Vandalay Constructions Pty Ltd v Cameron
[2010] QCAT 405
•21 June 2010
CITATION:Vandalay Constructions Pty Ltd v Cameron [2010] QCAT 405
| PARTIES: | Vandalay Constructions Pty Ltd |
| v | |
| Ms Jennifer Cameron |
| APPLICATION NUMBER: | BD380-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 25 May 2010 |
| HEARD AT: | Mackay |
| DECISION OF: | J Cowdroy |
| DELIVERED ON: | 21 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The respondent pay to the applicant the sum of$2039.25 by 30 July 2010 |
| CATCHWORDS : | Building work – oral contract – request for payment denied by respondent on basis of defective work – no evidence of defective work |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Vandalay Constructions Pty Ltd represented by Mr Edgar and Ms Byrne |
| RESPONDENT: | Ms Jennifer Cameron |
REASONS FOR DECISION
Background to the Dispute
The applicant seeks payment of $1849.25 in respect to building work performed at the respondent’s property (“the property”) at 13 Marlborough Street Ooralea.
An oral contract was entered into by the parties for an amount of $2688.94 for the removal of carpet and the supply and installation of flooring tiles to three bedrooms at the property. The applicant commenced the work on or about 19 June 2009. He removed the carpet, supplied and installed floor tiles to one bedroom.
The applicant was, during the same period, engaged in other work on the property pursuant to a written contract between the parties dated 17 April 2009 for the conversion of a laundry to a bathroom. The contract price was $18,950.
The respondent paid one half of that amount and upon practical completion on 30 June 2009 the respondent was issued with an account for the balance owing, $9,475. The respondent refused to pay the balance on the basis that she considered that there were a number of defects which required rectification.
Certain rectification/completion work was completed however on 10 July 2009 the respondent had not paid the final payment under that contract. The applicant considered that the matters under dispute were of a minor nature or lacked substance.
By notification on 27 July 2009 the respondent advised the applicant that no further tiling work was to be carried out due to her dissatisfaction with the standard of work. Her complaints related to the work performed under the written and oral contracts.
In late July 2009, the applicant engaged solicitors to seek to recover the amount of $9475 by way of lodgement of an application about a domestic building dispute with the then Commercial and Consumer Tribunal and a caveat was lodged against the property.
The respondent paid the final instalment payable under the written contact on about 30 July 2009. However the building work is still the subject of dispute between the parties and the applicant contacted the Building Services Authority (“the BSA”). The applicant was requested to carry out rectification/completion work on 25 March 2010.
It is against that history that the applicant seeks the payment of the outstanding amount in relation to the tiling contract on the basis that he was willing to complete the tiling to the other bedrooms but prevented from doing so by the respondent.
The tax invoice for the work provides the following description:
Supply tiles to bedrooms 1, 2 and 3 $ 976.80
Delivery to site $ 66.00
Installation of floor tiles $1665.04
Remove existing carpet, clean floors,
dispose of carpet and tip fees $ 250.00
$2688.94
Tax $ 268.90
Total $2957.84
Of this amount, the applicant claims $1849.25, representing the cost of the tiles, the delivery fee and one third of each of the labour costs involved in the installation of the tiles and the associated tasks.
The Hearing
Evidence was given by Mr David Raymond Edgar, sole director of Vandalay Constructions Pty Ltd, Ms Pauline Byrne, office manager of Vandalay Constructions and the respondent, Ms Cameron.
Mr Edgar has held a builders licence for seven years. He has not had any formal order issued by the Building Services Authority to rectify or complete building work or orders made against him by the Commercial and Consumer Tribunal. His company employs four or five people at any given time, including two apprentices, a labourer and a supervisor.
An oral quotation for the tiling work was provided to Ms Cameron. When she accepted his quotation, he ordered the tiles from Beaumont Tiles and completed the work in the master bedroom when he was advised that his work was unsatisfactory and that he was not to perform any further work. He had since learnt that the respondent had engaged a tiler to tile the other two bedrooms.
Vandalay Constructions was invoiced by Beaumont Tiles for the purchase of 50.06 square metres of tiles for $1387.53. The quotation also included the purchase of tiles for the laundry and ensuite totalling 7½ square metres. The tiles for those areas were part of the earlier contract of $18,950 and the cost of the tiles in those areas are not included in the claim under consideration.
After completing the master bedroom and taking into account the tiles used for the laundry and ensuite, there were insufficient tiles to tile an entire house. Whilst there was potential for them to be utilised in other renovation work, this would be dependant upon locating a future client who wanted those particular tiles. The supplier of the tiles would not accept their return. Although they were not a special order, they were transported from Brisbane and are not a line which Beaumont Tiles hold in stock. He removed the unused tiles from the property after the respondent refused to pay his account.
The concerns of the applicant in respect to the tiling job focused on two issues: there is a grout line evident between the new tiles in the bedroom and the existing hallway tiles. This is not a defect because the work was not completed. All that is required is the installation of a strip.
The other issue concerned the lack of an expansion joint in the bedroom. It is not a BSA requirement that an expansion joint be fitted in an area comprising less than five metres. He had used grout and he believed it was an acceptable practice. It looks no different than silicone, and the only difference between the two methods is that if grout is used in an area larger than five metres and there is any movement, cracks will occur.
If the respondent had notified him that she particularly required him to use silicone he would have used it. The tiling was not of substandard quality – there was no lapping and no drummy tiles. The cost of installing a strip between the passageway and the bedroom and the insertion of an expansion joint is about $100. He considered that the tiling work was of a satisfactory standard.
Ms Pauline Byrne undertakes the accounting and office manager role for Vandalay Constructions Pty Ltd and had considerable contact with Ms Cameron. Ms Byrne described the difficulties in endeavouring to utilise tiles which were surplus to requirements. The tiles could not be used for another job because of the difficulty in colour matching from different batch loads.
Ms Cameron’s complaints came at a time when there was ongoing dispute about the other contract, in respect of which Ms Cameron was refusing to pay half the contract price and legal action was threatened by Vandalay’s solicitors. Ms Cameron was advised that the BSA would not act if there was money outstanding on a contract. It was her belief that Ms Cameron’s refusal to allow Vandalay to finish the tiling job was prompted by the fact that legal action was being taken to recover the amount outstanding on the written contract.
Ms Cameron was a “difficult client” and Vandalay had extended much time and effort in endeavouring to satisfy her requests about a range of issues. Vandalay had expended $2300 in legal costs, as well as the time spent in attending mediation and discussions with the BSA. All the defects had been rectified. The major contract had been completed in a timely manner, with commencement in April 2009 and practical completion at the end of June 2009.
The grouting to fix the tiles to the skirting in the bedroom was completed to match the rest of the house. Ms Cameron had never mentioned anything about the strip in the passageway.
Ms Cameron advised that the property is tenanted. She disputed that the defects at the property in relation to the written contract had been remedied, having spoken to the BSA rep this morning and there were “quite a few issues” including illegal plumbing work, downpipes and termi-mesh issues as well as problems with the standard of the work. The tenants had complained about the time it took to complete the job.
She considered that the quantity of tiles ordered by Mr Edgar for the three bedrooms, the laundry and ensuite were insufficient. She did not accept that the surplus tiles could not be used for another job. In respect to the area between the passageway and bedroom 1, there is 1 inch of grout visible.
A tiler had advised her that an expansion joint was required. At mediation Mr Edgar had agreed to put in silicone and remove the grout. (It was revealed later that this was an offer made during the course of mediation, on the basis that the matter could be positively mediated). Ms Cameron provided a photo taken on her mobile phone that morning, which she considered demonstrated that the tiles in the bedroom were not fitted flush.
She calculated that there was 37 metres left after the tiling of the master bedroom, ensuite and laundry and that some tiles had also been used to replace other tiles. She calculated that $976.80 was owed to Vandalay Constructions, This was subsequently amended to $963.90 and then $902 which represented 1/3rd of the cost of 37 metres of tiles and delivery fee, and no contributions towards the carpet removal and associated costs.
In summary, Ms Cameron expressed her dissatisfaction with the standard of work performed by the applicant’s company, describing it in terms like “sloppy every way through". She also detailed the problems in her interaction with the tenant caused by Vandalay's delay in completing the major job and the condition in which the property was left.
The Legislation
The tiling and associated work on the property constitutes renovation, improvement of a home and such work falls within the definition of domestic building work in Section 8 of the Domestic Building Contracts Act 2000 (Qld) (DBC Act). Sections 43 and 44 of that Act incorporate warranties by the building contractor that the work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975 and that the work will be carried out in an appropriate and skilful way and with reasonable care and skill.
Findings
Mr Edgar gave his evidence in a straightforward manner, although he was vague about some aspects. On the substantive issue however, he denied the complaints of the respondent about the standard of his work.
Ms Cameron was very displeased with many aspects of the building work. Indeed, perusal of the voluminous correspondence between the applicant and the respondent about the building work relating to the written contract, indicate that by the time the job was at practical completion stage, the relationship between the parties was conflictual.
When Mr Cameron terminated Vandalay Constructions’ services, her reason for doing so was largely predicated on her complaints about the performance of the building work under the written contract.
Despite her assertions that the tiling work was of substandard quality and defective, there was no independent evidence that this was the case. The applicant denied her assertions and also denied any knowledge of her concerns about the grout in the passageway or the expansion joint. The applicant’s evidence was that if such concerns had been canvassed with him, they were easily remedied. I am satisfied that the respondent’s complaints about the tiling were of a minor nature.
I accept the evidence of the applicant that the tiles which he purchased are not able to be used by him in other projects. It was reasonable in the circumstances for him to take possession of them, given the respondent’s attitude that no further work would be permitted on her property. Whilst the applicant has a duty to mitigate his loss, it is not reasonable for the applicant to bear the cost of tiles for which he has no use. The respondent’s argument about whether the quantity of tiles ordered was sufficient for the job and other complaints were irrelevant to the matters under consideration
I find the respondent liable for the cost of 37 metres of tiles and their delivery in the amount of $1042.80. Further, I find the respondent is liable for 1/3rd of the cost of the labour for their installation and 1/3rd of the costs of carpet removal and associated fees in the sum of $555.01 and $83.33 respectively. This makes a total of $1681.14 which, with the application of GST, amounts to $1849.25. The evidence is that there is an area of grout in the passageway that requires finishing, consequently I allow the sum of $50 to the respondent.
I find that the respondent is liable for the costs of the application in the sum of $240.00.
ORDER
I order that the respondent pay to the applicant the sum of $2039.25 by 30 July 2010.
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