Vine v Gilvray Constructions Pty Ltd
[2012] QCAT 471
•2 October 2012
| CITATION: | Vine v Gilvray Constructions Pty Ltd [2012] QCAT 471 |
| PARTIES: | Murray John Vine |
| v | |
| Gilvray Constructions Pty Ltd |
| APPLICATION NUMBER: | BDL323-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe, Senior Member |
| DELIVERED ON: | 2 October 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Gilvray Constructions Pty Ltd pay Murray John Vine $14,405.00 by 30 November 2012. |
| CATCHWORDS: | BUILDING – where variations claimed – where variations not in writing – adjustment of claims Domestic Building Contracts Act 2000, s 84(4) |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Because of a lack of engagement by Gilvray Constructions Pty Ltd, the tribunal is to determine the parties’ rights and obligations on the papers. That task is difficult because of the lack of detail. Although the parties entered into written contracts for the construction of Mr Vine’s house and shed, there are no specifications to the contracts. Requests for variations to the contracts were not reduced to writing. The variations were not costed in any meaningful way. Claims for the rectification of defects are not supported by invoices in every case. As both parties are, in part, responsible for the lack of detail both parties’ claims will be affected.
It is uncontroversial that Mr Vine entered into a contract for construction of his house for a price of $158,390. The parties also agree that Gilvray was to build a shed for $29,390 and that there were $7,260 of extras. That is a total of $195,355. The parties also agree that Mr Vine paid Gilvray $223,780.
Mr Vine agrees that Gilvray is entitled to payment for a pump, tank and concrete slab but they disagree about the amount. Mr Vine says he should pay $4,570. A third party quoted $8,300. Gilvray wants $7,600. Mr Vine says that the cost should be reduced from the third party quote because Gilvray used crusher dust, not concrete as the base for the tank. I am not persuaded that such a large deduction is warranted, particularly as Gilvray has quoted only $450 for another tank slab. I accept Gilvray’s claim for $7,600.
Mr Vine also agrees that Gilvray is entitled to payment for patio, veranda and carport slabs. Gilvray has claimed $7,000. Mr Vine says $6,365 is reasonable because the actual cost of the concreter was less. I have no details of the saving, whether it was passed on or whether Gilvray’s own work resulted in that saving. Although the variation was not reduced to writing as is required[1], I accept that Gilvray did quote $7,000, Mr Vine accepted it and there is no good reason to discount it. Gilvray is entitled to $7,000 for the patio, veranda and carport slabs.
[1] Section 84(4) Domestic Building Contracts Act 2000.
Gilvray claims $2,650 for relocation of the dispersal area, installing the shed windows at a different height, connecting the shed tank to the house tanks and extra insulation. There is nothing to support these claims, which Mr Vine denies. I do not accept Gilvray's claim for this amount.
Gilvray also claims $4,000 for the cost of an extra water tank not included in the quote for the shed and $450 for the slab. Mr Vine accepts that he received a third party quote for the shed and that formed the basis of the Gilvray quote. The third party quote, including installation, was $14,901. The quote did not include power, water or a slab. Mr Vine says that the Gilvray quote included all of those extras which would explain why Gilvray’s quote was so much more. Mr Van Beelen, a friend of Mr Vine who was present at the discussions about the cost of the shed, has provided a statement and handwritten notes explaining the difference between the third party quote and Gilvray’s quote. Those notes confirm that the difference in price covered the provision of water and a slab. I prefer the evidence of Mr Vine and I do not accept Gilvray’s claim.
Both parties claim for the cost of constructing ramps. Gilvray claims the cost of constructing four ramps for a total of $3,910. Mr Vine claims a deduction of $4,834.50. In his statement dated 8 May 2012, Mr Vine states that he paid Gilvray $5,000 for a driveway but he told the contractor at the time that he would not pay for the driveway if it failed. Mr Vine says that the driveway did fail. He has provided a report from civil engineers Marscel that confirms the driveway has not been constructed properly. I accept that Mr Vine should not have to pay for a defective driveway. Gilvray is not entitled to claim $3,910.
It is apparent from the plans that the driveways were not included in the contracts. If Mr Vine does not have to pay Gilvray $5,000 for the defective driveways, he is then placed in the position as if the driveways had not been constructed. Because the driveways were always going to be an extra cost to Mr Vine, he is not entitled to recover the rectification work of $2,650.
Gilvray’s entitlement under the contracts is as follows:
House $158,390 Shed 29,390 Agreed extras 7,260 Pump tank and concrete slab 7,600 Patio, veranda and carport slab 7,000 $209,640.00
Mr Vine has paid $223,780. He is entitled to a refund of $14,140. Gilvray should also pay the filing fee of $265. I order that Gilvray Constructions Pty Ltd pay Murray Vine $14,405 by 30 November 2012.
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