.
[67] Mr Abercrombie has also undertaken work to replace rotted ends of sunroom posts and weld steel plates from steel uprights to the wooden posts. He says he incurred a cost of $1,700.00. Mr Malcolm’s submission is that the work is outside the scope of the contract. Mr Macleod’s evidence is that he was not required by the contract to attend to any part of the structure above the steel beams other than installing tie downs as a temporary measure, which was done. I find that replacing rotten timber was outside the scope of the contract and that any further work would have to be performed as a variation at extra cost to the Abercrombies. I reject the claim.
[68] Mr Abercrombie gave evidence that he paid $150.00 to a plasterer for labour to rectify a hole in the gyprock near the bedroom power point. The item appeared on the defects list agreed between the parties and would ordinarily be repaired during the defects liability period. I find this is a cost Mr Macleod would ordinarily bear as part of rectification work and that it should be deducted from his final claim.
[69] Mr Abercrombie estimated the cost of fitting a railing to the back stairs and deck to be $850.00. The work has not been performed. The work appears on the defects list. I order that Mr Macleod attend to rectification.
[70] Mr Abercrombie gave evidence that he had paid $45.00 for sealing a vanity unit outlet pipe. The work appeared on the defects list. I find Mr Macleod should bear this cost on the basis that it is a cost he would ordinarily bear as part of rectification work.
[71] Mr Abercrombie claims the sum of $5,000.00 which he alleges was the cost of cleaning the house, removing rubbish, replacing doona covers, sheets and one queen size mattress. No proof of payment was tendered. Final cleaning is a contractual obligation. If property such as a mattress, doona and sheets are damaged by the builder, the builder should bear the cost of reinstatement. I accept Mr Abercrombie’s evidence of the need for cleaning and replacement of goods, however the sum claimed appears high without supporting evidence. The lack of invoices was generally challenged by Mr Macleod at the hearing. I will allow the sum of $2,500.00 as a reasonable sum for these items.
[72] A claim is made for $1,500.00 for the cost of Mr Abercrombie’s own labour and unspecified dump fees to remove building materials from site. On the basis that there is no actual out of pocket expense specified I reject the claim.
[73] By an addendum to his earlier report filed 1 March, 2012, Mr Abercrombie claims for 3 further items of defective work. These items are not addressed by Mr Malcolm. First, the Abercrombies claim an estimated sum of $3,000.00 for materials and labour to install insulation under the bathroom and laundry roofs omitted from the contract works. Mr Macleod said in evidence that he would make no comment in this regard. Second, they claim the sum of $1,000.00 for material and labour to fix the internal stairs securely to the wall and the sum of $2,000.00 to fix the gyprock which has separated from the wall under the internal stairs, allegedly as a result of movement. Finally it is said that all internal doors were hung with hinges and door locks on the wrong side, requiring removal at a cost of $500.00. I accept the evidence of Mr Abercrombie that the faults he describes exist. They would ordinarily be rectified during the defects liability period. I order that the builder attend to rectification of these defects.
Conclusion
[74] The evidence suggests that both parties are in breach of the contract, although no submissions were made by the parties in this regard. In particular the builder has failed to obtain the relevant building development approval and final certification. The owners have undertaken building work at the property without reference to the builder, which suggests they have taken control or possession of the works before the builder has been paid the contract price, in breach of clause 26 of the contract. I make no finding in this regard.
[75] Neither party has sought to terminate the contract in accordance with its terms. No evidence was put before me as to repudiation and acceptance of repudiation of the contract by either party. No evidence was put as to abandonment of the contract.
[76] On this basis I have found that the contract remains on foot. I have found that practical completion has been reached apart from obtaining the relevant building development approval and final certificate.
[77] Despite Mr Abercrombie submitting that he would prefer Mr Macleod not to further attend at the property, I find that there is no reasonable basis for excluding Mr Macleod from the property in terms of the orders made in this matter for the builder to attend to rectification. Especially as I have found that the contract remains on foot; Mr Macleod has said that he is prepared to attend to rectification and there is no evidence before me as to the cost of rectification work, other than estimates postulated by Mr Abercrombie.
[78] Taking into account the awards made in favour of Mr and Mrs Abercrombie, the amount of the final claim is calculated as follows:
Final Claim: $13,362.39
Less:
Welding $ 300.00
Plumbing $ 1,200.00
Plastering $ 150.00
Sealing $ 45.00
Damage to
property $ 2,500.00
$ 9,167.39
[79] I make the following orders:
1)The applicant pay to the respondents the sum of $1,675.00 within 14 days of the date of this decision;
2)The respondents, without delay, take all necessary steps to obtain building development approval and final certification with respect to the works the subject of the contract between the parties.
3)The applicant provide all necessary assistance to the respondents for the purpose of the respondents obtaining building development approval and final certification with respect to the contract works, including, but not limited to:
a. the provision of all certificates, plans, drawings and documents in its possession or power to any certifier engaged by the respondents;
b. the completion of any application or other documents required by the Hinchinbrook Shire Council or certifier engaged by the respondents;
c. rectification of the risers and goings to the installed stairs in order to comply with the Building Code of Australia;
d. attendance at site, upon receipt of 7 days notice, to provide explanations or necessary demonstrations of contract works performed by the applicant to persons engaged by the respondents for the purpose of obtaining building development approval and final certification.
4)The respondents pay to the applicant the sum of $9,167.39 within 14 days of notification to them that building development approval has been granted and a final certificate for the contract works has issued.
5)The applicant commence the following rectification work within 7 days of payment of the final claim:
(a)capping of the end of carport beams with a neatly fitted compatible steel plate;
(b)fitting a railing to the back stairs and deck in accordance with the plans forming part of the contract;
(c)installation of insulation under the bathroom and laundry roofs in accordance with the contract;
(d)fix the internal stairs securely to the wall;
(e)repair gyprock which has separated from the wall under the internal stairs;
(f)rectification of hinges and door locks to all internal doors;
(g)rectification of outstanding items on the agreed minor defect or omission list dated 22 December, 2010.
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