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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Ward v Jordan  QCAT 51
kenneth donald jordan t/as ken jordan swimming pools
19 February 2020
30 May 2018
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – Domestic Building Dispute – whether contract validly suspended – whether contract validly terminated – where defective and incomplete work – whether rectification reasonable and necessary – cost of reasonable and necessary rectification
Queensland Civil and Administrative Tribunal Act
2009 (Qld), s 3(b), s 11, s 12, s 28(3)(a)
Queensland Building and Construction Commission
Act 1991(Qld), s 77
Queensland Building and Construction
Commission Regulation, s34B
Airstrike Industrial Pty Ltd v Robertson  QCATA 209
Aon Risk Services Aust Pty Ltd v Australian National University (2009) 239 CLR 175
Bellgrove v Eldridge (1954) 90 CLR 613
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1
Ryan v Worthington Simmons  QCATA 277
Salam v Henley Properties (Qld) Pty Ltd  QCATA 118
Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272
W Morgan of Morgan Mac Lawyers
Self – represented
REASONS FOR DECISION
- Mr Ward entered into a contract with Mr Jordan for the construction of a swimming pool and related works (the Contract) for $40,000. Mr Ward claims that Mr Jordan’s work was defective and incomplete. He issued a notice to remedy breach dated 12 February 2015. On 2 March 2015, Mr Ward purported to terminate the Contract (Termination Notice). He seeks damages and interest on damages. Mr Jordan claims the Termination Notice was not valid. He says the Contract was suspended due to non-payment but that in any event practical completion was deemed to have occurred no later than mid October 2014 as Mr Ward was making use of the pool by that time. To the extent defects are determined Mr Jordan seeks the opportunity to undertake rectification. Mr Jordan did not make a counter-application in these proceedings. He sought an order that the claim be dismissed.
- The Contract provided for instalment payments. Mr Ward paid the deposit and amounts for stages one to four totalling $34,000 by 23 September 2014. He withheld payment of the stage five claim due to his claim that stage four work was defective and because he had noticed other defects from earlier stages.
- The Contract schedule at item 10 provided that $5,000 was payable on the completion of stage five, the internal lining and initial chemical treatment stage. Mr Jordan contends that the stage five claim was due for payment on 4 October 2014. Mr Ward contends the practical completion stage payment is not due as he claims it was not achieved prior to the Contract being terminated. The Contract schedule at item 10 provided that $1,000 was payable on achieving practical completion.
- During the hearing, on occasions, both Mr Ward’s and Mr Jordan’s recollections were inconsistent with contemporaneous documentary evidence resulting in considerable inconsistencies and confusion in their evidence. Where there is no contemporaneous documentary evidence it is difficult to place much weight upon their recollections.
- Mr Ward is the applicant and bears the onus of proof to establish his claims on the balance of probabilities.
- Although Mr Ward was legally represented, evidence presented by Mr Ward and other witnesses called on Mr Ward’s behalf was not as fulsome as it might have been. Mr Jordan was self-represented and made a number of assertions during his questioning of witnesses, without necessarily giving formal evidence about these matters. I refer in these reasons to some of these assertions as contentions.
- The delay in finalising this proceeding is regrettable and relates to resourcing issues.
Was practical completion achieved or deemed to be achieved?
- I find that practical completion was deemed to be achieved not later than 15 October 2014.
- Mr Ward concedes that he or his family commenced using the pool not later than 15 October 2014. The evidence before me is that this was not with Mr Jordan’s written consent.
- The Contract provided that if the owner takes possession without the written consent of the contractor, practical completion is deemed to be reached.
- However, the Contract also provided for a defects liability period, where the contractor was obliged to complete incomplete works or rectify defective works.  The evidence is, and I accept, that Mr Ward raised issues with Mr Jordan’s work during the defects liability period, from about 15 October 2014.
- Mr Jordan claims that he did not attend to the incomplete work or rectification works as he suspended the Contract.
Did Mr Jordan validly suspend the Contract?
- I am not satisfied that Mr Jordan validly suspended the Contract.
- Mr Jordan contends that he was not obliged to attend to incomplete or defective work as he had suspended the Contract for non-payment. There is no written suspension notice from Mr Jordan to Mr Ward as contemplated by the Contract in evidence before me. Mr Jordan’s evidence, somewhat inconsistently, was that he either suspended or terminated the Contract prior to Mr Ward’s Termination Notice. He produced an email to Mr Ward’s lawyers dated 2 March 2015, which purported to set out the text of an earlier email to Mr Ward suspending the works. Mr Jordan’s oral evidence, as to when the earlier email was sent, was unconvincing as it lacked any detail. Mr Ward did not concede that he received the claimed earlier email.
- There is insufficient evidence before me to be satisfied that such an email suspending the works was sent to Mr Ward prior to 2 March 2015.
Did either Mr Ward or Mr Jordan validly terminate the Contract?
- I find that neither Mr Ward nor Mr Jordan validly terminated the Contract.
- Mr Jordan contends that Mr Ward did not validly terminate. Mr Jordan claims that he terminated the Contract prior to Mr Ward’s Termination Notice.
- Mr Jordan points to an email dated 6 August 2014 a copy of which is attached to Mr Ward’s affidavit. The email foreshadows that Mr Jordan would terminate on 8 August 2014. The evidence is that work continued well beyond the stipulated date, which is evidence that the Contract was not terminated at that time. It also indicates a waiver of any entitlement to terminate solely on the basis set out in the email.
- Mr Jordan contends that he commenced a minor civil dispute proceeding prior to receiving the Termination Notice and that by doing so he should be regarded as having terminated the Contract prior to Mr Ward’s attempt. There is some evidence of these matters in the documents before me. Mr Jordan also referred to him commencing proceedings during the course of the oral hearing.
- Mr Jordan attempted to raise certain matters in his final submissions, which were not raised before during or prior to the hearing. He also sought to produce documents that were not previously before me by attaching them to his final submissions. To the extent such evidence was not before me previously I decline to allow it into evidence at such a very late stage. To do so would not afford Mr Ward natural justice.
- I accept that it is possible to terminate a contract by commencing proceedings or by defending and making a counter-application. However, it is necessary to clearly make an election to terminate. It is also necessary to make such an election within a reasonable time of the breach or repudiatory conduct relied upon otherwise the right to terminate will be waived.
- There is no clear evidence of unequivocal termination by Mr Jordan before me upon which I could rely to find that Mr Jordan terminated the Contract prior to 2 March 2015, when Mr Ward purported to terminate under the Contract in reliance upon clause 20.
- An owner’s entitlement to terminate under the Contract is dependent upon the owner not being in substantial breach of their obligations.
- The Contract does not specifically define ‘substantial breach’ unlike some other standard form building contracts.
- Under the Contract an owner is obliged to pay progress claims validly made and has no general right of setoff or retention for defective works. Mr Ward had no contractual right to withhold amounts for defective works unless he could establish that due to the nature of the defects the stage claim was not validly made. Mr Ward did not seek to advance such a right. I do not consider further whether Mr Ward had any such entitlement.
- Mr Ward purported to exercise a general right of set off when none existed. An owner’s primary and fundamental obligation is to pay amounts owing under the Contract.
- I find that Mr Ward was in substantial breach of the Contract at the time he purported to terminate and therefore the purported termination under the Contract was not valid.
- Mr Ward did not seek to advance a right to terminate the Contract for repudiation of the Contract by Mr Jordan. I do not consider further whether Mr Ward had any such entitlement.
Are the works defective or incomplete? What are the reasonable costs of rectifying or completing the works?
- I consider each item of defective and incomplete work claimed.
- The established measure of damages for breach of contract is to award an amount so that the person is placed in the same position, in so far as money can, as the person would have been in had the Contract been performed. Where works are defective or incomplete, this requires an assessment of the cost of work, which is both reasonable and necessary to ensure Mr Ward receives the benefit of the Contract entered into by the parties. It also requires an accounting of the Contract price and amounts paid.
- Mr Jordan was required to carry out the works under the Contract in an appropriate and skilful way and with reasonable care and skill.
- Mr Jordan seeks an opportunity to rectify any defects or incomplete works determined. I accept that a contractor is ordinarily entitled to carry out rectification of defects and omissions and that upon a consideration of the facts in each case the contractor may lose that right. Mr Ward contends that he validly terminated the Contract such that the right to rectify is now not available. As set out earlier in these reasons, Mr Ward did not validly terminate. The Contract therefore remained on foot.
- I am not inclined to allow Mr Jordan to return to rectify the defects or complete the incomplete works. Given the relationship between the parties, which was openly hostile during the oral hearing, ordering Mr Jordan to return to perform work is likely to promote further disputes between the parties.
- Mr Jordan submitted little evidence to challenge the necessity for rectification work and less to challenge the amount sought by Mr Ward. Mr Jordan contended that the Queensland Building and Construction Commission (QBCC) inspector, who attended at site in or about November 2014 was of the opinion that the reasonable costs of rectifying the defects and incomplete work was less than the amount unpaid under the Contract. Such a contention is essentially hearsay evidence. There is no statement of evidence from the inspector nor other documentary evidence in support of this contention. In these circumstances, it is difficult to place any weight on this assertion.
Pool fence and gate - $7,260 (incl GST)
- I find that Mr Jordan is to pay Mr Ward $7,260 (incl GST) in respect of this item.
- Mr Ward claims a number of defects associated with the pool fence and gate. It is necessary to consider the evidence in respect of each.
- Mr Ward contends that all but two of the panels of the pool fence are warped. Mr Jordan denies the panels are defective as a form 15 compliance certificate was supplied by the glass supplier/manufacturer and a building certifier provided a form 17 Final Inspection Certificate certifying the pool and the fence. Mr Jordan’s statement referred to compliance documents but none were attached.
- Although the glass certificates were not produced in evidence before me, there is evidence before me that glass certificates were obtained and provided to Mr Webb.
- Mr Jordan’s evidence was that a form 17 had been provided to Mr Ward. Mr Ward’s final submissions attempts to cast doubt on whether a form 17 was ever obtained because Mr Jordan had not produced a copy to the Tribunal. As mentioned earlier in these reasons, Mr Jordan attempted to produce a copy of documents, including a form 17, by attaching it to his final submissions. In these circumstances, I do not draw the adverse inference Mr Ward sought but do not permit the certificate into evidence for the reasons outlined earlier.
- Mr Jordan’s final submissions refer to glass standards and to QBCC ‘vercality’ standards, neither of which were previously placed into evidence. He contends the pool fence is within tolerances provided by the standards. For the reasons outlined earlier, I do not consider them. In any event there is no clear evidence of measurements to allow me to find that the goods supplied and the work performed are within the standards.
- Mr Ward contends and Mr Jordan concedes that the pool gate is not aligned to the top of the pool fence and the top and bottom of the pool gate is not square at the lock. Mr Jordan also accepted that one of the fence panels was bowed and acknowledged that it was not satisfactory.
- Mr Ward seeks replacement of the fence and gate. Mr Ward relies upon quotes and in particular the statement and oral evidence of Mr Vines, a fencing contractor, on behalf of one of the contractors, who provided a quote.
- Mr Jordan contends that the fence and gate could be adjusted. Mr Vines accepted that the top of the fence can be adjusted. Mr Jordan contends that the gate would have been adjusted but for Mr Ward’s failure to pay the stage five claim. However, as found earlier in these reasons, Mr Jordan did not properly suspend the Contract to relieve him of his obligations under the Contract.
- Mr Jordan produced a quote for realignment of the pool gate at a cost of $66 (incl GST) or if a new panel and gate was required the quote was for $440 (incl GST). Mr Vines accepted that replacing the gate only would cost approximately $400 (excl GST).
- The contractor providing the quote relied upon by Mr Jordan did not give a statement of evidence or give oral evidence in these proceedings explaining why realignment of the pool gate or replacing the gate only were appropriate. In these circumstances, I place less weight on this evidence than the evidence given by Mr Vines.
- Mr Vines’ evidence was that:
- (a)he initially provided a quote dated 9 February 2017 in the sum of $6,600 (incl GST) and since there have been some increases in pricing.
- (b)most but not all of the panels are bowed. As a contractor in this field he would not use bowed glass panels.
- (c)the panels have stamps on them but these demonstrate safety standards rather than aesthetics.
- (d)some spigots are out of alignment on the same panel. Some panels are out of alignment one way and others are out of alignment in the other direction so that they have a staggered appearance.
- (e)there is no specific standard for fence alignment.
- (f)in his view it was necessary to replace the 10 glass panels, including two as part of the gate at a cost of approximately $175 per panel (excl GST); 20 spigots at a cost of $150 per spigot (excl GST) and that the labour component would be approximately $1,850 (excl GST) because two people would be required as the panels are heavy.
- (g)as the gate has predrilled holes and it is necessary to redrill holes to ensure alignment, a new gate would be required at a cost of approximately $400 (excl GST). I accept this evidence in preference to the quote to adjust the gate.
- (h)in his experience complete replacement was ‘easier’ than attempting to protect and reuse components, in particular the spigots. If components were to be reused it would result in the labour component being increased, in his opinion by ‘double’ the amount allowed in his quote to remove and replace and that it was likely that some spigots would be damaged and be required to be replaced in any event.
- (i)the cost to remove and replace the pool fence and gate was $6,600 plus GST.
- Mr Jordan contended that the alignment of the panels could have changed over time such that he was not be responsible. I am satisfied that the fence issues requiring rectification were apparent from October 2014, shortly after the fence was erected, as Mr Ward raised substantially similar issues in his email to Mr Jordan dated 20 October 2014.
- Mr Ward produced a quote by a different contractor in the sum of $6,142.57 (incl GST). Mr Jordan disputed those costs including because he contends this quote included features not forming part of the contract works. He did not specifically challenge the original quote attached to Mr Vines’ statement other than to contend removal and replacement was not necessary. Mr Ward contends that the quotes are sufficiently similar so that I should accept the reasonableness of Mr Vines’ estimate.
- Mr Jordan contends that Mr Vines’ evidence is not impartial and should not be accepted as he stands to benefit from a finding that the pool fence and gate ought to be removed and replaced. Although I accept Mr Vines’ evidence is not completely impartial neither is Mr Jordan’s evidence.
- The independent experts’ evidence was not particularly helpful on this issue. Neither expert claimed particular expertise in respect of pool fencing. Any recommendations were generic e.g. ‘repair is recommended’. Mr Follett, a registered builder and a registered building and pest inspector, who was retained by Mr Ward, noted that the fence was out of alignment but made no reference to relevant standards and did not give evidence of recorded measurements. He does not provide evidence as to the work necessary to rectify other than to ‘replace’ the curved panel.
- Mr Follett in the Joint Report gave evidence that the bottom spigots were out of alignment due to poor workmanship and should be rectified. His oral evidence was essentially that while there is no specific fence standard, with which Mr Jordan and Mr Vines agreed, a reasonably competent contractor ought to have used a string line to ensure alignment.
- Mr Webb, a licensed swimming pool contractor, who was retained by Mr Jordan, essentially gave oral evidence that the top of the panels could be adjusted to create the appearance of alignment.
- Whilst adjustment might address the appearance of alignment it would not address the issue that most of the glass panels are bowed.
- Mr Vines’ evidence as to the issues with the fence and gate is consistent with the complaints made by Mr Ward since October 2014. I accept Mr Vines’ evidence. Given the nature and extent of the issues identified I find that the work was not carried out in an appropriate and skilful way and with reasonable care and skill and that the reasonable and necessary rectification is to remove and replace the fence and gate at a cost of $7,260 (incl GST).
- In coming to this view I have considered:
- (a)that on the evidence before me the reasonable costs of attempting to reuse some of the pre-existing materials would result in damages of at least $5,610 (incl GST) even if no spigots were damaged in the process, about which there is considerable doubt. Mr Jordan himself contended that in another job at least one of the twenty spigots was damaged and was required to be replaced;
- (b)the uncertainty of quantification of the alternate method of rectification;
- (c)the potentially greater costs of the alternate method if more than half the spigots were damaged.
Glass bead liner- $5,850
- I find that Mr Ward has not made out a claim for damages in any particular amount in respect of this item.
- I am satisfied that Mr Ward has established that the glass bead liner is defective work for which Mr Jordan is, at least in part, responsible under the Contract. There is insufficient evidence upon which I can rely to be satisfied that it is reasonable and necessary to remove and replace the liner to rectify the defective.
- Mr Ward contends that the glass bead liner is hazy, uneven and rippled and contains streaks, trowel marks and divots. He also contends it contains white pebbles instead of 100% glass beads as specified and is not the colour or product specified. Mr Ward seeks the costs to remove and replace the liner.
- Mr Jordan concedes there is a minor defect in the corner of the pool above the water line and submits that his subcontractor offered to rectify. There is insufficient evidence before me to quantify the costs of rectifying the minor defect.
- Mr Ward claims that the Contract specified Jewels for Pools glass bead. He points to the Contract, which provides at Pool Building Contract Specifications Item 26, the following interior finish description, ‘Choosen Glass Bead’. It also states ‘Midnight’, which is written over a faint ‘BL4 Jewels Pool’.
- Mr Jordan’s position is essentially that the notation was in respect of the colour of glass beads rather than an agreement that the product would be sourced from a particular supplier. He contends that the bead supplied was 100% glass and that the liner is the colour midnight.
- Mr Ward’s evidence is:
- (a)prior to entering into the Contract they were discussing glass bead colours with Mr Jordan. His partner had chosen the Jewels for Pool colour BL4. It was written on the Contract. During the discussion, Mr Jordan identified that the dark colour they wanted was described as ‘midnight’ and wrote that on the Contract.
- (b)a few days prior to installing the liner Mr Jordan advised that Jewels for Pools didn’t have a colour as dark as ‘midnight’ and that Mr Jordan would blend it to the desired colour.
- (c)he received an email with a photograph attached and he responded that the colour was perfect. He explained that his concern was to achieve a deep dark colour like the ocean rather than how that was achieved.
Is the glass bead in the liner required to be supplied by Jewels for Pools?
- I am not satisfied that the Contract required the glass beads to be sourced exclusively from Jewels for Pools. The failure to source beads exclusively from Jewels for Pools is not a breach of the Contract.
- In construing the Contract you start with the words in the Contract to discern the objective rather than the subjective intention of the parties.
- It is not disputed that the beads supplied were not exclusively sourced from Jewels for Pools.
- I accept that initially Mr Ward selected a particular colour glass bead supplied by Jewels for Pools. There is no evidence before me that ‘midnight’ was a Jewels for Pools colour at the time the Contract was signed.
- On balance, I am satisfied that through subsequent discussion that this request was superseded prior to the Contract being signed and the colour of glass beads required to be supplied was ‘midnight,’ which was written over the earlier selection.
Is the liner 100% glass bead?
- I find that the liner is 100% glass bead as required by the Contract.
- Mr Ward contends that the liner contains white pebble and is not 100% glass bead. He contends that the bead as installed is rough unlike the product they saw before entering into the Contract.
- Mr Ward relies upon evidence from Mr McAlister of Jewels for Pools. He says based on photographs the liner appears to not be 100% pure glass but to be certain he would need to inspect the pool or a sample.
- Mr Ward’s evidence is that:
- (a)he sent a small sample to Mr McAlister.
- (b)Mr McAlister indicated to him that he would need a larger sample to be certain whether the liner is 100% glass bead.
- (c)he has not sent the larger sample.
- Mr Wagner, who works for Mr Jordan’s pool finisher, gave evidence that:
- (a)100% glass bead was used by his employer.
- (b)upon inspection of Mr Ward’s pool he concluded it consisted of 100% glass bead.
- (c)the white glass beads used in Mr Ward’s pool were ‘pretty round’.
- Mr Webb gave evidence that on inspection of the pool he did not identify any ‘natural stone’ in the mix applied.
- I prefer the evidence of Mr Wagner and Mr Webb, who inspected the pool to Mr McAlister, who relied upon photographs and an insufficient sample.
Is the liner the colour ‘midnight’?
- I find the colour of the liner is ‘midnight’ as specified in the Contract.
- Mr Ward’s legal representative introduced a photograph of a colour designated ‘midnight saphire.’ There is no evidence before me that this was the actual colour specified in the Contract or that agreed subsequently between the parties. Mr Jordan’s oral evidence was that it was probably not his midnight finish. Mr Ward did not give evidence about this photograph.
- Mr Jordan says that he brought to Mr Ward’s attention that the chosen product contained approximately 5% white prior to its application. There is evidence before me that an email was sent to Mr Ward on 23 September 2014 advising the lining to be installed had 5% white and attached a photograph of the colour and that Mr Ward agreed to the proposed colour.
- Mr Jordan’s evidence was that a copy of a photograph produced during the hearing was a photograph of his own pool, which has a ‘midnight’ bead finish. He variously agreed and disagreed that it was the photograph attached to his email of 23 September 2014. His evidence, ultimately, was that the photograph attached to his email was a close up of his pool and was not the photograph he was shown. Mr Ward did not give evidence about whether this photograph was the attachment. It is difficult to compare the photograph with photographs of Mr Ward’s pool.
- Mr Wagner gave evidence that the colour of the liner applied to Mr Ward’s pool was known as ‘midnight’ and that the same blend had been applied to Mr Jordan’s own pool. He also gave evidence that they recommend putting white glass beads in all dark pool liners.
- I accept Mr Wagner’s evidence that the liner is the colour midnight, in the absence of clear evidence to the contrary.
Is Mr Jordan responsible for the discoloration?
- I am satisfied that Mr Jordan is, at least in part, responsible for the discoloration.
- Mr Ward contends that the pool is not the deep dark colour for which he contracted. Mr Ward’s evidence is that there are light swirls and that this issue was apparent soon after the pool liner was installed and the pool filled. Mr Ward’s evidence is that the pool was filled with water in about early October 2014. This evidence is consistent with information contained in an email of 15 October 2014 that work on the pool had been completed for about 10 days. It is also consistent with Mr Jordan’s evidence that the stage claim five was due for payment on 4 October 2014.
- The expert evidence is, and I accept, that the discolouration complained of is caused by calcium build up due to inadequate maintenance. This is consistent with the evidence that the pool liner around the top of the pool, which is not exposed to pool water, is the deep dark colour sought. The experts recommended that professional advice should be obtained from a relevant expert as to the method of rectification. Mr Webb in particular recommended that an experienced Pool Service Technician be consulted to remove or lessen the calcium build up.
- No statement of evidence from such an expert is before me.
- Mr Wagner gave evidence that in the first few weeks after the liner is installed it is crucial to brush the liner and to ensure that the water is not too alkaline.
- Mr Jordan’s oral evidence was that:
- (a)he no longer uses the particular product used on Mr Ward’s pool as it takes a lot of work to stop calcium build up.
- (b)he usually attended the day after the liner was installed and the pool filled with water to brush the liner and balance the pool but that because of the issues he had had with Mr Ward he did not.
- As stated earlier, he did not take steps to validly suspend the works for non-payment. Unless and until he validly suspended the works he was obliged to return to perform the works, which formed part of the contract works.
- There is evidence before me that Mr Ward received at least some instructions as to maintenance. Mr Ward stated in an email dated 15 October 2014 that he was scrubbing twice a day ‘as instructed’.
- Mr Ward has provided two quotes for removing and replacing the liner. Neither of those contractors or anyone else gave a statement of evidence or oral evidence in these proceedings explaining why removing and replacing the liner was necessary and reasonable to remove the discolouration.
- In these circumstances, there is no sufficient evidence upon which I can make a finding that the reasonable and necessary method of rectifying the calcium build up is to remove and replace the lining, even if I was satisfied that Mr Jordan was entirely responsible for allowing the calcium to build up.
Solar - $3,890.95
- I find Mr Jordan is to pay Mr Ward $3,890.95 (incl GST) in respect of this item.
- Mr Ward contends and Mr Jordan accepts that no solar heating has been installed. Mr Jordan contends that this is because Mr Ward failed to pay the stage claim five and that he suspended the works for non-payment. As earlier found in these reasons, I am not satisfied that the works were validly suspended.
- Mr Jordan contends that the quote relied upon by Mr Ward is excessive. He says that the Contract provided for solar at $2,000. Mr Jordan did not direct me to the part of the Contract before me which stipulated this amount. Upon review of the Contract in evidence before me I have been unable to locate any amount specifically allowed for this work. It was not stated to be a Prime Cost or Provisional Sum item.
- In the absence of any contrary documentary evidence or clear oral evidence, I accept the quotation submitted by Mr Ward as the reasonable and necessary costs of completing this incomplete work.
Pool lights- $910 (incl GST)
- I find that Mr Ward has not made out his claim in respect of this item.
- Mr Ward contends that the lights installed are a different colour to that requested. He says the lights were to be multi-coloured with a black surround. He relies upon a quote from Eco Solar as to the reasonable costs of rectification. No-one from Eco Solar gave evidence in these proceedings. Mr Jordan did not lead any evidence to dispute the costings prior to or during the hearing. As installed the lights are white with a clear surround. Mr Jordan did not dispute the description of the lights as installed.
- The Contract specifies the type of lights as SPA Electric LED. It does not specify which colour lights were to be installed, either as to the surround colour or the light.
- Mr Jordan accepts that lights with black surrounds were originally agreed but were unavailable. He contends that Mr Ward agreed to lights with clear surrounds being substituted rather than delaying the progress of the work.
- There is no documentary evidence before me that the lights were to be multi-coloured lights. Mr Ward did not give specific evidence as to the basis upon which he says the lights were to be multi-coloured. His list of defects sent by email on 20 October 2014 refers to the incorrect surround colour.
- In his final submissions, Mr Jordan also contends that the Contract did not provide for multi-coloured lights, such lights are more expensive and that if multi-coloured lights had been specified that would have increased the Contract price by $500. This costing evidence was not previously before me.
- There is evidence before me that Mr Ward was asked by Mr Jordan to substitute lights due to the unavailability of ones with back surrounds. The evidence is that the options provided were lights with white or chrome surrounds and that Mr Ward chose chrome.
- I am satisfied that the lights as installed did not conform to the lights agreed between the parties i.e. black surrounds or the agreed substituted chrome surrounds. I am not satisfied that the Contract called for multi coloured lights.
- I find that Mr Jordan failed to install the lights as agreed. There is no evidence before me of the reasonable costs to supply and install black or chrome surround lights that are not multi coloured. I am therefore unable to quantify Mr Ward’s loss.
Grouting and tiles - $9,980.20
- I find that Mr Jordan is to pay Mr Ward $9,980.20 (incl GST) in respect of this item.
- Mr Ward claims that the tiles should be removed and replaced at Mr Jordan’s costs for a number of reasons. He contends that:
- (a)the grouting in and around the pool contains cracks, tiles are cracking and tiles are drummy due to Mr Jordan’s failure to install expansion joints.
- (b)the tiling is uneven and contains chipped tiles and grout hazing.
- Mr Jordan concedes that expansion joints were not installed. He says the work was not completed due to the dispute over payment. Mr Jordan did not properly suspend the Contract. His failure to install expansion joints was in breach of the Contract.
- Mr Russell, a tiler with over 15 years experience, gave evidence that:
- (a)contrary to Australian Standards there were no expansion joints.
- (b)expansion joints help with movement in the concrete and expansion and contraction of the tiles due to thermal changes.
- (c)the grout joints as installed were smaller than called for by Australian Standards. The joints were 1 – 3 mm compared to the minimum of 4 mm called for by Australian Standards.
- (d)grout joints help absorb expansion of tiles.
- (e)a S2C2 glue should be used for this type of job.
- (f)although he could not be certain from an inspection alone, in his opinion, a S2C2 glue was not used as many of the sandstone tiles had become drummy.
- (g)about 50% of tiles had become drummy.
- (h)tiles become drummy when the adhesive does not have a good bond between the tiles and substrate.
- (i)in his opinion to repair these problems all tiles need to be removed, all glue ground back from the concrete and then the concrete re-tiled. The reasonable costs of performing this work was $9,880.20 (incl GST).
- Mr Jordan disputes Mr Russell’s assessment that 50% of the tiles are drummy. He relies upon plan ‘A’ attached to Mr Webb’s report which is also attached to the Joint Report showing which tiles, which were part of Mr Jordan’s scope of works, are drummy. Having regard to the experts’ evidence I do not accept Mr Russell’s evidence that about 50% of the tiles are drummy. The evidence is that there are 20 tiles laid adjacent to the deep end, all of which are drummy. Mr Ward acknowledges that the laying of these tiles did not form part of Mr Jordan’s scope of work.
- As Mr Russell was not required for questioning by Mr Jordan, the basis of Mr Russell’s assessment was not clarified.
- On my calculation 20 tiles are shown as drummy, including almost all of the tiles on the far side of the pool with a few at each of the shallow and the deep end.
- The experts’ evidence is that the extreme outside edge of the coping tiles on the far side appears not to be fully supported by the substrate surface. One of these tiles has cracked on the outer unsupported edge. They accepted that the tiles should be fully supported. Mr Follett gave evidence that a solid mortar bed should be installed under the coping tiles and the workmanship in this area was of a poor standard.
- There is no separate evidence before me as to the work required or the cost of performing the work to properly support these tiles in the absence of removing and replacing all the tiles.
- Mr Jordan essentially contended that as Mr Ward was going to tile the adjacent area the workmanship was acceptable. I accept the experts’ evidence that these tiles should be fully supported.
- I find that the failure to properly support the outer edge of the coping tiles on the far side of the pool was poor workmanship for which Mr Jordan is responsible. I also find that it is more likely than not that this caused the cracked tile on this edge.
- During the hearing I queried Mr Jordan about his decision not to require Mr Russell for questioning. Mr Jordan informed me that he accepted that Mr Russell’s quote was reasonable for the work outlined in it. He informed me that if he was to provide a quote it would be for a similar amount. However, he disputed the need for the work to be done and disputed he was responsible for the issues in the tiling.
- In his final submissions, he contended that Mr Russell’s quote was an over estimation and provided some costing evidence not previously in evidence. For the reasons previously stated, I do not take into account the costing evidence.
- In his final submissions, Mr Jordan also disputed Mr Russell’s evidence as to the relevant Australian Standards. Mr Jordan had the opportunity to provide evidence to dispute Mr Russell’s statement in this respect. He did not do so prior to the hearing nor did he request Mr Russell for questioning. For the reasons previously stated, I do not take this into account. It is too late to dispute this aspect of Mr Russell’s evidence.
- Mr Sylvester, a tiler with over 10 years experience, gave evidence that:
- (a)he used a S2C2 glue on Mr Ward’s job.
- (b)he aims to get a 3mm grout joint but due to the nature of natural stone tiles joints can vary in width.
- (c)he was unaware that Australian Standards called for grout joints to be a minimum of 4 mm. He did not seek to dispute this proposition.
- (d)expansion joints help prevent tiles cracking and becoming drummy.
- (e)he understood that Mr Jordan’s employee was to return the day following the tiling to do the grouting and silicon joints.
- I accept Mr Sylvester’s evidence that a S2C2 glue was used in preference to opinion evidence of Mr Russell based on an incorrect assessment of the percentage of drummy tiles.
- Mr Follett’s evidence was that:
- (a)if expansion joints had been installed at the time of installation of the tiles the problem with cracked and drummy tiles could have been avoided.
- (b)expansion joints should be installed at the factory edge rather than by machine cutting as chipping would occur.
- (c)drummy tiles will crack and break and become loose over time if left unrectified.
- (d)drummy tiles will cause the grout to crack and loosen.
- (e)unsupported tiles should be fully supported.
- (f)repair or replacement is required.
- (g)the overall condition and laying of the tiles was not in accordance with industry standards.
- (h)chipping to the bottom edge of the tiles was observed in various locations.
- (i)if control joints and an appropriate glue with an appropriate coverage had been used the tiles’ serviceability should have been over a longer period of time than has occurred.
- Mr Webb’s evidence was that:
- (a)it was unlikely that the lack of expansion joints has contributed to the drumminess. He gave oral evidence that there had been studies from 1998 to 2008 and that the studies were inconclusive as to whether lack of expansion joints caused drumminess or as to whether installation of expansion joints prevent drumminess.
- (b)he did not consider the drumminess was caused by poor workmanship but accepted that the extreme outside edge of the coping tiles on the far side was not fully supported by the substrate.
- (c)expansion joints should be cut into the existing tiles.
- (d)the overall condition and laying of the tiles was in accordance with swimming pool industry standards.
- (e)expansion joints related to lateral movement rather than adhesion.
- Both experts accepted that sandstone tiles:
- (a)are porous and that porosity affected adhesion.
- (b)do sometimes flake and it may affect performance.
Lack of expansion joints - consequential damage
- On balance, I find Mr Jordan’s failure to install expansion joints at the time the tiles were installed caused tiles to crack and become drummy.
- Mr Jordan concedes that expansion joints were not installed. He says the work was not completed due to the dispute over payment. The Contract was not properly suspended. Mr Jordan’s failure to install expansion joints was in breach of the Contract.
- Mr Ward contends that the grouting in and around the pool contains cracks and the tiles are lifting due to lack of expansion joints. Mr Jordan denies that the defect is due to his workmanship. Mr Jordan denies that the lack of expansion joints is causing the cracking and lifting.
- He contends that Mr Ward placed other tiles in the surrounds, which affected the tiles, for which he is responsible. As discussed earlier, the tiles placed by Mr Ward were adjacent to the deep end tiling. Mr Webb, who gave evidence on behalf of Mr Jordan did not give any independent evidence to support Mr Jordan’s view.
- Mr Ward contends that a number of tiles are drummy and one tile on the edge of the pool has a crack.
- Mr Jordan contends that the tiles selected were a “cheaper” tile. His evidence was that honed tiles which are less susceptible to drumminess are approx. $120/m2 as compared to these tiles which were approx. $60/m2.
- Mr Russell, Mr Sylvester and Mr Follett all gave evidence that installing expansion joints assist with movement. Mr Webb accepted that it assists with lateral movement. Mr Webb’s evidence is that studies were inconclusive about whether they prevented drumminess.
- The weight of evidence, which I accept, is that installing expansion joints at the time of laying tiles helps prevent tiles cracking and becoming drummy. Both Mr Sylvester and Mr Follett gave this evidence.
- Particularly given the known propensity of the sandstone tiles to chip, as set out below, I accept Mr Follett’s evidence that the expansion joints should have been installed at the factory edge rather than by machine cutting as chipping would occur. This would require the tiles to be replaced rather than cut into the existing tiles as proposed by Mr Webb.
Uneven tiles, grout hazing and chipped tiles
- I am not satisfied that uneven tiles and grout hazing are significant issues requiring rectification. I am, however, satisfied that chipped tiles are defects for which Mr Jordan is responsible.
- Mr Ward says the tiling is uneven and contains chipped tiles and grout hazing.
- Much of the evidence and submissions about grout hazing, unhelpfully, related to the first attempt to tile the area and not the replacement tiling, the subject of these proceedings. I accept that the issue was raised by Mr Ward in his email to Mr Jordan dated 15 October 2014. 
- Neither expert nor Mr Russell referred to grout hazing. Mr Ward’s evidence was not specific as to the location or extent of grout hazing.
- Mr Ward’s evidence about uneven tiles was not specific as to the location or extent.
- The Joint Report acknowledges that a few of the coping tiles were chipped on the edges.
- Mr Jordan concedes that the tiling has chips but denies he is responsible for them. He says that the tiles chosen by Mr Ward, being a natural stone product, have small chips naturally occurring and that the display tile also had the same appearance. He says Mr Ward was aware of this issue.
- The evidence is that tiling was initially performed and that Mr Ward was dissatisfied with the finish for a number of reasons including because there were many tiles that had chips. The tiling was replaced with Mr Ward selecting the same tiles from another supplier. His evidence is that the original supplier would not guarantee the product and that he spent time selecting tiles with no chips from the second supplier. The evidence is that after some tiles were laid he replaced 15 tiles, which had become chipped prior to installation.
- There is no evidence before me that Mr Jordan wrote to Mr Ward prior to Mr Ward selecting the same tile or indeed prior to laying the second lot of tiles to warn Mr Ward that he would not accept responsibility for Mr Ward’s decision to select the same tiles. The only evidence about this issue is afterwards.
- Whilst Mr Jordan was critical of Mr Ward’s selection of tiles the Contract provided that the client was to choose the tiles. It was Mr Jordan’s responsibility to use reasonable care and skill in installing the tiles chosen.
- Mr Jordan’s final submissions refer to clause 10.4 and 10.5 relating to warranties as to suitability of materials supplied by the owner. On my review of the Contract, no such provisions are terms of the Contract and no similar provisions are contained in the Contract. In any event there is no evidence that Mr Jordan wrote to Mr Ward prior to commencing installation.
- Given the nature and extent of the issues identified for which Mr Jordan is responsible I find that the work was not carried out in an appropriate and skilful way and with reasonable care and skill and that the reasonable and necessary rectification is to remove and replace the tiles at a cost of $9,980.20 (incl GST).
Alternatively, Lack of expansion joints - incomplete work
- If I had not found Mr Jordan responsible for the consequential damage, Mr Ward would be entitled to be paid $211.20 (incl GST) in respect of this item of incomplete work.
- In the absence of contrary evidence I accept that the reasonable costs of installing expansion joints is $192 (excl GST).
Two pool returns rather than three - $4,390
- I am not satisfied that Mr Ward has established on the balance of probabilities that three returns as required by the Contract were not installed.
- Mr Ward contends that the Contract stipulated three returns but only two were installed. He relies upon a quote for the costs of installing another return from 24/7 Plumbing Drainage and Gas Pty Ltd. No-one from 24/7 Plumbing Drainage and Gas Pty Ltd gave a statement of evidence or oral evidence in these proceedings. Mr Jordan did not provide any evidence about the reasonable costs of installing another return.
- Mr Jordan contends that three returns have been installed, two for the pool and one for the solar heating and that for a pool of this size only two returns are usually installed.
- As mentioned earlier, in construing the Contract you start with the words in the Contract to discern the objective rather than the subjective intention of the parties. The Contract shows that the numeral two was inserted but then changed to the numeral three. The Contract does not identify the locations for the three returns nor their purpose.
- Mr Ward gave evidence that the third return was to be located at the bottom of the steps to assist to circulate debris in that location toward the skimmer. Mr Jordan did not recall any such specific conversation. He stated that he has never placed a return in the location contended for by Mr Ward and that it would not have served the purpose Mr Ward suggested it was requested. His evidence was that there are usually two returns but if solar is included there are always three returns.
- Mr Webb, a swimming pool contractor, retained on behalf of Mr Jordan, gave evidence that there were three returns in the pool.
- The Contract provided for three returns. Three returns have been installed. I am not satisfied that the Contract was to effectively provide for four returns. There is no contemporaneous documentary evidence to clearly support Mr Ward’s contention. As mentioned earlier in these reasons both Mr Ward’s and Mr Jordan’s recollections, without the benefit of reviewing contemporaneous documents, were poor and generally inconsistent with the documentary evidence.
Liquidated damages and Solatium
- I refuse leave to amend Mr Ward’s claim to include a claim for liquidated damages and solatium.
- Mr Ward’s final submissions claim $480 pursuant to clause 18 of the Contract from 28 August 2014 to 15 October 2014 being a period of 48 days.
- Mr Ward’s Final Submissions also claim damages for solatium in the sum of $5,000.
- The Application does not make a claim for liquidated damages or a claim for solatium. Mr Ward was legally represented. The Application was set out very much in the nature of a formal pleading. Mr Ward’s lawyer handed up an outline of argument during the hearing, it referred to the ‘pleaded case’. It does not make reference to a claim for liquidated damages or a claim for solatium.
- The claim for liquidated damages and the claim for solatium made in the Final Submissions are essentially very late applications to amend Mr Ward’s claim.
- The Appeal Tribunal has previously accepted that entertaining a claim not pleaded but raised after the close of evidence, was a denial of natural justice as the other party was not given an opportunity to adduce evidence or cross examine witnesses about relevant matters.
- The Appeal Tribunal also found that in such circumstances the Tribunal ought to consider whether it would be appropriate to exercise its discretion to allow an amendment having regard to factors set out in Aon Risk Services Aust Pty Ltd v Australian National University (‘Aon’). The Final Submissions do not address the factors in Aon. In particular, there is no explanation of why the application to amend was made at such a very late stage.
- The Appeal Tribunal has observed that: 
where the parties’ legal advisers choose to conduct the case in more formal way, this cannot be ignored by the Tribunal.
- I am not satisfied that such an amendment at such a very late stage ought to be entertained. If I permitted the amendment Mr Jordan would be denied the opportunity to adduce evidence or cross examine witnesses about relevant matters.
- It is not disputed that of the Contract price $6,000 is unpaid. To establish Mr Ward’s loss it is necessary to take into account amounts which would have been paid had the Contract been completed in accordance with its terms.
- I calculate Mr Ward’s loss as follows:
Contract price $40,000.00
Less amount paid $34,000.00
Sub-total $ 6,000.00
Less damages for defective or incomplete work
- Pool fence and gate $ 7,260.00
- Solar $ 3,890.95
- Grouting and Tiles $ 9,980.20 $21,131.15
Loss $15,131.15 (incl GST)
- I find that Mr Jordan is to pay Mr Ward interest at a rate of $4.15 per day if $15,131.15 is not paid on the date ordered.
- Mr Ward claims interest on the total costs to remedy the defects. His Application seeks interest pursuant to Practice Direction No 9 of 2013, which applies to minor civil dispute applications where the respondent does not file a Response. It does not apply to the current claim, which is not a minor civil dispute application.
- The Final Submissions identifies and I accept that the Tribunal has a broad discretion to award interest on damages in building disputes and that the applicable rate is 10% on damages on and from the day after the damages become payable until and including the day the amount is paid.
- As mentioned earlier in these reasons, Mr Ward withheld $6,000 of the Contract price. To the extent that Mr Ward’s loss is greater than $6,000 he has essentially overpaid Mr Jordan and been without the benefit of such funds since at least 23 September 2014.
- However, damages are payable as from the date that this decision assesses the damages and makes findings that the damages are payable. No interest has yet accrued.
- I calculate that interest will be payable at the rate of $4.15 per day on and from the day after the date for payment until Mr Ward is paid.
Expert’s and Legal Costs
- Mr Ward claims fees paid to experts in the sum of $3,115. The Final Submissions suggest that copies of invoices were attached. They are missing from the version before me. Mr Ward also claims legal costs.
- Mr Ward has succeeded in establishing some claims and not others. It is appropriate to make directions for the provision of submissions in light of my reasons.
Exhibit 1, attachment A1.
Exhibit 2, attachment MW2.
Ibid, attachment MW3.
Exhibit 1, attachment A1, General Conditions, cl 17.8 and cl 17.9.
Ibid, cl 19.1.
Exhibit 2, attachment MW1, p5.
Exhibit 1, attachment A1, General Conditions, cl 16.2.
Exhibit 2, attachment MW3.
Exhibit 10, attachment KJ3.
Exhibit 2, attachment MW1, p 1.
 Exhibit 8, attachment A3 and Exhibit 10, attachment KJ3.
 Filed 22 November 2018.
Queensland Civil and Administrative Tribunal Act (Qld) 2009 (QCAT Act), s 28(3)(a).
 Exhibit 1, attachment A1, General conditions, cl 20.
 Ibid, cl 20.3.
 Ibid, cl 11.7.
 Ibid, cl 11.8.
Gates v The City Mutual Life Assurance Society Limited (1986) 160 CLR 1.
Bellgrove v Eldridge (1954) 90 CLR 613; Tabcorp Holdings Limited v Bowen Investments Pty Ltd (2009) 236 CLR 272.
Exhibit 1, attachment A1, General conditions, cl 10.1.
 Exhibit 2, attachment MW1, p 5.
 Ibid, attachment MW2.
 Exhibit 10.
 Joint List of Issues to be considered by Experts dated 31 January 2019.
 Exhibit 4.
 Exhibit 8, attachment A5.
 Exhibit 4, attachment MV1.
 Exhibit 15.
 Exhibit 1, attachment C1.
 Exhibit 6.
 Exhibit 7.
 Labour $4,070 (incl GST) = $1850 x 2 + GST; Glass panels $1,540 (incl GST) = at least 8 panels x $175 + GST.
 Exhibit 8, attachment A1.
 Exhibit 11.
 Exhibit 3.
 Exhibit 14.
 Exhibit 9, p3.
 Exhibit 17.
 Exhibit 8, attachment A1.
 Exhibit 16.
 Exhibit 2, .
 Exhibit 8, attachment A4.
 Completion of internal lining and initial chemical treatment.
 Exhibit 10, .
 Exhibit 7.
 Ibid, Attachment A, item 1.
 Exhibit 1, attachment A1, General conditions, cl 17.10.
 Ibid, cl 17.15.
 Exhibit 2, MW1, p 5.
 Exhibit 1, attachment C2 and part of C5.
 Exhibit 1, attachment C3.
 Ibid, attachment C4.
 Exhibit 1, attachment A1, Pool Building Contract Specifications, item 19.
 Exhibit 8.
 Exhibit 10.
 Exhibit 15.
 Exhibit 15.
 Exhibit 5.
 Exhibit 5, attachment KR1.
 Exhibit 9.
 Exhibit 7.
 Exhibit 7, p 2, .
 Exhibit 6, p 4.
 Filed 22 November 2018, .
 Ibid,  and .
 Exhibit 5, filed 6 July 2017.
 Exhibit 12 and oral evidence during the hearing.
 Exhibit 2, attachment MW1, p 5.
 Exhibit 7, p3, [1 c].
 Exhibit 2, attachment MW1, p 2.
 Exhibit 1, attachment A1, Pool Building Specifications, Item 24.
 Exhibit 5, attachment KR1.
 Exhibit 1, attachment C6.
 Exhibit 1, attachment A1, Specification item 18.
 Filed 5 July 2018 (Final Submissions).
 Exhibit 1.
 Salam v Henley Properties (Qld) Pty Ltd  QCATA 118.
 (2009) 239 CLR 175.
 QCAT Act, s 3(b).
 Ibid s 28(3)(a).
Ryan v Worthington Simmons  QCATA 277, ; Airstrike Industrial Pty Ltd v Robertson  QCATA 209.
 Exhibit 1.
 QCAT Act, s 11 and s 12.
Queensland Building and Construction Commission Act 1991(Qld) (QBCC Act), s 77 and Queensland Building and Construction Commission Regulation, s34B.
- Published Case Name:
Ward v Jordan
- Shortened Case Name:
Ward v Jordan
 QCAT 51
19 Feb 2020