Hodgkins v Munro Building Group
[2018] QCAT 37
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- Unreported Judgment
- Hodgkins v Munro Building Group[2018] QCAT 37
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Hodgkins v Munro Building Group[2018] QCAT 37
Hodgkins v Munro Building Group[2018] QCAT 37
CITATION: | Hodgkins v Munro Building Group [2018] QCAT 37 |
PARTIES: | Susie Hodgkins (Applicant) v Christopher Robin Munro trading as Munro Building Group (Respondent) |
APPLICATION NUMBER: | BDL207-16 |
MATTER TYPE: | Building matters |
HEARING DATES: | 8 and 9 June 2017 |
HEARD AT: | Townsville |
DECISION OF: | Member Pennell |
DELIVERED ON: | 20 February 2018 |
DELIVERED AT: | Townsville |
ORDERS MADE: |
|
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where the parties entered into a contract for the builder to build a house in the same design, appearance and with the same specifications as the builder’s display house inspected by the applicant – where the applicant altered the plans to include an additional room – where the house constructed according to the modified plans – where the applicant alleges breach of contract by the respondent builder – whether the respondent builder has breached the contract CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where the applicant claims damages for the alleged breach of contract by the respondent builder – whether the applicant has adequately identified and quantified her actual loss suffered Queensland Building and Construction Commission Act 1991 (Qld), s 67A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28 Addis v Gramophone Co Ltd [1909] AC 488 Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 86 R v War Pensions Entitlement Appeals Tribunal; ex-parte Bott (1933) 50 CLR 228 Robinson v Harman (1848) 154 ER 363 |
APPEARANCES: |
|
APPLICANT: | Self Represented |
RESPONDENT: | Self Represented |
REASONS FOR DECISION
INTRODUCTION
- [1]The Applicant was in the market for a new house. She found one that appealed to her which had been built by the Respondent. What impressed here about the house was the design, features and colours.
- [2]She later met with the Respondent for an inspection of his house. Arising from that was the parties entered into a contract for the Respondent to build a house for the Applicant.[1] The signatures of the parties were witnessed by the Applicant’s close friend.[2] The contract price for the construction of the house was $270,000. Accompanying the contract was a preliminary specification document.[3]
- [3]At the time of the hearing, the Applicant told the Tribunal that she accepted that the house is structurally sound, and she had already been living in it for the 18 months.[4] She said that she entered into the contract with the Respondent in good faith, but he lied to her and he was dishonest. She was of the belief that she was getting the same house as the Respondent’s house, but the Respondent did not give her that. Instead she got an entirely different house. She wanted the Respondent to compensate her for all the things that told her that he was going to give her in her house.[5]
- [4]Prior to the start of construction of the Applicant’s house, a set of plans were drafted. The Respondent provided the plans to the Applicant. She then negotiated with the Respondent to change the layout of the design of the house to include a theatre room.[6] Arising from those negotiations was an alteration to the plans, and the final draft of the plans were subsequently approved by the Townsville City Council (TCC).
The Applicant’s position
- [5]The Applicant's case is that the Respondent failed to provide the domestic building services according to the requirements of the contract between the parties, and as a result of the Respondent’s failure, she suffered loss and damages.
- [6]The Applicant said that her house was to be constructed identical to the house that the Respondent built. She argued that the contract plainly provided that the construction of the houses was to be equal, and that is the fundamental basis upon which she entered into the contract with the Respondent.
- [7]The Applicant said that the fact that the Respondent’s preliminary specification document included the invitation for the Applicant to take photos of the Respondent’s house was an invitation for the Applicant's benefit to give her confidence that she would acquire a house which was equal to the Respondent’s house.
- [8]While the Applicant acknowledges that her house was modified from the Respondent’s house in respect of providing a theatre room, she reasonably expected that the Respondent would provide an otherwise equal house to his in that the design, fittings and finishes would be like or alike in quantity degree and value.
- [9]In respect of the building issues, the Applicant said that once it became evident that the finishes and fittings at her partially constructed house were different to those at the Respondent’s house, she sought to address the discrepancies with the Respondent. Subsequently, after episodes of duress in which the Respondent obtained payments from the Applicant for alleged variations to the Contract,[7] she was required to engage a third-party building industry expert, Mr David Hopmeier (Mr Hopmeier), to formally evaluate the extent of differences and departures in the standard of features, fittings and finishes between the houses. Mr Hopmeier conducted the assessment and prepared a report on his findings (Mr Hopmeier’s report).[8]
- [10]The Applicant concedes that, following her complaint to the Queensland Building and Construction Commission (QBCC) and the subsequent issuing of a direction by the QBCC, the Respondent rectified the identified defects, including the non-compliant overflow relief gully (ORG). Accordingly, no further redress is sought in relation to this item.[9]
- [11]However, in seeking relief, the Applicant's submission is that all of the items identified by Mr Hopmeier are departures from the contract. That is, the Respondent is liable for the cost of rectification work for the items identified in Mr Hopmeier’s report by the fact of that departure.
- [12]The Applicant said that those departures identified are based on the Respondent’s house and attributes a monetary amount for either of the following considerations:
- (a)The builder's savings made by using lesser quality or lower standard;
- (b)Cost of rectification work; or
- (c)Extra costs already outlaid by the owner in having the rectification work already completed prior to the Applicant filing her application with the Tribunal.
- [13]Accordingly, the Applicant said that Mr Hopmeier’s report identifies many discrepancies because of the Respondent’s departure from his contractual obligations. She relies upon Mr Hopmeier’s assessment of the value or cost of the rectification of each of the identified areas. Those costs totalled $28,766.38.[10]
The Respondent’s position
- [14]The Respondent’s position is simply explained in three distinct areas –
- (a)The Applicant has failed to prove her case in that she cannot show that the items about which she complains ever formed part of the term of the contract;
- (b)As a matter of fact, her house was built strictly in accordance with the contract, so there is no breach; and
- (c)The claimed rectification costs are out of proportion to any loss being suffered of which there is no evidence.
- [15]The Respondent does not dispute that the Applicant chose him to build her house after inspecting the house he built. In regard to the definition of equal as provided in the contract, the Respondent says that his house must also be read in the context that the words "This house is to be equal to the home you inspected at 81 Poinsettia Drive." He said that this term does not mean that the house is to be identical in every respect. Despite the definition of equal meaning to be of the same or similar standard, the Respondent says that there a clear difference between both houses because of the changes in the paint and configurations to the design that the Applicant wanted.
WAS IT A SPEC HOUSE OR A DISPLAY HOUSE
- [16]A Spec Home is a house that it built on speculation. When building a Spec Home, a builder includes various features in the home in the hope that buyers will find it appealing. It certainly did that, and neither party disputes the notion that the Respondent’s house appealed to the Applicant’s taste.
- [17]The Applicant asked the Tribunal to accept the proposition that the Respondent’s house was a Display House. To support that proposition, she relied upon the definition of “Display Houses” as provided in the contract.[11]
Display House
If your contractor is to construct a home similar to your contractor’s Display House, your contractor must, unless you agree otherwise and clearly indicate that agreement in your contract, use the same plans and specifications and build to the same quality using materials of the same quality.[12]
- [18]That phrase contains the words “similar” and “same”. According to the Macquarie Dictionary, “similar” means having likeness or resemblance, especially in a general way. It can also means having the same shape. The word “same” means and includes being one or identical; unchanged in character or condition etc. For both houses to fall within the definition of Display House as provided by the contract, they had to be alike or resemble each by using the same plans and specifications.
- [19]The Applicant said that the Tribunal should reach a conclusion that unless she agreed otherwise, an agreement existed between the parties that the Respondent would build her house similar to his. She also argues that when the Respondent built her house, he was obliged to use the same plans and specifications and build her house to the same standard with the use of materials of the same quality.
- [20]The Applicant further relies upon an entry made in the preliminary specifications document which said –
This house is to be equal to the home you inspected @ 81 Poinsettia Drive, Kalynda.
Photos may be taken of this dwelling inside to give Confidence that you are getting similar article.
- [21]The Respondent’s argument is that his house was not a Display House, it was a Spec Home. His house consisted of four bedrooms with a kitchen, laundry, toilet, bathroom, family room, ensuite, double garage front patio and a rear patio. Although the houses were similar in overall size, the addition of a theatre room in the Applicant’s house significantly changed any similarity between the houses. They are not equal, similar or the same.
- [22]The plans form part of the contract. If a substantial change is made to the plans for the house, as was undertaken in this case, then the new plans cannot be identified as being the same plans or specifications as provided in the terms of the contract.
- [23]It is not contested that the Applicant wanted the plans changed. If a substantial change is made to the plans for the house, as was in undertaken in this case, then the new plans cannot be identified as being the same plans or specifications which were used to construct the Respondent’s house.
- [24]I am of the view that if the definition as provided in the contract was strictly applied to the building of the Applicant’s house, then there was a strict requirement for the Respondent to build her house the same, unless she agreed otherwise, which is what she did. The strict definition of the term Display Home ceased to apply to the Applicant’s house immediately upon any change to the plans. For that reason, the Applicant’s argument that the house should have been constructed to be the same as the Respondent’s house must fail.
- [25]In weighing up both arguments, and applying the evidence, I am not satisfied that the house built by the Respondent for the Applicant falls within the description of a Display House as provided by the contract. Significant and substantial alterations were made to the original plans by the Applicant when she asked the Respondent to include a theatre room into the plans. The inclusion of the theatre room significantly altered the available floor space and the overall appearance of the house. Nothing in the Applicant’s material or evidence contradicts or negates the Respondent’s argument that his house was a Spec House, and having regard to the evidence, I am inclined to agree with the Respondent.
ITEMS OF COMPLAINT
Item 1: Hot water system
- [26]The Applicant’s complaint about the hot water system is that the system installed into her house is different to the hot water system that she saw installed in the Respondent’s house. She said that the system was not equal or the same.
- [27]The system installed at the Respondent’s house was an Apricus solar 270 litre hot water system which had a 10-year warranty. The system installed into her house was a Dux radiant electric system which had a 5 year warranty. The Applicant also complains that she was not notified about the change in the hot water systems and that the Dux system in her house is a much cheaper system.
- [28]The Applicant obtained a quotation from Tradelink[13] to show a comparison between the costs of each of the hot water systems. The quotation does not assist the Tribunal for various reasons. The Apricus system quoted has a different tank capacity to that which was installed at the Respondent’s house. The quote for the Dux system also has a different tank capacity to the system installed at the Applicant’s house.
- [29]The Applicant also relies upon the contents of the Mr Hopmeier’s report which suggested that Mr Hopmeier had consulted with a plumbing contractor about the difference in costs associated with the installation of both systems. Notwithstanding that there was no evidence called from that plumbing contractor, or any supporting documentation provided to the Tribunal, Mr Hopmeier’s report suggests that the Respondent made a saving of around $5,400.[14]
- [30]The Respondent’s position is that the hot water system installed at the Applicant’s house was installed in accordance with the contract and the preliminary specifications document.[15] In his evidence, he described the hot water system installed at the Applicant’s house as a Dux radiant electric system which is capable of connecting to solar power.
- [31]In the preliminary specifications document, provision was made for the installation of an electric hot water system with a capacity of 250 litres. Reference is made to the system being a “solar ready tank”. It appears from the evidence provided to the Tribunal that the hot water system installed at the Applicant’s property complies with the description of the system to be provided in accordance with the preliminary specifications document and the contract. I am satisfied that there is no breach of the contract on this point and this part of the Applicant’s claim is refused.
Item 2: Final Plumbing Inspection
- [32]The Applicant’s complaint about the plumbing relates to a delay in the approval by way of the final inspection on her house. She moved into her house on 5 December 2015 and waited nine months for the final inspection of the plumbing to be passed. In that time, the Respondent failed twice to rectify defects identified in two previous inspections.
- [33]In his report for the Applicant, Mr Hopmeier noted that the plumbing had not yet been finalised because the ORG was installed too low and this was the subject of the dispute between the Applicant and the Respondent.
- [34]The Applicant had lodged complaints about the ORG with the QBCC and the TCC. Investigations were undertaken by those entities. Both the QBCC and the TCC finalised their investigations. The ORG issues have now been rectified.
- [35]The Tribunal is satisfied that the issues surrounding the ORG has been rectified as the final building inspection of the house passed the house as being complete. For those reasons, this part of the Applicant’s application is refused.
Item 3: House slab – Council Approved Plan
- [36]The Applicant complained that the slab for her house was not constructed to the correct height. Mr Hopmeier’s report suggested that the house plans clearly indicated that the slab should be 400mm above the natural ground level. He alleged that the Respondent told the concreter to reduce this height to 300mm above natural ground level, which had caused a number of problems with the house, in particular the previously mentioned ORG.
- [37]Mr Hopmeier said that he only knew about the 300mm level issue because of what he was told by the Applicant. He had never undertaken any measurements of the Applicant’s house to confirm what he had written in his report, he simply relied upon what he had been told by the Applicant and the building inspector.[16] He said that the building inspector told him that the height of the slab was 385mm above natural ground level at the rear, and 600mm at the front.
- [38]It appears that the slab has been appropriately certified on 10 June 2015 by a building inspector from Regional Certification Group and the appropriate certification were provided to the Respondent.[17]
- [39]Prior to the hearing, the Applicant had lived in the house for about 18 months. Apart from the issues relating to the ORG, there seems to be no other issues or fault with the house attributable to any complication arising from the construction of the slab.
- [40]Mr Hopmeier’s report suggests that he had made “some rough calculations” and arrived at a position that the Respondent saved about $2,500 in constructing the slab in the manner that he did.[18] Notwithstanding Mr Hopmeier’s calculation when arriving at that figure, no other evidence was provided to support his assumptions about any savings.
- [41]The Respondent and the Applicant have both exhibited their own set plans for the building. On both the Applicant’s plans[19] and the Respondent’s plans[20] a page of each of those plans is dedicated to the Slab Plan. I am of the view that both plans are identical and they both indicate that the habitable room floor height must be a minimum of 300mm above the natural ground level.
- [42]Mr Gregory Hancock (“Mr Hancock”) gave evidence at the hearing. He has 30 years in the building industry and has known the Respondent all that time. For the past 20 years he has operated his own concreting business. He told the Tribunal that the lowest point of the slab for the dwelling was at the rear.[21] He said that the slab measured 300mm in height at that point. Although he did not actually measure the height, he saw that the blocks laid were a layer of full block and a layer of half block. His overall experience in the building industry suggested to him that because the height only consisted of a full block and a half block, the slab height above natural ground level was 300mm.[22]
- [43]The Respondent said that he measured the depth of the slab in the presence of the building inspector. He told the Tribunal that his measurement was 385mm.[23] This accords with evidence of Mr Hopmeier that he was told by the building inspector that the measurement was 385mm.
- [44]Having regard to the evidence, I am satisfied that nothing has been placed before the Tribunal to suggest that the slab is not currently performing the role for which is was constructed and it has passed its inspections. I am also satisfied that the slab was constructed in accordance with the specifications as provided on the TCC approved plans, of which the Applicant expressed to the Respondent that he should use to construct her house. Because of these reasons, this part of the Applicant’s complaint is refused.
Item 4: Garage Step
- [45]The Applicant’s complaint is that there is no step provided in the garage area, therefore it is not equal or the same as the Respondent’s house.
- [46]In his report, Mr Hopmeier said that the step down was meant to be 190mm in height as per the building plan, however the garage slab is now level with the house slab. It was his view that this is one of the consequences of lowering the slab level. He also said that it was common practice to have a step down from the house floor to the garage floor.
- [47]The Respondent disputed Mr Hopmeier’s evidence about the step and said that there was a step down from the house into the garage and this step was constructed in accordance with the plans. He said that the double garage was below the actual living area height.[24] .
- [48]The Applicant’s evidence somewhat supports what the Respondent said about there being two distinct levels in the overall slab. She told the Tribunal that the garage level is below the house level.[25] However, although accepting that there is a split level in the overall slab for her house and garage, her argument was that despite the slab having two distinct levels, there was no actual step from the garage area into the main living area of the house.[26]
- [49]The Tribunal was afforded the benefit of the QBCC’s Initial Inspection Report. This document was compiled by the QBCC because the Applicant complained about the Respondent’s workmanship and the defects in her house.[27] I mentioned earlier that Mr Hopmeier suggested that the level of the garage floor and the floor of the living area of the house were the same level.
- [50]I find that suggestion completely inaccurate. When viewing the photograph shown in the QBCC’s Initial Inspection Report, it is clear that the garage area is considerably lower than the living area of the house. If Mr Hopmeier had the opportunity to inspect the Applicant’s house as he said he did, then it is astounding that he would suggest in his report that the areas were of the same level.[28]
- [51]The Tribunal accepts that the entire slab of the Applicant’s house comprising of the living areas and the garage are not of the same level. The part of the slab for the garage is below the height of the slab for the living area.
- [52]The Tribunal also accepts that the Applicant’s house was built to a different floor height level than the Respondent’s house. The height of the step up from the garage to the living area in the Respondent’s house did not complying with the Building Code of Australia, and therefore the Respondent was required to install the additional step. That step was not required at the Applicant’s house because the floor levels of both the garage and the living area in her house were not greater than 190mm. Because of those reasons, this part of the complaint is rejected.
Item 5: Under Roof – a variation in the floor area
- [53]The Applicant said that her house was built with less floor space than the Respondent’s house. The floor space of the Respondent’s house measured 237.4m3, which was approximately 2.8m2 less than the floor space of the Respondent’s house.
- [54]In his report, Mr Hopmeier confirmed that the Applicant’s house is approximately 2.8m2 smaller than the Respondent’s house, however he only arrived at the conclusion from what the Applicant has told him, he never visited the Respondent’s house for an examination of that property.
- [55]Notwithstanding that, Mr Hopmeier did concede that any alteration to the overall floor space could be attributed to the Applicant having the plans altered to include a theatre room. He also conceded that the insertion of the theater room increased the overall internal area of the house, but the area of the rear patio had to be reduced to compensate for the increased internal floor area.
- [56]Mr Hopmeier told the Tribunal that from his experience, it is often difficult for a builder to change the floor plan of a house and still maintain the exact floor area size, however it was his opinion that the Respondent should have made the Applicant aware of the variation and obtained her approval in writing.
- [57]His opinion is rejected by the Tribunal as it was the Applicant who asked for the variation to be undertaken to the original drawings, it was her intention to have a theatre room placed into the plan and she told the Respondent to ensure that the theatre room was included. The plans were then redrafted as per her instructions to include the theatre.
- [58]The Tribunal had the opportunity to view three separate floor plans. They are the floor plan of the Applicant’s house,[29] the floor plan of the Respondent’s house[30] and the floor plan referred to as the preliminary set of plans given to the Applicant by the Respondent which the Applicant made some alterations to.[31]
- [59]In viewing those three plans, I note from the final plans used to construct the Applicant’s house, the following measurements apply –
| Applicant’s house | Respondent’s house | |
Living | 172.37 m2 | 163.45 m2 | |
Garage | 36.20 m2 | 36.00 m2 | |
Patio/Store | 20.10 m2 | 31.78 m2 | |
Porch | 5.96 m2 | 6.17 m2 | |
Total | 234.63 m2 | 237.40 m2 | |
- [60]I note that according to those measurements, the Applicant’s house has almost 9m2 more living area than the Respondent’s house and a marginally bigger garage, but has a smaller area allocated to the patio/store and porch areas. Overall, the total area of the Applicant’s house is 2.77m2 smaller than the Respondent’s house.
- [61]There is a noticeable difference between the patio area of the Applicant’s house and the Respondent’s house. Originally the preliminary plans allowed for approximately 20.52m2 of patio space at the Applicant’s house. Those plans had already been changed from the plans to the Respondent’s house to reflect the inclusion of a theatre as an additional room. Whereas, the plans for the Respondent’s house allowed for a much larger area of approximately 29.48m2.
- [62]Noticeably, when the preliminary plans were altered by the Applicant, the Applicant’s own hand drawn alterations reduced the actual patio area down to 17.49m2.
- [63]I accept the evidence of the Applicant’s expert, Mr Hopmeier, when he said that any alteration to the overall floor space could be attributed to the Applicant having the plans altered to include a theatre room and this additional room increased the overall internal area of the house. Because of that, the area allocated for the rear patio had to be reduced to compensate for the increased internal floor area. It is for these reasons that this part of the Applicant’s application is rejected.
Item 6: Driveway
- [64]The Applicant complained that the driveway to the Respondent’s house was constructed so that its width at the kerb was the same as it was where the concrete butted against the garage.[32] However, on the Applicant’s house, the driveway starts at the garage[33] and then tapers down to a width of 3.9 metres at the kerb. Because the driveway is tapered, the Applicant cannot park two cars side-by-side on her driveway.
- [65]Mr Hopmeier’s report suggests that there are no dimensions drawn on the plans to show the width of the driveway at the kerb. He could see no obvious reason why the driveway had to be tapered except to reduce the amount of concrete that had to be used. His opinion was that the Respondent saved 11m2 of concrete in providing a tapered driveway to the house at a cost of $1,200.[34] Notwithstanding Mr Hopmeier’s opinion, no other independent evidence was provided to the Tribunal to quantify that amount.
- [66]A photograph of the driveway at the Applicant’s house was relied upon by the Applicant. That photograph was attached to a second photo showing the driveway to the Respondent’s house.[35] The overall impression given to the Tribunal by the parties seems to suggest that there is a distinct difference in the width of the driveway at the kerb to the width where it butts onto the garage. The photograph of the Applicant’s house does not give that impression. Notwithstanding that, neither the contract or the preliminary specifications document indicates that the driveway was required to be 5.9 metres wide for its entire length. The site plan for the Respondent’s house[36] shows a tapering of the driveway as does the site plan for the Applicant’s house.[37]
- [67]Because the driveway extended over the public footpath to the kerb, there was a requirement for its construction to be approved by the TCC. The Respondent said that the Applicant was aware that plans for the driveway had been submitted to the TCC for approval. When the plans came back from the TCC, the TCC had inserted drawings on to the plans which provided for a tapering of the driveway down to a width of 3.9m at the kerb. The Respondent said that the concreting of the driveway was undertaken in accordance with the specifications provided and approved by the TCC.[38] I accept the Respondent’s evidence in relation to the driveway and this part of the Applicant’s application is rejected.
Item 7: Concrete Path around house
- [68]The preliminary specifications document provides that the pathways were to be constructed of exposed concrete aggregate. However, they were not included in the overall cost for the construction of the house. The wording in the preliminary specifications document relating to pathways is drafted as –
Storm water/Concrete path around house:
$5000 not included in cost If we take the $5000 landscaping rebate I can do everything there that you would like.
- [69]The Applicant said that the pathways at the Respondent’s house were wider than what they are at her house and they measured approximately 1200mm in width. She said that she paid for the pathways at her house and expected them to be as wide as the pathways at the Respondent’s house.[39] She said that the Respondent did not tell her that the pathways at her house would be narrower and she was never informed in this variation to the contract.
- [70]Turning to the expert report[40] relied upon the Applicant, Mr Hopmeier commented in his report that –
“I have marked plans for both houses at 1:100 scale (attached) with paths as installed, the Display house has 49.4 Sq.m. & Clients house for paths in similar position has approx. 35 Sq.M. that is 14.4 Sq.M. less than display house & using rate as per driveway (which is conservative) that is a saving of $1584.00 to Builder”[41]
- [71]There are some concerns which arise from that comment, such as –
- (a)There was no scale plan attached to his report as Mr Hopmeier claimed;
- (b)
- (c)Mr Hopmeier told the Tribunal that he had never inspected the Respondent’s house. If that is so, then how was it that he was able to accurately mark the Respondent’s house plans to show where the paths were; and
- (d)Without any supporting evidence from a concreting contractor or other suitably qualified person, Mr Hopmeier arrives at a determination that the Respondent achieved a saving of $1,584.00, and this amount was derived by his calculation that the Respondent used 14.4m2 less concrete to construct the pathways at the Applicant’s house.
- [72]Over the course of the construction of her house, the Applicant undertook periodic inspections of her house. These inspections were carried out during the various stages of construction. Despite being aware of the pathways being constructed at the width that they were, she did not raise this issue with the Respondent. She did not raise any concern about the width of the pathways until sometime after the construction of the house and the pathways had been completed.
- [73]The Respondent does not dispute that the pathways were approximately 900mm in width. He said that the width of the pathways is not contained within the preliminary specifications document and they were “standard pathways” which were built in accordance with industry standard.[43] He said that he told the Applicant that the width would be 900mm.[44] The Applicant does not deny that he told her this, she just thought that the pathways would be as wide as they were at the Respondent’s house.
- [74]The contract does not specifically provide for the width of the pathways. No other issue has been raised about the method of construction or any defect in them, except for that width. The Respondent has applied the industry standard when constructing the pathways at a width of 900mm.
- [75]So far as a variation to the contract, a variation of a building contract means an addition to, or an omission from the building work the subject of the contract.[45] It can only be a variation if something has been varied. Regarding the pathways, I am satisfied that there has been no variation and for the reasons explained, this part of the Applicant’s application is rejected.
Item 8: Back Decking
- [76]The Applicant’s complaint is that the back decking is not equal or the same as the Respondent’s house. She said that the Respondent’s house had a timber feature from the patio fascia to the rear fence and her house does not have that feature.
- [77]I will return to this point later In these reasons and my discussions ad decision are explained under the heading of ‘Pergola’ at paragraphs [123] to [126].
Item 9: Toilets
- [78]The Applicant’s complaint is that because the connecting pipe and stopcock for the toilets at the Respondent’s house are installed behind the WC suite, the connecting pipe and stopcock cannot be seen from the toilet doorway. The toilet design in the Respondent’s house had a cosmetic appeal to the Applicant. She said that she was house proud and like things in her house to look nice. She was attracted to the design of the toilets in the Respondent’s house because the connecting pipe and stopcock were not able to be seen.[46]
- [79]The Applicant said that she told the Respondent that she wanted her toilets constructed in the same manner as the toilets in his house. It was not until after the house was completed that she discovered that the connecting pipe and stopcock to the toilets were not installed as she wanted.
- [80]After she complained to the Respondent about the toilets, she received a text message from him. In that text messages he told her that he would return to her house to fix the toilets, or otherwise he would deduct $500.00 off the price of the house. The Respondent does not dispute that he sent the text message but suggested that he only did so to keep her quiet about it.[47]
- [81]Because the Respondent did not return to rectify the toilets, the Applicant obtained a quote from a plumber to undertake the rectification work. That plumber quoted $794.60[48] for the work, however that cost did not include any repairs to the plaster or painting.[49] Unfortunately, the Applicant has provided no other evidence to the Tribunal to give any indication as to the total costs of rectification of the toilets to a design comparable to the toilet design in the Respondent’s house.
- [82]In his report, Mr Hopmeier said that when providing an estimate of costs associated in restoring the toilets in the same manner to which the toilets were installed at the Respondent’s house, he consulted a plumber. That plumber quoted for the cost of the plumbing, as well as what it would cost to repair and repaint the walls. With the assistance of the plumber, Mr Hopmeier arrived at the figure of $2,370.00 as compensation for the Applicant.[50]
- [83]However, there is no evidence of the plumber ever inspecting either of the two houses involved. Nor is there any evidence of any quotations or estimates from any licensed plumber or other suitably qualified person to undertake that work. Therefore, the amount claimed by Mr Hopmeier is unsubstantiated.
- [84]The Respondent said that the toilets in the Applicant’s house were installed in the method they were because that was the way the plumber installed them. He argued that the method of installation was quite acceptable and 80% of the toilets in houses are installed by that method. He added that a lot of people do not want to put the pipes in the toilet through the blockwork just in case of any troubles down the track.
- [85]It is apparent that the toilets are functioning properly, the method of installation did not impact upon their functionality and they had passed a plumbing inspection. An assessment was undertaken by the QBCC on the Applicant’s house.[51] The QBCC’s assessment was there was no requirement in the Building Code of Australia or any Australian Standard that requires the plumbing for the toilets to be installed on the rear wall.[52]
- [86]Notwithstanding that, the Respondent accepted that although everything about the toilets will work fine, aesthetically they do not look as nice as the toilets in his house.[53] He said it was just ‘an aesthetic thing’ and if the Applicant was worried about people seeing the toilet, all she had to do was close the door.[54]
- [87]I am of the view that the Respondent’s offer of the $500 compensation to the Applicant was an acknowledgment that the toilets were not constructed as agreed between the parties. I am satisfied that the Respondent should compensate the Applicant for all reasonable costs associated with changing the toilets connecting pipe and stopcock to match the Respondent’s house. At present the only evidence of what the cost would be are contained in the Applicant’s material.[55] In the absence of further evidence or material, I accept that the amount disclosed in that material is a reasonable cost and the Respondent should pay to the Applicant the amount of $794.60.
Item 10: Kitchen
- [88]Provision was made in the original plans at the Respondent’s house for a kitchen area. Those plans were reflected in the design and features on display at the Respondent’s house. When the Applicant instructed the builder to reconfigure the plans for her house so that a theatre room could be included in the plans, the configuration of the entire floor plan was undertaken to accommodate that additional room. Therefore, there was a modification to the entire original plans to accommodate the design of the theatre.
- [89]When Mr Hopmeier scaled off the kitchen in the plans he determined that the kitchen in the Respondent’s house measured 7 metres, with the Applicant’s house measuring 6.1 metres. He said that there was a difference of 900mm, which equated to the Applicant’s kitchen being 12% smaller. In calculating an amount equal to the 12%, Mr Hopmeier referred to the preliminary specifications document which allowed for an amount of $17,000 for the kitchen. He arrived at a determination that the Respondent’s costs of constructing the Applicant’s kitchen were $1,800.00 less than the costs associated with the kitchen in his house.[56]
- [90]In arriving at his calculations, it is not clear as to how that was achieved. The accuracy of his measurements is disputed by the Respondent, who said that Mr Hopmeier’s measurements simply do not make sense.[57] Notwithstanding this, I accept Mr Hopmeier’s evidence that the kitchen in the Applicant’s house was smaller as a consequence of the planning change to the original plans to accommodate the added theatre room. This also resulted in less bench space and only a single pantry.
- [91]The Applicant accepted the final alteration to the plans to include the theatre. However, she said that from looking at the plans, she did not understand them. That is, she did not understand from looking at the plans that the kitchen in her house was smaller than the kitchen in the Respondent’s house.
- [92]The Applicant’s complaint is that the size of the kitchen, particularly the pantry and the bench space is not adequate for her needs. However, it was the Applicant who gave the go ahead for the Respondent to construct the house after she had viewed the plans.
- [93]In addition to this, the Applicant told the Tribunal that she visited the business premises of the cabinet maker who was installing her kitchen, but remarkably they did not discuss the design or specifications of her kitchen. She said that she only went there to select a colour for the kitchen, she did not discuss what sort of kitchen she wanted or the size, nor what design it should be. She said that she only spent 10 minutes with the cabinet maker.[58] Notwithstanding there had been significant alterations to the design of the house, she thought that she was getting the same kitchen as the Respondent’s house.[59]
- [94]In his report, Mr Hopmeier suggests that the Applicant was never aware that her kitchen was going to be smaller in size than the one in the Respondent’s house because she could not understand the plans.[60]
- [95]I am of the view that therein lies part of the difficulty for the Applicant. Her position is that she did not understand the plans. There has never been a suggestion that the Applicant was unhappy with the plans, and indeed if she was, she never conveyed that unhappiness to the Respondent. To the contrary, she gave every indication to the Respondent that she approved of the plans. She now wants to the Tribunal to accept that because she did not understand the plans, the Respondent should financially compensate her because her kitchen is not adequate enough for her needs.
- [96]She had the opportunity to have the plans for the kitchen explained to her when she met with the cabinet maker, but she never took that opportunity. It was only after the kitchen had been constructed that she expressed her unhappiness. I am of the view that the Applicant was required to show some due diligence on her own part, which unfortunately for her was missing. For the reasons already explained, this part of the Applicant’s application is rejected.
Item 11: Fence
- [97]The Applicant said that she paid an extra $800 to have the fences and gates erected on both sides of her house. The gates were to have horizontal palings. She requested a gap of 5mm between the palings, however the palings were installed with a 11mm gap. She also said that the left side gates had a large gap under them. Regarding the fences of the property, she said that the rear fence posts had been extended by 200mm and these posts now appear unsightly and she had to paint the posts so to make the extensions less noticeable.
- [98]In his report, Mr Hopmeier attempted to corroborate the Applicant’s claim about the fence posts.[61] He commented that upon his examination, it appeared that the fencing contractor installed the fence posts in a manner which made them too short for the height of the fence. He went on to say that instead of replacing the posts, the fencing contractor glued a section of post on top of the existing post. Mr Hopmeier surmised that the glue connection would eventually breakdown and weather with age because of a possibly that the glue would fail. He suggested that all the posts along the rear fence required replacement.
- [99]It appears that Mr Hopmeier was either provided with incorrect information regarding the rear fence when he spoke to the Applicant, or he reached an incorrect assumption about who erected the rear fence and the circumstances which followed thereafter.
- [100]Evidence was heard from Mr Brian Drovandi. He has 40 years experience as a fencing contractor. He said that the Respondent initially engaged him to carry out the work on the Applicant’s house. A significant amount of communications occurred between himself and the Applicant about what type of fence and gates she wanted. There were three main areas discussed between them. They were the rear fence, the returns (side fences) and the front gates. It appeared from Mr Drovandi’s evidence that apart from the Respondent initially contacting him about erecting the fence, the remainder of the instructions about the fence came from the Applicant.[62]
Rear fence and returns
- [101]The rear fence was pre-existing, that is, it had been constructed prior to the Applicant having her house built. The rear fence was constructed from treated pine palings, railings and posts. By looking at the rear fence from the Applicant’s house, the posts and the railings were clearly visible on her side of the fence. This is because when the rear fence was originally built by the rear neighbour, the palings were placed on the neighbour’s side of the fence.
- [102]Prior to Mr Drovandi undertaking the work, the Applicant arranged for some landscaping to be carried out on the yard. 40m3 of soil was used to raise the level of the ground. As a consequence, when the returns were constructed to their height of 1800mm, this meant that the palings were much higher than the existing rear fence. With the Applicant’s consent, Mr Drovandi cut some pieces of a fence posts and then glued those pieces to the top of the existing fence posts. This gave a visual extension to the posts to match the height of the palings.[63]
- [103]To make the rear fence more visually appealing and uniform with the side returns, the Applicant asked Mr Drovandi to insert palings against the railings on her side of the fence and raise the height of the existing posts.
- [104]I am satisfied that the rear fence had already been constructed by a neighbour prior to the work undertaken on the Applicant’s house. I am also satisfied that any work undertaken by Mr Drovandi on the rear fence was because of negotiations undertaken between him and the Applicant to the exclusion of the Respondent.[64] It was the Applicant who asked Mr Drovandi for a quote for the costs associated with the fence and also the installation of the gates.[65]
The gates
- [105]Regarding the installation of the gates, the Applicant communicated directly with Mr Drovandi and asked him for a quote to undertake that work.[66] Mr Drovandi said that he initially attended to the Applicant’s house and took some measurements of the proposed gates. He made the gates to match those measurements and when he returned to install them, he found that the Applicant had arranged for a landscaper to raise the level of the ground with top soil. Because of the alteration of the level of the ground, he had to make adjustments to the gates. To make the gates fit, he had to cut and adjust the bottom of the gates to make the gates fit the height of the side fence. He said that originally the gates were meant to be 1800mm high, but because he had to adjust the size of the gates this meant that the gap between the palings had changed to a different gap which had already been arranged between him and the Applicant.
- [106]It was noted earlier in these reasons that although Mr Drovandi was originally contacted by the Respondent to undertake work at the Applicant’s house, it was the Applicant who had taken over the negotiations and provided the instructions to Mr Drovandi about how she wanted the gates and the fences constructed and in what manner and style they should be constructed. Notwithstanding the Respondent having no input into the construction of the gates and the fences, it would seem that the fencing is not part of the preliminary specifications document or the contract. I am satisfied that the Respondent holds no responsibility for the erection of the fences or the gates and this part of the Applicant’s application is rejected.
Item 12: Patio Level
- [107]The Applicant said that the plan shows a 190mm step down from the patio to the ground level. In Mr Hopmeier’s report, it indicates that as a consequence of reducing the slab height, this left the grassed area almost level with the patio. Photographs provided by the Applicant show that there is almost a non-existent drop down from a patio to the grassed area at her house as compared to a more pronounced drop on the Respondent’s house.[67]
- [108]Discussed earlier was the placement of approximately 40m3 of top soil onto the property by the landscaper. It is not disputed that this was undertaken by a landscaper at the request of the Applicant. The addition of the soil raised the level of the rear and sides of the yard.
- [109]Any responsibility for this part of the Applicant’s complaint is negligible on the Respondent’s behalf, and I am satisfied that the Applicant has contributed to the raising of the ground level to the height in which it now is. I am satisfied for those reasons; this part of the Applicant’s application should be rejected.
Item 13: Exposed Nails
- [110]When some melamine coated boarding was installed as part of the joinery in the Applicant’s house, the work was not finished appropriately. The screws were left exposed as the plastic caps were not installed over the heads of the screws. Ordinarily, those caps are installed in similar colours so that the screws blend in with the surrounding colour. The Applicant claims that those plastic caps were not installed by the Respondent, but she accepts that this issue does not affect the overall livability of her house.
- [111]The Respondent accepted that the screw caps were not installed. He told the Tribunal that he would provide the caps to the Applicant. On that basis I am satisfied that the Respondent should contribute to bringing this item of complaint to a satisfactory finish, that is, he should compensate the Applicant for the loss of the screw caps to the value he nominated.
Item 14: Missing Tiles
- [112]Tiles for the Applicant’s house were originally sourced from Marlin Tiles in Townsville. Evidence was heard from Ms Amanda Wood (Ms Wood) who is employed by that company. She gave some background information about when she spoke to the Applicant, and the choice of the tiles the Applicant made for her house.
- [113]The Tribunal accepts that in houses that are constructed with tiles used as either floor coverings or placed on walls in wet areas, there is usually a residual number of tiles left behind by the tiler so that the owner of the house may use the spare tiles in cases where a tile is broken or damaged.
- [114]The Applicant’s complaint relates to a quantity of tiles which she alleged went missing from her house during construction. The Applicant said that she had been told by Ms Wood that the Respondent telephoned her to receive a refund on two boxes of tiles which were left over from the batch provided for the living room at the Applicant’s house.[68] The Respondent denies this allegation.
- [115]The Applicant said that she was disappointed by the Respondent’s response to her query about the spare tiles, particularly when he told her that if the tiles had disappeared, then it was not his responsibility.[69] The Applicant said that because no spare tiles had been left behind, she had to purchase spare tiles at a cost of $53.12.[70]
- [116]To support her proposition, the Applicant is seeking that weight be placed upon uncorroborated evidence of a conversation purportedly between her and Ms Wood. Notwithstanding the Applicant’s allegations, when Ms Wood gave evidence to the Tribunal, the Applicant did not raise this allegation with her. Further to this, at no point in her evidence did Ms Wood corroborate this allegation, either orally or in her written statement.[71]
- [117]It is a well settled principle that although the Tribunal is not bound by the rules of evidence, when conducting proceedings, it may inform itself in any way it considers appropriate, but at all times it must observe the rules of natural justice.[72] Notwithstanding that principle, this does not mean that all rules of evidence may be ignored as of no account. As articulated in R v War Pensions Entitlement Appeals Tribunal; ex-parte Bott, no Tribunal can, without grave injustice, set the principle to one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence do not bind, every attempt must be made to administer substantial justice.[73]
- [118]Having regard to the evidence presented at the hearing, I am not satisfied that the Respondent is responsible for the missing tiles. For those reasons already given, this part of the Applicant’s application is rejected.
OTHER ISSUES NOT RAISED IN THE APPLICATION
Painting of the house[74]
- [119]The paint selection for the house was undertaken by the Applicant. She said that she went to Bunnings and chose the colour for the house from a colour chart.[75] She then communicated that choice to the Respondent. The Respondent, then arranged for a painting contractor to paint the Applicant’s house with the paint chosen by the Applicant.
- [120]The Applicant’s complaint is that she should have been consulted prior to the interior of the house being painted, or at least given the opportunity to be present when the painting commenced so that she could be satisfied that the paint that she chose had matched her perception of the colour she wanted. It does not appear that she ever communicated to the builder or the painter that she specifically wanted to be present when the painting commenced.[76]
- [121]In the normal course of events, once a home owner chooses a colour for the paint, either the builder or the painting contractor arranges for the purchase of the correct amount and colour of the paint. Curiously, the Applicant choose the paint colour herself and then told the Respondent what the paint colour was. She now complains that that she should have been consulted before the paint was applied to her house.
- [122]Although this item of complaint does not form part of the Applicant’s application, I am of the view that consideration should be given to the facts of this complaint. After having considered the facts, I am satisfied that the Respondent acted appropriately in accordance with the Applicant’s instructions.
Pergola
- [123]When the Applicant inspected the Respondent’s house, she saw that there was a pergola extending from the patio to the side fence. She said that she expected a similar pergola to be erected at her house.
- [124]When her house was completed, she started living in it. Sometime after moving into the house she complained to the Respondent that he did not build a pergola. The Respondent’s response was that the pergola was never part of the building plans for her house.
- [125]He said that although the Applicant may have thought that the structure at the Respondent’s house was a pergola, it was not. He went on to say that the object had no structural value to it and it was only built for the purpose of a screen only, it was not built as a pergola. He identified that the structure was never part of the original plans for the Respondent’s house, and it certainly did not form part of the plans for the Applicant’s house.[77]
- [126]By viewing the plans for both the Respondent’s house and the Applicant’s house, it is clear by looking at the plans[78] that a pergola was never part of the drawings for either of those two houses. It would seem that instead of following the plans, the Applicant followed her heart and believed that she was going to get a pergola, but that pergola was not part of the drawings or the preliminary specifications document.
OTHER WITNESSES
- [127]Apart from the evidence provided to the Tribunal by those already mentioned in these reasons, evidence was also provided by Ross Collins,[79] Jason Joseph Meikus,[80] Allan Leslie Munro[81] and Simon Peter Richardson.[82] I am of the view that it is not essential to discuss their evidence in any detail. The evidence from those witnesses has either already been canvassed in these reasons, or it does not assist the Tribunal in the determination of this matter.
REMEDIES SOUGHT BY THE APPLICANT
- [128]The Applicant relies upon the expert report of Mr Hopmeier. Under the various heads of the Applicant’s claim, I have made comments about Mr Hopmeier’s report and his evidence at the hearing. Further to those comments already made, Mr Hopmeier’s provided a summary of what he determined were the costs for the items referred to in his report. He divided his summary into four areas.
Savings made by the Respondent | $18,748.00 | |
Costs of rectification work | $ 3,770.00 | |
Costs to the Applicant | $ 3,327.38 | |
Replacement of tiles | $ 2,921.00 | |
| Total | $28,766.38 |
Savings made by the Respondent
- [129]In regard to the first point discussed by Mr Hopmeier in his report,[83] he determined on behalf of the Applicant that the savings achieved by the Respondent were $18,748.00. He suggests that savings were made from these points were –
| Lesser quality hot water system | $5,400.00 |
| Dropping slab level 100mm | $2,500.00 |
| Tapered Driveway | $1,200.00 |
| Narrower pathways | $1,584.00 |
| Overcharge on extra paths[84] | $ 984.00 |
| No timber feature[85] | $5,280.00 |
| Smaller kitchen | $1,800.00 |
- [130]Effectively Mr Hopmeier is providing an estimation of what he says the Respondent should reimburse the Applicant. I am not satisfied on the evidence that the Respondent should pay that amount to the Applicant. When discussing the Applicant’s various complaints about her house, I provided reasons why I rejected each of the above points, with the exception of the item referring to “overcharge on extra paths”. This item does not form part of the Applicant’s application and appears to be something that has been included in the expert report as an afterthought.
Costs of rectification work
- [131]Regarding the second point discussed in Mr Hopmeier in his report,[86] he determined that the Respondent should compensate the Applicant the amount of $3,770.00 relating to –
| Relocating water inlets for the WCs | $2,370.00 |
| Replacing fence posts | $1,400.00 |
- [132]Already expressed in these reasons are my findings about the toilets. Neither the Applicant or Mr Hopmeier were able to show how the amount of $2,370.00 was arrived at, except for an estimation. However, I do accept the evidence of the quote obtained from Rowey’s Plumbing & Gas to the amount of $794.60. In the absence of any further evidence, I am of the view that the Respondent should pay to the Applicant the amount of $794.60.
- [133]In regard to the suggestion that the Respondent is liable for the replacement of the fence post, I have already indicated in my reasons my decision on this point. The rear fence, including the posts were erected by another property owner prior to the Applicant’s house being constructed. The Respondent is not responsible for the rectification to the rear fence posts and the claim for $1,400 is rejected.
Costs to the Applicant
- [134]
| Extra to fence that she was not satisfied with | $ 800.00 |
| Painting fences | $2,500.00 |
| Caps for screws | $ 12.00 |
| Buying spare tiles | $ 15.38 |
- [135]In regard to the first two points relating to the fence issue, I have already explained in my reasons my determination that the negotiations undertaken in relation to the fence and gates were carried out between Mr Drovandi and the Applicant to the exclusion of the Respondent.
- [136]In regard to the plastic caps left off the screws, I earlier commented that the Respondent told the Tribunal that he would compensate the Applicant for the replacement costs for the caps. I intend to order that the Respondent pay the Applicant a fixed amount of $12.00.
- [137]In respect to the Applicant having to purchase spare tiles, I have already commented that the evidence does not support the allegation that the Respondent is responsible for the Applicant’s loss. I do note however that the amount claimed as a loss in Mr Hopmeier’s report differs greatly to the amount claimed by the Applicant.
Replacement of tiles
- [138]The fourth point is what Mr Hopmeier refers to as replacement of tiles. This relates to the comments in an addendum to his report about the slippery tiles on the patio and front entry. It appears from the contents of Mr Hopmeier’s report that when he was originally engaged by the Applicant, the issue about the slippery tiles was not part of the items complained of by the Applicant. It was only after the original report was complete that the Applicant raised with him the problem with those tiles.[88]
- [139]The allegation is that the Applicant was given very little choice for the selection of the tiles, except for the colour of the tiles. Ms Wood told the Tribunal that it was the Applicant who selected the tiles.
- [140]In my view Ms Wood was an impressive witness. She had an independent role in the dispute between the parties and I found that she was honest and frank in giving her evidence. Her evidence was not challenged or refuted by the Applicant and the suggestion that the Applicant had no input into the selection of the tiles is rejected wholeheartedly.
- [141]Further to the above, the Applicant made a complaint to the QBCC on 4 May 2015 alleging that there were a number of defects with the finish of her house.[89] There were a number of items complained of, but slippery tiles were not part of that complaint. The only reference to tiles was a comment that there were no spare tiles.
- [142]During the hearing, Ms Wood said that she recalled the Applicant visiting Marlin Tiles with Annette Rogers. She also recalled the Applicant ordering non-slip matte finish tiles for her house. The tiles were to be laid on both the internal and external surfaces. The same tiles were used in both areas because the Applicant accepted that the tiles would not have been subjected to much of a weathering effect on the outside areas.[90]
- [143]I am of the view that the Applicant chose the tiles for her house. Any liability or responsibility lies with the Applicant.
DECISION ON REMEDIES
- [144]The Applicant askes the Tribunal to award damages to her because the Respondent breached the contract. Remedies for any breach of a contract are normally by way for an award of damages. In most cases, those awards are made on the basis that the breach complained of can adequately be compensated by way of a payment of money. If a party sustains a loss because of a breach of contract, that party should be placed in the same situation financially as if the contract had been performed.[91]
- [145]Compensation in any award for damages does not generally contain a component for injured feelings, mental distress, discomfort or disappointment. This principle is merely an application of the general rule where any award of damages is designed to compensate, not punish.[92]
- [146]The general rule is that only an actual loss can be compensated for. In assessing appropriate compensation, an attempt must be made to place the injured party in the same situation with respect to damages, as if the contract had been performed.[93]
- [147]The damages should be calculated as at the time of the breach and the amount to be awarded should reflect the Applicant’s loss at that point. However, because contractual damages are compensatory in their very nature, the actual loss suffered must be both shown and justified to allow for a calculation of an appropriate amount.[94]
- [148]Earlier in these reasons at paragraph [87] I indicated that I was satisfied that the Respondent should compensate the Applicant for all reasonable costs associated with changing the connecting pipe and stopcock in the toilets to match the Respondent’s house. I note that the Applicant had a reasonable opportunity to quantify her loss in regard to the toilets, however the only costs contained in the Applicant’s material is the amount of $794.60.[95]
- [149]I did consider applying the amount estimated by Mr Hopmeier in his report, however because he has made a number of errors when giving an opinion, I am not confident that his estimation would be accurate. On that basis I am only prepared to compensate the Applicant for what costs can be identified.
- [150]I intend to make an Order that the Respondent pay to the Applicant the sum of $806.60, which includes those costs just mentioned and the nominal figure of $12.00 for the replacement of the plastic caps missing from the screws.
ORDERS
- [151]The Orders of the Tribunal are –
- That the Respondent pay the Applicant the sum of $806.60 by 4:00pm on 7 April 2018.
- That the Applicant’s application be otherwise dismissed.
- There is no Order as to costs.
Footnotes
[1] A standard new home construction contract for the construction of the Applicant’s house signed and dated 29 April 2015.
[2] Mr Ross Collins.
[3] Exhibit 1 at Document Tab 2.
[4] Transcript of Proceedings at page 1-104, lines 44-45.
[5] Transcript of Proceedings at page 1-105.
[6] Transcript of Proceedings at page 1-96, lines 32-45 and Exhibit 1, Tab 4.
[7] In the Applicant's undated statement filed with the QCAT as pages 29 to 36. The Applicant states in her final paragraph that "[she] never sat down or received any documentation in writing or signed off on any alterations or changes to my house that made my house different to the display home."
[8] Exhibits 17 and 18.
[9] Exhibits 17 and 18 at page 8.
[10] Exhibits 17 and 18 at pages 16 to 19.
[11] Exhibit 1 at Document Tab 1, page 31.
[12] Exhibit 1 at Document Tab 1, page 31.
[13] Exhibit 3. Quote dated 24/05/2016 from Tradelink.
[14] Mr Hopmeier’s Report, Exhibits 17 and 18 at pages 16 and 18.
[15] Exhibit 1 at Document Tab 2.
[16] Transcript of Proceedings at page 1-61.
[17] Exhibit 1 at Document Tab 7.
[18] Mr Hopmeier’s Report, Exhibits 17 and 18 at pages 16 and 18.
[19] Exhibit 5.
[20] Exhibit 1 at Document Tab 5.
[21] Mr Hancock’s evidence was by way of a telephone.
[22] A full block measured 200mm in height and a half block measured 100mm in height.
[23] Transcript of Proceedings at page 1-61.
[24] Transcript of Proceedings at pages 1-64.
[25] Transcript of Proceedings at pages 1-25 to 1-27.
[26] Transcript of Proceedings at page 1-23, lines 35-47.
[27] Exhibit 1 at Document Tab 11.
[28] Exhibits 17 and 18, Mr Hopmeier’s report at page 9.
[29] Exhibit 5.
[30] Exhibit 1 at Document Tab 3.
[31] Exhibit 1 at Document Tab 4.
[32] The driveway at the Respondent’s house has a continuous width of 5.9 metres.
[33] The Applicant’s driveway measures 5.9 metres where it butts onto the garage.
[34] Mr Hopmeier’s Report, Exhibits 17 and 18 at pages 17 and 18.
[35] Exhibit 8.
[36] Exhibit 1 at Document Tab 3.
[37] Exhibit 1 at Document Tab 5.
[38] Exhibit 1, Document Tab 10.
[39] Transcript of Proceedings at page 1-102, lines 1 – 3.
[40] Exhibits 17 and 18.
[41] Mr Hopmeier’s Report, Exhibits 17 and 18 at page 17.
[42] See Exhibit 1 at Document Tab 3.
[43] Transcript of Proceedings at page 1-73, lines 17 – 29.
[44] Transcript of Proceedings at page 1-102, lines 1 – 3.
[45] Queensland Building and Construction Commission Act 1991, s 67A.
[46] Transcript of Proceedings at page 1-34, lines 12-24.
[47] Transcript of Proceedings at page 2-79, lines 19 – 25.
[48] Exhibit 11.
[49] Transcript of Proceedings at page 1-33, lines 28-33.
[50] Exhibit 17 at page 17.
[51] Transcript of Proceedings at page 1-1-9, lines 41-46.
[52] Exhibit 1 at Document Tab 11, QBCC Initial Inspection Report dated 04/05/2016.
[53] Transcript of Proceedings at page 2-75, lines 15 – 17.
[54] Transcript of Proceedings at page 2-75, lines 8 – 13.
[55] Exhibit 11. Quote from Rowsey’s Plumbing & Gas dated 29/06/2016.
[56] Exhibit 17 at page 17 – 18.
[57] Exhibit 2. Respondent’s outline of submissions dated 8 June 2017 at paragraph 88.
[58] Transcript of Proceedings at page 1-112.
[59] Transcript of Proceedings at page 1-111, lines 28 – 37.
[60] Exhibit 17 at page 18.
[61] Exhibit 17 at page 12.
[62] Exhibit 21.
[63] Transcript of Proceedings at page 2-6.
[64] Transcript of Proceedings at page 2-6.
[65] Transcript of Proceedings at page 2-10, lines 43-46.
[66] Transcript of Proceedings at page 2-10, lines 43-46.
[67] Exhibits 10 and 14.
[68] Applicant’s application.
[69] Transcript of Proceedings pages 1-126 to 1-127.
[70] Exhibit 16. Tax Invoice from Marlin Tiles dated 29/06/2016.
[71] Exhibit 23. Statement of Ms Amanda Wood dated 13 March 2017.
[72] Queensland Civil and Administrative Tribunal Act 2009, s 28.
[73] (1933) 50 CLR 228 @256 per Evatt J.
[74] Mr Hopmeier’s Report at Item 17.
[75] Transcript of Proceedings at page 1-117.
[76] Transcript of Proceedings at page 1-117 to 1-118 and page 1-119, line 9.
[77] Transcript of Proceedings at pages 1-73 and 1-74.
[78] Exhibit 1, Tabs 3 and 4.
[79] A close friend of the Applicant. He played a role as support person for the Applicant during the hearing.
[80] A qualified plumber who was engaged by the Respondent to undertake work on the Applicant’s house during the construction phrase.
[81] The Respondent’s brother who for a period co-ordinated the construction phase of the Applicant’s house while the Respondent was ill in hospital.
[82] The Tiler engaged by the Respondent to lay the tiles in the Applicant’s house.
[83] Exhibits 17 and 18 at page 18.
[84] This point was never part of the Applicant’s application.
[85] Referred to in these reasons as the Pergola.
[86] Exhibits 17 and 18 at page 19.
[87] Exhibits 18 and 18 at page 19.
[88] Exhibits 17 and 18 at page 19.
[89] Respondent’s Statement filed with the Tribunal on 25/02/2017 at Document ‘G’.
[90] Transcript of Proceedings at page 2-45, lines 10 – 34.
[91] Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64.
[92] Addis v Gramophone Co Ltd [1909] AC 488.
[93] Robinson v Harman (1848) 154 ER 363 at 365.
[94] Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 86.
[95] Exhibit 11. Quote from Rowsey’s Plumbing & Gas dated 29/06/2016.