Vinmax Projects Pty Ltd v Debrol Pty Ltd
[2012] QCAT 384
| CITATION: | Vinmax Projects Pty Ltd v Debrol Pty Ltd [2012] QCAT 384 |
| PARTIES: | Vinmax Projects Pty Ltd (Applicant) v Debrol Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL343-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 13 April, 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 30 August, 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The respondent is to pay to the applicant the sum of $6,404.00 within 21 days of the date of this decision. |
| CATCHWORDS: | Damages for breach of contract – defective work |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Stephen Gardner, Director of the Applicant, self represented |
| RESPONDENT: | Roland Wilson, Director of the Respondent, self represented |
REASONS FOR DECISION
Background
The applicant was at the relevant times the owner of property at 25 Brittany Drive, Oxenford.
The following evidence was given at the hearing of this matter and is not in dispute.
The respondent was verbally engaged by the applicant to resurface its driveway to overcome cloudiness which had developed in the sealant applied by the respondent in previous years. The applicant says it accepted the advice of the respondent that applying the surface material and sealant over the top of the existing surface and sealant would lead to a better outcome than merely applying another coat of sealant which would eventually cloud as had occurred in previous years.
The work was performed in approximately February/March 2011. The respondent was paid the sum of $1,000.00 for the work.
The applicant was dissatisfied with the work performed. Mr Gardiner gave evidence that there was overspray on sprinklers and a grate, on the garage door, pillars and door and letterbox. Further, trowel marks were evident and the old surface pattern showed beneath the new surface. In particular, Mr Gardiner alleges that in July, 2011 the surface coating began delaminating from the driveway.
In mid-September, 2011 the respondent patched the driveway and recoated the surface. The result remained unsatisfactory.
The respondent does not deny the surface of the driveway is unsatisfactory.
The evidence of both parties is that the best method of rectification is to grind the driveway back to concrete and apply a new surface coating.
Applicant’s claim
The applicant obtained 2 quotations to undertake rectification work. It seeks an order that the lesser of the two quotes be ordered to be paid by the respondent in order that it might undertake the rectification work. The lesser quote was given by Stencil-paving-Systems in an amount of $6,404.00. Mr Gardiner said in evidence that the applicant was prepared to put to one side the cost of repairing the overspray. He said that he was not prepared to allow the respondent to rectify the work as it had been given previous opportunities. The work and the attempted rectification were faulty.
Respondent’s submissions
[10] The respondent gave evidence that he was prepared to undertake the necessary work and that he was licensed to do so. Otherwise he seeks an order that he repay the sum of $1,000.00 paid to him for the work and that he pay a further sum of $500.00 to clean the areas of overspray which occurred when he first performed the work.
[11] The respondent’s evidence was that the applicant has suffered no loss because the only way the applicant could have achieved the desired outcome on the driveway was to grind it back and resurface it. It submits that as events have transpired that remains the only way to achieve the desired outcome, so the applicant is not put to any greater expense than he would have incurred in any event.
Findings
[12] I find that the work performed by the respondent was defective in terms of it choosing to apply a surface material without first grinding back the old surface and further that the application of the surface material and sealant was not of a tradesman like standard. As a result the applicant has not received what it contracted for, namely, a resurfaced and sealed driveway with a satisfactory appearance.
[13] The respondent gave no evidence that it warned the applicant that applying a resurfacing material without first grinding back the old surface material was unlikely to achieve a satisfactory bond and appearance. Accordingly I find that the respondent cannot rely on the requirement to grind back and resurface as a basis for submitting that the applicant would have to bear that cost in any event.
Calculation of loss
[14] The general object of damages in contract is, so far as money can do it, to place the applicant in the same position as it would have been had the contract been performed. In the case of defective building work the applicant is entitled to the cost of rectification if the cost of rectification is necessary and reasonable.[i]
[15] I find that rectification work is necessary and that the cost as set out in the quote from Stencil-paving-Systems is reasonable, given that it is the lesser of the 2 quotes obtained. I find that it is not reasonable, given the history of unsatisfactory work and attempted rectification, for the respondent to return to the site to attempt further rectification work.
Order
I order that the respondent pay to the applicant the sum of $6,404.00 within 21 days of the date of this decision.
[i] Bellgrove v Eldridge (1954) 90 CLR 613.
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