Copping v Strohfeldt[2022] QCAT 195

23. [23]
    Clause 28.1 requires the builder to give the owner 5 business days prior written notice of the date upon which the Contractor anticipates that the works will reach Practical completion. The builder gave notice to the owner by email dated 27 March 2019 that the handover would take place on 31 May 2019.^[11]
24. [24]
    On 22 May 2019 the builder and owner’s representative inspected the works. The builder gave the owner a Form 21 which was to the effect that all relevant inspections and approvals had been carried out. The owner disputed that the works had reached substantial completion.
25. [25]
    Clause 28.2 requires the builder to give a Form 6 document (identifying agreed and disputed minor defects) and a Form 7 (certificate of Practical Completion) to the owner. When the builder has satisfied all his obligations under Clause 28.2 the owner should immediately pay the progress payment.
26. [26]
    The builder had not provided these forms, consequently, the owner was not at that time obligated to make the progress payment. However, the builder had not actually claimed that practical completion had been reached and had not initiated the preparation of a Form 6. It is relevant that though an inspection by the owner’s representative had been carried out the list of defects had not been passed on to the builder.
27. [27]
    The owner then on 24 May 2019, by his solicitor, purported to terminate the Contract.
28. [28]
    It is tolerably clear that the solicitors, with some minor exceptions, in particularising the alleged breaches, have merely reproduced the descriptors of a substantial breach as set out in the Contract. However, the body of the letter listed some details as:

    1. (a)
       Damage caused o the dwelling during the relaying of the floor.
    2. (b)
       Defective work involving tiling in the bathroom and ensuite (uneven, poor adhesive and poor quality grouting.
    3. (c)
       Paint and plaster damage throughout.
    4. (d)
       Damage to louvre frames and door frames. 

The law relating to termination under a contractual clause

29. [29]
    Hudson’s Building and Engineering Contracts^[12] referring to the general rule concerning modern termination clauses said:

Express notice requirements are often in ‘two tier’ form … In every case the clause must be carefully considered and closely followed in all respects, both as to the contents and timing of the notices, but the courts will usually regard the notices as commercial documents, and the modern approach is to interpret notice clauses with regard to their commercial purpose [Mannai Investments Co Ltd v Eagle Star Assurance [1997] AC 749]. Provided a reasonable recipient of the notice can be left in no reasonable doubt as to its meaning the form of words used will usually not be important.

30. [30]
    Megarry J in Hounslow LBC v Twickenham Garden Developments Ltd^[13] referring to the requirements of a termination clause said: -

I do not read this condition as requiring the architect, at his peril, to spell out accurately in his notice further and better particulars, as it were, of the particular default in question. All that I think the notice need do is to direct the contractor's mind to what is said to be amiss: and this was plainly done by this notice. If the contractor had sought particulars of the alleged default and had been refused then, other considerations might have arisen.

31. [31]
    In White Industries (Qld) Pty Ltd^[14] a notice of intention to terminate was given in accordance with a provision similar to Clause 26 of the Contract in this case. The issue before the Court was that the notice gave insufficient detail of the breaches. Byrne J said at page 4:-

Plainly the requirement imposed by cl. 12. 01 that the notice must not only "specify" but also "detail the default relied on" was intended to ensure that the builder was adequately informed of the allegations of breach of contract made by the proprietor. It is only if the notice descends to such particularity that the builder could avail himself of the opportunity cl. 12.02 provides to remedy the default " in terms consistent with this Agreement" and avoid the proprietor's determining the contract, with all the serious consequences that step involves.

32. [32]
    The phrase used in Clause 26.1, it could be argued, does not require the same degree of particularity but requires the Owner to give a notice describing each alleged substantial breach of this contract.
33. [33]
    Byrne J went on at page 6 to observe:

It was said for the proprietor that the sufficiency of the notice could be established if regard were had to what had gone before between proprietor and builder. It is not necessary for present purposes to decide whether the notice cl.12.01 requires must be self-contained or else may be effective if it incorporates by reference material not actually served with it. The present notice does not clearly identify any document or other matter that might provide the detail the notice itself ignores.

The hearing

34. [34]
    The witnesses gave their evidence over the telephone. Neither were legally represented. Many individuals who gave statements or expressed opinions on which one or the other party relied were not required for cross-examination. The material filed by both parties was extensive and confusing. QBBC complaints issues and issues the subject of this building dispute were intermingled and duplicated. This has added complexity in reaching a decision in this matter.
35. [35]
    Both the owner and the builder gave evidence and were cross examined by the other. It is difficult to make assessments of witnesses based on their responses by telephone. However, I found the owner to be very fastidious, demanding and emotional about the “disgraceful way’ the building work had been carried out.  I did not think he was always accurate in his complaints. However, I had no reason to question his credibility.
36. [36]
    The builder I found to be frustrated by the process he had been put through by the many complaints that the owner had made to the QBCC and their indecisions in how to treat the complaints. He believed that the owner had brought these complaints merely as a ruse to avoid paying the final instalment. Again, I have no reason to question his credibility.
37. [37]
    Mr Malcolm Hull, Regional Manager for Mackay and the Whitsundays area of the Master Builders Association gave evidence for the builder. Mr Hull attended an inspection on 26 July 2019 with the owner, builder and QBCC inspector.  He believed the extensive list of alleged defects were beyond what one would have considered fair and reasonable and some he considered were a direct consequence of the owner’s interference including the painting. He thought the owner did not have a clear understanding of the sequence of project works. He thought that gap filling and final pre-paint work was not undertaken in a professional manner which resulted in many of the defect items being put on the builder’s list when it should have been on the painter’s list. He observed when inspecting the works that somethings were painted, some things weren’t painted, and it was obvious that they were not done in order of sequence that would have occurred with professional trades.^[15]

Form 21

38. [38]
    This document was generated following the inspection on 22 May 2019. The document was signed by Ken Murray. It records inspections of four building stages from Footings to Final Stage items. Robert Murray of AAA Building Consultants provided a statement. It is not clear what his relationship is to the Ken Murray but both come from the same organisation.
39. [39]
    Robert Murray states, inter alia, that he was the building surveyor involved in assessing the documentation and stages of works but, presumably, not the final inspection. He states that the building was substantially completed as defined under the Building Act 1975. Further, he states that much of the finishing works were being undertaken by the owners themselves (which included painting and floor finishing). This would mean that a number of defects listed are a direct result of the owner’s involvement and lack of understanding of the building process. He referred to the QBCC ‘Standards and Tolerances Guide’ which states in section 1.5 “Responsibility to rectify’, that, ‘Contractors do not have to rectify damage caused by the owner’s actions or inactions or those of other people engaged by the owner’. He further stated that ‘Given that the majority of the ‘defects’ listed are primarily to do with painting, skirting and general finishing it is difficult to determine where the onus of responsibility lays given that the owner has been involved in a number of aspects of the works.’
40. [40]
    Neither Ken Murray nor Robert Murray was required for cross-examination.

Alleged breaches

Delay

41. [41]
    The Contract contains the following timetable and time estimates:

Starting date2 July 2018

Completion period245 days

Date for practical completion 3 December 2018

42. [42]
    The builder claims that practical completion was attained on 22 May 2019, 170 days later. It appears the owner acknowledged that there were weather delays and holiday period claims which I refer to below. He states that the builder made such a claim on 5 April 2019. Unfortunately, I am unable to find a reference to the document in the material.
43. [43]
    The issue when considering delay as a substantial breach is whether the builder was guilty of unreasonably failing to perform the work diligently or unreasonably delaying, suspending or failing to maintain reasonable progress. Before delay can constitute an unwillingness to perform the works, the delay must be protracted and clearly demonstrate an abandonment of the obligations under the contract.^[16]
44. [44]
    In an undated letter^[17] but one which followed complaints about the timber floor on 8 February 2019 the owner observed that:

I note the build is now significantly behind schedule from the due date 3 December (2018), I acknowledge the weather delays & holiday period as acceptable delays but request you fully scope the remaining work including the major defects and advise me of a realistic new completion date.

45. [45]
    As I have already observed above the builder gave notice to the owner by email dated 27 March 2019 that the handover would take place on 31 May 2019.^[18] Presumably, that was in response to the email referred to in the preceding paragraph. There is no recorded response by the owner to this email. The term “handover” is not defined in the Contract though it is used in Clause 28.2 (c) as the final steps of practical completion.
46. [46]
    The particulars given by the owner in the solicitor’s letter of 8 May 2019 does not descend to detail other than repeating the substance of the clause in the Contract.
47. [47]
    It is apparent from the undated letter referred to above that though there had been delay the owner did not consider, at the time, that the delay amounted to a substantial breach. Following this letter which requested the builder to remove and reinstate the timber floor, a meeting took place on 22 March 2019, and the owner agreed to remove and relay the timber floor. It was anticipated that the floor would be completed by 12 April 2019.^[19]
48. [48]
    On 8 May 2019 the owner gave his letter of complaint alleging various defects and delay. Following this on 13 May 2019 the parties signed a variation document. Then followed the inspection and Form 21 Notice by the builder on 22 May 2019.
49. [49]
    The owner had Available Building and Pest Inspections inspect the premises. It states the inspection took place on 23 May 2019 but says the report was prepared on 17 May 2019.^[20] It records that no one was in attendance at the time of inspection.
50. [50]
    By the solicitor’s letter of 24 May 2019, the owner then disputed that Practical Completion had been attained and terminated the Contract. The owner in the termination letter has not expressly claimed delay as a basis for termination nor could he in the time between the giving of notice and the termination of the Contract.
51. [51]
    The builder then invoiced the owner with his Final Progress Claim of $37,801.00 dated 1 June 2019.^[21]
52. [52]
    The owner then filed a Notice of Dispute of Progress Claim dated 3 June 2019 rejecting all of the progress claim. By email dated 19 September 2019 the owner provided a list of defects and omissions to be rectified to be carried out no later than 28 days from the notice.
53. [53]
    The time for completion of the works had passed by the time the Notice was given. In my opinion the builder had given the owner notice of the anticipated date that practical completion would be achieved, and he was working towards it. Alternatively, if there was no extension of time agreed upon and no other date agreed then the builder would be expected to complete the work within a reasonable time.^[22]
54. [54]
    On either view, it is my opinion that the Notice of Termination which gave the builder 10 days to remedy the breach was not reasonable, if delay was the only basis on which substantial breach was based. In my opinion delay as a ground for the Notice of Termination could not be considered a basis for substantial breach.

Other grounds for termination

55. [55]
    The Notice refers to breaches for defective work. It should specify each default and state with reasonable explicitness what was required to be done about it. To some degree it does. However, the letter of 8 May 2019 refers to several defaults that cannot be remedied either in the time granted, or indeed, at all. For instance, the builder could not complete the work by 3 December 2018 as that date had already passed. Similarly, unreasonably failing to repair or remedy defective work or materials would not be reasonably achievable in the time, particularly when no details have been provided.
56. [56]
    Generally, a breach consisting of mere negligent omissions or bad workmanship where the work is substantially completed does not go to the root of the contract in the ordinary lump sum contract.^[23]
57. [57]
    Specific reference was made by the owner to the state of tiling in the bathroom and ensuite. The builder in evidence said that the Commission had deemed there to be no defects. ^[24] The report by Mr Dobie found that the tiling was in allowable allowances but did find some defects and issued a direction to rectify unevenly installed grout in the tiled wall to the shower rose in the ensuite. This was not a significant defect and could not on its own be considered a substantial breach. Where the contractor refuses or persistently neglects to remove or remedy defective work or improper materials so that the progress of the works is significantly, adversely affected then that may be a contractual basis for termination of the contract.^[25] That is not the case here.
58. [58]
    In my opinion, the owner had not established a proper basis for termination of the Contract either at common law or pursuant to the terms of the Contract.
59. [59]
    For the sake of completeness, I accept that the owner could terminate the contract on grounds he was previously unaware of, but he cannot rely upon an undisclosed ground for termination where there is a contractual precondition for notice to be given and an opportunity to remedy the default.^[26]

Consequences of wrongfully termination the Contract

60. [60]
    An ineffective attempt to terminate the contract based on a forfeiture clause does not necessarily of itself amount to a repudiation of the Contract.^[27] Following the owner’s termination the owner moved his family into the house in September 2019, changed the locks and refused the builder access. The builder claims that he was unable to complete the Form 6 and Form 7 without access. Also, the builder says that the Council could not get access to do inspections. ^[28] Wrongful ejection of the builder from the site will amount to a repudiatory breach.^[29] This conduct shows an intention not to be bound by the Contract. I find that the builder has accepted the repudiation and that the Contract was rescinded.
61. [61]
    That does not mean that existing rights and obligations at the time of rescission are not enforceable. The following passage from the decision of Dixon J (as he then was) in McDonald v Dennys Lascelles Ltd ^[30]is apposite.

When a party to a simple contract upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.

62. [62]
    The repudiation of the Contract absolved the builder from complying with the steps to achieve Practical Completion. The owner having repudiated the Contract still treated it as on foot by requiring the builder to comply with various clauses of the Contract with respect to defects. Excluded from the site it was not possible for the builder to further comply with his obligations under the Contract. However, he remained liable for defective and incomplete work, for at the time of rescission the builder had claimed the dwelling was substantially complete as evidenced by the Form 21 Final Inspection Certificate.
63. [63]
    The builder alleges that the owner was in breach of the Contract by not paying the Final Contract Instalment. It is implicit in that submission that he was absolved from providing a Form 6 and Form 7 in accordance with the Contract because of the owner’s breach. I note that although the owner engaged a building inspector to attend the site on 22 May 2019^[31] no list of defects appears to have been provided at that time.
64. [64]
    Although I have found that the builder has accepted the Owners wrongful repudiation of the Contract that does not necessarily give rise to an obligation for the owner to pay all or part of the final progress payment. That sum should be adjusted for any defects and omissions.
65. [65]
    The builder is also obligated to comply with his legislative obligations arising under the Queensland Building and Construction Commission Act 1991 (QBCC Act). 

The Builder’s claim

66. [66]
    The builder seeks payment of the Final Progress Payment of $37,801.00. That is calculated as follows:

Final payment$55,318.00

Less credit for payments for items purchased ^[32]$16,000.00

Less credit for items purchased by owner or less

than the amount quoted $21,527.00

Plus Variation Document 3 ^[33]$20,010.00

Total$37,801.00

67. [67]
    The amount of $20,010.00 is contentious as it is contained in a variation document signed by the parties but the owner claims that the sum of $5,031.40 had been handwritten in later and not approved although he appears to concede that it relates to items that were provided but submits that they were items to be included in the Contract. ^[34]
68. [68]
    The handwritten part of the variation does not comply with the Clause 21 of the contract nor the legislative requirements of Section QBCC Act Schedule 1B Part 6, nor does it fall within the exceptions. Therefore, it is not recoverable.             

Liquidate damages

69. [69]
    The owner claims $8,400.00 being 168 days at $50 a day.
70. [70]
    The Contract provides that in Clause 24 that liquidated damages will be paid at the rate set out in Item 19 of the Schedule. If Schedule Item 10 is left blank, then $50 per day would apply. However, Schedule Item 10 is not blank but contains a handwritten entry of $0. Therefore, there is no basis for the claim of $8,400.00. That seems to be accepted as the issue was not raised in subsequent statements or in oral evidence.

Owner’s claim

71. [71]
    The owner’s claim of $58,244.00 comprises:

    1. (a)
       credit on prime cost items  $28,256.34
    2. (b)
       credit for owner supplied items$3,079.46
    3. (c)
       items not supplied but quoted for $17,486.50
    4. (d)
       costs to rectify damage due to floor repairs $9,422.00

Prime cost items

72. [72]
    The Schedule to the Contract allows the sum of $45,000.00 for the kitchen, vanity and walk in robes. The owner says that the invoice for these items amounted to $24,348.00. The owner bases this on the invoice from Pioneer Cabinets which totals $33,075.90 but includes cabinetry for linen cupboard in the laundry as well as benches and desk. The builder says that they were all prime cost items. They are clearly cabinetry supplied and installed by Pioneer Cabinets. The owner says that they were in the plans. No plans are in evidence, but I would be surprised that the cabinetry was a prime cost item for the kitchen but not the laundry, which the builder says was unique.^[35] I find that actual spend on the prime cost items was $33,075.90 which agrees with the credit allowed by the builder of $11,924.00.
73. [73]
    The owner referred to the waste-water system where the prime cost allowed was $18,000.00 and the actual cost was alleged to be $13,440.00. The builder has allowed a credit of $4,560.00 for this item. A claim was also made for the hot water system. The prime cost was $4,860.00. The actual cost was $1,757.36. The builder allowed the full cost as a credit of $3,042.00, it should have been $3,102.64. An error of $60.64.

Owner supplied items 

74. [74]
    The owner claims he supplied fans and lights at a cost of $2,472.48 and bath tap ware at a cost of $606.98 a total of $3,079.46. the only mention of these items is “tap ware” in the prime cost and the description as being Reece Building range. There is no cost stated and the owner did not develop this claim further. I am unable to make a finding in respect of it.

Items not supplied as quoted

75. [75]
    The owner claims the sum of $17,486.50 for this item. The claim comprises:

    1. (a)
       A claim of $4,200.00 for short fall of concrete supplied at $35m². The driveway required 120m² of concrete but only 85m² supplied. The builder says he supplied more than was necessary. At 100mm to cover 120m^2, 12m³ would be required he provided 13m³. The owner relies upon the initial quotation^[36] for the basis of his claim that the driveway would be 120m^2. The parties say it was not in the plans or specifications. The builder says that he sent photos of the boxed shape of the driveway to the owner and he was happy with it.^[37] The owner says he spent $4,000 on concrete to finish the driveway he wanted.^[38]Photos show an acceptable driveway bearing in mind it was not contained in any specifications. There also seems to be confusion on the owner’s part between cubic metres and square meters. The builder says the remaining concrete was used on a slab on the laundry side with a step.^[39] I note that the owner does not dispute the conversation about the boxed-up driveway and whether he was happy with it.^[40] I disallow the claim.
    2. (b)
       Patio sand and finish. The owner claims the sum of $2,002.50. The builder says that all timber floors were to be finished by the owner. That appears to be a reasonable interpretation from a reading of the Provisional Sums Schedule of the Contract referred to above. The owner wished to save money and sanding the floors would be something he could have attended to. He had agreed to sand the internal floors.^[41]
    3. (c)
       Internal and external builders clean. The amount claimed is $852.00 and $750.00 respectively. The builder say that he was ejected from the site before he could attend to the cleaning.^[42] If allowed to carry out the clean the cost to the builder on site would have been significantly less. I don’t allow the claim.
    4. (d)
       Internal skirting. The owner claims $1,450.00. The owner emailed the builder on 18 April 2019^[43] to the effect that he not install the skirting boards over the timber floor until the floor finishing was complete. If the skirting was not installed by handover date he guaranteed that it would not affect or delay final payment. He says that he expected that the skirting would be put on after practical completion.^[44] But the builder was ejected from the site. I dela with this claim later.
    5. (e)
       Solid entry door. The owner says that a solid door was not supplied. QBCC inspection revealed that the door installed was for external use. There are no specification as to the door to be used. The Commission found insufficient evidence to find a defect. I agree.
    6. (f)
       Mitsubishi 8.0kW A/C (7.1kW undersized installed). The owner claims $1,978.00 (estimate). The provisional sum schedule refers to A/C 2.5 to bed 2 & 3, 3.5 to Bed 1, 8kW to living. The quotation specifies 7.5kW not 8kW conditioner. The manufacturer’s details^[45] state the conditioner has a cooling capacity of 7.1kW and heating capacity of 8. kW. The issue was not the subject of oral evidence and was not explored by the parties in submissions. I note it is an estimate and no allowance has been made for salvage. I don’t allow the claim.
    7. (g)
       Oven installation. The amount claimed is $750. The invoice is for $715.00 and relates to installing gas service to cooker. I am not satisfied that this is a provisional sum. A sum of $2,000.00 was allowed as a provisional sum^[46] and the builder gave credit for this sum in the ‘credit for items purchased by owner’ of $21,527.00 even though the owner did not include it in his claim. It was not the subject of oral evidence.^[47]I do not allow the sum.
    8. (h)
       Front Crimsafe security door not provided. The quote refers to Crimsafe or equivalent to all doors and louvre windows. The Contract Provisional Sum schedule provided for Crimsafe screens for all sliding, front & laundry doors and to all louvres. The only mention of screens was in the course of evidence where the owner said that the screens, initially did not fit because the door was out of alignment, and it cost him $1,000 to fix.^[48]He claims an estimate of $1,250.00. Various quotes have been obtained by the owner ranging from $1.432.00 to $1,057.97.^[49] I will allow the sum of $1,057.97.
    9. (i)
       Sewerage treatment System Certification & Backfill. Mr Dobie, the building inspector, found the system installed and functioning, but the trenches had not been back filled. This did not comply with the AS 2032-2006 and a direction to Rectify was issued. The owner said this was an item that would have been attended to had he been paid the progress payment and not been excluded from the site.^[50] The owner claims $1,255.00. If the builder were to have carried out the work it would have been at a significantly less cost. I deal with this later.
    10. (j)
        Data cabling. This is said not to have been done. The only reference was in the quote that there would be 5 double data cable points. There was only passing mention of the omission during evidence.^[51] The owner had several quotes ranging from $1,485.00 to $1,760.00.^[52] It is not at all clear that what it is alleged was contracted for is the same as what is sought in the quotes. I am not prepared to allow this on the evidence available as I am uncertain as to what was agreed between the parties.

Building costs to rectify subsequent damage due to floor repairs

76. [76]
    The builder replaced the blackbutt flooring which was the subject of a complaint in March 2019. It became apparent in February 2019 and the builder agreed to replace it on 25 March 2019. ^[53] The owner claims $9,422.00 comprising:

    1. (a)
       Completion of flooring $2,322.00
    2. (b)
       Internal paint & gyprock repairs$4,700.00
    3. (c)
       Repairs to cupboards and bench tops$2,400.00
77. [77]
    It was agreed between the parties that the owner would do the sanding. He says he had started to sand the floor when it started to buckle.^[54] It was pulled up and re-laid. When it was re-laid, he did not have time to do the sanding himself so he asked the builder to do it and to make it a variation.^[55] The builder refused as he did not have the relevant insurance to cover a sub-contractor to carry out the work.^[56] I do not understand why the owner has included it in his claim as he appears to concede that he was responsible for it.
78. [78]
    The builder has refused to carry out the repairs following the relaying of the floor. The owner in a letter says that the builder agreed to repair and replace damage done to cabinetry, bench tops and paint work following reinstalling the timber flooring.^[57] This is inconsistent with his email^[58] to the owner date 27 March 2019 where he said would fix any damage following removal of the kitchen and bedroom cupboards but would not fix any painting. The reason he claims is that there had been pre-existing damage that normally a painter would include as part of his touch up work. The builder does concede some of the damage was caused by him in re-laying the floor. The amount claimed is $4,700.00 for painting and gyprock repairs and $2,400.00 for repairs to cupboards and benchtops.
79. [79]
    The owner supplied photographs of the benches with building materials on them which he suggests confirms that it was the builder or his men who caused the damage. I note that the floor was sanded after by the owner or someone he engaged. It has not been established that the builder was responsible. He denies liability. The amount claimed of $2,400.00 appears to be excessive. No evidence was called as to what would be involved in repairing it.
80. [80]
    Many of the above items are duplicated in the Direction to Rectify which I will discuss below.

Rectification costs

81. [81]
    QBCC Inspector Simon Whitecross was asked to quantify the cost of rectifying these items as Mr Dobie was not available. Mr Whitecross assessed the cost at $4,910.00. Manhill Pty Ltd trading as Peter Town Homes assessed the cost at $49,399.00. TND Constructions Pty Ltd assessed the cost at $75,661.31. Neither quote is itemised, but it appears that the drainage work may be considered complex and difficult.^[59]

Defects subject of the Direction to Rectify

82. [82]
    On 30 March 2020 the Commission gave the builder a Direction to Rectify (‘DTR”) in respect of 35 items. An internal review was requested by the owner and a decision was made on 1 June 2020 that it was not fair to issue the DTR. In reviewing the complaint, the review officer observed that neither party disputed the finding of defective works. Subsequently, the scope of works^[60] dated 10 September 2020 reduced to 19 items and was let out to tender. The builder accepts that he is liable for some of those items.
83. [83]
    As noted earlier there is a degree of duplication in respect of the items the subject of the DTR and the matters claimed by the owner in this claim.

Item 1 Site drainage issues

84. [84]
    This was Item 2 in the original inspector’s report of 30 March 2019. The inspector found water ponding under the dwelling. It was noted that there had been a considerable amount of rain around the site. The inspector found that the builder had not provided adequate site drainage and had not complied with NCC 2016 Building Code of Australia Surface Drainage nor with AS 2870-2011 Residential slabs and footings. Rectification required the removal of the hot water system and removal of the slab outside the laundry then the excavation of a 300mm wide trench to the depth of footing height, the application of a waterproof membrane, the installation of ag pipe, sump rock and geotextile fabric over sump rock.

The builder disputes he is responsible for all this work as the owner had told him that he would put a 1 meter footpath along the side of the dwelling which would have prevented water getting closer than 1 meter. He claims that the owner took on the responsibility for the drainage. The builder states that he made the slab 400mm thick on the side of the laundry to prevent water penetration. He agrees that the subsoil needs to be graded away from the affected area. The cost of rectification was assessed by a building inspector Mr Whitecross at $840.00^[61] however, other assessments may be higher but are not itemised. I have allowed $840.00.

Item 2 Remove grout around shower rose

85. [85]
    The builder accepted this defect. Assessed by Mr Whitecross at $20.

Item 3 Ensuite shower grate damaged

86. [86]
    The builder accepted this defect. Costed by Mr Whitecross at $30

Item 4 Paint damaged shower grate

87. [87]
    The owner disputes this as he is not responsible for painting but if liable for damage, then the painting would be his responsibility. Assessed by Mr Whitecross at $40.

Item 5 Flange around kitchen sink waste pipe

88. [88]
    This requires a wider base to cover the gap. The owner has not commented on this item. Assessed by Mr Whitecross at $30.

Item 6 Patch damaged door mouldings in bedroom 1

89. [89]
    The builder says that the owner was responsible for all internal and external painting. He relies upon the agreement he had with the builder and the painting and decorating Scope of Works published by the Commission. He submits that where there is a sub-contractor painter it is usual for the painter to return, after other trades have finished, to touch up any damage done by those other trades. In my opinion, the damage to some of the walls and ceilings required more than touch up painting. The builder concedes that he caused some of the damage. Doing the best that I can I allow the sum of $1,000.00 as some allowance for this damage bearing in mind that when carried out by the builder it would be a significantly less cost  to the builder than the cost of engaging outside contractors. I base the assessment on the assessments of QBCC Inspector Simon Whitecross.
90. [90]
    Item 7 Patch damaged door mouldings and walls in bedroom 2.
91. [91]
    See response to item 6

Item 8 Patch damaged and make good walls and mouldings in bedroom 3.

92. [92]
    See response to item 6

Item 9 Patch and make good, damaged walls and mouldings in kitchen, dining and living rooms.

93. [93]
    See response to item 6

Item 10 Patch and make good, damaged wall behind toilet in main bathroom.

94. [94]
    See response to item 6

Item 11 Patch and make good the mouldings in the ensuite.

95. [95]
    See response to item 6

Item 12 Fill gap between main bedroom walk in robe cupboards and timber floor.

96. [96]
    See response to item 6

Item 12 Paint and make good ensuite cavity door.

97. [97]
    See response to item 6

Item 14 Paint the damage to aluminium ensuite louvre window frame.

98. [98]
    See response to item 6

Item 15 Remove enough floor and skirting tiles at entry of ensuite, laundry, toilet and main bathroom

99. [99]
    The builder agrees that this is a defect. According to Mr Whitecross the cost of rectification would be $1,750.00

Item 16 Patch cracks in cornice in butlers pantry main bathroom and ensuite.

100. [100]
     See response to item 6

Item 17 Remove and reinstall drainage pipes from the main building to onsite sewage treatment system.

101. [101]
     The builder says that the Council plumbing inspection had been booked and the trenches were left open to allow the inspection. As the owner took possession of the property, he was unable to gain access to the property so that the inspection could take place. Mr Whitecross the cost assessed the cost at $400.00

Item 18 Install and ensure subfloor ventilation complies with current building codes.

102. [102]
     The builder disputes that the subfloor ventilation does not comply with Building Code of Australia. He says it was approved by the certifier. Mr Dobie says in his report that the ground beneath the suspended floor was not graded. That the builder had installed adequate area of subfloor ventilation but had not spaced the ventilation evenly throughout the subfloor. That did not comply with NCC 2016 Building Code of Australia, 3.4.1 Subfloor Ventilation. Mr Whitecross questioned whether this was reasonably required. The cost of rectification was $500.00.

Item 19 Patch and make good plaster board walls in main bedroom walk in robe.

103. [103]
     See response to item 6
104. [104]
     The total cost for items I consider the builder is responsible for amounts to $4,610.00.

Conclusion

105. [105]
     In my opinion the builder has established a claim for $32,768.96 which is the amount claimed less the disallowed variation of $5,031.40 and $60.44.
106. [106]
     I allow the owner’s claim for defects comprising:

     1. (a)
        Site drainage $840.00
     2. (b)
        Items 2, 3, 4 & 5$120.00
     3. (c)
        Item 15 Install water stops$1,750.00
     4. (d)
        Item 17 Sewage backfill$400.00
     5. (e)
        Item 18 Sub- floor ventilation$500.00
     6. (f)
        Allowance for some damage but not painting1,000.00

Total$4,610.00

107. [107]
     Other than for the supply of the security door the builder could have achieved the rectification work at a lesser cost if he had carried out the work himself. On that basis I have discounted those items by 20%. That amounts to $3,688.00. The total with Crimsafe security door at $1,057.97 is $4,745.97.
108. [108]
     I order the owner to pay the builder the sum of $28,022.99.
109. [109]
     There is no basis for a claim of interest as the parties agreed to 0% interest on overdue payments.^[62]
110. [110]
     As the parties were self-represented. The Applicant has claimed a filing fee, but in all the circumstances, and in view of the varying degree of success of the parties I make no order as to costs.