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  • Unreported Judgment

Lloyd v Welch

 

[2016] QCAT 36

CITATION:

Lloyd v Gully Concrete [2016] QCAT 36

PARTIES:

Leigh Lloyd

(Applicant)

v

Andrew Philip Welch t/as Gully Concrete

(Respondent)

APPLICATION NUMBER:

BDL230-14

MATTER TYPE:

Building matters

HEARING DATE:

6 May 2015

HEARD AT:

Bundaberg

DECISION OF:

Member Beckinsale

DELIVERED ON:

18 January  2016

DELIVERED AT:

Brisbane

ORDERS MADE:

The application is dismissed.

CATCHWORDS:

Contractual error accepted by contractor - offer to remove slab but owner incurred substantial costs in obtaining engineer’s report and having slab removed - finding that owner had a duty to mitigate any loss and did not act reasonably

APPEARANCES:

APPLICANT:

Self represented

RESPONDENT:

Self represented

REASONS FOR DECISION

Background

  1. [1]
    Mr Lloyd owns a block of land located at Ross Camp Road, outside the town of Childers. He contracted with Mr Welch, who has a concreting business trading as Gully Concrete, to construct a concrete slab on the property. Part way through construction, Mr Lloyd sought to terminate the contract. He subsequently had the partly constructed slab broken up and removed and made application to the Tribunal seeking from Mr Welch the costs incurred by him in removing the slab as well as disposing of the materials away from site and other expenses.
  2. [2]
    At a compulsory conference a list of agreed facts was prepared. Mr Lloyd attended that conference by telephone and did not sign that document which was signed by Mr Welch. At the hearing Mr Lloyd was given the opportunity to read the list and said he agreed with all seventeen facts listed.
  3. [3]
    The Agreed Facts were as follows:
  1. 1.
    The applicant is, and at all relevant times was, the owner of land at Ross Kemp Road, Childers in the State of Queensland (the site) which is the subject site of the application.
  2. 2.
    The applicant received a quotation from the respondent dated 19 August 2013 in relation to work which was to include the supply and pouring of concrete at the site (the quotation).
  3. 3.
    The quotation was verbally accepted by the applicant by communication directly to the respondent.
  4. 4.
    The quotation was drawn by the respondent.
  5. 5.
    The quotation did provide for the cost of concreting in the sum of $16,000 and (amongst other things) the cost of extra concrete and heavy mesh in the sum of $4200.
  6. 6.
    The extra concrete referred to in the quotation was the concrete which would be required to take the slab from a standard 4 inch thickness to a 6 inch thickness.
  7. 7.
    The respondent had intended the quotation to provide that (sic) the applicant with an option to proceed with a standard 4 inch thickness or a 6 inch thickness.
  8. 8.
    By the acceptance of the quotation the respondent wrongly assumed that the applicant required a 4 inch thickness.
  9. 9.
    The applicant intended a 6 inch thickness at all times. The respondent accepts responsibility for the acknowledged error and acknowledges that the thickness of the slab should have been 6 inches.
  10. 10.
    The respondent did enter upon the site and poured a slab which was less than the thickness that it should have been.
  11. 11.
    The applicant terminated the contract. This termination was accepted by the respondent.
  12. 12.
    The respondent accepted his error and offered to rectify the problem.
  13. 13.
    The likely best method to rectify the problem was to remove the slab and replace it.
  14. 14.
    The respondent offered to remove the slab and replace it.
  15. 15.
    The applicant did not provide the respondent with the opportunity to rectify the admitted error.
  16. 16.
    The applicant has broken the slab which was poured by the respondent.
  17. 17.
    The respondent has agreed to remove the materials from the site and reinstate it to its original condition. The applicant has denied the respondent access to the site to do so. 

Evidence of Applicant

  1. [4]
    Mr Lloyd is a construction rigger by occupation. He described his work as running crews of riggers putting machinery in and out of confined spaces and working at heights with cranes. He described his experience with laying concrete as being around concreters for about 25 years “in the same game”. Whilst he said he had not worked as a concreter he has assisted them, for example, laying steel. He said he has such experience only with major structures, “not small sheds”.
  2. [5]
    Mr Lloyd did not recall dates but said at some point he had Mr Welch’s card and he phoned him to get a quote. He said he met Mr Welch on site and gave to him a copy of the plans for the shed he was going to purchase from a company which sold prefabricated sheds. He said he distinctly remembered going to a newsagents and getting a copy printed. He said he took the plans with him and handed a copy to Mr Welch when he met him on site.
  3. [6]
    No copy of the plan was filed in these proceedings nor did Mr Lloyd have a copy at the hearing to make available to the Tribunal. Mr Lloyd said the plans from the shed company showed the dimensions of the slab and specified the thickness was to be 100mm (4 inches).
  4. [7]
    Mr Lloyd said he had made a hand sketch for Mr Welch to show the changes he wanted to the size of the slab and its thickness. He said he had had only one site meeting with Mr Welch which lasted about half an hour. When I asked Mr Lloyd to recall in detail his meeting with Mr Welch; whether he had a copy of the shed company’s plans and whether he had drawn the sketch on a piece of paper Mr Lloyd’s reply was confusing:

“That was afterwards, yes. The original one was for a quote for the shed by the manufacturer’s specifications, and then I believe I added to it. Yes. No, I might have added to it.”

  1. [8]
    Mr Lloyd said what he had asked Mr Welch to quote was the slab for the shed plus the extensions around it which required extra concrete. Mr Lloyd said he had the main base done with crusher dust already there so that Mr Welch just needed to spread the crusher dust and box up for the pour.
  2. [9]
    Mr Lloyd recollected he had a number of phone calls with Mr Welch before he received the quote dated 19 August 2013.  Mr Lloyd said in these phone calls he explained the changes he required being the additional depth, heavier mesh and increased widths. He did not recall by what medium he received the quote.
  3. [10]
    After receiving the quote, Mr Lloyd said he telephoned Mr Welch, and told him to go ahead. Mr Lloyd did not recall exactly the conversation he had but said it was short, only a couple of minutes. He did not recall how soon Mr Welch was able to start but thought Mr Welch may have contacted him later to let him know when he was going to start.
  4. [11]
    Mr Lloyd did not live at the block and had asked a neighbour to keep an eye on the job. He said the neighbour contacted him after what he recollected was the first day’s pour by Mr Welch. He said the neighbour told him that the job “did not look right” and that he was sceptical about the depth. Mr Lloyd went straight out to the site to inspect the slab and then sent Mr Welch a message to say not to continue:

Hi andy

Dont continue with the pour tomorrow we have a problem with depths etc.i asked for six inch depth and it hardly makes three inches in places.

Cheers leigh

  1. [12]
    A print out of that email was provided showing the message was sent at 7.30pm on Thursday 24 October 2013.
  2. [13]
    Mr Lloyd acknowledged he had received an email in reply from Mr Welch the next morning which was also provided:

Just checked quote and you are correct it should be six inches, my apologies can you give me a ring so we can sort it out

cheers

Andy

  1. [14]
    Mr Lloyd acknowledged that he did not respond to Mr Welch’s email nor to his subsequent messages sent by text and left on his phone. Mr Lloyd said that when he inspected the slab poured by Mr Welch the edges next to the boxing were dug out to look like they were six inches when the boxing was taken off.
  2. [15]
    Mr Lloyd acknowledged Mr Welch’s immediate response was to agree the slab should have been six inches and accept fault but said:

“in reality, to fix it from four to six inches, it’s got to be all ripped up or it’s got to be grouted to make it safe with rio in it, and I just-the way it was, I just wasn’t feeling comfortable. I felt like that I’d been taken for a row, as in-as a sucker, so I could not trust Andy to do a proper job. It wasn’t done firstly in the first place properly.”

  1. [16]
    Mr Lloyd said he made a formal written complaint to the Building Services Authority but after being told it would be “a week or two” before the Authority could inspect the slab he “cancelled my written application to them so that I could get onto the concrete and rip it up while it was still green.”
  2. [17]
    On 26 October 2013, the day after he received Mr Welch’s response, Mr Lloyd purchased a generator to operate a jack hammer.
  3. [18]
    Mr Lloyd said that over the next couple of days he contacted a structural engineer to come and inspect the slab. He said because he could not find one locally he had one come from Brisbane. Mr Lloyd said that the engineer’s inspection brought to light “all the problems”.
  4. [19]
    He reiterated his conclusion he had been taken advantage of:

“as the concrete went in, it went up to four and sometimes three inches in places. So it wasn’t all six inch thickness, but was made to look like it was six inches when the boxing came off. So I’d be deceived thinking that I had a six inch slab, and it was barely three in spots.”

Engineer’s Report

  1. [20]
    Structural engineer, Stephen Waite carried out a site inspection with Mr Lloyd present. Mr Waite’s report dated 12 November 2013 indicates he carries on the business of Structural Remediation Consultant.
  2. [21]
    Mr Waite was not called as a witness at the hearing and there was therefore no opportunity for him to be cross examined. His report stated he carried out a site inspection on 23 October 2013 but his affidavit provided to the Tribunal advised that in fact the date was 26 October 2013.
  3. [22]
    The report states the “inspection was to determine if the recently installed concrete slab has been constructed as per the approved drawings and meets with the relevant Australian Standards.”
  4. [23]
    The report contained a section titled “Conclusion and Recommendation” as follows:

It is clear from our visual inspection and test holes that the concrete slab has not been constructed as per the engineering drawings.

  1. 1.
    The structure is documented as Class 10 which is a non-habitable building.
  2. 2.
    AS2870 Residential Slabs and Footing Construction Clause 3.1.5(a) states: “(a) outbuildings of clad framed construction can use footing systems appropriate for one class of reactivity less severe than for a house”.
  3. 3.
    Compacted fill nominal 300mm thick has been placed over unknown soil classification. (The soil conditions are reported as poor. The objective is that the fill will distribute the soil reaction) (sic) resulting in equivalent soil conditions for Class M.
  4. 4.
    DWG 102713-5 states: “For class A,S or M slab thickness to be a minimum of 100mm with SL 72 mesh”.
  5. 5.
    DWG 102713-5 nominates a 150mm edge slab thickness.
  6. 6.
    Statements 4 and 5 are consistent with AS2870-1996 i.e. 100mm thick slab with 150mm edge slab thickness.
  7. 7.
    The measured apron slab was nominally 75mm thick with slab edge thickness to 100mm.
  8. 8.
    The main central slab was nominally 100mm that (sic) with 150mm edge thickness. Test holes and measurements did indicate that some areas were less than this. Refer Sketch 1.
  9. 9.
    Start bars were embedded nominally 20mm and could be pulled out by hand. AS3600 which is noted on the drawing require embedment of 13 times the diameter of the bar. The bars are 12mm diameter and therefore required embedment is 156mm minimum i.e. non-compliant.
  10. 10.
    Drawing 102713-5 states that construction joints need to be replaced at a maximum spacing of 6.3m, none were installed.
  11. 11.
    The reinforcement mesh left over was SL52 i.e. square mesh 5mm diameter at 200mm centres each way. DWG102713-5 states minimum mesh size SL72 i.e. 7mm diameter based at 200mm centres.
  12. 12.
    In summary, the slab is non-compliant to the DWG 102713 and AS2870.
  13. 13.
    We have been provided with information indicating the slab as follows: “150 conc and bigger mesh” was to be constructed at this thicker dimension.

The report refers to attached photographs 44, 51, 58, 59 and 60 as depicting the test holes.  In fact, photographs 44, 57, 58, 59 and 60 depict test holes. I could not see the markings on the tape measure inserted in the test holes in the copies of the photographs provided to the Tribunal at the hearing. Photograph captions and a hand drawn sketch attached to the report depicting the location of eight test holes in the main slab indicated a measurement of 100mm for five of the holes, 90mm for two of the holes and 75mm for the remaining hole. The sketch also showed a test hole in the apron slab of 75mm.

  1. [24]
    As to the start bars being able to be pulled out by hand, Mr Lloyd said he himself had started to pull these out and he observed Mr Waite attempt to pull out  “about five”, “about three” of which came out.
  2. [25]
    Mr Lloyd said some time after the engineer’s inspection he sought legal advice and thereafter left the matter in his lawyer’s hands.
  3. [26]
    Mr Lloyd’s solicitors sent a letter dated 17 July 2014 to Mr Welch demanding payment in the sum of $13,052.71. Lawyers acting on behalf of Mr Welch replied by letter dated 24 July 2014.
  4. [27]
    Mr Lloyd’s application filed in the tribunal 15 September 2014 seeks payment as follows:
    1. For rectification costs of breaking up the defective concrete slab $6158.71
    2. For rectification costs of removing and disposing of defective slab from work site $4320.00
    3. Costs of consultants report to identify the defective slab as supplied and installed $2574.00

Plus costs and interest.

  1. [28]
    The application does not particularise the sums in items 1 and 2 which total $10,478.71. With item 3 included, the sum claimed is as demanded previously, that is, $13,052.71.
  2. [29]
    Mr Lloyd’s submissions and affidavit state the sum claimed for breaking up the slab and removal from site as $9,685.11, if the cost of the consultant’s report is included, a total of $12,259.11.
  3. [30]
    The sum of $9,685.11 is not particularised in the submissions or Mr Lloyd’s affidavit but the submissions state the “amounts are evidenced and supported in supporting documents marked “B”, “F”, “G”, “H”, “J” and “K”.”
  4. [31]
    “B” is in fact the report of Stephen Waite and the invoice and receipt for the sum of $2574.00 are marked “C”.
  5. [32]
    “F” is a handwritten note by L. Chipchase stating $700 was received from Mr Lloyd for the purchase of a second hand generator on 25 October 2013.
  6. [33]
    “G” is an undated handwritten note signed by Brian Dean to the effect that he received $1000 for assisting in the demolition of a concrete slab for Mr Lloyd “over the last three months”.
  7. [34]
    “H” is an undated handwritten invoice to Mr Lloyd from D.Eastwood for jackhammering (50 hours @ $38 per hour)  and 65 litres of generator fuel, a total of $2005.00.
  8. [35]
    “J” is an invoice shown as paid from Coles Engineering for removing concrete and supply of crusher dust totalling $1991.00.
  9. [36]
    “K” comprises six documents which are in the nature of receipts although a number are illegible. There is a receipt dated 29 May 2014 from Cole Engineering for $3392.40, a receipt from Bunnings Warehouse dated 1 November 2013 for $249 for “Demolition Breaker Full Boar”, a receipt from Thabeban Service Station dated 4 November 2013 for unleaded fuel for $110.91, a receipt from Officeworks for $2.80 but is otherwise illegible, another receipt from Thabeban Service Station dated 4 December 2013 which is very difficult to read but might be for $100 and what might be a receipt with the word “fuel” handwritten at the top but which I am unable to  read.
  10. [37]
    At the hearing Mr Lloyd said he had purchased a second hand generator to operate the jack hammer (that was the item purchased from Bunnings for $249.00) and that buying both items was cheaper than hiring them for the time it would take to demolish the slab. He said he had paid Mr Dean and Mr Eastwood those amounts in cash for their work in removing the slab.
  11. [38]
    Mr Lloyd gave confusing evidence about the receipt from Coles Engineering for the sum of $1991.00, initially agreeing it was an estimate but then he clarified that it was for work done removing the broken concrete from the pad and supplying new crusher dust needed to rebuild the pad.
  12. [39]
    As regards the receipt for $3392.40 from Coles Engineering, Mr Lloyd said that “incorporates the previous work they’ve done.” When asked what part of that cost he was claiming from Mr Welch he replied “nothing on that one as far as I’m aware.”  When I clarified that he was not claiming the $3392.40, he replied “Well I don’t know what that one is…this was all given to the solicitors and they just printed everything.”
  13. [40]
    Mr Lloyd could not explain the other amounts included in the documents marked as “K” other than he “guessed” it may be refunds paid to his neighbour for fuel for the generator. In not being able to explain his documentation, he reiterated he had left matters to his solicitor.
  14. [41]
    There was also a document marked “I” from Isis Concreting headed “Quote” for $9,358.00 which Mr Lloyd clarified was not an amount being claimed by him but by way of comparison illustrating what it may have cost to have the slab removed by a professional concreter.
  15. [42]
    At the time of the hearing Mr Lloyd had not had the broken slab removed from his property and the estimate from Isis Concreting included dump fees totalling $3927.27.
  16. [43]
    Therefore the costs which Mr Lloyd was able to say he had paid totalled $8519.00 ($2574+$700+$1000+$2005+$1991+$249). Additionally there was the possibility of dump fees being incurred.
  17. [44]
    When asked to make final submissions in respect to what he claimed Mr Lloyd was only able to say that he would “just stick with whatever is there” (referring to his application).

Respondent’s evidence

  1. [45]
    Mr Welch said he has been working in concreting thirty-five years. He has been operating a concreting business for seven years in Queensland and for the previous sixteen years in South Australia. He said his business employs a qualified concreter and a labourer fulltime and contracts casuals for bigger pours. He described himself as doing a lot of slabs for all the companies in the area which provide kit sheds so that he is familiar with the plans from most of the companies. Mr Welch said a lot of his work involves the removal of old concrete slabs before constructing a new slab and over the years he would have removed “seriously thousands”.
  2. [46]
    Mr Welch recollected at his first site meeting with Mr Lloyd in December 2012 they worked out roughly what earthworks would have to be done and where the shed was going and “that was about all”. At that time trees covered the area where the shed pad was to go. He said a few days after that meeting he had emailed a quote for a standard 4 inch shed slab and Mr Lloyd phoned within a week to accept. Mr Welch said there was a lot of work to do where Mr Lloyd wanted to position the shed and he told Mr Lloyd he would go ahead when he was able. 
  3. [47]
    Mr Welch said he did not receive a copy of plans at that meeting in 2012. He said at that time there would not have been any plans because the shed kit had not been delivered. He recollected when the shed was delivered Mr Lloyd rang him to ask him to go to the site to help the truck driver who had become bogged during delivery of the shed kit, the area having flooded  during January 2013. Mr Welch did not live too far from the property. He recollected that after six or seven hours on site without being successful in getting out the truck he had to leave to pick up his children.
  4. [48]
    Mr Welch said he called in from time to time to check whether the ground remained too wet to get in his equipment. He said Mr Lloyd would phone sometimes to check how things were going. He said the proposed site remained very wet for a long time, in part, because of trees which held moisture in.
  5. [49]
    Mr Welch said around April 2013 Mr Lloyd told him he would do some work at the property including changes to the road in so that Mr Welch would be able to get vehicles in. Mr Lloyd then contacted him to let him know the site was ready and they arranged to meet on site in August 2013. That was the site meeting recalled by Mr Lloyd which Mr Welch agreed took about half an hour.
  6. [50]
    Mr Welch said at the August meeting the exact site of the shed was worked out and Mr Lloyd asked about constructing the slab six inches thick instead of four inches. Mr Lloyd also wanted to extend the slab out on all sides. Mr Welch said Mr Lloyd gave him a hand drawing depicting the extensions he proposed but said he was not given a copy of the shed plans.
  7. [51]
    Mr Welch said at that stage Mr Lloyd had not made up his mind as to the thickness so he included both options in the quote which he said he emailed to Mr Lloyd the day after the site meeting. Mr Welch said Mr Lloyd rang him within days to tell him to go ahead with the slab. During that phone call there was no discussion about thickness. At the site meeting Mr Welch told Mr Lloyd there was no reason to make the slab thicker than usual and he would just be wasting money. When Mr Lloyd did not raise the matter in the conversation, Mr Welch assumed he just wanted the standard thickness. Mr Welch said he told Mr Lloyd he would get to his job as soon as he could but that he had a number of jobs to do and he would let him know a start date at a future time.
  8. [52]
    Mr Welch said two days before he started work at Mr Lloyd’s property, he phoned Mr Lloyd to let him know. He said he told Mr Lloyd there would be a day’s preparation work before he commenced the pour.
  9. [53]
    Mr Welch’s submissions state that preparation work began on 21 October 2013 and took two days. Preparation included the construction of a pad with the sum of $700 shown on the quote for “Bobcat work including pad prep”. The first pour took place on 23 October 2013 and a second on 24 October 2013. Mr Lloyd’s sent the email to stop work on the evening of 24 October. Mr Welch said he looked at his quote and replied the following morning. He said he tried to contact Mr Lloyd by phone for several days and left messages which Mr Lloyd did not return.
  10. [54]
    At the hearing Mr Welch’s recollection was that the next communication he received was a letter dated 4 November 2013 from solicitors acting on behalf of Mr Lloyd to which an emailed reply was sent on 5 November 2013. Mr Welch’s written submissions filed prior to the hearing, as well as the email dated 5 November 2013, refer to a telephone conversation between Mr Welch and Mr Lloyd which took place several days after the initial exchange of emails. The submissions and email state that Mr Welch advised Mr Lloyd he was prepared to remove the existing concrete works at no cost to Mr Lloyd and relay the concrete in accordance with the quote for the additional thickness but that Mr Lloyd rejected that offer and required Mr Welch to remove his equipment from the property.
  11. [55]
    Mr Welch’s evidence was that he had his wife, on his behalf, telephone Mr Lloyd’s solicitors on 13th and 28th November 2013 and 9th December 2013 to see whether they had any response to the email. In the conversation on 9th December, Mr Welch’s evidence was that Mr Lloyd’s solicitors advised that should they not receive further instructions within a week they would close the file.
  12. [56]
    The next communication received by Mr Welch was the letter from Mr Lloyd’s solicitors dated 17 July 2014 to which solicitors acting on behalf of Mr Welch sent a reply dated 24 July 2014, denying liability for the sum claimed and reiterating an offer to remove and dispose of the cement slab.
  13. [57]
    As regards Mr Waite’s report, Mr Welch’s evidence was that he was not given plans for the shed and slab, other than Mr Lloyd’s hand drawing. He had gone ahead with the construction of a standard four inch (100mm) slab. Whilst Mr Waite’s report states the engineering drawings specify the slab is to be a minimum of 100mm with 72 mesh Mr Welch said his use of 62 mesh in 100mm slab is standard and that there is no requirement for mesh of that thickness in the Australian Standard.
  14. [58]
    Mr Waite’s report depicts his measuring mesh with a tape measure. Mr Welch said mesh is never measured with a tape measure which would not be sufficiently accurate but with vernier calipers or a similar tool which in his experience engineers use to gauge mesh. Mr Welch said he never uses 52 mesh, not even “in a footpath to a clothesline”. He said the mesh he used in Mr Lloyd’s slab was 62. If 52 mesh was found on site by Mr Waite it was not left by him.
  15. [59]
    As reported by Mr Waite, the main slab has been laid as 100mm. Mr Welch explained that when laying a four inch (100mm) slab the perimeter is made six inches (150mm) thick to enable the framework of the shed to be bolted down. Therefore the boxing will be six inches wide as observed by Mr Lloyd. Mr Welch explained that a beam is constructed underground which protects the underneath of the slab. He said the photograph numbered 37 in Mr Waite’s report shows a measurement being taken from ground level to the top of the concrete but does not show the concrete below ground.
  16. [60]
    Mr Welch also said that when taking measurements of thickness at different points across a slab differences are expected; for a nominally 100mm thickness the measurements can vary between 75mm and 125mm.
  17. [61]
    As regarding start bars, Mr Welch said they were something he puts in as an extra which are not required. He couldn’t say how many there were other than “lots” as he placed them every 300-400mm. He was aware of one bar which hit mesh and was out and had to be redrilled. He said it would not make sense for him to do that extra work and not do it properly.
  18. [62]
    Regarding construction joints which Mr Waite’s report notes were not present, Mr Welch said he would have cut those before completion of the slab but had not done so at the time Mr Lloyd halted work.
  19. [63]
    Mr Welch had from the very outset accepted it was his mistake in assuming Mr Lloyd wanted to proceed with a standard slab and maintained that stance at the hearing. However he believed he should have been given the opportunity by Mr Lloyd to remove the slab he had laid at his own cost. He also said the costs claimed by Mr Lloyd were excessive. He estimated that it would have taken him an hour and a half to two hours to cut the slab with a bobcat being used to lift the slabs and place them on a truck. That would have involved a maximum of two hours with a truck and trailer and only two loads. The cutting of the slab would leave pipework intact and the pad would be left relatively intact with no need of further crusher dust. Dump fees would not be incurred by Mr Welch as he said the concrete could be dumped at his property.
  20. [64]
    Mr Welch calculated that if he was charging for the removal of Mr Lloyd’s slab the cost would be $330 for cutting, $720 for dumping bobcat $175 and truck and trailer $165, a total of $1390.00. The cost of preparing and supplying crusher dust was originally $700 which he paid to a firm BK Excavations.
  21. [65]
    Mr Welch’s evidence was that in the construction of Mr Lloyd’s slab he had outlaid a total of $6302.76 in materials and labour however he accepted the contractual error on his part and sought only that Mr Lloyd’s application be dismissed. He did not seek costs.

Discussion

  1. [66]
    Whilst neither Mr Lloyd nor Mr Welch had perfect recollection of the events which have taken place over a period of some three years, I found Mr Welch was clearer and more convincing in his explanation of what occurred and where his recollection differs from that of Mr Lloyd’s, I prefer Mr Welch’s version. I find that Mr Welch is a very experienced concreter, and whilst Mr Lloyd may have gained some knowledge through assisting concreters in his work place, he showed a limited understanding of what was involved in the construction of his shed slab in comparison to Mr Welch. Mr Lloyd’s lack of knowledge has led to, in my view, his unfounded suspicion that Mr Welch was attempting to take advantage of him.
  2. [67]
    Mr Lloyd said he had given Mr Welch the construction drawings provided by the shed company and whilst he recollected making a copy of the plans he did not recollect two site meetings with Mr Welch and was vague in his recollection of what he had actually given to Mr Welch. I find that Mr Welch was not given a copy of the engineer drawings, only a hand drawn variation by Mr Lloyd.
  3. [68]
    The report from Mr Waite was not helpful. In my view this was an extraordinary cost to incur when Mr Welch had immediately agreed that the slab was not the correct thickness.
  4. [69]
    The report states the slab as constructed by Mr Welch is non-compliant with DWG 102713 and AS2870 (item 12 of Conclusion and Recommendation). I think the report writer may have meant to refer to AS3600 concerning the start bars because AS2870 has been referred to in the report in relation to slab thickness. The report contained a number of what may have been typographical errors, including the inspection date (corrected by affidavit) and the numbering of photographs.
  5. [70]
    The report states the slab is not compliant with the drawing in only two respects: the absence of construction joints, which Mr Welch said he was still to install; and mesh to be used a minimum of 72. Mr Waite was unable to conclude what gauge mesh was in the slab but the report appeared to imply that 52 mesh was used as that was what was on site. Mr Welch said he used 62 mesh and gave evidence which cast doubt on the measurement made by Mr Waite.
  6. [71]
    Mr Waite was not called as a witness so there was no opportunity to ask questions about his report or to obtain alternative evidence about concreting which Mr Welch gave. I prefer the evidence given by Mr Welch where it is in conflict with the written report. I found Mr Welch to give evidence which was compelling and I accept his evidence as to his being a very experienced concreter. The report was of little value. Essentially it supports the contention that the slab has been constructed as 100mm which Mr Welch admitted from the start. That Mr Welch has failed in his contractual obligations to Mr Lloyd may have been contentious as the written quote was ambiguous, but Mr Welch immediately accepted the misunderstanding as his error and conveyed his willingness to remove the slab at no cost to Mr Lloyd. I do not find that the slab as constructed was defective, other than not meeting Mr Lloyd’s expectation that it was to be 150mm. If the slab was actually defective, Mr Welch’s offer to remove it would have avoided any need to obtain such report. From the outset Mr Welch’s stance has been, I thought you wanted a standard four inch slab, but you meant for me to construct one six inches thick. I accept the misunderstanding as my error and will remove the four inch slab at no cost to you. Mr Lloyd did not therefore require a report costing $2574.00.
  7. [72]
    I find Mr Lloyd had a duty to mitigate any loss he may have suffered as a result of a breach of contract by Mr Welch and that he did not act reasonably in not allowing Mr Welch the opportunity to remove the slab which would have cost Mr Welch very little actual outlay, especially compared to the outlay already incurred by him in materials and labour in constructing the slab of incorrect thickness. I accept Mr Welch’s evidence of the work that would reasonably have been required to remove the slab and his estimate that a reasonable cost to be charged was $1390.
  8. [73]
    Because I consider Mr Lloyd acted unreasonably in not allowing Mr Welch to remove the slab, I do not order that any amount be paid to Mr Lloyd by way of damages.
  9. [74]
    If I am wrong in that respect and if Mr Lloyd should be entitled to recover damages for removing the slab then I find the amount which is reasonable is Mr Welch’s estimate of $1390.
  10. [75]
    Even should it be accepted that Mr Lloyd paid the sums he recollected, totalling $5945 ($8519 less $2574 for engineer’s report), I accept Mr Welch’s evidence of what work is involved and find that Mr Lloyd paid unreasonable amounts for the work which should not be borne by Mr Welch. Mr Lloyd’s evidence was that he had already prepared the shed pad with crusher dust before Mr Welch commenced work but I accept Mr Welch’s evidence that preparation of the pad and provision of crusher dust was part of the preparation he carried out. It is unreasonable for Mr Lloyd to recover an amount for pad preparation and supply of crusher dust when he did not pay for that in the first place.

Orders

  1. [76]
    The application is dismissed.
Close

Editorial Notes

  • Published Case Name:

    Leigh Lloyd v Andrew Philip Welch t/as Gully Concrete

  • Shortened Case Name:

    Lloyd v Welch

  • MNC:

    [2016] QCAT 36

  • Court:

    QCAT

  • Judge(s):

    Member Beckinsale

  • Date:

    18 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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