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  • Unreported Judgment

Palamarchuk v Ricciardi Builders

 

[2016] QCAT 262

CITATION:

Palamarchuk v Ricciardi Builders [2016] QCAT 262

PARTIES:

Oksana Palamarchuk

(Applicant)

v

Nicholas Arvi Ricciardi And Donna Joan Ricciardi T/As Ricciardi Builders

(Respondent)

APPLICATION NUMBER:

BDL262-15

MATTER TYPE:

Building matters

HEARING DATE:

4 August 2016

HEARD AT:

Brisbane

DECISION OF:

Mr R F King-Scott

DELIVERED ON:

4 August 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

I order the Respondent pay the Applicant the sum of $10,840 by 4pm on 9 September 2016. 

CATCHWORDS:

Building matters - breach of Contract­­ – Express term ceiling heights not attained – Late completion damage

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

In person.

RESPONDENT:

Nicholas Ricciardi in person on behalf of Ricciardi Builders.

REASONS FOR DECISION

  1. [1]
    The Applicant and the Builder entered into a Contract for the construction of a house for the Applicant at 31A Wattle Street, Andergrove.  The house was designed and marketed by Gold Award Homes and was a Stephanie 307 Model Home with some additions and variations which were negotiated by Gold Award Homes with the Applicant.
  2. [2]
    It appears that Gold Award Homes then arranged a builder, in this case the Respondent who contracted with the Owner on the basis of the Project Quote already negotiated by Gold Award Homes.
  3. [3]
    In this case, the parties entered into a Housing Industry Association New Home Contract, June 2008 edition.  The Contract incorporated the Project Quote, Special Conditions and a Standard Inclusions document. Of course, it also included the plans which appear to have been modified to meet the additions and variations negotiated with the Owner.

Ceiling Heights

  1. [4]
    The Owner and her Husband had made a special request that the ceiling heights be 2550mm, both at ground and first floor level.  The plans reflect that with the notation FFL and FCL[1] of 2550mm.
  2. [5]
    Mr Ricciardo, who gave evidence on behalf of the Builder, conceded that the effect of the notation FFL and FCL in the plans was that the internal dimension between floor and ceiling was to be 2550mm. 
  3. [6]
    For this additional requirement, the Owner paid a further sum of $9,160.  In an email dated 13 August 2011 which passed between Patricia Anne Prentice, who was the Salesperson for Gold Award Homes, and the Owner’s partner, Mr Vasl Stiazhkin, there was a break up of the $9,160, being $5,030.00 for downstairs and $4,130.00 for upstairs.
  4. [7]
    Mr Ricciardo in his explanation in evidence as to why that ceiling height was not achieved stated that the engineering plans would have allowed for an outside block height of 2900mm and it was not possible to comply with the plans without a variation which required additional engineering input.  It seems that it may have been achievable with cavity brick but not with cement blocks. I don’t think this is a satisfactory explanation, particularly when this was an express requirement of the contract.
  5. [8]
    I, also, am not persuaded that Mr Ricciardo explained this to the Owner during the early construction period as he maintains; it only became apparent when it was pointed out by the Owner that the ceilings were not of the correct height at the ground level.
  6. [9]
    The principal witness for the Owner was her partner, Mr Vasl Stiazhkin, who had a better command of English than the Owner, Ms Palamarchuk.  It seems that most of the negotiations in relation to the construction took place with Mr Ricciardo and Mr Stiazhkin. 
  7. [10]
    When it was pointed out to the Owner that the ceiling height at the ground level had not been achieved, his son was on site (the Owner had returned to Italy for a short time).  The Builder’s son agreed to put an additional level of blockwork on the first storey which did increase the ceiling height.  At the completion of the building, according to the Applicant, the ceiling height on the ground level was 2420 to 2500mm; according to the Builder, it was 2500mm and 2449mm.  On either account, it fails to meet the terms of the Contract.
  8. [11]
    On the second level, the heights achieved were 2530 mm to 2540 mm, which again fails to comply with the terms of the Contract. Mr Ricciardo, on behalf of the Builder, says that the second storey achieved a height of 2541mm, again short of the contractual ceiling height.  It was explained by the Applicant that these were minimum ceiling heights and that she expected, in accordance with usual building practice, to have achieved some tolerance than the minimum 2550mm she contracted for.
  9. [12]
    Mr Ricciardo, in giving evidence, defended the Builder’s position by referring, in addition to the engineering difficulties already referred to that the Applicant had delayed 4 years before making this complaint. That allegation is not true, as an email on 31 July 2012, addressed to Ricciardo Builders and copied to Ms Prentice of Gold Award Homes, clearly raised the issue that the first floor ceiling heights did not achieve the heights agreed to.
  10. [13]
    Mr Ricciardo called, on his behalf, the Sales Manager for Gold Award Homes, Mr Emmanuel Bellas.  Mr Bellas said that the issue of the ceiling height was fully explained to the customer when the home was under construction and well before final payment.  The explanation was that the height varied because of ceiling battens, internal ceiling linings and services.  Of course, such an explanation totally ignores the term of the Contract that the dimensions were between finished floor level and finished ceiling level. 
  11. [14]
    Mr Bellas also said that the Owner did not challenge the Builder before the final completion.  In fact, it appears that he did, by the email dated 31 July 2012.  Mr Bellas referred to clause 25.8 of the Contract which was to the effect that the Owner’s payment of the final claim was conclusive evidence of the Owner’s satisfaction in relation to the Contract.  The exception referred to in that clause was any claim for defects or other faults already notified as provided for by clause 27. Clearly, the email of 31 July 2012 amounts to such notice.
  12. [15]
    In my opinion, the Contract has been clearly breached by the failure of the Builder to construct ceiling heights of 2550mm. This is not a case where the error may fall within a permissible tolerance, this is a case where the owner specifically requested additional ceiling height and paid for it.  The defect cannot be rectified, as to do so now would be an unreasonable course to adopt as it would involve demolition of the home.[2]
  13. [16]
    Therefore, I would allow damages being the repayment of the sum of $9,160.

Damages for Delay

  1. [17]
    The second part of the Owner’s claim was damages for delay. 
  2. [18]
    Clause 32 of the Contract provides:

If the works do not reach practical completion by the end of the building period the Owner is entitled to liquidated damages in the sum specified in Item 11 for each day after the end of the building period to and including the earlier of:

  1. (a)
    the date of practical completion;
  2. (b)
    the date this contract is ended; and
  3. (c)
    the date that the Owner takes control of, possession of, or use of the site or any part of the site.
  1. [19]
    Item 11 allows for $30 a day as the amount of liquidated damages. 
  2. [20]
    “Practical completion” is defined as the meaning it has in Schedule 2.  Schedule 2 provides that:

“Practical completion” means the stage when the works:

  1. (a)
    have been completed in accordance with this Contract and all relevant statutory requirements apart from minor defects or minor omissions; and
  2. (b)
    are reasonably suitable for habitation.
  1. [21]
    Clause 10 provides that the works must reach practical completion within 200 days which includes calculable delays of 20 days for inclement weather and 42 days for weekends, public holidays and rostered days off.
  2. [22]
    The works commenced, the Builder says, when he laid the slab, which was 30 November 2011.  The Owner says, in his email of 31 July 2012, that the work commenced on 23 November 2011.
  3. [23]
    The Final Inspection Certificate, which is Exhibit 8, has the footing stage as inspected on 30 November 2011 and I accept that that is the day work commenced. 
  4. [24]
    The work was completed according to the Builder on payment of the practical completion stage.  The invoice [Exhibit 7] states that to be 10 August 2012.  That is the date of the invoice. One would assume that it was paid within the 7 days as required.  Mr Stiazhkin maintained a later date, but I accept 17 August as being the relevant date.
  5. [25]
    For the period between 13 November 2011 and 17 August 2012, there are 261 days.  The Builder claims that the Owner took up some of that time installing his own cabinets and kitchen furniture.  Mr Ricciardo accepted that 2 days would cover that period.  I have reduced the period by 5 days to allow for any error. 
  6. [26]
    Therefore, delay damages amount to 56 x $30 = $1,680.
  7. [27]
    I order the Respondent pay the Applicant the sum of $10,840 by 4pm on 2 September 2016.

Footnotes

[1] Finished floor level and finished ceiling level.

[2] Bellgrove v Eldridge (1954) 90 CLR 613.

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Editorial Notes

  • Published Case Name:

    Palamarchuk v Ricciardi Builders

  • Shortened Case Name:

    Palamarchuk v Ricciardi Builders

  • MNC:

    [2016] QCAT 262

  • Court:

    QCAT

  • Judge(s):

    Mr R F King-Scott

  • Date:

    04 Jul 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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