Clare v Seuren [2023] QCAT 496

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Clare v Seuren [2023] QCAT 496 PARTIES: MARTIN CLARE (applicant) v BRONWYN SEUREN (respondent) APPLICATION NO/S: BDL227-20 MATTER TYPE: Domestic building dispute DELIVERED ON: 15 December 2023 HEARING DATE: 9 December 2022 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: Bronwyn Seuren must pay Martin Claire the sum of $10,589.60 by 4:00 pm on 29 January 2024. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – where applicant has been engaged by respondent for the construction of a retaining wall - where the respondent says the applicant has breached contract by failing to pay monies due and owing – where applicant says the work undertaken was defective and the respondent has breached the contract – whether the respondent is liable to pay the outstanding contract price – whether the applicant is liable to pay for the cost of rectification of defective work APPEARANCES & REPRESENTATION: Applicant: Self-represented. Respondent: Self-represented. REASONS FOR DECISION [1] On 31 January 2020, Martin Clare filed in the Tribunal an application for a minor civil dispute, claiming the sum of $14,995.60 plus interest and costs from Bronwyn Seuren being monies outstanding under a contract between them dated 6 May 2019 (Contract) for the construction of a retaining wall at her property in Hope Island, Queensland, (‘the Property’). -- 1 of 3 -- 2 [2] On 7 August 2020, Ms. Seuren had lodged a minor civil disputes counterclaim, seeking a dismissal of the application, and refund of $22,433.40 paid under contract, plus costs. Both the application and counter application were transferred to the building list in September 2020. [3] Ms. Seuren claims that the retaining wall is defective and as a result money paid by her should be refunded. She also claims approximately $15,000 as compensation for damaged caused to her property Mr Clare during construction. [4] Both parties provided conflicting expert reports in respect to the wall, but it is unnecessary for the Tribunal to make any findings in relation to its condition. [5] It is uncontested that Ms Seuren sold the property prior to the hearing. The refund of monies paid is not an appropriate remedy. The appropriate remedy is the cost of repairing or replacing the wall or in a case such as this the diminution in sale price Ms Seuren suffered as a result of the defective works. [6] Ms Seuren has not provided any evidence of diminution in value as to her loss, and accordingly, that part of her claim must fail. [7] Ms Seuren is claiming compensation for damage to her front driveway, retaining wall, rock wall and stormwater pit, supported by a quotation from Gold Coast Landscape, stated 19 October 2021. She's also claiming the cost of replacement of a pool pump house supported by an invoice from Slat Me. [8] The driveway on the property prior to construction of the retaining wall was constructed of pavers. Ms Seuren says it was in good condition. “no pavers were cracked or chipped and the driveway was smooth level and flat.”1 [9] Mr. Clare disputes this, saying there was some cracked pavers. The use of heavy machinery during the construction process resulted in Ms Seuren says “extensive damage” with pavers cracking and sinking. [10] The pavers in the driveway had not been produced in more than 30 years. Ms Seuren purchased additional matching pavers with the intention of extending the existing driveway but did not have enough to replace the damaged pavers and complete the proposed extension. [11] As a result, Ms Seruen says she decided to replace (and extend) the driveway. She says, “the cost of the new driveway was similar to the cost of repair of the old driveway.” The replacement cost was $13,200 plus GST, and she seeks to recover that amount. No evidence was provided of the cost of repair. [12] A claimant is required to mitigate his or her damages. Assuming for the moment Mr. Clare is liable, he is only liable for the cost of repairing the driveway. He is not liable for the cost of replacing it unless it is irreparable or the cost of replacing it is equal to or less than the cost of repair. He certainly is not liable for the cost of extending it. There is insufficient evidence as to the extent of the damage and the cost of repairs and accordingly Ms Seuren is unable to prove damage and this part of the claim must fail. 1 Evidence statement filed 24/02/22, Page 4 Paragraph 7. -- 2 of 3 -- 3 [13] Ms Seuren’s evidence that during the construction period an existing driveway retaining wall was compromised by the proximity of heavy vehicles used by Mr Clare. She has provided photographic evidence of the damage and the repaired wall. The costs of the repair were $1,800 plus GST. [14] She has also provided photographic evidence of damaged walls to a stormwater drain pit, which she says was caused by Mr Clare’s machinery driving over it repeatedly together with a photograph of the work undertaken by Gold Coast landscapes to repair it. The cost of these works is $260 plus GST. [15] A pool pump house also was damaged during the construction period. Photographic evidence of the damage and the proximity of concrete sleepers to it by Mr Clare was provided. She replaced the damaged pool house at a cost of $2800. [16] The work undertaken by Mr Clare was major and did require the use of heavy machinery. Some damage is almost inevitable, but in the absence of any other explanation on the balance of probabilities I am satisfied that the damage was caused by Mr Clare, his employees or contractors. [17] In relation to the rockwall claim I am not satisfied that Ms Seuren has shown that the work undertaken by Mr. Clare to rebuild the work was inadequate, and accordingly, I am not prepared to allow this part of the claim. [18] Mr. Clare has requested interest on the outstanding balance, presumably on the basis of the “terms and conditions” contained in Schedule F of his witness statement. Schedule G to that statement is a quote or estimate given by iROCK Retaining Walls to Ms Seuren’s partner Jamie Kemp, which has apparently been accepted by Ms Seuren and by signing it on 16 April 2019. [19] The full title of the terms and conditions document is “Live the Vision Pty Ltd trading as iROCK Retaining Walls - terms and conditions of trade.” It is also attached to Mr. Clare's Minor civil dispute application. Also filed with that application is a copy of a document titled “Basic Works contract (residential) schedule” completed to show Bronwyn Seuren as owner and Martin Clare as contractor. The schedule is not accompanied by the terms and conditions of the contract. There is no evidence that Ms Seuren was aware of the “terms and conditions document”, or that she expressly or impliedly accepted those terms and conditions. There is no evidence of the terms and conditions of the contract or that she agreed to pay interest on any outstanding monies. I'm not in those circumstances prepared to impose on her in order that she pay interest. Conclusion [20] I allow Mr. Clare's claim for the balance outstanding under the contract in the sum of $14,955.60. I offset against that amount the sum of $4366 for costs for costs of repair of damage caused by Mr. Clare to Ms Seuren’s property. I make no order as to costs. -- 3 of 3 --