Williamson & Williamson v McErlean t/as P & D Patios
[2013] QCAT 272
•19 February 2013
| CITATION: | Williamson & Williamson v McErlean t/as P & D Patios [2013] QCAT 272 |
| PARTIES: | Kimble Williamson and Fiona Williamson (Applicants) |
| V | |
| Peter and Dianne McErlean trading as P & D Patios (Respondents) |
| APPLICATION NUMBER: | BDL251-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On papers hearing |
| HEARD AT: | Brisbane |
| DECISION OF: | Jeremy Gordon, Member |
| DELIVERED ON: | 19 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Peter and Dianne McErlean trading as P & D Patios are ordered to pay Kimble and Fiona Williamson the sum of $17,698.50. |
| CATCHWORDS: | BUILDING DISPUTE – whether work done in accordance with contract – whether part of damages claim too remote Domestic Building Contracts Act 2000 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The Respondents, Peter and Dianne McErlean, trade as P & D Patios. Peter McErlean is a licensed builder. They have failed to react to these proceedings at all. In particular they did not comply with an order of the Tribunal to respond to the application and to provide statements of evidence and copies of any documents referred to in such statements, and they did not attend a compulsory conference.
In October 2009 P & D Patios contracted with Mr and Mrs Williamson on a Master Builder’s Minor Works contract (version MWC-1) to supply and install an Ausdeck Patio cover at their house in Wyreema.
The contract price of $28,000 included obtaining building approval for the work. There was therefore a promise by P & D Patios that they would obtain such building approval.
The work was done but it could not be given building approval because as constructed there was no 500mm gap between the new patio roof and the existing carport. An alternative to providing this gap would be the installation of a fire rated wall between the full length of the carport and the boundary fence.
Clause 1.1 of the Master Builder’s contract provided that the contractor will carry out the works:-
(a) in an appropriate and skilful way;
(b) with reasonable care and skill;
(c) in accordance with the Plans and Specifications;
(d) in accordance with the relevant laws and legal requirements including, for example, the Building Act 1975.
The terms here correspond with those implied into the agreement under sections 43 to 45 of the Domestic Building Contracts Act 2000.
Clearly the work was not done with reasonably care and skill because the new patio roof abutted the existing carport, and so did not have the 500mm gap required, but it did not have the fire rated wall either.
A plan was attached to the Master Builder’s contract at the time of signing. The contract states that the plan was provided by the contractor. The plan showed the new patio roof abutting the existing carport but no provision for the fire rated wall. It was drawn following a site visit from a salesperson acting on behalf of P & D Patios. At that site visit, Mrs Williamson specified that the new patio roof should meet the existing carport to provide protection from the weather for those passing underneath. She was assured by the salesperson that this was both possible and legal. As it has turned out, this was incorrect.
Because the plan was provided by P & D Patios and was wrong, there can be no defence to this claim based on the plan.
[10] I must conclude therefore that P & D Patios were in breach of contract in the manner in which the plan was drawn, the manner in which the patio roof was erected and also in failing to obtain building approval for the work.
Remedy
[11] Where there has been a breach of contract, innocent parties are entitled as far as possible to be put in the position in which they would have been if the contract had been performed. In this case this is to be put in the position of having a patio roof abutting the existing carport roof, with building approval.
[12] This can be achieved either by an order that P & D Patios provide the necessary fire rated wall, with a provision for compensation to be paid in default, or by an order that P & D Patios pay for a third party to do this work. The views of the parties are taken into account when deciding which of these options to order. When the application was made to QCAT Mr and Mrs Williamson were willing to accept either option, but in more recent documentation they have concentrated only on paying a third party to do the work. This is not surprising in the light of total lack of response by P & D Patios to the QCAT claim. The filed evidence also shows that P & D Patios failed to respond to pre-action correspondence, and also made various promises to rectify which were not fulfilled.
[13] In the circumstances the appropriate remedy is for a third party to do the work. The only quotation in the papers, which I accept as reasonable, is one from Steinmuller Constructions Pty Ltd at a cost of $14,943.50.
[14] The patio roof will then need to be certified and the cost for this has now increased to $880 including GST.
[15] There is also claim for $3,510 for loss of rental income at $270 per week since 31 October 2012 when the property became unoccupied. It is said that Mr and Mrs Williamson have been unable to let the property because if the unapproved structure caused injury to tenants they would not be insured. There is a distinct weakness in this head of claim. Firstly, there is no evidence proving that Mr and Mrs Williamson decided not to let the property for the reason stated. So it has not been proved that this loss was caused by the breach of contract. Secondly, even if there was such evidence, I would regard this head of claim as too remote and therefore irrecoverable. The rule of remoteness of damages restricts compensation to those elements which are reasonably in the contemplation of the parties at the time the contract was made. I do not think this head of claim could reasonably have been foreseen at that time.
Costs
[16] There is also a claim for costs, being $3,100 in legal fees and $275 filing fee. In section 100 of the QCAT Act 2009 there is a strong indication that in QCAT each side should bear their own costs. However this rule is prefaced by the words “other than as provided .. in an enabling Act”. It was held in Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 that QCAT’s jurisdiction in building disputes derives from an enabling Act, the Queensland Building Services Authority Act 1991, and in section 77(2) of that Act QCAT is given the power to award costs. Therefore this gives QCAT a broad general power to award costs and the usual rule in QCAT is displaced[1].
[1] Paragraphs [33] and [34].
[17] QCAT’s procedure in accordance with its statutory obligations to ensure proceedings are conducted in an informal way that minimises costs to the parties[2] is designed to enable parties to bring and pursue claims without legal representation. Mr and Mrs Williamson chose to employ solicitors prior to bringing the claim, and also to assist them in preparing their evidence in support of the claim. There is no explanation why they did so. There is no information showing how the $3,100 is made up, nor what it was paid for. These things all lean against making an order for costs beyond the filing fee. On the other hand, if P & D Patios had acted reasonably, they would have admitted the claim as soon as it was made, or at the very latest in the compulsory conference. I can see from the paperwork that more than half of the legal expenses must have been spent on filing the evidence after that compulsory conference. P & D Patios must have been aware that Mr and Mrs Williamson were being assisted by a solicitor. Therefore I do think that P & D Patios should pay a reasonable sum in costs towards the legal work done after the compulsory conference. I assess this amount at $1,600.
[2] Section 4(c) of the QCAT Act.
[18] There is a claim for interest but since the award is assessed at the current cost to Mr and Mrs Williamson to rectify the work it is inappropriate to award interest.
Conclusion
[19] P & D Patios were in breach of contract in preparing their plans, in the manner in which the patio roof was erected and in failing to obtain building approval.
[20] P & D Patio must pay to Mr and Mrs Williamson:-
(a)Compensation for breach of contract:
Cost of erection of fire rated wall $14,943.50
Cost of building approval $880.00 $15,823.50(b)Costs:
Contribution to legal costs $1,600.00
Filing fee $275.00 $1,875.00
Total award: $17,698.50
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