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Visionscapes (Aust) Pty Ltd v Weidmann [2009] QCCTB 75 (15 April 2009)

Last Updated: 20 April 2009

REASONS FOR DECISION

Introduction

1.               This is an application by a structural landscaper for the balance alleged to be due ($60,468.50) further to a contract entered into between these parties dated 27 September 2007.

2.               During the course of the hearing the respondents admitted to the amount of $60,468.50 as being owing on account of the works carried out by the applicant under the contract. In addition to this amount, the applicant also seeks interest pursuant to the contract.

3.               I should add that the above amount was claimed in an invoice from the applicant (no. 000491 dated 17 December 2007) in which a deduction of $5094.00 had been made (apparently, unilaterally by the applicant) as an allowance for tiling works required by the contract to the upper level verandah, works which were not carried out.

4.               The respondents’ amended counter-claim appears in a document entitled “amended defence” filed 1 December 2008, page 2 of 4 of which (and part of page 4 of 4) was replaced by a page handed up during the course of the hearing on 12 February 2009.

5.               The respondents’ counter-claim then was as follows –

1. Unpaved areas $3102.00

2. Sealant $154.60

3. Wood repairs $4000.00

4. Incomplete demolition upstairs $1000.00

5. Black Everhard drain (deduction from contract) $3207.05

6. Pool Filter reconnection $134.02

7. Gas Cylinders $150.00

8. Repair damage to the Facade $500.00+GST

9. Waterproofing $1500.00+GST

10. Removing black Everhard drain and digging out garden $649.00+GST

11. Pool coping and tile band $7000.00+GST

& Water to fill pool $1397.00+GST

12. Disconnection and reconnection of air conditioning $660.68

13. Replacing tiling/paving

- remove old tiles, dump fees, etc. $7282.00+GST

- supply and lay new tiles @ $200/sq m x 280 sq m $56,000.00+GST

- supply of bevel edge tiles and extra to lay up stand to

step in front of house and side step in front of laundry $500.00+GST

- building up concrete to rectify errors in fall – before

laying commenced $2785.00+GST

- hand over costs including temporary gate protection $379.00+GST

6.               I intend dealing with each item in turn. However, before so doing it is appropriate to include the parties submissions.

Final submission of the respondents

“We signed a contract for landscaping & building work with Visionscapes (Aust) Pty Ltd On 27th September, 2007, a time when the company was not licensed to enter into such an agreement.

The contract did not document the stages to be paid. As well as a deposit Visionscapes asked for, and was paid a $25,000.00 “Start of Project” payment.

Major defects were proven to be evident throughout the entire works.

The photographic evidence of both the respondents & the applicants clearly shows that the work was extremely sub-standard.

Visionscapes produced no expert witnesses to support their claims of “one hundred percent perfect work”. From this, the Tribunal should infer that no expert was available.

Our expert witnesses support our claims of multiple major defects and incomplete work according to the contractual scope of works. Mr. Angus Ross, QBSA Building Inspector, when questioned by Visionscapes’ counsel, “it all becomes academic as all the tiles had to be lifted just because of the drumminess.” All three of our experts explained that removal and replacement of the payers was the reasonable and necessary remedy.

Damage was done to the front of the house, but mainly to the pool where lack of skill and caution left the pool requiring more than a tile band to repair.

The BSA “Advice to Home Builders and Renovators”, states to always inspect and check that the work is satisfactorily completed in accordance with your written agreement before making the final payment. This is the advice we followed. We would have been happy to pay if the works had been completed to a satisfactory standard.

The evidence clearly shows that no money is due or owing to Visionscapes because of their substantial breach of contract for failing to remedy defective works, not completing the works, unreasonably suspending works on 21St December 2007, and for demanding a completion payment when practical completion stage had not been reached. DBC Act 2000 (Division 3 Part 5 no. 67 paragraphs 2-6) states that this stage has only been reached if there are agreed on minor defects or minor omissions, and if a defects document 3 has been signed by the owner and the contractor.

The Tribunal should find that Robert Carlisle of Visionscapes was arrogant, belligerent and dishonest.

Visionscapes’ incompetence affected all aspects of their profession; their skills, knowledge, communication, and compliance with the law.

It was clear that Visionscapes had grossly misrepresented their knowledge and skills. Whenever we questioned their work or workmanship, we were considered abusive. It was also clear from the evidence that no-one knew they were the site-supervisor. In fact, by law, there could only have been one supervisor, and that was Robert Carlile himself.

Mr. Willson testified that he did not need to undertake this restoration work. It was clear he felt some compassion for us, and when Visionscapes did not return to the property to discuss rectification, Mr. Willson felt compelled to help us out. Therefore his costs for rectification were not excessive and should be accepted over those finally submitted by Visionscapes in court. Visionscapes’ figures submitted do not reflect current commercial rates. The Tribunal should accept the figures submitted by Mr. Murray Willson and award the full counterclaim of $94,624.99.

We paid to Visionscapes $65,805.00. Our costing presented on to the Tribunal on Friday morning, 13th February 2009 and also documented in the amended defence dated 28th November 2008, show the value of the work salvaged from Visionscapes, using their own figures, to be worth $39,199.15. All three of our expert witnesses showed that the concrete slab was defective and should have been replaced as well. However, our family could not face any more disruptions and time living in a demolition site. (If the slab had been removed, the termite barrier and storm-water drains would have also been lost.)

Our counterclaim for $94,624.99 stands for Murray Willson’s repairs, damaged work, and excess payment to Visionscapes for works retained.

There was a failure of consideration on the part of Visionscapes to honour our contract, and therefore there should be a finding by the Tribunal that we do not owe the claim, and we ask for damages and costs as a result of Visionscapes’ breach of contract and breach of his duty of care to do good work for us. We therefore seek damages for Murray Wilison’s repairs.

We did nothing wrong. We checked the BSA website, and we hired a licensed contractor. We now find ourselves out of pocket for rectification, completion, costs and loss of earnings for a three day Tribunal hearing. We therefore seek costs, which amount to $17,500.00. A breakdown of these figures can be given if necessary.”

Submissions of the applicant

“Introduction:

1.               The Applicant claims the sum of $60,468.50 from the Respondents, plus interest at the rate of 13.07% per annum pursuant to clause 13 of the contract Ex 1, plus costs.

2.               As conceded by the Respondents on the second day of hearing, the Applicant’s claim for the sum of $60,468.50 is not disputed as owing. The issue is potentially in respect of the Respondents’ counterclaim, which is effectively in two parts:

(i) the claim for work allegedly not finished, but which is strictly speaking a defence to the Applicant’s claim by way of diminishing the totality of their claim. The Respondents’ admission cannot be taken to abandon this aspect of the counterclaim (which is truly part of defending the claim). If the Tribunal finds that the aspect of this part of the counterclaim is upheld, this should be properly be taken as a reduction in the Applicant’s claim for moneys owing;

(ii) the claim for defective work and other incidental claims in relation to damage to the façade, the top of the pool requiring pool coping, and the replacing of the paving.

The Applicant’s Witnesses

3.               Generally, it can be said that each of the Applicant’s witnesses, Robert Carlisle, Renai Hope Stupart and Adam Chandler, gave evidence as they saw it. In respect of Mr Carlisle, it cannot be said that his demeanour was arrogant or belligerent - he was courteous and responsive to questions posed by Mrs Weidmann; likewise the other two witnesses.

Respondents’ Witnesses

4.               It would be best to consider each of the Respondents’ witnesses in the course of the submissions.

The Counterclaim

5.               It would be easiest to proceed through the Respondents’ counterclaim and address those issues.

Disputed Items in Contract

Area of Paving

6.               Much was made of the fact that Prestige Pools quoted only 280m2 of tiling was necessary to be laid in respect of the rectification work. Also, there was some dispute as to whether the quotation included a garden on the side fence or not, Mr Carlisle asserting that the quotation was for tiling to the boundary fence, whereas the Weidmanns say that there was no provision for a garden.

7.               In any event, the quotation which was accepted by the Respondents was a fixed price contract. Whilst calculating the cost of laying the tiles on the basis of the area, ultimately a figure was calculated to be the cost for the laying of the tiles, concrete etc. In the end result, a particular figure was set out as being the work to be performed. Ultimately, the Weidmann’s only conceded about 11m2 which is just over a 3% difference. It cannot therefore be said that the total price for the provision of concrete and supplying and laying of tiles was so grossly inaccurate as to render quote 491 and the agreed sum inoperative. This aspect of the “counterclaim” should be dismissed.

Wood Repairs Quoted and not Needed

8.               Quotation 491 incorporated into the contract makes no provision or reference at all to wood repairs to veranda. All that was quoted was for the demolition of the veranda and the laying of new tiles.

9.               The essence of the Respondents’ claim is the allegation by Mrs Weidmann that she specifically discussed repairs being required, and alleging that Mr Carlisle agreed to do such work but was unable to provide a precise quote. This was categorically denied by Mr Carlisle. 10. Document 1.1 in the Amended Defence, being the quotation from Amazon Landscapes quite clearly shows the exact words that Mrs Weidmann alleges Mr Carlisle said to her. It is submitted that Mrs Weidmann has mistakenly attributed her conversations with Amazon to Mr Carlisle, and Mr Carlisle’s evidence in this regard should be accepted. Mrs Weidmann’s explanation that she had the same sort of conversation with all the contractors still does not explain how Amazon came up with the precise form of words that allegedly were said by Mr Carlisle. On the balance of probabilities, it must have been the case that Mrs Weidmann was confusing this conversation with Amazon, with Mr Carlisle. This aspect of the Claim should be dismissed.

Incomplete Demolition of Railing Upstairs, Removal of Door Nails

11.            There seem to be two aspects to this claim:

(i) some safety rails were left;

(ii) underneath the veranda there were glue and nails still attached to the ceiling which were not removed.

12.            In respect of the safety rails that were retained, the evidence of Mr Carlisle was clear that removal of such safety rails would require only a few minutes work. The few rails that were left were for safety reasons, as the safety rails that were retained would be likely to be used by a contractor to perform the laying of the tiles etc. that was not to be performed by Visionscapes. Given the comparative insignificance of this particular item, it cannot be said that this is incomplete work and this aspect of the claim should be dismissed.

13.            In respect of the glue and nails, again, this has not been specifically included within the quote. The evidence of Mr Carlisle that the responsibility for clearing the glue and nails would be part of the work to be performed by the contractors to install the new ceiling, ought to be accepted.

14.            Even on the evidence from Mrs Weidmann herself; she admitted that the ceiling contractors did not complain about removal of the glue and nails and did not appear to quote in addition to their usual quote for the removal of these items. This aspect of the claim should be dismissed.

Black Everhard Dram

15.            Mrs Weidmann contends that she was told that she would be consulted in respect of the drain. Mr Carlisle said that he specifically referred Mrs Weidmann to look at the drain at a property at Toowong. He says that Mrs Weidmann responded that she agreed with the drain.

16.            There is no mention in quote 491. The variation signed by Mrs Weidmann on 12 November 2007 refers only to the pool area, no mention of the drain at the side boundary. Accordingly, it seems that Mrs Weidmann had changed her mind after the drain had been installed. As for the propensity of Mrs Weidmann to change her mind, see below in respect of the tiles on the veranda. This aspect of the claim should be dismissed.

Sealant Charge for 305m2

17.            This is a similar argument to the above, and for similar reasons should be dismissed.

Pool Filter Reconnection

18.            Insofar as the pool filter reconnection arises out of the necessity to remove excess materials causing a danger to the pool filter while cleaning, then, as Mr Carlisle has conceded, that this is something that Visionscapes was responsible for and there is no real dispute in relation to this. Reconnection of Gas Cylinders

19. This arises out of the Weidmann’s contending that the gas cylinders were specifically disconnected by Visionscapes. Visionscapes denies any responsibility to reconnect the gas cylinders as it is not part of their contractual obligations and is not a trade practice, and this ought to be dismissed.

Rectification

·                  Repair to the Façade

20.            This was conceded by Mr Carlisle as being the responsibility of Visionscapes.

o        Waterproofing

21.            This is part of the issue concerning whether the tiles of the veranda were to be completed by Visionscapes or not. Further, Mr Carlisle’s evidence was that in respect of the waterproofing, if there were any gaps on the columns, this could have been easily remedied by the application of sealant paint This was somewhat trivial. It would appear that the quoted work performed in respect of waterproofing was in relation to the laying of new tiles on the veranda.

22.            The issue of the tiles on the verandah was not part of the counterclaim, but certainly was an issue in respect of credit and also in respect of whether Visionscapes unreasonably refused to complete the contract. It also goes to the issue of whether Visionscapes unreasonably refused to rectify.

23.            In relation to the tiles on the veranda, the evidence of Mrs Weidmann was allegedly that she had a group of tiles on the kitchen table and has asked Mr Carlisle to choose the best choice, but they had come to no particular agreement about the tiles. This was denied by Mr Carlisle, who said that a particular tile had already been chosen by her from Amber Tiles.

24.            The email from Mrs Weidmann to Monique Plunkett dated 11 December 2007 at 1.31pm quite patently states that Mrs Weidmann said the particular tiles were “correct”. She made the statement without any qualification at all as to it being subject to any further agreement. Mrs Weidmann’s explanation for this email in cross-examination was wholly unconvincing. It can be construed that Mrs Weidmann had changed her mind and was not keen on proceeding with what she regarded as a lesser quality tile. Indeed, the emails subsequent to 21 December 2007 did not resolve to any particular agreement on what was to be - done in respect of the tiles, and thus it was proper for Visionscapes to regard this part of the contract as being abandoned, and appropriately reduced the amounts owing to take account of the work to be performed in this regard. There does not appear to be a real dispute about the quantum of the deduction. Further, in cross-examination, Mrs Weidmann effectively conceded that they did not want Visionscapes to do the work in respect of the veranda in any event.

Pool Coping and Tile Band

25.            Mr Carlisle’s evidence was that because the old pebbled coating at the top of the pool was up to and just under the old tiling that was removed by Visionscapes to be replaced by new tiling, it was inevitable that the old pebble coating would be damaged by any careful removal of the old tiles. Carlisle’s evidence was that it would be the industry practice that the cost of — replacing the pebble coating or laying a tile band is a matter for the owner in respect of their preference in remedying this unavoidable damage. In the end, it is a matter of industry practice whether this ought to be done. The evidence of Mr Wilson of Prestige Pools was to the effect that the persons removing the tiles ought to be responsible. However, his own final statement dated 12 November 2008 [Document 4, Amended Defence] shows that the pool coping and tile band was quoted separately from the other work, which would indicate that it would be a further matter for quotation and approval by the contractor. Mr Carlisle’s evidence in this regard should be accepted, and this aspect of the counterclaim dismissed.

Remove Old Drain and Dig Out Garden

26.            This is related to the issue whether the garden was included or not. This has been discussed above.

Handover Costs — Water to Fill Pool

27.            These items appear to relate to the draining of the pool in order to perform the work in respect of the tile band. Insofar as it is submitted that Visionscapes is not responsible for the pool coping and tiling, then it would not be responsible for this aspect of the claim.

Disconnection and Reconnection of Air Conditioning System

28.            This is a matter of whether it would be part of the contractor’s responsibility to reconnect these. Mr Carlile’s evidence was that it was not their obligation. This ought to be accepted.

Tile to Front Step

29.            This is an issue as to whether the contract provided for a tile to be provided at the facing of the front step or not. Mrs Weidmann asserts that the contract was for all step facings to be tiled. Mr Carlisle asserts that it did not include the front step, only the area to be paved, ie. within the boundaries. It would seem natural that the area to be paved and any steps within the boundary would need to have the front tiled, but would not necessarily include the front step nor the step to the laundry, as when you step to the house. This ought to be dismissed.

Remove Old Tiles, Dump Fees, Supplying and Laying New Tiles, Dirty old Concrete, Handover Costs

30. This goes to the issue of the complete removal of the tiles as laid by the Applicant, the dumping of all the old tiles and the relaying of tiles and pulling up the concrete to account for unlevel concrete.

31.            The Applicant posited a reason for the tiles being found to be “drummy”. That is, the method of laying by using conduit pipes to level the mortar base for the tiles, when removed it would create small spaces which would yield the drummy sound. Mr Carlisle also did mention in passing in evidence that he was told that there was a possibility that maybe the tiles themselves could give a drummy sound. However, this was not pressed in cross-examination of the expert witnesses and was merely a suggestion on Mr Carlisle’s part.

32.            It is contended that the expert evidence was that the tiles were in fact drummy due to lack of adhesion. It is submitted that the evidence of Mr Ross should be relied on, in which he stated that the reason for the lack of adhesion was due to the lack of control joints within the tile expanse. As Mr Ross explained, lack of the control joints caused the tiling to expand when concrete tends to contract, thereby causing a lack of adhesion. His evidence that the method of laying of tiles as Visionscapes laid the tiles was common practice, ought to be accepted. It cannot be said that the methodology in laying the tiles itself was flawed; the error was in not providing control joints as required by the standard.

33.            Where the evidence of Mr Volpato conflicts with Mr Ross (if any), it is submitted that the evidence of Mr Ross should be preferred as the only truly independent expert. The partisanship of Mr Volpato can be seen from his oral evidence about removing all the paving is significantly different from his written report (removing paving only “where required”). Whilst his oral evidence ultimately conforms with Mr Ross, the change, it is submitted, shows a willingness to take on the Respondents cause when giving evidence on their behalf.

34.            It is conceded therefore that the tiles would need to be removed. It was conceded by Mr Carlisle in evidence that it would be unlikely that any tiles removed would be salvageable (a quite proper admission on his part, despite it being contrary to his interest).

Rectification at Third Party Rates or at the Cost of the Builder?

35.            This issue poses two questions:

(i) did the contractor unreasonably refuse to perform rectification work, giving rise to unlawful termination of the contract and engaging others in remedying the defect? or

(ii) was it the Respondents who improperly refused the contractor to perform the remedial work?

36.            First, it is clear that the Applicant considered that all works were finalised as at 21 December 2007. It is also clear that a BSA Form 3 was not provided with Mr Chandler on 2 1 December 2007 for consideration by the Respondents.

37.            On 4 January 2008, an email from the Respondents required further work to be done. First, it raised the issue of the tiles and reiterated the Respondents’ assertion in this case that the tiles were still to be selected. In light of the above, it can be seen that this is merely a reiteration of their case at that time, rather than the actual facts that arose prior to the agreement. Further, the email required some further minor works to be done.

38.            On 4 and 16 January 2008, letters of demand were sent in respect of the amount owing. No mention was made of performing any further work in relation to the contract.

39.            By letter dated 1 February 2008, (document 16.1, Ex.4) a letter from the solicitors for the Respondents was sent, essentially denying that the Respondents were liable to pay any moneys to the Applicant, and reserving the Respondents’ rights in respect of the contract generally.

40.            By letter dated 18 February 2008, (exhibit “RPC7” to the affidavit of Carlile, Ex. 2) the Applicant openly offered a means to effect completion of the - contract. It offered that a joint expert be appointed to determine what work needed to be done or remedied and that the Applicant would perform the work in accordance with the jointly appointed expert. It further provided that the sum of $31,347.50 would be paid immediately and for the balance to be paid only upon completion of the work in accordance with the supervision of the expert.

41.            By letter from the solicitors for the Respondents dated 25 February 2008, (“RPC7” to Carlile, Ex. 2) it stated that instructions would be sought, and that they would revert to the Applicant’s solicitors. It appears from the evidence of the Weidmanns that the instructions to their solicitors in respect of this matter were then terminated. It is also clear that no further response was made specifically to the offer dated 18 February 2008.

42.            A complaint was made by the Weidmanns to the BSA and in April 2008, an inspection was performed by Mr Ross. Prior to the inspection, a letter was sent from Visionscapes to the inspector, setting out their response to the matters complained of by the Respondents (exhibit 23). Whilst Mr Carlisle did not attend at the inspection, he sent his accounts representative. In this regard, it must be noted that at no stage up until this inspection had Mr and Mrs Weidmann offered anything by way of payment of the moneys outstanding pursuant to the contract in return for their requirements for work to be done to rectify any defects.

43.            The provided its report on or about 24 April 2008, and also wrote to the parties in respect of a proposal (as usually is done, apparently) for the disputed moneys to be paid into the BSA Trust Account, and for work to be performed in remedying the defects (Ex.23).

44.            By letter from the Respondents to the Applicant dated 28 April 2008 (document 7, Ex. 14) they merely required the Applicant to perform rectification work and gave no indication of any moneys owing under the contract being paid.

45.            By letter from the Respondents to the Applicant dated 11 May 2008, the Respondents said they were proceeding to have others perform work.

46.            By letter from the solicitors for the Applicant to the Respondents dated 14 May 2008 (document 17, Ex.14) the solicitors, apparently unaware of the Respondents’ letter dated 11 May 2008, demanded payment of the amount owing.

47.            By letter from the Respondents to the applicants solicitors (document 18, Ex.14), the Respondents confirmed, inter alia, that they were engaging other contractors.

Analysis

48.            Whilst it is true that on 21 December 2007 and at any time thereafter, the BSA Form 3 Certificate of Practical Completion had not been provided or attempted to be served on the Respondents. However, the letter from the solicitors for the Applicant dated 18 February 2008 was:

(i) not inconsistent with the contract but merely a means to give effect to the contract;

(ii) proposed a further agreement by which to proceed under the contract, if accepted, which would have constituted a variation of the contract; and

(iii) indicated, irrespective of whether the offer to achieve completion, the willingness on the part of the Applicant to complete the contract in accordance with the terms of the contract (impliedly also including the requirement to comply with provision of BSA Form 3 and any other requirements under the contract to enable the contract to be completed, as would be implied in any contract)’.

49.            The emails from the Respondents dated 4 January 2008 and subsequently were insisting on rectification being performed by the Applicant, but did not indicate that moneys owing were to be paid. It is submitted that in light of the letter of 18 February 2008, it cannot be said that the Applicant was seeking for payment of moneys contrary to the terms of the contract, and, especially now that the Respondents have conceded that the moneys are prima facie owing, it can only be seen that the Respondents at that time were requiring the Applicant to remedy the work whilst at the same time the Respondents were refusing to pay any moneys outstanding under the contract, as may be validly claimed for work that was performed.

50.            A comprehensive consideration of the relevant authorities in respect of the above issues has been set out in Martin v Cahill2, analysing similar issues to those set out above. A caveat would be that the General Conditions of the Contract were different from the present, thus the discussion concerning deemed completion does not apply.

51.            It is submitted that at no time in January, or indeed even in accordance with the letter from the Respondents’ solicitors dated 1 February 2008, that the Respondents purported to terminated the contract for the Applicant’s alleged repudiation; nor did the Applicant.

52.            It is therefore submitted that by virtue of the letter dated 18 February 2008, the Applicant affirmed the contract, and was also expressing his intention to comply with the terms of the contract and impliedly any requirements to enable the Respondents to obtain the relevant BSA Form 3 etc. in return for the Applicant’s entitlement for moneys payable. The implied term referred to above could more readily implied due to the fact that at the time of the making of the offer, both parties were legally represented and thus it was intended that the legal requirements would be met.

53.            The contract remained on foot, it is submitted, until the Respondents terminated the contract by letter dated 11 May 2008 to the Applicant [Document 8, Exhibit 141. That letter states that the Respondents will be engaging another landscaping company to complete the project, which constitutes a termination of the contract.

54.            It is submitted that the letter of 11 May 2008 constituted an unlawful repudiation of the contract and the Respondents were not entitled to rely on the Applicant’s refusal to attend to rectify the defects, because the Respondents were requiring the Applicant to perform rectification work without the Respondents indicating a willingness to cooperate to enable the Applicant to be paid for the outstanding moneys under the invoice.

55.            In Botros v Freedom Homes Ply Ltd3, it was said at [8] (per McPherson JA):

“A contracting party is not entitled unilaterally to impose on another parry conditions of a kind for which there is no contractual warrant or authority.”

56.            It was found that insisting on such a unilateral requirement entitled a builder to terminate the contract.

57. Here, whilst the Applicant did not terminate the contract in light of the Respondents’ insistence on his performing rectification works without being paid the outstanding invoice, the Applicant was entitled to wait for the Respondents to conform with the contract and offer all necessary means to enable payment, in return for which requiring him to remedy the work, as the letters of demand were directed.

58.            The Respondents’ failure to tender payment or satisfactory payment is more marked in light of the BSA letter (Ex. 23) proposing a means for payment to be achieved.

59.            Accordingly, the Respondents were not entitled to terminate the contract on 11 May 2008.

60.            As set out in Martin, the authorities indicate that if the owner wrongfully refuses the contractor to rectify the works, then the respondent’s claim for rectification is to be assessed on the cost to the contractor in performing those rectification works, rather than the cost payable to third parties to remedy the work.

61.            Accordingly, the costs of rectification should be as set out in Exhibit 24, as evidenced by Mr Carlisle. Despite Mr Wilson’s statement that his mark up/premium was much less than 50%, Mr Carlisle gave evidence of his premium being 50% and there was no evidence to the contrary about his premium. In any event, looking at Exhibit 25, on the Respondents’ methodology of ascertaining the Applicant’s costs and taking into account Mr Carlisle’s correct calculation in respect of those figures (allowing for own cost figures rather than cost to client), Mr Carlisle arrived at a figure close to his calculation of $25,900. Accordingly, it is submitted that the Applicant’s assessment of $25,900 being the Applicant’s costs of performing the rectification ought to be accepted.

62.            It is therefore submitted that the Applicant should be awarded judgment in the sum of $33,407.82 calculated as follows:

o        (i) Claim $60,468.50

o        (ii) Less repairing façade 500.00

o        (iii) Less reconnection of air conditioners 660.68

o        (iv) Less rectification at contractor’s cost 25,900.00

o        (v) TOTAL $33,407.82

Rectification by Third Parties

63.            If, however, the Tribunal does not accept the above submissions and considers that the Respondents were entitled to have third parties remedy the defects, it is submitted that the entirety of the Respondents’ claim in that regard should not be wholly accepted.

64.            Prestige Pools has charged the Respondents $200 per square metre in the supply and laying of paving. In that regard, the evidence of Mr Carlisle that the cost of supply and laying of the particular sandstone tiles would be - approximately $100 per square metre, ought to be accepted.

65.            Notwithstanding that Mr Wilson in his statement dated 14 November, 2008 said that his sandstone tiles were equivalent to the Edenstone paving tiles laid by the Applicant, it is clear from his evidence that the sandstone paving ultimately laid was more expensive than the usual sandstone paving.

66.            Mr Wilson did not directly answer questions as to how much it would cost to acquire and supply those tiles, as distinct from the cost of laying them. This evasion can innocently be attributed to the possibility that Mr Wilson considered that information to be commercially sensitive, and did not wish to divulge that information in an open hearing. However, it was clear from his evidence that the sandstone paving he used was of the highest quality. He was at pains to explain that the sandstone he used was stronger and was obtained from the deepest part of sandstone excavation, and thus more expensively extracted.

67.            Whilst the Respondents cannot be criticized for re-laying the area with a very expensive paving, it cannot be said that the contractor ought to be responsible for the entire cost. The contractor would only be liable for re-laying with a comparable tile. Given Mr Wilson’s statement that in February 2008 that the tile he was then contemplating laying was of equivalent cost to Edenstone payers, the Applicant’s evidence of the cost of supplying Edenstone payers and laying at $100 per square metre is therefore the appropriate figure to calculate the cost of supply and laying of the replacement paving.

68.            Accordingly, the Prestige Pools quotation ought to be reduced in the sum of $28,000.

69.            The costs of coping and tiling around the pool, emptying the pool and refilling it have been addressed above as items which, it is submitted, ought not be recoverable from the Applicant.

Response to the Respondents’ submissions

70.            The Respondents assert in their submissions that there has been a “failure of consideration”. If that is asserting a total failure of consideration then this is patently unsustainable since part of the work covered under the contract (demolition of the veranda, removal of the original payers and the laying of concrete) has been performed.

71.            It appears the Respondents are resiling from their admission the sum claimed by the Applicant (subject to the counterclaim) was owing. Given the Applicant gave up the alternative course of claiming a quantum meruit, the Respondents cannot now resile from the admission. As for the failure to provide the BSA Form 3 and other steps to claim for a final payment, this has been addressed above. As for the supervision issue, there is nothing in s.43 of the Queensland Building Services Authority Act 1991 which provides that non-compliance renders the contract i1legalvoid or unenforceable. As for the licence issue, it is clear from Ex 5 that the licence to the company was granted retrospectively for the reasons as explained by Mr Carlile and Ms Stupart. As for the description of when progress payments are to be paid and any alleged uncertainty, this is no longer an issue in light of the admission.

72.            The issue of costs should be a matter of submissions after the determination of the Tribunal. As for the Respondents costs, prima facie, they are not entitled to personal costs. This can be addressed at the appropriate time.”

Final submissions by respondents (in reply)

“This submission contains answers to Submission of the Applicant, dated 27 February 2009. The number of each paragraph corresponds to the Applicant’s submission.

1. No interest or costs are due because the contracts was not completed

2. The respondents conceded that $60,468.50 was the amount on the contract claimed by the applicant. We have not conceded that this amount is actually owed to the applicant.

(i) The totality of our claim is not diminished, because we never agreed that the $60,468.50 claimed by the applicant is owing.

3. Mr Carlile’s answers to two questions that he did not want to answer was, “Whatever Joy”, which is arrogant. It is noted that Mr. Kronberg does not contest out claim in the same sentence that Mr Carlile was dishonest and incompetent.

6. Mr Carlile’s assertion that the tiling/paving was to be to the boundary fence is correct. Mr Carlile did not do this for reasons unknown, and suggested a pebble garden to finish off the unpaved area. Any alternative to the area not paved was therefore the responsibility of Mr. Carlile.

7. 11 squared metres is 3.6% of the total area claimed by Visionscapes; which was not demolished, concreted, paved, or sealed. This amounts to: $3,351.72. This counterclaim should therefore not be dismissed, as this was incomplete work according to the contract.

8. $4000 was the “provisional” sum included in the quote of $24,000 for the top verandah, for wood repairs. This is documented in quote number 491, dated 7th August 2007. At the Tribunal hearing on Wednesday 11 February 2009, Mr Carlile undertook to bring in a breakdown of these costs the next morning, as he still did not have the figures with him. The next morning, he still did not have these figures. This was meant to cover any wood repairs that might become necessary because of water damage. No wood repairs were necessary.

9. This was discussed with Mr. Carlile before the contract was signed. There may have been wood damage due to water leakage. $4000 was allowed for this as “provisional”, according to quote 491 dated 7 August 2007. This conversation was exactly described by Joy Weidmann.

10. Mrs Weidmann has not mistakenly attributed any conversations to anyone other than the three prospective landscape companies that she sought quotes from. Her recollection of these conversations is quite clear, and should be preferred by the Tribunal.

12. Mr Carlile’s evidence that some of the verandah rails were left in place as a safety measure is obviously absurd. The rails would not have provided any safety at all. Why only leave some of them. This item was not “insignificant”, as claimed by Mr. Kronberg. As the new fence contractors took some tome and effort to remove it, so that they could install the new fence. This is therefore incomplete demolition according to the contract.

13. Mr Carlile’s evidence was again absurd. Removal of old glue and old nails is obviously part of demolition, not rebuilding. Mr Carlile clearly did not want to do this work, which was within the terms of the contract.

14. Just because the ceiling contractors did not complain about having to remove glue and nails (work which was obviously demolition, not new work) does not mean that we did not pay extra for this work. The new sheeting and painting was all inclusive with the painting of the whole house. The work was time consuming, and we were charged accordingly.

15. This statement is incorrect, as clearly given in evidence. Quote 491 includes 40 metres of Everhard drain. 26 Metres of this was along the side boundary. Mr Carlile installed black with no consultation whatsoever. Mr Carlile said he liked black. We said we did not. Visionscape’s website advertises colour and design consultations. He was not even aware that the drains come in 5 colours.

16.            This statement is incorrect, as given in evidence.

17. Obviously the sealant had to be re-applied as all the pavers had to be re-laid. The sum charged in invoice number 491 was $4,290.00. This sum is significant. This claim should therefore be accepted by the Tribunal.

19. Visionscape’s disconnected the gas cylinders in order to concrete and pave beneath them. Therefore, they had a responsibility to reconnect them.

20. If Visionscapes admits responsibility and it cost so little, why wasn’t this done?

21. The waterproofing was shown to be defective. The upstairs area was therefore not waterproof. There is no such product as sealant paint, which again confirms Mr. Carlile’s lack of understanding of his own industry, and his capacity to come up with meaningless and dishonest excuses. Waterproofing is not a hit and miss business. It was vital to the top verandah. It was not trivial and cost us $1,650.00 to repair. The last sentence does not make sense. Waterproofing and tiling are two separate trades.

22. Visionscapes did not wish to complete the upstairs work, but there was never an agreement with us not to proceed. This was a unilateral decision by Visionscapes. By refusing to carry out this work without agreement of both parties, Visionscapes was in breach of the contractual works.

23/24. This was clearly covered in evidence. Mrs Weidmann did not say she had

a group of tiles on the table. She had a sample. Mr Carlile was given this in order to check out the quality. He did not get back to us. A choice was therefore not made. An agreement not to proceed with the upstairs tiling was never made. If Visionscapes felt that a choice of tile had been made, why was it not delivered and laid? Mr Kronberg’s statement that Mrs Weidmann “effectively conceded” that they did not want Visionscapes to do the top verandah is quite incorrect.

25. Mr Carlile’s evidence that to repair the damage to the pool is no industry practice is incorrect. His statement is not believable and was not supported by any other evidence. Mr Carlile is again a dishonest witness. Mr Willson said that the pool coping can be removed without damage by someone who knows what they are doing. The quote Mr Willson of Prestige Pools and Landscaping does not suggest any reason that this cost should not be allowed in the counterclaim.

27. If Visionscapes is responsible for damage and repair to the pool, then it would follow that it is also responsible for refilling the pool water. This damage was preventable, as given evidence by Mr Willson, so the costs of any rectification and restoration should be covered by the contractor.

28. Visionscapes disconnected and removed the large air-conditioning unit before commencing work as they need to concrete and pave beneath it. It would therefore follow that reconnection at the end would be part of the contracting process. It is not logical to suggest otherwise, and this cost should be allowed in the counterclaim.

29. All other areas with steps had the vertical part tiles. There is no reasons why one small area should be overlooked, and this cost should be allowed as part of the counterclaim. This is incomplete work.

31. The matter of the drummy tiles was clearly covered in evidence by the expert witnesses. Mr Carlile was not able to establish any alternative cause for this, it was show that drumminess is due to lack of adhesion of the tiles to the substrate, ad is clearly the result of defective workmanship.

32. This was not the expert evidence of Mr Ross. He did not say that drumminess is due to lack of control or expansion joints. This is a separate issue. He clearly stated that drumminess is due to a lack of adhesion between the tile and the substrate.

33. There was not material difference in the evidence given by Mr Volpato and Mr Ross. All experts were agreed that the work was defective, had to be removed, and had to be replaced.

35.            (i) The contractor was not only refused to perform rectification work, but refused to even look at the work, admit that the work needed repair or turn up to the BSA inspection. He only wanted his money

(ii) The respondents never at any time refused the contractor to perform remedial work.

36. Mr. Chandler was not qualified to be supervisor and therefore was not qualified to issue a BSA Form 3 on completion. This final inspection and form should have been completed by Mr Carlile.

40. This letter proposed that monies paid both to Visionscapes and the balance to his solicitor. By already having obtained an independent report, (as well as a report from the BSA, as Mr Carlile suggested in his emails), the Respondents have more than reasonably responded to this proposal. The ABIS report was completed on February 15 2008, and a copy was forwarded immediately to Visionscapes. There was still no response. Therefore, Visionscapes did not feel bound by these reports.

41. The Respondents have clearly provided a reasonable response to the Applicant’s proposal. The proposal was not ignored.

42. The letter referred to here was not admitted as evidence, and should therefore be ignored. The respondents had never seen this letter before. Mr Carlile should surely have recognised the importance of being at the inspection himself. However, he was only interested in the money, and therefore sent his accounts representative.

43. We were in daily contact with the BSA, who advised us not to pay anything further if we were quite sure that the work was incomplete, and there were major defects and not minor, according to the contract. The BSA’s letter of 23 April 2008 determined that the costs of rectification exceeded the money owed by 50%. It also stated that this arrangement depended upon an agreement between both parties on work to be rectified and amount owing. No decision-maker on behalf of Visionscapes participated. The letter also states that use of the fund is only recommended if these conditions could be met. Therefore, this did not proceed because of a lack of participation by Visionscapes.

44. It went without saying that once work was complete, and defects rectified, that money would be paid in full.

46. The letter of 14 March 2008 (doc 17, exhibit 14) only demands money, with no reference to any rectification or completion.

48. Refer to paragraphs 40 and 41 above. A BSA form 3 had still not been received. In evidence, Mr Carlile did not know what a Form 3 was.

49. According to any contract, payment is only owed once work is completed, inspected and agreed upon by both parties.

50. There is no resemblance between this case and Martin vs Cahill. Firstly, the Respondent in Martin vs Cahill denied access hindered and obstructed the Applicant during the defects liability period. Secondly, the Respondent terminated the contract unlawfully during the defects liability period. In our case there was no defects liability period, as the completion/defects document 3 had never been presented. The defects liability period had therefore never commenced.

52. Mr Carlile never expressed his intention to comply with the terms of the contract or to produce a BSA form 3. Right up until submissions to the Tribunal, Mr Carlile kept insisting that his work was “100% perfect”. In evidence, Mr Carlile did not know what a Form 3 was. He provided no reasonable explanation for his failure to produce such an important document despite ample opportunities to do so.

54. As the Member said in Martin vs Cahill, “As long as the contract remains on foot, and has not been terminated, the builder remains under obligation to complete the work in accordance with the contract”. We allowed him to fulfil his contractual obligations until out letter of 11 March 2008. It is true that we were unwilling to pay more money. This was because we were always more than aware that substantial rectification work at significant cost would be necessary, and because Mr Carlile had refused to speak to us since early December 2007.

57. Mr Carlile issued a final invoice two days before walking off the job on Friday 21 December 2007, thereby exhibiting an unwillingness to continue to perform the works pursuant to the contract. It is submitted that Mr Carlile breached the major works contract by leaving the sight, refusal to issue a document 3 and by issuing a final invoice. It is stated in Martin vs Cahill para 112 “ I accept the respondent’s submission that the Applicant must satisfy the requirements of the contract and section 67 of the DBC Act 2000 to demonstrate an entitlement payment of a final progress claim”. There is no evidence to suggest that MR Carlile has complied in any way with the requirements of Sections 67 (4 and 5) of the DBC Act 2000.

58. Mr Ross gave clear evidence that the BSA’s mechanisms could not be used as Visionscapes did not have a decision-maker at the inspection and therefore no agreement between the two parties could be reached.

60. This reference by Mr Kronberg is not applicable in this case, as we did not refuse to allow the contractor to complete or rectify the works.

61. Mr Carlile’s figures were clearly shown in evidence by Mr Willson to be flawed and completely unrealistic for the major work that was involved. The figures were markedly underestimated. The Tribunal should therefore accept all of the figures indicated by Mr Willson, and provided in evidence by the Respondents on the last day of the hearing.

62. The figures are all rejected by the Respondents. The full costs of rectification and completion, as submitted, should be accepted. This amount is $94,624.99.

64/65/66/67. In Visionscapes’ original quote 491 scope of works, the cost for supply, lay and sealant of the pavers was $230.50 per square metre. He quoted $86,020.00 less $20,000.00 for the concrete. Therefore, supply and lay and sealant come to $230.50 per square metre. Therefore, Mr Carlile’s suggestion of $100 per square metre was grossly unrealistic. The difference between the two products is not significant, as we know that the shelf price in tiling shops is very similar. The Tribunal should accept all of the rectification costs provided by Mr Willson.

68. It is submitted that all of the costs given by Prestige Pools and Landscaping in their quotation are commercially quite realistic, and should be allowed by the Tribunal.

69. See Paragraph 27 above.

70/71. The transcript will show that both Respondents clearly stated that we accepted the figure was the amount being claimed by the Applicant, but we did not agree that this figure is actually owed to the Applicant. We have never denied that some of the work undertaken by Visionscapes that was able to be retained should be paid for. We have paid $65,805.00 to date. The estimated cost of work completed and retained is $39,199.55 (See page 4 of Respondent’s Amended Defence of 28 November 2008). The rectification and completion of works came to far more than the $60,468.50 claimed by Visionscapes. As for the supervision issue, many proven defects and incomplete work are indicative of Mr Carlile having failed to appropriately and personally supervise the performance of the works. The QBSA Act 1991 Section 43 does state that it is unlawful for a licence contractor to not personally supervise the building work. Mr Carlile admitted in the Tribunal that he did not supervise the work and no one knew who the supervisor was.

72. The respondents reserve their right to make a submission for costs, once a determination had been made by the Tribunal.

In conclusion, at no time did Mr Carlile admit that there was work to be rectified or completed. We waited until 11 May 2008 for Mr Carlile to talk to us. We then waited another month before signing a contract with Mr Murray Willson. Throughout the project we had serious doubts about Mr Carlil’s abilities, knowledge of building works, understanding and compliance with the legislation. His emails said he asked for meetings, and we were available almost everyday to consult or speak with. We just wanted him to speak with us about how he would deal with the outstanding contractual issues. We paid him $31,405.00 before he even started work. We are now significantly out of pocket to complete and rectify works. Mr Carlile and Visionscapes should be held fully responsible for these costs.”

Decision

1. Unpaved areas

7.               The respondents asserted that paving was quoted for 305 sq meters with the intent that all areas bounded by the pool, house and fences be paved. The respondents stated (unchallenged and supported by photographs) that an area of 11 sq meters near a side boundary was left unpaved, the applicant having constructed an irregularly shaped garden bed in the area edged by a black Everhard drain.

8.               Mrs Weidmann’s evidence was that, when the area was being prepared (including the black Everhard drain) she had objected, particularly to the black drain, a colour about which, she said, she had not been consulted. She said that Mr Carlile’s response was to the effect that, when the work was finished, she would like it.

9.               Mr Carlile’s statement (exhibit 2) at page 7 refers to the item as “paving to be replaced with gravel”, to which he then noted that this was not a part of the contract. In oral evidence Mr Carlile said that he could not recall Mrs Weidmann stating, prior to contract, that she did not want any garden beds.

10.            In my view it is apparent from the evidence that a disagreement arose as to what the applicant had constructed in this area, namely the garden beds and the black Everhard drain. Further, the evidence establishes (but, in any event, I find) that neither of the respondents had given any direction or instruction to the applicant as to the works constructed by the applicant. Further, Mr Carlile said that, because of the respondents’ dissatisfaction, he proposed that he would construct a pebble garden bed in place of the garden bed that he had in fact constructed, notwithstanding that he had not quoted for it, and would not charge for it.

11.            As to the pebble garden proposal, Mrs Weidmann said that, once the paving had been laid wrongly, then the respondents had no choice but to have a pebble garden. It is common ground that no pebble garden was, in fact, constructed by the applicant.

12.            The contract reference to the description of the works is:

“As per quotation number 491 landscaping to the property as specified in quotation.”

13.            It appears common ground that the quotation, referred to in the contract, is that which is attachment “RPC2” to Mr Carlile’s statement (Exhibit 2). It seems to me what is clear is that –

o        (a) The contract and quote were both prepared by the applicant. They are the applicant’s documents and should be so interpreted.

o        (b) The applicant had not had prepared any plan for the works to be performed.

o        (c) The applicant’s quote refers variously to –

§     305sq m of paving.

§     “all concrete and pavers to be laid to correct heights for drainage purposes”.

§     Everhard drainage system to be used along fence line...

§     Also at rear of property along fence line as discussed at site meeting.

§     Lower pool area to catch water run off.

14.            From the above I conclude that what was intended from the quote was that –

o        the Everhard drainage system follow the fence line; and

o        the concrete and pavers fall towards that drainage system.

15.            It seems to me that that would suggest that the concrete and pavers must abutt the Everhard drains which would mean that the concrete and pavers were to extend to the fence lines. That, of course, does not allow for any garden beds which, accepting, as I do, Mrs Weidmann’s evidence in this regard, were unsolicited, and certainly not agreed.

16.            So much is corroborated by Mrs Weidmann’s evidence, namely that it was agreed that the concrete and pavers would extend to the fence lines, including in the area subject of the applicant’s construction of the garden bed. Indeed, Mr Carlile’s statement (exhibit 2) at item 3 suggested that the paving 9 sq meters was to be replaced with gravel, presumably the pebbles, the gravel not being part of the contract. The corollary, it seems to me, is that the 9 sq meters of paving was part of the contract.

17.            In any event, I prefer and accept the respondents’ evidence on this matter to that of the applicant, where there are inconsistencies. I find that the contractual obligation of the applicant included the obligation to pave that area taken up by this garden bed, and that any attempt at compromise by way of the pebble garden was just that, namely an attempt, and had not been finalised. In such circumstances the applicant was in breach of the contract, with the respondents being entitled either to a reasonable allowance for works not performed and left uncompleted, or damages for breach. To have both would, in my view, amount to double recovery by the respondents.

18.            However, the respondents, in their counter-claim, have sought, firstly, a deduction of $3102.00, and secondly, the cost of removing the pavers laid by the applicant and having new pavers/tiles laid by a Murray Wilson of Prestige Pools. As I understand the respondents’ evidence, and that of Mr Wilson, it was that Mr Wilson laid his pavers up to the boundaries of the property, replacing the garden bed and the black Everhard drain installed by the applicant.

19.            Given that Mr Wilson’s works were undertaken for various reasons to be referred to later, it seems to me that recovery of the costs of Mr Wilson’s works, as above, would provide the respondents with the full benefit, for which they had contracted with the applicant. Given then my later findings in respect of Mr Wilson’s works, the respondents’ counter-claim for an allowance for incomplete contractual works must be denied.

2. Sealant

20.            In respect of this item the respondents claim the costs of the sealant for the 11.1 sq meters of pavers (the garden bed) not laid by the applicant. As to that contractual issue, I rely upon my findings in respect of the preceding item.

21.            However, as with the previous item, there is no allowance for (indeed, no evidence as to the subsequent application of) any sealant. Accordingly, there can be no suggestion of a doubling up of this claim.

22.            There was no challenge to the rate claimed at $14.06 per sq meter, which apparently had been calculated by the respondents from the applicant’s quote. Accordingly, I consider that rate reasonable for use in calculating an allowance in respect of these works, contracted but not undertaken. I allow the respondent the amount of $154.66 on account of this item.

3. Wood repairs

23.            This is expressed in the amended counter-claim as being –

“Wood repairs to verandah quoted but not needed. Was listed but not itemised in quote.”

24.            The claim is for $4,000.00. In cross-examination Mrs Weidmann explained the claim as being based upon a statement by Mr Carlile that he had allowed in the quote, supposedly as a provisional sum, an amount of $4,000.00 to repair water damaged joists to the top level verandah, if that was needed after the flooring had been pulled up. Apparently, no such works were required. Mrs Weidmann agreed that the provisional sum amount was not referred to in the quote.

25.            Indeed, the only reference in the quote to a provisional sum amount for the upper level verandah makes no reference to being on account of water damaged joists, but on account of other matters, not particularised in respect of each item in money terms. To permit the inclusion of such a term, consistent with this item, would be to alter, in a significant sense, the finality of a written record, and to allow that record to be disturbed by oral testimony. In this instance, I consider that the written record should stand, and the evidence as to an alleged further term be excluded. Accordingly, the respondents’ claim under this item is dismissed.

4. Incomplete demolition upstairs

26.            It is the evidence of both parties that one panel of railings were left to the upper level verandah, Mr Carlile stating that this was for safety purposes. Further, glue and a quantity of nails (some having been removed) had, on Mr Carlile’s evidence, been left in the verandah ceiling for the following trade, responsible for installing the new ceiling, to remove as part of its works.

27.            As to the railing, the applicant accepted that this amounted to incomplete work, although considered that further removal work required would be minor. As to the glue and nails, in my view demolition of the upper verandah works included, and required, not only the removal of the ceilings, but also that which fixed those ceilings in place, that is to say, the glue and nails, leaving only that which was to be retained. Indeed, Mr Carlile said that the applicant had, in fact, removed a quantity of nails, evidence which, in my view, supported the contention that this was, in fact, part of the applicant’s contractual obligation. Nonetheless, as I have noted, I reject the notion that the removal of the glue and nails were not part of the applicant’s contract works.

28.            The respondents point to the fact that $7,000.00 was allowed in the quote for demolition. The respondents then apparently estimated the cost of demolishing the railings at $1000.00. The respondents, of course, are not qualified to assess the actual costs of having these works performed. Indeed, in respect of the removal of the glue and nails, it was Mrs Weidmann’s evidence that the subsequent tradesman, responsible for the installation of the ceiling, performed these works, although did not particularise the cost associated with such work. That, of course, would have been an opportunity for the respondents to have quantified the actual costs of having these incomplete works completed.

29.            As to the railing, Mr Carlile’s evidence was that it would have taken about one hour to pull down the railing. I accept that evidence, although no cost was provided. Simply, I am not prepared to accept the respondents’ unqualified, and therefore uncorroborated, evidence that a reasonable cost for these works was $1000.00. The damage then suffered by the respondents in respect of this item remains unquantified. The claim is, therefore, disallowed. That must also be the case in respect of the glue and nails.

5. Black Everhard drain

30.            This drain was laid, in part, along the tiled edge of the garden bed which was subject of a previous item, and then, at the end of the garden bed, along the fence on the boundary. I prefer and accept (to the extent that the applicant’s evidence may have been inconsistent) Mrs Weidmann’s evidence that –

o        She had not been consulted as to the colour of this drain

o        The black colour of this drain was not to her liking and was unacceptable

o        The applicant actually had on its website five available colours for this drain

31.            Through its website the applicants referred to the choice of colours available for the subject drain, a choice that was not extended to the respondents before this work was performed. The contract, prepared by the applicant, was silent as to the colour of this drain. Further, as appears from the photos in evidence, this drain was a significant feature of the works, with its colour likewise being of some little prominence aesthetically.

32.            The applicant failed to seek a direction/instruction from the respondents, as principals, upon a matter which clearly required the respondents’ decision, namely, the colour of this drain, in circumstances where the applicant could have, and should have, sought such direction/instruction.

33.            The applicant was under a contractual duty to co-operate with the respondents in order to provide the respondents with the full benefit of this contract. In my view, that contractual duty included seeking directions/instructions from the respondents on matters, upon which the contract was silent, and which was a significant feature of the works, and not to make a unilateral decision. In doing so the applicant was, in my view, in any contract such as this, in breach of an implied contractual term to co-operate.

34.            The respondents made an allowance against the contract works for these drains in the amount of $3,207.05 based upon a pro-rata calculation with reference to the applicants quote for all of the drains.

35.            As with item one (the unpaved areas) this claim is subsumed in the claim in respect of Mr Wilson’s rectification works which, upon my understanding of the evidence, included taking up and replacing the drains to accord with the contract. Accordingly, for the respondents to recover in respect of these works by an allowance against the contract sum, and also to recover for the cost of Mr Wilson’s rectification works in restoring the relevant requirements of the contract, would constitute double recovery of damages for the applicant’s breach of contract. The claim then under this head of damage is denied.

6. Pool filter reconnection. 7. Gas cylinders reconnection & 12. Air conditioner reconnection

36.            In respect of each of these claims the applicant accepted the quantum of the claims but denied liability.

37.            These works were not mentioned in the contract documents, documents which were, as I have noted, prepared by the applicant. Nonetheless, as I understand the evidence, it is accepted by the parties that the disconnection of this equipment was effected by the applicant, and was necessary for the proper completion of the contract works by the applicant.

38.            In my view, if it was within the competence of the applicant to disconnect this equipment (that is, the applicant did not require the respondents to engage others for such a task), then, it seems to me, it was (without appropriate evidence to the contrary) within the applicant’s competence to reconnect the subject equipment.

39.            Accordingly, and presuming (as must have been so) that the applicant was aware, when quoting, that the subject equipment would have to be disconnected to permit the contract works to be performed, the disconnection works were, in my view, accepted by the applicant as a part of the contract works. To imply such a term must, it seems to me, equally enable a term to be implied (given no reference in the contract to the contrary) that that which is disconnected by the applicant will be reconnected, again as part of the contract works. In other words, that the subject equipment would be returned to the state it was in prior to the contract work commencing, and that which has been disconnected or dismantled for the purposes of the contract works, would be restored to its original state. Such a proposition, it seems to me, accords with the criteria for implied terms as set down in BP Refinery (Western Port) Pty Ltd V Shire of Hastings (1987) 52 ALJR 20.

40.            In the circumstances then, I consider that it was part of the applicant’s contractual obligations to have this equipment reconnected. As I have noted, the applicant accepted the quantum of these claims. The claims are accordingly allowed.

8. Damage to Facade

41.            The respondent accepted liability for these rectification works, including the cost of same at $550.00 (inclusive of GST).

9. Waterproofing

42.            This is a reference to the waterproofing of the top level verandah.

43.            Angus Ross, an inspector with the Queensland Building Services Authority gave evidence. Mr Ross had inspected the applicant’s works on 7 April 2008. His report is dated 16 April 2008 (exhibit 21).

44.            Mr Ross dealt with this matter at item 7 in his report in the following terms –

“Visual inspection noted as identified by owners, when viewed from beneath there is evidence of daylight through the sealing of the deck membrane the vertical posts in two places.”

45.            In cross-examination, Mr Ross identified the problem area as being near the posts to the verandah, where light is showing around the perimeter of the posts. Mr Ross said that further waterproofing needed to be installed.

46.            Mr Andrew Volpato, a building consultant with Australian Building Inspection Services, was engaged by the respondents to provide a report. His inspection took place on 15 February 2008. The applicant accepted Mr Volpato’s expertise. With particular relevance to this item, Mr Volpato noted on page 6 of his report –

“There is evidence of leakage at the junction of the two-storey columns and the western balcony (along the western edge) and minor fungal decay to the supporting timber frame. ABIS was not able to establish whether or not the recently installed tanking membrane is providing adequate waterproofing. There is however, evidence of water ponding against the metal edge strip and this will need to be rectified prior to tiling.”

47.            In his statement (exhibit 2) Mr Carlile referred as follows –

“This is a very minor matter which can be attended to in approximately 10 minutes.”

48.            In cross-examination, Mr Carlile stated that the waterproofing had been completed.

49.            I prefer and accept the combined evidence of Messrs Volpato and Ross on this matter, to that of the applicant, to the extent to which Mr Carlile disagreed that these works had not been properly completed. Such non-completion amounts to a breach of contract.

50.            The applicant agreed with the quantum claimed, challenging only the question of liability for completion of works not properly completed. The claim is accordingly allowed in the amount of $1,500.00 plus GST.

11. Pool Coping

51.            It was agreed that –

o        the applicant’s contract works included replacing the coping tiles around the existing pool;

o        in so doing, essentially unavoidably (according to the evidence of Messrs Ross in cross-examination and Volpato which I accept), the pebblecrete concrete finish below the coping tiles has been damaged and not made good, resulting in a gap between the pool and the tiles. According to Mr Volpato’s evidence, this gap could allow water to enter and undermine the coping tiles.

52.            Mr Ross in his report, at item 1, referred to the matter in the following terms –

o        there is evident un-repaired damage to the pool shell as a result of the removal of the existing pool coping;

o        the removal and replacement of the pool coping is an item included in the quotation, with installation of expansion joint where necessary.

...

(a) the damage evident to the pool bowl requires repair as part of the removal of the existing pool coping and replacement with new;

(b) installation of a tile band over the repaired area is not raised as an item in the contract document.”

53.            Mr Ross then identified the damage referred to in (a) above as being defective work requiring rectification, with the works in (b) above as not being defective building work, but being a contractual matter.

54.            Mr Carlile’s statement (exhibit 2) refers to item 1 of Mr Ross’ report as support for this item being “not part of the contract”. In cross-examination, Mr Carlile agreed that expansion joints were needed around the pool.

55.            Adam Chandler, described as the applicant’s on-site supervisor, provided a statement and gave evidence. Mr Chandler said that, when coping is removed to be replaced (such as was required by this contract), the removal of the coping tends to lift the adjacent pebblecrete coating around the pool shell. He said that, in replacing the pebblecrete coating, it would be hard to match, and that the area would have to be tiled. That was, in fact, the method of rectification adopted by Mr Wilson in his rectification work.

56.            It appeared to me that Mr Carlile’s position was that he had not quoted for tiling work to cover the pebblecrete that had been removed, when the coping had been lifted. Indeed, in a strict sense that is correct, as the applicant’s quote provides –

“Pool coping to be laid around pool. Expansion joint ....”

57.            However, I accept Mr Ross’ evidence (indeed supported by the applicant’s Mr Chandler) that damage to the pebblecrete of the pool in removing the existing coping was inevitable. Clearly then, the applicant (through Mr Carlile) should have been aware that damage would be caused to the pebblecrete which would require attention. Indeed, for a contractor to perform works which he knows, or should know, would inevitably and unavoidably cause residual damage, and fails to allow for rectification of such damage, to my mind, may amount to negligence, to which damages may attach. However, that damage does not, in my view, equate with the cost of the tiling works performed by Mr Wilson, although such cost might be relevant when assessing the quantum of that damage, in that it provides some indication as to the further works which would be required, including the nature of those works and any further necessary materials (in this instance the supply of ceramic tiles).

58.            However, given that the applicant’s quote did not contain any amount by way of tiling over the pebblecrete (which I am satisfied it did not, Mr Carlile appearing to be unaware of, or had overlooked, the inevitability of this damage), the respondents would have, in any event, incurred an extra expense associated with the tiling over the pebblecrete damage, had the applicant’s works been fully costed and the cost of the tiling included.

59.            The quantum of the respondents’ damage then is, essentially, any difference between having the rectification of the pebblecrete performed as part of the contract works, and the expense actually incurred by the respondents in having Mr Wilson perform those works at a cost of $7,000.00 plus GST. There is no evidence as to such a calculation. Accordingly, the respondents’ claim under this item (Mr Wilson’s cost of rectification) must be disallowed, insofar as it relates to the installation of the tile band.

60.            As to the water to fill the pool at $1,397.00 plus GST, it seems to me that this was a necessary expense and damage suffered by the respondents as a result of the applicant having failed to have these works performed as part of his contractual obligation to remove the old coping tiles and replace with new. I allow then the amount of $1,536.70 (inclusive of GST) to the respondents on account of this item.

Paving Works

Andrew Volpato’s evidence

61.            As noted, the respondents engaged Australian Building Inspection Services (Mr. Volpato) to inspect the applicant’s works and provide a report. Mr Volpato’s expertise to provide the report and give evidence was not challenged by the applicant. Mr Volpato inspected the works on 15 February 2008. His report was issued the same day. In his report, Mr Volpato noted the following about the workmanship involved with the applicant’s paving works –

o        drummy tiles were noted throughout the paved areas which is consistent with poorly mixed, poorly bonded or uneven mortar bedding.

A drummy tile refers to a tile that has not bonded to the substrate to which the tile is being adhered. When tested the tile produces a hollow sound, hence the term “drummy”;

·                  in several places tiling is uneven with a variation to the required plane of more than + - 4mm over 2 metres;

·                  no control joints were observed to the tiling. In addition, no expansion joints were observed along the perimeter. Allowance should have been made for settlement and expansion of the concrete base, especially along the base of the external walls of the house;

·                  mould was observed to be forming through the tile grouting, in the south eastern corner of the western balcony area. This is consistent with storm water run off accumulation (ponding);

·                  grouting deterioration and discolouration was observed at the northern end of the entry area (near the tool shed). Mould build-up was noted on the southern edge of the shed. This is consistent with storm water run-off accumulation (ponding). A grated drain should have been installed in this location.

62.            In his report, Mr Volpato recommended rectifying the defects in the tiling work, stating that the tiling should be lifted and re-laid where required to ensure the following are provided:

A.              construction joints installed to the concrete base and filled with an appropriate compressible sealant;

B.              the fall of the tiling to the drains to be corrected to avoid ponding;

                                  C.the tiling to be laid to avoid the height variation greater than plus or minus 4mm over 2m and with joints between tiles being consistent and not varying more that plus or minus 4mm over 2m;

                                  D.joint spacing and should be consistent over the whole installation;

                                   E.tiling should be well bedded in the mortar bed to avoid drummyness;

                                   F.control joints are to be provided in tiling above the control joints in the concrete base at 3m to 4.5m spacing.

63.            In oral evidence, Mr Volpato confirmed each of the problems with the paving identified in his report. Mr Volpato explained the method he used to check for the drumminess of the tiles, namely, using a “tapper” which is a rod with a plastic ball. He said that, if the tile is detached, an air pocket is created which results in a hollow sound. Mr Volpato said that the tile itself is not drummy. He said that he had tested the majority (all) of the tiles, and that 50 to 60 percent were drummy.

64.            Mr Volpato said that lack of expansion joints could be a contributing factor to the drumminess of the tiles. He further said that the pavers had not been evenly laid, the unevenness measured by plus or minus 4mm over 2 metres, not over 1 tile. He said that this unevenness caused a trip hazard, with the ponding identified in certain areas causing a slip hazard.

65.            As to the grouting, Mr Volpato referred to this as being of poor quality, having been eroded by water and foot traffic. He said that the grouting should be dense, so that it did not deteriorate over time.

66.            As to discolouration of the grout, Mr Volpato said that this would be through water absorption or a different type of grout mixture used, or a combination of both. Mr Volpato referred to the two options as being either replacement of some pavers or replacement of all of the pavers. Mr Volpato said that, because of the number of issues involved, breakages in replacing the tiles, and the cost involved in such an extensive process, the only solution would be replacing all of the tiles. He said that silicone injection was not a solution, because it was flexible and expanded and could still allow movement. Further, it could not be expected to address each area of drumminess.

Angus Ross’s evidence

67.            Mr Ross, as noted, is an inspector with the Queensland Building Services Authority. As with Mr Volpato, Mr Ross’ expertise was not challenged. Mr Ross attended the premises further to a complaint from the respondents to the Authority. Mr Ross inspected the works on 7 April 2008. His report is dated 16 April 2008. The applicant was represented at the inspection by an administrator from the applicant’s office. Relevantly, Mr Ross’ report notes –

Item 13 60 percent or more of pavers are drummy.

·                  approximately 50 percent of the laid pavers were tap tested for sounds;

·                  the percentage found to be “drummy” was estimated to be approximately 30 percent of the area tested.

·                  ...

·                  AS3958.1 – 2007, part 5.4.7 bonding notes – cases where more than 20 percent of the work is drummy, the work would have to be considered suspect over the long term.

·                  There are no movement control joints in any of the areas of the works.

·                  Movement control joints are to be carried through the tile and the bedding with the tile joint to be positioned immediately over the structural movement joint of the base slab as required AS3958.1 – 2007, part 5.4 – 5.1(c).

·                  There are no perimeter movement control joints to permit movement between adjacent building components as required by AS3958.1 – 2007, part 2.7.1 general.

·                  Movement joints required where any dimension exceeds 4.5 metres.

Item 14 Grouting is inconsistent with, depth, rough, three colours used.

Item 15 Grout falling out in places

Item 16 Water is seeping up through grouting in dry areas.

68.            Mr Ross said that he would have expected a decision maker for the applicant to have turned up for the inspection, rather than an administrator. However, as to drummy pavers, Mr Ross said that, of the 50 percent tested by him, approximately 30 percent were drummy. He said that this was in excess of the allowance in AS3958 which provided that, if more than 20 percent of the tiles were drummy, the whole of the tiling was considered to be suspect, and the works as a whole would be considered suspect. Mr Ross further said that, in terms of that standard, there was no factor in existence in this instance which could change the 20 percent ratio.

69.            Mr Ross agreed that a method of laying these pavers was on a wet mortar base. He said the important thing was that a sufficient bond be achieved. He said that a method of laying, as described in the evidence of Messrs Carlile and Chandler, that is the use of a conduit pipe, was a common method, but was unlikely to make the pavers sound drummy. He said the reason the pavers were drummy was because they had separated from whatever they were attached to. Mr Ross said that the tiles would not sound drummy themselves, if they had been well adhered, and if there were only small voids.

70.            Mr Ross considered that removal of all pavers was the best method of correcting the problems with these pavers. Indeed, when cross-examined as to the colouring of the grout (his answers referring to the need for the same ratios of mix, taken from the same “heap” and the same amount of water to achieve a uniform finish across the works), Mr Ross made the comment, that in assessing such problems during his inspection, he considered such problems to be somewhat academic, because all of the tiles would need to be lifted and re-laid in any event. Notwithstanding, Mr Ross said that, in so doing, re-use of the tiles/pavers could not be relied upon. He agreed that this effectively meant starting from scratch, as there were some issues with the concrete slab itself (for example, moisture), other than the expansion joints themselves.

Mr Carlile’s Evidence

71.            Relevant to this issue, Mr Carlile detailed the method that his company normally used in the laying of these types of pavers, namely, by including an adhesive (neats) in the cement mix used to adhere the pavers to the sub-base. Mr Carlile agreed that this was not consistent with the manufacturer’s recommendations for these pavers, but that he relied upon his own knowledge and experience gained from laying these types of pavers over some eight years. Mr Carlile said that he was not present when the paving works were performed, but that Adam Chandler was, and that, therefore, he, Mr Carlile, knew that the applicant’s laying procedures had been complied with, because Adam had performed the work. Mr Carlile agreed that he had not attended the inspection by Mr Ross, although said that he had never been given the opportunity to test whether the tiling was drummy. Nevertheless, Mr Carlile said that the paving was not drummy stating that the paving tiles themselves may have been drummy.

72.            Mr Carlile then appeared to propose rectification of those pavers which may have been drummy by drilling holes in the grouting and injecting silicone under the pavers concerned. Generally, Mr Carlile’s evidence about the paving was that it was satisfactory (he thought the works were of good quality and of an acceptable standard), and could be rectified (if required), in only small areas which offended, by lifting and replacing the tiles or, perhaps alternatively, injecting silicone beneath the tiles.

73.            I should note that in his statement (exhibit 2) at paragraph 32, Mr Carlile dealt with the report of Mr Ross and its allegation of drummy pavers in the following terms –

“The method of laying the pavers was 100ml reinforced concrete, 20ml wet bed (medium river sand mixed 4 to 1 with cement). Neats was then applied as an extra adhesive on top of wet bed for extra strength and durability. Then sand, cement and grout (white sand and ivory cement) applied by hand into gaps in pavers, then sponged off leaving joints smooth and pavers clean. Tracks were laid down in the wet bed on top of concrete for height indicators. Before laying the pavers tracks and conduits were pulled out, the filled with wet bed. Given the method of laying (and the fully filled in tracks) this will never jeopardise the job and the pavers will not come loose. There are movement control joints in the under concrete and expansion joints around the pool and the buildings. Paving did not start until the concrete slab had settled for a period of two weeks.”

74.            No comment was made by Mr Carlile in his statement as to whether, in fact, any of the tiles were drummy. It is to be remembered that Mr Carlile had not inspected the site, nor was he present when the pavers were laid. Notwithstanding, Mr Carlile costed rectification of the items raised in the Authority’s report at $8,899.00 including GST. He annexed a copy of a quote dated 5 September 2008. Interestingly, in this quote, Mr Carlile noted as follows with regard to the drummy tiles –

“It is impossible that 50 percent of pavers laid by Visionscapes method are drummy and may cause problems in future. We believe the paver itself may be drummy not the method of laying. However, if I was to quote on this you could drill holes and fill in hollows under pavers using silicone.”

75.            Mr Carlile was present when Mr Ross gave his evidence. Upon the completion of Mr Ross’ evidence, the applicant sought leave for Mr Carlile to give evidence about the cost to the applicant of taking up and re-laying the pavers, including cutting of expansion joints with his own concrete cutter. The total cost was $25,900.00. In cross-examination at this point, Mr Carlile accepted that his equivalent initial quote was about $71,000.00 (after deducting an agreed amount of $20,000.00 on account of other works from his total initial quote of $86,200.00). However, Mr Carlile pointed out that his assessment of $25,900.00 did not include GST, nor any profit margin, and that the initial preparation of the site (including laying of the concrete) was more time consuming that would be these rectification works. Mr Carlile said that the result was that, making these adjustments, the relative costs between his initial quote and his assessment during the course of evidence were much closer.

76.            Mr Carlile assessed the laying of concrete at $25,000.00 and initial demolition/preparation of site at $10,000.00, bringing his initial quote, on his evidence, to $56,100.00 which included GST and the mark up. There was, of course, a demolition and dumping charge included in his current assessment (three days at $3,500.00).

77.            Even given these deductions, and without any inflationary effect involved with the lapse of some 18 months since Mr Carlile’s initial quote dated 7 August 2007, it seems to me that Mr Carlile’s two assessments remain some distance apart, the latter being in the order of $12,000.00 less than the initial quote.

Evidence of Adam Chandler

78.            Mr Chandler was (of his own admission, and as described by Mr Carlile) the supervisor on site for the applicant. Mr Chandler did not hold a supervisor’s licence, although had been employed by the applicant since July 2006.

79.            In his statement (exhibit 19) Mr Chandler said that, before leaving the job, he inspected the works and considered the works to be completed to a very high standard. As to the alleged drumminess of the pavers, Mr Chandler stated that –

“The pavers were laid on reinforced concrete. Even though some may sound “drummy” they are very solidly stuck to their base and will not come loose”.

80.            In his oral evidence Mr Chandler said that he did not test for drumminess. He said that the paving work looked “pretty good”.

81.            Mr Chandler confirmed that the pavers had been laid on a wet bed of sand and cement with “neatamol” which he said was like glue. Mr Chandler further confirmed that that was the method the applicant had used (a satisfactory method in the past never having had any troubles laying the pavers that way), rather than in accordance with the manufacturers recommendations. Mr Chandler further said that he had had experience in raising up the subject pavers, and that it would be “pretty hard”, needing the use of a jackhammer.

Evidence of Murray Wilson

82.            Mr Wilson was the rectifying contractor engaged by the respondents. Mr Wilson’s statement is exhibit 26 in the proceedings. In his statement Mr Wilson said that –

“3. In mid February I attended the home of Joy and Michael Weidmann at 10 Aranui St in Yeronga to give an opinion on existing paving work at their property. I was told this had been done by Visionscapes Pty Ltd.

4.               I found that the pavers were irregular with uneven gaps in between. The heights were variable. The grouting was uneven with at least two colours, and had cracked in many places.

5.               In particular, about sixty percent were drummy. This means that there was a hollow sound when tapped with a hammer. This is due to inadequate adhesion between the paving tile and the mortar or concrete beneath. This means that the paving will have a tendency to become loose over time. Water can also seep beneath the tiles.

6.               There were no expansion joints at all. These are essential between the laid tiles and any other concrete areas such as the house and the swimming pool. They should also be made every four to five metres in a large concrete slab. In this case, natural movement of the house would’ve cracked the swimming pool. Natural movement of the concrete slab will cause cracking of the tiles and grouting.

7.               There is unevenness in the concrete slab causing pooling of water in several places.

8.               In my opinion, the workmanship was very poor and not of a professional standard. I thought it was one of the worst examples of poor workmanship I’ve seen.

9.               I thought about how this might be corrected. Some pavers could be replaced, and expansion joints could be made for the concrete. This would still leave a very poor product. I decided that the existing tiles would need to be lifted up. The slab could then be levelled. However, it is unlikely that any of the existing tiles would be able to be salvaged. New tiles would then be laid. I have always worked with sandstone, and they are the same price as concrete tiles.

10.            The pool coping tiles were irregular and very uneven. They did not adhere to the concrete and water was leaking underneath. There was a lot of damage to the concrete shell of the pool, which could only be repaired by relaying the coping tiles, repairing the wall of the pool, and applying a tile band around the top of the pool.

11.            It was difficult to give an accurate price for this work, as the demolition work was unknown. I therefore charged an hourly rate for the demolition and re-levelling of the slab at an hourly rate. Two weeks were allowed for demolition but it took three days, because there was no adhesion of the concrete tiles. The tiles easily lifted from the mortar bed, and this was not adhering to the concrete slab. Once the tiles had all been removed, extensive re-levelling of the slab was done. We were then able to lay new tiles. This was done by a very experienced tiler, and the outcome has been very good. The tiles are all straight, the grouting even, there are now expansion joints, and there is no pooling of water in the rain.”

83.            In his oral evidence Mr Wilson said that some of the pavers were difficult to remove, and that his charge of $7,282 plus GST was his actual cost to do it. He said it took approximately 120 man hours to demolish the works using jackhammers, because what was underneath (the concrete slab) had to be saved. Mr Wilson said it was the underneath part that was drummy not the tile itself. He said that silicon injection was not an appropriate method, as it could not be determined what part of the tiles was stuck down. Mr Wilson said that, when there is a problem with drumminess, sometimes people had not put enough cement in the mix.

84.            As to his cost to lay and supply the pavers/tiles, Mr Wilson said that he used pavers which were not Edelstone pavers (the pavers required by the applicant’s contract), his charge of $200 per square metre ($56,000), when taken with the demolition charge of $7,282 and building up of concrete base (before the laying of pavers commenced) at $2,785, increasing to $236 per square metre, compared to a square metre charge on the applicant’s initial quote of $256 (taking up existing pavers, laying and supply pavers, concrete base at $78,200).

85.            I should note that, Mr Carlile’s evidence was that, of his quote of $78,200, his concrete slab was assessed at $25,000 and his demolition works at $10,000. If accepted, this would reduce Mr Carlile’s initial quote to $41,200 for the supply and laying of pavers at a rate of $135 per square metre. If, similarly to achieve equivalence, Mr Wilson’s demolition charge was deducted, then Mr Wilson’s square meter rate becomes $210. However, I should further note that there was no corroborative detail or evidence of others to substantiate the applicant’s figures of $25,000 for the concrete slab and demolition at $10,000.

86.            It seems to me that, over and above the applicant’s initial quote, there was an additional cost associated with Mr Wilson’s charges on account of tiles supplied which were from Mr Wilson’s own stock of tiles, and which were not Edelstone pavers. Mr Wilson stated in cross-examination that the trade price for the tiles he used would be approximately $75 per square metre. Mr Wilson was not aware of the price of Edelstone pavers (apparently he had not used them for some time). Mr Carlile’s evidence (by leave, when assessing the cost of works to the applicant) was that the trade price for Edelstone pavers was $30 per square metre. That is, of course, the best evidence I have available upon which to make any assessment, although, if accepted, then the differential between the trade prices for the respective pavers/tiles with Mr Carlile at $30 per square metre and Mr Wilson’s at $75 per square metre (at $45 per square metre or $12,600 over 280 square metres), perhaps explains and reconciles, to an extent, what occurred with Mr Wilson’s rectification works.

87.            In any event, by decreasing Mr Wilson’s charges for supply and re-laying the tiles/pavers by the above amount of $12,600, I consider equivalence, more or less, is achieved, as to the materials supplied, between the contract works and Mr Wilson’s rectification works.

Liability - pavers

88.            My review of the available evidence on this item demonstrates, to my mind, that –

1.               The applicant’s position, through the evidence of Messrs Carlile and Chandler, was that the paving works were satisfactory, apart from some minor rectification which may be required;

2.               Neither Mr Carlile nor Mr Chandler had, at any time, checked for drummy tiles, with Mr Carlile (the applicant’s proprietor) not having inspected the works at all at any time. After Mr Ross’s inspection and report, the applicant had the opportunity to introduce its own expert to inspect the works. The applicant apparently, for whatever reason, chose not to do so, perhaps, either or both, because the applicant was in denial that any part of its works were defective, and/or considered it had an entitlement to the full amount of its invoice before any rectification was attempted.

3.               Two independent expert building consultants/inspectors (Messrs Volpato and Ross) considered that the number of drummy tiles was so extensive as to render the applicant’s paving works, as a whole, so defective as to require, as the only practical and cost effective means of effecting rectification (not only of the drumminess, but also other defects in the paving noted in their reports), that the whole of the pavers laid by the applicant be lifted, and further pavers laid (the chances of salvage of the original pavers being slim).

4.               The evidence of Messrs Ross and Volpato is supported by that of Mr Wilson, although clearly Mr Wilson, whilst obviously experienced, did not possess the independence of Messrs Ross and Volpato.

89.            There is, in my view, a strength and coherence in the respondents’ evidence on this item which was impressive, and largely, undeniable. Accordingly, I prefer and accept the respondents’ evidence on this item to that of the applicant, and find that the applicant’s paving works were defective in the respects noted by Messrs Ross and Volpato, and that the necessary and reasonable rectification was to lift the paving laid by the applicant and to re-lay that paving, of necessity because of breakages, using new tiles.

Drummy pavers - quantum

90.            With three qualifications, I accept the evidence of Mr Wilson that the works he performed, at the cost he performed them (which is subject of his invoice – exhibit 27), were necessary and reasonable to rectify the applicant’s works, not only under this item, but also in respect of other items that I have allowed earlier in this decision.

91.            The three qualifications, to which I have referred are –

o        (i) As I mentioned earlier, in respect of an allowance of $12,600.00 to bring the rectification works in respect of the paving (materials and labour) into equivalence, more or less, with the initial contract works

o        (ii) the item, pool coping and tile band includes

Ceramic tiles $7,000 plus GST

(iii) the item – remove and replace pebble finish

to pool $5,500 plus GST

92.            However, the applicant submitted, in the alternative to its primary position that there was no need for the paving to be uplifted and re-laid, that the respondents’ damages should be restricted to what it would have cost the applicant to have the rectification works performed, rather than the cost of having such rectification work performed by a third party, in this instance, Mr Wilson.

93.            Given my findings as to, and the applicant’s very limited acceptance of the need for, rectification, including, in significant respects, the conclusions of Mr Ross, the respondents could not reasonably have expected that payment of the amount claimed by the applicant to be owing to it would have resulted in the level of rectification, to which I have found the respondents to be entitled.

94.            Further, I consider that the respondents, even after Mr Ross’ report, invited the applicant to return to effect rectification and complete the contract, as had been suggested by the reports of both Messrs Ross and Volpato. However, notwithstanding, the applicant maintained its stance throughout that it would not attempt rectification, until its invoice was paid in full, or alternatively, as one offer by the applicant invited, in significant part, with the balance being paid to a trust account. That offer was contained in the letter from the applicant’s solicitors dated 18 February 2008. It is interesting to note in that regard that the applicant’s submissions (in particular at paragraph 48) appear to concede that the letter offers, on the part of the applicant, to complete the contract in the terms of the contract, in other words, that the contract had not been completed by the applicant at that point, notwithstanding that the applicant had left the site for the last time on 21 December 2007, apparently under the illusion (ill-conceived in my view) that the contract works had been finalised.

95.            Accordingly, it must follow (and I find) that the applicant was asserting an entitlement to a sum of money, by way of a final payment, notwithstanding that the contract works had not been completed, and that the applicant had not complied with the contract such as to entitle the applicant to the final payment under the contract. Further, the applicant’s offer was forthcoming in circumstances where the respondents had engaged Mr Volpato to inspect the works, Mr Volpato having delivered his report, a copy of which was forwarded to the applicant. Yet further, I must add, given my findings as to the state of the applicant’s works, that it could not be said that, in terms of the contract, the contract works had been brought to practical completion subject only to minor defects.

96.            Further, Mr Ross of the Authority inspected the works and delivered a report. Mr Carlile was invited to attend, but did not attend, Mr Ross’ inspection of the applicant’s works, sending an administrator in his place. Whilst Mr Carlile stated in evidence that that was for personal reasons, there was no explanation as to the nature of those personal reasons. One would have thought that his attendance, in the circumstances, was crucial to a resolution as to whether or not there were substantial defective works, as stated by Mr Volpato in his February report, a conclusion with which Mr Ross agreed in his March report. Yet further, one would have thought that an inspector from the Authority would have represented the independence that the applicant had sought in its letter of offer of 18 February 2008.

97.            However, what is clear from Mr Carlile’s statement is that he maintained several objections to, and disagreements with, the substance of Mr Ross’ report, and more particularly in respect of the paving works. That was a position which, as I understand the evidence, was maintained by the applicant and Mr Carlile, essentially, up to the date of (and into) the hearing of this matter. Given then the applicant’s continued refusal to attend to complete the works and the rectification of same, I consider that such refusal, effectively, particularly by reason of the applicant’s continued insistence upon being paid an amount, to which it was not entitled under the contract, amounted to repudiation of the contract which the respondents were entitled to accept, and did in fact accept, by advising the applicant in their letter of 11 May 2008 that the respondents would be engaging another landscaping company to complete the project. Indeed, the applicant’s submissions appear to concede that this notification was, in fact, a termination of the contract by the respondents.

98.            Consistent with this finding then, the respondents were entitled to assess their damages according to the cost to them of the rectification works performed by Mr Wilson, to the extent that I have found that those rectification costs were reasonable and necessary to provide the respondents with the benefit of their contract with the applicant.

Tiles to steps

99.            Mrs Weidmann’s evidence is that these steps were left bare concrete. She said that they were part of the contract works. Mr Carlile’s evidence is that these works were not part of the contract works.

100.         The description of the paving works in the contract, as prepared by Mr Carlile, was expressed in general terms, in the sense that, as I have found, it was to be performed within certain metes and bounds. In that context then, I consider that the tiling to the steps was part of the contract works. Those works were left incomplete by the applicant, but were completed by Mr Wilson. Accordingly, I allow Mr Wilson’s costs of such completion to the respondents, as appears in Mr Wilson’s invoice (exhibit 27).

Tiling to upstairs verandah

101.         It is common ground that these works were –

o        (a) part of the contract works;

o        (b) not completed by the applicant; and

o        (c) were adjusted in the applicant’s final invoice delivered on or about the date the applicant left the site.

102.         The applicant’s evidence as to why it did not complete the works appeared to be that Mrs Weidmann had chosen a tile for the area, and then had changed her mind. Mrs Weidmann disagreed, stating that she had not made a final choice, but was waiting for advice from Mr Carlile as to a prospective tile she had chosen for the area. Whilst I prefer Mrs Weidmann’s evidence on this to that of the applicant, the contract does not allow the applicant, unilaterally, to assert that it will not complete the contract works on the basis of the above reasoning. Further, as late as April, Mr Weidmann had written to the applicant asking when it would be returning to complete the contract works. I accept Mr Weidmann’s evidence in this regard.

103.         In the circumstances then, I am satisfied that there was no agreement between these parties to delete these works from the contract. Accordingly, the result is that the contract works were left incomplete in this regard, and the contract works had not been brought to practical completion.

Interest

104.         The applicant claims interest on the amount of its invoice of 21 December 2007. Interest is claimed pursuant to clause 19 of the General Conditions to Contract at the rate of 13.07%, as noted in Item 13 of the schedule to the contract. Before proceeding I should perhaps note that, whilst the claim for interest appeared to be maintained during the course of the hearing and on the applicant’s pleadings, the applicant’s submissions do not include any submissions about interest.

105.         In any event clause 19 of the General Conditions to Contract is as follows –

“The owner must pay the Contractor interest on overdue payments at the rate set out in Schedule Item 13 or at the Commonwealth Bank of Australia Standard Variable Rate applicable to home loans at the time the payment becomes overdue plus 5 per centum per annum (the ‘default rate’), whichever is the lesser rate. If no amount is entered in Schedule Item 13 the default rate shall apply.”

106.         The contract, of course, was entered into on 27 September 2007. The applicant’s invoice, upon which it relies, is dated 17 December 2007. I should say that there is simply no evidence as to the “default rate” referred to in clause 19 so as to determine what rate is the “lesser” for the purposes of a clause 19 calculation. That, in itself, it seems to me, is fatal to any claim for interest by the applicant.

107.         In any event, clause 19 refers to “overdue payments”. Clause 16 refers to “payment”. Relevantly, clause 16 is as follows –

“The Owner must pay the Contractor the price for the Works calculated and adjusted as provided by this Contract in accordance with the following provisions:

▲ The Owner must pay the Contractor the deposit (if any) stated in Schedule Item 9 upon the signing of this Contract. The amount payable by way of deposit must not exceed:

·                  (a) 5% of the Total Price if the Total Price is $20,000 or more; or

·                  (b) 10% of the Total Price if the Total Price is less than $20,000.

If the deposit stated in Schedule Item 9 exceeds that percentage the deposit payable hereunder must be reduced to an amount equal to that percentage.

▲ The Contractor is entitled to claim a Progress Payment when the Contractor has achieved completion of each of the stages set out in Schedule Item 10 or in any separate document setting out payment stages.

▲ A progress claim must:

·                  (a) be in writing using a BSA Form 2 Progress Claim or other appropriate written notice;

·                  (b) certify that the work under this Contract has been completed to the relevant stage; and

·                  (c) be accompanied by invoices, receipts or other documents showing the cost to the Contractor of any Prime Cost Item or Provisional Sum in respect of which a claim for payment is made.

▲ The Progress Claim for the Practical Completion Stage must, in addition to the requirements listed above, be accompanied by a completed and signed BSA Form 3 Defects Document.

▲ The Progress Payment for each stage shall consist of:

·                  (a) the percentage of the Lump Sum Component or other progress payment applicable to that stage as stated in Schedule Item 10 or in any separate document setting out payment stages;

·                  (b) the amount payable for any Prime Cost Items completed to that stage and not included in a previous Progress Payment;

·                  (c) the value of any Provisional Sum Item completed to that stage and not included in a previous Progress Payment but if the value of any Provisional Sum Item exceeds by 10% the amount allowed for that Item in the Provisional Sums Schedule the Contractor is entitled to payment of so much of the amount in excess as is reasonable. If there is a dispute between the parties as to reasonableness of the whole or part of the amount in excess that dispute must be referred for resolution in accordance with Condition 27; and

·                  (d) any other amount then payable to the Contractor in respect of variation pursuant to and in accordance with Condition 21.

▲ The Owner must pay the Contractor the Progress Payment, or so much of the relevant claim for Progress Payment as is not disputed by the Owner, within five (5) business days of receipt of the relevant claim.

▲ If the Owner disputes the relevant claim for Progress Payment or any part of it, the Owner must within five (5) business days of receipt of the relevant claim give to the Contractor a BSA Form 4 Notice of Dispute of Progress Claim with the particulars completed or other appropriate written notice, stating the reasons for so disputing the claim or part of it. If that dispute is not resolved by the parties within five (5) business days of the receipt by the Contractor of the notice of that dispute, the dispute must be referred for resolution in accordance with Condition 27.”

108.         On the face of clause 16 then, “overdue payments”, upon which interest may be claimed further to clause 19, are those progress claims not paid in five business days of the date upon which the claim issues.

109.         Item 10 of the contract schedule refers to the stages at which certain amounts are said to be due. Notwithstanding a notation in that item to the effect that the works to be completed in each of these stages should be attached, no such explanations are attached nor are the stages otherwise explained. Mr Carlile referred in his oral evidence to the stages at which payments were due as being subject to agreement between the parties. That, of course, is an agreement to agree which is no agreement at all.

110.         In any event, because there is no explanation as to the stages at which payments are due (nor, for that matter, is there any purported claim for any stage, including practical completion), it is not possible, in my view, for the applicant to have made any progress claim pursuant to clause 16, because the work required to be completed for the relevant stage could not be (and has not been) certified.

111.         Further, as to the practical completion stage, the progress claim (if the applicant’s 17 December 2007 invoice could be considered as such) was not accompanied by a “completed and signed BSA Form 3 Defects document”. Accordingly, there was no proper claim for payment under the contract, such as might have given rise to a claim for interest. Yet further, as I have found, by reason of the extent of the defective works, and works left incomplete, the applicant had, in any event, not brought the works to practical completion. In the circumstances then, the applicant’s claim for interest is rejected, if, in fact, it is pursued at all by the applicant.

Summary of amounts allowed

112.         The amounts allowed to the parties then are as follows –

Applicant $60,468.50

Respondent:

Sealant $154.66

Reconnection

Pool Filter $134.02

Gas Cylinders $150.00

Air Conditioning $666.68

Damage to façade $550.00

Waterproofing $1,650.00

Water to fill pool $1,536.70

Paving Works:

Removing Tiles etc $7,282.00

Supplying new tiles $56,000.00

Less $12,600.00 $43,400.00

Tiles for Step $560.00

Building up concrete $2,785.00

Remove drain and garden $649.00

Handover costs $379.00

GST on above $5989.71

Total $65,886.77

113.         Offsetting the amount allowed to the applicant at $60,468.50 against the amount allowed to respondents on their counter-claim at $65,886.77, the amount payable by applicant to respondents is $5,418.27.

Orders

114.         I order that the applicant will pay to the respondents the amount of $5,418.27 by, 4:00pm on 14 May 2009.

______________________________

MR P LOHRISCH

MEMBER

Commercial and Consumer Tribunal

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URL: http://www.austlii.edu.au/au/cases/qld/QCCTB/2009/75.html