Vanniasinghe v Proland Assets Trust
[2012] QCAT 18
•5 January 2012
| CITATION: | Vanniasinghe and Anor v Proland Assets Trust [2012] QCAT 18 |
| PARTIES: | Dunstan Vanniasinghe Nur Efiz Vanniasinghe (Applicants) |
| v | |
| Proland Assets Trust (ABN 60177244700) t/as Freedom Pools and Spas (Qld) (Respondent) |
| APPLICATION NUMBER: | MCDO1827-11 |
| MATTER TYPE: | Other minor civil disputes matters |
| HEARING DATE: | 1 December 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Andrew McLean Williams, Member |
| DELIVERED ON: | 5 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The monies presently held in trust by SPASA-Q are to be disbursed on the basis that $3,112.50 is to be paid to the Applicants, and $888.00 to the Respondent, with the monies thus received by the Respondent to be in full and final satisfaction of the Respondent’s claim for payment from the Applicant in the sum of $4,000.50 pursuant to SPASA-Q contract number 10963. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – Allegation that completed in-ground pool sits too high above ground height – Absence of any contractually specified datum point – Determination of datum point in the absence of clear evidence as to an agreed datum height – Application of “acceptable tolerances” provision in contract in the absence of any contractually specified datum point – Property damage caused by contractor as part of site access – Meaning of “reasonable carrying out of the works” in context of exclusionary clause – application of contra proferentum principles to exclusionary clauses |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The Applicants appeared in person |
| RESPONDENT: | No appearance for or by the Respondent |
REASONS FOR DECISION
Preliminary
The Applicants are homeowners who reside at an address at Calamvale, Brisbane. By an Application for Minor Civil Dispute – Consumer Dispute commenced before QCAT on 10 June 2011, the applicants sue the Respondent, Proland Assets Trust (ABN 60177244700), trading as Freedom Pools and Spas (Qld) seeking the sum of $3,432.00. The claim arises in relation to the allegedly defective installation of a fibreglass in-ground swimming pool at their home at Calamvale, by the Respondent.
The matter was set down for a compulsory mediation at QCAT at 11.00am on Thursday 1 December 2011. There is an affidavit of service on the QCAT file, indicating that the Respondent was provided with proper notice in relation to the convening of that mediation. Despite having received that notice there was no appearance by, or on behalf of the Respondent. On the other hand, the Applicants did appear at QCAT at the nominated time for the mediation.
On the face of the QCAT Notice of Mediation appears a prominent warning, which says, in part:
“NOTE:
(a)Both parties are required to attend the mediation. If you do not attend the mediation then the application may proceed immediately to a hearing, where the application may be determined on the evidence provided or directions made about the further conduct of the matter. You should bring all documents and evidence with you in the event that the other party does not attend the mediation.”
[emphasis included here, by me]
Because of the non-attendance of the Respondent the matter could not be mediated. The matter was then immediately referred to me for further determination. As they were entitled, the Applicants elected to have the matter determined on the basis of the evidence already before the tribunal.
Satisfied as I am that the Respondent was given sufficient prior notice of the mediation – and of the risk that the matter could proceed to determination in their absence – and because I am also satisfied that there is sufficient material before me in order to sufficiently determine the matter, I now proceed to give my reasons for decision.
Factual Background
By their Application before QCAT the Applicants contend that the fibreglass in-ground swimming pool installed at their home by the Respondent sits approximately 180-225 millimetres above natural ground height rather than the agreed 140 millimetres above natural ground height, and that large amounts of spoil were left on site by the Respondent, which has gone on to kill their lawn.
In addition, the Applicants contend that paving and other landscaping at their home was damaged by the Respondent, as the result of excavation machinery traversing non-approved areas of their yard.
Although the Applicants admit to still owing the Respondent $4,000.50 they say that the final instalment payment for their swimming pool should now be offset against the extra costs they now confront, as a consequence of the manner in which the Respondent has installed the pool.
The total claim against the Respondent is in the sum of $3,432.00. That sum is comprised as follows:
·$4,320 to rectify the height of the pool to that which stipulated in the contract;
·$858.00 to remove approximately 4 cubic metres of excess fill brought on site by the Respondent/Respondent’s sub-contractors;
·$542.50 for replacement turf;
·$1,620.00 to rectify cracked and broken pavers and pebbles caused by machinery traversing in non-approved areas;
·Relief from payment of the $4,000.50 still owed to the Respondent by the Applicant, with that sum to be offset against the above amounts; and
·The $92.00 QCAT filing fee.
Respondent’s Position
Although the Respondent did not appear before QCAT on 1 December 2011, there is material on the QCAT file (in the form of letters sent by the Respondent to the Applicants, and to the Office of Fair Trading in response to the Applicants’ complaint to the Office of Fair Trading) that sets out its position. It would be remiss of me to not take that position into account, when determining this dispute. From its material, it becomes clear that the Respondent’s position is as follows:
·The swimming pool has not been installed too high above ground level. Prior to excavation commencing an agreed datum point was set, in consultation with the Applicants, and all set-outs were then conducted from the agreed datum point. Measurements taken after the pool was completed indicate the finished pool height (measured from the top of the coping tile) is no more than 15 millimetres above the agreed height, and this is a contractually acceptable amount of variance.
·Any extra fill remaining on site was as the result of subsequent works, in the form of a trench dug for an electrical installation. These works were arranged separately by the Applicants, after the pool construction, and hence are not the responsibility of Freedom Pools and Spas (Qld).
·Access up the far side of the house (the side furthest from the pool) became necessary, and this is permissible under the contract. In all events, this caused no damage to pavers of pebbles.
·The yard was left in the condition that could be expected after any swimming pool installation, and the Respondent should not be responsible for the cost of replacement turf.
Applicant’s Response to the Respondent’s Position
By further correspondence sent to the Respondent, and the Office of Fair Trading, the Applicants have responded to the position expressed by Freedom Pools and Spas (Qld). In summary, their rejoinder is as follows:
·Any datum point or marker that may have been placed on the fence by Mark Heath (in the employ of the Respondent) had not been discussed with, or agreed to by the Applicants, beforehand. The contract is clear in specifying that the finished height of the pool (inclusive of the coping tile) was to be 140 millimetres above natural ground height. This is the only thing that had been agreed regarding the finished height of the pool.
·The contract required the Applicants to provide a 2.2 metre fence opening for access for excavation on the right hand side of the house (when facing the road). In fact, 3.7 metres of clear access through the fence was afforded by the Applicants for access for the excavator and the path from the fence opening to the pool site itself was at least six metres wide, at the narrowest point. In these circumstances there was not any need for machinery to traverse the site, other than by the agreed route.
·The excess spoil left on site was caused by a combination of the initial hole dug for the swimming pool being far too big, and then the contractor bringing in far more fill material to back-fill the oversized hole than was necessary.
The SPASA Contract
The Respondent is a member of the Swimming Pool and Spa Association of Queensland (‘SPASA-Q’). The contract between the Applicants and the Respondent was entered into by means of a standard SPASA contract, in this instance contract number 10963. Resolution of this dispute must be in accordance with what had been agreed between the parties, in accordance with that contract.
In addition to the contract schedule and general specifications – each of which were appended to the original QCAT Application – I sought (and obtained) from the Applicants a copy of the ‘general conditions’ applying to contract No. 10963. These have become exhibit 2 in these proceedings.
The Contract ‘General Specifications’ reveal that the Applicants contracted with the Respondent for the supply and installation of a pre-fabricated fibreglass pool described as the “Vice President” model, being 7.8 metres long and 3.7 metres wide and 1.8 metres deep at its deepest point. The total contract price was $26,670.00. Importantly, insofar as it becomes relevant to this dispute, the hand-written portions of the general specifications also provide that the pool was to be “Min [i.e.: minimum] 100mm above ground level as per council requirements”, and that the Coping was to have a “nominal thickness of 40mm”, such that the outside vertical finish was to be a minimum of 140mm.
The standard SPASA contract (at page six) requires that the parties contractually agree the maximum height of the pool “Out of Ground”. This is achieved by a height being specified at which the top of the finished coping is to be level with, or either above or below the agreed “datum point”. Of significance in this dispute, this part of the general specifications has not been completed. The contract does not specify an agreed finished height by reference to any datum point, because no datum point has been specified.
The reference to “datum point” is defined in the general specifications to be “a fixed reference point used to set the height of the top of the finished coping level of the pool”. The general specifications further mandate that the so-called “datum point” “must be shown on the “Plan and Section”, at page ten of the standard SPASA contract. Turning then to the “Plan and Section” drawing on page ten of the contract, I cannot find where the datum point has been represented thereon.
The absence of any datum point on the “Plan and Section” drawing on page ten of the contract is, I think, consistent with the Applicants stating that a datum point was never discussed with them, despite the Respondent later asserting in correspondence that one was marked on a fence near to the filtration system, and is further consistent with the maximum height of pool “out of ground” section at page six of the general specifications having been left uncompleted. I find therefore that the parties only ever went so far as to agree that the finished height of the pool was to be a minimum of 140 millimetres above ground level; and that this was to be determined from natural ground height, next to the pool, rather than by reference to any datum point. Here, the simple point is that there is simply insufficient evidence that any fixed datum point (or maximum agreed height) had ever been agreed between the parties. The only agreement reached between them was that the pool’s finished height would be a minimum of 140mm above ground level, measured at the outside vertical edge of the pool.
There are specific clauses within the general conditions of the SPASA contract that bear upon resolution of this dispute. Clause 20(1)(b) deals with “acceptable tolerances” as these apply to the finished height of the pool, and clauses 7.1 and 7.3 bear upon issues relating to site access.
Clause 20 – Finished Height of the Pool
Clause 20(1)(b) provides that the contractor must complete the pool in accordance with the dimensions specified in the contract, yet that an “acceptable tolerance” on the finished height shall be up to 70mm higher or up to 40mm lower than the agreed height “in relation to the datum point”.
Previously, I have found that there was no agreed datum point, other than for the parties to agree that the minimum finished height would be 140mm above ground level, when measured at the outside vertical edge of the pool. Without an agreed datum point clause 20(1)(b) becomes something of a “dead letter”, with no role to play in the agreement. That cannot have been the intention of the contracting parties. In the absence of any agreement – other than for the minimum height above ground – I find that this height (140mm) when measured at the pool edge should then become the implied datum in order to give clause 20(1)(b) further operation. If the acceptable tolerance of +70mm is then applied to that (impliedly) agreed height, the pool could then be as much as 210mm above ground height when measured at the outside vertical edge, and still be within the acceptable tolerance allowed for by clause 20.
The Applicants have provided evidence (see Exhibit 1) that the “out of ground” pool height is as much as 220 mm in places, although on average it is claimed by the Applicants to be 180mm above ground, or some 40mm higher than what had been inferred as the datum height. Because the average height above ground is 180mm (on the Applicant’s own evidence) I find that this is not in violation of the acceptable tolerance provision in clause 20(1)(b). Because of this, the Respondent cannot be required to meet the costs of rectifying the height of the pool, because the pool’s finished height generally accords with the contractually agreed acceptable tolerance provision.
Clause 7 – Site Access
Clause 7 in the general conditions provides that the customer gives the contractor a license to enter and occupy the site for purposes of performing the works and, pursuant to clause 7.3, provides that the Contractor is
“…not liable to the Customer for any damage to any driveway, footpaths, kerb, gutter, paving, underground service, drain, structure or other property on or near the site, which arises as a result of the reasonable carrying out of the works by the Contractor and the Contractor’s employees and subcontractors”.
Clause 7.3 is an exclusionary clause, purporting to limit the scope of any liability on the part of the swimming pool contractor. It should be construed contra proferentem – that is, against the party for whose benefit it is intended to operate.
In my view, the correct approach to the practical application of clause 7.3 is to be found by recognising that a contractor will not be ordinarily liable for damage caused to driveways, footpaths, kerbs, and the like, on the proviso that such damage first arises as a coincidence of their reasonably carrying out the contracted works. Whether the contracted works were performed reasonably then becomes an objective question, which is to be determined in this instance by QCAT.
In its material, the Respondent has contended that access up the far side of the house (that is the side furthest from the pool) became necessary; and that in all events this caused no damage to any pavers or pebbles.
The Applicants have put into evidence photographs of that side of the house. These show that the house is built virtually on the boundary, save for a narrow strip of land, given over for use as a utilities area for a fence-mounted clothesline and, at the other end of the yard, the storage of rubbish bins. From the photographs, the passage down this side of the house looks to be less than two metres wide, at its narrowest. On the other hand, the “Plan and Section” diagram on page ten of the contract shows the land on the opposite (pool side) of the house to be amply sufficient for site access, and a route for access has been drawn into that Plan and Section diagram. In other words the parties have agreed to that being the route for site access.
I am not prepared to find that it was reasonably necessary, nor even sensible for the pool contractor to seek site ingress and egress via the narrow passage up the far side of the house. Whilst this may have been convenient and/or expedient at the time to traverse the excavator up and down this side of the house, it was not objectively necessary. By doing so – particularly in circumstances in which the means of access had been previously agreed and specified in the contract – the contractor was not then “reasonably carrying out” the contracted works. In that circumstance clause 7.3 affords the Respondent with no protection against a claim for damage to the pavers and pebbles on that far side of the house.
The Applicants have provided photographs of damaged pavers and pebbles, as well as a quote for the replacement of pavers and pebbles, in the sum of $1,620.00. As that evidence is uncontested, I accept it as reasonable, and reject the Respondent’s contention that no damage was so caused.
The final issues for determination relate to the costs claimed by the Applicants for the removal of excess fill, and the cost of replacing turf killed off beneath that fill.
Although the Respondent contends that an electrical contractor has caused the excess spoil on site, there is no extrinsic evidence to support that assertion. On the other hand, the Applicants have produced photographic evidence that shows that the swimming pool excavation was obviously far bigger than was necessary, and this supports their contention that the contractor then had to bring extra fill onto site, in order to rectify that mistake; yet then brought more fill onto the property than was required. I accept the Applicant’s evidence on this point.
As the Respondent has brought too much fill on to site it now must bear responsibility for its removal; as well as responsibility for bearing the costs for any collateral damage, such as was caused in this case to the turf. I find that these are not matters that can be avoided by means of recourse to clause 7.3. Prima facie it was not reasonable to make the excavation any bigger than was necessary, and no evidence has been produced by the Respondents to show that it was in fact necessary. Unexplained by evidence these are not then matters within “the reasonable carrying out of the works by the contractor”.
The Applicants have provided quotes for the costs associated with the removal of excess fill from site, as well as for the replacement of turf. In the absence of any evidence to the contrary, I accept that evidence as reasonable proof of the quantum of these items.
In the final analysis, I find that the Respondent should be required to pay to the Applicants $542.50 for replacement turf; $858.00 as the costs associated with the removal of approximately 4 cubic metres of excess fill; and $1,620.00 for damaged pavers and pebbles. In addition, the Respondent should now pay the Applicants’ QCAT filing fee, of $92.00. All of these amount to $3,112.50.
The Applicants acknowledge still owing to the Respondent the sum of $4,000.50 as the final instalment payment for their swimming pool. I understand that this money is presently held in trust by SPASA-Q pending resolution of this dispute. Accordingly, the responsible officer at SPASA-Q should now disperse the monies from trust, in accordance with these reasons.
ORDERS
I direct that monies presently held in trust by SPASA-Q are to be disbursed from trust on the basis that $3,112.50 is to be paid to the Applicants, and $888.00 is to be paid to the Respondent, with the monies thus received by the Respondent to be in full and final satisfaction of the Respondent’s claim for payment from the Applicant in the sum of $4,000.50 pursuant to SPASA-Q contract number 10963.
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