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  • Unreported Judgment

White & Anor v Kadadi t/as AAA Bathroom Renovations Brisbane & Anor

 

[2016] QCAT 358

CITATION:

White & Anor v Kadadi t/as AAA Bathroom Renovations Brisbane & Anor [2016] QCAT 358

PARTIES:

Joel Gerard White

Noel Christopher White

(Applicants)

 

v

 

Ayman Kadadi t/as AAA Bathroom Renovations Brisbane

Ben William Davidson

(Respondents)

APPLICATION NUMBER:

BDL259-15

MATTER TYPE:

Building matters

HEARING DATE:

20 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member Deane

DELIVERED ON:

29 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Ben William Davidson is to pay Joel Gerard White and Noel Christopher White $2,914.18 by 31 October 2016.
  2. Ayman Kadadi t/as AAA Bathroom Renovations Brisbane is to pay Joel Gerard White and Noel Christopher White $1,209.18 by 31 October 2016.
  3. Ben William Davidson is to pay Joel Gerard White and Noel Christopher White $215 in respect of costs by 31 October 2016.
  4. Ayman Kadadi t/as AAA Bathroom Renovations Brisbane is to pay Joel Gerard White and Noel Christopher White $90 in respect of costs by 31 October 2016.

CATCHWORDS:

CONTRACTS - BUILDING, ENGINEERING AND RELATED CONTRACTS – whether work  of initial contractor defective – whether work of subsequent rectifying contractor defective – measure of damages payable by initial contractor – measure of damages payable by subsequent contractor – where duty to mitigate

PROCEDURE – where no appearance by respondent – whether to proceed in the respondent’s absence

PROCEDURE - COSTS – whether to award costs where applicants substantially successful in building disputes

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93

Bellgrove v Eldridge (1954) 90 CLR 613

Darbishire v Warren [1963] 1 W.L.R. 1067

APPEARANCES and REPRESENTATIVES:

APPLICANTS:

Joel Gerard White (by telephone)

Noel Christopher White (in person)

RESPONDENTS:

Ben William Davidson (by telephone)

REASONS FOR DECISION

  1. [1]
    Mr Noel White is the owner of an apartment in Fortitude Valley (the Apartment). His son, Mr Joel White, is the occupant of the Apartment. Mr Joel White requested Mr Davidson to perform some renovation work at the Apartment. The Whites claim that:
    1. Mr Davidson’s work was defective, because two walls in the downstairs bathroom were bowed and not suitable for subsequent trades, in particular to install a shower screen, and required rectification.
    2. Mr Kadadi was requested to perform rectification work on one wall of the downstairs bathroom when Mr Davidson did not respond to a request to inspect and rectify.
    3. Mr Kadadi’s work was defective, because the one wall he worked on remained bowed and not suitable for subsequent trades, in particular to install a shower screen, and required rectification.  The Whites were not able to make contact with Mr Kadadi to request him to return to rectify his work.
    4. PG & RY White Builders Pty Ltd was engaged to perform and satisfactorily completed rectification work on both walls.
    5. they are entitled to reimbursement of the costs of rectification and attempted rectification and the filing fees paid. 
  2. [2]
    Prior to the hearing Mr Ayman Kadadi t/as AAA Bathroom Renovations Brisbane and Mr Davidson did not file any documents in response to the claim set out in the application.  The Whites filed an application for decision by default and sent a copy express post to each of the respondents.  During the hearing Mr Noel White advised that some mail addressed to Mr Davidson had been returned undelivered but mail addressed to Mr Kadadi had not.
  3. [3]
    At the hearing neither Mr Kadadi nor Mr Davidson appeared in person.  At the commencement of the hearing I requested the hearing support officer:
    1. to telephone Mr Kadadi.  A message that ‘the call could not be connected’ was received. 
    2. to telephone Mr Davidson, who agreed to participate in the hearing by telephone.
  4. [4]
    Having regard to the Notice of Hearing on the Tribunal file I was satisfied that Mr Kadadi had received notice of the hearing.  In accordance with  section 93 of the Queensland Civil and Administrative Tribunal Act (Qld) 2009 I determined to proceed to hear and decide the matter in his absence.

Was Mr Davidson’s work defective?

  1. [5]
    Mr Davidson denies that his work was defective. 
  2. [6]
    I find, on the balance of probabilities, that Mr Davidson’s work or the work of his subcontractor, the plasterer, for whose work Mr Davidson was responsible as against the Whites, was defective in breach of Mr Davidson’s contract.
  3. [7]
    The evidence is, and I accept, that:
    1. in late 2014, Mr Davidson quoted for and was engaged to demolish the two existing bathrooms in the Apartment including removing and replacing the plasterboard walls, frame out the section for the vanity and toilet, prepare and make good for subsequent trades.
    2. Mr Davidson previously held, but does not currently hold, a licence issued by the Queensland Building and Construction Commission.
    3. there was no written contract setting out all the terms of the agreement.
    4. the work actually performed did not align with the written quote.
    5. the amounts invoiced by Mr Davidson were for the work actually performed, primarily for the downstairs bathroom and included packing the pre-existing out of plumb wall framing to create a level surface for subsequent trades and including plastering.  There was some evidence that some work invoiced[1] was not performed but there was no evidence of the  value of this work and so I do not consider it further.
    6. Mr Davidson subcontracted the plastering work, which was performed after Mr Davidson replaced the plasterboard walls.
    7. after the plasterer had performed his work, in January 2015, the Whites engaged a tiler to tile the downstairs shower recess and paid $2,321.[2] 
    8. on 4 February 2015 a representative of Custom Glass & Shower Screens attended site to conduct a final check measure of the bathroom prior to installation of the shower screen.  They found that ‘one wall is bowed with varied run-outs….by 14mm from bottom to top. We cannot safely and satisfactory (sic) carry out shower screen installation….with the current wall run-outs.’[3]
    9. during the period 4 – 8 February 2015 a number of emails were exchanged by Mr Joel White and Mr Davidson in relation to the bow in the wall found by Custom Glass & Shower Screens.  Mr Joel White requested Mr Davidson to inspect and rectify the work.  Mr Davidson offered to help on the condition that Mr Joel White paid another person money claimed to be owing by that person in respect of an unrelated agreement, advised that he was going away for two weeks and failed to confirm he would inspect the wall on his return.[4]
  4. [8]
    I am satisfied that there was an implied term of the agreement that the work was to be performed with reasonable care and skill.  Mr Davidson did not dispute that the walls were to be rendered suitable for subsequent trades. 
  5. [9]
    Mr Davidson’s evidence was that he packed out the pre-existing out of plumb wall framing, used a level against the existing stud work and that the walls were plumb when the plasterers commenced their work. In view of the findings of the shower screen installers he contends that either the plasterer’s or the tiler’s work caused the walls to be bowed.
  6. [10]
    Although no comprehensive witness statement from Custom Glass & Shower Screens’ representative was provided Mr Joel White’s evidence relevantly was that:
    1. he was present on both occasions when Custom Glass & Shower Screens measured;
    2. on the first occasion both the tiled shower cubicle and the plasterboard sections of the wall were measured and the same or similar bow in both areas of the wall was found;
    3. on the second occasion they found that the opposite wall, which had not been measured on the first occasion, was also similarly out of plumb so that the other end of the shower screen could not safely be affixed to the wall. 
  7. [11]
    Mr Davidson chose not to inspect the bow found in February 2015 when offered an opportunity to do so and was not able to give evidence that both walls were level after the plasterer performed his work, because he did not return to check on his sub-contractor’s work. 
  8. [12]
    On the balance of probabilities, I find that both walls were not plumb prior to the tiling work, in breach of Mr Davidson’s contract, because I accept the evidence that both the tiled section of the shower recess and the plasterboard walls were similarly out of plumb. 

Was Mr Kadadi’s work defective?

  1. [13]
    I find, on the balance of probabilities, that Mr Kadadi’s work was defective in breach of his contract. 
  2. [14]
    Mr Kadadi did not file any response denying the White’s claims and did not provide any evidence to dispute the White’s evidence.
  3. [15]
    The evidence is, and I accept, that:
    1. Mr Joel White engaged Mr Kadadi on the recommendation of Custom Glass & Shower Screens.  The Whites did not seek other quotes.
    2. there was no written contract setting out all the terms of the agreement.
    3. on or about 23 February 2015 Mr Kadadi attempted to rectify the wall and was paid $880 for labour and materials.[5]
    4. the Whites engaged the previous tiler to replace water proofing and the tiling removed in the rectification work and paid $825.[6]
    5. Mr Joel White was present when Custom Glass & Shower Screens:
    1. returned for a final check measure of the bathroom prior to installation of the shower screen;
    2. found, when measured with a laser, that the wall remained similarly out of tolerance for safe installation of the shower screen. 
  4. Mr Joel White attempted to call Mr Kadadi to seek rectification of the work but the phone number appeared to be disconnected.
  • [16]
    I am satisfied that there was an implied term of the agreement that the work was to be performed with reasonable care and skill and that the walls were to be rendered suitable for subsequent trades. 
  • [17]
    On the balance of probabilities, I find that the wall was not plumb prior to the tiling work.

What damages are payable by Mr Davidson?

  1. [18]
    I find that Mr Davidson is to pay the Whites $2,914.18.
  2. [19]
    The measure of damages is, generally said to be, the difference between the contract price for the work contracted for and the cost of making the work conform to the contract.[7]  The evidence is that the Whites paid both Mr Davidson’s invoices submitted totalling $3,635.[8]
  3. [20]
    Where there is a breach of contract, a party has a duty to mitigate their loss.  All amounts incurred, as a result of a breach, are not necessarily recoverable.
  4. [21]
    The ‘duty to mitigate’ has been explained as:

The true meaning is that the claimant is not entitled to charge the defendant by way of damages with any greater sum than that which he reasonably needs to expend for the purpose of making good the loss. In short, he is fully entitled to be as extravagant as he pleases but not at the expense of the defendant. [9]

  1. [22]
    The Whites attempted to mitigate their loss by requesting Mr Davidson to return and rectify the work.  Mr Davidson did not unconditionally agree to return to inspect the work and failed to respond to Mr Joel White’s email seeking confirmation that he would inspect on his return from being away for two weeks.  I am satisfied that it was not unreasonable to reject Mr Davidson’s conditional offer and to seek to engage another contractor in such circumstances.
  2. [23]
    The evidence is and I accept that after the Whites could not make contact with Mr Kadadi they:
    1. engaged PG & RY White Builders Pty Ltd to rectify both walls. 
    2. did not seek other quotes because they wished to engage someone they trusted.  Mr Peter White and Mr Noel White travelled from Mackay to Brisbane.  Mr Peter White is Mr Noel White’s brother. 
    3. paid PG & RY White Builders Pty Ltd $1,500 for labour, purchased materials at Mr Peter White’s request (some of which incurred delivery fees) totalling $343.66, incurred two nights accommodation for Mr Noel White and Mr Peter White in the sum of $360 and incurred return airfares for Mr Noel White and Mr Peter White in the sum of $696.66.
    4. also paid $79.70 to purchase additional tiles and $495 to a different tiler to replace the tiling removed in the rectification work.
  3. [24]
    The Whites did not seek more than one quote on either the first or second rectification occasions.  During the hearing, Mr Davidson did not expressly take issue with the reasonableness of the costs of rectification on either the first or second rectification occasions.  He did not offer any alternative evidence as to the reasonable costs of rectification.
  4. [25]
    No witness statement from Mr Peter White was provided apportioning the costs of labour and materials between each of the two walls.  During the hearing unsuccessful attempts were made to telephone him so that he could give oral evidence. Mr Davidson accepted that the walls were of similar dimensions and that a reasonable apportionment was 50% for each wall. 
  5. [26]
    Having regard to the amounts charged by Mr Kadadi for one wall and by PG & RY White Pty Ltd for labour and the materials purchased at Mr Peter White’s request for two walls, I find that the amounts incurred for labour and materials on both rectification occasions were reasonable.   
  6. [27]
    The Whites, perhaps understandably, chose to engage a builder from Mackay that they trusted to complete the rectification work and thereby incurred a return airfare and accommodation costs, which would not have been reasonably required if a local contractor was retained.  I am not satisfied that such amounts are recoverable as reasonable rectification costs. 
  7. [28]
    Mr Noel White, as owner, travelled to Brisbane to oversee the work and to assist his brother where he could.   His evidence was that his assistance was limited.  I am not satisfied that the costs of accommodation for two nights and Mr Noel White’s flights were costs reasonably incurred to ensure the defective work was rectified.  I am not satisfied that such amounts are recoverable as reasonable rectification costs. 
  8. [29]
    Mr Davidson contends that if the walls were out of plumb prior to the tiling work, the tilers ought to have been aware of the variance and not proceeded to tile.  I accept that, generally, where a subsequent trade performs work they are deemed to accept the suitability of the previous work and cannot complain that a defect in their work is attributable to the poor substrate.  In this case, there is no allegation that the tiling itself was defective but rather the claim is that the walls were bowed.   
  9. [30]
    In a sense, many of the subsequent expenses incurred by the Whites arose as a result of Mr Davidson’s breach.  However, on balance I find that Mr Kadadi’s breach of his contract was an intervening event, which broke the chain of causation between the ongoing loss in respect of that wall and Mr Davidson’s breach of contract.
  10. [31]
    I find that the Whites’ reasonable loss flowing from Mr Davidson’s breach of contract was $2,914.18 calculated as follows:
    1. Amount paid to Mr Kadadi     $880.00
    2. Amount paid to tiler post Mr Kadadi rectification  $825.00
    3. PG & RY White – 50% of labour costs (opposite wall) $750.00
    4. Materials purchased at PG White’s request - 50%  $171.83
    5. Amount paid to tiler post PG White rectification – 50% $247.50
    6. Additional tiles – 50%      $39.85

What damages are payable by Mr Kadadi?

  1. [32]
    I find that Mr Kadadi is to pay the Whites $1,209.18.
  2. [33]
    The Whites attempted to mitigate their loss by attempting to request Mr Kadadi to return and rectify the work.  I find that it was not unreasonable to engage another contractor to perform the rectification work when Mr Kadadi could not be contacted.
  3. [34]
    I find that the Whites’ reasonable loss flowing from Mr Kadadi’s breach of contract was $1,209.18 calculated as follows:
    1. PG & RY White – 50% of labour costs   $750.00
    2. Materials purchased at PG White’s request – 50%        $171.83
    3. Amount paid to tiler post PG White rectification – 50% $247.50
    4. Additional tiles – 50%      $39.85

Costs

  1. [35]
    The Whites also seek recovery of the filing fee paid to the Tribunal in the sum of $305.
  2. [36]
    The Tribunal has a broad discretion to award costs in building disputes.[10]
  3. [37]
    The Whites have been substantially successful in their claims against both Mr Davidson and Mr Kadadi.  I find that Mr Davidson is to pay the Whites $215 and Mr Kadadi is to pay the Whites $90 in respect of the filing fee, having regard to the proportionate share of the damages found to be payable by each of them.

Footnotes

[1] Exhibit 3, attachments 7 and 8.

[2] Exhibit 2, attachment 4.

[3] Exhibit 2, attachment 5.

[4] Exhibit 3, attachments 13, 14 and 15.

[5] Exhibit 2, attachment 6.

[6] Exhibit 2, attachment 7.

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

[8] Exhibit 2, attachments 2 and 3.

[9] Darbishire v Warren [1963] 1 W.L.R. 1067 at 1075.

[10] Queensland Building and Construction Commission Act (Qld) 1991 s 77.

Close

Editorial Notes

  • Published Case Name:

    White & Anor v Kadadi t/as AAA Bathroom Renovations Brisbane & Anor

  • Shortened Case Name:

    White & Anor v Kadadi t/as AAA Bathroom Renovations Brisbane & Anor

  • MNC:

    [2016] QCAT 358

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    29 Sep 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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