Sodhani v Path Developments Pty Ltd
[2014] QCAT 1
| CITATION: | Sodhani v Path Developments Pty Ltd [2014] QCAT 001 |
| PARTIES: | Abhishek Sodhani (Applicant) |
| v | |
| Path Developments Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL061-13 |
| MATTER TYPE: | Building Dispute |
| HEARING DATE: | 9 October 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Favell |
| DELIVERED ON: | 7 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The applicant’s claims are dismissed. |
| CATCHWORDS: | Building and Construction – whether jurisdiction of the Tribunal – whether obligation of builder to provide strata title – whether partial completion – whether builder liable for difference in size of building from surveyor plan – whether charges above the contract price |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Abhishek Sodhani |
| RESPONDENT: | Mr Peter Luckmann (owner and Director of Path Developments Pty Ltd) |
REASONS FOR DECISION
On or about 9 December 2011 Path Developments Pty Ltd entered into a Residential Building Contract with Abhishek Sodhani. The description of works in the contract was ‘new three bedroom duplex as per attached plans and specifications’. The contract price was $318,000. The duplexes were to be at Lot 22, Montree Circuit, Kallangur.
I was told that the work was commenced on 5 June 2012 and completed on 9 January 2013. I am also told that the applicant paid $320,568 to the respondent.
The applicant seeks in an application for domestic building disputes $2,588 plus interest which is described in the application as ‘relief from payment of amount claimed’.
The claim also seeks costs of $16,764 plus interest.
In the attachment to the claim the applicant lists five issues. They are:
1.Inefficiency of builder to provide strata title prior/along with completion
2.Building construction not as per the plan
3.Undue demand of money over and above the contract price
4.Additional interest burden on buyer due to major delay in providing strata title
5.Undue pressure by the builder on the buyer to make the final payments before due date without fulfilling pending contractual obligations.
In the executive summary it is said
this claim has been submitted to QCAT to make a decision for settlement of losses incurred and undue payments forcefully taken by the builder. Details are as under:
1.Additional payments made to builder for $2,568 for strata title over and above the contract price plus interest on the same
2.Difference in building size of 5.8 square metre that equates to $5,896.42 plus interest on the same
3.Interest burden on buyer for $9,868 due to late hand-over of property plus interest on the same
4.Uncompleted works
5.Damages for unjustified/unfair treatment
6.Damages for harassment
7.Reimbursement of court fees and related expenses.
The filing fee is $275.
Additional charges over and above the contract price?
The applicant complains that he made payments to the builder of $1,000 as payment for the surveyor, $932 as payment for council lodgement fees and $638 being for payment for a letter of supply made to AMPFLO. The applicant seeks a refund of those amounts, a total of $2,568.
In the attachment and submissions called third submission final Submission 18/08/2013 the applicant says,
As per part J of the contract document it clearly states the payment of the strata title is to be borne by the builder and there should be no additional charges to be paid by the builder for any costs in relation to the strata title.
An examination of the contract discloses that part J does not state that.
Part J of the contract on page 11 provides for special conditions. It states ‘any special conditions in addition to, or any amendments to the general conditions of this contract, must be stated’. One of the items included in the box provided is as follows ‘SC3 – payment for strata title by builder. Documentation by client’.
The respondent resists the claim and says that the payment for the surveyor was a part cost for the paperwork required. The payment for the council lodgement fees was for the lodgement of documents and the payment for the letter of supply made to AMPFLO was required as part of the strata title as an extra documentation. The respondent says those costs relate to the documentation required to get strata title. It says that it paid $5,864.76 being for surveyor’s fees for obtaining the strata title, $2,905.76 for solicitor’s fees to obtain the strata title and $110 being for drafters fees for a landscaping plan.
Unfortunately the special condition is not explained any further in the contract. An interpretation of the two sentences in the special condition 3 to me means that the client must pay for and obtain the necessary documentation but the builder must pay for whatever is required to actually get the strata title. The only way to make sense of the two sentences and give business efficiency to the contract is to read it as requiring the client to pay for the costs of the documentation.[1]
[1] Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337.
The three invoices paid for by the respondent are attachment B to the response filed with the Tribunal. The invoice from the solicitors in the sum of $2,905.76 was for a title search, a reservation of name CMS, registration fees for plan and CMS and the solicitors’ costs. The solicitors had taken instructions to receive and peruse the draft plans, to prepare a form 14 general request to record reservation of name, to preparation of first community management statement, to receipt of survey plan, to preparation of form 18 general consent and forwarding of same to IBA Australia and to correspondence with all parties.
The invoice from Axis Surveys paid for by the respondent was for $3,850 being detailed as ‘subdivision building format plan’. The invoice from Rezicad Design and Drafting was for a landscape plan in the sum of $110.
I have not been provided with the invoices for the items claimed by the applicant.
Under the heading ‘special conditions’ in the submission the applicant says,
13, 778 of the deposit amount of slab and deposit payment to be carried by the builder to the time the builder receives the building boost. Buyer after receiving the building boost will make the above payment to the builder.
It then refers me to appendix 2 to the submissions which is a letter dated 16 April 2012 addressed ‘to whom it may concern’ and in particular, ‘Wide Bay Australia Limited’. It does not form part of the contract. It is not signed but carries the name of Peter Luckmann, the director of the respondent. The contract was signed on 9 December 2011, more than four months before the letter referred to was sent.
In my view it does not change the contract referred to earlier. Further in the background on page 3 of the written submission it is said, ‘the final completion stage invoice (appendix 5) notification as received from the builder on 23 August 2012 without strata title’. In fact, the tax invoice is dated 5 September 2012 and it is a progress invoice for completion stage. Part of appendix 6 is a letter from Path Developments dated 23 August 2012 giving practical completion notification and stating that ‘your house being constructed at Lot 22, Montree Circuit, Kallangur, will reach the stage of practical completion on approximately 5 September 2012 (weather permitting)’. It then advises of some matters which are required prior to the applicant taking possession.
The applicant said,
strata title was due to be completed by the builder by 5 September 2012 (appendix 5) which was actually completed by builder on 24 December 2012.
He then goes on to complain that he was not able to get rental income for months of September, October, November and December 2012.
The date for commencement provided for in the contract was to be determined under clause 8.[2] Item 9 provided ‘the contractor will ensure that work starts as soon as reasonably possible’. Item 8 and item 10 provided for a construction period of 165 days. Part D on page 8 of the contract provided that method A progress payments were applicable. The practical completion stage required a payment of 15% in the sum of $47,700. There was no obligation for strata title to be completed by a particular date in the contract.
[2] Item 9 on page 2 of the contract.
In my view, this aspect of the applicant’s claim should be dismissed.
Delay in completing strata title leading to excessive interest payments
The applicant complains that there was a delay in getting strata title and says that because of that there was a delay in receiving the hand over the property and he was not able to get rental income for the months of September, October, November and December 2012 and hence the interest payments were not offset. He sets out his interest payments as September 2012 $2,098, October 2012 $2,590, November 2012 $2,590, and December 2012 $2,590.
He says that,
Builder did not meet the obligations/target as agreed upon and hence they should bear this additional burden of $9,868 due breach of agreement along with interest thereon.
Path Developments responds to this claim that the signing date of the building contract was irrelevant with respect to the build period. They submitted that the contract start date is the latter of one of the following:
1. Finance approval letter notification;
2. Settlement letter notification; or
3. Building approval notification.
They say that building approval was obtained on 30 May 2012 which I note differs from the date submitted by the applicant. Appendix 3 to the submissions of the respondent is the development application decision notice from GMA Certification Group. It is dated Wednesday 30 May 2012.
The respondent submits that practical completion was reached on 24 September 2012 which again is in contrast with the date submitted by the applicant. If that was the latter building approval and it is correct to say the contract start date was the latter of the three notifications outlined above, the respondent would have until 11 November 2012 to reach practical completion.
I have not been provide with the definition of practical completion for this contract but on a general view it is quite different from providing strata title.
The respondent contends that the applicant was late in making two progress payments which would have entitled the respondent to stop work pursuant to the contract. The late payments were made at a time when parts of the payments were outstanding for greater than five months and almost six months.
The applicant relies on a statement in a letter dated 16 April 2012 addressed to Wide Bay Australia Limited. The statement was ‘the strata title will be provided prior to completion and the 2 x building boosts payments totalling $20,000 will be completed and lodged to the office of state revenue by the client’.
In my view the statement in the letter of 16 April 2012 relied on is not part of the contractual obligation. The contractual obligations were, as I have said, to reach practical completion 165 days from the date for commencement. Part C of the appendix to the contract dealt with the construction period. I note that on the applicant’s material, building approval was obtained on 5 June 2012. The pier and footing inspection occurred on 7 June 2012. That would mean if the commencement date was soon after 5 June 2012, practical completion should have been obtained by 24 November 2012. I note that the applicant says that it was reached by 5 September 2012 and the final council inspection was on 6 September 2012. I can find no obligation on the builder to provide strata title by any particular date.
Further, I am not satisfied that there was any delay in getting strata title completed. I am not satisfied that strata title had to be completed by any particular date. My attention has not been drawn to any clause of the contract which provides so.
In my opinion this aspect of the applicant’s claim should be dismissed.
Difference in building size as per the survey plan and uncompleted works
The applicant contends that there were differences in the building size in the survey plan submitted by the surveyor and the building sizes mentioned in the contract submitted by GMA to the council of around 7.9 square metres. They set out the difference as follows:
Lot # As per documents submitted to Council by GMA (A) As per Contract (B) As per Survey Plan (C) Difference (B-C) Difference (A-C) Lot 1 161.8 SQM 161.4 SQM 157 SQM 4.4 SQM 4.8 SQM Lot 2 153.1 SQM 151.4 SQM 150 SQM 1.4 SQM 3.1 SQM Total difference 5.8 SQM 7.9 SQM
The applicant also contends that there are uncompleted works. They say that the building was provided by the builder to the buyers with big black patches in the garden and proper landscaping was not done by the builder. They also say that the fence has been brought in on the corner by the builder so the applicant has lost a couple of metres along the fence line to the footpath. Photographs were produced. They are exhibit 2. This claim relies on an argument that centres on a white boundary peg which the applicant alleges is missing and seems to be illegally removed from the property.
The applicant wants reimbursement for the difference in size of the property in the sum of $8,031.30 along with interest which he calculates on a square metre basis of approximately $1,016.62 per square metre and the difference in size of 7.9 square metres. He also wants the builder to conduct landscaping again to ensure there are no black patches and to extend his fence to the correct boundary.
The respondent contends that the plans signed off at the contract stage and the council approved plans are different. It says that the area signed off at the contract stage had the following sizes:
House 161.4 square metres
Unit 151.4 square metres,
Total 312.8 square metres.
The area of the approved plans was:
House 161.8 square metres,
Unit 153.1 square metres
Total 314.9 square metres.
They say the property was built in accord with the approved working drawings so that in actual fact the applicant has received a property with an extra 2.1 square metres above that contained in the contract.
The respondent also contends that the applicant has a misunderstanding of the survey plan for strata title and that for working drawings. They say the strata plan is measured to the centreline of the property walls and common lines and a building plan is not and that explains the difference in size.
I have been provided with a letter from the surveyors explaining the difference in size. It is appendix 8 to the submissions of the respondents. The consulting cadastral surveyor who carried out the work said,
The construction area shown on the design drawings represents the total area of the footprint of the dwelling. This area includes and extends out to the external face of the brick work of the external walls and external edge of concrete on porches and patios etc. Building format lots however, are defined horizontally by the centreline of the extended walls (section 9.6.1 Registrars Directions for the Preparation of Plans). To get an idea of the difference in areas between the design footprint and the title area, half the wall thickness along the external perimeter of each unit needs to be deducted from the area shown on the Rezicad drawing. The difference between the construction area and the title area can equate to four or five square metres difference on units this size.
I accept that evidence and the applicants claim in this regard is dismissed.
The respondent denies any obligation to replace the turf claimed because it says it is the owners/tenants responsibility to do general maintenance. They say that the dark areas are not their responsibility.
As to the difference in fence line claimed, they say that the fence is in the right place.
Appendix 9 to the respondent’s submissions is a letter dated 22 August 2013 from the cadastral surveyor who did the work. He advised that they found the existing boundary markers at the site to be in their original positions. Further, photographs said to be taken on 5 September 2013 show the boundary pegs and the fence line. Exhibit 4 shows the fence line on a sketch plan of exclusive areas A and B on common property. That plan was done by the surveyors who provided the evidence above.
Shane Neville Von Senden, a cadastral surveyor, gave evidence. He prepared exhibit 4 and provided the letters spoken of herein. He orally confirmed that the boundary pegs are still in place and in accordance with the survey plan. He identified a survey peg which he told me was not on site. The pegs that are not on site represent an intersection point to allow the survey which became exhibit 4 to be done. I was told the peg identified by the applicant was a “rogue”. I was told that exhibit 4 shows the boundary line of the fence. I was told that the purpose of an intersection point was to link road frontages together around truncation points. It is a device to allow for ease of calculations for surveyors. I accept the evidence of the surveyor and I dismiss the claim with respect to the location of the fence.
Unjustified/unfair treatment to put undue pressure claim
The applicant in his submissions said,
I claim for the unfair justice/unfair and unjustified treatment/ discrimination/stress I have gone through over the period of contract and would like the court to penalise the builder for the amount decided by the court.
The respondent contends that that claim is not a matter within the jurisdiction of the Tribunal.
QCAT has jurisdiction to determine matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act.
The Queensland Building Services Authority Act 1991 (QBSA Act) allows a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute.[3]
[3] QBSA Act s 77.
Section 77 of the QBSA Act provides:
Tribunal may decide building dispute
(1)A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
(2)Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers –
(a)Order the payment of an amount found to be owing by 1 party to another;
(b)Order relief from payment of an amount claimed by 1 party another;
(c)Award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;
(d)Order restitution;
(e)Declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;
(f)Avoid a policy of insurance under the statutory insurance scheme;
(g)Order rectification or completion of a defective or incomplete tribunal work;
(h)Award costs. (Underlining added).
The term “building dispute” is defined in Schedule 2 of the QBSA Act as meaning, relevantly,
a domestic building dispute… or a minor commercial building dispute or a major commercial building dispute if the parties to the dispute consent to the dispute being heard under section 79.
“Domestic building dispute” means,
(a)a claim or dispute arising between a building owner and building contractor relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(b)a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(c)a claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work other than a claim for personal injuries; or
(d)a claim or dispute arising between a building owner and building contractor in any one or more of the following, relating to the relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work –
(i)an architect;
(ii)an engineer;
(iii)a surveyor;
(iv)a quantity surveyor;
(v)an electrician or an electrical contractor;
(vi)a supplier or manufacturer of materials used in the Tribunal work. (Underlining added).
“Reviewable domestic work” is defined in schedule 2 of the QBSA Act as,
domestic building work under the Domestic Building Contracts Act 2000, except that for, applying section 8(8) of that Act the definition excluded building work in that Act, is taken not to mean anything mentioned in paragraph (b), (c) or (d) or the definition.
“Domestic building work” as the term is used in the QBSA Act is defined in section 8 of the Domestic Building Contracts Act 2000.
8 Meaning of domestic building work
(1)Each of the following is domestic building work—
(a)the erection or construction of a detached dwelling;
(b)the renovation, alteration, extension, improvement or repair of a home;
(c)removal or resiting work for a detached dwelling.
(2)However—
(a)removal work for a detached dwelling is domestic building work only if the dwelling is intended to be resited at another place and used, at the place, as residential premises; and
(b)resiting work for a detached dwelling is domestic building work only if the dwelling is intended to be used at the place at which it is being resited as residential premises.
(3)Domestic building work includes—
(a)work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and
(b)work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.
(4)Without limiting subsection (3), associated work includes—
(a)landscaping; and
(b)paving; and
(c)the erection or construction of a building or fixture associated with the detached dwelling or home.
(5)For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.
(6)For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated.
(7)Also, domestic building work includes—
(a)site work relating to work mentioned in subsection (1), (3), (5) or (6); and
(b)work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.
(8)However, domestic building work does not include excluded building work.
(9)In this section—
(a)a reference to a detached dwelling includes a reference to any part of a detached dwelling; and
(b)a reference to a home includes a reference to any part of a home; and
(c)a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site.
(10)In this section—
removal work, for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place.
resiting work, for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.
“Building work” is defined in Schedule 2 of the QBSA Act to mean –
(a)the erection or construction of a building; or
(b)the renovation, alteration, extension, improvement or repair of a building; or
(c)the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building; or
(e)any site work (including the construction of retaining structures) related to work of a kind referred to above; or
(f)the preparation of plans or specifications for the performance of building work; or
(fa)contract administration carried out by a person in relation to the construction of a building designed by the person; or
(g)fire protection work; or
(h)carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
(i)carrying out a completed building inspection; or
(j) the inspection or investigation of a building, and the provision of advice or a report, for the following—
(i)termite management systems for the building;
(ii)termite infestation in the building;
but does not include work of a kind excluded by regulation from the ambit of this definition.
For the Tribunal to have jurisdiction, there must be a building dispute.[4] The applicant must be a person involved in the building dispute. The building dispute must either be a domestic building dispute, or a minor commercial building dispute or a major commercial building dispute to which the parties have consented to the dispute being heard by the Tribunal under section 79 of the QBSA Act.
[4] QBSA Act s 77.
In my view, this aspect of the claim is not a domestic building dispute.
In my view this being a claim in respect of a domestic building dispute, the Tribunal does not have the jurisdiction to consider this particular claim.
Harassment through email/SMS/phone calls for payments which were not due claim
The applicant complains that the builder kept on sending him emails for payments which he says had to be carried by them until the time he received building boost payment.
For the reasons I have already set out, this is not a claim which is within the jurisdiction of this Tribunal and it is dismissed.
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