Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Henley Properties (Qld) Pty Ltd v Salam - [2023] QCAT 420

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Henley Properties (Qld) Pty Ltd v Salam[2023] QCAT 420

Henley Properties (Qld) Pty Ltd v Salam[2023] QCAT 420

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Henley Properties (Qld) Pty Ltd v Salam [2023] QCAT 420

PARTIES:

Henley Properties (Qld) Pty Ltd

(applicant)

v

MUHAMMAD SALAM and SEOWMEE SALAM

(respondent)

APPLICATION NO/S:

BDL122-13

MATTER TYPE:

Building matters

DELIVERED ON:

13 October 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

  1. The Application is dismissed;
  2. The Counter-application is allowed;
  3. The Applicant pay the Respondents the sum of $6,157.89 by 4:00 pm 24 November 2023;
  4. The parties to file any written submissions in relation to the question of costs by 17 November 2023;
  5. The question of any entitlement to costs will be determined on the papers.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – where variation document  not compliant with Domestic Building Contracts Act 2000, s 82(a) not signed by builder and ­home owners did not specifically initial the provision in the variation documents stating when the increase is to be paid pursuant to s 81(5) Domestic Building Contracts Act 2000, s 81(5) – whether the homeowners initials at foot of page complied. Counter claim by homeowners for defective work

Building Act 1975 (Qld)

Domestic Building and Construction Act 2000 (Qld)

Queensland Building Services Authority Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148

Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    This matter has a long and chequered history.
  2. [2]
    The Application for domestic building dispute was heard by the Tribunal on 20 and 21 March 2014. A decision was delivered on 3 September 2014.[1] Both parties were successful. The builder recovered $21,417.00 for variations and Muhammad Salam and Seowmee Salam (‘the homeowners’) recovered on their cross claim $3,637.47 for defective work. That amount was set off against the cost of variations resulting in a decision in favour of the builder of $17,779.53.
  3. [3]
    The homeowners successfully appealed the decision setting aside the decision.[2] The Appeal Tribunal allowed the appeal and ordered, pursuant to s. 146 of the  Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act) that the matter be remitted back to the tribunal for reconsideration.
  4. [4]
    The Appeals Tribunal found that application by the builder for relief pursuant to s 84(4) of the Domestic Building Contracts Act 2000 (Qld) (the DBC Act) was made after the evidence was finished on the second day and that the homeowners were denied natural justice in not being able to adduce evidence or cross-examine the builder on the issue. Section 84(4) confers a discretion upon QCAT to approve the recovery of an amount by a building contractor for a variation upon being satisfied of those matters set out in the provision.
  5. [5]
    The learned Member also failed to provide adequate reasons in his findings in relation to the claim for defective work and his preference for one expert’s evidence over the other. In the light of those findings the decision was set aside.
  6. [6]
    I have been asked to reconsider the matter. I was not the member who heard the matter at first instance.
  7. [7]
    Following the appeal, the builder filed an Application for Miscellaneous Matters seeking orders in respect of the reconsideration. In addition to the relief, it sought in the original proceedings, it sought alternative relief under ss. 84(2)(b) and 84(6)(a) of the DBC Act to recover the amount of $21,417.00 for variation work being the increase in the contract price stated in the appropriate variation documents.
  8. [8]
    In relation to that application, I directed builder file in the Tribunal its statements of evidence addressing:
    1. The reasons for its delay in making its claim under s. 84 of the DBC Act.
    2. All necessary requirements for a claim as outlined in s. 84 of the DBC Act including the costs of carrying out the variation and any reasonable profit.
    3. The homeowner file statements of evidence in response.
  9. [9]
    On 8 July 2022 I refused the builder leave to make a claim under s. 84 DBC Act.[3]
  10. [10]
    The builder has filed further submissions in compliance with directions made on 26 May 2023. The homeowners have not filed any further submissions. Directions were made the same day that the hearing proceed on the papers on the basis of the documents forming the Tribunal record including the transcript of the hearing, the statement of Alex Raleigh filed 13 December 2021 and the statement of Muhammad Salam filed on 14 February 2022. 
  11. [11]
    Both the claim and counter application are to be reconsidered.
  12. [12]
    The builder had claimed the sum of $21,417.00 relating to a number of variations. This has been adjusted to delete those that cannot be established without compliance with ss. 84(2)(b) and 84(6)(a) of the DBC Act. The amended claim is now $17,913.00. The original counter application by the homeowners was for $60,979.84 damages based on reports by Mr Donald Dixon.

The Variations

  1. [13]
    It is instructive to understand how the variations came into existence.
  2. [14]
    The homeowners visited the builder’s sales office. They selected the type of house with the standard inclusions for a base price. They settled upon a “Majestic Home”. In the next stage detailed plans were prepared for the specific site and a document described as a New Home Proposal was prepared. It covered the site-specific costs that may arise from soil tests etc. The homeowners then had a meeting  with the tender presenter whose role was to take the homeowners through and explain the New Home Proposal  This was an opportunity for the homeowners to make changes. From October to December 21011 the homeowners changed the inclusions and finishings five times.
  3. [15]
    On 24 January 2012 the homeowners signed the New Home Proposal and the Contract. After this the homeowners selected finishings, doors, tiles, bricks, paint and appliances.  This was reduced to a Post Contract Variation (PCV). Once completed the matter was submitted for council approval. When that came out of the council the matter went into a final drawing stage. Any variations after that stage were referred to as a Building Variation (“BV”).
  4. [16]
    PCV No1 is dated 30 March 2011. It comprises 8 pages of adjustments to the New Home Proposal as well as other variations both negative and positive. BV No 4 is dated 24 August 2011. There are other variations, but I have referred to these two for the reasons that will become apparent later.
  5. [17]
    The homeowners admit to having requested the variations, and also admit to their having received and signed the variation documents. However, they allege that invoice 29670[4], being the final invoice, was not due and payable because the variation documents did not comply with either s 81(5) (requirement that the homeowner to initial when payment was due) or s 82(a) of the DBC Act (requirement for builder to sign document). The homeowners submitted that the builder must establish an entitlement under s 84 of the DBC Act, before they can be ordered by QCAT to pay for the variations that they had requested.
  6. [18]
    The homeowners submitted that the variation documents did not conform with the requirements of ss. 79, 80, 81 and 82 of the DBC Act. The homeowners also referred to s 93(1)(a) of the DBC Act, which provided that a domestic building contract was void to the extent that it was contrary to the DBC Act. 
  7. [19]
    The builder, having been deprived of the of the opportunity of relying on s. 84 of the DBC Act (builder’s right to recover cost of variations with leave of the tribunal), now submits that by reasons of s. 79(5)(b), s. 82 does not apply to a variation once it has been signed by the homeowners. It submits that PCV1 and BV4 comply with  the requirements of the DBC Act.
  8. [20]
    Section 82 reads:

Variation document must be signed

  1. As soon as practicable after an appropriate variation document is made, the building contractor must—
  1.  sign the document; and
  1.  take all reasonable steps to try to ensure the document is signed by the building owner.

Maximum penalty—20 penalty units.

  1. [21]
    Section 79(5)(b) of the DBC Act must be looked at in the context of the whole of that provision which is as follows:

Variations must be in writing

  1.  The building contractor under a regulated contract must ensure any variation of the contract agreed to between the building contractor and building owner is put into written form—
  1.  within the shortest practicable time; and
  1.  for a variation consisting of an addition to the subject work—before any domestic building work the subject of the variation is carried out.

Maximum penalty—20 penalty units.

  1.  Subsection (1) does not apply to a building contractor for a variation of a contract if—
  1.  the variation is for domestic building work that is required to be carried out urgently; and
  1.  it is not reasonably practicable, in the particular circumstances, to produce a variation document before carrying out the work.
  1.  Subsection (4) applies if—
  1.  a proposed variation of a regulated contract has not yet been agreed to between the building contractor under the contract and the building owner, but is proposed to come into existence on the signing of a variation document by the owner and the contractor; and
  1.  the variation document is to be the first and only agreement between the building contractor and the building owner for the particular variation.
  1.  If the proposed variation consists of an addition to the subject work, the building contractor must ensure that no domestic building work the subject of the proposed variation is carried out until the variation document has been signed.

Maximum penalty—20 penalty units.

  1.  When the variation document is signed, the following provisions do not apply for the variation—
  1.  subsections (1) and (2);
  1.  section 82;
  1.  section 83(1)(b);
  1.  section 84(2)(a) and (3)(a)(i), to the extent the provisions concern sections 82 and 83(1)(b).
  1. [22]
    The builder submits that the documents had been signed by the homeowners and once that was done by virtue of s. 82 it was not necessary for the builder to also sign the document.
  2. [23]
    As s. 82 refers to both the builder and building owner signing the document, the reference in s. 79(5)(b) to s. 82 relates to the requirements of that section to act expeditiously in having the documents signed whereas in other circumstances that exist such as under s. 79 (3) and (4) that the variation document need not be signed as soon as practicable, s. 82 need not be complied with but both signatures are still required.
  3. [24]
    In my opinion, the builder cannot recover the variations without having signed the variation document, to find otherwise would be contrary to the clear requirement of s. 82.
  4. [25]
    In relation to s. 81 which requires that the variation document stating when the increase is to be paid or when the decrease is to be accounted for, to be initialled by the building owner, the builder argues that it has been complied with in respect of invoices PCV1 and BV4.
  5. [26]
    The invoices are endorsed with a “notes” section to the effect:

NOTES:

All additional Building Variations if approved by the Builder will incur

an Administration Fee

Credits (if applicable) will be deducted from the Final Progress Claim.

Please sign and return as soon as possible. If this has not been received

within five (5) days, we will assume the variation is no longer required and it

will be cancelled.

Payment is due and payable immediately upon commencement of the

works, as per clause 19.8 of your contract.

Any alterations to this document are to be submitted separately.

If you should have any queries please contact [name] of our office.

  1. [27]
    The two documents which have the notes initialled by the homeowners are BV4 and PCV1 the other invoices are not so initialled. The builder submits that the initialling in those instances comply with the legislative requirements.
  2. [28]
    It is instructive to look at each of the invoices and how they have been signed and/or initialled:
    1. Building Variation No 1, No 2, No 3 and No 5 and Post Contract Variation No 2 have been signed at the foot of the second or last page but not otherwise initialled.
    2. Post Contract Variation No 1 has been signed on the last page and initialled at the foot of each page.
    3. Building Variation 4 has initials of the homeowners in much closer proximity to the “notes” than Post Contract Variation No 1.
  3. [29]
    Section 80 provides, inter alia:

General contents of variation document

  1.  The building contractor under a regulated contract must ensure a variation document for the contract complies with the formal requirements for a variation document.

 Maximum penalty— 20 penalty units.

  1.  A variation document complies with the formal requirements for a variation document if the document—

 …

 (g) if the contract provides for progress payments—makes appropriate provision for payments under the contract to reflect any change of the contract price caused by the variation.

  1. [30]
    Section 81 the provides:

General contents—appropriate provision for payments to reflect contract price changes

  1.  This section sets out how a variation document complies with the requirement mentioned in section 80(2)(g) (the payment requirement).
  1.  If the variation results in an increase in the contract price, the variation document complies with the payment requirement if it states when the increase is to be paid.
  1.  However, the increase cannot be required to be paid before work the subject of the variation is started.
  1.  If the variation results in a decrease in the contract price, the variation document complies with the payment requirement if it states when the decrease is to be accounted for.

 Example for subsection (4) —

 The variation document might identify a particular progress payment in which the decrease is to be accounted for.

  1.  The variation document complies with the payment requirement if the provision of the document stating when the increase is to be paid, or when the decrease is to be accounted for, is initialled by the building owner.
  1. [31]
    The issue is whether two documents comply with s. 81(5) of the DBC Act? The requirement is that the provision be initialled. Clearly, the purpose of the requirement to initial is to provide objective evidence that the information has been brought to the attention of the homeowners.  The proximity of the initials is of some relevance.
  2. [32]
    There are similar provisions in the DBC Act in relation to escalation clauses and also in relation to fixtures and fittings not included in the contract price. The first s. 35(2)(b) of the DBC Act requires the building owner to place the owner’s signature or initials, or seal, next to the statement of the costs of the fixture or fitting.
  3. [33]
    The requirement in relation to the escalation clause s. 56(1)(a) of the DBC Act reads:

A cost escalation clause in a regulated contract is void unless—

  1.  the building owner’s signature or initials, or seal, is placed next to the clause; and …
  1. [34]
    The requirements are drafted with more precision than the s. 81(5) requirement. One assumes that this must have been intentional but it also could be just a case of poor drafting. Section 81(5) could have said “place next to the clause” rather than require that ‘the provision of the document [be] initialled by”.
  2. [35]
    The legislation does not require any additional evidence that homeowner fully appreciated the reason for being asked to initial the variation, such as a statement endorsed on the document to that effect.
  3. [36]
    The “notes” state when the increase is to be paid, namely, immediately upon the commencement of the works as per clause 19.5 of your contract. The male homeowner acknowledges that it is his and his wife’s signature on the documents.[5]
  4. [37]
    The proximity of the initials in respect of BV4 are in such close proximity to the notes that I have no hesitation in finding that the requirement s. 81(5) of the DBC Act had been satisfied. 
  5. [38]
    The proximity of the initials on PCV1 is problematic. The document has been initialled at the foot of each page of the 8-page document. The initials on the ‘notes’ page are not in close proximity to the ‘notes’ but are at the foot of the page as they are on every other page.  I am not satisfied that the requirement s. 81(5) of the DBC Act has been satisfied. 
  6. [39]
    Is there any other evidence that the homeowners’ attention was brought to the ‘notes’?
  7. [40]
    Alexander Raleigh, the Builder’s General Manager, in evidence candidly admitted that the homeowners were not asked to initial beside the provision in the documents which provided when the amount of the variation was to be paid.[6] The emails that accompanied the documents BV4[7] and PCV1[8] did not specifically request the homeowners to initial the provision.
  8. [41]
    In his statement, Mr Salam denies that he or his wife were apprised of the requirement to initial the “notes” nor were they ever asked to.[9]
  9. [42]
    On the other hand, Mr Salam, the homeowner in evidence when questioned on the issue responded:

And I will ask you, the variations you received, did you initial beside the provision in the variation document which indicates when the increase in the  - as displayed by the variation, was to be paid?

No. We weren’t even aware of the - that [indistinct] I mean we read the thing - items that were supposed to be changed, the cost of whether the - we talked about, and they say , Yeah. That’s fine. This is the cost we agreed upon. Please sign it at the bottom of the page.[10]

  1. [43]
    It is not clear from the transcript which variation Mr Salam was speaking about.
  2. [44]
    Mr Salam admitted he was very proactive in his approach to the variations. His evidence on this issue was as follows:

You were very particular with the things you wanted. Is that right?

You’re asking the same question many times. Yes, we wanted things to be right.

And you paid a lot of attention to the contract documentation as well, didn't you? You read the document you were given?

As much as I could as a layperson, in terms of the legality of the documents.

And you read the contract fairly carefully?

We read the contract, yes, as much as we could understood.

All right. And you understood a fair bit, didn't you because you've actually taken us to individual clauses in the contract in your evidence?

Well ones that just would arise and we had to go back and read in more detail, because we never expected that such a dispute to arise.[11]

  1. [45]
    It is not at all clear from the extrinsic evidence that the homeowners were aware of the provision. I cannot be satisfied that they were so aware.
  2. [46]
    The Domestic Building and Construction Act 2000 (Qld) (“DBC Act”) and its predecessor the Queensland Building Services Authority Act 1991 (Qld) were enacted, for among other reasons to enshrine consumer rights. The provisions in question must be interpreted as providing protection to consumers. Failure by the builder to comply with the requirements of Part 7 of the DBC Act exposed the builder to a penalties. Although the provisions do provide, to some degree, protection to builders in providing certainty and clarity in their contractual relations, the provisions in question, principally are for consumer protection.

Negative variations

  1. [47]
    The builder submits that the variation documents containing negative variations are still effective to reduce the amount the homeowners would owe the builder. Whilst those variation documents do not comply with s. 81(5) of the DBC Act, the builder submits that the Act does not say they are invalid, it only says that the builder cannot recover payment for the non-compliant variations unless the exceptions in s. 84 apply.
  2. [48]
    As the builder is not seeking to recover any payments under the variation so the homeowners were still entitled to the benefit of them.
  3. [49]
    The allowances in the variations for which the homeowner received credit amounts to $17,913.00.
  4. [50]
    In my opinion, the effect of s. 81(5) of the DBC Act prevents the builder from taking any advantage of the amounts credited as it requires that when the decrease is to be accounted for, is to be initialled by the building owner.

Homeowners Counter Application

  1. [51]
    On 4 March 2014 the Tribunal gave the homeowners leave to make a counter-application. The cross claim alleged that aspects of the construction were undertaken negligently and/or in breach of the contractual warranties that require that the work be carried out by the builder in an appropriate and skilful manner. The homeowners claimed the sum of $60,979.84, being the alleged cost of rectifying the defective works. 
  2. [52]
    A significant component of that sum was the difference in cost between ceramic tiles which were installed and the more expensive porcelain tiles. That part of the claim was abandoned in the homeowner’s submissions dated 16 April 2014.
  3. [53]
    The total claimed by the homeowners in their final submissions was $28,191.40. The following are particulars:

Dixon Report Reference

Defect Details

Claimed by Homeowners

Builder’s response

A1(i)

Floor tiles – movement joints and joint widths

$247.43

$247.43

A1(ii)

Floor tiles – inconsistent joint widths

$728.14

$0.00

A1(a)

Floor tiles – shower floor (ensuite 4)

$101.30

$0.00

A2(i)

Wall tiles – inconsistent width of grout joints mosaic feature tiles

$428.41

$428.41

A2(ii)

Safety issue - Custom cut wall tile (ensuite 4)

$50.00

$50.00

A4

Outdoor wall tiles – leaching evident

$767.53

$500.00

A5

Outdoor floor tiles - balcony

$9,510.72

$0.00

A5

Outdoor floor tiles – grand alfresco

$6,535.89

$500.00

B1

Carpet laying

$2,220.56

$500.00

B2

Metal material exposed to weather

$132.00

$132.00

B3

Entry door

$791.72

$50.00

B3

Internal doors - painting of top and bottom edges

$479.66

$50.00

C1

Laundry slab levels

$2,862.41

$0.00

D1

Damage to handrail

$330.00

$0.00

D2

Wavy ceiling line

$287.50

$287.50

D3

Concrete driveway

$271.64

$271.64

E2

Silicone to kitchen splash-back

$97.00

$97.00

F1

Family room floor uneven

$1,453.01

$0.00

F3

Pantry door not translucent

$348.00

$0.00

F5

Laundry door

$445.95

$0.00

F6

Bathroom shower niches - sharp edges

$42.53

$42.53

F8

Sealing of toilet pans

$60.00

$0.00

 

TOTAL

$28,191.40

$2,656.51

Accepted items

  1. [54]
    Where conceded the same amount appears in the right column.

Disputed items

A1(ii) - Floor tiles – inconsistent joint widths

  1. [55]
    This item appears to have been conceded by the homeowner. In their final submissions they say, whilst there was some agreement between the experts that there were inconsistent joint widths in the floor tiles in various areas, Mr Dixon does not recommend removing existing tiles where the joint widths are inconsistent because of the risk of ending up with obvious appearance defects with replacement tiles not matching.[12]

A1(a) - Floor tiles – shower floor (ensuite 4)

  1. [56]
    Mr Vadas and Mr Dixon agreed that the falls are below that required by the relevant standard. Mr Dixon undertook testing which confirmed the water ponds on the left side of the floor waste and does not drain to the floor waste. He regarded this as a slip hazard. Mr Vadas disagreed. 
  2. [57]
    Mr Vadas says that he flooded the floor and no ponding occurred. He did not consider it a health hazard, the floor is meant to be used wet and the remaining ponding, if any, would not be slip hazard. It is not a trafficable area. Mr Vadas agreed the falls on the floor weren't to Australian Standard but he believed that the tiler had exercised his expertise and used what was necessary to achieve the desired effect which was to remove the wastewater or residue water off the surface of the floor. He said that the floor there was designed to be used wet, unlike an area the front entry. In normal use the floor would be wet before a person steps into the shower. A person would step into the shower knowing it to be wet. Further, if the tiles were replaced that would create a further hazard with sharp edges.[13]
  3. [58]
    Mr Vardis has far greater experience in tiling matters, which is his specialist area, whereas Mr Dixon has a broader and wider range of expertise in building matters. I accept Mr Vardis evidence on this point in preference to Mr Dixon.

A4 - Outdoor wall tiles: Leaching evident

  1. [59]
    Parties agreed that there was a defect. The cause is the result of moisture behind the tiles permeating (leaching) to the surface via the grout joints in the form of calcium carbonate deposits. The builder says it's a case of proper maintenance and not a defect. They argue that it can be rectified by the application of a proprietary product which would clean off the crystalline build-up. Mr Dixon says that the efflorescence can be of two types. Primary efflorescence is often regarded as an aesthetic problem and treated as a building maintenance issue. However secondary inflorescence can be reduced through good design and construction practise.  Mr Dixon says in this case it is a secondary efflorescence and probably arose because the tiles were applied to a damp substrate. He believed it was a defect because it can affect the surfaces of the building long term. Nevertheless, he agreed the parties we're not in great disagreement.[14] He accepted that $500 to seal the tiles in situ after cleaning them was a fair and reasonable cost.[15]

A5 - Outdoor floor tiles - balcony

  1. [60]
    Mr Dixon observed that they fall of the balcony was not 1:100 as required by the Australian standards and building code of Australia. However, that requirement was not in existence at the time of approval of the deck. The issue for the tribunal to consider was whether water would drain away or would pond following rainfall. Mr Dixon says that at the time of his inspection water had ponded on the balcony following a recent rainfall. He was not there when it had rained but it had been a short time prior to his arrival.[16]
  2. [61]
    Mr John Reeve, a certifier with Professional Certification Group in his report dated 25 October 2013[17] said in relation to the standards relating to external decks the following:

The Building Code of Australia 2011 was the current legislation at the time of approval of the dwelling.

The Building Code has no requirements for fall on external decks. In 2013 the Building Code of Australia referenced AS4654.2-2012 (waterproofing membranes for external above ground use) which is a design and installation manual.

The previous standard at the time of approval of the dwelling which was not referenced in the building code of Australia however the applicable Australian standard (AS 4654.2-2009) would be the required code full stopped therefore they build it then would construct the deck to comply with this Australian standard which states “folds of finishes show ensure water drains to the drainage outlet. Water shall not be retained on the finished surface with the exception of residual water remaining due to surface tension”.

Therefore the deck complied with the required falls at the time of approval.

The Australian standard ceramic tiles AS 3938.1- 2007 is a guide to the installation of ceramic tiles and to comply with this standard is only a recommendation and not a requirement. The fall of 1:100 in Dixon's report was not a requirement under the Building Code Australia when the house was built.

  1. [62]
    Mr Vadas and Mr Reeve carried out an inspection of the balcony and agreed that it did not have a 1:100 fall. The issue they investigated was whether, following rainfall, there was a tendency for water to pond and remain on the balcony. They said they did not have adequate time to investigate this by flooding the deck with a hose and that they were not allowed back to carry out this exercise. There is some truth in this as Mr Salem admitted that he required $450 to be paid to compensate him for having someone present at the inspection.[18]
  2. [63]
    Exhibit 1, is a photograph taken by Mr Dixon which does depict some surface water on the balcony. I am satisfied there is ponding of water, but the extent of the problem is unclear. Nevertheless, I consider the cost of rectification of $9,510.72 is excessive. That cost involved the removal of all tiles, packing of the joists to achieve the fall, the removal and refit of the glass balustrades and removal of all rubbish etc. 
  3. [64]
    It was put to Mr Dixon that rectification could be achieved by removing some of the tiles and it was not necessary to remove the balustrade. Mr Dixon considered that the glass balustrades would be at risk of damage from tradesmen and we're very expensive to replace. Further, removal of the tiles risked damage to the waterproof membrane.[19] 
  4. [65]
    I consider that Mr Dixon is being over cautious in his approach and a more reasonable solution would be to remove some of the tiles, relay the bedding to achieve the fall and then replace the tiles.  There is no estimate of costs for this work but it would be significantly less than $9,510.72. Doing the best that I can, I allow the sum of $1,500.00.

A5- Outdoor floor tiles: Grand Al Fresco

  1. [66]
    This is the outside area adjacent to the downstairs sliding doors. The complaint was that there was insufficient fall of the tiled area and water was allowed to pool.
  2. [67]
    On his inspection Mr Dixon noted ponding around the pier left from the recent rainfall.[20] He measured the fall of the tiled floor towards perimeter edges was only 3mm to 9 mm per metre but this was less than the minimum fall requirement of 10 mm per metre. He suggested that the floor should be stripped, the joists repacked to achieve the fall which would also involve the removal of the glass balustrades.
  3. [68]
    Mr Vadas gave evidence that the fall from the tiling from left to right facing out from the house was far less than the recommended Standard. However, it does fall 44mm in 4.5m span falling away from the house which is in keeping with the recommendation under the Australian Standard and is sufficient to provide the necessary run off of water . He commented that the fall only needs to be sufficient in one direction to provide the required run off to the lawn. There was sufficient fall of the tiled area away from the house to the lawn which complied with the Australian Standards.
  4. [69]
    The builder criticised Mr Dixon's method of measuring the fall which involved the use of a 600 mm level. Mr Vadas in his experience had not seen such an instrument used before over a 4.4 metre span. He questioned the accuracy of the findings.[21] Using a laser level he found the floor to have a compliant fall within the Australian Standards.[22]
  5. [70]
    The builder says that the only evident ponding of water was around the pier, which could be rectified by replacing those tiles at a cost of no more than $500.00. I allow that sum.

B1 Carpet Layer

  1. [71]
    Mr Salman was concerned that the manner in which the carpet was laid created a safety risk for his children. Mr Dixon did not observe any defect that created a safety risk.[23]
  2. [72]
    Mr Dixon observed a defect in the carpet or method by which it had been laid, which, in his opinion, constituted a safety risk. He observed the joins to be visibly obvious in the master bedroom 1 and it's retreat and to a lesser degree in bedroom 4 downstairs. Tacking (fixing) of carpet to the stair riders was also very obvious, particularly on the top flight of stairs on the left side. He recommended the existing carpet be lifted, stretched and relayed in a more tradesmen like manner to ensure that lateral joins were seamless and visible fixings at stair risers eliminated.
  3. [73]
    Cross examined on this issue it was put to Mr Dixon that his costs estimate was very high by industry standards. He costed the work involved at $2,220.56 inclusive of GST which included a 20% contingency. It was put to him that the cost involved all of the carpet being relayed when his criticism related to only the areas referred to above. Mr Dixon, ultimately, conceded this.[24]
  4. [74]
    It was put to Mr Dixon, based on a written estimate from Carpet Call, that the actual cost of fixing this problem would be no more than $500.00. In my opinion, I believe the amount assessed by Mr Dixon is unreasonably high and I accept the lower estimate.

B3 Entry door

  1. [75]
    The parties are in dispute as to whether one of the pair of entry doors was bowed. Mr Dixon’s costs of rectification involved the replacement of the defective door and painting it to match. That involved the removal of all door hardware. He costed it at $1,271.38. The builder’s response to this item was that Mr Dixon had not tested the doors but relied upon observation. It was put to him that the door might be proud because it was falling on its hinges rather than being bowed. Mr Dixon did not think that was the case.[25]
  2. [76]
    Mr Raleigh in his evidence said he observed the doors were slightly out of alignment and had one of his maintenance builders with him at the time of inspection they decided it could be rectified with an hour’s labour there being no need to replace the door. They agreed that there was a very slight bow in the door but there was not outside the tolerances over the full length of the door. His assessed the cost of rectification at $50.00 up to a maximum of $200.00.[26]
  3. [77]
    I accept Mr Dixon’s evidence on this item and the cost of rectification of $791.72.

B3 Internal doors

  1. [78]
    Mr Dixon observe that the door manufacturer’s recommendation was that all doors should be sealed (painted) on all surfaces including the top and bottom edges of the door with a minimum of two coats. This was necessary in order to prevent the timber components warping, twisting, swelling, bowing all the like which can occur with humidity. Mr Dixon costed this item at $479.66. The builder appears to have accepted this defect and the cost of rectifying it.

C1 Laundry slab levels

  1. [79]
    Mr Dixon 's observations on this issue are as follows:

The owner’s request that the 86 mm step down for the concrete slab outside the laundry be the same relative level (RL) as the surface of the Grand Alfresco slab is verified in the builder's “New Home Proposal” #5 document dated 20/01/2011. See item 12-9.[27] However, the latter “Post Contract Variation #1” dated 30/03/2011 Item 5-9 item alters 12-9 of the NHP #5 and now states, “Size of step down to be determined on site”.[28]

During my site inspection on 9 August 2012 to consider whether the builder could have installed the slab outside the laundry door as requested by the client, I came to the conclusion it would have been possible with relocation or raising with the sanitary drainage yard gully grate as well as what appears to be a nearby capped off sanitary drainage inspection eye. However, a post contract variation states the step down is to be determined on site.

I have not seen any documentation to suggest that prior to the placement of the concrete slab in question, that there was advice issued, or any discussion between the builder and the owner to determine the “size of the step down” at this location. Whether the owner should have been consulted regarding the size of the step down and is therefore now entitled to have a new slab installed outside the Laundry Ensuite 4 is probably a contractual matter outside my field of expertise and therefore, to be decided by others.

Jan 2014 - Dixon Response

I do not make a recommendation to rectify! I state, that although the owner had expectations, a post contract variation states the step down was to be determined on site. My findings were 160mm not 170mm. Regardless, I made it clear in my report that the builder was entitled to alter RL’s - “Size of step down to be determined on site”.

I noted condition in the contract makes any removal of excavated spoil from the site to be at the owner’s expense. I simply stated that the builder should have discussed the change in RL with the owner - as (if consultation had occurred) the owner may have been willing to accept the additional cost of removing (ref Reeve) the 100 cubic metres of spoil from the site.

  1. [80]
    The builder observed that the homeowners’ complaint was that the slab was too narrow and there was a gap between the slab and the fence adjoining the neighbours’ property. The homeowners claimed $2,862.41 to rectify this item which would involve the construction of a new slab on top of the existing slab.[29]
  2. [81]
    The builder referred to the ground floor plan sheet 2 included in the Contract that appeared to show that the exposed aggregate slab would run to the very edge of the property, but it was Mr Raleigh’s evidence and that of Mr Reeve that this would not have been possible to actually construct. This was because s. 76 of the Building Act 1975 (Qld) states:

If a building development approval permits a building or land to be drained, that range must be carried out in a way that protects land, buildings and structures in the neighbourhood of the building or land.

  1. [82]
    Mr Reeve's evidence was that if the slab was built all the way to the edge of the property it would have caused water runoff into the neighbour’s property. This in itself may have been a defect and likely would have been in breach of s. 76 of the Building Act 1975 (Qld).
  2. [83]
    Mr Dixon consider the drainage issues could have been ameliorated by the insertion of a spoon drain. [30] Mr Reeve appeared to accept that as well.[31]
  3. [84]
    Ultimately, it was accepted by the parties that this was a contractual issue more specifically a question whether the homeowner had requested and 86mm step down.[32]
  4. [85]
    Mr Salam gave evidence that in their previous home the slab in a very similar area had an 86mm step down. He said that he and his wife wanted the slab to be as high as possible or even. He accepted the changes to the plan left the degree of step down to be determined. However, he assumed that it would be 86mm not 150mm. He said the requirement was not for aesthetic reasons but for practical reasons as his wife was a short lady who suffered from plantar fasciitis and the step down would cause major issues for her if she was going to be in an out the laundry all the time.[33]
  5. [86]
    It appeared that his main concern was that they had been misled, in that the builder could have taken steps has an earlier stage before drainage had been inserted and the area boxed up for concreting. Once it reached that stage, a 86 mm step down could not be achieved in compliance with the Building Act 1975 (Qld). He said they would have been prepared to pay extra add the spin attend to it an earlier stage. However, Mr Salam signed off on the Post Contract Variation  #1 that the step down was to be determined. It was not possible to otherwise comply with his request at a later stage.
  6. [87]
    I do not consider this to be a defect to be compensated for by the builder.

D1 Damage to handrail

  1. [88]
    This was a custom made stainless steel handrail fitted to the glass balustrades on the balcony. Mr Dixon inspected the property on the first occasion and found it was bent downward. He suspected that it might have been used as a foothold by trade contractors while working overhead during the construction. At the time of his inspection the home had not been occupied by the homeowner. Mr Raleigh said that it was not noted at the time of an independent inspection for the purpose of practical completion and they found it very difficult to believe that the builder was guilty of damaging the handrail.
  2. [89]
    It seems to me that if Mr Dixon is to be believed, then the damage was done before the homeowners went into occupation and the fact that it did not appear on a practical completion list on inspection was an oversight. I allow the sum $396.00 being the cost of repair.

F1 Family room uneven floor

  1. [90]
    The homeowners were told by other contractors that measurements taken using a laser level revealed a 20 mm hump in the floor in the width of the room. It was not visually obvious during Mr Dixon's inspection. The presence of furniture in the room also obstructed the line of sight across the room and, I presume, any defect.
  2. [91]
    Mr Dixon carried out measurements with his digital spirit level and found a 4mm fall in the northeast corner. He took further measurements at 1 metre intervals across the width of the room and they revealed an inconsistent gradient East to West. He formed the opinion that the tilling had not laid within acceptable tolerances. He suggested the floor tiles would need to be removed and a levelling agent applied to the substrate. The cost he assessed at $1,453.01
  3. [92]
    Mr Dixon was criticised for using a 40 cm long digital level which did not provide accurate readings. The Australian Standard requires to use of a straight edge. Mr Vadas measured with a straight edge and found the deviation the floor level to be so minimal to did not require rectification.
  4. [93]
    If rectification was carried out it is questionable whether matching tiles could be obtained. If not, all tiles would need to be replaced which would be an excessive cost and unreasonable. In my opinion this is not a defect that requires rectification.

F3 Pantry door not translucent

  1. [94]
    Mr Dixon in the Scott Schedule concedes that there's a discrepancy in the documentation. The door that was installed has clear glass which is consistent with the Post Contract Variation #1 but inconsistent with the earlier New Home Proposal #5. Mr Salam concedes that they did not read the last document as carefully as they should.[34] It is a document that they initialled.[35] I do not allow the item.

F5 Laundry door and front door

  1. [95]
    During heavy rain, water leaked under the external door into the laundry. Mr Dixon considered that cement render applied to the brickwork threshold had filled the drainage slots and blocked them so that water then spilt inside the house. Mr Raleigh said that the debris had been removed but did not test the door.[36] He also checked that the rubber seal was working on both doors and was satisfied that it was. The cost of rectification which involved the removal of the render was $445.95. Under cross examination Mr Dixon conceded that he did not carry out any tests such as pouring water onto the front door as he assumed it was the same problem as the front door. He did not check either door as to whether the drainage holes had been blocked by grime or bugs or other matter. He considered that was a possibility. For this reason, I do not allow the sum.

Sealing of toilet pans

  1. [96]
    This claim was not pursued by the homeowner.

Defective items and costs

  1. [97]
    In conclusion I allow the following items which I list below with cost of rectification.

Dixon Report Reference

Defect Details

Claimed by Homeowners

Amount accepted or allowed

A1(i)

Floor tiles – movement joints and joint widths

$247.43

$247.43

A1(ii)

Floor tiles – inconsistent joint widths

$728.14

$0.00

A1(a)

Floor tiles – shower floor (ensuite 4)

$101.30

$0.00

A2(i)

Wall tiles – inconsistent width of grout joints mosaic feature tiles

$428.41

$428.41

A2(ii)

Safety issue - Custom cut wall tile (ensuite 4)

$50.00

$50.00

A4

Outdoor wall tiles – leaching evident

$767.53

$500.00

A5

Outdoor floor tiles - balcony

$9,510.72

$1,500.00

A5

Outdoor floor tiles – grand alfresco

$6,535.89

$500.00

B1

Carpet laying

$2,220.56

$500.00

B2

Metal material exposed to weather

$132.00

$132.00

B3

Entry door

$791.72

$791.72

B3

Internal doors - painting of top and bottom edges

$479.66

$479.66

C1

Laundry slab levels

$2,862.41

$0.00

D1

Damage to handrail

$330.00

$330.00

D2

Wavy ceiling line

$287.50

$287.50

D3

Concrete driveway

$271.64

$271.64

E2

Silicone to kitchen splash-back

$97.00

$97.00

F1

Family room floor uneven

$1,453.01

$0.00

F3

Pantry door not translucent

$348.00

$0.00

F5

Laundry door

$445.95

$0.00

F6

Bathroom shower niches - sharp edges

$42.53

$42.53

F8

Sealing of toilet pans

$60.00

$0.00

 

TOTAL

$28,191.40

$6,157.89

  1. [98]
    In conclusion:
    1. I dismiss the Applicant’s claim;
    2. I allow the Respondents’ counter application in the sum of $6,157.89;
    3. I order the Applicant pay the Respondents the sum of $6,157.89 by 4:00 pm 24 November 2023;
    4. I direct the parties to file written submissions in relation to the question of costs by 17 November 2023;
    5. The question of any entitlement to costs will be determined on the papers.

Footnotes

[1] Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148.

[2] Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118.

[3] Henley Properties (Qld) Pty Ltd v Salam [2022] QCAT 273.

[4]  Ex ARA42 to Statement of Alex Raleigh filed 14 December 2021.

[5]  Transcript 2-35 lines 15-30.

[6]  Transcript 1-118 line 30.

[7]  Exhibit ARA 27 Statement of Alex Raleigh filed 14 December 2021.

[8]  Statement of Alex Raleigh filed 8 July 2013 Exhibit ARA 4 page 166 of the bundle of documents.

[9]  Statement filed 30 April 2014.

[10]  Transcript 2-25 lines 10-25.

[11]  Transcript 2-34 lines 20-40.

[12]  Transcript 1-18 lines 35-45.

[13]  Transcript 1-23 lines 35-40 and 1-24 line 1-5.

[14]  Transcript 1-40 line 1.

[15]  Transcript 1-41 line 8-10.

[16]  Transcript 1-51 line 27.

[17]  Mills Oakley Lawyers report filed 15 November 2013.

[18]  Transcript 2-45 lines 18-25.

[19]  Transcript 1-53 line 25-45.

[20]  Transcript 1-58 line 40.

[21]  Transcript 1-57 line 25.

[22]  Transcript 1-55 line 40-45.

[23]  Dixon supplementary report 10 September 2013 page 10.

[24]  Transcript 1-86 line 30.

[25]  Transcript 1-86 lines 30-42

[26]  Transcript 1-91 lines 1-15

[27]  Statement of Alex Raleigh filed 8 July 2013 Exhibit ARA 3 page 148 of the bundle of documents.

[28]  Statement of Alex Raleigh filed 8 July 2013 Exhibit ARA 5 page 205 of the bundle of documents.

[29]  Transcript 1-71 line 35.

[30]  Transcript 1-70 line 15.

[31]  Transcript 1-68 line 43.

[32]  Transcript 1-72 line 30.

[33]  Transcript 2-19 lines 10-20.

[34]  Transcript 2-43 line 5-45.

[35]  Statement of Raleigh paragraph 81.

[36]  Transcript 1-92 line 15-45 and 1-93 lines 1-5.

Close

Editorial Notes

  • Published Case Name:

    Henley Properties (Qld) Pty Ltd v Salam

  • Shortened Case Name:

    Henley Properties (Qld) Pty Ltd v Salam

  • MNC:

    [2023] QCAT 420

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    13 Oct 2023

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
Henley Properties (Qld) Pty Ltd v Salam [2015] QCAT 148
2 citations
Jump To
Cite 1 - [2015] QCAT 148
Cite 2 - [2015] QCAT 148
Henley Properties (Qld) Pty Ltd v Salam [2022] QCAT 273
1 citation
Jump To
Cite 1 - [2022] QCAT 273
Salam v Henley Properties (Qld) Pty Ltd [2015] QCATA 118
2 citations
Jump To
Cite 1 - [2015] QCATA 118
Cite 2 - [2015] QCATA 118

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.