Simpson v Parker[2017] QCAT 451

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. [1]
   Michael Simpson built a house for Mrs Parker in Rockhampton. At the end of the construction phase, there was a dispute between the parties about payment of the final progress claim of $27,000. Mr Simpson made an application to the Tribunal for payment of that amount as well an amount of $49,000.00 in regard to the septic tank and garage and an amount of $5,000.00 for stress and suffering.
2. [2]
   Ms Parker disputed the application by Mr Simpson and filed a counter-application in respect of defective building work. She stated that at the time the demand for the final progress claim has been made Mr Simpson had not complied with the practical completion requirements of the contract and there was defective building work well in excess of the amount owing to Mr Simpson. That she had instructed her solicitors to request Mr Simpson to attend to the defects, which he had refused to do. Ultimately, Mrs Parker terminated the contract on 29 July 2017.
3. [3]
   Mrs Parker made a complaint to the Queensland Building and Construction Commission and an inspection report in respect of the defects was filed in the Tribunal. A quote for the work set out in the report was also provided in the amount of $56,243.00. Mrs Parker sought an order that Mr Simpson pay to her the amount necessary to rectify the defects that exceeds the amount of $27,000.00, which was owed under the contract.
4. [4]
   The parties were directed by the Tribunal on 21 October 2015 to file material. Mr Simpson did not file his material in accordance with the directions. Mrs Parker filed her material and made an application for Mr Simpson’s application be dismissed in accordance with those directions.
5. [5]
   Mrs Parker filed a table setting out the defective building works as directed on 21 October 2015 and the following additional items:

   1. Legal fees     $8,55.36
   2. Absence days of employment
      1. Angela Parker    $1,265.10
      2. Luke Parker (then fiancée) $1,489.60
   3. Change of locks on house  $276.80
   4. Security system   $1,200.00
   5. Title check for QBCC forms  $17.00
   6. Rent extra to termination date $4,270.00
   7. Rent from termination date to
      move in date   $2,440.00

Total     $15,813.36

6. [6]
   The Tribunal made directions on 24 December 2015 for Mr Simpson to file a reply to the application to dismiss and a further opportunity to file his material in accordance with the directions of 21 October 2015.
7. [7]
   The Tribunal made directions on 15 January 2016 giving Mr Simpson a further opportunity to comply with the directions of 21 October 2015 and to also file material in response to Mrs Parker’s application that he have his application dismissed. The application was also listed for a directions hearing on 3 February 2016. If Mr Simpson did not comply with the directions then his application was to be dismissed.
8. [8]
   Mr Simpson did not comply with the directions of 15 January 2016 nor did he attend the directions hearing. The Tribunal as a result dismissed his application on 3 February 2016. Mrs Parker was directed to file any further material in regard to her counter-application.
9. [9]
   Mrs Parker advised in her submission that a Home Warranty Scheme claim was allowed by the Queensland Building and Construction Commission in regard to the defective building work. This meant that the claim in respect of the defective building work could not be finalised until it was known what work was not to be covered by the Home Warranty Scheme.
10. [10]
    Mrs Parker made submissions in regard to the additional items listed above:

    1. The locks were changed as they had been locked out of the home by the builder. This clearly relates to the termination of the contract and not the building defects and so is not allowable.
    2. A new security system was installed due to threats from the builder. This is a personal issue and is not related to the building defects and so not allowable.
    3. The title search was part of the requirements for the Queensland Building and Construction Commission. I note that the Inspection report prepared by the Commission is part of the evidence before the Tribunal and this amount will be allowed.
    4. The rent was due to the builder going over the contract date. This does not relate to the building defects and will not be allowed.
11. [11]
    There was an amount for absence from days of employment for both Mrs Parker and her husband. There was no supporting documentation provided and these are of a personal nature and will not be allowed.
12. [12]
    Mrs Parker provided a copy of her solicitor’s ledger card, which showed the work performed for her in regard to the building dispute. I note that some of this work related to the termination of the building work and so is not relevant to the matter before the Tribunal. The Tribunal has a general discretion to award legal costs in building matters^[1] under s 77(h) of the Queensland Building and Construction Commission Act 1991 (Qld). In this case, Mrs Parker engaged solicitors to prepare her response and counterapplication and the application for dismissal of Mr Simpson’s and effectively judgment by default. Mr Simpson has not participated at all in the proceeding and ultimately Mrs Parker was awarded damages for the defective building work. Having regard to the amount of her claim I consider that costs on the Magistrates Court scale for claims under $50,000.00 is appropriate. Of the amount of $7,057.91 claimed for legal costs, I will allow costs to Mrs Parker to be paid by Mr Simpson of $1,412.00 in accordance with the Magistrate Court scale for instructions to defend and obtaining judgment by default.
13. [13]
    The Tribunal made an order on 13 July 2016 that Mrs Parker recover against Mr Simpson damages to be assessed on the counterapplication. She was provided with an opportunity to file further material and did so on 26 August 2016. Mrs Parker stated that the following items though considered defects by the Commission were not covered under the Home Warranty Scheme:

    1. Item 13 – Vertical timber next to front door chatter marks in the timber and not level or even. Cost to repair $97.00.
    2. Item 30 – Driveway – gauge marks, skid marks, cracks all over very poor finish and no expansion joints. Cost to repair $9,184.00.
    3. Item 37 – Exposed light fitting in pantry obstructing top shelf. Glass safety. Kitchen Cost to repair $189.00
    4. Item 54 – Excess paint on garage floor. Cost to repair $127.00
14. [14]
    There were some other items for which quotes could not be obtained including: item 12 - the pop up power point in kitchen; item 31 – shower door drip strip coming away; and item 54 – pathway coming away from slab more since last inspection.
15. [15]
    The assessment of damages was heard orally and directions were made for Mrs Parker to file a further quote in respect of the driveway repair. This was because the quote for work in regard to the driveway was for its total replacement, which the Tribunal was concerned was not necessary. The Commission’s inspection report noted that the surface of the driveway was patchy and there were several minor cracks category 2 noticeable and that no construction joints had been installed. The construction joints were stated to be required in accordance with AS3737 Guide to Residential Pavements.
16. [16]
    A report was provided from Don Scott in regard to the driveway and the pathway. He set out the defects in the driveway and recommended that the driveway be removed and redone with ableflex, dowels and jointing to industry standards. He stated that the driveway could be repaired by grinding and cutting additional joints and then applying a surface topping. Mr Scott stated that this would last for a period of time but existing would eventually resurface.  A short quote was provided from Shellcrete for the removal and replacement of the driveway in the amount of $8,400.00.
17. [17]
    Mr Scott stated in his report in regard to the pathways that there was no ableflex and minimal joints. That there is minimum cracking to the path and that at the moment the pathways are not a major issue and are more cosmetic in nature. The report stated that cutting an edge strip between house and path down 10mm and filling with an approved sealant would suffice at this stage in time and a surface cover could rectify existing cracking. Though the only way to be sure and fix the now problem and future problem is to remove it and start again.  A quote for removal and replacement of the pathways is given by Shellcrete as $3,600.00. I am not satisfied that the pathways require replacement as this was considered a minor defect by the Commission and a cosmetic issue by Mr Scott. There will be no damages for rectifying the pathway.
18. [18]
    Mr Simpson as builder was required to perform his work in an appropriate and skilful way and with reasonable care and skill in accordance with clause 3 of the contract general conditions. He did not do so in regard to the work which is defective and Mrs Parker is entitled to damages in respect of the cost of rectifying that work.
19. [19]
    Having perused the inspection reports from the Commission and Mr Scott and the various quotes I am satisfied that Mrs Parker should be awarded damages for rectification of building work in the following amounts:

    1. Item 13 – Vertical timber next to front door chatter marks in the timber and not level or even. Cost to repair $97.00.
    2. Item 30 – Driveway - gauge marks, skid marks, cracks all over very poor finish and no expansion joints. Cost to repair $8,400.00
    3. Item 37 – Exposed light fitting in pantry obstructing top shelf. Glass safety. Kitchen Cost to repair $189.00.
    4. Item 54 – Excess paint on garage floor. Cost to repair $127.00.
20. [20]
    Mr Simpson must pay Mrs Parker an amount of $8,813.00 within 14 days plus costs of $1,412.00.