Seitam v Innov8 Pools and Landscapes Pty Ltd
[2018] QCAT 268
•16 August 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Seitam & Anor v Innov8 Pools & Landscapes Pty Ltd [2018] QCAT 268
PARTIES:
CRAIG BRADLEY SEITAM
(first applicant)HELEN LOUISE SEITAM
(second applicant)v INNOV8 POOLS & LANDSCAPES PTY LTD
(respondent)
APPLICATION NO:
BDL031-18
MATTER TYPE:
Building matters
DELIVERED ON:
16 August 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Brown
ORDERS:
Innov8 Pools & Landscapes Pty Ltd must pay to Craig Bradley Seitam and Helen Louise Seitam the sum of ONE THOUSAND FOUR HUNDRED AND SIXTY EIGHT DOLLARS AND EIGHTY CENTS ($1,468.80) within 28 days of this decision.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder has breached implied warranties to perform building work in an appropriate and skilful way and with reasonable care and skill
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – where respondent failed to comply with Tribunal directions – where respondent acted in a way that unnecessarily disadvantaged the applicant – application of s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Domestic Building Contracts Act 2000 (Qld), s 8(3), s 8(4), s 41, s 44
Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(2)(h), Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), 48(1)(a), s 48(2)(b)(i)Bellgrove v Eldridge (1954) 90 CLR 613
REPRESENTATION:
Applicant:
Self-represented
Respondent:
No appearance
APPEARANCES:
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
On 6 August 2014, the parties entered into a contract the terms of which required Innov8 Pools & Landscaping Pty Ltd (Innov8) to build a swimming pool for Mr and Mrs Seitam.[1]
[1]Statement of Craig Bradley Seitam and Helen Louise Seitam filed 9 April 2018 at [3].
On or about 10 March 2015, the Seitams engaged a specialist pool engineer to inspect the pool, following concerns that the work appeared defective.[2] The engineer noted several defects including, but not limited to, substandard placement of concrete, insufficient concrete coverage to steel wire ties, voids where concrete was not placed and uneven surfaces to exposed walls.[3]
[2]Ibid, [5].
[3]Ibid, [6].
On or about 31 May 2015, the Seitams terminated the contract on the basis of Innov8’s failure to complete the building work within the period in the contract.[4] At the time of termination the contract, the delivery of filtration and/or equipment and the completion of the internal lining and initial chemical treatment were not completed.[5] The delivery of filtration and/or equipment and the completion of the internal lining and initial chemical treatment were completed by contractors hired by the Seitams.[6] The issue of whether the contract was properly terminated is not in dispute. What is in dispute is whether the works performed by Innov8 were defective. The claim by the Seitams is limited to the cost of rectification of the alleged defective work.
[4]Ibid, [9].
[5]Ibid, [10].
[6]Ibid, [11].
On or about 1 July 2016, the Seitams noticed bleeding, rust coloured stains appearing on the interior side of the pool wall in two locations.[7]
[7]Ibid, [4].
The applicants filed an application for domestic building disputes in the Tribunal on 31 January 2018.[8] Innov8 has failed to comply with any of the directions of the Tribunal including for the filing of a response and statements of evidence. Innov8 failed to attend the scheduled compulsory conference and, despite being directed to do so, has failed to provide a written explanation for its failure to attend the compulsory conference.
[8]Application for domestic building disputes filed 31 January 2018.
On 28 May 2018 I directed that if Innov8 failed to file a response, the Seitams would be entitled to a final decision in the proceeding. Innov8 has not filed a response. The tribunal may, if a respondent acts in a way that unnecessarily disadvantages an applicant including by not complying with a tribunal order or direction without reasonable excuse, make a final decision in the proceeding in the applicant’s favour.[9]
[9]QCAT Act, s 48(1)(a), s 48(2)(b)(i).
I am satisfied that Innov8 has acted in a way that unnecessarily disadvantages the Seitams. The Seitams are entitled to progress their claim to a final decision and Innov8’s actions, or rather inaction, is preventing this, thus disadvantaging the Seitams. I am satisfied that the Seitams are entitled to a final decision in the proceeding.
On the question of whether the work carried out by Innov8 was defective, the Seitams rely upon a statement by Mark Adams, a licensed swimming pool finisher. Mr Adams inspected the pool in July 2016 and observed rust stains in the pool interior. Mr Adams expresses the opinion that the stains were rust corrosion caused by an insufficient cover of concrete over the steel reinforcement bars.[10] Mr Adams undertook rectification including removal of the sections of corroding steel bars, filling the excavated areas with epoxy resin, applying a patch render to the pool surface and subsequently removing the patch and applying a different pool surfacing product. I accept the unchallenged evidence of Mr Adams.
[10]Statement of Mark Adams filed 9 April 2018.
The relevant enabling Acts are the Domestic Building Contracts Act 2000 (Qld) (DBC Act) and the Queensland Building and Construction Commission Act 1991 (Qld).[11] The DBC Act implies into regulated building contracts certain warranties.[12] These warranties include that the building work will be carried out in an appropriate and skilful way and with reasonable care and skill.[13] There is an incomplete copy of the standard Master Builders contract before the Tribunal which does not include the general conditions. Accordingly, in determining the matter, I have reference to the warranties incorporated into every regulated contract by the DBC Act.
[11]Reprint as at 1 July 2014.
[12]DBC Act, s 41.
[13]Ibid, s 44.
I find as follows:
(a)The building contract is a regulated contract;
(b)The warranties found at s 44 of the DBC Act were incorporated into the contract;
(c)The construction of the pool was domestic building work;[14]
(d)The building work was reviewable domestic work;[15]
(e)The dispute between the parties is a domestic building dispute;[16]
(f)The dispute is a building dispute which the Tribunal has jurisdiction to hear and decide;[17]
(g)The building works performed by Innov8 were defective;
(h)The building works carried out by Innov8 were carried out in breach of the warranties incorporated into the contract by the DBC Act on the basis that the work was not performed in an appropriate and skilful way and with reasonable care and skill as identified in the evidence of Mr Adams.
[14]DBC Act, s 8(3) and s 8(4).
[15]QBCC Act, Schedule 2.
[16]Ibid.
[17]Ibid, s 77(1).
The consequence of the breach of contract by Innov8 is that the Seitams are entitled to recover the reasonable costs of rectifying the defective building work performed by Innov8.[18] As I have observed, the Seitams limit their claim to the cost of rectifying the defective building work performed by Innov8 and make no, more expansive, claim for the difference between the contract price and the cost of making the completed pool building work conform to the contract.
[18]Bellgrove v Eldridge (1954) 90 CLR 613.
The Seitams attach to their statement a tax invoice rendered by Mr Adams dated 9 October 2017.[19] The tax invoice, in the amount of $792, is in respect of ‘cut out rust steel bar 20mm to concrete surface. Fill epoxy cement and refill santorini quartzon’.[20] I am satisfied that this amount represents the cost the Seitams have incurred to have the defective work performed by Innov8, relating to the pool surface and sub-structure, rectified and I allow the amount in full.
[19]Statement of Craig Bradley Seitam and Helen Louise Seitam filed 9 April 2018, Annexure J.
[20]Ibid.
The Seitams rely upon a tax invoice attached to their application dated 8 October 2017 from Swimart.[21] This is in the amount of $100, being for pool chemicals. This amount is claimed on the basis that the Seitams were required to empty the pool to enable Mr Adams to perform the rectification works and were thereafter put to the cost of adding the salt, chlorine and clear tabs when the pool was refilled. This amount is reasonable and I allow it in full.
[21]Application for domestic building disputes filed 31 January 2018.
The Seitams also claim $250 to refill the pool.[22] There are no tax invoices or quotes attached to the applicant’s statements however I accept that the pool was required to be emptied in order for Mr Adams to perform the rectification work, that the pool was required to be refilled and that the Seitams incurred expense in this regard. The amount claimed is in my view reasonable and I allow it in full.
[22]Ibid.
I assess damages as follows:
(a)Rectification work – Adams Plasterers invoice 9 October 2017 $792.00
(b)Swimart invoice 8 October 2017 $100.00
(c)Water fill $250.00
TOTAL $1,142.00
The Tribunal may award costs in a building dispute.[23] The Seitams should be allowed the filing fees on the application in the amount of $326.80
[23]QBCC Act, s 77(2)(h).
There will be a final decision for the applicants in the amount of $1,468.80.
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