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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gardner v Equity Concreting Solutions Pty Ltd  QCAT 201
SARAH KATE GARDNER
EQUITY CONCRETING SOLUTIONS PTY LTD
Domestic building dispute
3 June 2021
25 January 2021
8 February 2021
10 February 2021
The applications are dismissed.
CONTRACTS – BUILDING, ENGINEERING AND RELATED OTHER MATTERS – Terms of contract – whether breach of contract.
Self represented 25-January, then Shane Ulyatt solicitor, Greenhalgh Pickard Solicitors for remainder.
REASONS FOR DECISION
- The applicant owns property at Crest Mont Drive Buderim.
- She engaged the respondent to construct a driveway at that property.
- The parties entered into a contract for that construction.
- In essence the applicant complains that the finish of the driveway does not match the colour of her home roof and it is not attractive. She complains that the finish is inconsistent and it is not what she expected.
- She initially sought an order that the respondent make the driveway more attractive to the eye by either demolishing the driveway and commencing again or installing “spray -creting” and building up exposed areas.
- In a later filed application she seeks monetary compensation.
- The respondent submits that the contract between the parties was wholly in writing. It submits that all the terms of the contract were contained within two quotes 0067 and 0084 and the contract itself. It contends that there are no terms in the contract regarding the consistency or colour of the aggregate concrete.
- It submits that the applications should be struck out or dismissed.
- It resists any order being made for it to pay the applicant any amount.
- There is no dispute that the written contract was made up of two quotes 0067 and 0084 and the contract itself.
- There is no dispute as to the structural competency of the driveway.
- There was an issue of a drain pipe going into the driveway but that is no longer an issue as it has been fixed.
- In material filed after the initial application the applicant relies on an allegation that the respondent knowingly advised that it would provide a finish which appears on a Facebook page which was referred to in evidence. The Facebook page does show some aggregate finishes of varying types.
- The applicant alleges that the finish is patchy, under exposed and over exposed. I have been provided with photographs of the finishes and I have also been provided with material filed by the applicant which includes reports and determinations by the QBCC about her complaints made to the QBCC.
- The applicant alleges that she was induced into entering into the contract by misrepresentations made by the respondent. Any such representations are not really particularised.
- Terms of the contract were contained within two quotes 0067 and 0084 and the contract itself. In my view, it is what is contained in those three documents which spells out the terms of the contract. 
- I am not satisfied that there were any representations made by the respondent by its direction as to the final finish or colour. If there was to be a term as to the final finish or colour I would expect it to be in the contract documents. There was no term within those documents regarding the consistency or colour of the aggregate concrete. In fact it was up to the applicant to provide the construction material. The contract documents only make reference to exposed aggregate.
- In the general terms of the contract there appears the following:
The contractor will not be held responsible for the produce i.e. concrete. The contractor will only be responsible for workman ship (sic).
The contractor will provide advice where applicable, however it is at the discretion of the customer if they wish to adhere to his advice or not. The contractor will not be held liable for any such decisions.
- During the course of the works the respondent advised the applicant that pumping concrete into moist ground rather than pouring it on dry ground would cause the exposed aggregate to be patchy and uneven in its consistency due to the nature of being pumped rather than poured. The respondent contends that during the course of the works the applicant directed the respondent to pump concrete into the area.
- Accordingly pursuant to the terms of the contract when concrete was pumped onto a moist area, as I accepted it was and against the advice of the respondent, the respondent is not liable for the inconsistency.
- As to the colour of the exposed aggregate I do not accept that colour was a term of the agreement.
- It seems to me that it could be fairly said that whilst the applicant did not get what she expected, what she expected, for whatever reason, was not a term of the contract.
- I have had regard to the reports of the QBCC provided by the applicant and the evidence called by her.
- I have formed the view based on all the evidence that the driveway is structurally sound and the final finish coincides with what was contained in the terms of the agreement.
- Some of the witnesses called by the applicant were known to her and all of them gave evidence on the basis that the expectation of the applicant was not achieved.
- I accept the evidence of the director of the respondent.
- I accept the evidence of the applicant when she says she did not get what she expected but unfortunately for her I find that what she expected was not what the parties agreed to have provided.
- The applicant raised an issue about a representation concerning the insurance cover held by the respondent. Having heard both sides and the evidence as to the cover held by the respondent in my view there was no misrepresentation which affects this application.
- As noted earlier, I was provided with material by way of findings by the QBCC. For completeness, I agree with them and the methodology used. They were correct in saying that this matter was a contractual issue which did not concern them. That being said, it should be noted that the applicant did not seek to review the decision of the QBCC.
- For the reasons given above in my view the applications should be dismissed.
- The order is that the applications are dismissed.
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347, 352.
- Published Case Name:
Gardner v Equity Concreting Solutions Pty Ltd
- Shortened Case Name:
Gardner v Equity Concreting Solutions Pty Ltd
 QCAT 201
03 Jun 2021