Banks v Brookes[2022] QCAT 247

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   I will summarise the facts in this dispute. Also, from the outset I make the comment that some of the material filed in the Tribunal by the parties is marked “without prejudice”. The parties have not raised this as an issue, so I have considered all this material as being intended to be considered on an “open” basis.
2. [2]
   The Applicant, Wayne Banks (Banks), is the owner of a concreting business. The Respondent, Mark Brookes (Brookes), is the owner of a residential property situated at 1 Waigani Avenue, Kawungan, Hervey Bay (Property).
3. [3]
   Banks had carried out concreting works, including the driveway, on the Property some seven or eight years prior to undertaking the further works that are the subject of these proceedings. Brookes was happy with this work so he entered into discussions regarding further concreting works to be undertaken on the Property. The works involved constructing concreting works to adjoin the existing concrete driveway, a concrete path, creating a cross over on the Property, acid washing all areas and double sealing all areas.
4. [4]
   The parties entered in a verbal contract for these works to be undertaken by Banks and the cost of these works was agreed to be $8000. The invoice (Invoice) for these works is dated 5 August 2020 (see attachment 1 to the statement of Banks dated 11 September 2021 and filed on 15 September 2021). The Invoice sets out the scope of works to be undertaken and the cost of the components of the works.  In the statement referred to in this paragraph Banks sets out the dates that the works were undertaken with a completion date of all works on 23 August 2020. This timetable is not disputed by Brookes.
5. [5]
   The issues in contention are:

   1. (a)
      The colour of the new concrete and exposed aggregate of the surface of the new concrete does not match the colour and exposed aggregate of the surface of the existing concrete driveway. All parties agree that there is a difference. See attachment 4 to the statement of Banks dated 11 September 2021; and
   2. (b)
      Banks did not allow expansion joints around the downpipe, house bricks, carport post and drain; and
   3. (c)
      Washout in the exposed aggregate has caused a non-uniform appearance in some areas; and
   4. (d)
      Replacing a steel grate; and
   5. (e)
      Remove star pickets.
6. [6]
   Apparently, the star pickets have been removed, therefore this is no longer an issue. Further Banks has now agreed that he is responsible for issues (b), (c) and (d) in paragraph 5. I will comment later on the cost of rectifying these issues. Except for the issues in paragraph 5, the parties now agree that the works undertaken by Banks were constructed in a workmanlike and acceptable manner. I also note that although Brookes made a complaint to the Queensland Building and Construction Commission (QBBC) regarding his concerns with the concreting works, the QBBC has not given any formal directives to Banks.
7. [7]
   Brookes has paid Banks the sum of $1200 for the concrete path. Therefore, Banks is claiming that the sum of $6800 is owing to him.
8. [8]
   Prior to commencement of the works, the parties discussed the issue of matching the colour and surface of the new concreting works to match the surface and colour of the existing driveway. Banks informed Brooks that he was not aware of the exact concrete mix that he used when he constructed the original driveway on the Property. Accordingly, Brookes contacted Readymix Concrete, the concrete supplier for advice. Mr Colin Sparks of Readymix Concrete inspected the original driveway. It is not clear to me if Brookes was present during this inspection. However, Brookes says that he was not present during this inspection. This is not an important issue. After this inspection, advice was provided to Brookes and Banks about the appropriate concrete mix and the concrete was ordered and laid according to this advice. See paragraph 8 of the statutory declaration of Banks dated 2 February 2021.
9. [9]
   There is no doubt that there is a difference between the existing driveway and the new adjacent new concrete works. Brookes contacted Readymix Concrete and raised his concerns. These concerns were reviewed by a Mr Ridoutt, an engineer and a senior manager of Readymix Concrete. He sent a report of his review to Brookes on 13 November 2020. See attachment 3 to the statement of Banks dated 11 September 2021 and filed on 15 September 2021. 
10. [10]
    Unsurprisingly Mr Ridoutt does not accept any responsibility for the concrete mix delivered to the Property. He does make the following observations in his report:

    1. (a)
       The dispute is a matter between Brookes and Banks; and
    2. (b)
       The concrete supplier does not admit any liability for the aggregate proportions or the use of wrong sand in the mix. He says that the surface of the old driveway is some 8 years old which can discolour over time and “the paste” will become darker as dirt, mould, tannin and other staining is caught in the exposed aggregate; and
    3. (c)
       The density of the exposed aggregate can be controlled at the finishing stage; and
    4. (d)
       The join between the new and the old surfaces accentuates the difference in the finish of the two surfaces; and
    5. (e)
       Applying a sealer can change the apparent colour as the stones become more glossy; and
    6. (f)
       There are variations in batches because of the flyash product and the colour of natural products; and
    7. (g)
       One option to resolve the difference is to strip the sealer of the new concrete and make the sealer a bit darker by adding a tint and applying it to the new concrete. He says to take this option would require the advice of an expert and undertaking some trials before applying the darker sealer.
11. [11]
    It is clear that relations between the parties have broken down. An inspection by Banks scheduled for 9 December 2020 did not go ahead because Brookes was late and Banks and his consultant were prevented from inspecting the issues regarding the expansion joints, the steel grate and washouts of the exposed aggregate. By this stage Banks had accepted responsibility for replacing the steel grate and he was prepared to consider rectifying the other issues.
12. [12]
    Brookes outlines his position regarding this dispute in his statement of evidence dated 10 October 2021 and filed on 11 October 2021. In attachments 1 and 2 of this statement he states:

    1. (a)
       No further monies will be paid until the faults with the driveway are rectified; and
    2. (b)
       He does not want Banks to carry out any rectification works; and
    3. (c)
       Ideally, he would prefer the new concrete additions to be removed and to reinstate new concrete to match the existing driveway surface. However, there appears to be an acceptance of the surface of the new concrete; and
    4. (d)
       He would obtain quotes from independent companies to rectify the building code breaches; and when these issues are addressed by an independent contractor, the outstanding amount of $6800 will be paid to Banks.

Findings

13. [13]
    Banks admits that he is responsible for rectifying the issues regarding the steel grate, expansion joints and the washout areas in the exposed aggregate given the uneven surfaces.
14. [14]
    No party has provided any evidence as to the reasonable cost of rectifying these issues. However, I believe that these are not major issues looking at the scope of the works as a whole. I believe that it would be unfair to Brookes not to allow some compensation or set off for the cost of rectifying these issues. Accordingly, I nominate a nominal sum of $250 per item to rectify these issues. That is $750 in total and this a cost that is attributable to Banks.
15. [15]
    It appears that Brookes is now accepting the colour and aggregate difference in the  new concrete surface as completed by Banks. For completeness it is my view that Banks has acted appropriately and correctly. Brookes arranged for an inspection of the existing driveway and the concrete was ordered, delivered and laid by Banks in accordance with the mix recommendations of Readymix Concrete.
16. [16]
    There may be some issues with the laying of the aggregate by Banks, but these appear to be minor issues.
17. [17]
    In any event I believe that the principal outlined in Belgrove’s case applies to this matter. In the matter of Belgrove ^[1] the Court held

Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner's loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or materials.

As to what remedial work is both "necessary" and "reasonable" in any particular case is a question of fact. 

18. [18]
    In Bellgrove, the Court held that the method of dealing with a defect must be reasonable and a true measure of the owner’s loss. Therefore, even if Banks was responsible for the mismatch of the colour and aggregate it would not be appropriate to require him to be responsible for the demolition of the existing concrete and the laying of new concrete. This would involve a very substantial cost. Further, Mr Ridoutt in his report says that the problem of colour matching could potentially be resolved by removing the existing sealer and resealing the concrete with a darker tinted sealer. This has not been explored by Brookes and there is no evidence before me as to cost of this work. Therefore, I cannot make any findings in regard to this possible resolution.
19. [19]
    Therefore, I find that Brookes should pay Banks the outstanding amount of $6200 owing under the building contract.

Costs

20. [20]
    Banks has made a claim for costs. He has succeeded in a substantial part of his claim and I find that it is reasonable for him to recover the cost of filing the application in the Tribunal. He has also claimed costs for colour photocopying and postage. I also find that it is reasonable for Banks to recover these costs. The amount of these costs are $352 for filing fees, $31.40 for postage costs and $54.06 for photocopying costs making a total of $437.46.
21. [21]
    Banks has only attached a copy of one invoice for postage costs dated 15 March 2021 of $15.70 to his statement dated 15 April 2022 and filed 21 April 2022. In attachment 2 of the statement dated 15 April 2022 Banks is claiming postage of $15.70 for postage made on 19 April 2022. I assume that he may have claimed this cost in anticipation of posting the statement. Although Banks has not provided a copy of this invoice, I find that this postage cost was incurred by Banks and it is reasonable for him to recover this cost.
22. [22]
    On page 2 of his statement dated 15 April 2022, Banks outlines his claim for costs and interest. His claim for filing fees, photocopying and postage is a total of   $453.16. Whereas the claim total in attachment 2 is $437.76. I believe the correct amount is $437.76.
23. [23]
    Banks is also claiming his costs for the advice of and the services of the Australian Mentoring and Finance Centre in the sum of $1740.75. This organisation does not appear to have practising lawyers and there has been no orders made in these proceedings for leave to be given to any party to be legally represented. I do not believe that this claim is reasonable and I do not allow this claim.

Interest

24. [24]
    Banks has also made a claim for interest to be paid on his claim from 5 August 2020.
25. [25]
    The building contract is a verbal contract. There was no reference to a default interest rate that should apply to the verbal contract in the discussions or in written correspondence between the parties. S77 of the Queensland Building and Construction Act 1991(QBBC Act) applies to building contracts. S77(3) of the QBBC Act says:

77 Tribunal may decide building dispute

…

3. (3)
   Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers—

1. (a)
   order the payment of an amount found to be owing by 1 party to another;

2. (b)
   order relief from payment of an amount claimed by 1 party from another;

3. (c)
   award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;

4. (d)
   order restitution;

5. (e)
   declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;

6. (f)
   avoid a policy of insurance under the statutory insurance scheme;

7. (g)
   order rectification or completion of defective or incomplete tribunal work;

8. (h)
   award costs.

26. [26]
    In the matter of Worthington v Ryan; Ryan v Worthington [2021] QCATA 138 at paragraph 73 the Appeal Tribunal said:

[73]Damages are a substitutionary remedy. A claim for monies due and owing under a contract, with or without interest recoverable under the contract, is a claim for recovery of a debt. Absent a specific contractual entitlement to claim interest, it is evident from s 77 that the legislature intended monetary awards for claims for debts or liquidated demands to be dealt with in a different way to monetary awards for damages. In respect of the latter, the powers of the tribunal to award interest on damages are circumscribed by s 34B of the Regulation. There is no power in the tribunal to award interest on monetary awards for debts or liquidated demands other than in the limited circumstances to which we have earlier referred relating to default decisions.

27. [27]
    Any award or decision made in these proceedings in favour of Banks is a debt and this debt only arises when the decision has been made in these proceedings. S 73 of the QBBC Act does not apply to debts. Therefore, I do not allow the claim for interest made by Banks.
28. [28]
    The default interest rate that should apply to any outstanding debt or judgment made in favour of Banks is the applicable default interest rate of 6.85% that is published by the Supreme Court of Queensland for the period July to December 2022.

ORDERS

29. [29]
    Therefore, Brookes should pay Banks the sum of $6487.46 in these proceedings calculated as follows:

Contract price$8000.00

Less amount paid$1200.00

Less amount for rectification works$750.00

Plus costs$437.46

Total$6487.46

30. [30]
    Brookes should pay Banks the sum of $6487.46 within 21 days of the date of this decision.
31. [31]
    If Brookes does not pay the sum of $6487.46 or any part of this amount to Banks by the due date, then a default interest rate of 6.85% should apply to any outstanding amount due and owing to Banks.