Smith v Porter
[2020] QCAT 354
•18 September 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Smith v Porter [2020] QCAT 354
PARTIES: REBECCA-JANE SMITH (applicant)
v
TERENCE OWEN PORTER (respondent)
APPLICATION NO/S:
BDL076-18
MATTER TYPE:
Building matters
DELIVERED ON:
18 September 2020
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Gardiner
ORDERS:
1. Terence Owen Porter pay Rebecca-Jane Smith the sum of $22,765.80 within 21 days of the date of this decision.
REASONS FOR DECISION
On 19 March 2018 Rebecca-Jane Smith made an application to the Tribunal about a domestic building dispute she has with Terence Owen Porter. Ms Smith claims the sum of $22,180.00 and costs associated with this debt for building works contracted between the parties under a building contract dated 5 August 2008.
Ms Smith supported her application with copies of the contract, a Queensland Building and Construction Commission (QBCC) licence search relating to Mr Porter, an insurance report, a letter from the QBCC and photographs of the building work undertaken by Mr Porter that Ms Smith says was not performed properly under the contract.
Ms Smith also filed a note of a conversation she says she had with Mr Porter on about 3 September 2017 when she and her partner first discovered the deck built by Mr Porter was failing.
Om 19 March 2018 Ms Smith filed an application for a decision by default.
Directions were made by this Tribunal on 11 April 2018 regarding service and the filing of documents by both parties.
The Tribunal application and supporting documents were served by post on Mr Porter on 20 April 2018.
A compulsory conference was convened for 29 May 2018. Mr Porter did not attend the conference.
Further directions were made on 28 May 2018 and 13 August. 2018 affording Mr Porter time to respond to the application of Ms Smith but no material was received from him.
To date, Mr Porter has not filed any material in this matter.
On 18 July 2018, the Tribunal President directed Ms Smith to file all further material on which she sought to rely for a default decision. Ms Smith further provided a report from the Managing Director of Australian Professional Galvanizing Pty Ltd.
Mr Porter was afforded one final opportunity by directions on 13 August 2018 to respond to the application made by Ms Smith by filing a response but further failed to do so.
On 13 February 2020 a response was received from Ms Smith indicating she had supplied all the material she could in this matter.
This application comes before me for an on the papers hearing of Ms Smith’s application for a default decision pursuant to the orders of the Senior Member dated 21 November 2018 and 9 May 2019.
Ms Smith ‘s application seeks damages in the sum of $22,180.00. This represents the amount quoted to remove the existing deck and subframe floor installed by Mr Porter and re-instate the deck with galvanized steel posts and bearers and associated costs.
The insurance report identified that during house renovations in 2017, the homeowners noticed that the supporting posts and bearers around the pool deck, where they came into contact with the saltwater pool, were rusted although the decking area was only 8 years old. The insurance inspector opined that the rusted posts and bearers needed to be replaced and that the material used didn’t appear to be suitable to use around the pool water contact area. He further stated the steel had been painted and opined he was not sure if the steel had been galvanized to protect it against the rust after coming into contact with the salty pool water.
Ms Smith gives evidence that in a conversation with Mr Ported in September 2017, he informed Ms Smith that he did not recall what type of steel he used in the construction.
The Managing Director of Australian Professional Galvanizing Pty Ltd said he examined the material provided being photographs and confirmed that the steel used does not conform with Australian standard AS4680 for Hot Dip Galvanizing. In his view the coating is consistent with pre-galvanized materials, such as dura gel and the like. The further opined that these materials were not suitable for the site.
Ms Smith lodged a complaint with the Queensland Building and Construction Commission on 6 September 2017. The Commission advise that the time for the filing of a complaint (years and 3 months from the date of practical completion) had passed and so was outside the Commission’s timeframe for action by it.
As Mr Porter declined to take part in these proceedings, I have no evidence to show what steel was used but on the balance of probabilities, I am satisfied that the steel used was not fit for purpose, lasting only 8 years from construction and not identified as galvanized steel.
I make the following findings of fact:
(a)Mr Porter constructed a deck surround for a saltwater pool for Ms Smith pursuant to a contract between them dated 5 August 2008;
(b)Galvanized steel, fit for purpose, was not used by Mr Porter during construction of the deck;
(c)During further renovations on 7 May 2017 Ms Smith discovered the supporting posts and bearers around the pool deck were rusted where they came into contact with the saltwater pool;
(d)The rusted posts and bearers had to be replaced;
(e)A quote for this work was received by Ms Smith in the sum of $22,180.00.
The basis of Ms Smith’s claim is the contract entered into between the parties.
Contract
I am satisfied that the dispute is a domestic building dispute.[1] The work undertaken by Mr Porter was reviewable domestic work, Mr Porter was a building contractor and Ms Smith was a building owner. I am satisfied that the Tribunal has jurisdiction to hear and decide the dispute.
[1]QBCC Act, sch1B definitions
The Tribunal received six pages of the Residential building Contract signed by the parties on 5 August 2008. Page 2 of the supplied contract states the contract had six pages. The general conditions of the contract were not filed.
The Queensland Building and Construction Commission Act 1991 (Qld) (the ‘QBCC Act’) also contains warranties including that the building works would be carried out in an appropriate and skilful way and with reasonable care and skill.[2]
[2]QBCC Act, sch 1B, s 22
The implied contractual terms owed by Mr Porter to Ms Smith in undertaking the building works are in the same terms as the warranties implied by operation of the QBCC Act, that is, to take reasonable care and exercise reasonable skill in undertaking the building works.[3]
[3]Ibid
The material used by Mr Porter in areas in contact with saltwater appears to have been painted steel - not galvanized. This resulted in the rusting of the supporting posts and bearers around the pool deck where they came into contact with the saltwater pool and diminished the expected life of the deck. Evidence provided by Ms Smith in a statement from the Managing Director of Australian Galvanizing Pty Ltd opined that the material used was not suitable for the application as shown on the plan provided.
I find that the work performed by Mr Porter was defective and not to the standard of a licensed building contractor. I am therefore satisfied Mr Porter has breached the implied terms of the contract between himself and Ms Smith. This breach caused a foreseeable loss to Ms Smith resulting in the necessity for remedial works on the deck. This repair work is quoted by As Meager Carpentry and Joinery to cost $22,180.00.
Ms Smith neither contributed to that loss nor failed to mitigate the loss and damage. There is little she could have done as the damage was concealed under the pool decking until further renovations were undertaken in 2017.
Damages
Mr Porter is liable for restitution to be paid to Ms Smith under their contract for the work not performed in a proper and workman like manner.
The purpose of an award of damages is to restore Ms Smith to the position she would have been in if the performed building work had been to the appropriate standard of workmanship.
The only evidence I have before me is the rectification quote and in the absence of any evidence form Mr Porter, I accept this amount as both necessary and reasonable.
I find that Ms Smith is entitled to recover from Mr Porter the sum of $22,439.00 as damages for unprofessional work performed by him.
I have the power under s77 of the QBCC Act to award costs when deciding a building dispute. I am satisfied it is appropriate in this matter to award Ms Smith the costs incurred in the filing of her initial application set in the sum of $326.80.
I order that Mr Porter pay to Ms Smith the sum of $22,765.80 within 21 days of the date of this decision.
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