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Swimsmith Pty Ltd trading as Brisbane Prestige Pools v McMahon[2020] QCAT 471

Swimsmith Pty Ltd trading as Brisbane Prestige Pools v McMahon[2020] QCAT 471

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Swimsmith Pty Ltd trading as Brisbane Prestige Pools v McMahon [2020] QCAT 471

PARTIES:

Swimsmith Pty Ltd trading as brisbane prestige pools

 

(applicant)

 

v

 

Michael (Tony) McMahon

Anne mcmahon

 

(respondents)

APPLICATION NO/S:

BDL330-18

MATTER TYPE:

Building matters

DELIVERED ON:

27 November 2020

HEARING DATE:

28 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

  1. The respondents pay the applicant the sum of $9,844.68 together with interest at the rate of 18% per annum on that amount from 24 January 2018, to the date of payment.
  2. The respondents pay the applicant the sum of $1,050 together with interest at the rate of 18% per annum on that amount from 15 February 2018 to the date of payment.
  3. The applicant pay the respondents $3,300.
  4. Each party to make submissions as to costs within 14 days of the date of receipt of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – minor civil building dispute – whether contractor was entitled to payment – whether owner was entitled to a refund

APPEARANCES & REPRESENTATION:

 

Applicant:

C Ray of Construct Law Group Pty Ltd

Respondent:

E Elrington of Beenleigh Legal

REASONS FOR DECISION

Claim and counterclaim

  1. [1]
    This is a minor civil building dispute.
  2. [2]
    The applicant claims:
    1. (a)
      damages for breach of contract in the sum of $10,894.68;
    2. (b)
      interest under the contract; and
    3. (c)
      costs.[1]
  3. [3]
    In their response to the contractor’s minor civil debt claim, the respondents counterclaimed:
    1. (a)
      $10,500 as a refund of monies paid;
    2. (b)
      $3,310 being the cost of rectifying the damage done when the pool was delivered to site;
    3. (c)
      $250 for a tank of water;
    4. (d)
      $990 legal costs; and
    5. (e)
      $2,371 for preparation costs.[2]
  4. [4]
    At the hearing, with the benefit of legal representation, the respondents counterclaimed:
    1. (a)
      $10,500 as a refund, compensation or damages;
    2. (b)
      $10,894.68 as damages for consequential loss, or in the alternative relief from payment of the amount claimed by the applicant; and
    3. (c)
      costs.[3]

Background

  1. [5]
    Mr and Mrs McMahon (respondents) decided to replace their existing above-ground pool with a plunge pool.  The original pool was 9m x 4.5m x 1.2m with a deep end. 
  2. [6]
    They approached Allcast Precast, a manufacturer of plunge pools, and were referred to a number of suppliers of Allcast Precast’s products. 
  3. [7]
    In October 2017 Mr Geoffrey Smith, a director of Swimsmith Pty Ltd (applicant), visited the respondents’ home in semi-rural Gilston.  Mr Smith took some measurements of the existing deck that had surrounded the above ground pool and the distance to natural ground.  He did not take any measurements in the hole from which the original pool had been removed. 
  4. [8]
    At the site inspection it was agreed that the datum point of the pool should be 300mm above the existing deck. 
  5. [9]
    Mr Smith sent Mr McMahon some standard pool pricing details with an offer to reduce the standard price by $2,500 ‘if [the respondents] don’t take the equipment and put 50mm of 5mm gravel into the existing hole’.[4]
  6. [10]
    On 6 November 2017 Mr McMahon sent an email to the applicant advising that the respondents were ready to proceed and had ‘decided to use [their] own equipment and will put the gravel in the existing hole’.[5]  Arrangements were made for a contract to be prepared. 

The contract

  1. [11]
    On 15 November 2017 the applicant and the respondents signed a contract for the supply and installation of an Allcast Precast 14,000 litre precast concrete plunge pool including 600mm tiling to the outside of the pool, excluding equipment, excavation and gravel (contract).[6]
  2. [12]
    Relevantly, the terms of the contract were:
    1. (a)
      the contract price (including GST) was $21,000;
    2. (b)
      the contract price was to be paid in stages:
      1. $1,050 deposit;
      2. $9,450 when the pool layout was lodged with Allcast Precast;
      3. $9,450 on delivery of plunge pool; and
      4. $1,050 on practical completion.
    1. (b)
      the contract price excluded excavation and gravel (Schedule 6);
    2. (c)
      the anticipated start date was 9 January 2018;
    3. (d)
      subject to clause 8, the building period was 2 days;
    4. (e)
      the works were described in detail in the attached plans and specifications;
    5. (f)
      GC2 dealt with payment.  It required progress payments to be made within 7 days of receipt of each progress claim.
    6. (g)
      GC 3 dealt with access.  It required the owner to give the contractor unrestricted access to the site to finalise the works and, if necessary, to fix any defects.
    7. (h)
      GC 4 dealt with the contractor’s right to fix.  It gave the owner the right to notify the contractor of defects and, if the contractor accepted responsibility for the defects, gave the contractor 28 days to fix the defects.  The owner was required to give the contractor access to fix the defects.
    8. (i)
      GC 11 dealt with work by the owner.  It required the owner to have the site ready when required by the contractor. 
    9. (j)
      GC 12 dealt with practical completion.  It required the contractor to reach practical completion by the end of the building period.  When the contractor believed the works were completed it was required to give the owner:
      1. a defects document listing minor defects and omissions;
      2. a notice of practical completion; and
      3. the final claim.

The owner was required to pay within 7 days of receipt of the final claim.

  1. (k)
    GC 15 dealt with risk.  All materials were at the owner’s risk on delivery to site.
  2. (l)
    GC 17 excluded items identified in Schedule 6 from the works to be performed by the contractor.
  3. (m)
    GC 19 set out the order of precedence of the contract documents, being:
    1. special conditions;
    2. general conditions;
    3. plans, and
    4. specifications. 
  4. (n)
    GC 20 required the owner to pay the contractor default interest at 18% per annum from the day the amount fell due to the day the amount was paid.
  5. (o)
    GC 21 required the owner to reimburse the contractor for debt collecting costs paid to recover, or attempt to recover, any overdue payment. 
  6. (p)
    GC 30 restated the statutory warranties required by the Queensland Building and Construction Commission Act 1991 (Qld), which include:
    1. the works will be carried out with reasonable care and skill; and
    2. the works will be carried out in accordance with the plans and specifications.
  1. [13]
    The contract included drawings regarding typical plunge pool details and installation requirements.  Drawing S02:
    1. (a)
      contained a general note regarding foundations which required:
      1. striping of topsoil prior to placement of a gravel base;
      2. placement of backfill in free draining layers of no more than 300mm;
      3. placement of the base a minimum of 200mm below competent natural ground;
      4. contact with the engineers where suitable bearing capacity was not achieved.
    2. (b)
      depicted the pool base resting on a minimum 50mm thick gravel base (for highly reactive soils 100mm thick gravel was required), which in turn sat on a competent natural subgrade. 
  2. [14]
    The pool layout form included in the contract documents recorded ‘N/A’ in the line ‘crane required’.
  3. [15]
    The deposit was paid on 17 November 2017. 

Delivery

  1. [16]
    On 8 January 2018, having put gravel in the hole, [7] Mr McMahon made contact with the applicant in regard to installation.  He advised that ‘the 10mm (sic) gravel is in and last week it was a little wet under foot after the spate of afternoon thunderstorms.’[8]
  2. [17]
    The pool was delivered to site on 9 January 2018.  Mrs McMahon was at home and Mr McMahon was at work.  Mr Smith was present. 
  3. [18]
    There are two driveways which could have been used to access the position from which the pool was to be unloaded from the truck – a gravel driveway and a dirt driveway.  The dispute between the parties about whether or not the gravel driveway was to have been used need not be resolved as the truck driver decided which route to take.[9]  He drove the truck down the dirt driveway[10] , onto the lawn and got bogged.[11] 
  4. [19]
    The pool was taken off the truck using the lifting equipment on the truck (which included spreader bars) to lighten the load, to no avail.  The truck remained bogged. 
  5. [20]
    The truckdriver called his boss, Mr Bissett.  Mr Bissett told him that it was fine to place the pool on the grass.[12]  In cross-examination Mr Bissett said he was aware that the pool had been loaded and unloaded from the truck more than once on 9 January.  He denied that this would have contributed to the problems that later emerged, as the pool is designed to be lifted a number of times during the manufacturing process.  He said that the ground on which the pool was placed when unloaded from the truck had to be flat, but not level.  From photographs taken by Mrs McMahon it appears that the pool was placed on flat, but not level grass.[13]
  6. [21]
    Mr Smith arranged for an excavator to come to get the truck out of the bog.  As seen in photographs taken by Mrs McMahon, considerable damage was done to the lawn by both the excavator and the truck. [14]  Mr Smith stated that the damage was repaired on the day.[15]  Mrs McMahon denies this.[16]  If any repairs were done, they did not meet with approval from Mr McMahon.[17]

Installation

  1. [22]
    Mr Smith arranged for Davo’s Cranes to lift the pool from the grass to its final position.  During the course of the proceedings much was made regarding which party should bear the costs of the crane hire, which was $866.25.  The crane hire charge was included by Dun & Bradstreet when it sent an email in an attempt to collect the debt on 27 March 2018.[18]  However, the applicant did not claim the cost in the originating application for minor civil dispute – minor debt form.[19]  Nor was it included in the final claim advanced at the hearing.[20]  Accordingly, there is no question that the applicant bears those costs. 
  2. [23]
    Neither Mr nor Mrs McMahon was home on 17 January 2018, the day the pool was installed. 
  3. [24]
    Mr Smith stated that he carried out the following steps:
    1. (a)
      set a laser level and marked heights and levels;
    2. (b)
      spray painted the locations used to check for levels with blue paint (as shown in photograph GS-1 to Exhibit 8);
    3. (c)
      screeded the gravel to be level and true; and
    4. (d)
      checked the level using a spirit level.[21]
  4. [25]
    The pool was lifted and placed into position by a crane using a spreader bar and soft slings in accordance with the manufacturer’s instructions.[22]  During the course of the proceedings Mr McMahon expressed concern that a spreader bar had not been used during the lift.[23]  However, he was not there on the day so cannot know what was done.  I have the benefit of a statement from Mr Davis, general manager of Davo’s Crane Hire who described what was done to move the pool from the grass into position.  I also have a photograph which clearly shows a spreader bar was used.[24]
  5. [26]
    Mr Smith stated that the pool was level at the time of installation.[25]  He provided a photograph of ‘the level screed… at the time of installation’.[26]  Mr McMahon stated that the photograph was a fake.[27]  I apprehend his meaning was not that the photograph itself was a fake, as it is a photograph of a spirit level resting on gravel, but rather that it was not taken at the McMahon property on 17 January 2018.  Other than the inserted words ‘McMahon install 17.01.18’, which Mr Smith said were added by his wife when the photo was saved to the server, there is nothing on the face of the photo from which I can be certain that the photo is what it purports to be. 
  6. [27]
    Mr Smith stated that it is his usual practice to take a photograph of the levels of every job and have it saved to the server.  He stated that in preparing for these proceedings he printed out a number of documents, including the photograph.[28]
  7. [28]
    Mr Smith stated that he no longer has access to the original photo as the Swimsmith server crashed.[29]  He produced a letter from DN Computer Services that stated ‘that on 27th September 2019, a hard drive that was contained within a NAS server that was owned by Swimsmith Pty Ltd was presented to DN Computer Services …it was concluded that the drive was …damaged beyond repair and that no data was retrievable.…’[30] 
  8. [29]
    Even if the photograph is what it purports to be, it does no more than show that the ground under the spirit level was level.  At its highest it is a contemporaneous document that gives some support to Mr Smith’s statement that the ground on which the pool was placed was level.  As it later emerged in evidence, it might have been the case that the top layer of gravel was level.  The real problem was the substrate below the gravel top layer. 
  9. [30]
    Mr Smith states that after the pool was placed, he:
    1. (a)
      checked and confirmed the pool was level on two sides;
    2. (b)
      removed the clutch points and disengaged the crane; and
    3. (c)
      plumbed the pool.[31]
  10. [31]
    Mr Smith provided a photograph of ‘the level over pool at the time of installation’.[32]  Mr McMahon also takes issue regarding whether the photograph was taken at his site.[33]  Mr McMahon points out that there are no distinguishing features that would enable a viewer of this black and white copy of the photograph to be confident it is truly a photograph taken by Mr Smith on 17 January 2018. 
  11. [32]
    Again, even if the photograph is what it purports to be, it does no more than show that the spirit level is sitting on a level surface.  At its highest it is a contemporaneous document that gives some support to Mr Smith’s statement that, at a point in time before the pool was filled with water, the pool was installed level. 
  12. [33]
    After plumbing the pool, Mr Smith received a call from his mother advising that his father was being taken to hospital.[34]  He stated that he called Mr McMahon and told him that the pool was in, that his father was being taken to hospital with a suspected stroke, that he’d put the hose in to start filling the pool and that he would come back at a later date to finish.[35]  In cross-examination Mr McMahon denied receiving that call. 
  13. [34]
    Mr Smith sent a text message to Mr McMahon at 11:52am on 17 January 2018 reading ‘all done and left filling.’[36] 
  14. [35]
    Whether the call occurred or not, there is no doubt that the respondents knew that Mr Smith had left the site, leaving the tank water filling the pool. 
  15. [36]
    The applicant issued invoice 329 for $9,844.68[37] on 17 January 2018.[38]

Post-installation

  1. [37]
    The next morning Mr and Mrs McMahon inspected the work.  Mr McMahon sent an email to Mr Smith advising:

when we got home last night water was running out of the discharge pipe from the filter and the water level had gone down below the skimmer box.  Looks like the filter was on rinse mode.  I have stemmed the flow and refilled the pool back above the skimmer box.[39]

  1. [38]
    He also enquired about ‘water seepage out of the concrete.’[40]
  2. [39]
    Mr Smith responded by email less than 20 minutes later.  He wrote:

I have spoken to Jarrod from Allcast Precast and he advised that the floor would have flexed probably due to transportation and then had 14 tonne of water installed.  There is 90% chance that it will correct itself over the next week if you add 2 kgs of calcium which was supplied in an 8 kg bag (Hardness Increaser) and then monitor it for the next week.  If this doesn’t rectify the issue ourselves and Allcast Precast will rectify the issue ….[41]

  1. [40]
    Four days later, on 22 January 2018 at 8:42am, Mr McMahon sent an email to Mr Smith advising:

I have attached some updated photos of the current water seepage (FYI), I have added the extra chemicals as you had suggested on Saturday.  You are correct that the pool isn’t level and would this be having any effect with the seepage and could it be coming from underneath the base where we can’t see the cracks? 

If the seepage is going to be a continual problem I would prefer to have the pool replaced with a new solid structure… [42]

  1. [41]
    Mr McMahon took photographs which showed that the pool was not level.  On one side the water level was seven tiles from the top[43] while on the other it was eight tiles from the top.[44]
  2. [42]
    Mr Smith responded by email at 2:28pm that day.  If he disagreed with the comment that the pool wasn’t level, he did not say so in his response.  He wrote:

In response to each of the items below:

  1. Your photos illustrate that the calcification process has started and we expect that no further seepage will occur after 1-2 weeks of the pool settling.
  2. The leak from the joint in the pipework is an easy fix and one we can arrange to be corrected this weekend.
  3. …

On behalf of Brisbane Prestige Plunge Pools and the manufacturer Allcast Precast we would like to offer you a $3,000 discount (incl GST) on your pool to cover both the inconvenience and also the damage to your lawn, no charge for the crane hire…and an extended Allcast Precast structural warranty on your pool from 5 to 7 years which will fully cover any further issues….[45]

  1. [43]
    Mr McMahon responded by email at 4:58pm that day.  He wrote:

I’ll monitor the pool over the next 2 weeks and then we will be better informed before we make our final decision.[46] 

  1. [44]
    About an hour later Mr Smith emailed Mr McMahon a certificate on practical completion which listed the leaking suction line and seepage from the pool shell as minor defects.[47]  In that email he indicated that he would be on site on Friday (26 January) to repair the leaking suction line. 
  2. [45]
    On Friday 26 January 2018 Mr Smith sent Mr McMahon a text message, advising:

I’ve decided that I want to put the Liquid leak sealer in as well as the calcium.  It looks like it’s improving, however I want to guarantee it’s fixed and give you peace of mind.  Saying that I can’t get any leak sealer until tomorrow so I will let you know in the morning when I’m on my way.[48] 

  1. [46]
    About 45 minutes later Mr McMahon responded by text, saying:

No need to come tomorrow.  We have had a discussion and decided we don’t want a patch up pool.  Can you arrange a structurally sound replacement before the end of February.[49] 

Notice to remedy

  1. [47]
    On 7 February Mr McMahon sent an email to Mr Smith enquiring whether he had been able to confirm a date for the pool replacement.[50] 
  2. [48]
    On 7 February 2018 Mr Bissett telephoned Mr McMahon to try to find out the cause of the problem.[51]  In answer to a question, Mr McMahon told Mr Bissett that the pool was sitting on 100mm of gravel, which was sitting on another 700mm of gravel.[52] 
  3. [49]
    Mr McMahon stated that he spoke to Mr Bissett while he was busy at work.  He said that he told Mr Bissett that there could have been 700mm of gravel in the hole, but that was a guesstimate.[53] 
  4. [50]
    Mr Bissett of Allcast Precast sent an email on 7 February 2018.  He wrote:

I would like to come down to your property…next Thursday to do an inspection…Our pools are water tested to 300mm prior to dispatch…the stressing of this unit has obviously occurred on site. 

This could have occurred:

  1. When the pool was placed down on the grass…
  2. More likely when placed and filled with water on the 700-800mm of gravel below the tank.

Our site prep sheets outline that the pools are to sit on a 75mm layer of 10mm screeded gravel above natural excavated ground.

Thick layers of gravel below such as 700mm will cause uneven settlement and stressing the pool.

…[54]

  1. [51]
    Mr Bissett attached a copy of a site preparation and delivery sheet to his email.[55]  Mr McMahon stated that this was the first time that the sheet had been brought to his attention.[56]
  2. [52]
    Mr McMahon responded by email the following morning.  He made no mention that he had not previously seen the site preparation sheet.  He wrote:

Thanks for your kind offer of repair however we have decided that it is probably best not to proceed any further.

Can you arrange a full refund plus $3300 incl GST to cover the cost of restoration to our property from the damage incurred by your delivery truck.[57]

  1. [53]
    On 8 February 2018 Mr Smith sent Mr McMahon an email attaching a notice of breach and invoice 350 for $1,050.[58]  He wrote:

Allcast Precast have come to the conclusion that the damage to the pool was likely caused by the substrate, which was inadequately prepared by yourself.  We also wish to confirm that you have refused both the manufacturer and ourselves to visit the site to determine the reason for the leak and / or make repairs to the pool which we are entitled to under the contract.[59]

QBCC involvement

  1. [54]
    On 19 February 2018 the respondents referred the dispute to the QBCC. 
  2. [55]
    By letter dated 21 February 2018 the QBCC advised:

QBCC is therefore unable to assist you further with this matter and no further action will be taken by Resolution Services in relation to this dispute.[60]

The applicant terminated the contract

  1. [56]
    On 1 March 2018 the applicant wrote a letter to the respondents endorsed ‘without prejudice’.  In the first paragraph of the letter the applicant gave notice under clause 27.2 of the contract that it had terminated the contract on the basis of the respondents’ failure to remedy the breach, ie. the respondents’ failure to pay within 14 days. 
  2. [57]
    The letter went on to make an offer to settle for $7,894.68, making no claim for interest, if payment was made in seven days.  Finally, the letter warned that if the offer was not accepted the applicant would pursue its full claim, plus crane hire and interest and debt collection costs.[61] 
  3. [58]
    The solicitor for the applicant submitted that the letter, written at a time when the applicant was not legally represented, should be regarded as operating on dual bases:
    1. (a)
      first, terminating the contract, and
    2. (b)
      second, offering to settle.[62] 

Respondents’ demand for payment

  1. [59]
    The respondents engaged lawyers.  By letter dated 19 March the respondents’ lawyers wrote to the applicant advising that as the applicant was in breach of the contract at the time of purported termination, the termination constituted repudiation.  The alleged repudiation was not accepted; the respondents’ rights were reserved. 
  2. [60]
    The alleged breaches of contract by the applicant were said to be:
    1. (a)
      the pool was faulty; or alternatively
    2. (b)
      the pool was damaged by the applicant during delivery and installation; and
    3. (c)
      damage to the lawn.
  3. [61]
    For the reasons set out below I find that:
    1. (a)
      the pool was not faulty when it was delivered;
    2. (b)
      the spalling damage that occurred to the pool was a remediable defect; and
    3. (c)
      the damage to the lawn was remediable. 
  4. [62]
    Accordingly, I accept the applicant’s submissions [63] that it was not in breach at the time it terminated.  The applicant was prepared to rectify the defects identified by the respondents, but contrary to the requirements of GC 4.3 the respondents refused to give it access to do so.  I find that the applicant validly terminated the contract on 1 March 2018.
  5. [63]
    The respondents demanded payment of $14,350 calculated as follows:
    1. (a)
      refund of money paid to date;
    2. (b)
      costs of repairing the lawn;
    3. (c)
      respondents’ time, and
    4. (d)
      legal costs to date.[64] 

Debt collection

  1. [64]
    The applicant referred the outstanding account of $11,760.93 to Dun & Bradstreet for collection.[65] 
  2. [65]
    The respondents responded by advising that they were compiling an application to be lodged with QCAT.[66]

Proceedings in QCAT

  1. [66]
    In fact, it was the applicant who commenced proceedings in QCAT, on 29 August 2018, claiming:
    1. (a)
      damages for breach of contract in the sum of $10,894.68;
    2. (b)
      interest; and
    3. (c)
      costs.[67]
  2. [67]
    On 26 September 2018 the respondents filed a response to the claim.  They stated that:

the pool is not fit for purpose, unsafe, structurally unsound, defective and a dangerous risk for young grandchildren to swim in.[68]

  1. [68]
    They counterclaimed:
    1. (a)
      $10,500 as a refund of monies paid;
    2. (b)
      $3,310 being the cost of rectifying the damage done when the pool was delivered to site;
    3. (c)
      $250 for a tank of water;
    4. (d)
      $990 legal costs; and
    5. (e)
      $2,371 for preparation costs.[69]
  2. [69]
    The matter came before me on 28 October 2020. 
  3. [70]
    At the hearing the applicant relied on evidence from:
    1. (a)
      Mr Smith;
    2. (b)
      Mr Bissett, a director of Bissett Company Pty Ltd, trading as Allcast Precast.  Mr Bissett holds a degree in civil engineering;[70]
    3. (c)
      Mr Taylor, who is a registered professional engineer;[71] and
    4. (d)
      Mr Davis, general manager of Davo’s Cranes.[72]
  4. [71]
    At the hearing each of the respondents gave evidence.  While they provided voluminous material in support of their defence and counterclaims the respondents did not produce any expert evidence in support of their claims that the pool was unsafe or structurally unsound. 

Applicant’s damages claim

  1. [72]
    I find that pursuant to GC 2.1 the applicant was entitled to issue invoice 329 on delivery of the pool.  The invoice was issued on 17 January 2018.  Pursuant to GC 2.3 the respondents were obliged to pay the applicant $9,844.68 on 24 January 2018.  They have not paid.  Accordingly, the applicant is entitled to that sum as damages for breach of contract.  Pursuant to GC 20 the applicant is also entitled to default interest, at the rate of 18% per annum, on that amount from 24 January 2018 to the date of payment. 
  2. [73]
    The applicant issued invoice 350 for $1,050 on 8 February 2018 for the practical completion stage.  The certificate acknowledged the existence of defects.  Pursuant to GC 4 the applicant had made arrangements to remedy those defects.  Contrary to their obligation to provide access within 28 days, the respondents denied Mr Smith access.  Pursuant to GC 2.3 the respondents were obliged to pay the applicant $1,050 on 15 February 2018.  They have not paid.  Accordingly, the applicant is entitled to that sum as damages for breach of contract.  Pursuant to GC 20 the applicant is also entitled to default interest, at the rate of 18% per annum, on that amount from 15 February 2018 to the date of payment. 

Respondents’ counterclaim

Was the pool defective?

Cracks

  1. [74]
    The respondents state that the day after the pool was installed, they noticed ‘various defects, 5 large cracks and damage to the pool’.[73]  They provided photographs showing the cracks and water seepage.[74] 
  2. [75]
    Over time Mr Smith advanced a number of possible causes for the cracking.  First, he suggested that the floor may have flexed due to transportation and having 14 tonne of water installed.  He suggested that the cracks would correct over time if 2 kgs of calcium were added.[75]
  3. [76]
    Mr McMahon believes that the cracks were caused by:
    1. (a)
      the number of times the pool was unloaded and reloaded on 9 January 2018;
    2. (b)
      leaving the pool on lawn which was not level;
    3. (c)
      moving the pool from the lawn to the final resting place without a spreader bar;
    4. (d)
      placing the pool on a base that was not level; and
    5. (e)
      the applicant’s failure to backfill the pool.
  4. [77]
    In Mr Bissett’s opinion the most likely cause of the cracks to the pool was the stress caused by placing the pool on 700 to 800mm of gravel.[76]  He stated that he would expect a lot of uneven movement with gravel ranging in depth between 700 and 800mm which could lead to cracking, which would be exacerbated by the weight of the water in the pool when filled.[77]  He thought it unlikely that the pool shell was stressed when it was placed on the lawn.[78]
  5. [78]
    In cross-examination he said that given the pool had been placed on uncontrolled fill and then filled with water, he was not surprised that cracks had appeared within 24 hours. 
  6. [79]
    About 18 months after the pool had been installed, the applicant arranged for Mr Bruce Taylor to inspect the pool and provide an expert opinion for use in these proceedings.[79]  I accept that Mr Taylor has the relevant expertise to express opinions in the matter. 
  7. [80]
    Mr Taylor observed numerous cracks in the outer wall of the pool, all extending upwards from the base of the pool shell to a maximum height of 500mm.  He regarded them as hairline in width.  He opined that some, or parts of them, may penetrate the full width of the wall.[80]  His evidence was that the cracks appeared to be healing autogenously and were not leaking to any extent likely to impact on the pool shell’s suitability for its intended purpose.[81]
  8. [81]
    He observed that the:

placement of that depth of gravel [possibly 700mm] (possibly of uneven depth) as uncontrolled fill (i.e. compaction not known or not supervised by a geotechnical engineer or tested) means that it cannot be relied upon as satisfying the pool design criteria of 50mm of gravel base over competent natural subgrade having a minimum allowable bearing capacity of 100kPa.[82]

  1. [82]
    He concluded that the differential settlement of the subgrade, likely due to poor or no compaction of subgrade and foundation or uneven or inadequate bedding of the pool shell, was a significant contributing factor to the cracking he observed.
  2. [83]
    In cross-examination he opined that placing the pool on the grass, while not optimal, would not have contributed to the damage he saw. 
  3. [84]
    In cross-examination he said that if a pool was filled with water when it was sitting on unevenly compacted gravel, cracks could appear within 24 hours. 
  4. [85]
    While there is some question about the depth of the gravel below the 100mm gravel layer, there is no doubt, given Mr McMahon’s statement that the respondents ‘did not prepare the base of the pool as this is not our skillset, we simply put gravel in the hole as per your instructions….’[83] , that the pool was placed on uncontrolled fill without input from a geotechnical engineer. 
  5. [86]
    Clearly the respondents had not had regard to the installation requirements from contract drawing S02.  The 100mm gravel base was not sitting on competent natural subgrade.  The backfill in the hole had not been placed in free draining layers of no more than 300mm.  No engineer had been consulted to establish that the fill had suitable bearing capacity. 
  6. [87]
    I accept the opinion of the two engineers who gave evidence that the most likely cause of the cracks that appeared within 24 hours of the pool being filled was differential settlement of the uncontrolled fill. 
  7. [88]
    The respondents’ denial of responsibility for the placement of fill[84] is contrary to the terms of the contract.  Pursuant to GC 17 and Schedule 6, excavation and gravel was excluded from the contractor’s work to be performed for the contract price.  Accordingly, I find that the cracks are not a defect in the pool for which the applicant is liable. 
  8. [89]
    The respondents relied on the absence of a signed variation sheet that showed that they agreed to prepare the base of the pool.[85]  This is a misapprehension of the terms of the contract which they made with the applicant.  The consequence of excluding the excavation and gravel from the applicant’s scope of work was that it had to be performed by the respondents.  While it might have been prudent of Mr Smith to enquire about the quality of the fill below the top 100mm of gravel, the applicant had no contractual responsibility to do so. 

Spalling

  1. [90]
    The respondents complain that there was a large chunk and a small chip missing in the base corner of the pool under the location of the pool light and electrical earthing point.  They provided photographs showing the base of the pool with concrete missing.[86]  They drew a comparison between the photographs of the pool after installation and photographs taken when the pool was still on the truck, which is said to show an undamaged base of the pool.[87] 
  2. [91]
    This complaint was not raised in January 2018.  In cross-examination Mr McMahon said that was because at that time his primary concern was the cracking. 
  3. [92]
    Based on the photograph taken by Mr McMahon of the base of the pool from which a chunk is missing,[88] Mr Bissett estimated the missing chunk is 85mm wide x 50mm high x 0-15mm deep at the base.[89]  Mr Bissett opined that the absence of this chunk of concrete does not affect the structural integrity of the pool as the base is the thickest part of the pool.[90] 
  4. [93]
    Mr Taylor described two locations at the base of the pool where he observed local spalling.  Quite properly he observed that it was not possible for him to determine when or how the spalling occurred.[91]  In his opinion, as the spall locations are on the exposed sharp edge of a relatively thick slab base, the spalls would have no impact on the pool shell performance. 
  5. [94]
    Given the photograph of the pool on the back of the truck appears to show the base intact, I find that the chunk of concrete most likely came off the pool during the course of installation.  Had the applicant complied with its obligation to perform the work with reasonable care and skill the pool would not have had a chunk taken out of it. 
  6. [95]
    However, I also find that the spalling was a defect capable of remedy had the respondents given the applicant access as required by GC 3 of the contract.  Accordingly, I find that the spalling is not a defect for which the applicant is liable. 

Summary regarding defects

  1. [96]
    The respondents entered into a contract with the applicant that gave them rights regarding the rectification of defects.  The respondents chose not to avail themselves of those rights.  The respondents also had the benefit of statutory warranties.  However, they did not have the right, either under the contract or under the Queensland Building and Construction Commission Act 1991 (Qld), to demand a replacement pool, or a refund. 
  2. [97]
    Above, I have found that, save in respect of the spalling, the conduct of the applicant was not the reason the defects occurred.  Therefore, even if the respondents had a right to demand a replacement pool, or a refund, they could not have exercised those alleged rights, as on the facts as I have found them it was the respondents’ failure to provide suitable foundations that caused the defects.  Accordingly, I reject the respondents’ claim for a refund.

Was the pool fit for purpose?

  1. [98]
    The purpose of the plunge pool was to swim in. 
  2. [99]
    On 26 January 2018, nine days after the pool was installed, the respondents asked the applicant for a structurally sound replacement pool despite the fact there was no evidence that the pool was not structurally sound.  While there were some leaks, the applicant had clearly indicated its intention to fix the leaks by using various concrete healing products which take time to work.
  3. [100]
    On 8 February 2018 the respondents declined the applicant’s offers to repair the pool.
  4. [101]
    Mr Taylor’s opinion was that the cracks did not impact on the pool shell’s suitability for its intended purpose.[92]  I accept that evidence and find that there was no evidence that the pool was not fit to swim in.
  5. [102]
    The facts that the pool is not level, that there are cracks in the outer shell of the pool, that the pool continues to leak, that there are two areas of spalling at the base of the pool and that the seat has come away from the wall are clear indicators that the pool is not without defect.  However, the existence of those defects does not mean that the pool is not fit for purpose.

Was the pool safe?

  1. [103]
    Mr McMahon stated that he considered the pool to be dangerous and that he feared the possibility of the whole seating area collapsing into the pool.  He noted that there was an electrical earthing point in the vicinity.[93] 
  2. [104]
    The respondents did not provide any expert evidence from either an engineer or an electrician in support of this claim. 
  3. [105]
    Mr Taylor observed that it appeared that the seat had separated from the shell.  In his opinion differential settlement of the pool shell resulted in uneven forces being applied to the pool shell causing the walls to flex relative to the wall alignment causing separation between the shell and the seat.[94] 
  4. [106]
    On the evidence before me I have no basis on which to find that the pool is dangerous.  On the basis of Mr Taylor’s evidence, which I have accepted, if there is any danger from the seat detaching from the wall then this is not as a result of any breach of contract on the part of the applicant. 

Damage done to the lawn when the pool was delivered

  1. [107]
    The respondents claimed $3,300 to repair the damage done to their lawn during delivery and installation.[95]  They provided a quotation from Rivers Property Services.[96] 
  2. [108]
    It is clear from photographs provided by the respondents that substantial damage was done to the lawn when the truck was bogged and, in the efforts, made to get the truck out of the bog.[97]
  3. [109]
    On 22 January 2018, Mr Smith offered the respondents a ‘$3,000 discount’, inter alia to cover the damage to the lawn. [98]
  4. [110]
    Had the applicant carried out its work with reasonable care and skill the truck driver would have assessed the risk of getting bogged and not driven onto the lawn.  Alternatively, having been bogged, the applicant should have properly remedied the damage to the lawn.  Accordingly, the applicant is liable for the cost of making good the lawn, which on the evidence is $3,300. 

Preliminary comments regarding costs

  1. [111]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that, subject to an enabling Act, each party must bear its own costs of the proceedings.  The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) is the relevant enabling Act for these proceedings.  Section 77 of the QBCC Act confers specific jurisdiction on this tribunal to award costs in building disputes. 
  2. [112]
    It was held in Lyons v Dreamstarter Pty Ltd [99] that section 77 of the QBCC Act gives the tribunal a broad general discretion to award costs as are justified in the particular circumstances. 
  3. [113]
    It was held in Tom Builder Pty Ltd v Quan Duong (No 2) [100] that section 77 of the QBCC Act is not an exclusive power to award costs in building disputes.  In circumstances in which an offer to settle the dispute the subject of the proceeding has been made, but not accepted, section 105 of the QCAT Act enlivens a further power to order costs.
  4. [114]
    I am aware from the evidence before me that at different times each party has made offers to settle:
    1. (a)
      on 22 January 2018, in addition to the promised rectification, the applicant offered a $3,000 discount;[101]
    2. (b)
      on 1 March 2018, the applicant offered to settle for $7,894.68;[102]
    3. (c)
      at the compulsory mediation, Mr Smith offered to walk away with each party to bear its own costs;[103] and
    4. (d)
      in his statement dated 2 November 2019, Mr McMahon stated that he had decided to accept Mr Smith’s offer to walk away.[104] 
  5. [115]
    During the course of the hearing I suggested to the parties, to no effect, that they might like to consider the risks of proceeding, given the result was likely to favour one party with the consequence the other would be ordered to pay the costs of the proceedings. 
  6. [116]
    In her written submissions the solicitor for the applicant sought costs on an indemnity basis.  In oral submissions she submitted that I should reserve my decision on costs.  I apprehend that further offers may have been made that are not in evidence. 
  7. [117]
    Accordingly, I reserve my decision on costs to enable the parties to provide written submissions regarding the circumstances that I should take into account when making an order as to costs.

Orders

  1. [118]
    The orders are as follows:
  1. The respondents pay the applicant the sum of $9,844.68 together with interest at the rate of 18% per annum on that amount from 24 January 2018, to the date of payment.
  2. The respondents pay the applicant the sum of $1,050 together with interest at the rate of 18% per annum on that amount from 15 February 2018 to the date of payment.
  3. The applicant pay the respondents $3,300.
  4. Each party should make submissions as to costs within 14 days of the date of receipt of this order.

Footnotes

[1]  Exhibit 1, [4].

[2]  Exhibit 14.

[3]  Exhibit 2, [12].

[4]  Exhibit 14, p 22.

[5]  Exhibit 14, p 21.

[6]  Exhibit 3, contract.

[7]  Exhibit 15, p 4.

[8]  Exhibit 14, p 23.

[9]  Exhibit 14.

[10]  Exhibit 12.

[11]  Exhibit 6.

[12]  Exhibit 11, [7].

[13]  Exhibit 13.

[14]  Exhibit 13.

[15]  Exhibit 7, [4] and Exhibit 8, [77].

[16]  Exhibit 12, [4].

[17]  Exhibit 15, p 19.

[18]  Exhibit 14, p 57.

[19]  Exhibit 3.

[20]  Exhibit 1, [4].

[21]  Exhibit 8, [19].

[22]  Exhibit 10, [5].

[23]  Exhibit 15, p 17.

[24]  Exhibit 8, [GS-1].

[25]  Exhibit 8, [22].

[26]  Exhibit 7, appendix 2.

[27]  Exhibit 15, p 21.

[28]  Exhibit 8, [70].

[29]  Exhibit 8, [69].

[30]  Exhibit 8, [GS-5].

[31]  Exhibit 8, [31].

[32]  Exhibit 7, appendix 2.

[33]  Exhibit 15, p 22.

[34]  Exhibit 8, [32].

[35]  Exhibit 8, [35].

[36]  Exhibit 14, p 61.

[37]  Made up of the delivery instalment plus a 20kg bag of glass beads.

[38]  Exhibit 4, p 25.

[39]  Exhibit 14, p 28.

[40]  Exhibit 14, p 27.

[41]  Exhibit 14, p 27.

[42]  Exhibit 14, p 30.

[43]  Exhibit 18, photo 13.

[44]  Exhibit 18, photo 14.

[45]  Exhibit 14, p29.

[46]  Exhibit 14, p 29.

[47]  Exhibit 14, p 35.

[48]  Exhibit 14, p 62.

[49]  Exhibit 14, p 63.

[50]  Exhibit 14, p 40.

[51]  Exhibit 11, [13].

[52]  Exhibit 11, [13].

[53]  Exhibit 15, p 4.

[54]  Exhibit 14, p 39.

[55]  Exhibit 11, [JS-2].

[56]  Exhibit 14, p 3 of 5.

[57]  Exhibit 14, p 39.

[58]  Exhibit 4, p 25.

[59]  Exhibit 14, p 38.

[60]  Exhibit 14, p 48.

[61]  Exhibit 14, p 50.

[62]  Exhibit 1, [65].

[63]  Exhibit 1, [65(b)].

[64]  Exhibit 14, p 52-5.

[65]  Exhibit 14, p 57.

[66]  Exhibit 14, p 58.

[67]  Exhibit 1, [4].

[68]  Exhibit 14.

[69]  Exhibit 14.

[70]  Exhibit 11.

[71]  Exhibit 9.

[72]  Exhibit 10.

[73]  Exhibit 14, p 2 of 5.

[74]  Exhibit 14, photos 11, 14-17, 22-27.

[75]  Exhibit 14, p27.

[76]  Exhibit 11, [15].

[77]  Exhibit 11, [20].

[78]  Exhibit 11, [14c(c)].

[79]  Exhibit 9.

[80]  Exhibit 9, p 2.

[81]  Exhibit 9, p 2.

[82]  Exhibit 9, p 2.

[83]  Exhibit 15, p 4.

[84]  Exhibit 14, p 3 of 5.

[85]  Exhibit 15, p 4.

[86]  Exhibit 14, photos 19-21.

[87]  Exhibit 13, photos 3-4.

[88]  Exhibit 18, photo 19.

[89]  Exhibit 11, [23].

[90]  Exhibit 11, [23].

[91]  Exhibit 9, p 3 of 6.

[92]  Exhibit 9, p 2.

[93]  Exhibit 14, p 3 of 5.

[94]  Exhibit 9, p 5 of 6.

[95]  Exhibit 14, p 3 of 4.

[96]  Exhibit 14, p 68.

[97]  Exhibit 15, p 19.

[98]  Exhibit 14, p 29.

[99]  [2011] QCATA 142.

[100]  [2013] QCAT 455.

[101]  Exhibit 14, p 29.

[102]  Exhibit 14, p 50.

[103]  Exhibit 15, p 23.

[104]  Exhibit 15, p 23.

Close

Editorial Notes

  • Published Case Name:

    Swimsmith Pty Ltd trading as Brisbane Prestige Pools v McMahon

  • Shortened Case Name:

    Swimsmith Pty Ltd trading as Brisbane Prestige Pools v McMahon

  • MNC:

    [2020] QCAT 471

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    27 Nov 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
1 citation
Jump To
Cite 1 - [2011] QCATA 142
Tom Builder Pty Ltd v Quan Duong (No 2) [2013] QCAT 455
1 citation
Jump To
Cite 1 - [2013] QCAT 455

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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