Sysel v Visual Diversity Constructions - [2013] QCAT 451

CITATION:

Sysel v Visual Diversity Constructions [2013] QCAT 451

PARTIES:	Ms Hana Sysel (Applicant)
v
Visual Diversity Constructions (Respondent)

APPLICATION NUMBER:

BDL131-13

MATTER TYPE:

Building Matters

HEARING DATE:

6 June 2013

HEARD AT:

Southport

DECISION OF:

Andrew McLean Williams, Member

DELIVERED ON:

23 August 2013

DELIVERED AT:

Southport

ORDERS MADE:

1. The Application is dismissed.

CATCHWORDS:

BUILDING MATTERS

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

No appearance by the Applicant

RESPONDENT:

Mr Anthony Smith & Mr Daniel Smith

REASONS FOR DECISION

These are my written reasons for decision in matter BDL131-13.
The applicant is Ms Hana Sysel. The respondent is Visual Diversity Constructions Pty Ltd (ACN 106 627 829). The Applicant did not appear at the hearing of this matter, yet has filed materials in support of her application. Accordingly I have determined the matter in her absence, on the basis of her case being one that was assessed ‘on the papers’.
Ms Sysel contracted with the respondent for the construction of a new home at Pacific Pines, on the Gold Coast. The construction reached the stage of practical completion, and the house was duly handed over to the Applicant. This occurred more than two years ago now.
The applicant commences this application seeking orders that the respondent complete some decorative trim work on the front facade of the house. Ms Sysel claims this formed part of the original construction project agreement, yet the respondent, despite the construction project having attained practical completion, never completed that.
From the building plans and design pictures that comprise part of the applicant’s filed materials it is revealed that the house was intended to have a rendered facade, and atop that it was intended to affix some decorative window mouldings, which were then to be painted.
Representatives from the respondents did appear at the hearing. They explained to the Tribunal that the decorative mouldings had not been installed on the front of the house, by reason that the applicant had privately arranged the renderer, and the rendering was not within the scope of works for the builder. Prior to the point in construction when the decorative mouldings were to be applied, the respondent says that the applicant had a falling out with the renderer. This meant that the applicant had to make arrangements for an alternate company to perform the rendering, and these alternate arrangements were not in place by the time the builder had reached practical completion. The respondent says that they got to the point where the hired scaffolding needed to be dismantled. It goes without saying that the completion of the rendering was a necessary pre-requisite, before the installation of the decorative mouldings. In effect therefore the respondent says that this aspect of the building contract was frustrated by factors beyond the builder’s control.
Because the render had not been completed, and because the scaffolding had to be returned, the respondent says that there was an agreement reached with the applicant whereby it was agreed that the respondent would not complete the installation of the moulding.
In support of that, the respondent points to two pieces of evidence. Firstly, Invoice No 1234 dated 13 December 2010 (really an adjustment note), which indicates that a credit was given in the sum of $1,100.00 for decorative foam trims to the front façade, which was to be applied as an adjustment to the payment required from the applicant for the practical completion stage. Secondly, the respondent says that at the practical completion stage, an inspector from “Handovers.com” conducted an inspection. The practical completion report from Handovers.com is dated 17 December 2010. In relation to the exterior of the home, the Handovers.com inspector has made a notation: “painting and external coatings by owner”. The respondent says that this is evidence in aid of the respondent’s position before the tribunal that the rendering of the external facade was a matter arranged by the owner, quite separately from the builder, and that it was not complete at the time when the builder was ready to install the mouldings before the scaffold needed to come down.
Although the respondent says that it is able to install the moulds, there is now the obvious problem that this would require the re-erection of scaffolding, at considerable expense. I accept the respondent’s evidence that the moulds could not be installed safely without scaffolding, and I further accept that the extrinsic evidence suggests that the rendering was not yet complete at the time when the project attained practical completion. So too, I accept that the rendering needed to be completed prior to the installation of the decorative moulding.
In her statement of evidence filed before the Tribunal, the applicant contends that she never received any credit regarding the window moulds, and that at all times the respondent had agreed to install these decorative elements. It is to be noted however that this is not really evidence, rather it is her contention, and it is one that is just as steadfastly refuted by the respondent. I prefer the contention of the respondent because it is at least one that is supported by some extrinsic evidence. In terms of evidence that is potentially corroborative of her position, the applicant has included a short affidavit from one John Francis Carberry, who says that he overheard (and recorded) a discussion between the applicant and Mr Tony Smith, in which Tony Smith is alleged to have agreed to install the moulding, once the house had been rendered. I can attach very little weight to this affidavit. The deponent has not been cross-examined, and the evidence revealed by that affidavit is, in all events, equivocal. The respondent agrees that they were, at all times, willing to come back and install the window mouldings once the house had been rendered, yet there is nothing in that willingness which is also consistent with the respondent having agreed to do so at absolutely no cost to the applicant.
I accept the evidence before me that the applicant received a credit adjustment for the window mouldings that were not installed, for the reasons that have been explained by the respondent. I further find that the respondent did not agree to install the window mouldings at no charge to the applicant and find that it would be inequitable to require the respondent to return to the applicant’s house and re-erect scaffolding, at its own expense, in order to install the window mouldings.
I dismiss the application.