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Scott t/as Fantasy Pools Brisbane v Schreiber[2022] QCAT 316

Scott t/as Fantasy Pools Brisbane v Schreiber[2022] QCAT 316

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Scott t/as Fantasy Pools Brisbane v Schreiber & Anor [2022] QCAT 316

PARTIES:

Lupton scott trading as fantasy pools brisbane

(applicant)

V

rob schreiber

gem schreiber

(respondents)

APPLICATION NO/S:

BDL200-20

MATTER TYPE:

Building matters

DELIVERED ON:

30 August 2022

HEARING DATE:

24 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. Rob Schreiber and Gem Schreiber are to pay Lupton Scott trading as Fantasy Pools Brisbane the amount of $15,447.94 within 28 days of the date of these orders.
  2. The counter-claim filed on 4 May 2021 is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where respondent has failed to pay applicant – where respondent claims work is defective – where lack of evidence of defective building work – where lack of evidence to establish damages

Marsh v Walter Iezzi Property Group [2021] QCAT 191

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Applicant:

Self-represented

Respondents:

Self-represented

REASONS FOR DECISION

  1. [1]
    Mr Scott is a swimming pool builder who trades as Fantasy Pools Brisbane.
  2. [2]
    Mr and Mrs Schreiber own a property in or near Gladstone.
  3. [3]
    On 7 April 2019, Mr and Mrs Schreiber entered into a contract with Mr Scott for the construction of a swimming pool on their property.
  4. [4]
    As is the case with matters that come before the Tribunal, the parties have not been able to reach agreement on certain aspects of the project.
  5. [5]
    Mr Scott has lodged a claim for $11,592 in unpaid invoices, plus interest and costs.
  6. [6]
    Mr and Mrs Schreiber have lodged a counter-claim for:

Claim for Damages for Breach of Contract.  Fantasy Pools to pay the sum required for rectification of all deficiencies and damages caused by the process.  All required rectifications to be carried out by independent qualified contractors.

  1. [7]
    I note at the outset that Mr and Mrs Schreiber have failed to quantify their damages, except insofar as they have provided a quote for replacing the pebble finish.
  2. [8]
    I will proceed to separately examine the claim and counter-claim in turn.

Claim by Mr Scott

  1. [9]
    The contract entered into between the parties provides for progress payments at certain stages.  Relevantly, the contract provides for the following payments:
    1. (a)
      Stage 5 (Completion of the internal lining and initial chemical treatment) – $20,627; and
    2. (b)
      Stage 6 (Practical Completion) – $1,000.
  2. [10]
    Clause 11.7 and item 20 of the Schedule require the owner to pay progress claims within five business days of receiving a claim.
  3. [11]
    Clause 11.8 provides that, subject to exceptions which are not presently relevant, the owner has no right to deduct any amount from a progress claim made under clause 11.7.
  4. [12]
    Mr Scott’s evidence in his statement filed on 17 June 2020 is that the pebble interior and initial chemical treatment was completed on 21 August 2019.  While Mr and Mrs Schreiber have claimed that the work was defective, which are discussed below, they do not appear to dispute that the relevant work was completed on that date.  Mr Scott issued invoice 1671 for stage 5 in the amount of $20,627 on 21 August 2019.
  5. [13]
    Mr and Mrs Schreiber eventually paid $10,000 on or around 12 September 2019, well beyond the period of five business days allowed under the contract.  Accordingly, Mr and Mrs Schreiber owe Mr Scott $10,627.
  6. [14]
    Mr Scott issued invoice 1695 for stage 6 in the amount of $965 on 14 September 2019.  In explicably, this is less than the contractual amount, however that is a matter for Mr Scott.
  7. [15]
    “Practical completion” is defined in the contract as follows:

Practical completion means that stage of the Works when:

  • The Works are completed in accordance with this Contract, including all Plans and Specifications, and all statutory requirements applying to the Works, without any defects or omissions other than minor defects or minor omissions that will not unreasonably affect occupation; and
  • If the Owner claims there are minor defects or minor omissions, the Contractor gives the Owner a defects document for the minor defects or minor omissions.
  1. [16]
    Mr Scott claims that practical completion was reached on 14 September 2019.  Mr and Mrs Schreiber dispute this, but accept that they have taken possession of the pool.
  2. [17]
    Clause 17.7 provides that the owner must not take possession of the works prior to making full payment of the contract price.
  3. [18]
    Clause 17.10 provides that:

If the Owner takes Possession of the Works when not entitled to do so under this Contract, the Works are deemed to have reached Practical Completion without any defects or omissions on the Day that the Owner takes Possession, and the Owner is liable to the Contractor for any loss or damage that the Contractor may incur or suffer as a result.

  1. [19]
    As Mr and Mrs Schreiber have not made full payment of the contract price, but have taken possession of the pool, the works have either reached practical completion or have been deemed to have reached practical completion.  Either way, Mr and Mrs Schreiber also owe Mr Scott a further $965.

Mr and Mrs Schreiber’s counter-claim

  1. [20]
    Before considering Mr and Mrs Schreiber’s counter-claim in detail, it is appropriate to refer to the statement of principle made by Member Hughes (as he then was) in Marsh v Walter Iezzi Property Group [2021] QCAT 191 at [6]-[8]:

The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate. However, it must also act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Ms Marsh must establish her case against Walter. She must prove her claim to the reasonable satisfaction of the Tribunal:

… “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

It would not be fair to order Walter to rectify work without sufficient evidence of the elements required to establish Ms Marsh’s case. Ms Marsh has an obligation to act in her own best interests:

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.

The onus is always upon Ms Marsh to present her case. The Tribunal cannot make orders without sufficient proof:

In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.

[footnotes omitted]

  1. [21]
    Mr and Mrs Schreiber have made a number of claims, set out most recently in Mrs Schreiber’s affidavit filed on 2 February 2022.  I will examine each claim in turn.

Paramount in-pool cleaning system installed incorrectly

  1. [22]
    Item 16 of the Schedule to the contract includes the installation of a “Paramount P-3 In floor valet self cleaning system”.
  2. [23]
    Mr and Mrs Schreiber claim that:

The Paramount Cleaning System does not perform as a person would reasonably expect nor in accordance with any of the literature available about the system.

  1. [24]
    The crux of their complaint appears to be that water jets for the Paramount Cleaning System were not installed on the integrated steps, and is otherwise defective.  In support of this complaint, they provided revised engineering drawings dated 2 May 2019 showing water jets in the integrated steps.
  2. [25]
    It is stating the obvious that the revised engineering drawings dated 2 May 2019 were prepared after the contract was entered into on 7 April 2019.  As such, the drawings did not form part of the contract.
  3. [26]
    Clauses 12.3, 12.4 and 12.5 require (amongst other things) that any variation be in writing and state the adjustment to the contract price.  There is no written variation before me in relation to the revised engineering drawings dated 2 May 2019.
  4. [27]
    If Mr and Mrs Schreiber wished to prove that the Paramount Cleaning System that was installed by Mr Scott is defective, the appropriate way of doing this would be to file evidence to that effect from a person with appropriate expertise with that system.  They did not do this, and I am unable to accept this claim.
  5. [28]
    For completeness, I note that Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Pool colour, finish and tiling

  1. [29]
    Item 26 of the Schedule to the contract provides that the type of finish was to be “Fantasy Pools ‘Ebony & Ivory’”.  Item 25, which relates to waterline tiling, was left blank.
  2. [30]
    Mr and Mrs Schreiber claim that the finish is not the correct colour, and further claim that the azure blue tiles do not match the effect they were seeking.
  3. [31]
    If Mr and Mrs Schreiber wished to prove that the pool finish was other than Ebony and Ivory, they would have needed to provide evidence that the pool finish was some other colour.  They did not do this, and their complaints relate to the overall appearance of the pool.
  4. [32]
    Further, while Mr and Mrs Schreiber are clearly dissatisfied the overall appearance of the pool, but there is no contractual requirement for the tiles to match the pool finish.
  5. [33]
    Accordingly, I am unable to accept this claim.
  6. [34]
    For completeness, I note that Mr and Mrs Schreiber claim that they were verbally advised that it would cost approximately $15,000 to $20,000 remove and reinstall the pool finish and tiles to achieve their desired appearance.  This falls well short of the evidence that would be required to quantify their loss.

Leak

  1. [35]
    Mr and Mrs Schreiber claim that the pool has a leak.  They have provided photographs of a small wet area near the base of the pool.
  2. [36]
    The Queensland Building and Construction Commission (‘QBCC’) inspection on 31 January 2020 found no sign of a leak.
  3. [37]
    In order to prove the existence of a leak, Mr and Mrs Schreiber would have needed to file evidence from a person with expertise in detecting pool leaks.  They did not do this, and I am unable to accept this claim.
  4. [38]
    For completeness, I note that Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Defective lighting and wiring

  1. [39]
    Item 19 of the Schedule to the Contract provides that “Four, Multi Clour (sic)” underwater lights were to be installed.
  2. [40]
    Mr and Mrs Schreiber claim that the lights switch into a continuous strobe effect when they attempt to turn the lights to a different colour, before returning to the default blue colour.
  3. [41]
    Mr Scott maintains that the lights were working as per the manufacturer’s specification at the time of installation.
  4. [42]
    If Mr and Mrs Schreiber wished to prove that the lights were not multi-coloured in accordance with the contract, they would have needed to provide evidence of the type of light actually installed and that this was not multi-coloured.  Again, they did not do this, and I am unable to accept this claim.
  5. [43]
    For completeness, I note that Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Staining of pool finish

  1. [44]
    Mr and Mrs Schreiber claim that the pool finish was stained.  They maintain that this was evident on the day of installation.
  2. [45]
    Mr Scott provided evidence that:

The multiple stains were only temporary, and I engaged Pat from Poolwerx in Gladstone to clean and balance the pool on a number of occasions before Practical completion and he attended to the stains that formed from the airborne dust caused by the continual earthworks being carried out on the property.

Any stains that keep reappearing are a result of not cleaning when required.

  1. [46]
    The QBCC inspection on 31 January 2020 found that “[t]he staining appeared to be a result of not cleaning the pool when required”.
  2. [47]
    If Mr and Mrs Schreiber wished to prove that the pool finish was permanently stained as at the date of practical completion, and not from a failure to subsequently clean the pool, they would have needed to file evidence from a person with appropriate expertise.  Again, they did not do this, and I am unable to accept this claim.
  3. [48]
    For completeness, I note that Mr and Mrs Schreiber filed a quote from Sunshine Coast Concrete Pools for rectification of this issue in the amount of $23,760.  It is evident from the covering email that Sunshine Coast Concrete Pools had not conducted an inspection of the pool in question, and no opinion was expressed as to the cause of the staining.

Installation of pool speaker covers

  1. [49]
    Part J of the Appendix to the contract provides that “Fantasy Pools to install customers underwater speakers”.
  2. [50]
    Mr and Mrs Schreiber claim that the speakers they supplied were not installed in accordance with the manufacturer’s specifications.
  3. [51]
    In support of their claim, Mr and Mrs Schreiber filed an installation showing a “typical installation” of the speakers.  This typical installation was showed the speakers were recessed.  In photographs supplied by Mr and Mrs Schreiber, the speakers are shown clearly as not being recessed.
  4. [52]
    Elsewhere, in submissions filed on 2 November 2021, Mr and Mrs Schreiber complain that the speakers did not have covers.  Mr Scott’s evidence is that the speakers did not come with covers.
  5. [53]
    It stands to reason that the speakers could only have been installed recessed if Mr and Mrs Schreiber had sourced the speakers and provided Mr Scott with installation instructions before the concrete shell was completed.  Mr and Mrs Schreiber did not provide such evidence, nor did they provide evidence that they supplied speaker covers which were not installed.  Accordingly, I am unable to accept this claim.
  6. [54]
    For completeness, I note that Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Spa side leaf basket and MDX debris drain

  1. [55]
    Mr and Mrs Schreiber claim that the MDX debris drain was installed at an incorrect location, and did not contain a leaf basket or filter.
  2. [56]
    Despite referring to engineering drawings, Mr and Mrs Schreiber did not provide drawings as to where the MDX debris drain should be located, in comparison to where it is actually located.
  3. [57]
    Mr Scott provided evidence that:

That is correct, as there was not meant to be one as it acts like an underwater skimmer box and is pumped back through the spa filter.

  1. [58]
    If Mr and Mrs Schreiber wished to prove that the MDX debris drain was installed incorrectly, they would have needed to file evidence from a person with appropriate expertise.  They did not do this, and I am unable to accept this claim.
  2. [59]
    For completeness, I note that Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Heater circuit to spa does not display spa temperature

  1. [60]
    Item 28 of the Schedule to the Contract provides that “Fantasy Pools to provide plumbing to the pol (sic) for customer heating”.
  2. [61]
    Mr and Mrs Schreiber claim that the spa heating system was installed incorrectly.
  3. [62]
    This was not within the scope of the contract, and I am unable to accept this claim.
  4. [63]
    For completeness, I note that Mr and Mrs Schreiber did not file any expert evidence in support of their claim of incorrect installation, nor any evidence quantifying their loss.

Unsatisfactory finish quality

  1. [64]
    Mr and Mrs Schreiber claim that:
    1. (a)
      the pebble finish appears to be low and unsatisfactory;
    2. (b)
      the granite within the waterfall was cracked at the time of installation;
    3. (c)
      the volleyball net receptacle was placed in a different location without variation, and was not installed correctly;
    4. (d)
      the air vents which connect to the spa vents were not physically attached to the underlying pipes.
  2. [65]
    In relation to the final item, Mrs Schreiber’s evidence is that she demanded that Mr Scott have a qualified Astral Pool technician onsite to ensure that the Astral Pool System was functional.
  3. [66]
    Mr Scott provided evidence that the pebble finish was hand trowelled and in accordance with industry standard.
  4. [67]
    The volleyball net receptacle is not contained in the contract.  There is no written variation before me in relation to the revised engineering drawings dated 2 May 2019.
  5. [68]
    There is no evidence before the Tribunal as to the cause of the cracking of the granite.
  6. [69]
    Even if there was sufficient evidence to make out some or all these miscellaneous claims, which where is not, Mr and Mrs Schreiber did not file any evidence quantifying their loss.

Delay in practical completion

  1. [70]
    Mr and Mrs Schreiber seek liquidated damages in the amount of $50 per day between the contractual date of practical completion (5 August 2019) and the purported date of practical completion (14 September 2019).
  2. [71]
    The problem with this claim is that item 18 of the Schedule to the contract provides for liquidated damages of $0 per day.

Disposition

  1. [72]
    I have found that Mr and Mrs Schreiber owe Mr Scott $11,592.
  2. [73]
    Under clause 11.9 and item 19 of the Schedule to the contract, Mr and Mrs Schreiber are liable to pay interest at 10% on outstanding amounts.
  3. [74]
    The amount of $20,627 was due and owing from 28 August 2019 until 11 September 2019.  Interest on this amount is $79.12.
  4. [75]
    The amount of $10,627 was due and owing from 12 September 2019 until 20 September 2019.  Interest on this amount is $23.29.
  5. [76]
    The amount of $11,592 was due and owing from 21 September 2019 until the date of this decision, being 30 August 2022.  Interest on this amount is $3,407.73.
  6. [77]
    The total interest is $3,510.14.
  7. [78]
    As Mr Scott has been successful in his claim, I will also order Mr and Mrs Schreiber to pay the filing fee of $345.80.  Mr Scott has also claimed $100 in service fees but provided no evidence to support this, so I will not allow this amount.
  8. [79]
    I will order Mr and Mrs Schreiber to pay Mr Scott $15,447.94 within 28 days.
  9. [80]
    I will dismiss the counter-claim.
Close

Editorial Notes

  • Published Case Name:

    Scott t/as Fantasy Pools Brisbane v Schreiber & Anor

  • Shortened Case Name:

    Scott t/as Fantasy Pools Brisbane v Schreiber

  • MNC:

    [2022] QCAT 316

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    30 Aug 2022

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
Marsh v Walter Iezzi Property Group [2021] QCAT 191
2 citations
Jump To
Cite 1 - [2021] QCAT 191
Cite 2 - [2021] QCAT 191

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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