Smith v Wallace

[2022] QCAT 9

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Smith v Wallace [2022] QCAT 9

PARTIES:

MELISSA SMITH AND CAMERON SMITH

(applicant)

V

CHAD THOMAS WALLACE

(respondent)

APPLICATION NO/S:

BDL104-20

MATTER TYPE:

Building matters

DELIVERED ON:

11 January 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McDonald

ORDERS:

The Respondent Chad Thomas Wallace pay the applicants Melissa Smith and Cameron Smith the sum of $47,061 plus interest of 10% as and from the date of judgement.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – Where works performed outside of the contract – where direction to rectify – where direction to rectify not complied with – where damages for negligent construction work

Queensland Building and Construction Commission Act 1991 (Qld), s 77, s 14 Schedule 1B

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54

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

1. The applicants filed an application for a building dispute on 14 May 2020. They sought costs of rectification for the pool built by the respondent, which they argued was not built in accordance with the contract. Specifically, the applicants claim that the pool was built with inadequate sub soil drainage and a defective pool cartridge filtration system. They claimed the costs of rectification of the damage and interest.

2. The respondent has failed to participate in these proceedings, indicating by email of 16 September 2020 to the Tribunal that he would not be doing so. No material in response has been filed by the respondent.

3. The applicants argue that the contract was between themselves and Mr Wallace in his personal capacity. They produced by way evidence in support of their claim email correspondence between them and a quote dated 30 July 2018.[1] The applicant submits that this constitutes the written form of a partly written, partly oral contract between the parties entered into on 1 August 2018, when they accepted via return email[2] the quote emailed to them.

   [1]Applicants submissions annexure A, and B, p1-3.

   [2]Ibid Annexure C p4.

4. There are some difficulties in accepting the Applicant’s submission that the contract was between the applicants and the respondent personally. The quote, on Awesome Pools letterhead, which the applicants say is the basis of the written offer, emanates from an ABN (ABN90 619194151), associated with Awesome Pools and Landscapes Pty Ltd, a company deregistered since 2 January 2021. The quotation is problematic in itself, not identifying a licence number of the contractor.

5. The applicants state in their submissions that Awesome Pools and Landscapes Pty Ltd was not party to the contract and did not hold a building licence.[3]

   [3]Ibid Annexure E p 7.

6. They provided evidence that the Respondent paid QBCC home warranty insurance to undertake the works in his personal capacity. The Notice of Cover of QBCC Home Warranty Insurance provided confirmed this is the case.[4]

   [4]Ibid Annexure D p 5-6.

7. I accept that the parties to the contract are Melissa and Cameron Smith and Awesome Pools and Landscapes Pty Ltd in circumstances where the quote clearly identifies the ABN of the company. However, Mr Wallace identified himself as the Contractor when he paid the premium to the QBCC Home Builders warranty scheme, in his personal capacity.[5] At all material times the QBCC treated Chad Wallace as the contractor.

   [5]Ibid.

8. The Respondent, in correspondence to the Tribunal dated 16 September 2020, acknowledged that he had undertaken the works and noted he had been fined by the QBCC for failing to rectify these works.

9. The contract also fails to satisfy the requirements of the Act for enforceability of the contracts over $20,000. [6] However, given the company is no longer registered, there can be no basis for recovery against the contract.

   [6]Section14 Schedule 1B QBCC Act

10. Although there may be not contractual rights against Mr Wallace, there may be rights in negligence. The applicant’s claim clearly identifies that they are seeking damages for loss caused by defective work, based on Mr Wallace failure to exercise due care and skill in the works undertaken. The application and supporting material raises a claim that the Mr Wallace has performed the works negligently and that the applicants have suffered resultant loss and damage. Mr Wallace has confirmed that he has undertaken the works and his licence number is identified in the Home Warranty Insurance coverage for the works.[7]

    [7]Email Chad Wallace to QCAT 16 September 2020.

11. A QBCC inspection carried out on 14 January 2021 found the following works were defective, summarised in their report of 14 January 2020:[8]

    (1)“The installation of the swimming pool is defective and not in accordance with the requirements of AS 1839-1994 Swimming Pools pre-moulded fibre-re-enforced plastic installation, clause 7.2 Pool drainage in that the contractor has not employed any subsoil drainage around the swimming pool to relieve conditions that may arise when the external water pressure on the swimming pool walls and floor exceed the interior water pressure, in the case where the surrounding ground level rises above the normal operating level of the swimming pool. This has resulted in the swimming pool being outside of the tolerances of AS1839-1994 Final level of the pool.”

    (2)“The installation of the undersized swimming pool cartridge filter Astral X150 is considered defective as it adversely affects the health and safety of persons using the swimming pool. Due to the undersized filter – will not keep the water clean”.[9]

    [8]Applicant Submissions Annexure p 8-14, QBCC Resolution Report 14 January 2020.

    [9]Ibid.

12. The QBCC made a direction that Mr Wallace rectify these defects on 20 January 2020.

13. Mr Wallace failed to attend the inspection, and failed to comply with the direction to rectify.

14. Mr Wallace owed a duty of care to perform the building works to perform the works with due care and skill to the standard expected of a licenced contractor and in accordance with regulations and standards.

15. The Assessment undertaken by the QBCC provides clear evidence that the works in relation to the pool drainage system and cartridge filtration system are defective and have been performed below the expected standard.

16. Further Engineering evidence submitted to the Tribunal indicates that the pool:

    (a)has no acceptably surface drains or discharge points upslope;

    (b)has a tilt placing it outside of the standards for pool levels (AS 1839-1994 Clause 7.5);

    (c)has a visible desperation between pool coping and the alfresco slab.[10]

    [10]Ibid Annexure J, p 20-23, Report of Angelo Iancu 9 April 2021.

17. I accept the QBCC’s findings that indicate these works were defective and not in accordance with the requisite standard. I find that Mr Wallace has performed the works in breach of his duty of care to the applicants.

18. The applicants provided evidence of their loss sustained arising from these works.

19. They have provided evidence from a structural engineer that indicates that the pool must be removed and replaced to rectify the works. The report states that since the ground under the pool needs to be drained and there are no alternative methods to rectify this but to remove and replace the pool, with minimal material recoverable from the exiting construction.[11]

    [11] Ibid

20. In the absence of any evidence to the contrary, I accept this expert evidence and find that there is no alternative rectification remedy to removing the pool shell and replacing the pool.

21. The cost of rectification works in a quote from Narellan Pools includes removal of the pool shell, and re-installation of a new swimming pool. The quote specifies a cost of $7680 for shell, removal including removal of coping and concrete draining and isolating and disposal. It includes a base pool price of $31,000, with concreting $5880 and refit of existing fencing $1880. This is a total cost of $47,061.[12]

    [12] Ibid Annexure H p 18 Quote Narellan Pools

22. Mr Wallace did not provide an alternate quote for the Tribunal’s consideration nor any response in relation to the submissions from the applicant quantifying their loss. I therefore accept the applicant’s evidence that their loss sustained arising from the defective work is $47,061.

23. The applicants also claim interest on this amount. The Tribunal may grant interest pursuant to s 77(3) in accordance with QBCC Act. The QBCC Regulations specify this is to accordance with the contract, or agreed rate, or at 10%.[13] There being no effective contract with any agreed terms or otherwise, the applicable rate is 10% as and from the date of judgment.

    [13] S 54 QBBC Regulations