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Brooks and Neal v Australian Steel Kits Pty Ltd[2021] QCAT 410

Brooks and Neal v Australian Steel Kits Pty Ltd[2021] QCAT 410

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Brooks and Neal v Australian Steel Kits Pty Ltd [2021] QCAT 410

PARTIES:

GARY BROOKS AND SHARON NEAL

(applicants)

v

AUSTRALIAN STEEL KITS PTY LTD

(respondent)

APPLICATION NO:

BDL211-18

MATTER TYPE:

Building matter

DELIVERED ON:

3 December 2021

HEARING DATES:

19 October 2020

20 October 2020

21 October 2020

22 October 2020

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDERS:

  1. The respondent is to pay to the applicants the sum of $25,000 by 4:00pm on 30 March 2022.
  2. The respondent’s counter claim is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – DAMAGES – PERFORMANCE OF WORK – contract to build a large shed – contract was not a standard QBCC contract – applicants provided drawings and list of items to respondent showing expected design and specifications – three varying quotes provided by the respondent to the applicants – applicants provided to the respondent a specific list of items to be included in the building – applicants’ list included an internal wall constructed from colorbond – respondent built the internal wall from fibrous cement product – building not constructed as per expressed by the applicants – applicants requested a fixed mezzanine level – respondent constructed the mezzanine level as free standing – steel rod bracing impedes upon the open area beneath mezzanine level – QBCC directed respondent to rectify nine items – respondent contravened QBCC Act on three occasions – whether breach of contract – counter claim – award of damages – whether either party liable for damages

Queensland Building and Construction Commission Act 1991 (Qld), s 67WF, s 77, s 77(3)(c)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b)

Haines v Bendall (1991) 172 CLR 60

Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286

Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

APPEARANCES &

REPRESENTATION:

 

Applicants:

Self represented

Respondent:

Represented by Gregory Griffin and Stephanie Griffin

REASONS FOR DECISION

Introduction

  1. [1]
    The applicants are Gary Brooks (‘Mr Brooks’) and Sharon Neal (‘Ms Neal’).  They own a residential property at Alligator Creek, a suburb south of Townsville (‘the property’).[1]  In 2015 they planned to build a large shed on the property.  Between December 2015 and April 2016, they contacted a number of businesses in Townsville that specialised in constructing large sheds, eventually settling on engaging the respondent to undertake this task, which included the installation of a concrete slab as the shed’s floor. 
  2. [2]
    The respondent is Australian Steel Kits Pty Ltd (‘the respondent’).  The principals of that company are Gregory Griffin (‘Mr Griffin’) and Stephanie Griffin (‘Mrs Griffin’).   At the time of the dispute between the parties, the respondent was an authorised Ranbuild Shed supplier and dealer in the Townsville area.  The respondent supplied and constructed prefabricated steel sheds, garages, carports and other buildings.  The respondent held an appropriate builder’s licence issued by the Queensland Building and Construction Commission (‘QBCC’).[2] 
  3. [3]
    The parties entered into a written contract whereby the respondent agreed to supply the applicants a shed.  The shed was to be built on the property according to drawings and information which the applicants provided to the respondent.
  4. [4]
    By July 2017 the construction of the shed was completed.[3]  It was approved by a building certifier as a Class 10a building.[4]  Just prior to the practical completion, the applicants lodged a complaint with the QBCC regarding the contract between the parties and the construction of the shed.[5]  
  5. [5]
    As part of its investigation into the applicants’ complaint, the QBCC inspected the shed[6] and prepared an initial inspection report which outlined the nature of each complaint item and the QBCC’s findings and conclusions.[7] 
  6. [6]
    The QBCC instituted discipline action and issued the respondent with a notice to rectify of complete building work for nine specific items identified that required rectification or were incomplete within the construction of the shed.  The QBCC also identified that the respondent’s conduct had thrice contravened the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).  The QBCC managed those contraventions by issuing the respondent a warning.
  7. [7]
    The applicants argue they requested the mezzanine floor to be constructed within the shed.  This was to be a fixed structure whereby the floor was to be affixed to the exterior structure of the shed.  However, because the manner in which the mezzanine floor was built, it ended up as a free standing mezzanine floor.  A further complicating issue was the rod bracing of the end bay where the mezzanine floor is situated.  That rod bracing stretches across what would otherwise be an open area, and the positioning of the rod bracing makes that area unusable and prevents the applicants from the use and enjoyment for the purpose that area was intended.     
  8. [8]
    The applicants also argued that as a result of the respondent's conduct, the respondent breached the contract by failing to supply and construct the shed so that it was fit for its disclosed purpose.  Also, the respondent’s conduct caused a loss and damage for the required rectification costs for the shed. To compensate for that loss and damage, the applicants seek damages from the respondent, capped at $25,000.  The applicants further sought damages to recover the expenses incurred from engaging appropriately qualified experts to identify and report on the non-conformances of the shed and to prepare rectification plans.
  9. [9]
    The respondent filed a counter claim seeking an amount of $12,084 made up from two distinct amounts.[8]  The first amount of $4,064 relates to an internal wall constructed from fibrous cement board; and the second amount of $8,420 relates to integral pad footings.  At the hearing, the respondent abandoned part of its counter claim and now only seeks the costs claimed in regard to the internal wall.

The contract

  1. [10]
    A contentious issue between the parties revolves around the contract.  The applicants allege the respondent did not provide all of the pages relating to the signed contract or alternatively had altered part of the contract and the associated drawings.  Whereas the respondent initially refuted this allegation and said that the applicants had either lost their original copy or fraudulently claimed they have not received a copy of the contract.[9]
  2. [11]
    Notwithstanding the respondent had filed a copy of the contract with their material, at the conclusion of the second day of the hearing, I raised the issue about the contract with the respondent.  In the interests of fairness to both parties, and applying the best evidence rule, it was appropriate for the original contract to be produced.  The respondent’s directors confirmed that they held the original contract in their possession. 
  3. [12]
    When the hearing recommenced on the third day, the respondent said that despite searching for the original contract overnight, it could not be located.  It was explained that after the contract was entered into, the respondent’s business was sold.[10]  Although the respondent retained possession of its own company’s business records, since the sale of the business the respondent’s directors had moved addresses on three occasions.  It was for that reason that perhaps the original contract was missing. 
  4. [13]
    Later that day, the respondent cross examined Stephen Malcolm from ABSCAN Building Consultants (‘ABSCAN’).  He was shown a single page of drawings for the shed.  This was the first occasion this document had been used as evidence.  That is, it had not formed part of the respondent’s material which had been earlier filed with the Tribunal.  That single page of drawings contained handwritten notations on the plans, which indicated a set of stairs and the mezzanine floor. 
  5. [14]
    There were other changes such as the inclusion of a personal access door and windows.  When queried as to the origin of this document, Mrs Griffin said it formed part of the original contract, and although a search for the original contract had been undertaken, this document was all that could be found.  The respondent entered that document into the record as an exhibit.[11] 
  6. [15]
    At the start of the fourth and final day of the hearing, the respondent told the Tribunal that they had managed to locate the original contract.  This document was entered into the record as an exhibit.[12]  An observation of the second page of the contract revealed it to be identical to the exhibit tendered the previous day by the respondent (Exhibit 1).[13] 
  7. [16]
    A further observation of this page revealed that the original document had on it a significant amount of tippex or correction tape, along with the handwritten word ‘stairs’ and an arrow pointing to a portion of the first floor plan.  Other words, such as ‘partition wall frame top + bottom of mezzanine’ were also written on the first floor plan with an arrow pointing towards the mezzanine floor.  Hand drawn and inserted into the elevation Grid B of the plans was a personal access door and inserted into elevation Grid 1 were two hand drawn windows.  Shown on both Grid B and Grid 1 was a hand drawn number ‘2’. 
  8. [17]
    When suggested by the applicants that all the written words were made by Mrs Griffin, this was not denied except that Mrs Griffin confirmed that although she wrote all of the other words on the plans, she did not write the number ‘2’.
  9. [18]
    The respondent told the Tribunal that the applicants were supplied with copies of both the contract and the plans,[14] however what transpired over the course of the hearing did not support this position. 
  10. [19]
    The only inference to be drawn is a conclusion on the balance of probabilities that the original contract was always retained in the possession of the respondent.  Although copies had been later filed with the Tribunal or distributed to the applicants and the QBCC, those copies did not particularise the hand drawn alterations made by the respondent after the signing of the contract. 

Form 15

  1. [20]
    For certification of the building work, a requirement exists for that certification to be completed by a competent person (a Form 15).  The certification is to indicate that the building or construction has complied with the building design or specifications. 
  2. [21]
    In this matter, the competent person used by the respondent was Alexander Filonov (‘Mr Filonov’) from Bluescope Lysaght Technology.  Mr Filonov was not called to give evidence by either party; however, the compliance certificates he issued were exhibited by the applicants.
  3. [22]
    During the dispute between the parties,[15] the applicants exchanged emails with Rachel Laneyrie (‘Ms Laneyrie’) of Regional Certification Group (‘RCG’).  RCG were the certifiers to whom the respondent submitted the plans for the shed for approval.  A copy of the applicants’ drawing for the shed was provided to Ms Laneyrie.  In one email from Ms Laneyrie to the applicants,[16] Ms Laneyrie wrote –

The plans Ranbuild submitted to us for approval only showed the shell of the shed and a mezzanine floor. You are correct when you say that the attached plan showing the floor layout from the last email was never shown to us.  Our approval is only for the actual shed structure and mezzanine floor.  We were never aware of any bathroom area or partition wall inside the shed.

  1. [23]
    In her email, Ms Laneyrie confirmed that her approval would only cover the structural integrity of the shed and the mezzanine level and would not deal with or approve anything relating to whether the shed complied with the applicants’ drawing or met with the disclosed purpose for the shed.[17]
  2. [24]
    At a later time, a representative[18] from RCG attended at the property and inspected the shed.  During that inspection, the RCG representative noted a number of non-compliances in the construction of the shed and subsequently issued a non-compliance notice on 30 May 2017.[19]  The respondent was to rectify six items before certification could be provided, such as –
  1. Complete fixing of corner and roller door flashings.
  2. Screw fix ends and bracing sets with 14 screws.
  3. Provide revised Engineer’s drawings for relocated brace set to mezzanine.
  4. Mezzanine stair construction to comply with NCC Part 3.9.1 2017
  5. Form 16s required for Glazing and Roller Doors.[20]
  1. [25]
    Subsequent to this, RCG emailed to the applicants two compliance certificates,[21] each dated 26 May 2016 and signed by Mr Filonov.  Some subtle differences are noted between those compliance certificates.[22]      
  2. [26]
    The first compliance certificate accompanied correspondence by Mr Filonov to the respondent[23] and at Item 2, reference is made to the description of the components certified.  Reference is also made (stamped in red ink) on each page to all the required conditions as approved by RCG in the development permit.  The description of the components certified were –

STEEL STRUCTURE

SLAB & FOOTINGS

  • 8mm knee brace end bracket according to KPC/KPR dwg
  • Double girt over PA door
  • Mullions = C15019[24]
  1. [27]
    Shown within Item 2 of the second compliance certificate was a variation to the description shown in the first certificate to include the wording –
    • Mezzanine floor bracing on Grid B (between Grids 1 and 2) can be moved from Grid B to any other location between mezzanine columns (between grids 1 and 2)
  2. [28]
    It was noted that the second compliance certificate did not include the correspondence from Mr Filonov to the respondent; and was not stamped in red ink on each page as was the first compliance certificate.[25] 
  3. [29]
    The applicants hypothesised that the second compliance certificate was produced sometime after 30 May 2017, but in error the date was not updated from the first compliance certificate.  The applicants went on to submit that perhaps the compliance certificate was intentionally backdated by or at the request of the respondent.  This was because the second compliance certificate was created to respond to RCG’s inspection of the shed on 30 May 2017 which led to a non-compliance certificate being issued. 
  4. [30]
    A further point made by the applicants is that the second compliance certificate was dated prior to RCG issuing its non-compliance certificate, which is obviously impossible.  Given the evidence in this matter and having regard to the issues discovered with the manner in which the respondent dealt with the original contract, the points made by the applicants are an acceptable and plausible explanation.
  5. [31]
    Already indicated in these reasons was the outcome of the applicants’ complaint to the QBCC.  During that complaint process,  the QBCC facilitated a meeting between the parties.  The representative for the QBCC was Peter Auditore (Mr Auditore).
  6. [32]
    The respondent provided Mr Auditore with the second compliance certificate claiming it as proof that the applicants always knew about the steel rod bracing issues.  The respondent was steadfast in denial that there were two compliance certificates. 
  7. [33]
    It was only when the applicants produced to Mr Auditore the two different compliance certificates that the respondent conceded there were actually two compliance certificates with the same date.

The applicants’ case

  1. [34]
    The applicants engaged the respondent for the construction of a shed on their property, including the laying of a concrete slab.[26]  They told the respondent the shed would be used for ordinary domestic purposes in connection with the residential dwelling that was to be constructed on the property.  Provided to the respondent was a drawing (‘the drawing’) of the desired layout of the shed, along with a site plan of where the shed was to be positioned within the property.[27] 
  2. [35]
    On the drawing, it was indicated that an end bay of the shed should consist of a first floor mezzanine level,[28] a ‘U’ shaped kitchenette,[29] and a bathroom located next to the kitchenette.[30] 
  3. [36]
    The applicants wanted the mezzanine level to be a fixed level.  That is, the mezzanine floor was to be fixed to the exterior structure of the shed and with no cross bracing and beams underneath the mezzanine level. 
  4. [37]
    They requested that because of their intention to have a free and unimpeded access to their intended kitchenette and bathroom below the mezzanine level.  It was intended that the mezzanine area of the shed would later be lined inside and utilised as a type of ‘man shed’ area. 
  5. [38]
    Accompanying the drawing was another document outlining the applicants’ specific request with regard to the overall dimensions of the shed, the type of insulation, the number, size and type of the various doors and windows and an indication that the internal wall should be a colorbond wall.[31] 
  6. [39]
    The applicants were told the specifications could be incorporated into the shed’s design, and the respondent would be able to supply and construct the shed in accordance with the applicants’ drawing.  A quote was then requested for the supply and construction of the shed.
  7. [40]
    At a subsequent time, the respondent emailed to the applicants a quote numbered 2790/1 (‘the first quote’).  This quote incorporated an attached drawing or floor plans for the shed.[32]   The recommended retail price quoted for the shed was originally listed at $103,840 but this amount was crossed out and the amount of $98,278 inserted.  No included items were listed. 
  8. [41]
    The applicants later attended at the respondent's business premises to discuss the quote and the shed.[33]   They were presented with a revised version of the first quote which showed a recommended retail price of $105,164, reduced down to $93,164 (‘the second quote’).[34]  The recommended retail price differed to the first quote.  Attached to the second quote was a drawing or floor plans for the shed.  Apart from the obvious change to the overall price, other subtle changes were identifiable.  For example –
  1. (a)
    The first quote was dated 20/04/2014 and the second quote was dated 23 May 2016.
  2. (b)
    No inclusions were identified in the first quote; however, items were included within the second quote and were identified as –

INCLUDED ITEMS:  Council and BSA fees, Internal walls, Blue Board, Screws, Stairs, Timber treads, Ballestrades, Downpipes, Roof and Wall Insulation and Yellow Tongue Floor Board.

All quotes are based on a level site and Good access.  The kit becomes the Purchasers responsibility after delivered to site.

  1. (c)
    The drawing number for the floor plan and elevation diagrams on the first quote was identified as GARB02-2790 and consisted of two pages numbered 1/2 and 2/2 whereas the second quote identified the drawing number as GARB01-2790 and only page 1/4 and page 3/4.
  1. [42]
    The applicants were aware the respondent was offering or advertising a 2.5% discount for sheds ordered before the end of the financial year.  This additional discount was provided to the applicants, and it was reflected on a new quote (‘the third quote’).  The recommended retail price and the reduced discount price on the third quote differed again from the previous first and second quotes.  The third quote indicated a recommended retail price of $101,974, discounted down to $90,732.  The numbering of the quote was changed from 2790/1 to now read as quote number 2878/1.  Other noted differences were alterations made to the included items where the ‘Blue Board’ was altered to now show it as ‘Blue tongue Board’; and the reference in the earlier second quote to ‘Yellow Tongue Board’ had been deleted.[35] 
  2. [43]
    The applicants suggest that at no point during the meetings with the respondent on 9 April 2016 and 23 May 2018 were they ever advised the drawing attached by the respondent to the first, second and third quotes were inconsistent with their own drawings when the parties executed and entered into the contract.  A copy of the contract was not initially provided to the applicants, and it was not until much later after they complained to the QBCC that they received a copy.[36]   
  3. [44]
    The applicants argue the respondent failed to instruct its engineers to prepare the drawings in accordance with their drawing.  The respondent’s drawings were inconsistent with theirs, and the respondent failed to identify and/or disclose or advise the applicants of that inconsistency; and the construction of the shed in accordance with the respondent's drawings would prevent the applicants from using the shed for its intended purpose.
  4. [45]
    At a point in  time after the contract was signed, the applicants visited the property to inspect the progress of the shed’s construction.  When they arrived, they found that the formwork for the slab, along with the plumbing had been constructed in the incorrect location on their property. 
  5. [46]
    The site plan indicated that the shed was to be positioned six metres from the side boundary and 32.5 metres from the rear boundary.  But instead, it had been positioned five metres from the side boundary and 22.5 metres from the rear boundary. 
  6. [47]
    To complicate matters, originally a large tree existed on the property but had been cut down and removed by the applicants prior to the shed being constructed.  The incorrect positioning of the slab’s formwork and the plumbing had been set up and placed over the unstable ground where that tree had been removed. 
  7. [48]
    The formwork was appropriately repositioned back to the correct location; however, the respondent insisted on the applicants paying for the costs associated with that task, even though it was not their error.  The costs amounted to $1,800, and the applicants were told that if that amount was not paid, then construction of the shed would cease.  This was not disputed by the respondent during the hearing. 
  8. [49]
    Although the respondent charged an extra amount to re-position the slab back into its correct position and accepted this fact at the hearing, this differs from what the respondent informed the Office of Fair Trading (‘OFT’).  In responding to the applicants’ complaint about this point, the respondent told the OFT that –

It is true when the concrete is set up the slab it was in the wrong location he had infact (sic) gone off the rear line marking towards the rear of the block and not towards the front. Once this was bought (sic) to our attention it was corrected and reset up immediately at no extra cost to the BROOKS, however at the same time the plumber had not received his permit and then it was not approved.  We reset the slab up and was required to wait until the plumber permit was approved before we could pour.[37]

  1. [50]
    The applicants’ position is that from the period shortly after construction commenced, they identified to the respondent issues about the manner in which the shed was constructed, including the location of beams.  These concerns were emailed to the respondent.[38]  At a subsequent time,[39] the parties exchanged further emails to discuss the moving of beams where the respondent said –

as per the site visit with Stephanie on Monday the 13th, you requested changes to the engineering in regards to the rod bracing and moving the mezzanine support beam near the front opening. Steph has spoken to the engineers however they are still working on the design to be able to make these changes for you.  This may result in a delay as they work on some sort of solution for you.

……

The internal extras will be completed after an engineering solution (sic) has been signed off on.[40]

  1. [51]
    The applicants replied to tell the respondent –

I have read your email about the changes to the engineers these aren’t extras these are what we requested in the first place based on the quote you gave us in May 2016 from the design sketch we gave you to quote on, and due to the fact that we are putting in a internal wall between the kitchen and bathroom area from the beginning and as Gary discuss with you on the 13th may we would be happy to also put a wall bracing either timber or metal at the rear section of the mez floor to remove the rod bracing that has been put about 1 meter into man shed area making that space inaccessible, which we were never informed about, and moving the beam that now stands in the middle of the access door into the shed and shower area of the bathroom, you have had the plan since first quoted you knew what we required we haven’t changed anything, and I don’t understand why the engineers were not done to that plan in the first place then changes wouldn’t need to be made to accommodate what we requested from the first quote now.[41]

  1. [52]
    The responded replied –

I think you may have misunderstood our last email, the engineering that has been given for the original design to head office, has to changed (sic) as discussed on site.  It does not involve a fee to them, however as discussed with you on site it does result in a new solution to modify the bracing of the mezzanine floor, as we discussed.

You advised on site you would be happy with timber or metal walls at either end if it eliminated the rod bracing. This needs to be discussed with the engineer. When we designed (sic) we were unaware whether bracing would be allocated.  As for the supports the engineer has agreed to the change you requested however I need to give him measurements to make change on his drawings and had tried to contact you to discuss, to no avail, until Monday morning when I met you on site.[42]

  1. [53]
    About a week later, the respondent requested an extension of time in which to complete the shed’s construction.[43]  This led to an exchange of emails between the parties where the applicants told the respondent they had hoped the construction would be finished within the 12 month period from when the project started, but had no issue with an extension of time as long as the construction was undertaken with high workmanship, on budget and as per the design sketch the applicants provided to the respondent in May 2016. 
  2. [54]
    In response, the respondent informed the applicants of difficulties the engineers were having with the bracing and the front door would not fit underneath the mezzanine where the applicants wanted it.  The applicants replied –

We were never advised on signing or any other time that it could not go where we wanted it, your computer program wouldn’t allow the door to go where we wanted it, but it also wouldn’t allow us to put windows or anything else where we wanted it, and we were told not to worry about it we can move them at a later date its not a formality.[44]    

  1. [55]
    In a later exchange of emails, the respondent told the applicants –

As advised I am currently working with the engineers in regards to a solution with your bracing for the mezzanine.  They have advised we can move the support to the mezzanine near the front.  The side bracing can be got around by moving it to the outside of frame.

As advised on signing the front door would not fit under the mezzanine for some reason and it had to be situated on the end gable.  I would try to move but could not guarantee anything.  The engineer has advised under the current design he cannot be placed into bay 1.  do you have another preferred position for the PA door.[45] 

  1. [56]
    The applicants responded –

I was reading your email regarding the pa door, we were never advised on signing or any other time that he could not go where we wanted it, your computer program wouldn’t allow the door to go where we wanted it, but it also wouldn’t allow us to put windows or anything else where we wanted it, and we were told not to worry about it we can move them at a later date it is not a informality.

Not to provide us with the PA door where we needed, which is at the front of the shed beside the lefthandside (sic) roller door in front of the man shed area makes this a and (sic) the shed area inaccessible area for us, we cant (sic) have a PA door in the man shed gable and that doesn’t work for with the plan we gave you from the beginning for us for that matter, you had the plan you have always had the plan from the beginning, this I feel all stem from the fact that the mezfloor on the original engineers you sent in never had the fact that the manshed area with a bathroom or anything else in it and we trusted what you told us which was we can change it later, if the engineers had been given the proper plan in the first place and not the carbon copy plan you sent into them, we would have been told this and any other issues that we may have had with this in the first place from the beginning and we would have gone elsewhere to get what we wanted and we did have options of doing this, and now we are very angry that we are being told this $80,000.00 into the build that we now can’t have the pa door where we requested it and all along being reassured by you that we could.

Some other solution will have to be sorted by you with the engineers we have never been told until today that the pa door cant go where we wanted it, and feel this should have been worked out from the beginning because putting the PA door in the gable end of the man shed is not an option for us.[46]  

  1. [57]
    What followed was the applicants initiating an early dispute resolution process.  As part of that process, the respondent provided to the applicants a copy of the contract.  The applicants identified this contract as not being the contract they signed.[47]      
  2. [58]
    At some point during the latter part of the shed’s construction, the applicants became aware the respondent had installed an internal wall which was not constructed of colorbond as they had requested.[48]  The applicants’ email to the respondent about the wall indicated –

My mam stopped into the shed yesterday and sent me this picture , this is suppose to be a full colourbond internal wall not fibrous, you will have to be changed this we are not accepting a fibrous wall we want what we are paying for thank you.[49]

  1. [59]
    This prompted a response from the respondent –

This wall is cement board and is a far superior product for an internal wall than colorbond sheeting, due to it sitting on a concrete slab.  There is less possible rust issues down the track due to the lime.  It is waterproof.[50]

  1. [60]
    Clearly the flavour of the communication between the parties on this issue shows the applicants were taken by surprise the wall was not colorbond as they requested.  It is noted from the respondent’s email that the applicants’ comments regarding their initial request for a colorbond wall were not disputed.  The respondent’s response back to the applicants was to simply confirm that the cement fibrous product was a superior product to colorbond. 
  2. [61]
    Notwithstanding the identified issues in dispute about the shed, a final inspection certificate was issued by on 12 July 2017 by RCG.[51]
  3. [62]
    At a subsequent time,[52] the applicants engaged Stephen Malcolm from ABSCAN to undertake an inspection and audit of the shed.  The purpose of the report was to identify any building defects and non-compliances by the respondent with the contract (‘the ABSCAN report’).

Stephen Malcolm

  1. [63]
    Stephen Malcolm is the founder and managing director of ABSCAN.  He has over 30 years' experience in the building industry and during that substantial period, he has acquired extensive expertise in carrying out inspections for defects in buildings. 
  2. [64]
    The purpose for engaging Mr Malcolm was to undertake an inspection and identify any building defects and non-compliances with the contract.[53]  He later produced a report which provided an assessment which included an opinion the respondent breached the contract by failing to construct the shed according to the applicants’ drawing; and it was not constructed to accommodate the applicants’ disclosed purpose.[54]
  3. [65]
    Identified by Mr Malcolm were a number of significant issues with the work performed in the construction of the shed and the remedial work which was required. 
  4. [66]
    He recommended that apart from a need for an experienced and qualified building designer to prepare drawings and a scope of works to rectifying the defective building works to reflect the applicants’ original detailed end-use requirements, a structural engineer was required to design, document and certify the necessary structural alterations to the shed.
  5. [67]
    Mr Malcolm’s findings identified twenty one instances of defective building work and a series of breaches of the QBCC Act.  Significantly he identified that the open habitable room area between the kitchenette and the stairs (underneath the mezzanine level) required a minimum head height of 2,400mm. 
  6. [68]
    The height to the underside of the mezzanine measured only 2,180mm and consequently could not be used as habitable area.  Therefore, the shed could not be certified in the future for habitable room purposes such as a dining room or living room. 
  7. [69]
    A further complicating feature was the intrusion of the steel rod bracing into the floor space which prevents a clear and unimpeded access between the intended kitchenette and the bathroom. 
  8. [70]
    The respondent put a number of questions to Mr Malcolm in regard to the mezzanine floor area and the adjacent kitchenette and bathroom.  The applicants’ proposal is that they intended to use that area for a specific habitable reasons in the future.  To refute that claim, the respondent relied upon an email exchange between the parties where the respondent emailed to the applicants a complete set of the engineering drawings and building materials for the construction of the shed.[55] 
  9. [71]
    The respondent’s email indicated that the respondent’s certifier had requested ‘a quick autograph on the bottom of the letter’ before the plans could be finalised for approval.[56]  The quick autograph related to the declaration made by the applicants that the shed was not being utilised for residential purposes.  The declaration was signed by both applicants and returned by email to the respondent on the same day.  The document outlined –  

To whom it may concern,

We wish to build a shed at [applicants’ address], this shed will be private use only for storage of our boat and trailer, camper, 4wds, fishing and camping gear as well as storage of prior personal items only.[57]

  1. [72]
    In returning the above declaration to the respondent, the applicants requested –

….. could we have a detailed plan of corners where granny flat is so we can make sure that granny flat design we have drawn is right for the internal drainage.[58]

  1. [73]
    Mr Malcolm’s report addressed the applicants’ proposal that they had an expectation that the area underneath the mezzanine floor would allow them to fit it out for the intended use as a bathroom and kitchenette as shown in their original sketch plans.[59] 
  2. [74]
    In response to this, the respondent relied upon Part 3.8.2 of the Building Code of Australia[60] which provides that the ceiling height for a habitable area (excluding a kitchen) is 2.4 metres, whereas the ceiling height for a kitchen is stipulated at 2.1 metres.  For areas described as including a bathroom or laundry the height is stipulated as being 2.1 metres.  All of those heights should be measured from above the finished floor level.[61] 
  3. [75]
    Notwithstanding the position the respondent adopted, Mrs Griffin commented to Mr Malcolm that she was aware that plumbing was being installed before the slab had been poured.  Taking that comment into account, it can be inferred that notwithstanding the earlier declaration by the applicants that the shed was not for habitable purposes, the respondent was at least aware that the applicants intended for the kitchenette and bathroom installed to suit a ‘man shed’ type area.

Daniel Johnstone

  1. [76]
    Daniel Johnstone (‘Mr Johnstone’) is a professional engineer with over 23 years' experience as a structural engineer.  He is the principal and manager of LCJ Engineers in Townsville.  In about mid-February 2018, the applicants approached him to prepare engineering plans for remedial work to their shed.  The remedial work was to include:
    1. (a)
      Remove subfloor bracing, assess adequacy of shed to brace the mezzanine and provide a suitable connection detail;
    2. (b)
      Design floor beams to remove perimeter posts, assess adequacy of foundations for new loads and provide a suitable structural detail for connection; and
    3. (c)
      Assess whether bracing location (at window) can be relocated within another bay on the end wall and provide a suitable structural detail for connections.
  2. [77]
    During his evidence, Mr Johnstone was shown a number of photographs of the interior of the shed and invited to make comment. In regard to the kitchenette area below the mezzanine level, he said that the fit out of this area was prevented by steel rod bracing which cut into the area and impeded into the area from one side to the other.  The steel rod bracing which had been installed across this area divided it into two parts and prevented the area from being effectively used as a single area.  He also identified that the steel rod bracing went partly across the bottom right-hand corner of one of the windows.  All of this would make it very difficult for the area to be effectively lined.
  3. [78]
    In regard to the mezzanine floor, he said that he identified that it was a free standing floor which was attached to a non-structural wall (internal wall). 
  4. [79]
    Mr Johnstone’s evidence supported the applicants’ position that the intended use of the area below the mezzanine floor, including the kitchenette was significantly impaired because of the placement of steel rod bracing across the open space which effectively divides the area into two.  His evidence was not challenged and nor was it negated by the respondent.

Ian Mills

  1. [80]
    The respondent relied on the evidence of Ian Robert Mills (‘Mr Mills’), a qualified certifier from RCG. He had never met with the applicants. 
  2. [81]
    In his evidence at the hearing, he commented that the purpose for the declaration provided by the applicants related to the classification of the shed as a Class 10a construction.  He said the declaration was required as confirmation that the shed was not going to be used for habitation purposes.  Mr Mills went onto say that for a Class 10a construction, although those types of constructions are not classified for habitation, allowance can be made for a partial classification to include a bathroom and toilet, but not a kitchenette as a kitchenette cannot be a part of a Class 10a construction.
  3. [82]
    In respect to his evidence, the applicants’ position is that they were never told by the respondent that the shed could have been partially classified in the manner described by Mr Mills. 
  4. [83]
    It is of interest that notwithstanding the evidence of Mr Mills, some credit can be applied to the applicants’ evidence on this issue.  The respondent knew from the very beginning about the bathroom and kitchenette, including commissioning the installation of the plumbing for those facilities.  Given the respondent’s knowledge about those issues, a sensible approach would be to conclude that the respondent possessed an understanding of the applicants’ intention for the shed and should have at least informed the applicants the shed could have been partially certified as habitable. 

Gregory Griffin

  1. [84]
    In his evidence, Gregory Griffin (‘Mr Griffin’) told the Tribunal that he, along with his wife were the respondent’s co-directors.  His role within the company was the construction manager.  He has built hundreds of sheds over the years for many different shed companies including Ranbuild, Garage World, Titan, Modern Garages, Absco and Affordable Sheds.[62]
  2. [85]
    Although he was the respondent’s construction manager and was aware of an earlier discussion in the hearing about the slab’s footings and the plumbing had been constructed in the incorrect position on the applicants’ property, he could provide no explanation as to why or how this happened.  Nor did he take the opportunity to deny the applicants were charged an additional $1,800 and told that if this amount was not paid, then the construction of the shed would cease.
  3. [86]
    He was present at a dispute resolution conference with the applicants at their property.[63]  His evidence was that there had been no discussion at that conference in regard to the mezzanine floor.[64]  He went on to comment about the applicants’ claim they had not received a copy of the original contract.  He noted that in the eleven months from the time the applicants engaged the respondent to build the shed, this was the first time he had heard of them requesting a copy of the contract.  He believed they had received a copy on the day the parties signed the contract, although he accepted that he was not present when the contract was signed.  This evidence seems to be at odds with the emails that have been exhibited to the material for both parties.
  4. [87]
    Mr Griffin recalled conversations he had with the applicants during other meetings at their property and the discussions that took place regarding the internal wall and the mezzanine floor.  Those discussions included whether the internal wall should have been originally constructed out of colorbond, but instead a fibrous cement product was used.  He claimed the applicants were told that they had not in fact paid for the fibrous cement wall and the respondent would be happy to remove it and replace with a colorbond wall, but the applicants would need to pay for the new wall.[65]  My observation of that comment is that this seems to be a similar theme to what occurred in regard to the incorrect placement of the slab’s footing and the plumbing.
  5. [88]
    In regard to the mezzanine floor, he said the parties discussed the mezzanine bracing which had been moved because the applicants requested to have the personal access door moved from the gable end to the front of Bay 1.  In respect to the manner in which the floor was constructed, that is, it was free standing instead of a fixed structure as the applicants requested, he said the construction of the floor as free standing was undertaken as per the plans.[66] 
  6. [89]
    Overall, Mr Griffin was not a convincing witness.  At times under cross-examination he was evasive, he frequently said he could not answer the questions asked of him and said that his wife was the best person to ask those questions. 
  7. [90]
    The impression Mr Griffin gave was that his wife had operational control and management of the business whilst his responsibility was the management and coordination of resources.  It was evident that he was not privy to any discussions between the applicants and his wife in the initial stages of the formation of the contract.  

Stephanie Griffin

  1. [91]
    Mrs Griffin along with her husband are the principles of the respondent company.  She is a licensed builder with 10 years’ experience in the construction industry.  In providing her evidence to the Tribunal, she said that the respondent wanted to amend the counterclaim as the only item now pursued was the applicants’ alleged non-payment for the internal fibrous cement wall.  The respondent’s amended counter claim now only seeks the amount of $4,064 relating to the installation of the internal fibrous cement wall.
  2. [92]
    In regard to the original contract, she said that she was responsible for the whiting out (tippex), or otherwise referred to as the alterations to the drawings.  She suggested that the plans were amended according to what Ms Neal had wanted.  In the applicants’ email to the respondent, the drawings relating to the placements of windows and doors was provided as an enclosure to the email where the applicants said –

I was going through files and I found that the window plan was hard for me to read and I wrote so I have attached two pages with window placement, stair, ect that you can read alot better is attached to this email.[67]

  1. [93]
    The drawings enclosed in that email also showed the drawings depicting the shed’s end view where the mezzanine floor, kitchenette and bathroom were to be located.  There was also a side view of the main entrances (roller doors) into the shed and the front elevation showing the mezzanine level and stairs case.  Clearly marked in the drawings is a reference to the internal wall.
  2. [94]
    In a follow up email to the respondent, the applicants sent similar drawings to what was earlier sent.  The applicants explained in the email –

I sent this to you the other day did you receive our window placement plan that I sent you on the 5th December 2016, and asked if you had received it see below, I have attached again just incase can you let me know, I don’t want the windows in the place you have on you quote (sic) you told us that you couldn’t put them where we wanted them I just want confirmation that you have this,so the windows do not get put in the wrong position it is very important to us that they aren’t so could you let us know please.[68]

  1. [95]
    In regard to the end bay of the shed commonly referred to as the man shed area, Mrs Griffin said that although she was aware the applicants wanted a bathroom, she was not aware that they wanted a kitchenette as well.  To support her position, she relied upon the declaration signed by the applicants that the shed was to be used solely for the purpose of storage and not for a private use.  Notwithstanding the position she adopted, I am satisfied that she must have been aware, or at least had the opportunity to be aware because initially the applicants had provided drawings to the respondent which clearly identified on the drawings at the end bay (man shed area) the words – 

KITCHENETTE and MEZ STORE OVER KITCHENETTE.[69]

Miscellaneous matters

  1. [96]
    Provided within the respondent’s material filed with the Tribunal were a number of references in the form of affidavits/statements/declarations and other associated documents attesting to the character, reliability, honesty and trustworthiness of Mr Griffin and Mrs Griffin.  The authors of those documents were not called to give evidence at the hearing.[70] 
  2. [97]
    Notwithstanding that, the overall contents of the documents do not provide any assistance to my determination of this matter as those people were not privy to any of the matters in dispute between the parties, with the exception of Emma -Jane Griffin who is the daughter of the respondent’s representatives.  What she attests to in her affidavit has already been discussed within the evidence of Mrs Griffin and does not advance the respondent’s position in any positive way.
  3. [98]
    Overall, I consider that little weight should be placed upon the contents of the respondent’s extrinsic material.        

Internal Wall

  1. [99]
    The respondent’s counter claim seeks damages from the applicants for the installation of the internal wall, whereas the applicants argue that the wall was constructed from fibrous cement and not colorbond as they wanted. 
  2. [100]
    Both parties agree the intention of the installation of the internal wall was to segregate an end bay of the shed containing the mezzanine level, the kitchenette and the bathroom from the remaining interior bays in an area referred to as the ‘man shed’. 
  3. [101]
    When the applicants engaged the respondent to construct the shed, and prior to the signing of the contract, they provided a list of items which they wanted included in the shed.  Included in that list was the construction of a single colorbond internal wall.[71]  The third quote[72] provides that the vertical wall cladding of the shed was to be Trimdek Profile (‘Trimdek’),[73] and this was indicated as being the same material as the colorbond roof.[74]  The applicants suggest they were told that all the walls, including the internal dividing wall were going to be colorbond. 
  4. [102]
    The respondent’s position is that there was nothing in the contract or original agreement between the parties, or in any of the quotes which caters for a colorbond internal wall.  To support that position, the respondent relied upon a letter written by Barry Allen (‘Mr Allen’) who is Ranbuild’s East Coast Business Development Manager.  In his letter, Mr Allen mentioned the quotes numbered 2878/1 and 2790/1 and he said –

No internal steel walls or sheeting were on either of the quotes or ordered on Ranbuild.[75]

  1. [103]
    Mr Allen did not give evidence at the hearing and although there is a discretion afforded to me to accept his document into evidence,[76] what is apparent is that he was not privy to any of the discussions between the parties.  His letter was merely drafted from his own knowledge and experience about Ranbuild’s quoting system and the manner in which building kits are generated.  Taking into consideration those features, I am of the view that no weight should be given to what is contained within his letter.    
  2. [104]
    In turning to the respondent’s position, the respondent denied any suggestion the internal colorbond wall was quoted on.  This is notwithstanding that numerous references to Trimdek being used to construct the walls and roof.[77]  The respondent says that the reference to Trimdek only relates to the exterior walls and roof.                              Notably, when cross-examining Ms Neal, the respondent did not suggest to her that there had been no initial discussion between the parties about a colorbond wall when formulating the contract.  Nor was it suggested that it was clearly explained or identified in the contract that the internal wall would not be colorbond.      
  3. [105]
    Contained with the respondent’s material is reference to an exchange of emails between the parties where the respondent pointed out that –

Originally you were quoted on “blue board” for the sheeting of the internal wall, however when you bought this to my attention I removed it not realising Emma had quoted for the internal wall. Blue board is a formal cement board but is not suitable as a finish, as blue board generally used as a rendered board.  You have not been charged for the external lining of the internal wall. You should have been charged for “cement board” [78]

  1. [106]
    It appears that although there was an agreement about the installation of the wall, there was never any agreement, and nor was it part of the contract that the wall would be constructed of colorbond.  What flows from that is the respondent’s counter claim in regard to the costs associated with the wall’s installation.  That counter-claim issue is discussed later in these reasons. 
  2. [107]
    The applicants filed a complaint with the OFT who in turn sought comment from the respondent in regard to a range of issues arising from the applicants’ complaint, including the internal wall.  In a response to the OFT, the respondent said –

The office girl had mistakenly included blueboard for lining of the partition wall and when Sharon asked about the blueboard I removed it not understanding why it was as it would only be applied on an external application with render. There and nothing was replaced to line the partition wall at all. We usually use cement fibre on partition walls of this size and nature, however nothing was charged for, so the cement fibre wall on the shed has not been paid for and no material was included except the framing top and bottom of the mezzanine floor completed in structural pine.

RANBUILD head office has in fact advised Mrs NEAL THAT NO COLOURBOND WALL was included in the contract and I have since obtained a letter from RANBUILD stating that. Once these orders are sent to engineering is unable to change. And no where on the contract does it state it has a colorbond wall.[79]

  1. [108]
    The respondent went on to tell the OFT that they (the respondent) had possession of an email from the applicants which confirmed that Ms Neal knew the internal wall was to be constructed from fibrous cement.  The contents of the applicants’ email were inserted into the respondent’s response to the OFT, and it said –

Boy are you gonna be sick of me lol, Gary and I have been trying to work out bathroom so we can find out where plumbing will fit and where everything will fit, however we have just realised we haven’t allowed for the c channel on walls, the battern and fibrous for the bathroom so maybe you can help us out, do you have plans that are to scale that show the width of the c channel width, we need to know how much a battern would come off the c channel so we can try to work this out, or do you have sizes for us to work it out so we can do this to get plumbing quoted, fast reply would be appreciated.[80]

  1. [109]
    Although the word ‘fibrous’ is mentioned in that passage extracted from the applicants’ email, I do not accept that those comments refer in any way to the internal wall.  It indicates a conversation about an entirely different issue. 
  2. [110]
    Further to this, the respondent went on to tell the OFT that –

The client advised that she gave a plan to me that was required to go to the engineer and the certifier for approval.  As we were not responsible for any of the additional plumbing or internal walls we were not required to send to HEAD OFFICE or RCG FOR APPROVAL, and if had done so would have had to complete it as per the plan.[81]

  1. [111]
    In assessing all the evidence presented by both parties, there is no contest that an internal wall was to be constructed, albeit the respondent suggests that at a subsequent time to the contract being signed the respondent discovered its mistake.  Nor was there any contest the applicants supplied the respondent a list containing items they wanted to be included in the shed.  Undoubtably the respondent built an internal wall, thus meaning they must have been aware the applicants wanted the wall.  The contentious issue is whether the applicants passed on to the respondent their instructions for the wall to be constructed out of colorbond. 
  2. [112]
    Earlier in these reasons it was identified the applicants became aware that during the construction of the shed, the respondent had installed an internal wall which was not constructed of colorbond.  The applicants emailed their discovery to the respondent advising they did not accept the fibrous cement wall and it would have to be changed.[82]
  3. [113]
    If indeed the respondent’s true position was that there was never any agreement about a colorbond wall, their email response to the applicants on that day did not reflect this.  The respondent’s response was to simply outline that the fibrous cement wall was a far superior product to colorbond and there were less possible future issues regarding rust.[83]   
  4. [114]
    In assessing all the evidence presented by both parties, the overriding feature is the applicants’ list was provided to the respondent.  There was no suggestion, or position adopted by the respondent that the list was not the genuine list they received, they simply argue that there is no indication within any of the quotes provided to the applicants, or the contract about the wall being constructed from colorbond.
  5. [115]
    On the available evidence, and applying the relevant standard of proof, I am satisfied and accept that upon requesting the wall to be colorbond, there was an understanding and expectation by the applicants that the wall’s installation would be of the material they requested within their list. 

Respondent’s Counter Claim

  1. [116]
    The respondent has filed a counter claim,[84] and was originally seeking damages of $12,497.20 made up from two distinct amounts.[85]  The first amount of $4,064 relates to a fibrous cement wall, commonly referred to in these reasons as the internal wall.  This wall was constructed within the interior of the shed adjacent to the mezzanine floor and the area containing the kitchenette and bathroom.  The total of the first amount sought consists of the following –

Cement board wall

Materials used / work undertaken

 

Costs claimed

PVC divi moulds.

18 x 6ml cement board.

Stud adhesive.

Clouts.     

 

$1,064.00

Hire of scissor lift for 3 days.

Delivery and pick up Alligator Creek.

 

$920.00

Labour

$2,080.00

 

SUB-TOTAL

$4,064.00

  1. [117]
    The above amount claimed in the respondent’s material for the internal wall differs from what was inserted into its counter claim application.  The amount indicated in that application is –

Wall not paid for $6,224.00.[86]

  1. [118]
    What was unclear in the respondent’s material is a reconciliation or how and why those amounts differ.  It was not until the respondent provided written submissions at the conclusion of the hearing that some explanation was provided of how the amount of $6,224.00 was arrived at,[87] yet somewhat confusingly the submissions later suggest the amount as –
    1. The breakdown of the wall costs included scissor lift, nails, glue, cement board and labour totaling $4064.00[88] 
  2. [119]
    The respondent claimed the costs associated with the installation of the internal wall were removed from the quote on 13 May 2016 after Ms Neal telephoned the respondent enquiring as to what was ‘blue board’. 
  3. [120]
    There was a conversation between Ms Neal and Mrs Griffin.  Ms Neal’s query related to why both ‘blue board’ and ‘yellow tongue’ were included in the quote.  Mrs Griffin noticed that both of those items have been added in error to the total price of the shed, and a decision was made to remove the blue board from the contract. 
  4. [121]
    Discussions then took place between Ms Neal and Mrs Griffin as to what was the ‘best deal’ the respondent could do.  What followed was the respondent reducing the overall costs associated with both the concrete slab and the installation of the shed.  The original price of the shed was $99,388, and with the discounts, the contract price was dropped to $93,164.  Discussions then took place about what colours the applicants chose, and it was arranged for the applicants to visit the respondent’s business premises on 23 May 2016 to sign the contract.
  5. [122]
    If it did occur as suggested by Mrs Griffin that Ms Neal asked for the internal wall to be removed from the quote on 23 May 2016, what is puzzling is why any competent and diligent building contractor would go ahead and incur additional labour and material expenses to install a large wall that they knew was not wanted.  This explanation is not plausible.    
  6. [123]
    What is further puzzling is the respondent’s response to the OFT where the internal wall issue was discussed.  In communicating a response through Mrs Griffin, the respondent explained that no provision was made within the contract for an internal wall constructed out of colorbond.  The explanation given in the response to the OFT suggested that when the error was discovered in regard to blueboard being included in the contract, this was removed, and nothing was replaced to line the internal wall.[89] 
  7. [124]
    Turning to the second amount, this relates to what was referred to as the integral pad footings.  The respondent was seeking a further amount of $8,433.20 from the applicants but abandoned this part of the counter-claim at the hearing.  These details have been included to give an indication of the respondent’s initial attempt to include matters in its case which are outside or additional to the contract.

Integral Pad Footings

Materials used / work undertaken

 

Costs claimed

IPF1 @ 10 x 850 x 850 x 850.

IPF2 @ 10 x 425 x 425 x 425.

IFP3 @ 2 x 700 x 700 x 700.

12 m3 @ $250.80 inc GST concrete to Alligator Creek.

 

$3,009.60

Excavator hire

 

$1,485.00

Pump hire

$1,338.60

 

Labour

2 x men 16 hr @ $65

$2,600.00

 

 

SUB-TOTAL

$8,433.20

 

  1. [125]
    With the respondent abandoning part of its counter-claim, the Tribunal’s focus remains on what is actually claimed and whether there is any substance within the evidence to support that part of the respondent’s counter claim.    
  2. [126]
    What is primarily apparent is the overall evidence of this matter indicates that there was an expectation by the applicants of the installation of the internal wall. That installation would not have been a small task for the respondent to undertake as it is of considerable size and spans the width of the shed; and it separates the end bay from the remainder of the shed’s interior.  Yet this was seemingly undertaken despite Ms Neal asking for it to be removed from the contract.  I do not accept the respondent’s explanation about this. 
  3. [127]
    Considering the features of the counter-claim and the evidence arising in this matter, I am not satisfied to the requisite standard of proof that evidence exists to support any basis for the respondent’s counter-claim.  Therefore, the only conclusion to reach is to dismiss the counter claim.

Conclusion and Damages

  1. [128]
    The applicants’ shed falls within the definition of a related roofed building.  That is, it is a building that has a roof designed to be part of the building; it is impervious to water or wind; it is on the site of the applicants’ residence; and is used for a purpose related to the use of the applicants’ residence.[90]  Because the shed is a fixed structure, it is defined within the QBCC Act as a building and the applicants are the owners of that building.  The respondent is defined within the QBCC Act as the building contractor who carried out the building work or constructing the shed.
  2. [129]
    The QBCC Act provides that a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[91]  Without limiting the Tribunal’s powers to resolve the dispute, the Tribunal has the discretion to undertake a number of things, including awarding damages.[92]
  3. [130]
    Based on my observations of the respondent’s performance in constructing the applicants’ shed, I respectfully adopt the words expressed by Henry J in Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 –

It is difficult to think of a more fundamental requirement of a construction contract than that the works are to be performed in an appropriate and skilful way, with reasonable care and skill, in accordance with the plans and specifications and in accordance with relevant law.[93]

  1. [131]
    Two specific issues have been identified by the applicants where they argue they have suffered a loss by the actions of the respondent.  That is, the areas referred to as the man shed area and the internal wall.
  2. [132]
    The man shed area consists of a bathroom, kitchenette and open area.  The applicants intended to line that area in the future. The evidence of this matter indicates that there is steel rod bracing across the open space which significantly impacts upon the use and enjoyment of that area.  Additionally, the ceiling height to the mezzanine level is less than what is required should that area be utilised in the future as a habitable area.
  3. [133]
    The respondent’s position is the shed was constructed according to the engineers’ plans and the applicants’ drawings.  The respondent further argues that any contention by the applicants that the area is a habitable area holds no basis because they (the applicants) signed a declaration that the shed would not be used as a habitable area. 
  4. [134]
    When considering whether or not the shed was certified as habitable, the respondent not only knew from the very beginning that the applicants intended to establish a man shed type arrangement in the end bay which included a bathroom, a kitchenette and a mezzanine level; the respondent constructed the plumbing and the slab to suit, as well as the items just mentioned.  Although there is no evidence that the applicants were going to live in the shed, the respondent would have possessed the knowledge and understanding that there was an intention by the applicants to line that area in the future. 
  5. [135]
    The applicants have satisfied me to the requisite standard that the manner in which that portion of the shed was constructed, in particular the placement of the steel rod bracing, would significantly impede the future lining of the shed.  I am also satisfied that the steel rod bracing which extends across the open area beneath the mezzanine floor substantially impacts upon the applicants’ use and enjoyment of that entire area, and the mezzanine level requires the remedial work as described by LCJ Engineers.  
  6. [136]
    Turning to the issue relating to the internal wall.  Although the wall was not specifically identified as an individual cost item under the contract; it must be accepted by the respondent that it was included in the overall costings because the internal wall was installed as part of the shed’s construction, albeit it was one made from a different product to colorbond.  The respondent’s position is that it was only discovered at a later time that the wall was mistakenly included.  
  7. [137]
    Notwithstanding that, I find that it was reasonable for the applicants to hold an expectation and belief that although the wall was not specifically identified as colorbond in the contract, the wall was to be constructed as per their initial request and according to their itemised list.   
  8. [138]
    Because the applicants’ claim they have suffered a loss or damage by reason of the respondent’s actions, the extent of identifying the loss or damage rests with them.[94]   Damages are compensatory, and an actual loss must be demonstrated to both justify any award and to allow for a calculation of an appropriate or proper amount.  The applicants’ entitlement to damages arising from their claim must essentially be calculated by reference to what their entitlement was pursuant to the contract.[95]   
  9. [139]
    The applicants seek to be compensated for two specific issues.  Firstly, they argue that significant costs were spent to obtain expert reports from ABSCAN and LCJ Engineers in respect to identifying what remedial work was required.  The ABSCAN report discussed recommendations to correct identified defects or issues with the construction of the shed caused by the failure of the respondent to construct it in accordance with the contract.  The applicants’ expenses incurred by engaging ABSCAN were $2,035.[96]
  10. [140]
    Acting upon the recommendations of the ABSCAN report, the applicants engaged LCJ Engineers to prepare engineering plans for remedial alteration works on the shed.  After an assessment of the scope of works required on the shed, LCJ Engineers provided construction drawings designed for those alterations.  This was at a cost of $3,740 to the applicants.[97] 
  11. [141]
    Resulting from the experts reports, the loss incurred by the applicants by engaging ABSCAN and LCJ Engineers was $5,775. 
  12. [142]
    The second issue relates to the applicants approaching three local construction companies for quotes to undertake the required remedial work.  Provided to the Tribunal are documented quotes from Wilkinson Homes Pty Ltd, Tropic Roofing and Daniel Edwards.  Those quotes differ in costs. 
  1. (a)
    Tropical Roofing quoted $11,279 to undertake the remedial work, including the removal of the existing fibrous sheeting from the internal wall and the supply and installation of colorbond sheeting to the wall.
  2. (b)
    Daniel Edwards quoted $13,820.  This quote relates to the amongst other things, the removal of steel bracing and the relocating a steel post.  The quote does not discuss the work to be undertaken in regard to the internal wall.
  3. (c)
    Wilkinson Homes quoted a total amount of $29,079.  This is made up of three separate sub-quotes, being –
    1. The first sub-quote relates to undertaking remedial work (excluding the internal wall) according to the engineer’s report from LCJ Engineers.  That work is quoted at $19,206.
    2. The second sub-quote relates to the costs of $3,933 for the work associated with the removal of the fibrous cement product from the internal wall.
    3. The third sub-quote relates to the supply and installation of colorbond to the internal; wall.  That work is quoted at $5,940.
  1. [143]
    Given the differences in the amounts quoted by those three contractors, what is unclear is whether the instructions provided to each contractor was identical so far as the scope of works.  The quotes from Tropical Roofing and Daniel Edwards certainly reflect that their respective quotes do not canvass all of the remedial work.  Therefore, the only conclusion to be drawn is that those quotes are not helpful in determining any award of damages.
  2. [144]
    In respect to the Wilkinson Homes quotes, it does appear that all the remedial work was appropriately addressed in unity with the recommendation of the LCJ Engineers report.  
  3. [145]
    I am mindful that although the applicants have already incurred some expenses in engaging with ABSCAN and LCJ Engineers, they are yet to have the appropriate remedial work undertaken and it is reasonable to expect that over time, the remedial costs could very well have grown to a greater expense.
  4. [146]
    After considering the features of this dispute, and having regard to the overall evidence, I consider that the actions of the respondent amount to a loss by the applicants.  The applicants were then put to significant costs to rectify, or at least undertake appropriate remedial work on the shed, including having the internal wall constructed of colorbond. 
  5. [147]
    Furthermore, I am satisfied that the respondent failed to identify and/or disclose or advise the applicants of changes to the design plans and failed to construct the area commonly referred to as the man shed area in accordance with the respondent's drawings; and this prevents the applicants from using that part of the shed for its intended purpose.
  6. [148]
    In conclusion on the issue of damages, the applicants’ proposal is that if their application was successful, the award of damages by the Tribunal should be capped at the prescribed amount of $25,000.  I consider that having regard to the features of this matter, an award of damages to the applicants in that sum is appropriate in all the circumstances.    

Orders

  1. [149]
    The Orders that I make are –
    1. The respondent is to pay to the applicants the sum of $25,000 by 4:00pm on 30 March 2022; and
    2. The respondent’s counter claim is dismissed.

Footnotes

[1]The property is reasonably sized, consisting of 5,600m². 

[2]The QBCC Builder’s Licence was a Builder-Low Rise licence, numbered 1212808.

[3]Practical completion undertaken on 12/07/2017.

[4]The Building Code of Australia defines a Class 10a structure as a private garage, carport or shed.

[5]The applicants complained to the QBCC on 06/09/2017.

[6]The QBCC inspected the shed on 27/10/2017.

[7]The QBCC’s inspection report was completed on 03/11/2017.

[8]Originally filed on 17/10/2018.

[9]Respondent’s material filed 12/02/2019.  Second response to the applicants’ application at page 3, paragraphs 14 and 15.

[10]The respondent’s business was sold on 01/07/2017.

[11]Exhibit 1.

[12]Exhibit 3.

[13]Exhibit 1.

[14]Respondent’s material filed 12/02/2019.  Second response to the applicants’ application at page 9.

[15]Between 10/04/2017 and 20/04/2017. 

[16]Dated 20/04/2017.

[17]Statement of Sharon Neal filed 02/01/2019 at paragraphs 30 – 32 and attached Item 13.

[18]John Houghton.

[19]Applicants’ material filed 02/01/2019 at Item 14.  Form 61 issued 30/05/2017.

[20]Statement of Sharon Neal filed 02/01/2019 at paragraph 33 – 34 and attached Item 14.

[21]On 04/07/2017.

[22]Form 15 – Compliance Certificate for building Design or Specification.

[23]Dated 26/05/2016.

[24]Statement of Sharon Neal filed 02/01/2019 at Item 13.

[25]Statement of Sharon Neal filed 02/01/2019 at Item 14.

[26]The initial meeting between the parties took place at the respondent’s business premises on 09/04/2016.

[27]Respondent’s material filed 13/08/2018 at Appendix 12.

[28]Measuring 10m x 4.2m.

[29]Measuring 8m x 4.2m and located on the ground floor directly below the mezzanine level.

[30]Applicants’ material filed 18/07/2018 at Item 5.

[31]Applicants’ material filed 18/07/2018 at Item 6.

[32]Applicants’ material filed 18/07/2018 at Item 7.  The drawings are titled Floor Plan & Elevation, Drawing Number GARB02-2790.

[33]On 23/05/2016.

[34]Applicants’ material filed 18/07/2018 at Item 8.   The drawings are titled Floor Plan & Elevation, Drawing Number GARB01-2790.

[35]Applicants’ material filed 18/07/2018 at Item 9.   The drawings are titled Floor Plan & Elevation, Drawing Number GARB01-2878.

[36]Applicants’ material filed 18/07/2018 at Item 10.  Copy of the contract. 

[37]Respondent’s material filed 01/2019 at Annexure 53.  Respondent’s letter dated 08/06/2017.

[38]Applicants’ material filed 18/07/2018 at Item 11.  Email dated 09/02/2017. 

[39]Applicants’ material filed 18/07/2018 at Item 12.  Email dated 16/03/2017.

[40]Applicants’ material filed 18/07/2018 at Item 12.  Email dated 16/03/2017 from Emma Griffin.

[41]Applicants’ material filed 18/07/2018 at Item 12.  Email dated 16/03/2017 from Sharon Neal.

[42]Applicants’ material filed 18/07/2018 at Item 12.  Email dated 16/03/2017.

[43]Applicants’ material filed 18/07/2018 at Item 13.  Message left on voicemail of Gary Brooks by Stephanie Griffin. 

[44]Applicants’ material filed 18/07/2018 at Item 13.  Email dated 23/03/2017. 

[45]Applicants’ material filed 18/07/2018 at Item 13.  Email dated 23/03/2017 at 8:20am.

[46]Applicants’ material filed 18/07/2018 at Item 13.  Email dated 23/03/2017 at 9:42am.

[47]Applicants’ material filed 18/07/2018 at Item 14.  Exchange of emails between the parties. 

[48]The wall was constructed from unpainted 6mm Hardiflex fibrous cement sheeting.

[49]Applicants’ material filed 02/01/2019 at Item 15.  Email and photograph dated 18/04/2017.

[50]Applicants’ material filed 02/01/2019 at Item 15.

[51]Applicants’ material filed 18/07/2018 at Item 19.  Regional Certification Group is a private building inspector.

[52]Early August 2017.

[53]Inspection carried out on 01/08/2017.

[54]Exhibit 2 – ABSCAN report dated 05/09/2017.

[55]On 30/05/2016.

[56]Respondent’s material filed 13/08/2018 at Appendix 15A.  Email sent on 30/05/2016 at 1:29pm.

[57]Respondent’s material filed 13/08/2018 at Appendix 16 and Appendix 16A.

[58]Respondent’s material filed 13/08/2018 at Appendix 16 and Appendix 16A.

[59]ABSCAN report, Part 3.3(d) at page 23.

[60]Building Code of Australia 1996, Vol 2, Clause 3.8.2.2.  

[61]Respondent’s material filed 13/08/2018 at Appendix 71.

[62]Statement of Gregory James Griffin, paragraph 4.

[63]On 03/04/2017.

[64]Statement of Gregory James Griffin, paragraphs 5 – 6.

[65]Statement of Gregory James Griffin, paragraph 12.

[66]Statement of Gregory James Griffin, paragraph 14.

[67]Respondent’s material filed 29/01/2019 at Appendix 29.  Email dated 05/12/2016.

[68]Respondent’s material filed 13/082018, at Appendix 30.  Email dated 13/12/2016.

[69]Applicants’ material filed 02/01/2019 at Item 1.

[70]Respondent’s material filed 12/02/2019 at Appendix 76 – Appendix 85 inclusive.

[71]Applicants’ material filed 13/07/2018 at Item 6.

[72]Quote number 2878/1 dated 20/04/2016.

[73]Trimdek Profile is described as a versatile roof and wall cladding ideal for commercial, industrial and residential buildings.

[74]Respondent’s material filed 12/02/201 at Appendix 8.

[75]Respondent’s material filed 12/02/2019 at Appendix 69.

[76]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[77]Respondent’s material filed 12/02/2019 at Appendix 15A, page 1 of the floor plan and elevation diagrams.

[78]Email sent 27/04/2017.

[79]Respondent’s material filed 12/02/2019 at Appendix 53.  Respondent’s letter dated 08/06/2017.

[80]Respondent’s material filed 12/02/2019 at Appendix 53.  Respondent’s letter dated 08/06/2017.

[81]Respondent’s material filed 12/02/2019 at Appendix 53.  Respondent’s letter dated 08/06/2017.

[82]Applicants’ material filed 02/01/2019 at Item 15.  Email and photograph dated 18/04/2017.

[83]Applicants’ material filed 02/01/2019 at Item 15.

[84]Filed 17/10/2018.

[85]The respondent’s material has an error in the calculation which shows that the Cement Board Wall costs were $8,420.00, however the calculation of the identified claim adds to $8,433.20. 

[86]Respondent’s counter-claim filed 26/02/2019.

[87]Respondent’s written submissions dated 25/10/2010 at page 27.

[88]Respondent’s written submissions dated 25/10/2010 at page 28.

[89]Respondent’s material filed 12/02/2019 at Appendix 53.  The internal wall was referred to by Mrs Griffin in her response to the Office of Fair Trading as a ‘partition wall’. 

[90]Queensland Building and Construction Commission Act 1991 (Qld), s 67WF.

[91]Queensland Building and Construction Commission Act 1991 (Qld), s 77.

[92]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).  Note:  The definition of damages differs from costs.  Costs are the renumeration and disbursements incurred in relation to legal work, whereas damages are an award of a sum of money which places the applicant in the position they would have occupied had the respondent’s actions occurred:  See Haines v Bendall (1991) 172 CLR 60

[93]Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49, [197].

[94]Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286.

[95]Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49, [211].

[96]Statement of Sharon Neal filed 02/01/2019 at Item 18.

[97]Statement of Sharon Neal filed 02/01/2019 at Item 19.

Close

Editorial Notes

  • Published Case Name:

    Brooks and Neal v Australian Steel Kits Pty Ltd

  • Shortened Case Name:

    Brooks and Neal v Australian Steel Kits Pty Ltd

  • MNC:

    [2021] QCAT 410

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    03 Dec 2021

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
Haines v Bendall (1991) 172 CLR 60
2 citations
Jump To
Cite 1 - (1991) 172 CLR 60
Cite 2 - (1991) 172 CLR 60
Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286
2 citations
Jump To
Cite 1 - (1938) 61 CLR 286
Cite 2 - (1938) 61 CLR 286
Mousa v Vukobratich Enterprises Pty Ltd [2019] QSC 49
4 citations
Jump To
Cite 1 - [2019] QSC 49
Cite 2 - [2019] QSC 49
Cite 3 - [2019] QSC 49
Cite 4 - [2019] QSC 49

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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