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Gravenall v Craig Rynne Constructions Pty Ltd[2016] QCAT 66

Gravenall v Craig Rynne Constructions Pty Ltd[2016] QCAT 66

CITATION:

Gravenall v Craig Rynne Constructions Pty Ltd [2016] QCAT 66

PARTIES:

Dianne Gravenall

 

v

 

Craig Rynne Constructions Pty Ltd

APPLICATION NUMBER:

BDL280-11

MATTER TYPE:

Building Matters

HEARING DATE:

29 October 2012

30 October 2012

15 August 2013

16 August 2013

3 September 2013

HEARD AT:

Brisbane

DECISION OF:

Member Fiona FitzPatrick, Presiding

Member Hughes

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Craig Rynne Constructions Pty Ltd is to pay to Dianne Gravenall the sum of $23,542.03 by 4.00pm on 11 March 2016.
  1. Dianne Gravenall is to file with the Tribunal and serve on Craig Rynne Constructions Pty Ltd any submissions on costs by 4.00pm on 18 March 2016.
  1. Craig Rynne Constructions Pty Ltd is to file with the Tribunal and serve on Dianne Gravenall any submissions on costs by 4.00pm on 1 April 2016.
  1. The costs of the proceedings will be determined on the papers and without an oral hearing not before 4 April 2016.

CATCHWORDS:

BUILDING DISPUTE – DOMESTIC BUILDING – COST PLUS CONTRACT – whether cost plus contract enforceable by builder – where substantial part of work could not be reasonably calculated without some work being carried out – whether misrepresentations by builder induced owner to enter contract – where no supporting evidence – where cost plus contract moves risk of costs of works exceeding estimate from builder to homeowner – where contract enforceable – where no entitlement to refund of builder margin – where no basis at law for claim to alleged overcharges under section 69 of the Domestic Building Contracts Act 2000 – whether credits passed on – where reconciliation based on hearsay and subjective opinion, rather than an objective evaluation and analysis – where claim for rectification of defects – whether defect or incomplete work – where builder not liable for incomplete work under cost plus contract – where competing expert evidence – where homeowner agreed to design limitation – where homeowner procured further expert report after Expert Conclave without leave of the Tribunal and denied other expert opportunity to prepare further report in response, contrary to purpose of Expert Conclave and procedural fairness – where no quantifiable loss for delay in installing termite notices – where insufficient evidence of rebate – where claim for reactivation fee and loss in land value arising from delay in certification – where no quantum evidence of reactivation fee – where owner referred to procuring agent quotes as evidence of intention to sell – where no agent quotes produced as evidence – where agent not called to give evidence – where insufficient evidence of intention to sell – where claim for cost to relocate pipes – where owner admitted to changing capacity and location of tanks without communicating change to architect – where claim to additional plumbing charge – where additional plumbing charge not apparent on face of invoice – where builder counter-claimed for money owing – where builder did not lead evidence of future costs of completion to support claim to future loss of builder margin

Civil Proceedings Act 2011 (Qld), sections 58, 59

Domestic Building Contracts Act 2000 (Qld), sections 8, 9, 30, 55, Schedule 2

Queensland Building Services Authority Act 1991 (Qld), section 77

Queensland Building Services Authority Regulation 2003 (Qld), section 34B

Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 28

Albion Projects Pty Ltd v. Simpson (No. 2) [2014] QCAT 515

Aon Risk Services Australia Ltd v. Australian National University (2009) 239 CLR 175

Brikom Investments Pty Ltd v. Carr [1979] 2 QB 467

British & Bennington’s Ltd v. N.W. Cachar Tea Co. [1923] AC 48

Contrast Constructions Pty Ltd v. Bartlett [2014] QCATA 262

DC Mills Developments Pty Ltd v. Fitch [2015] QCAT 114

Fox v. Percy (2003) 214 CLR 118

Glamoren Pty Ltd v. Lee & Anor [2012] QCATA 176

Olindaridge Pty Ltd v. Tracey & Anor [2014] QCATA 207

Robinson v. Harman [1848] EngR 135

Roe v. R.A. Naylor Ltd [1917] 1 KB 712

Townsville Constructions Pty Ltd v. Williams and Williams [2011] QCAT 166

Versace v. Lavis [2005] QCCTB 2

William George Carlsen t/as W & E Carlsen Builders v. Tressider [2015] QCAT 260

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr D Gardiner of Counsel instructed by Eaton Lawyers appeared for Mrs Dianne Gravenall

 

RESPONDENT: Ms S McNeil of Counsel instructed by Colville Johnstone Lawyers appeared for Craig Rynne Constructions Pty Ltd

REASONS FOR DECISION

Background

  1. [1]
    Presiding Member FitzPatrick conducted the hearing and heard evidence in 2012 and 2013.
  2. [2]
    On 24 December 2015, the Tribunal was reconstituted so that Member Hughes was added to the Tribunal.[1]

What is this Application about?

  1. [3]
    Dianne Gravenall disputed Craig Rynne Constructions Pty Ltd’s building work on her husband’s property. Mrs Gravenall claimed that Rynne overcharged her, did not pass on credits from suppliers, caused defects and prevented her husband from selling the property by not providing certification on time. She claimed these amounts:

Overcharges      9,375.65

  Interest       1,970.42

Overcharged wages    69,791.50

  Overcharged secretary fees   1,760.00

  Interest     14,742.54

Rectification      38,614.00

  Water tank rebate     1,500.00

Refund of builder margin   32,419.35

Rectification to date     2,810.50

Loss in land value    30,000.00

  Certification fee     550.00

Relocate pipe work near carport   968.00

Additional plumbing charge   768.68

Total       $205,270.64[2]

  1. [4]
    Rynne counterclaimed $5,861.53 for work performed.

Can Rynne enforce the cost plus contract?

Was a substantial part of the work such that the cost could not reasonably be calculated without some work being carried out?

  1. [5]
    The contract is a ‘regulated contract’ because it is for domestic building work exceeding $3,300.00.[3]
  2. [6]
    The contract provided an estimated cost of works of $442,850.00 plus a builder margin of ten percent. The contract was a cost plus contract.
  3. [7]
    A builder cannot enforce a cost plus contract unless the cost of a substantial part of the work cannot reasonably be calculated without some of the work being carried out.[4]
  4. [8]
    In response to a later complaint from Mrs Gravenall, the Queensland Building Services Authority issued an infringement notice to Rynne for entering into a cost plus contract.[5] However, the Tribunal is not bound by the Authority’s determination. Apart from the terms of Mrs Gravenall’s complaint, no evidence was adduced of the reasons for the Authority’s infringement notice or its assessment of the evidence– including a letter to the Authority from Mr Keith Hollier, Mrs Gravenall’s Architect, which supported the use of a cost plus contract.[6]
  5. [9]
    Mrs Gravenall said that Mr Rynne did not explain why he used a cost plus contract or that he could not provide a fixed price contract because of the nature of the work, because the plans were not sufficiently detailed or due to a lack of specifications.
  6. [10]
    Mr Craig Rynne, Director of Rynne claimed that due to the age of the building, previous works and Mrs Gravenall’s insistence at the site meeting of 7 December 2009 that a contract be executed forthwith, with works to commence immediately after Christmas, a more accurate cost could not reasonably be calculated.
  7. [11]
    Mr Rynne’s evidence was supported by the architect engaged by Mrs Gravenall to document the project, Keith Hollier. As early as 22 October 2010, Mr Hollier wrote to the Queensland Building Services Authority relevantly noting:
  • The project was a large house renovation involving lifting a highset older house, building in, under and reusing most of an existing concrete slab, constructing a small two storey extension at the rear and a double carport attached to the house at the front;
  • The easily quantified parts of the work were the two storey extension and the double carport;
  • Renovation of the house upstairs involved opening up enclosed verandahs, relocating kitchen and bathroom and providing internal stairs; and
  • Work downstairs involved cutting back and extending an existing concrete slab and enclosing for bedrooms and associated rooms.[7]
  1. [12]
    Mr Hollier stated that in his view, the amount of work to be done was difficult to quantify because:
  • No documentation was available for the existing slab and steel posts and it was uncertain whether the work had been constructed as a habitable or non-habitable slab;
  • Aluminium cladding covering the chamfer-boards made it impossible to ascertain the condition of the existing cladding;
  • Decramastic metal tile roof over the existing corrugated iron roof  made it impossible to ascertain the condition of the existing roof;
  • Windows and cladding over the enclosed verandahs made it impossible to ascertain the condition and detail of existing verandah handrails, floor boards and floor joists;
  • He did not provide a Schedule of Finishes due to Mrs Gravenall being anxious to start the project before Christmas 2009, so that she could move to Queensland in the New Year, causing more uncertainty over the extent of work and quality of finishes.[8]  
  1. [13]
    Mrs Gravenall sought to diminish Mr Hollier’s credibility in her own evidence.[9] She queried whether Mr Hollier should really be her “advocate”, as she had employed him. She pointed out that Mr Hollier had worked for Mr Rynne since 1998 and queried whether he had received a payment from Mr Rynne.
  2. [14]
    The Tribunal is not satisfied that Mr Hollier’s prior commercial dealings with Mr Rynne taint Mr Hollier’s evidence. Mrs Gravenall engaged Mr Hollier. Mr Hollier has known the owner of the house, Mr Gravenall for 25 years.[10] Mr Hollier maintained his evidence during the hearing,[11] even under cross-examination.[12] Mr Hollier did advocate for Mrs Gravenall during construction when he became concerned about the carport dimensions, to the point of becoming irate with the foreman, Phillip Horstman. None of this suggests any disposition against Mrs Gravenall affecting Mr Hollier’s credibility. The Tribunal accepts Mr Hollier’s evidence.
  3. [15]
    Further, Mrs Gravenall conceded under cross-examination that it was impossible to ascertain the condition of the roof, verandah handrails, floor boards and floor joists prior to construction:

And I suggest to you that it was impossible to ascertain the condition of the roof --- ? --- He didn’t ---

--- prior to the renovation works commencing? --- No, you couldn’t properly ascertain that, apart from going up into the roof and having a look underneath.

--- And in relation to the enclosed veranda that you opened in the renovation, I suggest to you that it was impossible to ascertain the condition and the detail of the existing veranda handrails, floor boards and floor joists prior to construction? --- That is correct. That is correct, yes.

And that they in fact had to be replaced when it was discovered the condition of them? --- The original plan showed it as being closed in, and we changed it to being open slabs.

You did not provide Mr Rynne with a separate schedule to the plans of the finishes that you required for the property, did you? --- I didn’t know it was required.[13]

  1. [16]
    Based on Mr Rynne’s evidence, corroborated by the evidence of Mr Hollier and Mrs Gravenall’s concessions under cross-examination, the Tribunal is satisfied that the cost of a substantial part of the project work could not be reasonably calculated without some of the work being carried out.
  2. [17]
    The Tribunal finds that Rynne did not breach section 55 of the Domestic Building Contracts Act 2000 (Qld).

Did Mrs Gravenall sign the contract relying upon Rynne’s representations?

  1. [18]
    Mrs Gravenall claimed that on or about 7 December 2009, Mr Rynne represented to her and her husband that:
  • a fair and reasonable amount for the works would not be more than, and in all likelihood less than $433,850.00 including GST and builder margin of ten percent;
  • Rynne would not charge for Mr Rynne’s labour;
  • Rynne would provide an itemised quotation for the works in the architect plans prior to executing the contract;
  • Rynne had a crew of workers ready to start around mid-January 2010; and
  • it was not necessary to wait for approved plans before commencing work and signing a contract because it was unlikely the plans would change.[14]
  1. [19]
    Mrs Gravenall claimed that she signed the contract in reliance upon these representations.[15]  However, Mr Gravenall’s evidence on this point was limited to his confirmation that Mr Rynne said he had a crew ready to start mid-January.[16]
  2. [20]
    Mrs Gravenall gave evidence that she had planned other projects, including a six unit development in Mackay.[17] It is therefore reasonable to infer that she has some experience with building projects and was able to turn an independent mind to the terms of the contract.
  3. [21]
    Mrs Gravenall’s evidence was that she filled in the contract as dictated to her by Mr Rynne.[18] She then signed the contract. There was no suggestion of duress.
  4. [22]
    Mrs Gravenall has not established that a misrepresentation by Rynne induced her to enter the contract or that it formed part of the contract. Any assertions of deceit by Rynne have not been established.
  5. [23]
    The terms of the written contract that Mrs Gravenall signed are on its face.[19] While the contract provided an estimated total cost of works of $442,850.00, it also clearly stated that this was not binding and was subject to adjustment to reflect the ‘Actual Cost’ of the works.[20] The contract did not provide any means to ensure that costs were kept to budget, due to uncertainties about a substantial part of the works.[21] 
  6. [24]
    The effect of Mrs Gravenall signing a cost plus contract was to move the risk of the costs of the works exceeding the estimate from the builder to the homeowner.[22] By signing the contract, Mrs Gravenall agreed to this.[23] The contract is enforceable.

Can Rynne retain the builder margin of $32,419.35?

  1. [25]
    Mrs Gravenall’s claim of $32,419.35 was premised on Rynne not being able to enforce the contract due to a breach of section 55 of the Domestic Building Contracts Act 2000 (Qld). However, the Tribunal has found that Rynne did not breach section 55 of the Act, so the claim has no basis and is dismissed.
  2. [26]
    Rynne is entitled to retain the builder margin of $32,419.35.

Is Mrs Gravenall entitled to a refund of overcharges?

What is the basis for the claim?

  1. [27]
    Mrs Gravenall claimed a refund of overcharges under section 69 of the Domestic Building Contracts Act 2000 (Qld). Mrs Gravenall submitted that:

“pursuant to that section, the Tribunal ought to refund to the Applicant the amount paid to the Respondent that the Respondent was not under the Contract entitled to receive (the overpayments and credits) and pay interest thereon to the Applicant…”.[24]

  1. [28]
    The amounts claimed under section 69 of the Act are:

$9,375.55 (Credits not passed on)

 $1,970.42 (Interest thereon)

$69,791.50 (Wages)

 $1,760.00 (Secretary fees)

   $14,742.54 (Interest on wage overcharges)

  1. [29]
    Section 69 relevantly provides (our underlining):
  1. Order to refund overpaid amounts
    1. (1)
      This section applies if –
      1. (a)
        a court finds a charge against a building contractor for an offence against a payment section proven; and
      2. (b)
        the offence involves the receipt of an amount by the building contractor.
    2. (2)
      The court may order the building contractor –
      1. (a)
        to refund to the building owner –
        1. (i)the amount paid to the building contractor that the building contractor was not, under the payment section, entitled to receive; or
        2. (ii)a part of the amount mentioned in paragraph (a);
      2. (b)
        if the building contractor contravenes the order – to pay the building owner interest on the amount to which the contravention relates, calculated at the rate, and on the basis, the court considers appropriate.
    3. (3)
      The power of the court under subsection (2) is additional to any other power the court has to impose a penalty.
  1. [30]
    The Tribunal is not satisfied that the requirements of the section have been met. ‘Payment section’ means sections 64, 65, 66 or 67.[25] Mrs Gravenall has not established that a charge has been brought against Rynne for an offence under any of these payment provisions, let alone the requirement to establish that a ‘court’ has found that Rynne has contravened these sections before it can be required to refund the money.
  2. [31]
    It is not the role of the Tribunal in these proceedings to determine whether Rynne has committed an offence. These are not disciplinary proceedings.
  3. [32]
    The claims for overcharges and interest under section 69 of the Domestic Building Contracts Act 2000 (Qld) are dismissed.
  4. [33]
    The Tribunal must go on to consider whether or not Mrs Gravenall has a contractual or other statutory right to restitution[26] of amounts to which Rynne is not entitled under the contract.
  5. [34]
    Mrs Gravenall must establish that she is entitled to restitution. In general terms, the Tribunal considers that Mrs Gravenall’s case in this regard suffered from ongoing amendments, an over-reliance on Mrs Gravenall’s evidence where independent evidence would have been more persuasive, and insufficient explanations of the documentary evidence.
  6. [35]
    Mrs Gravenall was at the property for two hours every second day.[27] She had on ongoing overseeing role in the works, including reviewing and checking plans.[28]  Mrs Gravenall gave evidence that she had planned other projects, including a six unit development in Mackay.[29] The Tribunal considers that Mrs Gravenall understated her familiarity with the works in her evidence.
  7. [36]
    The Tribunal must also observe the rules of natural justice.[30] For example, the failure to call suppliers to give evidence, without explanation, denied Rynne the opportunity to cross-examine them about their services and the truth and accuracy of the documents ostensibly created by them.

Claim for refund of credits not passed on / overpayments of builder’s margin -  $9,375.65

10% builder margin on Galaxy Kitchens - $5,531.80.

  1. [37]
    The contract provided for Rynne to charge a builder margin of ten percent on the actual cost of the works. ‘Actual cost of the works’ means the cost and expenses incurred by the builder and the owner in the construction of the works whether paid for or not.  It excludes any fees, ‘on costs’ and percentages charged or payable to the builder under the contract for the services of management of the construction of the works.[31] It relevantly includes the net cost of all subcontracts[32] and any other costs (whether listed or not) reasonably incurred in the performance of the works and approved by the owner.[33]
  2. [38]
    Mrs Gravenall claimed that Rynne was not entitled to the margin on this item as he had minimal involvement with Galaxy. Mrs Gravenall said she obtained the quote, entered into the contract, dealt with the supplier exclusively and paid the invoices issued directly to her.
  3. [39]
    However, Rynne’s entitlement to the margin was not contingent on it establishing anything other than “the actual cost of the works“. The contract does not require Rynne to substantiate its claim for the margin by establishing that it had ‘earned it’ on each item, including the kitchen.
  4. [40]
    The builder margin is the builder’s reward for effort in a cost plus contract.[34] An owner cannot avoid the builder margin by contracting directly with a supplier on individual items that form part of the works.
  5. [41]
    Mrs Gravenall’s payments to Galaxy were part of the ‘actual cost of the works’, as they were ‘a cost incurred by the owner in the construction of the works’. Mrs Gravenall’s direct dealings with, and payments to, Galaxy, do not obviate Rynne’s entitlement to a builder margin. The margin is payable on the amount paid to Galaxy.
  6. [42]
    In any event, Rynne engaged Phillip Horstman to construct the house, oversee trades and to coordinate and perform all building work.  Mr Horstman stated that all works and quality control were coordinated by him and Mr Rynne – including Galaxy Cabinets.[35] Mr Horstman said that he had numerous phone calls with Galaxy “backwards and forwards” about attendances, heights, measurements, distances between walls, lengths of walls and answering general questions including the location of pipes behind cladding.[36]
  7. [43]
    Mr Horstman’s evidence is consistent with the evidence of the owner of Galaxy, Paul Martignago. In a letter to Rynne tendered to the Tribunal, Mr Martignago confirmed that although Galaxy developed designs, and sent quotes and invoices, directly to Mrs Gravenall, it also worked in conjunction with Rynne on design, quality control and coordinating works.[37] Galaxy sent all quotes and designs to Rynne “to be looked over” before manufacture.[38]
  8. [44]
    Mr Martignago gave evidence that Galaxy needed to liaise with Rynne to ensure that plumbing and electrical points were in the right positions.[39] He explained that “anything to do with things onsite have to go through the builders and work it out like that”.[40] 
  9. [45]
    Mr Martignago worked with both Mrs Gravenall and Rynne. The Tribunal accepts his evidence that Rynne’s building expertise and effort added value by facilitating Galaxy’s involvement in the project.
  10. [46]
    The claim for the refund of the builder margin on Galaxy Kitchens is dismissed.

Logan City Joinery credit - $238.00

  1. [47]
    Mrs Gravenall claimed that Rynne did not pass on a credit received for latches returned to Logan City Joinery.[41] 
  2. [48]
    Rynne denied receiving a credit. The sales manager of Logan City Joinery at the time, Mr Peter Pollard, gave evidence that to his knowledge Rynne did not get a credit.[42] Under cross-examination, Mr Pollard said he did not know whether the latches were returned,[43] but normally a credit would not be given if the latches had been used.[44]
  3. [49]
    Under cross-examination Mrs Gravenall agreed that she did not know whether or not Rynne received the credit:: 

You have made a claim at paragraph 5 of your statement for a credit for the Logan City Joinery, key locks and [indistinct]? --- Yes.

You say this is a credit to you of $238? --- It’s a long time ago, but I seem to remember some locks being delivered to the home. They were incorrect. At the end of the job, my husband returned them to Logan City Joinery and they were going to refund Craig’s account.

That’s not mentioned anywhere in your statements or in your husband (sic) statement, is it? --- This is my statement.

It’s not mentioned that your husband attended to return – and was told by Logan City Joinery that there would be a refund, is it? --- No.

All you’ve said in your statement is that you seek that amount for a credit because you believe that you were entitled to a credit for that amount because they weren’t used? --- I’m trying to remember. That’s a long time ago.

You say:

 CRC received a credit which has never been passed onto me.

But you personally, do not know, do you, whether a credit was given to CRC for the return? --- You’d have to ask Logan City Joinery that question.

That’s right. I suggest to you that there was, in fact, no credit given by Logan City Joinery to Mr Rynne for the amount of $238.70? --- Is that a question? Sorry.

I’m suggesting to you that there was, in fact, no credit given by Logan City Joinery to Mr Rynne? --- I have no way of knowing that.[45]

  1. [50]
    During re-examination, Mrs Gravenall’s gave evidence that her husband had returned the items and was told that Rynne would get a credit:

Okay. Now, you were asked questions about Logan City Joinery and the claim that you make in respect of the key locks and sash lifts. Do you see that on page 17 of your statement – first statement? --- Yes. I can.

All right. Okay. Now, in the narrative there, you say that the – you make the claim because the amount had been paid to the respondent but the items were returned and the respondent had received a credit. The – do you know who returned the – those items to Logan City Joinery? --- I asked Gary to drop it in because he was going out past that place during his work hours. So he would drop them in and he was told that they couldn’t give him a credit, it had to go back on Craig’s account.[46] 

  1. [51]
    Mrs Gravenall’s evidence is not the best evidence of either the return or the refund. Mr Gravenall was in a position to provide evidence about the return. He was called as a witness, but did not give evidence about the return or the credit, leaving the Tribunal with Mrs Gravenall’s unsupported hearsay evidence as to the return and her admission that she did not know whether or not Rynne had received a refund.  The Tribunal prefers the evidence of Mr Pollard and Rynne to the effect that Rynne did not receive a credit.
  2. [52]
    Mrs Gravenall belatedly amended her claim to assert that it does not matter whether Rynne obtained a credit, as it did not dispute that the latches were not installed.[47] However, the Gravenall’s had received the latches, were responsible for retuning them and did not properly establish that this had been done.
  3. [53]
    The claim for the credit by Logan City Joinery is dismissed.

Meier house removals - $50.00

  1. [54]
    Rynne agreed that Mrs Gravenall was entitled to a credit of $50.00 for Meier house removals.
  2. [55]
    The Tribunal allows the claim of $50.00.

Kaldewei bath feet - $165.00

  1. [56]
    Mrs Gravenall claimed that Rynne did not pass on a credit received for bath feet returned to Reece, including ten percent builder margin.
  2. [57]
    Mrs Gravenall relied on a ‘Credit Note (Adjustment Note)’ for an amount of $150.00 which is attached to her Statement of 3 May 2012. However, the note lacks any identifiers to indicate it is from Reece.[48] Mrs Gravenall did not call anyone from Reece to authenticate the credit note or to establish that Reece credited Rynne. The anonymous credit note is not sufficient evidence of a credit from Reece.
  3. [58]
    Under cross-examination, Mr Rynne denied receiving the credit.[49] Mr Horstman also denied receiving any payment from Reece.[50]
  4. [59]
    Mrs Gravenall bears the burden of proof of establishing that the credit was given. The Tribunal is not satisfied that Mrs Gravenall has discharged that burden.
  5. [60]
    The claim for the credit for returned bath feet is dismissed.

Carport posts not used due to resizing - $507.60 plus 10% builder margin

  1. [61]
    Mrs Gravenall claimed that Rynne did not credit her for posts not used due to the resizing of the carport.
  2. [62]
    Mrs Gravenall attached an Invoice from Scott Metals Pty Ltd dated 10 March 2010 to her Statement of 3 May 2012. The Invoice included an amount of $507.60 for “100 x 100 x 4mm SUPAGAL COLUMN STD TOP OFFSET TOPS”. Mr Rynne admitted that the posts were too narrow and that he offered to remove the posts “at his own cost and just rectify it so that it would be as per plans and specifications”.[51] However, the Tribunal is not satisfied that Mrs Gravenall was credited for the posts.
  3. [63]
    Mrs Gravenall had not attempted to sell the posts as scrap metal,[52] but no evidence was adduced of their likely resale value.
  4. [64]
    The Tribunal allows the claim of $507.60 plus builder margin of ten percent, totalling $558.36.

10% builder margin already paid on Reece items - $161.47

  1. [65]
    Rynne conceded that Mrs Gravenall was entitled to be credited the builder margin on Reece items of $161.47. However, ten percent of $1,616.47 is $161.65[53] and this is the amount to be credited.
  2. [66]
    The Tribunal allows the claim at $161.65.

Reece Panels - $559.92

  1. [67]
    Reece Invoices dated 21 May 2010 for $292.01 and $267.91 show Reece invoiced Rynne for panels in the amount of $559.92 Mrs Gravenall claimed that Rynne did not pass on a credit from Reece for returned panels.
  2. [68]
    Rynne Invoice dated 2 July 2010 shows a “reece credit” for $292.10, suggesting that Rynne did pass on this credit to Mrs Gravenall. The Tribunal is not satisfied that this credit was not passed on.
  3. [69]
    Again, insufficient evidence was adduced to establish that Reece credited the remaining $267.91 to Rynne. Mrs Gravenall did not call anyone from Reece. Under cross-examination, Mr Rynne denied receiving any further credit from Reece.[54] Mr Horstman also denied receiving any payment from Reece.[55]
  4. [70]
    The Tribunal is not satisfied that Reece credited Rynne the remaining $267.91.
  5. [71]
    The claim for the alleged credit by Reece of $559.92 for returned panels is dismissed.

10% builder margin on taps excluded from contract - $800.94

  1. [72]
    Mrs Gravenall claimed that Rynne charged an additional ten percent for taps and items excluded from the contract in these invoices:
  • Invoice 13 - $1,071.06 (Taps and Mixers)
  • Invoice 14 - $383.04 (Bath Mixer Tap)
  • Invoice 36 - $6,553.47 (Tap Mixers)
  1. [73]
    The Appendix to the contract incorporates the Quote by reference. The Quote lists “taps mixers” as “not included”. Rynne was therefore not entitled to charge a builder margin for these items, as the contract expressly excluded them.
  2. [74]
    The issue is complicated by the fact that Mr Rynne allowed Mrs Gravenall to use his trading account to purchase products from Reece. Rynne claims that any credits were passed on.[56] A Rynne Invoice dated 2 July 2010 refers to a “reece credit” for $1,311.48. The Tribunal accepts that this ‘reece credit’ does not include a refund of any builder margin.
  3. [75]
    Mrs Gravenall attached Invoice 14 to her Statement of 3 May 2012. Invoice 14 is for $395.10 for “reece plumbing bath mixer”.[57] The Invoice records that a ten percent margin was applied. The Tribunal is satisfied that Rynne was not entitled to charge the margin on the mixers as they were specifically excluded. The Tribunal allows $39.51 for this item.
  4. [76]
    However, Mrs Gravenall did not provide copies of invoices 13 or 36.  None of the other invoices substantiates the amounts claimed or refer to “Taps and Mixers” or “Tap Mixers”.[58]
  5. [77]
    The Tribunal is therefore not satisfied that Mrs Gravenall has discharged the burden of proof for the remaining taps and mixers.
  6. [78]
    The Tribunal allows an amount of $39.51 for this claim.

10% builder margin for Aaeromac - $1,217.10

  1. [79]
    As with the Galaxy claim above,  Mrs Gravenall claimed that she arranged this, including contracting and paying the supplier directly.
  2. [80]
    We adopt our earlier reasoning in relation to the Galaxy claim in concluding that Rynne was entitled to charge a builder margin of ten percent of the ‘actual cost’ of the Aaeromac works, without justifying its entitlement to the margin for each item. [59]
  3. [81]
    In any event, Mr Rynne gave evidence that he contacted Aaeromac, told it about the job and had it submit a quote and that he coordinated electricity and structural issues.[60] This is consistent with the evidence of Mr Horstman, who stated that all works and quality control were coordinated by him and Mr Rynne – including Aaeromac Air Conditioning.[61] Mr Horstman said that he coordinated with Aaeromac its attendances to measure and install and that Rynne built the frame around the ducting for the air conditioning.[62]
  4. [82]
    The Tribunal accepts the evidence of Mr Rynne and Mr Horstman as evidence that Rynne’s building expertise and effort added value to Aaeromac’s involvement in the project, beyond that provided by Mrs Gravenall.
  5. [83]
    The claim for the refund of the builder margin on Aaeromac is therefore dismissed.

Wages - $69,791.50

  1. [84]
    Mrs Gravenall itemised her claim for $69,791.50, in a spreadsheet attached to her further statement of 27 August 2013.
  2. [85]
    The claim included a component for Rynne passing on GST charged by sub-contractors. Under a cost plus contract, Rynne is entitled to invoice for ‘Actual Cost’, including any GST paid to sub-contractors.
  3. [86]
    Mr Rynne calculated and admitted an amount of $27,004.03 for overcharged wages.
  4. [87]
    Mrs Gravenall’s spreadsheet purports to identify the amounts invoiced by Rynne for each worker, the actual amount paid by Rynne to each worker, and the amount Rynne “should have paid workers”, including apprentice overcharges “based on NAPSA rates”.
  5. [88]
    Mrs Gravenall’s claim for apprentice overcharges was based on her understanding of ‘the relevant Award’. However, under a cost plus contract, Rynne is entitled to pass onto Mrs Gravenall the actual amount it paid its apprentices, not limited to the rates prescribed in the relevant Award. In any event, the Tribunal does not accept that Mrs Gravenall is qualified to give evidence of apprentice pay rates. The Tribunal does not accept what Mrs Gravenall says she was told by the relevant organisation, particularly when she was not provided with a copy of the Award and has not provided a copy to the Tribunal.[63] Her evidence of the rate was hearsay of hearsay.
  6. [89]
    Mrs Gravenall’s spreadsheet records what she believes Rynne should have paid for its workers, rather than the actual amount Rynne did pay its workers. The spreadsheet is opinion evidence which relies heavily on the statements of others and Mrs Gravenall’s interpretation of, and inferences drawn from, many pages of financial records. The Tribunal is not satisfied that Mrs Gravenall could bring an objective mind to the subject given her vested interest in the outcome of the proceedings, as evidenced by the increases in her reconciliations as her claim proceeded[64] and her reliance on indirect sources[65]. To the extent that the voluminous financial records including invoices, deposit slips, cheque butts, bank statements and worker diaries required interpretation, independent evidence would have been better. None was provided.
  7. [90]
    A persuasive reconciliation of the voluminous financial material required a measure of objective judgement, evaluation and sophisticated analysis, which was not evident in Mrs Gravenall’s spreadsheet. Moreover, the amount claimed fluctuated and did not crystallise until the last day of the hearing.[66] Conversely, Mr Rynne’s analysis did not vary and the Tribunal accepts that it more accurately reflects the actual amounts that Rynne paid to its workers.
  8. [91]
    Mrs Gravenall bears the burden of proof. In the absence of independent evidence, the Tribunal prefers Mr Rynne’s analysis to Mrs Gravenall’s analysis.
  9. [92]
    The Tribunal therefore allows the amount of $27,004.03 for overpaid wages.

Secretarial fees - $1,760.00

  1. [93]
    Mrs Gravenall claimed that Rynne charged for 20 weeks at $265.00 per week instead of $185.00 per week, in breach of part K(3) of the contract. Mr Rynne gave evidence that he charged $265.00 per week as $185.00 per week for secretarial services, plus $80.00 per week for mobile phone fee.[67]
  2. [94]
    The contract provides for secretarial services of $185.00 per week[68] and a phone charge out rate of $80.00 per day.[69] The amount of $265.00 per week charged by Mr Rynne is within the terms of the contract.  
  3. [95]
    The claim for overcharged secretarial fees is therefore dismissed.

Is Mrs Gravenall entitled to interest on the overcharges?

  1. [96]
    The total restitution awarded to Mrs Gravenall is therefore $27,813.37. Unlike the Courts,[70] the Tribunal does not have a wide statutory discretion to award interest.[71] The right to restitution is either statutory or contractual. If statutory, it is not ‘damages’[72] and the Tribunal does not have a statutory power to award interest.[73] If contractual, the Tribunal may award interest at a rate specified under the contract.[74]
  2. [97]
    The contract does not specify a rate of interest for payments by the builder to the owner.[75] Incidentally, the interest rate payable by the owner to the builder under the contract is Nil.[76]
  3. [98]
    Mrs Gravenall is therefore not entitled to interest on the $27,813.55 awarded for restitution.

Is Mrs Gravenall entitled to the cost of rectification work amounting to $38,614.00?

  1. [99]
    Mrs Gravenall also claimed $38,614.00 (including GST) for alleged rectification costs of the following defects quantified in the report of Stephen Arlidge, builder.[77]

Front steps - $5,379.00

  1. [100]
    The report of Mrs Gravenall’s expert building consultant, Mr Cecil Fritz, noted that the front steps could not be used because of the excessive height of the bottom tread and because the gap between the top of one tread and the underside of another tread was over-sized.[78]
  2. [101]
    However, the report of Mr Bruce Haines, a building inspector from the Queensland Building Services Authority, noted that landscaping was yet to be carried out.[79] Mr Haines was of the view that the over-sizing was due to non-completion and that lowering the bottom step prior to landscaping would present a personal safety risk to pedestrians.[80] Mr Fritz testified that Mrs Gravenall did not instruct him on her landscaping intentions[81] which had not been undertaken[82] and that landscaping to increase the height of the ground level would render the steps compliant.[83]
  3. [102]
    Mr Horstman stated that the finished height of the stairs was discussed with Mrs Gravenall and agreed to be correct as she wanted to fill the front yard with dirt to remove the hollow and get an even line from the patio to the curb.[84] This was corroborated by Mr David Langford, stair fitter, who stated that he built the stairs according to the height agreed with Mrs Gravenall based on her “landscaping ideas”.[85] Under cross-examination, Mr Langford confirmed that he worked out a finished height with Mrs Gravenall because “the ground was all over the place”.[86] 
  4. [103]
    The weight of evidence supports a finding that the over-sizing between treads was due to non-completion and that the bottom stair was built to the height agreed with Mrs Gravenall, allowing for landscaping to follow. Rynne could not finish the treads as it was not contracted to landscape.[87] Rynne did not do any landscaping or charge for it.[88] Further, the work could not be completed as Mrs Gravenall purported to terminate the contract.[89]
  5. [104]
    The claim for rectification of the front steps is dismissed.

Ground levels - $2,175.00

  1. [105]
    Mr Fritz’s report noted that the ground surface levels were not profiled to provide necessary falls away from the building.[90]
  2. [106]
    Mr Haines’ report noted that landscaping was yet to be carried out.[91] The report of Mr Marcus Pye, architect, noted that no earth works were required to prepare the site.[92]
  3. [107]
    Rynne was not contracted to landscape. Because the contract is cost-plus, the builder is not liable for this incomplete work.
  4. [108]
    The claim for ground levels is dismissed.

Carport - $3,528.00

  1. [109]
    Mr Fritz’s report noted that the width of the carport is 200mm less than shown on the plan.[93] This is not a defect but alleged non-compliance with the agreed plan.
  2. [110]
    In her Statement dated 3 May 2012, Mrs Gravenall says that she reluctantly accepted the error.[94] She said that at a meeting on 5 May 2010, Mr Rynne told her that if the carport was built six metres wide as per plan, it would encroach upon the verandah and that Mr Horstman told her he would charge her to replace the trusses and for labour to rectify the error.[95] Mr Horstman admitted during his testimony that he had suggested that Mrs Gravenall pay for the trusses.[96]
  3. [111]
    Mr Rynne testified that at the meeting of 5 May 2010 he offered to rectify the error at his own cost,[97] but on the advice of Mr Hollier, Mrs Gravenall agreed to leave the carport as it was.[98] Mr Horstman confirmed that Mr Rynne offered to relocate the posts and replace the trusses at his cost, but that Mrs Gravenall and Mr Hollier then agreed to leave the carport width as it was.[99]
  4. [112]
    Mr Hollier attended the meeting mid-way. He stated that he became irate when it was suggested that Mrs Gravenall should have to help pay for replacement trusses.[100] He confirmed that Mr Rynne then offered to replace them at his expense.[101] Critically, Mr Hollier also confirmed that his recommendation to leave the carport at the narrower width “was amicably accepted by both parties”, and at no point did he feel that Mrs Gravenall had been pressured to accept this.[102]
  5. [113]
    The weight of the evidence is that Mrs Gravenall willingly accepted Mr Hollier’s recommendation to accept the error in width. This part of the contract was discharged by agreement.[103]
  6. [114]
    The claim for the carport is dismissed.

Slab edge condition front lower level patio - $1,488.00

  1. [115]
    Mr Fritz’s report noted that the new joins have a rough intersection with the old joins.[104] Mr Haines’ report noted no evidence of defective building work, but rather that the work was incomplete.[105] Mr Pye’s report also deemed the works to be incomplete.[106]
  2. [116]
    Mr Rynne testified that Rynne was coming back to finish the job.[107] Mr Horstman stated that Mrs Gravenall’s termination of the contract prevented the tiler patching the edge.[108]
  3. [117]
    The Tribunal is satisfied that this claim is for incomplete work. Because the contract is cost-plus, the builder is not liable for this incomplete work.
  4. [118]
    The claim for the slab edge is dismissed.

Electrical wiring to water pump - $400.00

  1. [119]
    Mr Fritz’s report noted that the wiring was unsecured and unprotected.[109] Mr Fritz recommended shortening the wiring and encasing it in a larger sized conduit and permanently fixing it.[110] Mr Arlidge’s report noted a cost of $400.00.[111]
  2. [120]
    Mr Pye agreed that it was a defect, but recommended bundling the wiring and permanently fixing it at a cost of $100.00.
  3. [121]
    The purpose of damages is to restore Mrs Gravenall to the position she would have been in had the wrongful act not occurred.[112] The evidence suggests that the wiring is too long. Had the wiring been correctly installed, it would not need to be bundled. To restore Mrs Gravenall to her position had the wiring not been incorrectly installed, the wiring should be properly adjusted, rather than simply bundled.[113]
  4. [122]
    The Tribunal therefore prefers the evidence of Mr Fritz and Mr Arlidge on this issue and allows the claim at $400.00.

Chamferboard patching - $119.00

  1. [123]
    Mr Fritz’s report noted that the chamferboard had been roughly prepared for painting after it had been earlier patched.[114] Mr Pye’s report noted that it had been repainted and recommended no action.[115] At the Expert Conclave, Mr Fritz and Mr Pye subsequently agreed that the painting was adequate and not a defect.[116]
  2. [124]
    The claim for chamferboard patching is dismissed.

Termite protection zone - $344.00

  1. [125]
    Mr Fritz’s report noted that the drainage features did not provide a 75mm clearance height.[117]
  2. [126]
    However, Mr Pye’s report deemed it as no defect, noting that the visual barrier dimension was adequate and permanent and complied with the intent.[118] Further, Mr Haines’ report noted that the concrete had been recessed to achieve the required clearance and was therefore satisfactorily rectified.[119]
  3. [127]
    The weight of evidence supports a finding that this is not a defect.
  4. [128]
    The claim for termite protection zone is dismissed.

Rear rumpus room door sill - $2,174.00

  1. [129]
    Mr Fritz’s report noted that the door frame had not been adequately supported because it had been set partly outside the wall face.[120] Mr Fritz’s report recommended removing and refixing the frame and doors to provide for the door sill to be supported by the concrete slab, reinstating all mouldings, making good all painted surfaces and extending the ant cap to protect the full width of the opening below the sill.[121]
  2. [130]
    However, Mr Pye’s report noted this as a latent operational defect only and recommended installing two support brackets at a cost of $100.00.[122] Mr Haines’ report considered that the doors required minor adjustment only and noted no defect.[123]
  3. [131]
    Under cross-examination, Mr Fritz conceded that a metal angle might be an alternative to support the sill but maintained that it was necessary for an ant cap to go all the way through.[124] Neither Mr Pye nor Mr Haines recommended an ant cap.
  4. [132]
    On balance, the expert evidence does not suggest the door sill requires rectification to the extent of Mr Fritz’s report.
  5. [133]
    The Tribunal therefore allows the claim at $100.00.

Unprotected wiring - $307.00

  1. [134]
    Mr Fritz’s report noted that the wiring was not externally protected and protruded from an incorrectly placed underground pipe.[125] However, Mr Pye’s report noted that it had been rectified.[126]
  2. [135]
    My Pye’s report was based on an inspection some months after Mr Fritz’s inspection. Mr Fritz attended the property for a further inspection but did not report any further on this item.[127]
  3. [136]
    In the absence of any update from Mr Fritz, the Tribunal accepts Mr Pye’s report as the most recent evidence and therefore finds that the item has been rectified.
  4. [137]
    The claim for unprotected wiring is dismissed.

Wall lights - $694.00

  1. [138]
    Mr Fritz’s report noted that the wall lights were mounted without back blocking and had an untidy finish.[128] However, in the later Expert Conclave report Mr Pye was of the view that the defect did not exist.[129]
  2. [139]
    Mr Pye’s opinion is the most recent. Mr Fritz attended the property for a further inspection after the Expert Conclave, but did not report any further on this item.[130]
  3. [140]
    In the absence of any update from Mr Fritz, the Tribunal accepts Mr Pye’s opinion in the Expert Conclave report as the most recent evidence and therefore finds that the item is not a defect.
  4. [141]
    The claim for wall lights is dismissed.

Edge of tiling to splashbacks in bathrooms - $248.00

  1. [142]
    Mr Fritz’s report noted that each tile projects further than the backing adhesive, exposing the edges to damage.[131] Mr Fritz recommended fitting mouldings and painting.[132] Mr Arlidge’s report noted a cost of $248.[133]
  2. [143]
    Mr Pye’s report agreed that it was a defect and also recommended fitting timber cover mouldings.[134] However, Mr Pye considered a reasonable cost to rectify would be $150.00.[135]
  3. [144]
    Under cross-examination, Mr Arlidge conceded that he “wouldn’t split hairs over it” and that “if someone wants to do $150, that’s up to them”.[136] 
  4. [145]
    On balance, the Tribunal accepts the evidence of Mr Pye on quantum.
  5. [146]
    The Tribunal therefore allows the claim at $150.00.

Gap at edge of architrave - $185.00

  1. [147]
    Mr Fritz’s report noted that the ground floor wardrobes show a gap at the edge of the architrave because the moulding is too narrow to cover the space against the outer wall.[137] Mr Fritz recommended fitting a small timber moulding to cover the gap.[138]
  2. [148]
    Mr Pye’s report noted that the wall surfaces appeared within tolerance and did not amount to a defect.[139] Mr Pye maintained his view under cross-examination.  Mr Fritz said under cross-examination that tolerances did not “come into it” and it was “poor quality workmanship”.
  3. [149]
    The Tribunal finds that as a matter of law, an item cannot be poor quality workmanship if within tolerance. The gap is not a defect.
  4. [150]
    The claim for the gap at edge of the architrave is dismissed.

Casement windows in kitchen - $3,337.00

  1. [151]
    Mr Fritz’s report noted that the top of the windows, when partly open, collided with the external soffit lining and that the windows warp because they are not constrained at the top.[140] Mr Fritz recommended reinstalling the framing and windows, lowering the openings and making good the internal and external sheeting.[141]
  2. [152]
    Mr Pye’s report deemed the binding on the soffit lining to be a Class 2 defect, but noted the warping as within acceptable tolerances.[142] Mr Pye recommended installing shallow profile soffit batons and possibly removing the seals and installing softer compressible seals.[143]
  3. [153]
    Mr Haines’ report also noted a Category 2 defect and recommended installing an extra catch at the top of each window frame, or a single central catch to reduce strain.[144] He believed that the windows twisted as they were pulled closed, due to there being only one latch at the bottom.[145] He also noted that the windows opened sufficiently to achieve effective ventilation but hit upon the external soffit lining due to inadequate clearance, and should have been lower if Mrs Gravenall had wanted them to open to 90 degrees.[146]
  4. [154]
    The evidence of Mr Fritz and Mr Haines is that the windows warped because they were not properly constrained. As early as 9 December 2010, Mr Haines suggested an extra catch to address the issue. Mrs Gravenall did not accept Mr Haines’ solution to put a latch at the top.[147] She therefore failed to mitigate any warping damage.   
  5. [155]
    Under cross-examination Mrs Gravenall denied being made aware that the windows would not fully open.[148] However, the Tribunal is satisfied that Mrs Gravenall accepted the restricted opening of the windows as a limitation of her chosen design.
  6. [156]
    Mr Rynne testified that Mrs Gravenall agreed to the design despite being made aware of its limitations.

Sliding windows weren’t what you would like to see in a Queenslander. So, Dianne wasn’t happy with those windows and decided that she’d like to put some casement windows in. So ---

And did you discuss the windows with her? --- Look, we did discuss the windows with her in great detail. I spoke to Phillip Horseman (sic) about it and made sure that he’d spoken to her as well. We spoke to her about the same time as well. Peter Pollard did come out one day, and I arrived just after he had been… So timber windows are very expensive, so we always involve the client. We always normally ask them to sign off them, in fact…. and it was definitely pointed out to Dianne that the windows would hit the soffit, and she said look, we’re getting, like, a 45-degree opening. We will catch the breeze with this. It’s a bit more Queenslanderish and it’s a better outcome, so ---

Okay. Now, did you have that discussion with her in terms of what you just said was her acknowledgement that the windows would open---? --- Yes, I did.

--- and hit the soffit? --- Yes, I did.

Okay. All right. And what was her response – sorry – you did touch upon that she was okay with the windows opening---? --- Yeah.

--- to 45 degrees? --- Yeah, yeah. It’s quite acceptable.

Okay? --- And it was cost-effective to do it that way… we could’ve dropped the sill down, but then it was more expense.[149] 

  1. [157]
    Mr Horstman confirmed that Mrs Gravenall agreed to the windows not opening fully:

Okay. And what was the effect of that, then, on the window? --- Well, as the windows open at the height they would touch the soffit, which wouldn’t allow them to open fully out to 90 degrees, but they would still open to a 45 degree, which is the way that casement windows are designed to work, to catch the breeze and direct it into the house; that’s why they designed them that way. That was discussed with Dianne…

And did you discuss with Mrs Gravenall, then, the opening of the window and the extent to which the window would open and, if you did, can you tell the Tribunal what was discussed in that regard? --- We did discuss the window opening out and I said that it would hit. I said it wouldn’t open to the full 90 degrees out but it would open, you know, at least 45. So it would still get the good idea of catching the wind coming through and the breeze.

And what was Mrs Gravenall’s response when you said that to her? --- She agreed that it would be fine.

She didn’t say to you at any time that she wanted the window to open its entire 90 degree angle? --- I don’t recall her ever saying that it needed to open out to a full 90 degrees.[150]         

  1. [158]
    Under cross-examination, Mr Horstman maintained that Mrs Gravenall was aware of the limitations of the window design:

And the windows that she agreed to were ones that would open to a maximum of 90 degrees, I suggest to you? --- No. I mean, I did mention to Dianne that they wouldn’t open all the way...

You’re saying that these windows were designed to only open to a (sic) aperture of 45 degrees, not 90 degrees? --- No, they were not designed to only open to 45 degrees, but in that installation – that case they would only open because of the design of the roof on the house, the height of the head over the windows – that size window would only open to that distance.

And you never told Mrs Gravenall about that at all, I’d suggest? --- I did tell Dianne that those windows will hit the [indistinct] and that was before they were installed and before they were actually ordered.[151]

  1. [159]
    The Tribunal prefers the evidence of Mr Horstman and Mr Rynne and finds on the balance of probabilities that the windows are not a defect, but a design limitation accepted by Mrs Gravenall.
  2. [160]
    The claim for casement windows is dismissed.

Kitchen floor - $12,188.00

  1. [161]
    Mrs Gravenall claimed the cost of replacing the entire kitchen floor, because of gaps in the floorboards. To succeed in this claim, Mrs Gravenall must prove that the gaps in the kitchen floor are a defect caused by Rynne.
  2. [162]
    Mr Rynne testified that he laid the kitchen floor to match existing gaps in the adjacent dining room, as instructed by Mrs Gravenall.[152] Mr Horstman also testified that Mrs Gravenall gave instructions to match the kitchen floor with the original floor.[153]
  3. [163]
    Mrs Gravenall denied that she instructed Rynne to match the gaps to the dining room floor[154] and testified that water entered the kitchen area from a storm after the floor had been laid, with only a tarp as protection,[155] , in or around April 2010. However, Mr Haines testified that normally floor boards would expand and contract within six months of exposure to moisture[156] and he did not identify any gaps in the report he prepared for the Authority in December 2010.[157]
  4. [164]
    Mr Fritz’s report noted that gaps were showing where the new floorboards had shrunk and stated that the installation “does not comply with the BCA requirements for acceptable construction practice.”[158] However, Mr Fritz’s report does not specify how the installation does not comply with the BCA requirements and his report was prepared following an inspection in February 2012, almost two years after the alleged exposure to moisture.
  5. [165]
    Conversely, Mr Pye’s report identified gaps in two floorboards but noted that they matched existing floor gaps in the adjacent dining room.[159] Mr Pye’s report also noted that modern flooring “does not generally suffer shrinkage as would appear to be the case in this instance further supporting builder”.[160]
  6. [166]
    In the Expert Conclave Report prepared jointly by Mr Fritz and Mr Pye, Mr Pye stated that he had not been able to form a view on why the gaps had occurred and therefore whether they were a defect, while Mr Fritz did not express a view on causation.[161] However, under cross-examination Mr Fritz conceded that the appearance of the dining room gaps matched the kitchen boards.[162]
  7. [167]
    Some weeks after the Expert Conclave and without leave of the Tribunal, Mrs Gravenall procured a further report from Mr Fritz raising matters not addressed in the joint Expert Conclave Report. These included that he had been advised “that the floor had been rained on during the construction period because the floor had been laid in advance of the outer walls being closed in” and that “this floor wetting would have had an adverse effect on the timber because of rapid swelling and shrinkage”.[163]
  8. [168]
    The Tribunal does not attach any substantial weight to Mr Fritz’s further report. It was prepared following an inspection more than two years after the alleged moisture exposure. Moreover, an expert may not raise a matter not already mentioned in a joint report except with the Tribunal’s leave.[164]
  9. [169]
    Although the Tribunal admitted Mr Fritz’s further report into evidence, the report’s attempt to introduce new matters defeats the purpose of an Expert Conclave, namely to identify and clarify areas of agreement and disagreement on any issue in dispute and reasons for disagreement.[165]
  10. [170]
    The Tribunal has concluded that the further report from Mr Fritz outside and after the Conclave was designed to address deficiencies identified in the Conclave, without consulting the other expert. Mrs Gravenall arranged a further inspection by Mr Fritz without informing Rynne and denied Mr Pye access when he attended with Mr Fritz. Mrs Gravenall’s actions thereby denied Rynne an opportunity to have its expert, Mr Pye prepare a further report in response. This is contrary to procedural fairness.[166]
  11. [171]
    Mrs Gravenall has not established that the gaps in the kitchen floorboards were a defect caused by Rynne’s poor workmanship. Rather, the weight of evidence leads to a finding that the gaps were left intentionally to match the existing floorboards, as instructed by Mrs Gravenall.
  12. [172]
    The claim for the kitchen floor is dismissed.

Termite protection measures – unquantified loss

  1. [173]
    Mr Fritz’s report recommended that upon completion, the termite protection agent should ensure the installation is certified by displaying correct notices in the meter box.[167]
  2. [174]
    Mr Pye deemed no apparent defect.[168] The Expert Conclave Report noted no defect but a need to ensure compliance certificates and durable notices in the meter box.[169]
  3. [175]
    Mrs Gravenall stated that an apprentice from Rynne installed the termite stickers on or about 24 November 2011.[170] Mr Arlidge did not quantify any loss.[171]
  4. [176]
    In the absence of evidence of any quantifiable loss, the claim is dismissed.

Cracked glass in window of bedroom 2 - $413.00

  1. [177]
    Mr Fritz’s report noted that a high level window had a cracked pane and considered it to be incomplete work.[172]
  2. [178]
    Mr Pye’s report deemed it no defect “as unable to establish responsibility”.[173] Mr Rynne denied cracking the pane. No-one witnessed the pane cracking.
  3. [179]
    In the absence of evidence that the pane cracked by Rynne, the claim is dismissed.

Tank water to washing machine - $2,125.00 plus water tank rebate of $1,500.00

  1. [180]
    Mr Fritz’s report noted that the tank water had not been connected to the washing machine.[174] Mrs Gravenall claimed that Rynne failed to instruct the plumber, Clayton Granzien to connect the tank water to the washing machine in accordance with the Development Application Conditions of Approval.[175] She claimed that as a result of this mistake, she is no longer able to recover a state government rebate of $1,500.00.[176]
  2. [181]
    Mrs Gravenall didn’t provide evidence of her entitlement to the rebate and this part of her claim is dismissed.
  3. [182]
    Mr Rynne said that the washing machine taps had not been connected to the tank water because Mrs Gravenall had specifically instructed that they not be connected, due to her concerns about the water staining her clothes.[177] This was corroborated by a letter from Mr Granzien[178] and his evidence under cross-examination:

 … we went through that with Dianne and she didn’t want tank water at the washing machine for the fact of damaging clothing.

And the issue of the tank water connection to the laundry, did you advise her that the supply of tank water to the washing machine could damage cloth – clothing? --- Yes, I did say there’s a possibility it could and she was concerned. Particularly with an inground thank (sic), there’s more risk of, you know, say, a broken pipe, or something like that, and you get dirty water come through into an inground tank and if that did, well, then it can damage, you know, clothing, particularly whites, or any sort of clothing, just with staining. We did mention that to Dianne and she was quite concerned about it. Then we left the decision up to her and she decided not to go ahead and put the tank water to the laundry.[179]

  1. [183]
    Mr Granzien also testified that had Mrs Gravenall requested him to connect the rainwater to the washing machine or to the laundry, he would have connected it and that “we always liaise with our customers, every single job”.[180]
  2. [184]
    Under cross-examination, Mrs Gravenall conceded that she expressed her concerns about the water discolouring her clothes:

… I said, well, maybe you’re right; it might affect the washing…

Did you say that to Clayton Granzien, that you were---? --- Yes.

--- concerned about the water being connected to your washing machine and discolouring your clothes? --- After he suggested it, yeah. Yeah.

And you agree that you said that to him about it? --- Yes, I did.[181]

  1. [185]
    The Tribunal is satisfied that the plumber did not connect the taps on Mrs Gravenall’s instructions, so the balance of the claim is also dismissed.

Is Mrs Gravenall entitled to rectification of plumbing work of $2,810.50?

  1. [186]
    Counsels’ submissions did not address this claim in any detail.
  2. [187]
    Mrs Gravenall claimed $2,810.50 for external plumbing work to be re-laid to achieve correct fall and depth, including machine operator hire and CCTV inspection.[182] The amount claimed in the Amended Statement of Claim for this item was $4,400.00,[183] but no explanation was provided for the variation in the figures.
  3. [188]
    In her Statement of Evidence of 3 May 2012, Mrs Gravenall claimed that she paid $2,810.50 directly to subcontractors and suppliers for plumbing rectification work as follows:
  • Payment receipt 362 of 10/09/10 for “Clayton Granzien Plumbing” in the amount of $1,000.00;
  • Payment receipt 363 of 10/09/10 for “machine hire plumbing”  in the amount of $1,200.00;
  • Kartaway Mini Skips Invoice Q108223 of 10/09/10 for $255.00; and
  • Drain Eye Invoice 388 of 17/08/11 for inspection of sewer and mainwater in the amount of $355.50.[184]
  1. [189]
    In its Amended Defence, Rynne pleaded that the plumber rectified the external plumbing works to achieve the correct fall and depth at its own cost and any payment by Mrs Gravenall to rectify would have interfered with the works, in breach of clause 11.12 of the Contract.[185]
  2. [190]
    The plumber, Mr Granzien confirmed that he did not invoice for the rectification work, but that Mrs Gravenall insisted that he take the cheque for $1,000.00, and he appreciated the offer as a “gesture of good will”.[186] Under cross-examination, Mrs Gravenall admitted that she voluntarily paid the $1,000.00 and that neither Mr Rynne nor Mr Granzien required her to pay it.[187] The Tribunal finds that the $1,000.00 payment is not recoverable from Rynne.
  3. [191]
    Mrs Gravenall claimed in her Statement of Evidence dated 3 May 2012 that she incurred the remaining costs due to Rynne failing to fix drains with incorrect fall.[188] However, she did not elaborate on how the costs for “machine hire plumbing”, mini skip and drain eye inspection of sewer and mains water contributed to the rectification of the incorrect fall, or establish why she was required to pay these costs when Mr Granzien’s evidence was that he did not invoice for the rectification work. None of the suppliers of these services was called to substantiate that the work contributed to the rectification of the incorrect fall.
  4. [192]
    The Tribunal considers that Mrs Gravenall’s evidence is not sufficient to verify the untested documentary evidence from purported suppliers.[189] Mrs Gravenall must establish her case against the builder. She did not causally link the evidence of loss with the alleged breach.
  5. [193]
    The Tribunal is not satisfied that the costs of $1,810.50 for machine hire, skip hire and drain hire are recoverable from Rynne.
  6. [194]
    The $2,810.50 claim for rectification of plumbing is dismissed.

Is Mrs Gravenall entitled to reactivation fee of $550.00 and loss in land value of $30,000.00?

  1. [195]
    Mrs Gravenall claimed that Rynne’s delay in providing certification caused her to incur a reactivation fee of $550.00 and suffer a reduction in value of $30,000.00 due to the loss of the chance to sell the property.[190]
  2. [196]
    Rynne claimed that it did not deliver the certification to Mrs Gravenall because she failed to pay its final payment claim.[191]

Reactivation fee - $550.00

  1. [197]
    Although Mrs Gravenall attached a letter from the Brisbane Building Approval Centre[192] referring to an “administration fee” to support her claim to a reactivation fee, no evidence was adduced to substantiate the amount claimed. In the absence of evidence to support quantum, the Tribunal dismisses the claim for a $550.00 reactivation fee.
  2. [198]
    The claim for the reactivation fee of $550.00 is dismissed.

Loss in value - $30,000.00

Is Mrs Gravenall entitled to claim if she has no direct interest in the property?

  1. [199]
    Although Mrs Gravenall’s husband, Gary Gravenall, owned the property, Mrs Gravenall signed the contract. A regulated contract only has effect if signed by the builder and home owner or their authorised agents.[193]
  2. [200]
    Mr and Mrs Gravenall state that they both met with Craig Rynne on or about 7 December 2009 to discuss plans they supplied to him for a quote. This is consistent with Mr Rynne’s evidence of meeting with Mrs Gravenall to “outline the owner’s requirements”,[194] suggesting that Mr Rynne knew that the owner was a person other than Mrs Gravenall. Mrs Gravenall also signed the contract “for and on behalf of the owner”.[195]
  3. [201]
    Mr and Mrs Gravenall’s conduct before, during and after construction indicated she was acting with her husband’s full authority and Rynne engaged with her on that basis.[196] The Tribunal is therefore satisfied that the parties accepted by their conduct that Mrs Gravenall was acting as Mr Gravenall’s authorised agent.
  4. [202]
    Mrs Gravenall is therefore entitled to sue and be sued on the contract as agent for her husband, including for any damages flowing from any breach of the contract by Rynne.
  5. [203]
    She is therefore entitled to claim the loss of valuation.

Was there an intention to sell the property?

  1. [204]
    To recover a loss in value, Mrs Gravenall must demonstrate loss by showing that she intended to sell the property, but could not due to the property not being certified.  Although Mrs Gravenall noted that she and Mr Gravenall “are unable to sell the property because it is not certified”,[197] this is a statement of Mrs Gravenall’s understanding of the effect of not obtaining certification - if they did intend to sell.  To substantiate a claim for loss of valuation, the requisite intention to sell must be clear, unequivocal and supported by objective evidence of both that intention and that the decrease in value is attributable to the failure to certify.
  2. [205]
    Mrs Gravenall did not introduce this claim until the end of the second day of the hearing on 30 October 2012 – over 12 months after filing her original Application on 3 October 2011. It was not until the third day of the hearing on 15 August 2013 that Mrs Gravenall introduced evidence that she did not intend to continue to use the property as a residence:

Now, is it your intention to continue to use the Quarry Road house as an ongoing residence? --- No. We had agents come out to get prices to sell after we’d finished the job, but then we realised that we couldn’t sell, so our plans then changed. Yeah. We had to stay there.

Okay. The – had you been in a position to sell it, was it your intention to sell the house? --- Yes, it was.

Why was that? --- To release the funds to start up the Mackay property development… it’s supposed to be our retirement project.[198]

  1. [206]
    Under cross-examination Mrs Gravenall admitted that she had no evidence to support her claim that she engaged real estate agents to look at the property.[199] She claimed to have quotes from a real estate agent,[200] but failed to produce any.[201] In re-examination, she named an agent she claimed to have contacted,[202] but failed to call her or any other agent to give evidence to support the intention to sell. This was despite having ten months between introducing her claim and being required to give evidence about it.[203]
  2. [207]
    Significantly, none of the evidence prior to Mrs Gravenall’s late introduction of this claim suggests any intention to sell:
  • Mrs Gravenall stated that “it was our intention to relocate from Melbourne to Brisbane and move into this house in the future”;[204]
  • Mrs Gravenall stated that “we decided that I would manage the renovation works while my husband stayed in Melbourne to prepare for our relocation… ”(our emphasis);[205]
  • Mrs Gravenall stated that “we moved into our house in or about June 2010”;[206]
  • Mrs Gravenall stated that “I had no intention of moving to QLD until the house was completed…”;[207]
  • Under cross-examination, Mrs Gravenall testified that she had a conversation with Mr Granzien about installing an additional water point for her daughter’s fridge;[208] and
  • Mrs Gravenall’s daughter attended with her when Galaxy Cabinets prepared computerised plans for the kitchen and bathroom.[209]
  1. [208]
    The Tribunal is not satisfied that Mrs Gravenall has adduced sufficient evidence to substantiate her claim that she and Mr Gravenall intended to sell the property.
  2. [209]
    The claim for the loss of value of $30,000.00 is dismissed.

Is Mrs Gravenall entitled to $968.00 for relocating the pipe work near the carport?

  1. [210]
    Neither the pleadings nor Counsels’ submissions address this claim in any detail.
  2. [211]
    In her Statement of Evidence of 3 May 2012, Mrs Gravenall claimed that she had to relocate the stormwater pipe at a cost of $968.00,[210] due to the certified plans requiring the carport to be moved over a further 500mm from the preliminary drawings.[211]
  3. [212]
    However, under cross-examination Mrs Gravenall admitted to increasing the tank capacity and to changing the location to under the carport slab, at the beginning of the works, without communicating the change to Mr Hollier:

You made a number of changes to the renovation works that you had originally planned with Mr Hollier, didn’t you? You made some changes throughout? --- Yes.

Okay. And you didn’t always communicate those changes to Mr Hollier with respect to what you were changing on the plan or what you were changing on the internal fit-out of your home, did you? --- He did redraw plans at one point.

But you didn’t communicate every single change you made inside the building to Mr Hollier? --- I presumed Craig and Phil would do that.

But you didn’t have Mr Hollier on a retainer during the construction of your property, did you? --- No, I did not.

Now, you changed – you made significant changes to the tank water storage, didn’t you? --- Yes.

You doubled the size of the water storage capacity? --- We installed – yes.

And you had originally planned on the tank being located at the side of the house---? --- Correct.

--- next to the house. And that was to be an above-ground tank---? --- Correct.

--- sitting on the ground at the side of the house, and you changed that during the works and decided that you wanted to install larger tanks underneath the carport slab, didn’t you? --- At the beginning of the works, yes.

You didn’t communicate that with Mr Hollier at the beginning of the works, did you? --- No.

No. So obviously with the pipes being connected to the original tank, as planned, pipes had to change to be then connected to the tanks under the carport slab; would you agree with that? --- I hadn’t really thought about it.

How was the water going to get to the carport slab? --- Well, I didn’t – I didn’t ascertain that there’s a difference between above-ground tank or underground tank to give [indistinct].

And you, in fact, instructed Mr Horseman (sic) and Mr Granzien that you wanted the pipes to be connected to the under-slab tanks to the underground, didn’t you? --- I employed a plumber to do the tanks separately from the contract and paid him directly, and he took it all the way to the house.[212]

  1. [213]
    This is consistent with Mr Rynne’s evidence that the main reason for changing the pipes was that Mrs Gravenall decided to put tanks under the carport.[213]
  2. [214]
    The evidence supports a finding that Mrs Gravenall incurred these costs because she chose underground tanks.
  3. [215]
    The claim to relocate the pipe work for $968.00 is dismissed.

Is Mrs Gravenall entitled to an additional plumbing charge of $768.68?

  1. [216]
    Again, neither the pleadings nor Counsels’ submissions address this claim in any detail.
  2. [217]
    In her Statement of Evidence of 3 May 2012, Mrs Gravenall claimed that Rynne Invoice of 02/02/10 for $26,476.52 includes an additional charge in plumbing costs of $768.68, despite Mr Rynne and Mr Granzien orally agreeing to finish remaining plumbing work at no charge.[214]
  3. [218]
    However, this additional charge is not apparent on the face of the invoice.
  4. [219]
    In the absence of evidence to support the claim, the claim for the additional plumbing charge of $768.68 is dismissed.

What is the total owing to Mrs Gravenall?

  1. [220]
    The total amount owing to Mrs Gravenall is $28,463.55 made up as follows:

$

Meier credit      50.00

Carport posts credit    558.36

Reece credit     161.65

10% margin on taps credit     39.51

Wages credit               27,004.03

Electrical wiring to water pump   400.00

Door sill     100.00

Splashback tiling    150.00

 Total           28,463.55

Is Rynne entitled to a $5,861.53 payment for work performed?

What is the basis for the counter-claim?

  1. [221]
    Again, counsels’ submissions do not address Rynne’s counter-claim in detail. Mrs Gravenall submits that Rynne cannot enforce the cost plus contract.[215] However, the Tribunal has found that Rynne can enforce the contract under the exception in section 55(1)(b) of the Domestic Building Contracts Act 2000 (Qld),[216] including taking steps to recover any payment owing under the Contract.
  2. [222]
    Rynne’s Amended Defence and Counter-claim[217] sought $29,805.49 as follows:

Unpaid invoices    $27,064.02

Loss of builder margin on future work    2,741.47 

  1. [223]
    On day three of the hearing, Mr Rynne conceded Rynne overcharged Mrs Gravenall $27,004.03 for wages.[218] However, Mr Rynne appears to have then incorrectly adopted this figure as the basis for his counter-claim and then deducted what he believed to be Mrs Gravenall’s deposit of $21,142.50, leaving a balance of $5,861.53 as his counter-claim.[219]

Is Rynne entitled to payment for unpaid invoices?

  1. [224]
    Mrs Gravenall admitted under cross-examination that she did not pay the second last Invoice of $26,476.52.[220] Mrs Gravenall disputed the invoice because:
    1. (1)
      It included $3,960.00 for external stairs that are defective;
    2. (2)
      Reece credits of $1,616.47 do not take into account the ten percent builder margin already paid;
    3. (3)
      She already paid $3,715.30 wages in advance on Rynne’s previous invoice;
    4. (4)
      Rynne included builder margin of $5,531.80 on Galaxy work;
    5. (5)
      Rynne included builder margin of $608.55 on Aeromacs work; and
    6. (6)
      Cost to rectify of $38,614.00 far exceeds the balance.[221]
  2. [225]
    The Tribunal has already allowed Rynne items 1, 4 and 5 and they are therefore not to be deducted from the invoice.
  3. [226]
    For item 2, Mr Rynne conceded that Mrs Gravenall was entitled to be credited the builder margin on Reece items of $161.47. However, ten percent of $1,616.47 is $161.65 and the Tribunal has awarded this to Mrs Gravenall as part of her claim.
  4. [227]
    For item 3, Mrs Gravenall claimed that when paying Rynne’s previous invoice, Mr Rynne said that it included all labour costs to the end of the job and she would not receive any further bills for wages.[222] Mrs Gravenall adduced no evidence to support this. The Tribunal has awarded total overpaid wages of $27,004.03 to Mrs Gravenall as part of her claim.
  5. [228]
    The Tribunal has only awarded Mrs Gravenall $650.00 of the $38,614.00 rectification claim in item 6.
  6. [229]
    The Tribunal is therefore satisfied that Rynne is entitled to payment of its final invoice of $26,476.52, less the amounts awarded to Mrs Gravenall.
  7. [230]
    Mrs Gravenall admitted under cross-examination that she was unsure whether she had paid $587.50 outstanding for Invoice 41.[223] In these circumstances, the Tribunal is satisfied on the balance of probabilities that $587.50 is payable for Invoice 41.

Is Rynne entitled to future loss of builder margin?

  1. [231]
    Counsels’ submissions do not address this part of Rynne’s counter-claim in any detail. The Amended Defence and Counterclaim[224] appears to have been based on Mrs Gravenall’s claimed future costs of completion in her Amended Statement of Claim.[225] Rynne did not lead evidence of its own to support this part of its counter-claim and cannot rely upon Mrs Gravenall’s untested quantum evidence.
  2. [232]
    The Tribunal is not satisfied that Rynne is entitled to a builder margin on any future works.

What deposit is to be deducted?

  1. [233]
    Mr Rynne agreed that the deposit paid by Mrs Gravenall should be deducted from his final invoice.[226] He conceded under cross-examination that he incorrectly credited Mrs Gravenall $21,142.50 deposit, instead of $22,142.50.[227]
  2. [234]
    The Tribunal finds that the amount of $22,142.50 is to be deducted from the amount payable to Rynne.

Is interest payable on the invoiced amounts?

  1. [235]
    Unlike the Courts,[228] the Tribunal does not have a wide statutory discretion to award interest.[229] The invoice amounts are liquidated amounts owing under the contract and not an award of damages. The Tribunal may therefore only award interest at a rate specified under the contract.[230]
  2. [236]
    The interest rate provided for in the contract is Nil.[231]
  3. [237]
    Rynne is not entitled to interest.

What is the final reconciliation?

  1. [238]
    The final reconciliation is therefore:

Amount awarded to Mrs Gravenall  $28,463.55

Plus credit for deposit paid   22,142.50

Sub-total     50,606.05

Less outstanding Rynne invoices   27,064.02   

Amount payable by Rynne   $23,542.03

What are the appropriate orders?

  1. [239]
    The Tribunal will allow the parties to make submissions on costs.
  2. [240]
    The appropriate orders are that:
    1.  Craig Rynne Constructions Pty Ltd is to pay to Dianne Gravenall the sum of $23,542.03 by 4.00pm on 11 March 2016;
    2.  Dianne Gravenall is to file with the Tribunal and serve on Craig Rynne Constructions Pty Ltd any submissions on costs by 4.00pm on 18 March 2016;
    3.  Craig Rynne Constructions Pty Ltd is to file with the Tribunal and serve on Dianne Gravenall any submissions on costs by 4.00pm on 1 April 2016;
    4.  The costs of the proceedings will be determined on the papers and without an oral hearing not before 4 April 2016.

Footnotes

[1]Decision dated 24 December 2015.

[2]The Applicant’s submissions filed 27 September 2013 claim a total of $204,501.96. However, this does not appear to include the claimed additional plumbing charge of $768.68.

[3] Domestic Building Contracts Act 2000 (Qld), ss 8, 9.

[4] Domestic Building Contracts Act 2000 (Qld), s 55.

[5]Letter Queensland Building Services Authority to Dianne Gravenall dated 26 October 2010.

[6]Letter Keith Hollier Architect to Queensland Building Services Authority dated 22 October 2010.

[7]Letter Keith Hollier Architect to Queensland Building Services Authority dated 22 October 2010.

[8]Letter Keith Hollier Architect to Queensland Building Services Authority dated 22 October 2010.

[9]Reply to Keith Hollier’s Statement undated.

[10]Statement of Keith Hollier dated 7 August 2012 and Transcript, Day 2, Lines 25 to 31, where Mrs Gravenall states that her daughter and Mr Hollier’s daughter, now aged 30, went to Kindergarten together.

[11]Transcript, Day 2, Page 101, Lines 25 to 44, pages 102 to 105.

[12]Transcript, Day 3, Page 8, Lines 29 to 38.

[13]Transcript, Day 2, Page 60, Lines 5 to 20.

[14]Amended Statement of Claim filed 6 November 2012.

[15]Statement of Dianne Gravenall dated 3 May 2012, paragraph 2.11.

[16]Statement of Gary Gravenall dated 30 June 2012, paragraph 3.

[17]Transcript, Day 3, Page 30, Lines 24 to 42.

[18]Statement of Dianne Gravenall dated 3 May 2012, paragraph 2.7.

[19] Brikom Investments Pty Ltd v. Carr [1979] 2 QB 467.

[20]Contract dated 19 December 2009, Schedule Item 6.

[21] Versace v. Lavis [2005] QCCTB 2 at [401].

[22] DC Mills Developments Pty Ltd v. Fitch [2015] QCAT 114 at [30].

[23] Roe v. R.A. Naylor Ltd [1917] 1 KB 712 at 716, per Atkin J.

[24]Submissions On Behalf Of The Applicant filed 27 September 2013, paragraph 5.12.

[25] Domestic Building Contracts Act 2000 (Qld), Schedule 2 definition of ‘payment section’.

[26] Queensland Building Services Act 1991 (Qld), s 77(3)(d).

[27]Transcript, Day 2, Page 29, Lines 11 to 13.

[28]Statement of Dianne Gravenall dated 3 May 2012, paragraphs 1.2, 3.15.

[29]Transcript, Day 3, Page 30, Lines 24 to 42.

[30] Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(a).

[31]Contract dated 19 December 2009, Clause 1 Definition of “Actual Cost of the Works”.

[32]Contract dated 19 December 2009, Clause 29.2(h).

[33]Contract dated 19 December 2009, Clause 29.2(rr).

[34]Contract dated 19 December 2009, Schedule Item 9.

[35]Statement of Phillip Michael Horstman filed 15 August 2013.

[36]Transcript, Day 3, Page 67, Lines 16 to 47, Page 68, Lines 2 to 18.

[37]Letter Paul Martignago, Galaxy Cabinets to Craig Rynne Construction dated 8 June 2012.

[38]Letter Paul Martignago, Galaxy Cabinets to Craig Rynne Construction dated 8 June 2012.

[39]Transcript, Day 4, Page 60, Lines 45 to 47.

[40]Transcript, Day 4, Page 61, Lines 7 to 12.

[41]Statement of Dianna Gravenall sworn 3 May 2012 at paragraph 5.

[42]Affidavit of Peter Pollard sworn 7 February 2012, paragraph 2.

[43]Transcript, Day 5, Page 5, Line 16.

[44]Transcript, Day 5, Page 5, Lines 22 to 26.

[45]Transcript, Day 2, Page 42, Lines 41 to 47, page 43, Lines 1 to 22.

[46]Transcript, Day 2, Page 84, Lines 35 to 40.

[47]Submissions In Reply On Behalf Of The Applicant at page 14.

[48]Other documents issued by Reece are noted as such – see for example Reece Invoices dated 9 March 2010 for $299.99, 21 May 2010 for $292.01 and 21 May 2010 for $267.91.

[49]Transcript, Day 5, Page 90, Lines 16 to 26.

[50]Transcript, Day 3, Page 68, Lines 20 to 30.

[51]Transcript, Day 5, Page 82, Lines 39 to 45.

[52]Transcript, Day 2, Page 45, Lines 16 to 26.

[53]Rynne Invoice dated 2 July 2010 for $26,476.52 has a total amount of $1,616.47 for Reece related Items: $292.01, $1,311.48 and $12.98.

[54]Transcript, Day 5, Page 90, Lines 16 to 26.

[55]Transcript, Day 3, Page 68, Lines 20 to 30.

[56]Transcript, Day 5, Page 90, Lines 31 to 47, Transcript, Day 2, Page 44, Lines 19 to 45.

[57]Rynne Invoice 14 dated 19 March 2010.

[58]Rynne Invoice 43 dated 29 January 2010, Rynne Invoice 03 dated 2 July 2010.

[59]See paragraph [30].

[60]Transcript, Day 5, Page 82, Lines 19 to 31.

[61]Statement of Phillip Michael Horstman filed 15 August 2013.

[62]Transcript, Day 3, Page 77, Lines 26 to 45 and Page 78, Lines 2 to 30.

[63]Transcript, Day 5, Page 160, Lines 26 to 45, and Page 161, Lines 1 to 28.

[64]It was not until the final day of the hearing that Mrs Gravenall introduced her claim for $69,791.50. In her original Statement of Claim filed on 3 October 2011, Mrs Gravenall claimed an unspecified amount for excessive labour and profit on excessive labour and $2,350.00 for Mr Rynne’s hours. In her Statement of Evidence sworn on 3 May 2012, Mrs Gravenall crystallised her claim to $55,062.30 for “overcharged / overpaid wages”. She then calculated $36,424.97 of this in a separate Table attached to her Statement that also provided two “alternative calculations” of $28,976.77 and $41,276.29. On the last day of the hearing on 3 September 2013, Mrs Gravenall then increased her claim for overcharged wages to $69,791.50.

[65]Transcript, Day 5, Page 160, Lines 26 to 45, and Page 161, Lines 1 to 28.

[66]The Tribunal could have dismissed the claim  or not admitted Mrs Gravenall’s updated analysis as evidence, for this reason alone.

[67]Transcript, Day 5, Page 77, Lines 26 to 39 and Page 78, Line 4.

[68]Contract dated 19 December 2009, Appendix Part K(3).

[69]Contract dated 19 December 2009, Appendix Part K(4).

[70] Civil Proceedings Act 2011, ss 58, 59 and s 5 definition of ‘court’.

[71] Glamoren Pty Ltd v. Lee & Anor [2012] QCATA 176 at [18], per Wilson J.

[72] Queensland Building Services Authority Act 1991 (Qld), s 77(3)(c).

[73] Queensland Building Services Authority Act 1991 (Qld), s 77(3)(d), Queensland Building Services Authority Regulation 2003 (Qld), s 34B.

[74] Contrast Constructions Pty Ltd v. Bartlett [2014] QCATA 262 at [74].

[75]Contract dated 19 December 2009, Clause 11.9 provides for interest payable if the owner fails to make any payment to the builder.

[76]Contract dated 5 December 2009, Schedule Item 24.

[77]Report of Stephen Mark Arlidge dated 29 April 2012.

[78]Report of Cecil Fritz dated 26 April 2012, paragraph 4.1.

[79]Report of Bruce Haines dated 9 December 2010.

[80]Statement of Bruce Haines dated 15 June 2012, p.2.

[81]Transcript, Day 1, Page 60, Lines 2 to 4.

[82]Transcript, Day 1, Page 59, Lines 36 to 40.

[83]Transcript, Day 1, Page 60, Lines 41 to 47, Page 61, Lines 1 to 12.

[84]Statement of Phillip Michael Horstman, undated.

[85]Statement of David Langford, undated.

[86]Transcript, Day 3, Page 20, Lines 11 to 20.

[87]Transcript, Day 5, Page 91, Lines 38 to 45.

[88]Transcript, Day 5, Page 92, Lines 1 to 5.

[89]Mrs Gravenall purported to terminate the contract by letter dated 23 September 2010.

[90]Report of Cecil Fritz dated 26 April 2012, paragraph 4.2.

[91]Report of Bruce Haines dated 9 December 2010.

[92]Report of Marcus Pye dated 15 June 2012, paragraph 4.2.

[93]Report of Cecil Fritz dated 26 April 2012, paragraph 4.3.

[94]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.21.

[95]Statement of Dianne Gravenall dated 3 May 2012, paragraphs 3.20 to 3.21.

[96]Transcript, Day 3, Page 77, Lines 21 to 23, Day 3, Page 82, Lines 15 to 17.

[97]Transcript, Day 5, Page 82, Lines 44 to 46.

[98]Transcript, Day 5, Page 83, Lines 21 to 24.

[99]Statement of Phillip Horstman, undated and Transcript, Day 3, Page 75, Lines 24 to 28.

[100]Statement of Keith Hollier dated 7 June 2012, paragraph 11 and Transcript, Day 2, Page 99, Lines 24 to 32.

[101]Statement of Keith Hollier dated 7 June 2012, paragraph 11 and Transcript, Day 2, Page 99, Lines 41 to 45, Day 3, Lines 23 to 25.

[102]Statement of Keith Hollier dated 7 June 2012, paragraph 11 and Transcript, Day 2, Page 100, Lines 9 to 11.

[103] British & Bennington’s Ltd v. N.W. Cachar Tea Co. [1923] AC 48 at 62.

[104]Report of Cecil Fritz dated 26 April 2012, paragraph 4.4.

[105]Report of Bruce Haines dated 9 December 2010.

[106]Report of Marcus Pye dated 15 June 2012, paragraph 4.4.

[107]Transcript, Day 5, Page 92, Lines 20 to 22.

[108]Statement of Phillip Horstman, undated.

[109]Report of Cecil Fritz dated 26 April 2012, paragraph 4.5.

[110]Report of Cecil Fritz dated 26 April 2012, paragraph 4.5.

[111]Report of Stephen Mark Arlidge dated 29 April 2012.

[112] Robinson v. Harman [1848] EngR 135.

[113]Under cross-examination, Mr Arlidge also expressed the view that industry standard would require wiring to not be bundled, but to run without excess – Transcript, Day 1, Page 18, Lines 22 to 25.

[114]Report of Cecil Fritz dated 26 April 2012, paragraph 4.6.

[115]Report of Marcus Pye dated 15 June 2012, paragraph 4.6.

[116]Expert Conclave Report dated 14 September 2012.

[117]Report of Cecil Fritz dated 26 April 2012, paragraph 4.7.

[118]Report of Marcus Pye dated 15 June 2012, paragraph 4.7.

[119]Report of Bruce Haines dated 9 December 2010.

[120]Report of Cecil Fritz dated 26 April 2012, paragraph 4.8.

[121]Report of Cecil Fritz dated 26 April 2012, paragraph 4.8.

[122]Report of Marcus Pye dated 15 June 2012, paragraph 4.8.

[123]Report of Bruce Haines dated 9 December 2010.

[124]Transcript, Day 1, Page 71, Lines 2 to 3.

[125]Report of Cecil Fritz dated 26 April 2012, paragraph 4.9.

[126]Report of Marcus Pye dated 15 June 2012, paragraph 4.9.

[127]Report of Cecil Fritz dated 4 October 2012.

[128]Report of Cecil Fritz dated 26 April 2012, paragraph 4.10.

[129]Expert Conclave Report dated 14 September 2012.

[130]Report of Cecil Fritz dated 4 October 2012.

[131]Report of Cecil Fritz dated 26 April 2012, paragraph 4.11.

[132]Report of Cecil Fritz dated 26 April 2012, paragraph 4.11.

[133]Report of Stephen Mark Arlidge dated 29 April 2012.

[134]Report of Marcus Pye dated 15 June 2012, paragraph 4.11.

[135]Expert Conclave Report dated 14 September 2012.

[136]Transcript, Day 1, Page 21, Lines 2 to 4.

[137]Report of Cecil Fritz dated 26 April 2012, paragraph 4.12.

[138]Report of Cecil Fritz dated 26 April 2012, paragraph 4.12.

[139]Report of Marcus Pye dated 15 June 2012, paragraph 4.12.

[140]Report of Cecil Fritz dated 26 April 2012, paragraph 4.13.

[141]Report of Cecil Fritz dated 26 April 2012, paragraph 4.13.

[142]Report of Marcus Pye dated 15 June 2012, paragraph 4.13.

[143]Report of Marcus Pye dated 15 June 2012, paragraph 4.13.

[144]Report of Bruce Haines dated 9 December 2010.

[145]Statement of Bruce Haines dated 15 June 2012.

[146]Report of Bruce Haines dated 9 December 2010.

[147]Statement of Phillip Horstman, undated, and testimony of Dianne Gravenall at Transcript, Day 2, Page 28, Lines 22 to 40.

[148]Transcript, Day 2, Page 27, Lines 22 to 46.

[149]Transcript, Day 5, Page 87, Lines 26 to 46, Day 5, Page 88, Lines 1 to 11.

[150]Transcript, Day 3, Page 72, Lines 20 to 25, Day 3, Page 73, Lines 3 to 15.

[151]Transcript, Day 3, Page 91, Lines 43 to 45, Day 3, Page 92, Lines 8 to 16.

[152]Transcript, Day 5, Page 84, Lines 11 to 28.

[153]Transcript, Day 3, Page 80, Lines 27 to 28, 40 to 41, Page 81, Lines 1 to 3, Page 82, Lines 40 to 42.

[154]Transcript, Day 2, Page 17, Lines 15 to 17.

[155]Transcript, Day 2, Page 16, Lines 1 to 14.

[156]Transcript, Day 3, Page 48, Lines 42 to 46.

[157]Report of Bruce Haines dated 9 December 2010.

[158]Report of Cecil Fritz dated 26 April 2012, paragraph 4.14.

[159]Report of Marcus Pye dated 15 June 2012, paragraph 4.14.

[160]Report of Marcus Pye dated 15 June 2012, paragraph 4.14.

[161]Expert Conclave Report dated 14 September 2012.

[162]Transcript, Day 1, Page 59, Lines 27 to 32.

[163]Letter C K Fritz to Eaton Lawyers dated 4 October 2012.

[164]QCAT Practice Direction No. 4 of 2009.

[165]QCAT Practice Direction No. 4 of 2009.

[166] Queensland Civil and Administrative Tribunal Act 2009, s 28(3) requires the Tribunal to observe the rules of natural justice.

[167]Report of Cecil Fritz dated 26 April 2012, paragraph 4.15.

[168]Report of Marcus Pye dated 15 June 2012, paragraph 4.15.

[169]Expert Conclave Report dated 14 September 2012.

[170]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.50.

[171]Report of Stephen Mark Arlidge dated 29 April 2012.

[172]Report of Cecil Fritz dated 26 April 2012, paragraph 4.16.

[173]Report of Marcus Pye dated 15 June 2012, paragraph 4.16.

[174]Report of Cecil Fritz dated 26 April 2012, paragraph 4.17.

[175]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.23.

[176]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.23.

[177]Transcript, Day 5, Page 88, Lines 15 to 24.

[178]Letter Clayton Granzien to whom it concerns, undated.

[179]Transcript, Day 5, Page 10, Lines 20 to 31.

[180]Transcript, Day 5, Page 18, Lines 11 to 14.

[181]Transcript, Day 2, Page 31, Lines 7 to 20.

[182]Submissions On Behalf Of The Applicant, paragraph 2.

[183]Amended Statement of Claim filed 6 November 2012, paragraph 21.a.i.

[184]Statement of Dianne Gravenall dated 3 May 2012, paragraphs 3.38, 3.40.

[185]Amended Defence filed 14 November 2012, paragraph 19(d).

[186]Letter Clayton Granzien To whom it may concern, undated.

[187]Transcript, Day 2, Page 58, Lines 15 to 46.

[188]Statement of Dianne Gravenall dated 3 May 2012, paragraphs 3.34, 3.37 and Report of Mark Harnett of Moreton Hydraulic Services dated 1 September 2010.

[189] Olindaridge Pty Ltd v. Tracey & Anor [2014] QCATA 207 at [36] to [45].

[190]Submissions On Behalf Of The Applicant filed 27 September 2013, paragraph 5.15.

[191]Amended Defence And Counterclaim filed 14 November 2012, paragraph 23(c).

[192]Letter Brisbane Building Approval Centre to Dianne, dated 21 July 2011.

[193] Domestic Building Contracts Act 2000 (Qld), s 30.

[194]Statement of Evidence of Craig Rynne dated 15 June 2012 at paragraph 2.

[195]Contract dated 19 December 2009, signing clause authority provision.

[196] Albion Projects Pty Ltd v. Simpson (No. 2) [2014] QCAT 515 at [14].

[197]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.52.

[198]Transcript, Day 3, Page 30, Lines 29 to 42.

[199]Transcript, Day 3, Page 32, Lines 11 to 13.

[200]Transcript, Day 3, Page 32, Lines 11 to 13.

[201]Transcript, Day 3, Page 32, Lines 15 to 19.

[202]Transcript, Day 3, Page 32, Lines 34 to 40.

[203]Day 2 of the hearing concluded on 30 October 2012, while Day 3 commenced on 15 August 2013 following Tribunal Directions to accommodate the new claim and allow for the filing of further evidence relating to the new claim.

[204]Statement of Dianne Gravenall dated 3 May 2012, paragraph 1.1.

[205]Statement of Dianne Gravenall dated 3 May 2012, paragraph 1.2.

[206]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.28.

[207]Statement In Reply Of Dianne Gravenall dated 2 July 2012, paragraph 1.6.

[208]Transcript, Day 2, Page 30, Lines 30 to 32. 

[209]Transcript, Day 2, Page 76, Lines 44 to 47, Day 2, Page 77, Lines 2 to 3.

[210]Invoice 10050410 of Clayton Granzien Plumbing dated 4 May 2010.

[211]Statement of Dianne Gravenall dated 3 May 2012, paragraphs 3.15, 3.16.

[212]Transcript, Day 2, Page 31, Lines 25 to 47, Day 2, Page 32, Lines 1 to 19.

[213]Transcript, Day 5, Page 126, Lines 1 to 10. 

[214]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.24.

[215]Submissions On Behalf Of The Applicant filed 27 September 2013, paragraph 5.29.

[216]See discussion under heading ‘Can Rynne enforce the cost plus contract?’

[217]Amended Defence And Counterclaim filed 14 November 2012, paragraphs 4 to 10.

[218]Transcript, Day 3, Page 2, Lines 16 to 25; Affidavit of Craig Rynne dated 16 August 2013.

[219]Affidavit of Craig Rynne dated 16 August 2013, paragraphs 19 to 24.

[220]Rynne Invoice dated 2 July 2010 for $26,476.52.

[221]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.26.

[222]Statement of Dianne Gravenall dated 3 May 2012, paragraph 3.25.

[223]Transcript, Day 2, Page 33, Lines 40 to 46.

[224]Amended Defence And Counterclaim filed 14 November 2012, paragraph 9.

[225]Amended Statement of Claim, paragraph 21.b.

[226]Affidavit of Craig Rynne dated 16 August 2013, paragraph 23.

[227]Transcript, Day 5, Page 143, Lines 7 to 45, Page 144, Lines 1 to 13.

[228] Civil Proceedings Act 2011, ss 58, 59 and s 5 definition of ‘court’.

[229] Glamoren Pty Ltd v. Lee & Anor [2012] QCATA 176 at [18], per Wilson J.

[230] Queensland Building Services Authority Act 1991, s 77(3)(a); Contrast Constructions Pty Ltd v. Bartlett [2014] QCATA 262 at [74].

[231]Contract dated 5 December 2009, Clause 11.09, Schedule Item 24.

Close

Editorial Notes

  • Published Case Name:

    Dianne Gravenall v Craig Rynne Constructions Pty Ltd

  • Shortened Case Name:

    Gravenall v Craig Rynne Constructions Pty Ltd

  • MNC:

    [2016] QCAT 66

  • Court:

    QCAT

  • Judge(s):

    Member Fitzpatrick, Member Hughes

  • Date:

    26 Feb 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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