Wase v Minc Enterprises Pty Ltd - [2012] QCAT 600

CITATION:

Wase v Minc Enterprises Pty Ltd [2012] QCAT 600

PARTIES:	Alison Wase
v
Minc Enterprises Pty Ltd

APPLICATION NUMBER:

BDL079-11

MATTER TYPE:

Building matters

HEARING DATE:

19 June 2012

HEARD AT:

Brisbane

DECISION OF:

Jim Allen, Member

DELIVERED ON:

28 November 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

2. The counter-application is dismissed.

CATCHWORDS:

Swimming pool construction – damage to grass – duty of care – exclusion clause – lack of evidence of quantum of damage

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms Wase was self represented

RESPONDENT:

Minc Enterprises Pty ltd was represented by Mr Marc Edwards

REASONS FOR DECISION

Ms Wase entered a contract with Minc Enterprises Pty Ltd trading under the name Leisure Pools on 28 October 2010[1] for the construction of an in-ground swimming pool at her residence at 1 Kenny Street, Fig Tree Pocket for the amount of $27,785.00. The pool was installed but the work had not been finished when on 11 January 2011 Ms Wase’s property was inundated by flood waters. This caused damage to some of the pool equipment and delayed completion of the pool for some time. The pavers for the pool were laid on 24 February 2012 but the precise date of completion of the pool is unknown. Ms Wase acknowledges that there has been no payment made for completion of the pool in the amount of $1,400. An invoice[2] in respect of the completion payment dated 13 January 2011 was filed with the Tribunal.
[1] Exhibit 1.
[2] Exhibit 8.
Ms Wase advised the Tribunal at the hearing that the claims in respect of the replacement of damaged pool machinery, reimbursement for replacing the front fence, rectification of a faulty pool filter casing were no longer being pursued. The claim being pursued relates to alleged damage to Ms Wase’s grass by the spreading of crusher dust, concrete and excavated dirt dumped by Minc Enterprises Pty Ltd throughout her front and back garden with her claiming the cost of removal of the material, and to restore the topsoil and returf.
Ms Wase in her evidence at the hearing stated that most of the excavated dirt was moved to a place she had found at Brookfield in accordance with the contract. She had been asked to find somewhere to do this by Mark Brown, the supervisor who constructed the pool. She stated that a whole lorry load or two had been left around the pool and that Mr Brown had said to use it as a backfill and it was spread all over the garden. She stated that Mr Brown had said the soil would improve the grass but it had killed it.
An invoice[3] from In2turf for the work associated with returfing an area of 280 m2 in Ms Wase’s yard in the amount of $4,411.00 was provided to the tribunal. A further invoice[4] from Durban Turf Supplies for the supply of the turf and bobcat hire in the amount of $1,960 which was paid by Ms Wase and credited on the first invoice was also provided to the Tribunal.
[3] Exhibit 3.
[4] Exhibit 4.
Ms Wase filed photos[5] which show that there was very little live grass on the ground either around the pool or in other areas of the yard except near the clothes line in the back corner of the yard. Ms Wase confirmed that the photos were taken after the flood and some are date stamped 5 March 2011. Others show the paved area around the pool which on Ms Wase’s evidence was completed on 24 February 2011.
[5] Exhibits 6 and 7.
Mr David Williams, from In2turf gave evidence at the hearing. He stated that he had visited the property last year and that it was covered in approximately 3-4 inches of soil clay that had come out of where the pool was and that all the grass had died. He said it was a lot more than was necessary from the building of a pool and that it was not due to the floods.
When queried as to where the turf was laid Mr Williams said that the area included that behind the pool to the side of the pool area and out to the street. That it only left probably 20m2 in the back corner that was not damaged.
Ms Wase alleges that the damage was caused as a result by Minc Enterprises Pty Ltd's breach of the duty under clause 10 of the contract to carry out the works in an appropriate and skilful way any and with reasonable care and skill. The Tribunal is satisfied that a breach of this duty would constitute a breach of a duty of care for negligence purposes. Ms Wase notes that item 7 of the contract schedule provides an allowance for excavation and cartage of the excavated material. The Tribunal notes that item 12 of the contract requires all excavated material to be removed from the site.
Ms Wase is also requesting that the final payment of $1,400 be waived due to the unnecessary damage inflicted on her property, the poor quality of the concrete finish which is rough all round the edging and the loss of enjoyment this has occasioned. The Tribunal notes that that issue is dealt with in the contract and there is no set-off allowed in respect of a progress claim which complies with the requirements of the contract in accordance with clause 11.7 of the contract and so the issue will not be pursued further.
Mr Edwards stated at the hearing that unless the contract included landscaping the site would be left clean and tidy. There were not massive piles of dirt it was spread out. That it would be impossible that the damage was 95% and all of the photos were taken after the floods. That the claim is unreasonable. The material left would be a combination of what was left from truck and material from the floods. It would not be excavated material but backfill which is used with fibreglass pools. Nowhere in the contract does it say the company will re-instate. The company is $1,400 out of pocket in respect of the final payment.
Minc Enterprises Pty Ltd notes clause 11.15 of the contract in its written submissions. This is an acknowledgment by Ms Wase that she accepts that the installation of a swimming pool may result in damage being occasioned to the ground, driveways, paths, fencing landscaping and other items or circumstance that Leisure Pools (Minc Enterprises) may encounter during the works. Ms Wase acknowledges and agrees that Leisure Pools is not responsible for such damage nor the cost of rectification of such damage.
The construction of a swimming pool is necessarily an invasive activity in particular where it involves the bringing onto the home owner's land of heavy equipment to excavate the area in which the pool will sit as is the case here. There will be a certain amount of damage to the yard where the work is carried out. Clearly clause 11.15 of the contract is designed to ensure that in the normal course of pool construction there will be no liability on Minc Enterprises for carrying out the work of construction of the pool.
Ms Wase is alleging that the work was not carried out in accordance with clause 10 in particular by the spreading of the soil over the grass and that as a result Minc Enterprises should be liable for turfing 95% of Ms Wase’s yard. This does not allow any provision for the damage which would be expected in the normal case of a pool installation and for which Ms Wase has agreed in the contract not to hold Minc Enterprises responsible.
There is also no material before the Tribunal to show the state of Ms Wase’s yard prior to the installation of the pool. Clearly any amount to which Ms Wase would be entitled should not be an improvement at the cost of Minc Enterprises.
There is also the issue of the flooding of Ms Wase’s property. Ms Wase and Mr Williams' evidence was that the flooding did not cause the grass to die but none of the photographs were taken before the floods and Ms Wase did not inform the Tribunal exactly when the grass is said to have died.
The photographs do clearly show that a uniform layer of material is spread on most of the yard and most of the grass was dead at the time they were taken. If the material is all from the site it is a question of whether the amount of material which was spread was the usual amount or an additional was spread due to an unusual quantity of excess material. Ms Wase asserts that the material was partially excavated material but this is denied by Mr Edwards. The contract clearly states that all excavated material was to be removed from the site. In accordance with Ms Wase’s evidence the contract was varied on Mr Brown telling Ms Wase that the spreading of the excavated material which was not removed from the site would be good for the grass which proved incorrect. In that case there is a breach of the duty of care set out in clause 10.1 because the work was not carried out in an appropriate and skilful way and with reasonable care and skill. An experienced pool builder should have known the spreading of a large amount of excess material would be detrimental to the grass.
The exclusion in clause 11.15 must be read subject to clause 10.1 so that it is only when the installation of the pool is being carried out in accordance with the duty of care under the warranty that the exclusion in 11.15 should apply. The difficulty is that there is no way of knowing the extent to which the re-turfing has been necessitated by a breach of the duty of care or the normal course of the installation of the pool as there was no evidence provided to enable the Tribunal to make this distinction. There is also no evidence that the Tribunal can rely on that the work performed has not resulted in an improvement to Ms Wade’s property. It has been said “that awards of damages are typically compensatory; that is, they are directed at compensating the plaintiff for the actual loss suffered. The purpose of compensatory damages in tort is, generally to place the plaintiff as near as possible to the position which would have existed had the tortious act not been committed.”[6]Therefore any award of damages should not create an improvement to Ms Wase’s property and so the yard should be returned to the state it was prior to the damage having regard to the exclusion.
[6] Bailey I and Bell M Construction Law in Australia third edition Lawbook Co at 133.
The Tribunal accepts Ms Wase’s evidence that a portion of her grass died as a result of the spreading of excess material from the pool but as it cannot be certain as to what portion of the re-turfing was necessitated by a breach of the duty of care the claim must be disallowed.
Minc Enterprises Pty Ltd is claiming its final progress payment in the amount of $1,400. Clause 11.5 deals with progress claims and states that Leisure Pools is entitled to claim payment of the contract price progressively on completion of stages. A progress claim must be in writing, certify that the works have been completed to the relevant stage and set out the amount out be paid. The Tribunal notes that the invoice provided in evidence in respect of the progress payment was dated 13 January 2011, which date is prior to the completion of the pool as in accordance with the contract this required the laying of the body pavers which on Ms Wase’s evidence did not occur until 24 February 2011. In the same way that Ms Wase has not been able to provide sufficient evidence to enable the Tribunal to allow her claim Minc Enterprises Pty ltd has not provided sufficient evidence in the form of a due and payable invoice to support its claim for the final progress payment and the counter-application is dismissed.