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Lucant Pty Ltd v Altran Project Management Pty Ltd[2017] QCAT 204

Lucant Pty Ltd v Altran Project Management Pty Ltd[2017] QCAT 204

CITATION:

Lucant Pty Ltd v Altran Project Management Pty Ltd [2017] QCAT 204

PARTIES:

Lucant Pty Ltd (Trading as Hairhouse Warehouse Rockhampton)

(Applicant)

v

Altran Project Management Pty Ltd

(Respondent)

APPLICATION NUMBER:

BDL072-16

MATTER TYPE:

Building matters

HEARING DATE:

17 February 2017

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

15 June 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Lucant Pty Ltd (trading as Hairhouse Warehouse Rockhampton) is substituted as the applicant in the proceedings.
  1. The application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – COMMERCIAL BUILDING DISPUTE – where a business owner claimed damages from the shopfitter who installed a suspended plasterboard ceiling in a shopping centre for the previous business owner – where liability for rectification and consequent damage was not established – where the quantum of claims for rectification and consequent damage were not substantiated

Queensland Building and Construction Commission Act 1991 (Qld) s 78, Schedule 2

Limitation of Actions Act 1974 (Qld) s 10(1)(a)

APPEARANCES:

APPLICANT:

The company in person by its Director, Lucas Bryant.

RESPONDENT:

The company in person by its Director, Troy Brown.

REASONS FOR DECISION

  1. [1]
    Altran Project Management Pty Ltd (‘the builder’) installed a suspended plasterboard ceiling in a retail shop at Shop 237, Stocklands Rockhampton Shopping Centre, at Corner Yamba Road and Highway One, Rockhampton, in January 2010 for ‘Hairhouse Warehouse Constructions Pty Ltd’ which conducted a hairdressing business at the premises.
  2. [2]
    An application for commercial building dispute was lodged in the Tribunal on 22 March 2016 by Lucas Bryant against the builder. The claim was as follows:
  1. -
    The ceiling to be repaired and fully repainted, at no cost or disruption to our business, the builder to supply an external security guard to protect the stock in the shop while there working
  2. -
    or $4,000 ex GST for me to organise the repair work
  1. [3]
    The application was heard on 17 February 2017. At the commencement of the hearing, Mr Bryant said that he wished to amend his claim to be for the amount of $75,013.97 comprised as follows:

Repair quote  $ 33,090.00

Loss of Trade  $ 41,923.97

Total   $ 75,013.97

  1. [4]
    I raised the jurisdiction of the Tribunal with Mr Bryant, and drew his attention to the definition of a ‘minor commercial building dispute’ in Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act)  which defines such a dispute as where the claim does not exceed $50,000.00; and to Section 78 of that Act which provides that the Tribunal may decide a ‘major commercial building dispute’ only if it is satisfied that all parties to the dispute consent to it doing so.
  2. [5]
    I noted that the action included a claim for damages. The Tribunal has jurisdiction in a claim for damages[1].
  3. [6]
    The builder said that it did not consent to the amended claim for a major commercial dispute being heard in the Tribunal. Mr Bryant then said that he would reduce his claim to be a minor commercial building dispute in the amount of $50,000.00 calculated as follows:

Rectification costs $ 36,399.00

Loss of trade  $ 13,601.00

Total   $ 50,000.00

  1. [7]
    At the start of the hearing Mr Bryant made reference to a company, ‘Lucant Pty Ltd trading as Hairhouse Warehouse Rockhampton’ (‘Lucant’), which he said had purchased the business, and had taken over the lease of the premises from the original lessee, Hairhouse Warehouse. Mr Bryant is a Director of Lucant.
  2. [8]
    I queried who was the appropriate applicant, and Mr Bryant then sought leave to substitute Lucant as the applicant. The builder objected to the change of applicant. After hearing submissions from both parties, I ordered that Lucant be substituted as the applicant in the proceedings.
  3. [9]
    The builder raised as a preliminary matter whether the claim was time-barred pursuant to Section 10(1)(a) of the Limitation of Actions Act 1974 (Qld) which provides that an action founded on simple contract, quasi-contract, or on tort (where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person) shall not be brought after the expiration of 6 years from the date on which the cause of action arose.
  4. [10]
    The actual plastering work was conducted by a subcontractor to the builder, Symes Walls and Ceilings, and a Form 16 QBSA Licensee Aspect Certificate dated 21 January 2010 was provided. On 27 January 2010 a building inspection was performed by McCarthy Consulting Pty Ltd, a certifier, and 28 January 2010 a Final Certificate was issued by it.
  5. [11]
    Lucant says that it first noticed the cracking in the ceiling on 17 November 2015. Mr Bryant contacted the builder on 14 December 2015 as to rectifying the cracking.
  6. [12]
    A complaint was lodged with the QBCC on 8 February 2016 in respect to the ceiling. An inspection by the QBCC on 29 February 2016 identified cracking to two areas of the square set joint located in the premises, and several popped screws could be seen in the square set joints approximately 5-10mm from the ends of the sheets[2].
  7. [13]
    I referred the parties to the decision of the Court of Appeal in Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited[3], where consideration was given as to when such a cause of action arose. Margaret McMurdo P said[4]:

...The preceding discussion of the relevant cases shows that for the purposes of s 10(1)(a) Limitations Act, the respondent’s cause of action, which is at least arguably solely for economic loss, arose when it suffered economic loss, that is, when the latent defect, the alleged negligently engineered design of the clubhouse, first became known or manifest in the sense of being discoverable by reasonable diligence.

  1. [14]
    Holmes JA said[5]:

[65] Rather, Pullen takes the conventional approach that the cause of action accrues where actual damage caused by a latent defect is manifested or the existence of the underlying defect is known or ought to be known.

[66] In the present case, in my view, the latent defect – the slab which was faulty in design, being unable to tolerate ground heave – became manifest, on the respondent’s own pleadings and evidence, when the cracking in the buggy parking area occurred in 2003.

  1. [15]
    In this matter, Lucant had made complaint well within the six year limitation period from when the alleged latent defect in the construction of the ceiling became known. I therefore ruled that the claim was not statute-barred, and proceeded to hear the application.
  2. [16]
    Evidence for Lucant was given by Mr Lucas Bryant, and Mr James Browning (a technical manager for Boral).
  3. [17]
    Evidence for the builder was given by Mr Troy Brown, Mr Mark Traucnieks (an Engineer), and Mr Simon Ring (a plasterer).
  4. [18]
    Mr Bryant said that he was a Director of Lucant, and was a plasterer by trade.
  5. [19]
    Mr Bryant said that he did not have any evidence of loss due to rent, loss of wages, or loss of income, arising from this matter, with him. He said that his claim for economic loss was based upon a quote from Close Constructions, and calculated on the basis that the work would take seven days, plus one day stocking, plus one day re-stocking, which would mean the business was closed for nine days.
  6. [20]
    Mr Bryant said that Lucant had taken over the business in May 2014 under a Sub-Lease, but that he did not have either the Head Lease for the premises, or the Sub-Lease with him. Neither of those documents had been filed in the proceedings.
  7. [21]
    Mr Bryant said that the ceiling should have been constructed to a  standard known as ‘level 4’. He said that the ceiling had been screwed and glued, whereas it should have been screwed at 200mm centres. He said that he would have fixed the ceiling in a different way.
  8. [22]
    Mr Bryant said that he had not inspected the ceiling when he took over the business, as he only had a half day to inspect the premises.
  9. [23]
    Mr Bryant said that his initial claim for a repair cost of $4,000.00 was based on his doing the work himself, but that he had since had Boral and other professionals involved, and the quote of $36,399.00 dated 24 October 2016 from Close Constructions Pty Ltd (“Close Constructions’) was to completely replace the ceiling.
  10. [24]
    Mr Browning said that he was a Technical and Training Manager employed by USG Boral. He said that he had not inspected the site, but had worked from photographs. He said that the amount of the quote from Close Contracting did not surprise him, but he could not comment on the detail of the quote.
  11. [25]
    Mr Browning at first said that nails had pulled through the face of the board as the spacings were incorrect, but then accepted that screws were used to fix into the metal supports. He agreed that if the ceiling was wet after a storm that the screws could pull through.
  12. [26]
    Mr Browning said that the appropriate level of finish was ‘Level 4’. He said that ‘Level 3’ needs a heavy cover over such as wallpaper or a textured finish, and that no shopping centre would accept Level 3.
  13. [27]
    Mr Browning said that he could not say if a complete replacement of the ceiling was required, but that it was possible that a less extensive repair could be undertaken.
  14. [28]
    In a Report[6] Mr Browning said that he found that the ceiling did not comply with manufacturers specifications or Australian Standards, having reference to the 2007 Boral Plasterboard Installation Manual, due to the following reasons:
  • The ceiling is square set and not screwed off at correct centres as can be seen on page 3, the screws into the perimeter track have been installed at centres of around 400mm as per the installation guide on page 19 of Boral Plasterboard Installation Manual, these are meant to be installed at 300mm centres.
  • The ceiling has not been back blocked due to the ceiling being a level 4 finish, page 9 of Boral Plasterboard Installation Manual, the recess joints in the ceiling are required to be back blocked as can be seen on page 4 – there is not back blocking installed on this ceiling.
  • The ceiling does not have any control joints yet the wall does as can be seen on pages 5 & 6, there are expansion joints installed in the plasterboard walls as per page 24 of Boral Plasterboard Installation Manual, these are meant to be continued through the ceiling.
  1. [29]
    Mr Brown said that the builder did the original fit-out for the premises on the basis of plans supplied by Hairhouse Warehouse.
  2. [30]
    Mr Brown said that he had gone underneath the shopping centre to the carpark, and observed expansion joints in the building, and concluded that the tenancy wall had moved. His view was that the issue was a problem for the Landlord and related to the expansion joints in the building itself.
  3. [31]
    Mr Brown said that he considered the quote from Close Contracting to be extremely high, that it was not necessary to do all the work indicated to rectify the problem, and that there would be cheaper ways to rectify the cracking.
  4. [32]
    Mr Traucnieks said that he was a Civil, Structural, and Hydraulic Engineer, and had examined photos of the premises.
  5. [33]
    Mr Traucnieks said that the crack in the ceiling was functioning as a control joint. He said there was not a lot of load on the screws which were at 400 centres, and that maybe some moisture had ended up there.
  6. [34]
    Mr Traucnieks said there had been movement of the building, and he considered this arose from a shared responsibility between the original building designer and the building owner. His view was that the wall of the tenancy was always going to come away.
  7. [35]
    Mr Traucnieks thought that the issue could be addressed by the fitting of an ‘L’ shaped angle to the wall which would cover the gap, and allow the ceiling to move. He said that the work could be done at night.
  8. [36]
    In a written report Mr Traucnieks commented that[7]:
    1. (1)
      Ceiling screw and batten fixing spacing not an issue as the distress is confined to the central joint area only. The ceiling is well supported from Purlins over and the deflection at the edge is due to loss of inter-tenancy wall support discussed below.
    2. (2)
      The control joint referred to in the QBCC report is 30-50mm within the inter-tenancy wall along the dividing wall between Optus tenancy and Hairhouse Warehouse is a major joint and necessary to be maintained. It has been regularly topped up with silicon sealants that have pulled the wall across the tenancy line and these sealants should be removed.
  9. [37]
    He comments that the control joint extends across the floor and walls through the mall to the RT Edwards store, and the mall tiles had cracked and had been recently replaced due to excessive joint movement clearly not allowed for in the original design, and the glass in the RT Edwards store had been replaced for similar reasons. He noted that the expansion viewed from the basement is considered large and beyond normal construction finish tolerances.
  10. [38]
    Mr Ring said that he was a plasterer, and did not consider that an expansion joint was required unless using Villaboard. He said that commercial work was done to ‘Level 3’ finish. He said there was no way that back-blocking would be used on a commercial site.
  11. [39]
    In a letter to the builder Mr Ring had said that based on reviewing photos he did not believe that the cracks were caused as a result of incorrect installation of the ceiling[8].

Discussion

  1. [40]
    The onus of proof is on an Applicant to satisfy the Tribunal on the balance of probability as to liability and as to the quantum of damages.
  2. [41]
    The situation as to the lease and sub-lease of the premises is wholly unclear. Lucant has not entered either document into evidence. It may be that those documents have provisions as to whose responsibility it is for maintenance or repair of the ceiling; and may also indicate whether the ceiling is considered to be a fixture of the building, or whether it would be required to be removed by the tenant at the end of the lease. Those provisions may have significant bearing on the legal situation under consideration, and affect both liability and quantum, and the failure to provide them raises caution in determining the matter without reference to them.
  3. [42]
    Lucant is clearly influenced by the personal opinion on the plastering of its director, Mr Bryant, who is himself a plasterer. Whilst I note the opinions of Mr Bryant, I do not place significant weight on them as expert evidence.
  4. [43]
    I found that Mr Browning’s evidence was of some assistance, but was general in nature and was of limited assistance. Mr Browning did not display a close knowledge of the site, or the actual construction, and relied on his employer’s recommendations.
  5. [44]
    Mr Ring also gave general evidence, and I do not place particular weight on it either, other than his comments as to the usual standard of finish on a commercial job.
  6. [45]
    I place most weight on the evidence of Mr Traucnieks. He is an experienced independent registered practicing engineer. He found no fault in the construction of the ceiling. He considered that the cracking of the ceiling arose from movement of the building itself, that it did not require remediation at all, and that the cracking could be covered by an easily placed ‘L’ shaped angle.
  7. [46]
    Mr Browning highlighted discrepancies he notes in the work from that provided for in the Boral Plasterboard Installation Manual. The significance of these discrepancies is disputed by Mr Traucnieks and Mr Ring.
  8. [47]
    Mr Traucnieks says that the discrepancies as to screw fixing have not contributed to the cracking. He disagrees as to the effect of the absence of a ceiling control joint, and attributes the cracking to unexpected excessive movement of the adjoining wall.
  9. [48]
    Mr Ring was strongly of the view that back blocking as described in the Boral Plasterboard Installation Manual was not standard in a commercial job.
  10. [49]
    Whilst there may be discrepancies in the work from that recommended by the Boral Plasterboard Installation Manual, I am not satisfied that any of the discrepancies have in fact contributed to the cracking of the ceiling.
  11. [50]
    I accept the evidence of Mr Traucnieks that the cracking has occurred as a result of unanticipated excessive movement in the building itself, and not as a result of the work of the builder.
  12. [51]
    I am not satisfied that Lucant has established defective work by the builder sufficient to support a claim for rectification or consequent damage. I find that the claim of $36,399.00 against the builder for defective work wholly fails.
  13. [52]
    Even if defective work had been established, significant issues would still arise as to quantum of the rectification cost, and consequent damage claim.
  14. [53]
    The extraordinary increase in Lucant’s claim from $4,400.00 to $75,013.97 in the course of the proceedings, in itself gives rise to scepticism as to the validity of the quantum of its claims.
  15. [54]
    Mr Browning, the expert called by Lucant, could not say if complete replacement of the ceiling was required. Mr Traucnieks did not consider that rectification was needed at all.
  16. [55]
    If any rectification was to be effected, the only action that is supported by my view of the evidence would be the placement of the ‘L’ shaped angle covers as described by Mr Traucnieks, which has not been costed, but which would be minor.
  17. [56]
    I do not accept that the whole ceiling requires replacement as quoted for by Close Constructions.
  18. [57]
    Further, even if it were accepted that the whole ceiling needed replacing, there is doubt as to reasonableness of the Close Constructions price. No evidence was called from Close Constructions to explain or substantiate their quote. Mr Browning was unable to substantiate the actual quote. Mr Brown expressed that he considered it to be excessive.
  19. [58]
    I am not satisfied that the Applicant has established the quantum of its claim of $36,399.00 for rectification.
  20. [59]
    Lucant has not provided any evidence as to the cost of disruption caused by the repair works as outlined in the Close Constructions quote.
  21. [60]
    Mr Traucnieks proposed minor works which could be conducted at night, and would not involve any disruption costs.
  22. [61]
    I am not satisfied that Lucant would suffer any disruption to trading caused by the minor works. I would therefore wholly disallow the claim by Lucant of $13,601.00 for consequent damage, even if liability were established.
  23. [62]
    The applicant has not established liability as to its claims for defective work and consequent damage, and has not established the quantum of its claims.
  24. [63]
    Accordingly, the application by Lucant is dismissed.

Footnotes

[1]QBCC Act, s 77(3)(c).

[2]QBCC Inspection Report 29 February 2016.

[3][2014] QCA 233.

[4]Ibid, [43].

[5]Ibid, [65].

[6]Report Jim Browning, 14 December 2016.

[7]Report Mark Traucnieks, 24 January 2017, p 2.

[8]Letter Simon Ring to Altran Project Management.

Close

Editorial Notes

  • Published Case Name:

    Lucant Pty Ltd v Altran Project Management Pty Ltd

  • Shortened Case Name:

    Lucant Pty Ltd v Altran Project Management Pty Ltd

  • MNC:

    [2017] QCAT 204

  • Court:

    QCAT

  • Judge(s):

    Member Paratz

  • Date:

    15 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Melisavon Pty Ltd v Springfield Land Development Corporation Pty Limited[2015] 1 Qd R 476; [2014] QCA 233
3 citations
Jump To
Cite 1 - [2014] QCA 233
Cite 2 - [2014] QCA 233
Cite 3 - [2014] QCA 233

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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