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Jenner v Bleakley[2015] QCATA 128

CITATION:

Jenner v Bleakley [2015] QCATA 128

PARTIES:

Anthony Wayne Jenner

(Applicant/Appellant)

v

Joseph Eric Bleakley

(Respondent)

APPLICATION NUMBER:

APL439-13

MATTER TYPE:

Appeals

HEARING DATE:

10 August 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O'Callaghan

DELIVERED ON:

31 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Anthony Wayne Jenner pay to Joseph Eric Bleakley the sum of $40,387.30 within 28 days.

CATCHWORDS:

APPEAL – DOMESTIC BUILDING DISPUTE – where conflicting evidence about cost of rectification

APPEARANCES:

 

APPLICANT:

Anthony Wayne Jenner

RESPONDENT:

Joseph Eric Bleakley

REASONS FOR DECISION

  1. [1]
    In December 2014 I heard an appeal by Anthony Jenner against a Tribunal decision ordering that Mr Jenner pay $44,413.40 to Joseph Bleakley. This was the amount the Tribunal found Mr Bleakley was entitled for the cost of rectifying defective building work (concreting) carried out by Mr Jenner at Mr Bleakley’s property.
  2. [2]
    I found that the learned Member at first instance had erred in finding that the scope of works to be done by Mr Jenner included the removal and replacement of a concrete pathway at the side of the house in order to correct the falls of that path.
  3. [3]
    I determined that the amount awarded for damages by the learned Member should be reduced by an amount representing the cost to remove and replace the concrete path at the side of the house (‘the reduced amount’).
  4. [4]
    The quote relied on by the learned Member to found the bulk of the award of damages of $44,413.40 was a lump sum quote in the sum of $42,893.40. It included an item for:
  • Saw cut and remove concrete pathway at side of house due to incorrect fall to house; remove fall from site by excavator and dump truck
  • Prepare place and finish new concrete pathway.
  1. [5]
    Unfortunately the quote did not itemise the cost associated with each aspect of the total job.
  2. [6]
    As such I did not have any evidence before me as to the cost and the amount by which the award should be reduced. As the dispute had been going on for some time I thought it would be in the parties interest to resolve the dispute. They were given the opportunity to attend a compulsory conference with a Member of the Tribunal but unfortunately were unable to agree an amount.
  3. [7]
    I gave the parties the opportunity to file evidence and submissions as to the reduced amount.
  4. [8]
    The parties each filed multiple quotes. At a directions hearing I directed the parties to advise the Tribunal by a certain date which quote they intended to rely on.
  5. [9]
    The parties, as requested, were allocated an oral hearing date to hear evidence and argument as to the reduced amount. They were advised that any witnesses they were relying on should be available for cross-examination at that oral hearing.
  6. [10]
    Mr Jenner advised (out of time) that he would be relying on a quote of Dawson Brothers Pty Ltd (‘Dawson’) in the sum of $20,355.50.
  7. [11]
    Mr Bleakley advised he would be relying on a quote from Flash Property Improvements (Flash) in the sum of $1,500.00. Mr Bleakley also sought to produce evidence which he said discredited the quote from Dawson.
  8. [12]
    This evidence included audio recordings of conversations between Mathew Dawson, Mr Bleakley and Mr Jenner; a further affidavit of Mr Bleakley and statutory declarations of Jennifer Eggleton.
  9. [13]
    I refused leave to allow this evidence save for a statutory declaration of Jennifer Eggleton.[1]
  10. [14]
    I allowed this evidence as it was relevant to instructions that were given to Flash and Dawson which formed the basis of their quotes.
  11. [15]
    I allowed it despite Mr Jenner’s objection to this course of action. I did however give Mr Jenner the opportunity to give his own oral evidence about the instructions given to Dawson and he was able to cross-examine Ms Eggleton as to the contents of her statutory declaration.

In what context is the ‘reduced amount’ to be determined

  1. [16]
    The work the subject of the reduced amount, namely the removal and replacement of the concrete path down the side of the house formed only a part of a quote to do a range of rectification work at Mr Bleakley’s house. As such the cost of that work has to be considered in the context of being a percentage of a larger job.
  2. [17]
    The reduced amount would not be an amount that would be charged by a contractor engaged to do that work in isolation. Unfortunately, neither party presented any evidence from the contractor who provided that quote (Jeff Klenemtsen).
  3. [18]
    Without any evidence from Mr Klenemtsen it is difficult to determine an exact figure for the cost of that work.

The evidence and submissions as to ‘the reduced amount

Mr Jenner’s position

  1. [19]
    Mr Jenner says that the reduced amount should be as per the quote from Dawson in excess of $20,000.00.
  2. [20]
    This quote was based on a site inspection carried about by an employee of Dawson, Darren French. Mr French had attended the site with Mr Jenner, taken notes as to the work to be done, given that information to his employer and the Dawson quote[2] was produced.
  3. [21]
    Mr French was at the hearing. He gave oral evidence and was cross-examined by Mr Bleakley.
  4. [22]
    Mr French produced a handwritten document which he said was a document he prepared from his written notes taken on the day of the site inspection. It set out all of the work to be done and his estimate of the costings.[3]
  5. [23]
    Mr French could not recall precisely the instructions given to him by Mr Jenner but understood he was to quote and remove the area of concrete down the side of the house and repair and replace it and to ensure that the levels were corrected and the water did not pool.
  6. [24]
    Mr Jenner in his oral evidence agreed that his instructions to Mr French were to quote for whatever work was necessary to be done to fix the levels to prevent water pooling.
  7. [25]
    Mr French conceded in cross-examination that his quote was not restricted to the removal and replacement of the side path but included an additional amount to ensure that the work blended in with the concrete either side of that path.
  8. [26]
    Mr French gave truthful and credible evidence. I have no reason to doubt that his costings were realistic in the circumstances where he was providing a quote for a one off job to come to site now and correct the levels and falls.
  9. [27]
    There are two problems however with accepting the Dawson quote.
    1. a)
      The costing of items in the quote[4] (whilst for the same total amount) differs from Mr French’s more detailed itemised quote. Mr French explained that he gives his costings to the girls in the office and they produce a quote.
  10. [28]
    Having heard Mr French’s evidence I prefer to accept his costings and itemisation. I will disregard the Dawson quote to the extent that it is inconsistent with his costings.
    1. b)
      The quote is based on the work being done in isolation. As such it is not provided in the context that I have outlined above. Mr French conceded that if the work was being done as a part of a wider scope of works his costings would be less.
  1. [29]
    His evidence was that the total cost $18,505.00 plus GST was calculated as follows:

$1,200.00 – concrete sawing to be done by outsourced concreter

$800.00 – labour to remove concrete – 2 guys 1 day

$200.00 – jackhammer to remove concrete

$680.00 – skip bin

$200.00 – mesh and bar (for new concrete)

$620.00 – pump hire (to pump concrete in)

$900.00 – termite protection

$2,000.00 – drainage system outsourced to contractor

$1,200.00 – spray recover crete on new

$200.00 – curing oil for new surface

$600.00 – new control joints outsourced

$400.00 – remove and replace water tank

$400.00 – remove existing fill down 55 mils under wheep holes

$1,200.00 – render and repaint damaged walls

$3,305.00 – Tie in new work with existing work

$4,100.00 – profit

Mr Bleakley’s position

  1. [30]
    Mr Bleakley relied on the quote from Flash in the sum of $1,500.00.
  2. [31]
    Despite my directions that witnesses attend the hearing, the provider of the quote from Flash did not attend the hearing and was such not available for cross-examination.
  3. [32]
    Mr Jenner, although understandably concerned that he could not ask questions, indicated he did not want to have the hearing adjourned to enable Flash to appear.
  4. [33]
    I explained that as the provider of the quote was not present to have his evidence tested under cross-examination, the weight I would attribute to that quote would be reduced.
  5. [34]
    Mr Bleakley pointed out that he had in fact obtained four quotations to do the work and they ranged from $1,500.00 to $2,042.00. He also relied on the evidence of Jennifer Eggleton who had briefed the contractors as to what they were to quote for. Her evidence was that they were briefed:
  • To quote only for the removal of concrete that permitted the flow of water towards the house.
  • No stencil was to be included in the quote as the quote was for concrete only.
  • That they needed to specify the thickness and reinforcing of concrete.
  • That the water tank would be removed prior to them doing the work.
  • That they needed to stay to the amount of area of rectification on the quote.
  • That there qualification would also be required to be noted on the quote.
  1. [35]
    The Flash quote[5] does not provide a lot of detail as to the work included but does say:

It is to remove and replace the path at the side of the house where water pools up against the base of the house and fall of this area of concrete path prevents the water from flowing away from the house – area of 10sq m – it will be reinforced with SL72 steel mesh to a thickness of 100mm of concrete.

  1. [36]
    Mr French commented that this quote was very low. He said the pump and concrete alone in his view would cost over $1,500.00.

Discussion and Findings

  1. [37]
    As indicated above, without evidence from Mr Klenemtsen as to what percentage of the total quote of $42,893.40 the removal and replacement represented, it is very difficult to come to an exact figure as to the cost associated with that work. That is particularly so where the parties have produced evidence apparently of quotes to do that work but which are very far apart.
  2. [38]
    As only Mr French was available for cross-examination I will use his costings as a starting point. As stated earlier however, his costs are not a realistic indication of what the work the subject of the reduced amount would have actually cost if it was done as part of the whole rectification work. As such it must be reduced.
  3. [39]
    I also consider the instructions given by Mr Jenner to Mr French as to what work was to be included was broader than that which I had indicated would be as part of the reduced amount. This must be taken into account in coming to a figure.
  4. [40]
    Working with Mr French’s figures I find as follows;

$1,200.00 –saw cutting

  1. [41]
    This must be reduced as the contractor to do the cutting would have been doing other work (for example saw cutting near pool area). I will allow half of this amount.
  2. [42]
    Allow $600.00.

$800.00 – labour

  1. [43]
    Allowed.

$200.00 – jack hammer

  1. [44]
    Allowed.

$680.00 – Skip bin

  1. [45]
    This should be halved because the bin would have also been needed to be onsite to remove other rubbish.
  2. [46]
    Allow $340.00

$200.00 – mesh and bar

  1. [47]
    Allowed.

$500.00 - concrete

  1. [48]
    Allowed.

$620.00 – pump hire

  1. [49]
    Allowed. In this regard it is noted that pump hire was also part of the Klenemtsen quote.

$900.00 – termite protection

  1. [50]
    I will not allow this amount. There is no indication on Klenemtsen’s quote that termite protection was included.

$2,000.00 – drainage system outsourced to contractor

  1. [51]
    This amount is disallowed. It was not part of the works the subject of the reduced amount.

$1,200.00 – spray recover crete on new

  1. [52]
    This amount is disallowed. This was not part of the works.

$200.00 – curing oil for new surface

  1. [53]
    This amount is not allowed. It was not included in the scope of works.

$400.00 – remove and replace water tank

  1. [54]
    Mr Bleakley said that this should not be included as he intended to remove the tank himself. However the quote from Klenemtsen did include it and therefore it should be included in the reduced amount.

$400.00 – remove existing fill

  1. [55]
    This is not allowed as it was not included as part of the original works.

$1,200.00 – render and repaint damaged walls

  1. [56]
    This amount is not allowed as it was not part of the works.

$3,305.00 – To ‘Tie in

  1. [57]
    This is not allowed as it was not part of the scope of works the subject of the reduced amount.

$4,100.00 – profit

  1. [58]
    It is reasonable to include a profit component in the reduced amount. I found a reasonable amount to be 10 per cent on the total costs allowed.
  2. [59]
    Allow $366.00.
  3. [60]
    The total costs which I have accpeted from Mr French’s costings as being the reduced amount is a total of $3,660.00. 10 per cent profit on this amount is $366.00 making a total of the reduced amount in the sum of $4,026.00.
  4. [61]
    Accordingly this amount is to be deducted from the amount ordered to be paid by the Tribunal below.
  5. [62]
    In those circumstances, I find and order that Mr Jenner pay to Mr Bleakley the sum of $40,387.30 within 28 days.

Footnotes

[1] Exhibit 4.

[2] Exhibit 1.

[3] Exhibit 2.

[4] Exhibit 1.

[5] Exhibit 3.

Close

Editorial Notes

  • Published Case Name:

    Jenner v Bleakley

  • Shortened Case Name:

    Jenner v Bleakley

  • MNC:

    [2015] QCATA 128

  • Court:

    QCATA

  • Judge(s):

    Senior Member O'Callaghan

  • Date:

    31 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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