Thackeray v Revamp Pools Pty Ltd
[2012] QCAT 196
•14 May 2012
| CITATION: | Thackeray v Revamp Pools Pty Ltd [2012] QCAT 196 |
| PARTIES: | Jason Ward Thackerary |
| v | |
| Revamp Pools Pty Ltd |
| APPLICATION NUMBER: | BDL052-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 14 May 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Revamp Pools Pty Ltd pay Jason Ward Thackeray $28,540.90 by 29 June 2012. |
| CATCHWORDS: | BUILDING – where contractor failed to brace empty pool – where pool damaged beyond repair – measure of damages PROCEDURE – where no response filed – where contractor did not change address in QBSA records – where contractor history of non-compliance – where guillotine order – where application to extend time filed after guillotine order operated Bellgrove v Eldridge (1954) 90 CLR 613 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Mr Thackeray engaged Revamp Pools Pty Ltd to resurface his pool. Revamp attended, emptied the pool and purported to resurface it. Revamp did not fix any bracing to the pool when the resurfacing was being undertaken. The pool deformed and cracked when it was being refilled.
The Queensland Building Services Authority issued a direction to rectify in June 2008, requiring Revamp to make good all subsequent damage to the pool. Revamp failed to comply with the direction to rectify and Mr Thackeray then engaged in a series of correspondence with Revamp’s lawyers to no avail. Mr Thackeray lost patience in March 2011 and filed this claim.
Revamp has not filed a response to the claim. On 31 January 2012, I directed Revamp to file its material by 27 March 2012. I further ordered that, if Revamp did not file its material in time, I would make a decision about the dispute based on the papers already filed and without the need for an oral hearing.
On 28 March 2012, Revamp filed an application for an extension of time on these grounds:
a)The documents were served on an old address and not the registered office of the company and it did not receive them until 12 March 2012.
b)The director, Mr Bacon, needs time to uplift his files from his previous solicitor and obtain information from the Queensland Building Services Authority.
c)Mr Bacon has several health issues that have impinged on his ability to respond.
The file shows that recent tribunal documents were sent to Revamp at the address shown in the Queensland Building Services Authority licence records and Mr Bacon asserts that he had a redirection of his mail. While it is true that Mr Bacon did not receive a copy of the directions until March 2012, it is for Mr Bacon to manage his affairs so that he receives relevant documents in a timely way. Further, he does not explain why he did not file a response, even though he had some six months to do so.
Mr Bacon received a copy of my directions on 12 March 2012. He could see that, if he did not comply with the direction to file material, he would be precluded from doing so in the future yet he failed to take any step until after the time for compliance had expired. In addition, Mr Bacon failed to appear at a directions hearing on 2 May 2012 when he may have had one last opportunity to put his case forward.
The tribunal is sympathetic to Mr Bacon’s health problems but documents filed by Mr Thackeray indicate that Mr Bacon has a history of avoidance and non-compliance. The material Mr Bacon filed gave me no confidence that he would be able to comply with any future directions in a timely way.
The tribunal has a mandate to deal with disputes quickly. Given the length of time that these parties have been in dispute, Mr Bacon’s previous history of non-compliance with deadlines and his failure to take prompt action to protect his position when he became aware of the proceedings, I was satisfied that the matter should proceed and that it was appropriate to determine the dispute on the papers.
Mr Thackeray received advice from Majestic Pools and Landscapes that the pool could not be rescued and that it needed to be replaced. Mr Thackeray himself said that the pool could not be used and was retaining stagnant water, posing a health risk to Mr Thackeray and his family. In 2009, Mr Thackeray had the pool removed and temporarily filled in.
[10] Photographs of the pool provided to the tribunal show that the base is severely buckled and there is significant cracking to the concrete surround. I find that the removal of the pool was reasonable.
[11] Mr Thackeray claims:
Refund of monies paid to Revamp $1,800.00 Aqua Leak Detection investigation fee 110.00 G&R Bobcat cost to remove pool and fill in 2,605.90 $4,515.90
plus the cost of replacing the pool.
[12] Mr Thackeray has provided two quotes for the replacement of the pool: $28,846 and $23,770. I accept that the quote for $23,770 is a reasonable cost for the replacement of the pool.
[13] The only question that then arises is whether I should discount that sum because Mr Thackeray will be receiving a better pool than the pool that was damaged. In Bellgrove v Eldridge[1] the High Court held that, where demolition and rebuilding was a necessary consequence of the [contractor’s] breach, the cost of rebuilding was the appropriate measure of damages and was not subject to the test of reasonableness nor susceptible to a deduction because, in effect, Mr Thackeray was getting a newer and better pool than the one that Revamp damaged. In those circumstances, there is no reason for me to discount the amount of $23,770.
[1] (1954) 90 CLR 613.
[14] I direct Revamp Pools Pty Ltd pay $28,540.90 ($23,770 + $4,515.90 + $255 filing fee) to Mr Thackeray by 29 June 2012.
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