Stella Reno Pty Ltd v Duncan
[2012] QCAT 512
•12 October 2012
| CITATION: | Stella Reno Pty Ltd v Duncan [2012] QCAT 512 |
| PARTIES: | Stella Reno Pty Ltd (Applicant) |
| v | |
| Andrew Duncan (Respondent) |
| APPLICATION NUMBER: | BDL116-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 9 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 12 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. That the Applicant rectify the Works by repairing the pedestrian access gate at the Respondents premises within 28 days. 2. That the Respondent pay the Applicant the sum of $298 within 7 days from the date of completion of the works rectifying the pedestrian gate. |
| CATCHWORDS: | Building dispute – construction of gates – footing – assumption of responsibility by performance of works – duty of builder to explain problems arising by reason of existing defects – assessment of time for necessary rectification Queensland Building Services Authority Act 1991, s 74 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Stella Reno Pty Ltd represented by Mr Jameson, director |
| RESPONDENT: | Mr Andrew Duncan |
REASONS FOR DECISION
The Applicant (“Stella Reno”) installed two gates for the Respondent (“Mr Duncan”) for a total sum of $7,604, being the full amount of a written quote.
The door which formed the main part of the cost was a self opening sliding gate three metres wide.
It would appear that such gates are designed to have a runner installed on a footing. Originally Mr Duncan asked Mr Jameson of Stella Reno to lay that footing but he declined as it would seem his usual practice is to get these done by a professional concreter.
In this case it would seem that Mr Duncan then elected to lay this footing himself on the strength of a rough diagram provided by Stella Reno. There would appear to be some contention as to whether Mr Jameson knew Mr Duncan was intending to attend to this personally. However in my view this issue is irrelevant. By electing to perform the works himself Mr Duncan assumed responsibility for the appropriate performance of those works.
The gates were initially installed between the 6th and the 8th of June 2011. There were some allegations that Mr Duncan had some discussions with Mr Jameson about the urgency of the work at the commencement of the works, however it is apparent that Mr Duncan was not present and was on holidays at that time. This is supported by documentary evidence in the form of a receipt for travel costs.
Mr Jameson has said in his evidence, both written and in person, that he formed the opinion prior to the commencement of the work, that the footing had not been properly poured and contained undulations. He indicated immediate concern as he felt that it was likely that the door would not operate. It was denied by both Mr Duncan and his wife that such concern was expressed to them.
Despite forming this opinion it seems he proceeded to install the gate anyway. His evidence was clearly to the effect that he proceeded with the installation because of pressure applied by Mr Duncan. I took it to mean that such pressure was applied that day; however he indicated in his summing up that it was a result of pressure allegedly applied at an earlier time. It clearly cannot be the case that Mr Duncan applied such pressure on the day the works started as he was not there at the relevant time.
In these circumstances, despite any pressure that he may have felt, it seems a breach of a duty of care owed to Mr Duncan to proceed with the gate installation when he had already concluded it was unlikely to work. Any pressure can only have been exerted at a time when the defect in the footing was not known. The more appropriate course would clearly to have been to ensure that the issue with the footing was rectified before allowing installation to proceed. That would also have been the much cheaper course.
At the very least he could have clearly explained that he felt that the gate was unlikely to work properly if the installation went ahead. I find that no such explanation was given.
Due to pressure in one form or another, the gate did not perform properly. While differing reasons for this were put forward for this it was clearly associated one way or another with the footing.
The parties had a further discussion about the issue and Stella Reno, through Mr Jameson, agreed to perform rectification works. These works included removing the gate, re-leveling the footing and re-installing the gate.
There was significant disagreement between the parties about whether or not Mr Duncan was present and if so, on what days during this rectification work. However this issue, while distracting, was not relevant to the core issues in the dispute and I do not find it necessary to make a determination about this.
There was also considerable dispute about the extent of the rectification works undertaken. Relevantly Mr Jameson asserted he jack hammered the footing up and started again and then put a leveling compound on the top. Mr Duncan asserted that Mr Jameson just put the leveling compound over the existing footing and claimed that the photos made that clear.
While I could not personally tell anything of substance from the photos it seems to me more likely, and I find, that the leveling compound was put over the existing footing. My reasons for this are as follows:
a. Mr Jameson expressly stated that he did not do concrete footings. To do them in these circumstances would not make sense.
b. If he started from scratch there would be no need for the leveling compound. He could just have laid the footing level.
c. There just does not seem to be any common sense reason why you would redo the concrete and then put leveling compound over it.
There was considerable dispute over whether Mr Jameson informed Mr Duncan, or his wife that he intended to charge for the additional works. Given the fact that Mr Jameson categorically stated in his written statement that Ms Duncan at the least knew of this and then he declined to cross examine her about that in evidence, it seems more likely than not that he did not make any such statement.
However, from a legal perspective, perhaps the more important question was did he ever indicate that he would NOT charge for the additional work. Quite clearly it was outside the scope of the original quote and so, in my view, can properly be looked at as a variation. Quite clearly there is no principle of law that a person cannot charge for undertaking an agreed variation; just that in the absence of written agreement the person can only charge a reasonable sum for the performance of those works. In other words it becomes a quantum meruit assessment.
In determining what is a reasonable charge for the works one should take into account a reasonable approach. As I have stated this would have involved correcting the footing prior to installing the gate. In determining a reasonable time for the performance of the works then I am not prepared to make any allowance for taking down the gate and re-installing it. Further I am not prepared to make an allowance for jack hammering. I specifically asked Mr Jameson about times taken to perform various parts of the job and I have formed the view that a reasonable time to put down boards, pour the leveling compound and then remove the boards, having regard to the fact that this needs to be performed over 2 days and there was associated travel, would be 4 hours, or half a day. In addition I would allow the cost of the leveling compound.
There is evidence in the material[1] that the usual charge for Stella Reno for labour was $520 per day. Accordingly I am prepared to allow the sum of $260 plus the cost of the leveling compound being $38, a total of $298 in respect of the claim.
[1] Letter of demand from Applicant to Respondent dated 20 July 2011.
There is also a counter application by the Respondents in respect of the second gate installed by Stella Reno. The only evidence before me in respect of this is that the gate does not close and a bin is used to keep it closed and that is the only security.
It seems to me that in these circumstances I must accept that the gate is not working and that is a result of the workmanship of Stella Reno. I am asked by Mr Duncan to order that that Stella Reno rectify their workmanship in that regard.
I am empowered by section 74 of the Queensland Building Services Authority Act 1991 to make such an order. The section is in the following terms:
77 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 from 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 defective or incomplete tribunal work;
(h) award costs.
In many respects my preferred option would have been to make an award of damages in favour of the Mr Duncan, but I have not been provided with the cost of rectification, though I suspect the sum would not be large.
In the absence of such information it seems to me that it is appropriate to make the order sought.
I therefore order that the Applicant rectify the Works by repairing the pedestrian access gate at the Respondent’s premises within 28 days.
I further Order that the Respondent pay the Applicant the sum of $298 within 7 days from the date of completion of the works rectifying the pedestrian gate.
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