Sinclair (Executor of Will) v Dykstra - [2010] QCAT 227

CITATION: Sinclair (Executor of will) v Dykstra & Ors [2010] QCAT 227
PARTIES: LESLEIGH ENID SINCLAIR (EXECUTOR OF WILL)
(ABN 64527659055)
V

IDSE DYKSTRA AND ANNE DYKSTRA
T/AS ED DYKSTRA
(ABN 81355821552)

APPLICATION NUMBER:            BD204-09
MATTER TYPE:  Building matters
HEARING DATE:  22 and 23 April 2010
HEARD AT:  Townsville
DECISION OF:  JR Browne
DELIVERED ON:  31 May 2010
DELIVERED AT:  Townsville
ORDERS MADE:  1. The respondent to pay to the applicant the sum of $9,867.50 ($9,627.50 plus $240.00) by 4.00pm on 28 June 2010.
CATCHWORDS:  Compliance with the QueenslandBuilding Services Authority Act 1991, defective works performed under oral contract, contractor and sub-contractor obligations to complete defective works, discretion to award costs under the Commercial and Consumer Tribunal Act 2003.
APPEARANCES and REPRESENTATION (if any):
APPLICANT:  Self-represented
RESPONDENT:  Self-represented

REASONS FOR DECISION

Introduction

This is an application seeking an order for payment of $9,927.50 by Ed Dykstra Painters and Decorators (“the respondent”) to Lesleigh Enid Sinclair (executor of will) (“the applicant”) being rectification costs paid by Bill Sinclair Homes to George Pappas Painting. The applicant also claims costs of the application and interest.

The applicant was granted leave by the tribunal at the commencement of the hearing to file an amended application in the name of Lesleigh Enid Sinclair (executor of will). Lesleigh Enid Sinclair was a partner together with her late husband William Charles Sinclair (“the late Bill Sinclair”) in the registered business Bill Sinclair Homes. The late Bill Sinclair, a registered builder and partner of Bill Sinclair Homes was in the business of constructing new houses. The late Bill Sinclair sadly passed away on 8 December 2008.

The applicant was previously granted leave to be represented at the hearing by Stephanie Griffin, daughter of the late Bill Sinclair and supervisor and manager of Bill Sinclair Homes. The respondent was self-represented by Idse Dykstra, an application for legal representation at the hearing having previously been dismissed.[1]

[1] Pursuant to a Direction of the Commercial and Consumer Tribunal dated 21 October 2009 and an Order dated 27 October 2009.

The applicant relies on the amended application dated 13 August 2009 and the statements filed of Stephanie Griffin, George Pappas, Andrew Nerboni, Lesleigh Enid Sinclair and Sean O’Connor. The statements and exhibits were tendered at the hearing by Ms Griffin and all witnesses except for Sean O’Connor were called to give evidence and were cross-examined.[2]

[2] The witness Sean O’Connor was not called to give evidence and there was no objection by the respondent to the applicant relying on the statement of Sean O’Connor at the hearing.

Mr Dykstra appeared in person and relies on the respondent’s defence filed 22 May 2009 and seeks an order from the tribunal that the application be dismissed and the applicant pay the respondent’s costs in relation to the application.

The respondent also relies on the statements of Idse Dykstra and Anne Dykstra and both witnesses gave evidence at the hearing and were cross-examined. Mrs Dykstra gave evidence by telephone by consent.

Both the applicant and respondent agree that Idse Dykstra, who together with his wife Anne Dykstra operated the respondent’s painting business, was engaged by the late Bill Sinclair of Bill Sinclair Homes in or about 2004 to paint newly constructed houses for an agreed amount. It was on the basis of this long standing oral agreement that the respondent commenced painting works in or about April 2008 to a newly constructed residential home at number 25 (lot 63) Daintree Drive, Bushland Beach (“the subject property”).

The respondent completed the painting works to the subject property in or about May 2008 and presented an invoice dated 20 May 2008 to Bill Sinclair Homes which was paid in full on 20 May 2008.

The agreement between the parties was not in writing and therefore does not comply with the Queensland Building Services Authority Act 1991. However, the applicant may proceed with a claim at common law for damages to recover payment of rectification costs resulting from the alleged defective works performed by the respondent in line with the principles set out in the High Court decision of Bellgrove v Eldridge[3]. The High Court held that the measure of damages to be awarded is “the difference between the contract price for the work or building contracted for and the cost of making the work or building conform to the contract”.[4]

[3] (1954) 90 CLR 613.

[4] Ibid at 613-618, see Straight to the Point Pty Ltd v Shim, HS trading as Ryan’s Tiling [2007] QCCTB 153.

Issues to be determined by the tribunal

The tribunal has determined that the following issues are to be considered:

1.   Whether the tribunal has jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009
2.   Was there an agreement between the parties and if there was an agreement the terms of the agreement
3.   Whether the works performed by the respondent were defective
4.   Whether the respondent was given access to the subject property to rectify any paint works
5.   The reasonableness of the rectification costs paid to George Pappas Painting
6.   Costs and interest

Jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009

The proceedings were commenced in the Commercial and Consumer Tribunal (“the CCT”) which now falls under the jurisdiction of the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT has jurisdiction to determine the application under section 256 of the Queensland Building Services Authority Act 1991 (“the QBSAA”) which includes a dispute under the Act.

A “building dispute” includes a “domestic dispute” and includes a “domestic building dispute” which means a claim or dispute between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for reviewable domestic work.[5] The definition of “reviewable domestic work” under section 8 of the Domestic Building Services Act 2000 is domestic building work and includes work “associated” with the construction of a detached dwelling and “includes the provision of services or facilities to the dwelling”.
[5] Queensland Building Services Authority Act 1991, s2.

For the purposes of section 77 of the QBSAA the tribunal is satisfied that this is a “building dispute” which may be determined under the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).

In determining the other issues, the tribunal must consider the evidence presented by both the applicant and the respondent.

The Applicant’s Submissions

The applicant claims that after payment was made to the respondent, a list of defects was presented to Idse Dykstra by Stephanie Griffin of Bill Sinclair Homes which was not completed despite numerous requests being made to rectify the defective paint work.

The owners of the subject property, Andrew Nerboni and his wife Linda Nerboni (“the owners”) moved into the subject property on or about 20 June 2008 and after identifying various defects to the paint work which were not rectified, made a complaint to the Building Services Authority of Queensland (“the BSA”).

The BSA inspected the paint work at the subject property on 16 October 2008 following which a report was prepared. Ms Griffin tendered the report at the hearing on behalf of the applicant (exhibit “9”). The applicant relies on the report dated 16 October 2008 prepared by Kevin Cameron, Building Inspector for the BSA[6]. The report contains various photographs of the internal and external surfaces of the subject property referring to the defective paint works inspected and states:

“…the owner has listed defective painting issues in every room in the residence internally and placed coloured dots to indicate these defects. On inspection ALL the dots are considered to be defective along with other defects noticed during the inspection…”.[7]

[6] Exhibit “9”.

[7] Exhibit “9” p1.

In relation to the external walls of the subject property the BSA report states in summary that “The variation in texture, finish and application is not considered to be industry standard and therefore will need to be rectified”.[8]
[8] Ibid p 2.

The applicant states that a request to rectify was issued by the BSA to Bill Sinclair Homes dated 22 October 2008 to rectify “the defective applied paint coating” to all internal surfaces and rendered external surfaces.[9]
[9] Exhibit “1”, appendix 13.

As a result of further requests to rectify the defective paint works being given and not attended to by the respondent, Bill Sinclair Homes engaged the services of George Pappas Painting to rectify the paint works as per the BSA request. George Pappas Painting issued an invoice for the completed paint works on 18 December 2008 in the amount of $9,927.50, paid by the applicant following which the BSA issued confirmation of completion of the rectification works dated 16 December 2008.

The applicant seeks an order from the tribunal that the respondent pay to the applicant the costs paid to George Pappas Painting to rectify the defective paint works plus interest and costs.

Evidence of Stephanie Griffin

Stephanie Griffin relies on her statement dated 19 July 2009 (exhibit “1”). Ms Griffin gave evidence at the hearing that she was the acting manager and supervisor of Bill Sinclair Homes at the time the painting works were undertaken and completed by the respondent and that she now holds the relevant qualification with the BSA as a supervisor.

Ms Griffin states that she attended the subject property on 6 May 2008 and spoke to Mr Dykstra who had commenced painting and enquired about the whereabouts of his usual painter Edith. Mr Dykstra informed her that Edith was no longer working with the respondent and was travelling overseas.

On 8 May 2008 Mr Dykstra telephoned Ms Griffin and requested she arrange for the plasterer to return to the subject property as he had applied his sealer coat of paint and there were “defects that needed to be attended to”.[10] Ms Griffin arranged for the plasterer to return to the subject property on 9 May 2008 and on 20 May 2008 the respondent presented an invoice for payment.
[10] Exhibit “1”, p.1.

Ms Griffin states that the final tradesmen attended the subject property in or about late May 2008 to complete their work including Mr Dyskstra who was also finishing some paint work.

In or about early June 2008 Ms Griffin was inspecting the subject property while Mr Dykstra was painting and he showed her some damage to the plaster in the back bedroom caused by a tradesman installing the sliding robe doors and Mr Dykstra told Ms Griffin that it was not necessary to get the plasterer back as he would fix the damage to the wall.

On 16 June 2008 the owners of the property attended a walk-through with Ms Griffin while Mr Dykstra was completing some painting. A document titled “Certificate on Practical Completion”[11] listing defects to the subject property including paint defects was completed by the owners and Ms Griffin. Ms Griffin gave evidence that the owners requested that they be able to leave the inspection and add any further defects to the list at a later stage.
[11] Exhibit “10”.

Ms Griffin attended the subject property with Mr Dykstra at a later date and presented him with the Certificate of Practical Completion (“the Certificate”) which included a list of defective paint works by placing the document on the kitchen bench. Ms Griffin states that she also walked through the property with Mr Dykstra and pointed out specific examples of the defective paint work. For example, she says she pointed up to the cornices and said the paint was streaky with not enough coverage and Mr Dykstra informed her that there were shadows of light in the room. Ms Griffin also referred to marks in the plaster which needed to be filled and sanded and the plaster dust which Mr Dykstra told her was poor plaster coverage.

During this meeting, Ms Griffin states that Mr Dykstra also complained about the type of paint being used. However, there were some works which Mr Dykstra agreed to fix such as the “broom mastic” which Ms Griffin claims was not properly sealed.

Ms Griffin gave evidence that at no stage did Mr Dykstra indicate to her that he would not fix the defective items and she expected he would attend to rectifying the paint works.

Ms Griffin returned to the subject property the next day and found the Certificate on the kitchen bench and certain items had been crossed off and ticked on the document.

Ms Griffin agreed to let the owners move into the subject property on a date prior to 20 June 2008 on the basis that Mr Dykstra be allowed access to complete any further defective paint works.

On or about 7 July 2008 after the owners had moved into the subject property Ms Griffins received a phone call from the owners requesting she attend the subject property to view some further defects. Ms Griffin attended the subject property and was shown by the owners a number of defects on the internal side of the carport door which was covered with roller fluff. Ms Griffin telephoned Mr Dykstra and requested he attend the subject property as further defects had been found by the owners including the garage door. Mr Dykstra told Ms Griffin that he had already been to the property and the owners were “going overboard” and he was prepared to fix the garage door and would only attend the property with a paint representative as it was his opinion that the half strength tint of paint was an issue.[12]
[12] Exhibit “1”, p3.

On 6 August 2008, an inspection took place with Mr Dykstra, Ms Griffin, the owners and a Taubmans’ paint representative. Ms Griffin states that Mr Dykstra did not agree that there was dust in the paint work and Ms Griffin took a knife to touch the paint work to demonstrate the dust in the paint. A report was prepared by the Taubman’s representative on 6 August 2008.[13] Ms Griffin on behalf of the applicant relies on the report’s findings, in particular the “conclusion” which states “Paintwork showing a difference at the top of the wall is likely to be an application and logistics issue. A defect of the product would show up on all cutting in areas”.
[13] Exhibit “1”, Appendix “2”.

Ms Griffin states that she made two attempts to telephone Mr Dykstra to request he attend the subject property and complete the rectification works, however, on each occasion she argued with Mr Dykstra and the phone call was discontinued.

On 12 August 2008 the late Bill Sinclair returned to Townsville after being away for approximately ten (10) weeks for medical treatment and Ms Griffin states that they visited the subject property. The owners were not home and during the inspection they could see various red dots on the walls which the owners had previously told Ms Griffin they had used to represent the various defects to the paint work. Mr Dykstra telephoned the late Bill Sinclair later that day and the phone call was placed on speaker and the late Bill Sinclair informed Mr Dykstra that he had seen the paint and the subject property needed a repaint. Mr Dykstra apparently argued that the plastering works were a problem. The late Bill Sinclair told Mr Dykstra that he should not have painted over the defects. Ms Griffin telephoned Spence Hartman (the plasterer) and he informed Ms Griffin that he had invited Mr Dykstra to contact him should he require him to again attend the property to sand some replastering work which was still wet.

Ms Griffin states that it was during this time that the late Bill Sinclair had been diagnosed with terminal cancer and it was therefore her intention to resolve this matter as soon as possible. A letter dated 20 August 2008 was sent by Bill Sinclair Homes to the respondent identifying several “issues” with the paint work. The penultimate paragraph states “if the [owners] take their complaint to [the] Building Services Authority they will win as we believe they have a genuine compliant. We would appreciate a response to this letter within 7 days”.[14]
[14] Ibid, Appendix 4.

The respondent replied by latter dated 27 August 2008 responding to the issues raised and referring to the paint product used. Mr Dykstra in his letter dated 27 August 2008 states that he has “agreed to rectify problems due to painting work…the plasterer has had to rectify his defective work, therefore I cannot be held responsible for his defects”. Mr Dykstra also invited the involvement of the BSA.[15]
[15] Ibid, Appendix 5.

Bill Sinclair Homes by way of letter dated 28 August 2008 responded to Mr Dykstra’s correspondence and requested a response as to whether he intended to “complete the defect list in its entirety”.[16]
[16] Ibid, Appendix 6.

A further letter dated 2 September 2008 was sent by Bill Sinclair Homes to Mr Dykstra requesting “all defects to be completed within 14 days”.[17]
[17]Ibid, Appendix 7.

Mr Dykstra responded through his solicitor by letter dated 2 September 2008.[18] The letter comprising four (4) pages provides a response to the issues raised by Bill Sinclair Homes and Mr Dykstra in earlier correspondence, in particular the type of paint used, the plastering work, the list of defects and access to the subject property. The letter states that Mr Dykstra would attend to “re-painting of various areas of the property” on certain conditions including using a “standard trade low sheen paint” and payment of Mr Dykstra’s fees at the hourly rate of $50.00 plus GST and any materials used”.
[18]Ibid, Appendix 8.

Ms Griffin wrote a letter on behalf of Bill Sinclair Homes dated 3 September 2008 confirming that arrangements had been made to allow Mr Dykstra access to the subject property on 6 September 2008.[19] Ms Griffin states in evidence that upon receiving the letter dated 2 September 2008 from the respondent’s solicitors in relation to Mr Dyskstra’s proposal to repaint the house using a standard low sheen paint, she made enquiries with the owners and was informed by Mr Nerboni that they required the interior of the subject property to be painted with Duraclean, as previously agreed. It was therefore not acceptable to repaint the subject property using another paint product.
[19] Ibid, Appendix 9.

The respondent sent a further letter dated 4 September 2008 to Bill Sinclair Homes proposing another time (from 9 to 12 September 2008) to attend the subject property.[20]
[20] Exhibit “12”, attachment “H”.

Ms Griffin during evidence states that upon receipt of Mr Dykstra’s letter dated 4 September 2008 proposing an alternative time to attend the property she had also received and read the letter dated 2 September 2008 from the respondent’s solicitors stating the terms upon which Mr Dykstra would attend to the rectification work so she instructed her solicitors to respond in writing. The applicant’s solicitors wrote to the respondent’s solicitors by letter dated 9 September 2008 enclosing a copy of the list of defects which was delivered to Mr Dykstra on 2 September 2008 and a general list of defects which was apparently delivered to Mr Dykstra on 20 August 2008. A request was made in writing that Mr Dykstra attend to the rectification works referred to in the Certificate within seven (7) days failing which another contractor will be engaged and Mr Dysktra would be liable for the costs.[21]
[21] Exhibit “11”. Ms Griffin during evidence confirmed that the reference to Taubmans Duraclean in paragraph 4 on page 2 should be “low sheen paint” and not “high sheen paint”.

Ms Griffin in her statement and during evidence states that given there was no response to the request to rectify issued by the applicant’s solicitors, the owners made a complaint to the BSA and the late Bill Sinclair was notified accordingly by letter dated 17 September 2008 from the BSA.

By letter dated 13 October 2008 Bill Sinclair Homes wrote to Mr Dykstra notifying him of the BSA inspection on 16 October 2008.[22]
[22] Exhibit “1”, Appendix 12.

The BSA arranged for an inspection of the subject property on 16 October 2008.[23] Ms Griffin attended the inspection together with the owners and Kevin Cameron from the BSA. During the inspection Ms Griffin states that she saw Mrs Anne Dykstra talking to Mr Cameron from the BSA out the front of the property and Mr Cameron later informed her and the owners that Mrs Dykstra had briefly attended and told him that Mr Dykstra would not be attending the BSA inspection and that they would fix any defects the BSA required.[24] Ms Griffin in her statement and during evidence states that Mr Cameron pointed out various defects in the paint both externally and internally for example the pitting in the render and the coverage of the paint was not good enough and Mr Cameron advised that all internal and external walls were to be rectified.
[23] Exhibit “1”, Appendix 11.
[24] Exhibit "1", p 6.

By letter dated 22 October 2008 Bill Sinclair Homes received a letter from the BSA to rectify the defective applied paint coating to “all vertical internal surfaces in the residence” and “all rendered external surfaces to the residence”.[25]
[25] Exhibit “1”, Appendix 13A.

Bill Sinclair Homes provided notification of the BSA request to rectify to Mr Dykstra by letter dated 24 October 2008 and requested he attend to completion of the work by 5 November 2008 failing which another contractor would be engaged.[26]
[26] Ibid, Appendix 14A.

Further correspondence was sent by Bill Sinclair Homes to Mr Dykstra on 31 October 2008 extending the time to complete the works to 7 November 2008; and again on 5 November 2008 referring to a telephone conversation between the parties on 28 October 2008 and requesting Mr Dykstra contact Ms Griffin.[27]
[27] Exhibit “1”, Appendix 15 & 16.

Ms Griffin states that on 10 November 2008 she telephoned Mr Dykstra’s solicitor to notify them that the BSA had issued a request to rectify the defective works to Bill Sinclair Homes and she then engaged George Pappas Painting to complete the rectification works on 10 November 2008 and the works were completed and an invoice issued dated 18 December 2008 in the amount of $9,927.50.[28]
[28] Exhibit “1”, Appendix 19.

By facsimile letter dated 10 November 2008, Mr Dykstra’s solicitors wrote to the applicant’s solicitor confirming Mr Dykstra’s instructions in relation to previous correspondence between the parties and in summary states that Mr Dykstra “is aware that there are painting defects relating to painting workmanship which require his attention, however, will not agree with [Bill Sinclair Homes] to repaint the house”. The respondent offerred to contribute the amount of $750.00 (inclusive GST) on the basis that another painter be engaged to rectify the defects and on the basis that the matter is now at an end.[29]
[29] Exhibit “1”, Appendix 17.

By letter dated 16 December 2008 the BSA notified Bill Sinclair Homes that the required rectification work “is now complete”.[30]
[30] Exhibit “1”, Appendix 18.

By letter dated 22 December 2008, Bill Sinclair Homes wrote to the respondent requesting payment for the completed painting works by George Pappas Painting and additional legal costs paid to their solicitors, failing receipt of payment the matter would be referred to the Commercial and Consumer Tribunal.[31]
[31] Exhibit “1”, Appendix 19

During evidence Ms Griffin referred to her further statement dated 25 October 2009 (exhibit “2”) which identifies photos which she states were taken by the owners of the subject property and where the photos were located in relation to the floor plan of the subject property, which is also attached to her statement.[32]
[32] The bundle of photos taken by the owners of the subject property appear as Appendix numbered 1 to 16 in the Statement of Stephanie Griffin dated 19 July 2009 (Exhibit “1”).

Ms Griffin in her capacity as supervisor for Bill Sinclair Homes gave evidence about preparation of surfaces for painting and states that a painter must firstly prepare the surface by dusting down and applying a seal coat. Then the painter must call the plasterer back to rectify any plaster defects identified. The painter then applies another coat sealer and first colour. At this stage small defects may appear and the plasterer may be called back again at the request of the painter. If there are defects, the painter then applies two (2) levels of paint sealer, base colour before the final coat to ensure an even paint surface or the paint will be drawn back into the plaster to create a “dry patch”.

Ms Griffin also relies on the Australian Standard extract for “Preparation of Unpainted Surfaces” AS/NZ2311 tendered at the hearing and attached to her statement. Ms Griffin referred to the general provisions relating to assessment and preparation of surfaces and the standard of finish. In relation to “gypsum plasterboard” the document states that “plasterboard requires checking to ensure that all joints are prepared to a smooth finish and are free of dust before application of paint”.[33]
[33] Exhibit “1”, Appendix 20.

During cross-examination of the witness by Mr Dykstra questions were asked about a number of issues, in particular whether Mr Dykstra was permitted access to the subject property to complete touch-ups to the paint work. Ms Griffin did not agree that Mr Dykstra had indicated he would return to the subject property to complete any touch-ups after she gave him the Certificate at the subject property which she says she left on the kitchen bench.

Ms Griffin was not able to recall who had instructed Mr Dykstra in April 2008 to commence painting the external reveals in a certain colour which was apparently chosen by the owners of the subject property.

Evidence of Spence Hartman

Spence Hartman provided a statement on behalf of the applicant dated 14 July 2009 (exhibit “6”) and gave evidence by telephone by consent at the hearing.
Mr Hartman states that he completed the plastering works at the subject property to a level 4 finish in accordance with the Australian Standards and submitted his invoice for payment on 25 March 2008 to Bill Sinclair Homes.
Mr Hartman attended the subject property in or about May 2008 at the request of Ms Griffin to attend to patching and defects with Mr Dykstra and it was agreed that Mr Dykstra would complete any sanding himself so it was not necessary for Mr Hartman to return to the subject property. Mr Hartman did, however, return to the subject property again at the request of Ms Griffin to complete further plastering works at a later date when the owners were living in the property.
Mr Hartman gave evidence that a level 4 plaster finish is an acceptable finish level for houses and in his twenty (20) years experience he has completed hundreds of houses to a level 4 plaster finish.
Mr Hartman gave evidence during cross-examination by Mr Dykstra that a level 5 plaster finish is only suitable for walls which require high sheen paint or a feature wall. Mr Hartman states that a level 4 plaster finish allows for some imperfection, for example standing a distance at least three (3) metres from the wall. Mr Hartman states that it is the usual practice for a plasterer to complete their work and then the painter applies the first sealer coat and if there are any defects the plasterer may return at the request of the builder to patch the defects. Then the painter applies the first coat of colour. It is not, however, usual practice for the plasterer to return to the property after the first coat of colour is applied to fix any defects to the plaster.

Evidence of Mr Andrew Nerboni

Andrew Nerboni provided a statement dated 18 July 2009 (exhibit “4”) and gave evidence at the hearing. Mr Nerboni and his wife own and live in the subject property.
Shortly after moving into the subject property Mr Nerboni states that he and his wife noticed several painting defects which they pointed out to Mr Dykstra during a meeting at their house in or about early August 2008.
Mr Nerboni attended a further meeting with Mr Dykstra, Ms Griffin and a representative from Taubmans at a further inspection at the subject property.
Mr Nerboni states that Mr Dykstra refused to repair the plastering defects and Ms Griffin arranged for the plasterer to return to the subject property to repair the plastering defects, however, the paint defects were not attended to by Mr Dykstra.
Mr Nerboni confirms that Ms Griffin discussed with him a proposal that had been made by Mr Dykstra to complete the paint works using a different paint and Mr Nerboni refused to allow Mr Dykstra to use a different paint as they had already paid him to use Duraclean.
Mr Nerboni, at the request of Ms Griffin, made a complaint to the BSA and attended an inspection with Mr Kevin Cameron from the BSA and Ms Griffin on 16 October 2008.
Mr Nerboni states that during the BSA inspection Mr Cameron informed him that Mrs Dykstra had attended the property and stated that Mr Dykstra would repair anything the BSA deemed defective. Mr Cameron advised him that Mr Dykstra should be given an opportunity to correct the defects and that Bill Sinclair Homes had twenty eight (28) days to correct the painting defects.
Evidence was given at the hearing by Mr Nerboni about arrangements made by Ms Griffin and Mrs Nerboni to ensure Mr Dykstra was given access to the subject property to correct the defects. In particular, arrangements were discussed with Ms Griffin to have someone else in the house while Mr Dykstra worked on the defects as Mrs Nerboni did not feel comfortable about being alone in the subject property while the painting work was completed.
Mr Nerboni gave evidence that he and his wife typed up a list of defects found in and outside the property after they had moved in and this list was given to Ms Griffin prior to the BSA inspection.[34] Mr Nerboni commenced typing the list in or about mid July 2008 up to and including the date of the BSA inspection (16 October 2008). The list also appears on a CD which Mr Nerboni said included defects he added to the initial list after the BSA inspection based on additional defects noticed by Mr Cameron from the BSA.[35] In addition to the typed list of defects Mr Nerboni gave evidence that he took several photographs of the defects throughout the property prior to the BSA inspection on 16 October 2008.[36] The list of defects was compiled during different times of the day which Mr Nerboni said showed various defects which were not visible due to the change in lighting.
[34] Mr Nerboni referred to exhibit “1” Appendix 3.
[35] The disc is Exhibit “1”, Appendix 26.
[36] Exhibit “1”, Appendix 26 numbers 1 to 16.
Mr Nerboni was cross-examined by Mr Dykstra about the distance at which he was standing when the various photographs were taken of the alleged defects and whether it was in accordance with Australian Standards. Mr Nerboni could not be certain about the distance of the photographs in relation to the defective paint work.
Evidence was given by Mr Nerboni about the agreement to paint the external reveals as a result of changing his mind about the colour of the paint which had initially been applied by Mr Dykstra. Mr Nerboni states that Mr Dykstra offered to charge an additional amount to repaint twelve (12) of the fourteen (14) window reveals in a different colour and this amount was considered by Mr Nerboni as being excessive so it was his intention to paint the window reveals himself. However, during the BSA inspection Mr Cameron determined that the window reveals were defective on the basis of the porous level of the paint.
Evidence was given by Mr Nerboni in relation to some of the photographs taken by him which he claims is evidence of defective paint work. It was Mr Nerboni’s opinion that the paint work to the internal and external walls was “cheap and nasty”. He gave an example of the garage door which he states was covered in fibres and hairs. He also referred to some areas of the walls described as having plaster patches which he states were clearly not sanded. Mr Nerboni referred to various photographs taken by him throughout the property such as photo numbered 8 which he states show pink paint coming through the top colour of paint.[37] Photo numbered 10 shows rough finishing around the door edge; and photo numbered 11 shows flicked paint on the walls through the hallway.[38]
[37] Exhibit “1”, Appendix 26 phot numbered 8.
[38] Exhibit “1”, Appendix 16, photo numbered 10 and 11.
Mr Nerboni personally attended to painting the inside wardrobe shelves and this was not a defect identified by Mr Cameron during the BSA inspection. Mr Nerboni states that he personally painted the shelving as Mr Dykstra wanted to charge an additional amount of money to paint the inside wardrobe shelving.
Mr Nerboni during cross-examination admitted that he did know Mr Pappas personally, however, Bill Sinclair Homes were responsible for engaging him to attend to rectification of the defective paint work in accordance with the request to rectify issued by the BSA.

Evidence of George Pappas

George Pappas provided a statement dated 1 July 2009 (exhibit “3”) and issued an invoice dated 18 December 2008 to Bill Sinclair Homes in the amount of $9,927.50.[39] The invoice refers to “Painting work” completed at the subject property as follows:

“Repainting of Interior & Exterior Walls
Touch Ups to Ceiling
Painting of Doors & Frames
Price of Job (GST Inclusive) $9,927.50”

[39] Exhibit “1”, Appendix 19

The statement provided by Mr Pappas and filed on behalf of the applicant confirms the extent of the works undertaken including “a full repaint of all vertical walls” and “sanding and repairing defects to walls” along with the application of one coat of sealer to patches and two (2) coats of Duraclean.
Mr Pappas gave evidence at the hearing that he has been a painter for 29 years and has painted hundreds of houses. He has also worked as a painting inspector for Master Painters for approximately twelve (12) months some years ago.
Mr Pappas confirmed that a complete list of the defective paint works was given to him and he was requested to repaint the vertical walls of the subject property both internally and externally, by Ms Griffin.
Mr Pappas also gave evidence about preparing surfaces for painting and that minor defects are repaired by the painter and sometimes defects which are missed become apparent after application of the first coat of colour paint. It is necessary to dust off any sand from the surfaces resulting from the plasterer sanding down any plaster and this is usually done with a light broom. Sheeting and covering is then placed on tiled surfaces and windows and the sealer or undercoat is applied. The surface is then sanded down by hand using a pole sander and sanding blocks. If the painter comes across any minor defects like chips in the surface the minor defects are fixed with top coat plaster and then sanded down “flush” and the patch sealed. The first coat of colour is then applied and any defects that were missed are usually apparent and the painter will sand down and apply a coat of colour again. This would also require a re-roll of the entire wall. If there are major defects, for example the wall is cracking or a joint seal is inappropriate, then it is necessary to call the builder to get the plasterer back.
Mr Pappas gave evidence about the removal of glue around any windows and stated that generally a painter would remove the glue before painting as this was essentially a minor defect. To avoid dry patches a painter should after patching a defect, seal it, apply coat colour and re-roll the final coat. It is the responsibility of the painter to carry out the quality of work to the Australian Standard.
Mr Pappas gave evidence about the quality of the existing paint work performed by the respondent and that he found dry spots on the walls, some areas not sanded and cutting in around some areas. He also found all the doors to be covered in lint, rough door ledges, tenant leaking through the woodwork on some areas and shadowing on the walls.
Mr Pappas stated during evidence that the paint work looked like it had been cut-in once and there had been a lack of preparation of the surfaces for example the surfaces had not been dusted down properly. The paint work to the exterior of the subject property did not appear to be covered and there were some places where concrete could be seen through the paint work.
Mr Pappas states that he uses Duraclean as a suitable paint for level 4 plaster surfaces on a regular basis and has painted houses for Bill Sinclair Homes using Duraclean, the same paint he used on the subject property. Mr Pappas also states that he is aware that the owners of the subject property were pleased with his paint work.
In relation to the rectification works undertaken, Mr Pappas stated that it was not necessary to repaint the ceiling, however, he did repaint the cornices and one patch in one of the bedrooms had a “dry look to it”. All vertical walls internally and externally were repainted and this was difficult as the owners were occupying the property and it was necessary to cover furniture which required extra time and care. Mr Pappas repainted all the fourteen (14) external reveals as part of the request by the BSA to repaint all external vertical walls and this took approximately four (4) to five (5) hours which would have cost approximately $300.00 including materials. Mr Pappas gave evidence that the entire outside of the subject property needed to be repainted and that it appeared to him that not enough paint had been applied to the external surfaces.
During cross-examination, Mr Pappas denied that he did a repaint of the entire house and referred to a list given to him by the subject owners. Mr Pappas confirmed that he knows the owners personally and had previously recommended to them that they use Duraclean as a paint finish inside their house.[40]
[40] Exhibit “3”, the Statement of George Pappas dated 26 May 2009 annexes a copy of the defect list prepared by the owners.
Mr Dykstra during cross-examination showed Mr Pappas some photos of the alleged defective painting works to the exterior of the subject property. Mr Pappas did not agree that the windows looked like they had been re-rendered on the basis that there appeared to be a straight line to the paint surface in the photograph.[41]
[41] Mr Dykstra referred to Exhibit “1” and Appendix 26 (photo numbered 1 from Appendix 1 in relation to the external window and Appendix 2 photo numbered 2 in relation to the paint coverage on the concrete wall).

Evidence of Lesleigh Sinclair

Lesleigh Sinclair relies on her undated statement filed 26 August 2009 (exhibit “5”) and gave evidence at the hearing.
Mrs Sinclair confirmed that on 6 May 2008 at approximately 7:30 am she went to the subject property with the late Bill Sinclair to check to see if Mr Dykstra had started painting. She said that the Late Bill Sinclair only went as far as the garage and stayed for no longer than five (5) minutes as he spoke to Mr Dykstra.
Mrs Sinclair gave evidence about the late Bill Sinclair and that he started in the industry as a builder in 1957. The late Bill Sinclair trained his son and grandson and had a good reputation in the building industry.
Mrs Sinclair states that she was an active partner of Bill Sinclair Homes and was responsible for paying all accounts. She confirmed that Ms Griffin started work in the business in October 2006 together with the late Bill Sinclair and took on the role of managing and supervising the business. Mrs Sinclair’s statement attaches a copy of a BSA extract evidencing Ms Griffin as holding a “Site Supervisor” licence from 3 April 2008.[42]
[42] Exhibit “7”, Addenda 10.
Mrs Sinclair gave evidence about her late husband’s illness and that he spent a period of time in hospital from 1 June 2008 to 6 August 2008. During this time Ms Griffin continued to manage and supervise the business.
Mrs Sinclair states that Mr Dykstra and the late Bill Sinclair had a good working relationship and there were no problems with previous work completed by Mr Dykstra for Bill Sinclair Homes. However, Mrs Sinclair did state during cross-examination that Mr Dykstra painted her and the late Bill Sinclair’s house and there were a couple of spots that Mr Dykstra missed and she was going to tell him about them.

Mrs Sinclair in her undated statement confirms that the respondent entered into a verbal arrangement with the late Bill Sinclair commencing late 2004 to paint houses constructed by Bill Sinclair Homes. The respondent has painted twelve (12) houses since 2004 of which one was a speculative home, three (3) investment properties under contract and the majority being owner occupied.
Mrs Sinclair gave evidence that Bill Sinclair Homes used Dulux paint unless requested by the client to use a different paint. Mrs Sinclair refers to signed specifications for houses constructed by Bill Sinclair Homes which includes the application of three (3) coats of Dulux paint internally and externally. The four (4) documents relied upon by the applicant, titled “specifications” for various properties including constructions specifications for “Andrew and Linda Nerboni” and dated 25 January 2007 annexed to the statement refers to “3 Coats Dulux Colours”.[43]
[43] Exhibit “5”, Addenda 1 to 4.
Mrs Sinclair states that the late Bill Sinclair was not satisfied with the paint works performed by the respondent in respect of the subject property and was of the view the entire property needed to be repainted. The owners of the subject property had changed their minds about the colour and type of paint to be used internally and externally and after Mr Dykstra commenced painting the window reveals the owners did not like the colour and decided to repaint the reveals in their own choice of colour. The owners also chose to use Duraclean and not Dulux paint for the internal surfaces of the subject property. Mr Dykstra advised Bill Sinclair Homes that the Duraclean paint would be at an additional cost payable by the owners.
Mrs Sinclair confirms that Mr Dykstra quoted an additional cost of $360.00 later reduced to $280.00 to complete the fourteen (14) window reveals in the different colour chosen by the owners. The owners did not agree to pay the extra money.
Mrs Sinclair’s statement also attaches a copy of documents evidencing payment of the respondent’s invoice dated 20 May 2008 and the invoice issued by George Pappas Painting which was paid by two instalments on 22 December 2008 and balance paid 19 February 2009.[44]
[44] Exhibit “5”, Addenda 5 and 6.
Mrs Sinclair also filed a statement dated 29 December 2009 (exhibit “6”) in reply to the respondent’s statement. Mrs Sinclair states that the late Bill Sinclair sent requests to rectify the defective paint work to the respondent by way of letters dated 20 August 2008 and 28 August 2008.
Mrs Sinclair also states that Bill Sinclair Homes did not respond to the respondent’s offer to attend the subject property to rectify the defective paint works as they had received a letter from Mr Dykstra’s solicitor dated 2 September 2008 specifying certain terms that Mr Dykstra would be prepared to attend the property, that is payment at an hourly rate of $50.00 plus materials and using a standard low sheen paint. Mrs Sinclair states that this proposal made through the respondent’s solicitor was not acceptable to the owners of the subject property.

Evidence of Sean O’Connor

The statement of Sean O’Connor dated 26 October 2009 (exhibit “8”) was tendered at the hearing unchallenged by the respondent. Sean O’Connor states that on or about April or early May 2008 he was hired to re-render two small returns at each end of the garage of the subject property for Bill Sinclair Homes and that he did not re-render the garage window.

Evidence of Kevin Cameron

Kevin Cameron, building inspector for the BSA, gave evidence at the hearing. Mr Cameron confirmed that the request to rectify within twenty eight (28) days issued by the BSA to Bill Sinclair Homes is not a direction. However, should a builder fail to comply with the request, a direction to rectify within twenty-eight (28) days will issue and then a failure to comply with a direction will result in action being taken by the BSA as a failure to rectify, resulting in a fine being imposed and the fine being recorded against the builder on the BSA website.
Mr Cameron confirmed that Mrs Dykstra attended the subject property on 16 October 2008, the day of the BSA inspection, and told him that the respondent would rectify any defects as deemed defective by the BSA.
Mr Cameron does not recall a list of defects prepared by the owners being presented to him at the inspection, however, confirmed that there were several red dots on the paint work on various places throughout the premises which he considered to be defective paint work.
Mr Cameron commented on the paint work to the exterior of the property and said that he found the paint to be “porous” and needed at least one extra coat of paint.
Mr Cameron confirmed the findings in his report dated 16 October 2008 and that in his view all of the walls of the subject property required a complete repaint inside and outside.
Mr Cameron states that he was aware the owners had changed their mind about the colour of the paint initially applied to the window reveals, however, he considered the paint applied to the window reveals to be defective. The request to rectify issued by the BSA to repaint all vertical walls internally and externally included a repaint of the window reveals.
Mr Cameron also confirmed that prior to December 2008 a supervisor did not require a licence and the introduction of new rules by the BSA required supervisors to be licensed after December 2008.
During cross-examination by Mr Dykstra, Mr Cameron gave evidence about what is “defective applied paint covering” and Mr Cameron indicated that in his view the surface of the paint on the outside and inside walls of the subject property was inconsistent and showed possible ingress of water. Mr Cameron referred to several of the photos contained in his report dated 16 October 2008 in support of his findings.[45] Mr Cameron confirmed that the photos contained in his report were taken by him during the inspection and that he does not recall being shown any photographs taken by the owners.
[45] Photo 5 of the report dated 16 October 2008 refers to “general poor finish to exterior walls”. Photo 4 of the report refers to “poor finish around floor waste”.
Mr Cameron stated that when a contractor comes in he/she either accepts the existing work and starts their work or contacts the builder on the basis that the existing works are incomplete and are therefore unable to start work. Once the paint work has been completed the owners have six (6) months to call the builder back to complete any defects and this can be extended to seven (7) months where notice has been given. If a contractor is involved in the rectification work and does not return to the site, the builder is responsible for completing the defects and must account to the subcontractor.
During re-examination by Ms Griffin Mr Cameron also gave evidence that when a tradesman commences work they are deemed responsible for all previous defects. Mr Cameron confirmed that he engaged in discussions with Ms Griffin about allowing Mr Dykstra access to the subject property to complete the painting work.

The Respondent’s Submissions

The respondent admits Mr Dykstra painted the subject property in accordance with directions given by the late Bill Sinclair and argues that a defects list was issued which included complaints about the plastering works.[46] The respondent did not complete the defects list and “denies responsibility for the majority of the defects” listed by the applicant and that the applicant did not allow Idse Dykstra access to the property to complete the “agreed touch up works”.[47]
[46] Defence filed 22 May 2009, para 3.
[47] Ibid.
The respondent raises the preliminary issue of cause of action in that the applicant has failed to disclose any contractual relationship between the applicant and respondent in the application filed 22 April 2009. The applicant filed an amended application dated 13 August 2009 along with supporting documents, in particular a copy of the Probate of the Will in the Estate of the late William Charles Sinclair. The tribunal is satisfied that the applicant Lesleigh Enid Sinclair is the executor of the Estate and was also in partnership with the late Bill Sinclair trading under the registered business name of Bill Sinclair Homes. The partnership having been dissolved by virtue of section 36 of the Partnership Act 1891, upon the death of William Charles Sinclair, the applicant is therefore entitled to maintain the application against the respondent as the Executor of the Estate.
The respondent argues that the request to rectify issued by the BSA was given for reasons other than the respondent’s painting of the subject property. In particular, the type of paint used was not suitable and the plastering works were defective as there was no quality control by the applicant in respect of the plastering works due to a lack of supervision. Furthermore, the applicant directed the completion of the paint works notwithstanding the defective plastering work.
The respondent also argues that the invoice issued by George Pappas Painting is excessive and otherwise includes works which were not defective such as, the external reveals; and work that did not form part of the agreement such as painting the “termite band” to the external wall of the subject property.

Evidence of Idse Dykstra

Idse Dykstra gave evidence at the hearing and relies on his statements dated 14 August 2008 (exhibit “12”) and 23 November 2009 (exhibit “13”). He confirmed that he has 35 years experience as a painter and was engaged by the late Bill Sinclair of Bill Sinclair Homes to paint houses and had completed several jobs prior to undertaking the paint works on the subject property. During evidence he referred to the invoice issued by the respondent in relation to the paint works completed and the entry of GST being added to the invoice as evidence that there was insufficient supervision of works completed by Bill Sinclair Homes and that “no one knew what was going on”.
In his statement dated 14 August 2008, Mr Dykstra confirms that at the relevant time he held a BSA licence and had known the late Bill Sinclair for approximately four (4) to five (5) years when he began subcontracting with him to complete painting works on various properties constructed by Bill Sinclair Homes. Mr Dykstra claims that it was agreed between the parties “some years ago” that he would use Solver Velversheen, low sheen (6.5% gloss level) paint for all internal surfaces.
Mr Dykstra recalls receiving instructions from the late Bill Sinclair to commence painting works on the subject property and he commenced painting the exterior window reveals prior to the windows being installed in accordance with usual practice. Mr Dykstra received a call from the late Bill Sinclair some one (1) to two (2) weeks later and was informed that the owners did not like the colour and a discussion took place about additional costs in relation to Mr Dykstra repainting the window reveals. Mr Dykstra quoted $360.00 which may have been reduced to $280.00 which he was informed the owners were not prepared to pay so it was agreed between the owners and Bill Sinclair Homes that the owners would repaint the windows reveals.[48] Mr Dykstra states that he also repainted two (2) of the external walls which were re-rendered and did not charge an additional cost for the repainting.
[48] Exhibit “13”, para 27.
Mr Dykstra agreed to meet Ms Griffin at the subject property on 6 May 2008 to discuss the work involved. The owners of the subject property also attended the meeting to discuss sample colours for the interior walls. At a further meeting on a date unknown the owners met with Mr Dykstra and instructed him to use Duraclean paint for the interior and Mr Dykstra charged an additional amount for the cost of the paint. Mr Dykstra claims that he “warned” Ms Griffin prior to commencing painting that using Duraclean would be a difficult product and hard to “touch up” due to the high standard of extra shine. Notwithstanding Mr Dykstra’s advice, Ms Griffin instructed him to commence painting the subject property.
Mr Dykstra commenced painting the interior of the property in early May 2008 and after applying a coat of sealer paint he telephoned the late Bill Sinclair and requested he arrange for the plasterer to come back as there was some damage to the walls including the internal cornices. He waited for approximately three (3) to four (4) days before being notified by Ms Griffin that the plasterer would attend the subject property. Mr Dykstra showed the plasterer several “marks and dents”.[49] Mr Dykstra returned to the subject property the following day with Ms Griffin who apparently instructed Mr Dykstra to commence painting the interior of the property as the owners wanted to move into the property “as soon as possible”.[50] Mr Dykstra gave evidence that approximately one (1) week before completing the paint works the late Bill Sinclair attended the subject property and offered to pay him a progress payment. Mr Dykstra was of the view that the late Bill Sinclair “seemed quite happy with the progress of the job”.[51]
[49] Exhibit “12”, para 40.
[50] Ibid para 45.
[51] Ibid para 46.
Upon completion of the painting Mr Dykstra had a meeting with the owners of the subject property who he says thanked him for the work. Mr Dykstra informed the owners he would be back to complete “touch ups” after the property had been cleaned and it was his expectation that Ms Griffin would telephone him to arrange a suitable time for him to attend the subject property for that purpose.
Mr Dykstra referred to the initial defects list titled “Certificate of Practical Completion” (exhibit “10”) which was apparently left on the kitchen table by Ms Griffin during a meting with her and Mr Dykstra. Mr Dykstra argues that he told Ms Griffin to leave the list on the table as he was busy and would come back to finish certain touch ups, however, the owners moved into the property before he had the opportunity of returning.
The next meeting with Mr Dykstra, the owners of the subject property and Ms Griffin took place after the owners had moved into the property. Mr Dykstra states that at the meeting Mr Nerboni produced a “very long list of alleged defects” and it was Mr Dykstra’s opinion that Mr Nerboni found the “whole process amusing”.[52] During the meeting Mr Dykstra offered to fix any defects he was responsible for and explained that due to the higher sheen paint being used they would be able to “notice more plaster marks than usual” and that the majority of the defects were “due to defective plastering”.[53]
[52] Ibid para 57.
[53] Ibid para 58.
A further meeting took place on 1 August 2008 with a representative from Taubmans to determine if the quality of the paint had contributed to the issues raised by the owners, in particular the half strength colour used. A sample of the paint used was provided to the Taubmans’ representative after the inspection because the owners could not find a sample during the meeting. Mr Dykstra therefore does not accept the findings of the Taubmans representative in relation to the quality of the paint. During the meeting the owners indicated that they required all of the walls to be repainted and Mr Dykstra agreed to “consider that option” provided he could use Solver Velversheen paint.[54] Mr Dykstra argues that he made attempts to contact Ms Griffin on her mobile phone and during one conversation with Ms Griffin on or about 12 August 2008 he heard the late Bill Sinclair in the background say “just fix it, it’s a mess”. Mr Dykstra said that he asked Ms Griffin if he could speak to the late Mr Bill Sinclair, however, she refused.
[54] Ibid, para 63.
The plasterer was called by Ms Griffin to attend the subject property and a letter was sent by Bill Sinclair Homes to the respondent dated 20 August 2008. Mr Dykstra claims he received the letter on 27 August 2008 in his letterbox and he was not given sufficient time to respond to the request to rectify any defects. He therefore responded by letter dated 27 August 2008.
Various letters were exchanged between Mr Dykstra and Bill Sinclair Homes before the owners of the subject property made a complaint to the BSA and an inspection was arranged to take place on 16 October 2008 at the subject property. The correspondence relied upon by the respondent is also referred to in the statement of Ms Griffin.
Mr Dykstra states during evidence that he was given insufficient notice of the date and time of the BSA inspection on 16 October 2008, notice having been given by Ms Griffin by letter dated 13 October 2008 on behalf of Bill Sinclair Homes. Mr Dykstra was unable to attend the BSA inspection and arranged for his wife, Anne Dykstra to attend in his absence.
During cross-examination by Ms Griffin, Mr Dykstra agreed that if work is deemed defective by the BSA then it must be defective. Mr Dykstra states that there were days that he was unable to contact Ms Griffin. Ms Griffin referred to several diary entries (exhibit “16”) to confirm that she had spoken to Mr Dykstra throughout the project. Mr Dykstra during cross-examination confirmed that his recollection of the conversation with Ms Griffin at the subject property when he was shown the Certificate was that he would come back and he had attempted to contact Ms Griffin by telephone to determine if the defects were ready and all tradesmen had finished. Mr Dykstra referred to the various letters sent in relation to his attempts to attend the subject property to fix the defects in particular his letter dated 4 September 2008. Mr Dykstra states that he was of the understanding that the defects, to be corrected when he was allowed access were to include the items listed on the initial defects list (the Certificate) left on the kitchen table by Ms Griffin including touch-ups outside.

Evidence of Anne Dykstra

Anne Dykstra made a statement dated 2 November 2009 (exhibit “14”) and gave evidence by telephone at the hearing by consent. During evidence Mrs Dykstra confirmed that she attended the BSA inspection on 16 October 2008 and spoke to Kevin Cameron of the BSA. Mrs Dykstra states that she has “no recollection” that she told Mr Cameron at the inspection that the respondent would “fix any defects the BSA required”.[55]

[55] Exhibit “14”, para 16.

The Tribunal’s Findings

Was there an agreement between the parties and if there was an agreement the terms of the agreement

The tribunal finds that the respondent and the late Bill Sinclair of Bill Sinclair Homes did have a long standing oral agreement that the respondent would undertake painting works on houses constructed by Bill Sinclair Homes. This oral agreement commenced in or about 2004 and the parties agree that the respondent painted approximately twelve (12) houses prior to commencing paint works on the subject property. There is no evidence before the tribunal to indicate that the applicant had any previous issues with works performed by the respondent prior to the commencement of paint works on the subject property in April 2008.
On the basis of the longstanding agreement the respondent agreed to paint the interior and exterior of the subject property and commenced painting the exterior in or about April 2008 and the interior in early May 2008. The tribunal finds that it was a condition of this oral agreement between the parties that the respondent would use Duraclean paint as requested and paid for by the owners. It was also an implied term of the agreement that the respondent would carry out the works in a good and workmanlike manner to the Australian Standard required for the preparation of unpainted surfaces as relied upon and referred to by the applicant at the hearing.[56]
[56] See Straight to the Point Pty Ltd v Shim, HS trading as Ryan’s Tiling [2007] QCCTB 153 in relation to the required standard to complete works where contract does not comply with the Queensland Building Services Authority Act 1991 at para 44. In relation to the Australian Standard, see exhibit “1”, Appendix 20.

The tribunal does not consider the applicant’s submission that the presence of Mr Dykstra’s solicitor in the hearing room throughout the proceedings as being a relevant consideration in determining whether an order for costs and or interest should be made in the applicant’s favour.
This is a proceeding before the Queensland Civil and Administrative Tribunal, the former CCT having been abolished by the QCAT Act effective 1 December 2009.[63] However, the tribunal can only make an order for costs under section 271 of the QCAT Act if the former entity, that is the CCT, could have made the order. The relevant section of the Commercial and Consumer Tribunal Act 2003 in relation to costs provides that “parties pay their own costs unless the interests of justice provide otherwise”.[64] There are additional factors the tribunal may have regard to in determining the issue of costs as set out in section 70(4) such as, among others, the outcome of the proceeding, the conduct of the parties, the nature and complexity of the proceeding and the strengths of the arguments raised by the parties.
[63] Section 256 of the QCAT Act provides that a “pending proceeding” is to be heard before QCAT.
[64] Commercial and Consumer Tribunal Act 2003, s 30.
The tribunal must also consider the principles set out in the decision of Tamawood Limited v Paans[65] in relation to the discretionary power which may be exercised “in the interests of justice”. Justice Keane held that:

“If orders were not made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation themselves…[this] would be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the tribunal”.[66]

[65] [2005] QCA 111.

[66] Ibid at 32.

It was held in Civic Steel Homes v Mitra[67] that section 71(5) must be considered together with section 71(4) in determining whether to make an order for costs.[68]
[67] [2006] QDC 322.
[68] see Lienhart v Sunrise Homes Pty Ltd [2010] QCAT 156.
In addition to costs the applicant also claims interest on the amount claimed at 10%. The tribunal has the discretion to award interest on the damages awarded under section 77 of the QBSA at the rate of 10% as prescribed under regulation 34B of the Queensland Building Services Authority Regulation 2003.
The issues to be determined by the tribunal in relation to this application and the nature of the dispute were not complex and both parties were not legally represented at the hearing. There was a considerable amount of evidence adduced by the applicant including a large volume of photographs and all except for one witness was called to give evidence at the hearing by the applicant.
The tribunal has considered all of the evidence and is not satisfied that the conduct of the parties, in particular the respondent throughout the hearing would warrant the exercise of the tribunal’s discretion to award costs and or interest. It is clear from the documents filed and relied upon in the hearing that both parties have engaged in lengthy correspondence over a protracted period culminating to a rapid decline in what was once a longstanding and harmonious professional relationship. The applicant agrees that the respondent previously painted twelve (12) houses for Bill Sinclair Homes on the basis of an oral agreement commencing in late 2004. Sadly, the late Bill Sinclair past away on 8 December 2008 and this may or may not have contributed to what clearly was a break-down in communication between the parties. Suffice it to say that the respondent has always maintained that Mr Dykstra’s previous dealings were always with the late Bill Sinclair of Bill Sinclair Homes and that he had little involvement with Ms Griffin as manager and supervisor. This submission was not accepted, the tribunal having found that Ms Griffin did have the relevant authority to manage and supervise works to the subject property on behalf of Bill Sinclair Homes.
The tribunal has considered all of the issues raised by the parties and finds that although the applicant was successful in an order being made that the respondent pay the rectification costs by way of damages for breach of contract, the amount was discounted by the tribunal in the sum of $300.00 as a result of an issue being raised by the respondent in relation to the re-painting of the external window reveals. Although the applicant concedes that the owners agreed to repaint the fourteen (14) window reveals at their own expense and the respondent was therefore not responsible for the paint work, no such concession was allowed by the applicant at the time payment was requested from the respondent for the rectification costs paid to George Pappas Painting. The tribunal also acknowledges that although the respondent was not successful it was not unreasonable for the respondent to defend the claim.
The tribunal has, however, considered the attempts made by the applicant to procure the respondent to attend to the rectification works and this is evidenced by various correspondence exchanged between the parties and evidence adduced at the hearing in relation to various telephone conversations and discussions with the owners. The applicant promptly paid the respondent in full on 20 May 2008 for the paint works carried out on the subject property, the respondent having issued an invoice dated 20 May 2008. The respondent has therefore had the benefit of the money paid in good faith by the applicant since 20 May 2008. The applicant has also paid money to George Pappas Painting for the rectification costs and undergone considerable time and expense in seeking to have those costs recovered from the respondent.
The tribunal has considered the oral submissions made by both parties at the hearing in relation to costs and is prepared to award the costs of the filing fee paid by the applicant in the sum of $240.00. The tribunal is not otherwise satisfied that an order for additional costs and or interest should be awarded to the applicant for the reasons previously outlined.
The tribunal makes the following orders:

1. The respondent to pay to the applicant the sum of $9,867.50 ($9,627.50 plus $240.00) by 4.00pm on 28 June 2010.