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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
McHenry v Kiriazis  QCAT 80
25 March 2020
27 June 2019; 28 June 2019
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK - REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF - where applicant contracted respondent to perform various building works including installing cabinetry in the laundry – where applicant alleges that cabinetry is defective – where respondent claims he was refused to attend to defective works - whether replacement the approximate remedy
REASONS FOR DECISION
- On December 2017 Raymond McHenry contracted Anthony Kiriazis trading as Cairns Kitchen’s and Renovations to manufacture and install a kitchen and vanities for his bathroom, en suite and cabinetry in the laundry (‘the works’) at his unit at Clifton beach.
- After discussions the design was settled when Mr McHenry accepted the second of three quotes given by Mr Kiriazis. That quote ‘was followed by 12 pages of shop drawings and specifications to clarify the works to be done.’
- Mr McHenry’s evidence is that he obtained several quotes all with similar pricing but accepted Mr Kiriazis’ quote because he was keen to get the work, Mr Kiriazis was always available to answer his questions and most importantly Mr Kiriazis was the only one who said he could complete the works by Christmas 2017.
- Mr McHenry says he required a ‘good quality job’ and received assurances from Mr Kiriazis that he would. I accept that that is the case. It was not argued by Mr Kiriazis that there was no express or implied warranty of fitness for purpose or reasonable quality.
- Christmas came and went and the works remained incomplete. Mr McHenry and his partner Carole Lovell were becoming increasingly concerned with the standard of workmanship and were less convinced with Mr Kiriazis’ responses that they were caused by other tradesmen and would be ‘adjusted/touched up/patched up at the end when he finished the job.’
- Mr Kiriazis says that despite having reservations that some of Mr McHenry’s concerns were outside the scope of works or were not actual defects, he never refused to attend to them and would have done so if allowed to complete the works. This is disputed by Mr McHenry. He says Mr Kiriazis believed it was only necessary to refit some shelves.
- While recollections of events and dates differ it is not disputed that Mr McHenry delivered a two page list of defects to Mr Kiriazis on 19 January 2018 and that Mr Kiriazis delivered to Mr McHenry a final invoice of $6,286.00 an amount disputed by Mr McHenry.
- It is also not disputed that Mr McHenry refused to allow Mr Kiriazis back on site.
- On 17 September 2018 the Tribunal directed that the matters be consolidated as BDL087-18 and that Mr Kiriazis’ application be deemed as his response and counter application in the combined proceedings.
- The latter is unfortunate because Mr Kiriazis’ application is in no way a response to Mr McHenry’s application which it pre-dates. My understanding that his response, taken from his witness statements filed on 21 January 2019 and his response to Mrs Lovell’s statement is:
- (a)The various items are not defects but rather incomplete works;
- (b)He was and remains willing to complete the works but was prevented from doing so from Mr McHenry; and
- (c)If the works are defective: -
- Other trades or manufactures were responsible for those defects; and
- They can be remedied by adjustment rather than by removal and replacement of the works.
- The matter was heard over two days on 27 and 28 June 2019 and at the hearing the evidence in submissions was directed almost exclusively to the issue of whether the works could be completed to a satisfactory standard or any defects could be remedied by removing the works and replacing them with new cabinetry.
- Mr McHenry filed in the Tribunal evidence by no fewer than six tradesmen namely:
- (a)Steven Sargent, QBCC Inspector and a qualified carpenter joiner;
- (b)Brett McPhee;
- (c)Shaun Kilfoy;
- (d)John Marshall;
- (e)Darren Parsons; and
- (f)Laurence Rees, a tiler.
- Save for Mr Sargent and Mr Rees, all were qualified cabinet makers. All except Mr Parsons and Mr Rees were made available for cross-examination. It is not the case that Mr McHenry has sought opinions from multiple experts of the same qualification. Mr Kilfoy is the only expert whose opinion Mr McHenry sought and paid for. Mr Sargent was the QBCC inspector who prepared an early dispute resolution inspection report (Exhibit 1) following Mr McHenry’s claim to QBCC. Mr McPhee, Mr Marshall and Mr Parsons attended at the request of Mr Kiriazis to carry out rectification works at various stages of the proceedings.
- Mr Kiriazis, a qualified cabinet maker gave evidence on his own behalf and filed a statement by another cabinet maker, Mario Sinopoli. Mr Sinopoli was made available for cross-examination.
- Mr Sargent’s report includes 43 ‘dispute items’. It was prepared in response to Mr McHenry’s complaint to QBCC and not to these proceedings. It identifies whether each disputed item is building work for the purposes of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) and whether it is defective. It does not concern itself with disputes that are contractual. The report should be viewed cautiously. For example, in dispute items 23 and 24 which relate to the laundry cabinetry, Mr Sargent says no defective work is identified because it is a contractual issue but in cross-examination he says that it was probably easier to replace the laundry cabinetry then to repair it.
- The report is useful in that it identifies clearly Mr McHenry’s issues and provides a template for Mr Kiriazis’ cross-examination not just of Mr Sargent but also for Mr McPhee, Mr Kilfoy and Mr Marshall. Mr Sargent’s evidence was of assistance and as a carpenter/joiner and building inspector, his opinion must carry some weight but not in my view the same weight that should be given to the experienced cabinet makers actively engaged in the trade.
- Mr Sargent agreed with Mr Kilfoy that the kitchen did not need to be removed in its entirety although another builder may prefer that course. Parts could be ‘worked with’ and in his view ‘the majority’ could stay.
- Brett McPhee is a cabinet maker by trade. He provided a statutory declaration declared on 24 January 2019 which is Exhibit 2 in these proceedings. In cross-examination it was revealed that Mr Kiriazis had met with Mr McPhee’s father to discuss the rectification of the works and that Mr McPhee had been shown the QBCC report by his father before inspecting the works. He agreed that he may have conveyed his opinion that the works could not be rectified to his father rather than directly to Mr Kiriazis.
- In his statutory declaration, Mr McPhee said that the work was of ‘substandard workmanship and badly installed’ and was ‘impossible to adjust, alter or repair to an acceptable standard.’ The only viable solution was to ‘un-install [sic] it all and start from scratch.’
- He maintained that position in cross-examination. He said that the cabinetry in the en suite, bathroom and laundry had to be replaced. He agreed that many of the kitchen defects could be rectified without replacement but he could not say how much he would have to replace until uninstalled. It could involve ‘thousands’ of replacement parts or ‘half the kitchen’.
- In re-examination he said that there was so much patching up to do that it was easier to replace. He could not tell how much it would cost to repair but estimated $5,000.00 for materials and $5,000.00 for labour. His opinion was not however ‘a cost thing’ but rather ‘a quality thing’.
- Shaun Kilfoy provided a short report to Mr McHenry which was filed in the Tribunal as Annexure C in Mr McHenry’s material and was Exhibit 3 in these proceedings.
- He has been a qualified cabinet maker for 25 years and operated his own business, Kilfoy Cabinets Pty Ltd since 2003. He was engaged by Mr McHenry to inspect the works and provide a report. His inspection took approximately one and a half hours and included measuring and checking all levels.
- His report lists the main defects as follows:
- (a)Cupboards are not level. I did not find any cupboard to be level – this is the worse of the defects and is the direct cause of most of the issues;
- (b)I noted that approximately 50 percent of the hinges are bent or damaged;
- (c)All gallew rails are missing from each draw;
- (d)Packers have been used to straighten draw fronts – to compensate for them being installed unlevel and twisted;
- (e)Each vanity top is short. They either have a 200mm over hang as per the drawings;
- (f)The kitchen tops are short. The overhangs are to be 20mm as per the drawings. They vary from 14 – 43mm;
- (g)All the kickers are short, resulting in gaps between the top of the kicker and the underside of the cupboard;
- (h)Fridge panel is out of level by 20mm;
- (i)The lift up hinges in the fridge cupboard are installed incorrectly;
- (j)The oven tower cupboard has exposed mortise grooves;
- (k)‘Glass’ doors are Perspex – not frosted glass as per quote; and
- (l)Excessive holes throughout the cupboards. These are uncapped.
- He described the cabinetry as a ‘disappointment and a disgrace to my profession’ and ‘unsalvageable’.
- In evidence in chief he said some parts could be salvaged although he could not identify what could be salvaged until the cabinetry was pulled out and what savings in replacement parts could be offset by the additional labour because a new kitchen could be installed faster.
- That position did not change in cross-examination.
- In February 2018 Darren Parsons, a cabinet maker for 25 years, was asked to repair the works by Mr Kiriazis. He prepared a statutory declaration declared on 25 June 2018 which was filed by Mr McHenry as Annexure E to his statement. He says that he attempted to do so but quickly concluded that it was ‘impossible to do so’ because ‘basic installation was done incorrectly with ill-fitting substandard materials’ save for the reference to substandard materials, which in my view is not made out, his opinion is consistent with that of Mr McPhee and Mr Kilfoy. He also agreed that ‘the only recourse is complete replacement.’ He informed Mr McHenry of his opinion in February 2018.
- Mr Parsons was not called by Mr McHenry nor was he required for cross-examination by Mr Kiriazis.
- John Marshall is a cabinet maker with more than 15 years of experience and he provided a statutory declaration which was Annexure D to Mr McHenry’s statement. He appeared by telephone.
- I read his statutory declaration and he confirmed that it was his statement and the opinions expressed in it were his.
- He was asked by Mr Kiriazis to rectify a ‘few of the minor issues.’ After inspection he refused. He said, ‘I have declined the request by Anthony to help as the only thing I see to deliver a product of standard is to remove what has been done and start over.’
- When it was put to him in cross-examination that the kitchen could be rectified by adjustment he said ‘you can if you want a shit job.’
- Mario Sinopoli is a qualified cabinet maker with 35 years of experience, 30 in his own business. He provided a statutory declaration declared on 7 January 2019 filed with Mr Kiriazis’ material. Relevantly is states:
In my opinion, the joinery has been installed in an acceptable manner, however, although there are a few issues with finishes and some joinery components need to be replaced, generally the joinery has been completed to a satisfactory standard and that all materials used are standard (leading hardware), Formicka doors and Formicka bench tops. I would be confident in saying throughout a qualified tradesmen’s career we would all have particular issues that arise with certain clients from time to time. In addition, I would also say, that any experienced cabinet maker in this field of work would be able to repair the issues the [sic] referred to by the client.
I therefore would quote the amount of $2,600 to repair the joinery to a high quality finish, we can point form the issues to make the list look longer than it is, that would be easy to do. We estimated approximately 4 to 5 days of labour would rectify all relevant issues.
- He also provided a quotation to rectify the kitchen laundry and bathroom totalling $2,608.00 excluding materials.
- In examination in chief he said all kitchens were modular and it was easy to remove and repair parts straight them up or change them. He estimated rectification would take between three to five days using two to three tradespeople. In cross-examination he explained that he had allowed $150.00 per hour for a tradesman and an apprentice on site and another tradesman manufacturing offsite. This suggests that he is actually allowed roughly two days for the rectification.
- He conceded in cross-examination that materials would include benchtops in the kitchen valued at about $2,000.00 and in the bathroom valued at $700.00 to $800.00. He did not make allowances in his quotation for the removal and replacement of benchtops. He did not inspect the en suite.
- Mr Kiriazis’ position throughout the matter is summarised by the following statement, ‘Mr McHenry’s kitchen has nothing wrong with it, other than some minor cosmetic adjustments.’
- Even on the evidence of Mr Sinopoli as to the necessary rectification works that is clearly not the case.
- I find that the cabinetry is defective and falls below the standard required and that the appropriate rectification works are its removal and replacement.
- That finding is made largely on the basis of Mr Kilfoy’s evidence. That evidence is not compromised by the payment made to him by Mr McHenry for providing the report.
- Mr Kilfoy’s evidence is supported by the evidence of Mr McPhee, Mr Marshall and Mr Parsons, all of whom were requested by Mr Kiriazis to carry out rectification works. All refused. I accept the evidence of Mr McPhee and Mr Marshall that to rectify the existing cabinetry would produce a substandard product.
- I prefer their evidence to Mr Sinopoli’s. There are inconsistencies in his calculation of labour costs and it became apparent during cross-examination that works additional to those quotes would need to be undertaken, notably, replacement of the benchtops. I am also mindful of the evidence of Mr Kilfoy and Mr McPhee that the extent of the cabinetry that could be used could not accurately be determined until the kitchen was removed.
- I am not satisfied that Mr Kiriazis was denied the opportunity to rectify the works. It is evident that Mr Kiriazis’ opinion of what was required to rectify the works is significantly less than anybody else who has inspected them. There is no evidence that he addressed Mr McHenry’s list of defects. I am also satisfied that Mr McHenry gave access to Mr Marshall and later Mr Parsons and Mr McPhee to attend the rectifications works on Mr Kiriazis’ behalf.
- It is well settled that the appropriate measure of damages in cases such as this is the cost of rectification.
- I am not satisfied that there is sufficient evidence to accurately calculate damages on that basis.
- Mr Kilfoy’s report opines:
To remove and replace this cabinetry with new, by a professional manufacturer and installer would be in the vicinity of $25,000 to $27,000. This cost is for cabinetry only and does not allow for any trades. I would estimate other trades to cost approximately $4,500 this would allow for plumber, tiler, electrician, plasterer, painter etc …
- Mr McPhee’s oral evidence is that he prepared a quote for Mr McHenry on 28 February 2019 to the following effect:
Supply and install kitchen - $18,590.00
Benchtops - $4,500.00
- He said that in providing the quote he allowed for benchtops which were more expensive than those supplied by Mr Kiriazis and that the cost of providing similar benchtops would be between $2,000.00 and $3,000.00. No copy of that quotation was put into evidence. The concern I have with it is that it appears to relate only to replacement of the kitchen and not the bathroom, en suite and laundry and that is consistent with the significant difference between Mr McPhee’s quote and Mr Kilfoy’s estimate.
- I am not satisfied that either is sufficiently reliable to form a basis for calculating rectification costs.
- Mr McHenry’s claim is as follows:
Compensation of money paid to Mr Kiriazis for faulty workmanship.
All money paid to Mr Kiriazis and two assisting contractors to complete work. Electrician $2,550.00, plumbers $2,900.00, plasters $600.00, tilers $999.24, Mr Kiriazis $15,603.53, total $22,652.77.
- The amounts claimed are supported by a bundle of invoices and receipts filed with the application and I am satisfied the amounts have been accurately calculated.
- In circumstance where all of the works had to be removed and replaced, Mr McHenry has received no benefit for the money he has expended and I am of the view that damages calculated on that basis are appropriate in all circumstances. It appears likely having regard to Mr Kilfoy’s estimate that damages calculated on a rectification basis would exceed the amount claimed.
- I order that Anthony Kiriazis pay Raymond McHenry the sum of $22,652.77 by 4:00pm on 30 April 2020.
- It follows that Mr Kiriazis’ counterclaim is dismissed.
Statement of Anthony Kiriazis filed 21 January 2019.
Statement of Raymond McHenry filed 13 November 2018, 1, .
Ibid 3, .
Statement of Anthony Kiriazis filed 21 January 2019, 5, 6.
Statement of Raymond McHenry filed 13 November 2018, 4, .
Ibid annx H.
Ibid 4, ; Statement of Anthony Kiriazis filed 21 January 2019, 6.
Application for a minor civil dispute filed 11 May 2018 in MCDQ112-18.
Tribunal Directions dated 17 September 2018, Direction 1.
Statement of Anthony Kiriazis filed 21 January 2019, 8.
Exhibit 3, 2.
Application for domestic building disputes filed 1 June 2018.
- Published Case Name:
Raymond McHenry v Anthony Kiriazis
- Shortened Case Name:
McHenry v Kiriazis
 QCAT 80
25 Mar 2020