Canavan v Sutton[2020] QCAT 374

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicant Sharon Canavan filed an application for a domestic building dispute on 27 February 2019. The applicant filed an amended application on 28 October 2019. Ms Canavan seeks an award for damages and interest on damages and costs.
2. [2]
   The claim is made against the respondent Mr Sutton.
3. [3]
   No party has requested an oral hearing. The matter will be determined on the papers.
4. [4]
   I have referred to:

   1. (a)
      the amended application filed 28 October 2019;
   2. (b)
      Mr Sutton’s response filed 8 November 2019;
   3. (c)
      Mr Sutton’s response filed 28 April 2020;
   4. (d)
      statement of Sharon Canavan filed 13 August 2019 together with exhibits SLC1-SLC 10;
   5. (e)
      statement of Shane Matthew James Sutton filed 13 August 2019;
   6. (f)
      statement of Simon Dibb filed 13 August 2019;
   7. (g)
      email from Mr Sutton to QCAT, QBCC and Sharon Canavan dated 7 August 2019, attaching Form 15 Engineering Certificate, Drawings and the original quotation to Sharon Canavan, noted as filed on 7 August 2019.
5. [5]
   The material filed in the Tribunal reveals the following facts.
6. [6]
   On letterhead bearing the name East Coast Shades, Mr Sutton signed a written quote to Ms Canavan to supply and install shade structures at her home. East Coast Shades is not a registered business name. The quote dated 17 November 2017 covered a range of options and prices for the type of shade structures which could be installed. The quote records Mr Sutton’s Licence Number 703087.
7. [7]
   There is no reference to the company EC Shades Australia Pty Ltd on the quote.
8. [8]
   EC Shades Australia Pty Ltd is the holder of a QBCC Licence no 15109793. However, that licence only commenced on 11 February 2019, after the subject work was completed. Mr Sutton is that company’s nominee. He is a Director of that company.
9. [9]
   Mr Sutton held a Builder Licence restricted to special structures; at the time the works were performed. The condition on the licence is that it is restricted to Shade Sails.
10. [10]
    Because of the way the quote is presented and signed it is a reasonable inference that Mr Sutton was carrying on business under the name or style of East Coast Shades.
11. [11]
    On an unknown date an agent for Ms Canavan, her partner Mr Dibb, verbally agreed with Mr Sutton to accept the quotation for:

The supply and installation of two custom made shade sails fabricated using Protex Parasol in steel grey with approximate measurements 6700mm x 5000mm and 8000mm x 2800mm attached to:

4 x 125 x125 fully powder coated posts at 3500mm high;

attached to the timber fascia using aluminium box section and sail track powder coated in white;

for a price of $8,800.00.

12. [12]
    During the meeting between Mr Dibb and Mr Sutton the materials to be used in the work were agreed to be varied to substitute 4 x 125 x125 mm posts with 75mm x75mm x 6 mm thick steel posts. It is asserted by Ms Canavan that this agreement was reached in reliance upon Mr Sutton’s confirmation that the new posts were structurally sound. Mr Sutton has not disputed the assertion. No explanation is given by either party as to why the posts were agreed to be changed to a smaller dimensioned post.
13. [13]
    It was agreed that one of those 4 posts was to be installed within the pool area on the site; and that the steel posts supplied and installed were to protrude above the deck on the site, by 2500mm (x2) and 3600mm (x 2).
14. [14]
    It is asserted by Ms Canavan that Mr Sutton warranted the shade structures constructed by him were “compliant with engineering standards”. Mr Sutton does not deny this assertion. I will discuss later the Engineering drawing and Form 15 certification obtained by Mr Sutton in relation to the shade structure.
15. [15]
    The work was completed on 30 April 2018. The full quoted price has been paid.
16. [16]
    Ms Canavan alleges that the works as constructed were defective because the 75mm x 75mm steel posts supplied and installed by Mr Sutton:

    1. (a)
       were not structurally sound, as Mr Sutton had confirmed;
    2. (b)
       were 5mm thick not 6 mm thick steel, as agreed;
    3. (c)
       were not constructed so as to protrude 2500mm and 3600mm out of the ground as agreed; and
    4. (d)
       buckled after the construction was complete.
17. [17]
    On 30 April 2018 Mr Sutton returned to the site and undertook the following rectification work:

    1. (a)
       replacement of the centre post in front of the deck (which held both sails) with a 125 mm x 125 mm post; and
    2. (b)
       poured bagged cement mixed with water and one piece of reinforcing steel inside the remaining 3 x 75mm x 75mm x5mm steel posts.
18. [18]
    It is alleged the rectification was defective or not effective in rectifying the defective building work.
19. [19]
    On 3 September 2018 the Queensland Building and Construction Commission (QBCC) inspected the work and provided a report dated 11 December 2018.^[1]On 12 October 2018, Cornell Engineers, instructed by the QBCC conducted an inspection of the works and provided a report dated 11 December 2018.^[2]
20. [20]
    As a result of these inspections and reports the QBCC determined that:

    1. (a)
       the expected combined loads at the site exceed the capacity of the 3 x 75mm x75mm x5 mm steel posts and they are inadequate and deemed a structural defect;
    2. (b)
       the shade sail structure as constructed:

       1. (i)does not meet the Building Code of Australia Performance Requirements or acceptable building practice; and
       2. (ii)is not fit for purpose in that inadequate and undersized posts have been provided, compromising the structural integrity;
    3. (c)
       the concrete footing to all of the steel posts has not been finished at least 50mm above the ground or sloped to shed water away from the base of the powder coated steel post; and
    4. (d)
       soil is in direct contact with the base of each steel post;
    5. (e)
       the steel manufacturers specify that the surface of concrete footings is to finish at least 50mm above the ground; and
    6. (f)
       the installation of the steel columns to the shade sail structure has not been completed in accordance with the manufacturer’s specifications or acceptable building practice in that the concrete footings have not been finished above ground level or been sloped to shed water creating conditions conducive to corrosion.
21. [21]
    On 12 December 2018 the QBCC issued Mr Sutton a Direction to Rectify the following work:

    1. (a)
       the construction of the shade sail structure at the rear of the dwelling does not meet the Building Code of Australia Performance Requirements or acceptable building practice and is not fit for purpose in that inadequate and undersized metal posts have been provided compromising the structural integrity; and
    2. (b)
       the installation of the steel posts to the shade sail structure at the rear of the dwelling has not been completed in accordance with manufacturer’s specifications or acceptable building practice in that the concrete footings have not been finished above ground or been sloped to shed water, creating conditions conducive to corrosion.
22. [22]
    Mr Sutton has not complied with the Direction.
23. [23]
    Ms Canavan has obtained a quote dated 26 May 2019 for the cost of rectification^[3]. Mr Shane Sutton, a licensed building contractor, has quoted to perform the following rectification work:

    1. (a)
       removal of 3 x 75mm x75mm undersized posts;
    2. (b)
       reinstate 3 x 125mm x 125mm x 6 mm posts, reusing existing stainless eyelets for connection of shade sail to top of 3 new posts;
24. [24]
    The quote includes all concrete, machinery, materials and labour. Electrical, plumbing and supply of and installation of shade sail is excluded.
25. [25]
    The amount of the quote is $9690.17, inclusive of GST.
26. [26]
    Mr Sutton disputes the allegations of defective work in both filed responses. The first response sets out:

    1. (a)
       a proposal by Mr Sutton to rectify and replace 3 x 75mm x 75mm posts with 125mm x 125 mm posts;
    2. (b)
       an agreement to deliver the posts and pay the cost of another contractor replacing the posts in accordance with the QBCC directions.
    3. (c)
       that he has replaced one post which was deflecting.
    4. (d)
       that he and his employees will never set foot on Ms Canavan’s property, because of verbal abuse and a male friend of Ms Canavan assaulting him and his son, resulting in Mr Sutton being admitted to hospital with a broken elbow.
    5. (e)
       that Ms Canavan has not given him an opportunity to rectify the works.
27. [27]
    In his response to the amended application Mr Sutton has continued to dispute Ms Canavan’s allegations. He attached:

    1. (a)
       an email to Ms Canavan dated 16 September 2019:

       1. (i)stating that the quote from Matthew Sutton to remove and replace 3 posts is more than the original cost of fabrication and installation of the shade sails;
       2. (ii)noting that the difference in cost for new posts is only a matter of a few hundred dollars;
       3. (iii)making an open offer to pay the sum of $2,500.00, comprised as to:

• $600.00 for the costs of a small excavator to remove old posts and concrete and excavate new footings calculated at 6 hours x $100.00 per hour;
• $280.00 for the cost of one cubic metre of redi mix concrete based on footing of 450 diameter x 1500 deep x 3;
• $1,200.00 for the labour of 2 men at $80.00 per hour x 8 hours;
• A further amount of $420.00;

4. (iv)
   noting that the direction to rectify was to himself, but due to past confrontation he is not to come onto the site;
5. (v)
   noting that he has obtained at his own cost an engineer’s drawing and Form 15 for the work.

2. (b)
   An email from the QBCC dated 10 January 2020 advising that no further action will be taken in the matter and subject to any response a warning notice only will be issued.

28. [28]
    I have referred to the Shade Structure layout plan, post and footing detail, specifications as to footings construction notes, re-inforcement placement, structural steelwork and shade structure installation notes, prepared by Graeme Moulston & Associates Engineering Pty Ltd dated 25 July 2019. I note that the Shade Structure Layout Plan shows as existing - three 75mm x 75mm x 500 SHS Posts, labelled A,B and C. I have also referred to the Form 15 compliance certificate for building design or specification, certified by Graeme Moulston & Associates Engineering Pty Ltd, dated 25 July 2019.
29. [29]
    The Shade Structure layout plan dated 25 July 2019 bears a note: “To Stiffen up Posts A, B & C Insert 14mm Dia. Rod Centrally. The full length of posts Fill with 25 MPa Concrete.” That is the rectification work performed by Mr Sutton and which is alleged to have been defective or not effective.
30. [30]
    The Graeme Moulston drawings are accompanied by a disclaimer to the effect that the information is indicative only and does not infer any shade sail structure constructed in accordance with these drawings is structurally adequate. To ensure any shade sail structure is adequate it must be design checked by Graeme Moulston & Associates Engineering Pty Ltd and a structural certification (Form 15 or equivalent) issued. The disclaimer provides that any certification does not relieve the shade sail installer of his/her responsibility to ensure the works are carried out with reasonable care, skill and diligence. A Form 15 certification has been given by Graeme Moulston & Associates Engineering Pty Ltd that the shade sail structure is considered to be structurally adequate and compliant with the Building Code of Australia. That certification is in contrast to the views expressed by the QBCC and Cornell Engineering.

Legal basis for Ms Canavan’s claim

31. [31]
    The quote sets out terms of trade, noting East Coast Shades as the supplier of goods and services. The terms purport to limit liability for any faults in goods supplied or in workmanship. Despite the way in which the terms of trade are cast I think that the substance of the agreement between the parties is for the supply of building services and that the provision of materials is an incident of the building work to be performed. Accordingly, I do not intend to consider the Sale of Goods Act 1896 (Qld) as relevant to the agreement between the parties.
32. [32]
    The proceeding relates to a domestic building dispute.^[4] I note that there has been compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act)^[5]and that this Tribunal has jurisdiction to decide the dispute, including by an award of damages and interest.^[6]
33. [33]
    By s 6 of the QBCC Act the contract between the parties is a level 1 regulated contract. By s 13 of the QBCC Act the contract only has effect if it is in writing, dated and signed by or on behalf of the parties.
34. [34]
    Because the quote was accepted verbally and no written document comprising the contract was signed by the parties, the contract in this case is of no effect. A contract that is of no effect is not enforceable. Accordingly, Ms Canavan cannot maintain a claim for damages for breach of contract.
35. [35]
    However, the claim is cast broadly as a claim for damages. Ms Canavan’s statement and material filed in the Tribunal refers to defective work. On this basis she has sufficiently raised a claim for damages for defective work which was negligently performed.^[7]An analysis of whether Mr Sutton is liable for damages for defective work negligently performed must be undertaken within the framework of the Civil Liability Act 2003 (Qld) (CLA) and to the extent that it is not modified, the common law.

Defective Work

36. [36]
    Mr Sutton has not expressly addressed the findings of the QBCC and its engineer. However, he has filed in the Tribunal the Graeme Moulston & Associates Engineering Pty Ltd drawings and certification, which I take to be an assertion that the work as rectified was not defective.
37. [37]
    The QBCC with the assistance of Cornell Engineering has concluded that the shade sail structure does not meet the Building Code of Australia Performance Requirements (Building Code of Australia 2015 Volume 2 F2.1(a) and P2.1.1(a) and (b)). Cornell Engineering has assessed that the three 75mm x 5 SHS posts are insufficient to withstand the combined loads of the original force imposed onto the top of the column from tensioning of the shade sail wires, and the additional force induced by catenary action from ultimate wind loads. The posts are currently designed to cantilever from the heavy concrete base to support the shade sail through bending of the column. Cornell Engineering say that the capacity of the columns in bending is deemed insufficient to withstand these combined loads.
38. [38]
    Cornell Engineers in their report to the QBCC dated 11 December 2018 have assumed that the rectification work, undertaken by filling the three posts with concrete, does not have any benefits and is excluded from the strength and serviceability analysis of the posts. It is said that while the technique has been known to be used to increase axial strength, there are no allowances within the current Australian Standards that allow increased column bending capacity when filled with concrete. There is also said to be insufficient data outside of the Australian Standards to determine whether filling the column with concrete achieves anything for increasing the bending strength.
39. [39]
    QBCC and Cornell Engineering did not have the Graeme Moulston drawings and Form 15 when they prepared their reports.
40. [40]
    In light of the Form 15 I am unable to accept that the posts as rectified are defective. I consider that the Form 15 has considerable weight. It is an important document because it is purportedly given by a competent person and as such a building certifier is entitled to accept the certificate without further checking and to rely on it.^[8]Ms Canavan has not filed any statement addressing the contents of the Form 15 or giving any good reason to go behind the certificate.
41. [41]
    I note that there is no evidence the posts as rectified have failed.
42. [42]
    Mr Sutton has not addressed the issue of the concrete footings for the posts not being finished above the ground or sloping away from the post. I accept the evidence in the QBCC report in relation to this aspect of the work and find that it is defective.

Elements of a claim in negligence

43. [43]
    To establish an entitlement to damages for negligent building work, the following elements must be present:

    1. (a)
       a duty of care owed by Mr Sutton to Ms Canavan;
    2. (b)
       that the duty of care was breached;^[9]and
    3. (c)
       damage which is not too remote has been suffered by Ms Canavan as a consequence.^[10]
44. [44]
    The relationship of professional licensed builder to a homeowner client is an established category of relationship where a duty of care is owed. That is because it is reasonably foreseeable that if care is not taken by the builder the client is likely to suffer loss and damage. The owner of a house, in the absence of evidence to the contrary, may be assumed to rely on a professional builder to carry out the work with care and skill and the builder generally accepts the responsibility arising from that reliance.^[11]
45. [45]
    I find that Mr Sutton owed a duty of care to Ms Canavan to avoid harm^[12] to her by performing the agreed work in compliance with all relevant laws and legal requirements, with all reasonable care and skill, and supplying materials which are suitable for the purpose for which they are used. These are the warranties implied into the contract between the parties by sections 20, 21 and 22 of Schedule 1B of the QBCC Act. Those warranties provide the scope of the duty of care owed by Mr Sutton to Ms Canavan.
46. [46]
    I have found that the rectified posts are not defective work. The only defective work is failure to mound up the concrete footings on the columns so as to re-direct water.
47. [47]
    Even if I am wrong and the posts as rectified are defective in accordance with Cornell Engineering’s opinion, I do not consider there has been a breach of Mr Sutton’s duty of care, because in light of the Form 15 certificate, it was not reasonably foreseeable by the standards of a licensed contractor that the three posts (when filled with concrete and reinforcing steel) may be insufficient in size to support the potential load from the force of the tensioned shade sails and from winds; and that cost would be incurred in replacing the posts.^[13]
48. [48]
    However it was reasonably foreseeable by a licensed contractor that failing to comply with manufacturer’s instructions or acceptable building practice by not finishing concrete footings above ground level and sloping the concrete to shed water, would lead to a risk of corrosion and the need to incur cost in correcting the amount of concrete around the columns.
49. [49]
    On this basis I find that Mr Sutton was in breach of his duty of care to Ms Canavan. But for the breach there would be no need to take corrective action in order to preserve the posts from corrosion. The cost associated with corrective action is not too remote to be recoverable. This type of defective work is not what a homeowner should expect from a licensed contractor It is appropriate that Mr Sutton bear responsibility for the loss associated with corrective action.^[14]
50. [50]
    I find that Ms Canavan will incur cost associated with application of more concrete to the base of the three columns and the cost of labour to perform that work.
51. [51]
    I find that the elements of negligence are satisfied with respect to the concrete footings around the three columns.

Damages

52. [52]
    The object of an award of damages in tort is to restore a party such as Ms Canavan to the position she would have been in if the negligently performed building work had not occurred.
53. [53]
    Ms Canavan has not provided any evidence in relation to the cost of performing corrective action in relation to the need for more concrete around the posts.
54. [54]
    Mr Sutton has relied on his experience as a builder to cost the component parts of rectification work as originally claimed by Ms Canavan. He gives a cost for concrete and for labour. His costing was directed to providing new footings for the 3 columns. That extent of work is not needed. Because Mr Sutton is an experienced builder, I accept his evidence as to the cost of materials and labour.
55. [55]
    Doing the best I can with the evidence before me and by reference to matters of common experience, I award Ms Canavan:

    1. (a)
       $280.00 being the cost of one cubic metre of concrete; and
    2. (b)
       $240.00 being the cost of the labour of one man for 3 hours at $80.00 per hour.
56. [56]
    As Ms Canavan has not incurred the cost of corrective work, I decline to award the payment of interest.
57. [57]
    With respect to the claim for costs, there is no submission made to support the claim. I do not consider any ground exists to depart from the usual rule in s 100 of the QCAT Act.

Order

58. [58]
    I order that Paul Bruce Sutton pay to Sharon Canavan the sum of $520.00 within 21 days of the date of this Order.