Tait Management Services Pty Ltd v Boyle
[2012] QCAT 90
•7 March 2012
| CITATION: | Tait Management Services Pty Ltd v Boyle and Anor [2012] QCAT 90 |
| PARTIES: | Tait Management Services Pty Ltd t/a Bowen Terrace Accommodation (Applicant) |
| v | |
| Terry Boyle t/a HBC Projects HBC Projects Pty Ltd (Respondents) |
| APPLICATION NUMBER: | MCDO2179-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 8 February 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Adjudicator |
| DELIVERED ON: | 7 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. HBC Projects Pty Ltd be joined as Second Respondent. 2. The Respondents are jointly liable to pay the sum of $492.50 to the Applicant which sum is payable immediately. |
| CATCHWORDS: | Minor Civil Dispute – Claim for damages arising from building work brought as minor debt claim – No contract between parties – Whether QCAT has jurisdiction – Correction of defect in proceedings – Extent of duty of subcontractor Queensland Civil and Administrative Tribunal Act 2009, ss 11, 33, 61 Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134 referred to |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Maria Tait and Joseph Tigani |
| RESPONDENT: | Terry Boyle |
REASONS FOR DECISION
In this claim, filed on 14 July 2011, the Applicant seeks damages from Mr Boyle for defective painting and decorating work, and damage to property.
The main issues in the case are:
(a)whether there was a contract between the Applicant and Mr Boyle;
(b)if there was no such contract, whether QCAT has jurisdiction to hear the claim at all;
(c)whether the claim is brought in the correct form and if not, whether that defect can be waived;
(d)the nature and extent of any duty owed by Mr Boyle to the Applicant which is within the jurisdiction of QCAT;
(e)the merits of the claim in light of the answers to the issues set out above.
The Applicant runs a 14 room guest house at 365 Bowen Terrace New Farm QLD 4005 and is the lessee of those premises under a registered lease. The landlord of those premises is Mrs Laura Rosa. By the lease the landlord covenanted to keep the premises in a “good structural state and condition”, and to “maintain the premises when required as a result of latent defects and fair wear and tear”. These covenants can be contrasted with the tenant’s covenant to “keep in repair, fair wear and tear excepted”.
The Applicant identified many areas of the premises which required work to be done by the landlord under the landlord’s covenants. Some of this work was done but some was not. As for the outstanding work, in September 2010 the Applicant initiated a dispute resolution procedure under the lease and this resulted in an expert’s determination made on 16 March 2011. That determination identified various internal and external works of repair and maintenance which the landlord had to do.
The landlord’s husband, Mr John Rosa on her behalf, instructed various trades to attend the premises and to carry out that work. Mr Rosa is and was at that time, a licensed builder under the Queensland Building Services Authority Act 1991.
Mr Boyle was engaged by Mr Rosa to do the following work at the premises:
(a)fencing repairs;
(b)painting to the recently replaced ceiling in the downstairs hall;
(c)corrections to the gap in the internal stair rails and associated paintwork;
(d)painting of walls to Room 10 following the landlord’s recent replacement of timber and wall panels after termite damage;
(e)in the en suite bathroom of Room 4: remove wall tiles and skirting coming away, identify any water leak or water penetration, replace tiles and waterproof the area where required;
(f)painting to the ceiling of Room 14 which ceiling had recently been replaced by the landlord as a result of water ingress probably from the en suite bathroom of Room 4 upstairs;
(g)repair and repaint window frames to Rooms 1, 3, and 6 to 9;
(h)painting of pine balustrades on the rear deck, the balustrades having been recently installed by the landlord.
Between 3 June 2011 and 21 June 2011, Mr Boyle attended the premises to do the work assisted by his two sons. Mr Boyle is not a licensed builder and his business card shows that he offers a “handyman and maintenance service” with “experienced tradesmen”. His instructions from Mr Rosa were given to him partly on paper and partly orally. He no longer has Mr Rosa’s paper instructions.
The interaction between the Applicant and Mr Boyle was as follows. Before he started work at the premises there was a discussion in which Mr Boyle was told that the Applicant expected him to do the work in a good and workmanlike manner and in accordance with the expert determination. Otherwise it was said that the Applicant would hold Mr Boyle liable for defects. Mr Boyle did not agree to this, and insisted that he would do the work in accordance with Mr Rosa’s instructions. Despite this repost, the Applicant permitted Mr Boyle to proceed with the work.
There were also similar discussions between those acting on behalf of the Applicant and Mr Boyle as the work progressed, because of concerns about the quality of Mr Boyle’s work.
[10] Mr Boyle was also asked on behalf of the Applicant to do other work at the premises. Some of this other work was related to the work listed above, but some was not. Mr Boyle only agreed to do this other work upon Mr Rosa’s instructions.
[11] And on most of the days he attended, but not every day, a “work and attendance log” was prepared on behalf of the Applicant and presented to Mr Boyle for his signature. If Mr Boyle was satisfied by checking with Mr Rosa that he was instructed to do the work shown on the log, Mr Boyle would sign it. Where there is a log, this is evidence that Mr Boyle attended the premises with the intention of doing the work shown on it.
There was no contract
[12] There is nothing in the above facts which demonstrates a direct contractual relationship between the Applicant and Mr Boyle. The logs he signed do not affect this. Mr Boyle only agreed to do the work that Mr Rosa instructed him to do. Mr Rosa was acting on behalf of the landlord and not on the Applicant’s behalf.
Jurisdictional and procedural matters
[13] The claim was started as a “minor civil dispute” under section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). A minor civil dispute is defined in Schedule 3 of the Act as including “a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount”. This claim is clearly not a debt claim, instead it is a claim for damages – and there is a clear distinction between a claim for debt and a claim for damages. Equally the claim is not for a liquidated amount of money. Nor does the claim come within any of the other categories of claims in the definition of “minor civil dispute” in Schedule 3 of the Act. For example, the claim does not arise out of a contract between a trader and a consumer. This is because there was no contract between them; and in any case this guest house is not a “consumer” within its definition in schedule 3. Note that this definition of consumer is quite different from that in the Australian Consumer Law which I consider below.
[14] Does the Tribunal have jurisdiction to hear this claim in any other way? If the Tribunal has jurisdiction in this matter it is to be found in the Queensland Building Services Authority Act 1991. The question is whether the Tribunal has jurisdiction where there is no contract between the parties that are before it.
[15] Section 77(1) of that Act provides:
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.
[16] “Building dispute” is defined in the Dictionary in Schedule 2 as follows:
building dispute means—
(a) a domestic building dispute; or
(b)a minor commercial building dispute; or
(c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.
[17] “Domestic building dispute” is defined in the Dictionary as referable to “reviewable domestic work”. In turn this expression is defined by reference to “domestic building work” under the Domestic Building Contracts Act 2000. In section 8(1) of that Act “domestic building work” includes work to a single detached dwelling, which does not apply here. However, it also includes the repair of a “home”. Although home is widely defined and capable of comprising a building containing more than one dwelling, guest houses are specifically excluded[1] so that cannot apply either. And by a combination of section 8(8) and the Dictionary to that Act in Schedule 2, work relating to a building intended for use only for business purposes is excluded from the definition of domestic building work. These premises were used only for business purposes. Hence the work done to the premises was not “reviewable building work”. In turn, the dispute between the parties is not a domestic building dispute.
[1] Section 13(3)(b).
[18] Returning to the definition of “building dispute” in the Queensland Building Services Authority Act 1991, “minor commercial building dispute” is defined in the Dictionary as a “commercial building dispute where neither the claim nor the counterclaim exceeds $50000”.
[19] The relevant part of the definition of the expression “commercial building dispute” in the Dictionary is as follows:
commercial building dispute means—
(a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
(b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
(c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial work other than a claim for personal injuries; or
(d) ..
[20] It can be seen from this definition that in order for the Tribunal to have jurisdiction it is necessary that:
(a)the work done should be reviewable commercial work, and
(b)the dispute should be described in the definition of commercial building dispute above.
[21] Dealing with these in turn, the Dictionary provides:
reviewable commercial work means tribunal work other than reviewable domestic work.
[22] It is already clear that the work in this case was not reviewable domestic work. So the question is whether it was tribunal work. “Tribunal work” is defined in sections 75 and 76 of the 1991 Act. It is notable that the definition does not refer to painting and decorating work which was mostly the work done by Mr Boyle. The closest one gets to that is “renovation, alteration, extension, improvement or repair of a building” in subsection 1(b) of section 75. Strictly construed, this would not include painting and decorating work.
[23] I note in passing that in the Building and Construction Industry Payments Act 2004, which deals with progress payments and adjudication for such payments during construction work, “construction work” is expressly defined as including painting and decorating work[2].
[2] Section 10(1)(f).
[24] And in the Domestic Building Contracts Act 2000 which governs contracts to do building work in a domestic context, “domestic building work” is said to include work (associated work) “associated with the renovation, alteration, extension, improvement or repair of a home”[3]. This clearly includes painting and decorating and finishing work.
[3] Section 8(3).
[25] The definition of tribunal work expressly provides that “reviewable domestic work is tribunal work”[4]. Since the definition of reviewable domestic work includes “domestic building work” which includes “associated work”, it follows that the Tribunal has jurisdiction to hear a dispute about a defective paint job on a domestic building.
[4] Section 75(2) of the Queensland Building Services Authority Act 1991.
[26] Can it be also said that the Tribunal has jurisdiction to hear a dispute about a defective paint job on a commercial building (where the value of the claim is up to $50,000)? The difficulty is that the legislature has taken care to ensure that finishing work is included in the definition of construction work and domestic building work, but has omitted to do so in the case of commercial work.
[27] The omission would normally strongly suggest that the legislature intended that the Tribunal had no such jurisdiction, but the result would be absurd – it would mean that the Tribunal could deal with an allegation that a commercial building had been badly built, but not that it had been badly painted or finished.
[28] I am mindful here of the words of McPherson JA in Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134 (Supreme Court of Queensland) when looking at the 1991 Act:
[23] In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:
“nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”
[29] A purposive approach would suggest that the section could be read so as to remove this anomaly, but this would entail adding the words that the legislature may have missed out, and I cannot do this.
[30] However, I note that the same words which appear in the definition of tribunal work in subsection 1(b) of section 75 of the Queensland Building Services Authority Act 1991 (“renovation, alteration, extension, improvement or repair of a building”) also appear in the definition of “building work” in the dictionary at that Act. The definition “building work” governs whether a contractor’s licence is required to do that work over a certain value[5]. Again, painting and decorating work is not expressly included in this definition. But despite this, the associated regulation does establish a class of licence for Painters and Decorators[6]. If as it appears at first sight the expression “renovation, alteration, extension, improvement or repair of a building” does not include painting and decorating, then there would be no power to require Painters and Decorators to hold a licence. However, in the regulations passed under the Act, this power has been assumed.
[5]Section 42(1) makes it unlawful to carry out building work, or to undertake to do so without holding the licence of the appropriate class.
[6] In Schedule 2, Part 41 of the Queensland Building Services Authority Regulation 2003.
[31] It can be seen from this that the legislature did indeed intend that “renovation, alteration, extension, improvement or repair of a building” should not be construed too strictly. It is correct therefore to construe the word “improvement” as not limited to structural improvement: it must also include cosmetic improvement by way of, for example, painting and decorating.
[32] This therefore resolves point (a) in paragraph [20] above when considering the definition of commercial building dispute. All the work done by Mr Boyle was “reviewable commercial work” for the purpose of that definition.
[33] Turning now to point (b) in paragraph [20] above, it is necessary to consider whether this dispute is described within the definition of commercial building dispute in the Dictionary of the 1991 Act.
[34] In so far as the claim is based on allegations that Mr Boyle did not carry out the work with due care and skill (which might include damage to the premises) then this would appear to come within paragraph (c) of the definition, which reads (with the irrelevant parts removed):
“a claim ... in negligence ... related to the performance of reviewable commercial work ...”
[35] In so far as the claim is based on allegations that Mr Boyle did not carry out the work with due care and skill (which might include damage to the premises), or that his work was not fit for the purpose for which it was acquired this would appear to come within paragraph (a), having regard to the extended definitions of “building owner” and “building contractor” with the irrelevant parts removed:
“a claim .. between a building owner and a building contractor relating to the performance of reviewable commercial work ...”
[36] The extended definitions of building contractor and building owner in the Dictionary are:
building contractor means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor
building owner means a person for whom tribunal work is to be, is being or has been carried out, but does not include a building contractor for whom tribunal work is carried out by a subcontractorsubcontractor for Part 7 means a building contractor that carries out tribunal work for another building contractor.
[37] The reference to Part 7 here is a reference to that part of the Act which defines “tribunal work” and which is headed “Jurisdiction of Tribunal”. Mr Boyle was indeed instructed to do work at the premises by a building contractor, Mr Rosa, and therefore he was a subcontractor who carries on building work for a building contractor. Therefore he was a “building contractor” within this definition.
[38] It is notable that these definitions do not require a contract to exist between the building contractor and the building owner. So effectively the Tribunal can hear a complaint about defective reviewable commercial work carried out by a builder’s business.
[39] It follows that the Tribunal does have jurisdiction to hear the claim.
Claim brought on wrong form
[40] By section 33 of the QCAT Act and rule 7 of the Queensland Civil and Administrative Tribunal Rules 2009, the claim should be made substantially in the approved form. The approved form for commercial building disputes brought under the Queensland Building Services Authority Act 1991 is Form 25. This claim was brought on Form 3. One difference between the two forms of any importance is that Form 3 warns the respondent to respond to the claim within 28 days of being given it, whereas Form 25 requires a response within 14 days. Another difference is that Form 25 has space for information specific to building cases to be given about the dispute, and has space for an amount of damages to be claimed (as opposed to a debt).
[41] In the context of this case, the application has been brought substantially on the approved form, and is therefore not defective. In any case if it were defective it would be right to waive those defects under section 61 of the QCAT Act. I am mindful here that by section 28(3) of the QCAT Act the Tribunal must act with as little formality and technicality as the Act and rules permit. This is of course within the bounds of the rules of natural justice and general fairness to all parties. In this respect, if this matter is not dealt with now, the Applicant could simply lodge another claim on the correct form and then come back on some future hearing – a process which hardly seems proportionate or sensible. I bear in mind here that one of the objects of the QCAT Act is to have the Tribunal deal with matters in a way which is fair, just, economical, informal and quick[7].
[7] Section 3(b).
[42] There are differences in the costs which may be awarded in the two jurisdictions, but since neither party was represented nor sought to be so, this makes no difference to the parties.
My Boyle’s legal obligations towards the Applicant
[43] There was no contract between the Applicant and Mr Boyle (or his company). The Applicant has not sued the landlord, or Mr Rosa who organised this work on behalf of the landlord. Therefore the legal obligations which Mr Boyle owed to the Applicant need to be examined.
[44] At common law there are certain obligations which arise in these circumstances. The Applicant was a tenant of the property, and ran a business from there. Mr Boyle was aware of this. It was foreseeable to Mr Boyle that the Applicant’s interest in the property and its business interests could be damaged if he caused physical damage to the property. This forseeability, plus the degree of proximity which did exist in this case is sufficient to establish a duty of care owed to this Applicant to avoid such damage. In other words Mr Boyle owed the Applicant a duty to use reasonable care and skill to avoid such damage. See the High Court decision in Bryan v Maloney (1995) 182 CLR 609 judgment delivered by Mason CJ, Deane and Gaudron JJ paragraph [11]. Upon a breach of this duty, Mr Boyle would also be liable for financial losses suffered as a consequence of this damage: Caltex Oil (Australia) Pty Ltd v The Dredge "Willemstad" (1976) 136 CLR 529 at 544.
[45] In addition to the above, the Australian Consumer Law (“ACL”) as applied in Queensland by amendment to Fair Trading Act 1989 might apply if the Applicant is properly described as having acquired Mr Boyle’s services as a “consumer” within the meaning of the ACL. In the ACL, “consumer” has an extended definition in section 3(3):
Acquiring services as a consumer
(3) A person is taken to have acquired particular services as a consumer if, and only if:
(a) the amount paid or payable for the services, as worked out under subsections (4) to (9), did not exceed:
(i) $40,000; or
(ii) if a greater amount is prescribed for the purposes of subsection (1)(a)—that greater amount; or
(b) the services were of a kind ordinarily acquired for personal, domestic or household use or consumption.
[46] Section 3(6) provides a formula to find the “amount paid or payable for the services” where there is no actual purchase by the consumer of the supplier’s services. In such a situation, you take the price at which the services could have been acquired from the supplier, had there been such a purchase. In this case it is clear that this is far less than the $40,000 limit.
[47] In any case it would appear that the Applicant did acquire Mr Boyle’s services as a “consumer” under section 3(3)(b) despite the work being for the guest house business. This is because his services were of a kind ordinarily acquired for personal, domestic or household use or consumption. Clearly the services provided by Mr Boyle would often be provided in a domestic context. Other times they would be provided in a commercial context. It is clear from the authorities (construing similar terms under the previous fair trading legislation) that just because such services are sometimes, or even often, provided in a commercial context this does not mean that the acquirer of those services is not a consumer: Barclay v English & Ors [2009] QSC 258 and Bunnings Group Limited (formerly Bunnings Pty Ltd) v Laminex Group Limited [2006] FCA 682.
[48] Also, section 3(10) of the ACL provides:
Presumption that persons are consumers
(10) If it is alleged in any proceeding under this Schedule, or in any other proceeding in respect of a matter arising under this Schedule, that a person was a consumer in relation to particular goods or services, it is presumed, unless the contrary is established, that the person was a consumer in relation to those goods or services.
[49] In the circumstances it is clear to me that in respect of the services provided by Mr Boyle, the Applicant was a “consumer” under the ACL. This means that the following guarantees in the ACL applied to the work which he did for the Applicant:
60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.61 Guarantees as to fitness for a particular purpose etc.
(1) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;
there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.
(2) If:
(a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and
(b) the consumer makes known, expressly or by implication, to:(i) the supplier; or
(ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;
the result that the consumer wishes the services to achieve;
there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.
(3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.
(4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
[50] The ACL in section 267 gives the Applicant a right to take action for failure to comply with a guarantee if a person supplies services to the consumer “in trade or commerce” which clearly Mr Boyle was doing. It is notable that the ACL does not require a contractual nexus between the consumer and the supplier of services to enable such an action to be brought. However the requirement for the services to have been provided “in trade or commerce” means that work done purely voluntarily would not be caught by these provisions.
[51] Certain types of remedy available to the consumer under section 267 clearly contemplate a contractual nexus between the consumer and the supplier of services. But in the absence of any such contractual nexus two important provisions apply. Firstly by section 267(2) a consumer may require compliance with the guarantee and if the supplier fails to comply, the consumer may have the failure remedied and then sue for the reasonable cost of this. And by section 267(4) the consumer can recover damages for any reasonably foreseeable loss and damage suffered by the failure to comply with the guarantee.
[52] By section 267(1)(c), Mr Boyle would not be liable for his failure to comply with a guarantee if this was because of an act, default or omission of someone else. This is relevant to at least one of the heads of claim.
[53] When considering each head of claim I need to apply the common law, and also the statutory provisions as described above.
Consideration of the heads of claim
[54] It is alleged that Mr Boyle’s work was defective and caused loss as set out in the third column of the table below.
| Item | Date | Claim |
| 1 | 3 June 2011 | Room 10 left in a mess after sanding and painting. Cleaning required: $50. Loss of income because room could not be let: $79 |
| 2 | 8 June 2011 | Room 10 left in a mess after sanding and painting a skirting board and two sections of a wall. Cleaning required: $50. Loss of income because room could not be let: $79 |
| 3 | 11 June 2011 | Room 10. Work required to remedy unfinished or poor work claim: $150. Loss of income because room could not be let: $79 |
| 4 | 6 June 2011 | Cleaning of internal stairs, claimed at $50. |
| 5 | 14 June 2011 | Room 4. Loss of income because work not completed, claimed at $99. |
| 6 | 21 June 2011 | Room 4. Causing a mess needing cleaning at $150, and loss of income because room could not be relet, claimed at $99. |
| 7 | 27 June 2011 | Room 4. claiming for cost of remedial plumbing work: $143. |
| 8 | 26 June 2011 | Room 14. Repairs to wall and ceiling after water ingress from room 4 bathroom: $750. Cleaning $50 and loss of income, claimed at $90. |
| 9 | 20 June 2011 | Glass replacement $150 |
| 10 | Balustrades on rear deck: cost to remedy defective work: $1,000 |
[55] The work Mr Boyle did to Room 10 (items 1 and 2) was preparing and painting the skirting and the woodwork round the windows following their replacement after termite damage, and also painting the wall under the windows. Mr Boyle says, and I accept, that he needed to do this work over two days. He says these two days were consecutive, but I find the Applicant’s dates are correct (3 and 8 June) because they are consistent with the work sheets. The Applicant says in items 1 and 2 that Mr Boyle left the room in such a mess on both occasions that it had to be specially cleaned and the room could not be let until the following day. Ms Tait described there being a “film of dust” in the room and on the bed linen.
[56] In the light of my findings on the legal principles to apply I have to decide whether this work was done with due care and skill and whether the work was reasonably fit for the purpose for which it was acquired. It is inevitable that such work will result in dust. I accept Mr Boyle’s evidence that he cleaned up after himself. Whilst painters and decorators would be expected to do this, they would not be expected to clean to a high standard. It cannot be said that the dust which resulted from this work arose from Mr Boyle’s failure to do the work with due care and skill or that the work was not reasonably fit for the purpose for which it was acquired.
[57] In any case, the inability to let the room resulted from the fact that the work was only half finished after the first day and after the second day resulted from the fact that the room had only recently been painted. It could not have been let because of the odour. In any case I found the evidence given on behalf of the Applicant about the loss of income to be very vague and I don’t accept that anyone was turned away from the guest house on either day, so as to support the claim for loss of income. It follows that the claims in items 1 and 2 must fail.
[58] The claim in item 3 arises because the paint Mr Boyle applied to the wall under the window did not match the existing. So this work was done by Ms Tait and Mr Tigani on the Applicant’s behalf some three days later. A claim is made for the value of this work. And a claim is made for being unable to let the room on the day the work was done.
[59] I accept the evidence given on behalf of the Applicant (supported by a transcript of a recorded conversation) that the Applicant asked Mr Boyle to match the colour better than he did. Mr Boyle refused to do this because he had been instructed by Mr Rosa on the landlord’s behalf only to paint a small part of the wall and not the whole wall. I agree that the colours did not match and because of this it was reasonably necessary to repaint the whole wall. However, it was always going to be very difficult to achieve a good match. Mr Boyle made a reasonable attempt to achieve a match by purchasing a sample pot, but he was not successful. In the circumstances I do not think he failed to do the work that he was instructed to do (by Mr Rosa) with due care and skill. However, I accept that the Applicant made known to Mr Boyle the result it wished to achieve (a wall of a consistent colour) and this was not achieved. On the face of it therefore this was a breach of the “fitness for purpose” guarantee in section 61(2) of the ACL. However Mr Boyle is not legally responsible for this breach because he was obliged to act on his instructions from Mr Rosa, and so s 267(1)(c) provides him with a defence to the claim (the breach occurring because of an act, default or omission of someone else).
[60] In any case, again I found the evidence of loss of income vague and unsatisfactory – I do not think anyone had to be turned away from letting this room. Had I found in the Applicant’s favour I would not have awarded $150 as an assessment of the damages. Painting the wall in question would have been no more than one hour’s work for one person, plus time for preparing and clearing up. I take into account here that the standard of finish in this room was not high. I would have allowed $75 only.
[61] Item 4 is a claim for cleaning the internal staircase on 6 June after Mr Boyle had worked on it in accordance with the expert determination. The Applicant says that he left a mess – screws and nails and wood chips in a high foot traffic area. In the statement supporting the claim, there is a claim of $25 for this head. In the table summarising the claims this has increased to $50. Mr Boyle’s answer to the claim is that he cleared up after each piece of work. I am willing to accept that Mr Boyle was not as careful as usual to clear up after this work and so the claim is proved. However, it seems to me that it would have been a simple job to clear up this debris taking only a few minutes. I allow $12.50 under this head.
[62] In Room 4, My Boyle’s job was to remove wall tiles in the en suite bathroom of this room, deal with the skirting which was coming away, identify any water leak or water penetration, replace tiles and waterproof the area where required. In item 5, the Applicant claims loss of income of $99 on the basis that at about 2pm on 14 June 2011 Mr Boyle was asked to start on Room 4 immediately and to finish the next day. This was because the room had become empty but was let from about midday the following day. The Applicant says that Mr Boyle started to comply by knocking down the wall, but he failed to complete this work, and it was only completed some 6 days later, hence the loss of income. Mr Boyle says that he was asked to do the work urgently as the Applicant describes, but said that he was unable to do this as he was working on another room. I prefer Mr Boyle’s evidence about this because it seems much more likely that this work was done in one go, rather than in two parts with 6 days in between. Since there was no contractual relationship between the Applicant and Mr Boyle, the claim could only succeed if Mr Boyle failed to act with due care and skill or if the work was not fit for the purpose for which it was acquired: this is not indicated even on the Applicant’s case, so this claim fails.
[63] In item 6 the Applicant claims that Mr Boyle caused a lot of smoke from burning timber when doing work in the en suite bathroom of Room 4, which was exacerbated by having the main window in the room closed. It is alleged that after this work, the bedroom could not be let because it needed to be cleaned and deodorised. Mr Boyle says that the smoke may have come from the diamond blade grinder used to cut out some rotten tiles attached to some Masonite sheeting. It was this sheeting which smoked on friction. He says he did have the window open, but admits that he may have had the door between the bedroom and the bathroom open. He explains that this was because the bathroom was so small.
[64] I have seen the photographs showing the progression of this work and I am quite satisfied from those and from what Mr Boyle told me that it was impractical to do this work without leaving the door to the bedroom open at least part of the time. And I do think it likely that the window would have been open as Mr Boyle says. It was inevitable that this work was going to cause a lot of dust and possibly smoke as well, requiring extra cleaning in the room and meaning that the room could not be let again quickly. In the circumstances I cannot see that it can be said that Mr Boyle failed to work with due care and skill or that the work was unfit for the purpose for which it was acquired, or that any such failure caused any loss. So the claim for item 6 must fail. In any case, I cannot see that the correct measure of damages would be $150 for cleaning – I would only have allowed $75. And again there is no evidence supporting the loss of income claim and I would not have found this head of claim proved. And I would accept Mr Boyle’s evidence that until the tile adhesive dried properly the room could not have been let anyway. On my finding, this would not have dried in time to let out the room on the evening of the day when this work was done.
[65] In order to gain access to the tiling work required in the en suite bathroom to Room 4, Mr Boyle needed to remove the bath, and then after the work was done, he needed to replace the bath. The Applicant’s case is that a few days after Mr Boyle did this work, on Sunday 26 June a stream of water came into Room 14 immediately below Room 4. On behalf of the Applicant, I was shown a video of the water streaming in, made on a mobile phone. It was said that the water appeared to be soapy as if from a shower, and this did appear to be the case from the video as far as I could see.
[66] As a result of this event, a plumber was called, and item 7 is a claim for $143 being the cost of this. The invoice for $143 which I accept has been paid, states “Bath leaking where pipe enters floor. No re-installed properly after last repair. 27.6.11 – Room 4 – resealed bath 40mm pvc nut.” It is alleged therefore that Mr Boyle failed properly to tighten this fitting when he was working in the bathroom of Room 4. Although Mr Boyle accepts the possibility that the nut was not tightened properly, he queries why the failure took so long to appear (some 5 days before the water leak) and he submits that any leak of water through the joint in question would not have caused water to fall into the room below (Room 14) but would have gone through the floor drain since the bathroom was a waterproof shell. There was evidence from the Applicant that since the plumber’s visit there has been no more trouble.
[67] I accept this claim. Mr Boyle did not do this work as well as it should have been done. It seems to me that it is feasible for a leak of this sort gradually to deteriorate, so that eventually water would come down in the stream in the manner shown on the video. I do not think the waterproof shell argument works, because the loose fitting would have caused the water to pass down on the outside of the pipe, and it is feasible that if there was no waterproof seal between the floor and the outside of the pipe then the water could go straight down into the room below. The leak being responsible for the water ingress into Room 14 is corroborated by the plumber’s invoice and the fact that the plumber’s work solved the problem.
[68] However, it would appear that the GST paid on this invoice is recoverable by the Applicant and so I award the net sum of $130 under this head.
[69] Item 8 is a claim for repairs to Room 14 following the water leak from the Room 4 bathroom described above. On my findings Mr Boyle did cause this leak, and this was therefore a failure to act with due care and skill and a failure to do work which was fit for the purpose for which it was acquired. The measure of damages is the diminution of the value of the Applicant’s interest in the premises, together with consequential losses. The measurement of the diminution of value can be informed by the cost to remedy. However, there is no objective evidence to support the alleged cost to remedy of $750. The Applicant has extrapolated the $750 from a quotation for repainting another room with 4 beds, which was $1,400. It is said that the quote was just for painting, and not for the cost of replacing parts of the ceiling. Mr Boyle says that the ceiling to Room 14 was damaged and needed painting anyway. However I can see painting for Room 14 is on the 3 June and 8 June jobsheets, so I don’t accept this argument.
[70] What I find strange about this claim is that having said in the written submissions attached to the claim that the Applicant reserves the right to adjust the claim to suit a quotation for this work, no such quotation was put before me. Also I find it strange that no photograph of the damage was put before me, which would have been very easy to do. I would have thought that the Applicant would have realised that a little extra effort for this claim being much larger than the others, would have been worth it.
[71] Often in these cases I would be willing to accept the evidence of an Applicant and would be relaxed about strict evidential requirements, particularly as Mr Tigani who presented this claim on the Applicant’s behalf claimed to be an experienced property manager. However, in this particular case it was apparent that Mr Tigani bears some considerable antagonism towards Mr Boyle, and the danger is that when that happens, objective reasoning can be lost. I would therefore look for some support for the amount of this claim. In its absence I can only conclude that the damage was not nearly as bad as the claim for $750 would suggest. This seems to be supported by the fact that the repair work has not yet been done. It also seems to me possible that an ingress of water as I saw on the video, might leave the ceiling panels intact after some drying out, depending on the quality of the materials used. I am going to allow only $150 under this head as representing the diminution of value to the Applicant.
[72] As for the claim of cleaning of $50 arising from the same incident, from the evidence this was largely the cost of cleaning carpets, and I would have anticipated that the walls and ceiling would have needed mopping down as well. I award $50 to represent this work. As for the loss of income claimed at $90 again I am very sceptical about this. No letting records have been produced, and I note that the four persons who were residing in this room were moved to a different room so I infer that the other room must have been empty. I am not satisfied that any loss of income has been proved. The total award for item 17 is therefore $200.
[73] Item 18 is another damage claim, this time for a fracture of the glazing in the sash window of Room 15. The evidence for the Applicant was that this was not fractured before Mr Boyle painted the window but was fractured afterwards. There is an invoice from Archer for $150 for replacing the glass. I accept this claim. There is evidence not only from the Applicant but also from the Archer Glass invoice that the window was stuck closed by paint, and this tends to show that the work was not done carefully. Mr Boyle answers this point by saying that it may have been jammed shut anyway, and he only painted three sides of the window from the outside, so he never tested this. Whilst this work was not required by the expert determination, Mr Boyle accepts that he was instructed to paint this window and so on the balance of probabilities it must have formed part of other agreed works outside the expert determination. In support of this conclusion, I can see that it appears on a work sheet on 20 June under “paint windows and fix putty on Barker Street”. I agree that painting a sash window normally requires the window to be opened. Sometimes this may not be possible but it should at least be attempted. There is also evidence from Mr Rae and photographs showing some poor workmanship on that side of the house. This all leads me to think that the window work was not done carefully and this suggests that the glass was damaged at the time. Mr Boyle provided me with his photograph of the window after it was painted and no glazing fracture can be seen on the photograph. However the Applicant points out that it was a hairline fracture that would not necessarily appear on the photograph. I am prepared to accept the Applicant’s case on this matter for the reasons given above.
[74] Item 19 is a claim for repainting of the balustrades on the rear deck. Mr Boyle was instructed to paint the balustrades which were previously bare pine. The Applicant says that the wood was not properly primed, that Mr Boyle was wrong to use internal paint on external surfaces exposed to the weather, that the woodwork had not been properly puttied and gaps filled. Mr Boyle says that no filler was needed, and he used the paint in the garden shed as instructed by the landlord who told him that the paint was suitable. Mr Boyle says that the paint tin that he used was covered by paint and its contents obscured so he cannot say what type of paint it was. I note from the photographs that the balustrades are in blue and white so there would have been at least one other tin of paint involved. Mr Boyle accepts that he did not use a primer or specifically an undercoat, however he denies that the balustrades now need repainting. He says he simply followed the instructions of the landlord (by which he means the landlord’s agent Mr Rosa) on how to paint the balustrade.
[75] In an ideal world, it would clearly have been better to use a primer and/or specific undercoat as a base for the final paint job bearing in mind it started as bare wood. However, it has not been proved that the paint used was interior paint. And although I was told that the paintwork is now beginning to peel, this was not information volunteered to me, and I note again that there is no photograph of this, which I would have expected. Nor is there any quotation for the repaint job. I have seen photographs of the work taken while it was being done and it displays no defects. The only conclusion I can reach is that the paint job was done with reasonable care and that the work was fit for the purpose for which it was acquired.
[76] In any case there is clearly a legal problem with this claim. If Mr Boyle simply followed his instructions as he did, then it cannot be said that he carried out the work without due care and skill. This also means that if the work was not fit for the purpose, there is another s 267(1)(c) defence. It follows that this claim must fail.
Parties
[77] Mr Boyle has responded to the claim as HBC Projects Pty Ltd and consents to that company being joined as a respondent. As for whether Mr Boyle and/or his company is liable for the award, in my opinion they both are jointly responsible. Since there was no contract, the Applicant’s objective view as to which legal entity doing the work to the premises is irrelevant. Mr Boyle clearly had a personal responsibility to fulfil the duties which applied, both at common law and under the ACL because he personally did the work. And in responding to the claim by naming his company and claiming that the company did the work, it seems to me that the company also accepts this liability.
Conclusion
[78] I shall join HBC Projects Pty Ltd to the claim. Both Respondents are jointly liable to pay the sum of $492.50 to the Applicant.
0
1