Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3 PARTIES: MICHAEL EDWARDS (applicant) v CUMMINS CONSTRUCTIONS PTY LTD (respondent) APPLICATION NO/S: BDL285-20 MATTER TYPE: Building matters DELIVERED ON: 10 January 2023 HEARING DATE: 7 December 2022 HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The Tribunal: Dismisses the application; Directs the parties to make and exchange submissions, if any, in respect to costs as follows: (a) The Respondent by 4:00 pm 24 February 2023; (b) The Applicant by 4:00 pm 10 March 2023. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – dispute between home owner and builder – work not defective or incomplete – work not in accordance with contract, plans and specifications CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – whether construction of pontoon is reviewable domestic building work ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - where failure to provide evidence – failure to comply with directions to file statements of evidence – adversarial nature of proceedings Queensland Building and Construction Commission Act 2009 (Qld) -- 1 of 8 -- 2 Queensland Building and Construction Commission Regulations 2018 (Qld) APPEARANCES & REPRESENTATION: Applicant: Self represented Respondent: B English solicitor CIF Lawyers REASONS FOR DECISION [1] The parties entered into a Master Builders Queensland Residential Building Contract - Level 2 for the construction of a house at Jacobs Well. Work commenced on 24 April 2019 and was completed on 10 September 2019. [2] Cummins Constructions Pty Ltd trading as G J Gardner Homes – Gold Coast North was the builder who, hereafter, I will refer to as the ‘builder’. [3] Practical completion occurred on 10 September 2019 with final payment made the day before on 9 September 2019. The contract price, $398,624.00 and variation of $1,526.43 totalling $400,150.43, has been paid in full. [4] The builder says that Mr Edwards inspected the works on practical completion and on some issues agreed to disagree but completed the contract and took possession. No defects notice pursuant to clause 17.5 of the Contract listing any minor defects was produced in evidence. Mr Edwards says that the final acceptance and handover contains a list of exceptions in which all the complaints are documented as exceptions, but the document is not in evidence.1 [5] The Applicant, Mr Edwards, lodged a complaint of defective building work with the Queensland Building and Construction Commission (QBCC) on 12 February 2020. The QBCC found no defective work and determined that the issues were contractual. On 26 April 2022, Mr Edwards commenced proceedings in the Tribunal claiming compensation for defective work which were itemised in the application as follows: (a) Water supply to pontoon defective work; (b) Exposed sewer vent; (c) Exposed water supply service; (d) Water tap to be relocated as shown on the drawings; (e) Hebel panels to be installed as shown in drawings. [6] Each complaint was investigated by Queensland Building and Construction Commission (“the Commission”) and found not to be defective work. [7] Mr Edwards alleges that the builder failed to comply with the specifications and approved drawings. [8] The house to be constructed was subject to restrictive covenants or residential guidelines imposed by the Calypso Bay Community Titles Scheme (“Calypso Bay”). 1 Applicant’s response to the Respondent’s statement of evidence in reply dated 1 August 2021 p.23 -- 2 of 8 -- 3 The Drawings and specification for the house were to be submitted to the Design Assessment Panel (“DAP”) of Calypso Bay. Mr Edwards paid a bond of $10,000.00 which was refundable on compliance with the guidelines. [9] The cost of rectifying all items was quoted by IDH Custom Builders $26,959.00. I observe that this is a quotation, and the author does not provide any expert evidence as to whether the work is defective or not in compliance with the contract, specifications or plans. [10] I will deal with each of the items in seriatim. Pontoon [11] The complaint gives rise to a jurisdictional issue. The Tribunal has jurisdiction to decide building disputes under s.77 of the Queensland Building and Construction Commission Act 2009 (Qld) (“the Act”). A building dispute, in this case, relevantly, means a domestic building dispute which in turn is defined as a dispute between a building owner and a building contractor relating to the performance of or a contract for the performance of reviewable domestic building work.2 Reviewable domestic building work means domestic building work under Schedule 1B, section 4, except that for applying schedule 1B, section 4(8), the definition excluded building work under the schedule is taken not to mean anything (b), (c) or (d) of that definition. Relevantly, excluded building work means work declared under a regulation to be excluded building work. Queensland Building and Construction Commission Regulations 2018 (Qld)3 clause 19 provides: Construction, maintenance or repair of harbours, wharfs and other maritime structures, unless the structures are buildings for residential purposes, or are storage or service facilities. [12] Maritime structures are not defined but, in my opinion, would include a pontoon. [13] It follows, that this Tribunal does not have jurisdiction to decide a dispute relating to the pontoon. In case I am wrong on this point I will consider the merits of the complaint. [14] Mr Edwards claims that the water supply line as constructed was substandard. He alleged that the polyethylene pipe was rubbing against the hole in the revetment through which it passed. His concern was the constant bending movement caused by the pontoon rising and falling placed unnecessary stress on the pipe. He relied upon AS/NZS 3500-1 Table 5.6.4.` [15] Subsequently, he amended his complaint to allege that the water supply pipe is in close proximity to the electrical supply and does not maintain a minimum separation of 25 mm. Indeed, he says they are touching. A photograph4 does show the pipe and electrical cable touching but it would appear they touch at only one point and could easily be permanently separated with minor effort. 2 Schedule 2 to the Act 3 Schedule 1 4 Applicants Statement of evidence Item 1 p.7 of 9. -- 3 of 8 -- 4 [16] The builder submits that the standards do not apply to pontoons. I have insufficient information to determine if that is the case or not. However, there is no expert evidence that the work is substandard as alleged by Mr Edwards. [17] Cost of rectifying this item was quoted at $750.00. Vent Pipe [18] An exposed sewer vent contravened the residential guidelines and Mr Edwards was asked to rectify the matter.5 [19] Mr Edwards alleges that the position of the vent pipe is not in accordance with the drawings and specifications. It is exposed on the exterior of the building and Calypso Bay have found that it does not comply with their residential guidelines. He says it was a mistake by the builder at the time of pouring the slab not to allow a position for the vent pipe. [20] Mr Edwards submits that the drawings and specifications were to be provided to Calypso Bay for approval. They were supplied and approved but the drawings did not contain any detail of the position of the vent pipe. The Commission found the vent pipe to be compliant with AS3500.5.2012 Venting of drains and not defective. [21] The builder says that it is not uncommon for pipes and vents not to be shown on plans, which was the case here. Mr Edwards says that he is entitled to have the house constructed in accordance with the approved drawings. Yet, he concedes that the vent pipe does not appear on the approved drawings. [22] I note that the letter from Calypso suggests a possible basis for rectification would be to conceal it behind a gate. Mr Edwards did not include a gate as part of his contract. A photograph reveals that a gate has been installed.6 [23] Mr Edwards has not established a basis for the claim. There has been no breach of contract and no other basis for the claim. [24] Cost of rectifying his item was quoted at $3,250.00. Exposed water pipe [25] The same issue arises here as with the vent pipe. The builder says that its position is not included on the plans and was not required to be for the purposes of the contract. Mr Edwards complains that he brought the position of the pipe to the attention of the plumber at the time of installation, but the plumber and the builder continued with the installation without changing it. He says that he pointed out to the builder at the time of installation that the service line was exposed and that DAP would not approve the work. Photographs taken on 31 May 2019 show the exposed works and position of the pipe. [26] By a variation dated 26 August 2019, Mr Edwards was offered a variation, at a cost of $1,848.00 to correct the position to his satisfaction but he refused to accept the 5 Letter from Calypso Bay dated 26 October 2020. 6 Exhibit 1 to Amended Response and/or counterclaim filed 27 April 2022 -- 4 of 8 -- 5 variation7. Emails disclose that Mr Edwards reluctantly decided he did not wish to proceed with the variation.8 [27] Cost of rectifying this item was quoted at $5,270.00. [28] I do not allow the claim. Location of tap [29] This complaint relates to the position of a water tap on the front facia. It is not centred on the wall. The work is not defective and complies with the relevant standards. Mr Edwards says it is just in the wrong position. The builder says the tap is now concealed as depicted in a photograph.9 [30] Cost of rectifying his item was quoted at $2,700.00. [31] I refuse the claim Cladding on the high west wall [32] The plans allowed for Hebel cladding to be installed. At the time of installation of the high west wall, the builder was verbally notified that the product was unsuitable, and that Blue board10 should be used. A letter from the manufacturer confirmed this sometime later. [33] In an email in reply dated 25 June 2019 Mr. Edwards expressed concern that the Western Wall between the high and low roof sections was not fixed with cladding as specified and shown in the drawings. He considered this to be a major omission. He sought suggestions from the builder regarding the matter. [34] By email dated 28 June 2019 the builder stated:- With regards to the area of cladding to the rear of the home I have had discussions with Hebel Innovations who have provided the attached letter outlining the reasons behind the change of material. This change should have been communicated to you by way of variation prior to the works being undertaken. I apologise that this did not occur at the time. If your concern is heat transfer we can look to address this by way of additional insulation. Could you pls advise if this is suitable and also update me on your intent to pay the claim or otherwise. [35] In the attached letter addressed to the builder dated 27 June 2019, the Sales Manager David Krogdahl, for Hebel Innovations stated (omitting formal parts): Hebel Innovations did not install Hebel panels to areas above roof as shown on elevations 3 & 4 due to following:- • safety risk for our employees getting access to work area and manoeuvring panels across roof. 7 Exhibit A Response and/or counterclaim filed 25 June 2021 8 Exhibit 2 to Amended Response and/or counterclaim filed 27 April 2022 9 Exhibit 3 to Amended Response and/or counterclaim filed 27 April 2022 10 A type of drywall or plasterboard sheet used to line the external walls of a building as a type of cladding. -- 5 of 8 -- 6 • unavoidable damage to roof due to foot traffic walking across roof and white panels to be manoeuvred to work area. • panels to be installed would be suspended off wall frame and additional panel weight on wall frame is a concern. We recommended using rendered blueboard or harditex instead as will look the same once completed. [36] On receipt of the letter from Hebel Innovations Mr Edwards expressed some dissatisfaction. In an email dated 28 June 2019 he referred to a meeting with a member of the builder’s staff, James Askew that morning. He seemed satisfied with the proposal that the blue board be used but with R3.5 insulation batts to the affected area (Exposed Wall Areas). Mr. Edwards then said in the email:- … this would seem to overcome the problem and I indicated to James to proceed on that basis. Would you be good enough to arrange some photos for me during the insulation installation works. That would be appreciated. [37] Mr Edwards had a meeting with the builder and acquiesced in the change. This is evidenced by email correspondence. Subsequently, he says the manufacturer Hebel Innovations, now known as Maaken, says Hebel cladding could be installed but there would have to be scaffolding and appropriate safety measures. Mr Krogdahl in an email dated 2 September 2020 to Mr Edwards expressed the view in similar terms to his letter of 27 June 2019. He was not able to say why the area of wall was changed from Hebel to another cladding but then referred to the dot point items in his previous letter but in more detail. He said the final decision would have been up to the builder. [38] Mr Edwards relies upon conversations with Mr Krogdahl that Hebel cladding could be used and that it was the builder’s decision not to install it. It should not be forgotten that Mr Krogdahl in his letter to the builder recommended blueboard be used. The conversations are based on hearsay. There is no formal statement of evidence by Mr Krogdahl. Merely an exchange of correspondence. He was not called as a witness. On such an important issue, where it was suggested that he was resiling from the letter given to the builder, there should have been a formal statement. Maaken has provided a written quote dated 5 November 2020 to install Hebel cladding for the sum of $9,490.03. Mr Edwards now wants it installed. [39] There is a consistency in Mr Krogdahl’s correspondence that there were safety risks in installing the cladding in the particular situation and there were risks of damaging the roof if Hebel was used. The builder may not have been prepared to accept those risks and additional costs to overcome those risks as raised by Mr Krogdahl. There should have been a variation as the builder concedes. [40] Mr Edwards argue that the change was not agreed within the terms of the contract, that is that there was no variation agreed to. However, I find that the email correspondence was sufficient evidence of the variation and acceptance of it under the Electronic Transactions (Queensland) Act 2001. [41] No formal variation was served but there was an exchange of emails. It was accepted that R3.5 installation could be installed, Mr Edwards says that from his investigation, with an endoscope camera he purchased and used, that it appeared to him that insulation had not to be installed. There is no photographic evidence submitted by Mr Edwards to support his assertion. The builder says it was installed. Mr Edwards says -- 6 of 8 -- 7 that Mr Askew never responded in relation to the provision of photographs of the insulation being installed. [42] Mr Edwards offered to share the cost with the builder of removing some of the panels to check whether it was installed. That offer was not accepted by the builder. In recent submissions Mr Edwards says he has now established that the insulation was not installed but offers no evidence to substantiate this. [43] Cost of rectifying this item has variously been claimed at $9,490.0411, $12,834.5812 and $14,989.00. [44] I refuse the claim. Failure to provide evidence [45] Under the objects of the Queensland Civil and Administrative Tribunal Act 2009 the Tribunal is obliged to deal with matters in a way that ensures its proceedings are conducted in an informal way that is as quick as is consistent with achieving justice,13 it is not bound by the rules of evidence14 and must act with as little formality and technicality as the requirements of the Act and a proper consideration of the matters before the tribunal permit.15 For this reason the tribunal does not insist on the formal separation of pleadings, submissions, and evidence. [46] Nevertheless, Mr Edwards has an obligation to prove his claim to the reasonable satisfaction of the Tribunal by evidence rather than allegations. Various documents and emails are referred to in the submissions but there are no statements of evidence by either Mr Edwards or any witness on his behalf. The onus is on Mr Edwards to produce such evidence including expert evidence. [47] The builder brought an application for further particulars16 to have Mr Edwards particularise his claim and provide evidence to support his claim. On the application of the builder, directions were made by the Tribunal on 19 May 2022 that Mr Edwards file further statements of evidence of each witness to give evidence for him including experts. The Tribunal had previously made such a direction on 29 April 2021. Mr Edwards has not complied with those directions but has merely filed further material repeating the allegations he had previously made with some new additions. No expert evidence has been filed. [48] I note that Mr Edwards who is now retired was, in a former life, a construction manager in the oil and gas industry. He has not qualified himself as a building expert and, even if he were, his evidence would not be impartial. Mr Edwards was on notice to provide expert evidence and has failed to do so. [49] Despite the objects of the Act and the leniency from strict observance of evidentiary and procedural rules normally required by courts of law, the building jurisdiction of the Tribunal still operates on an adversarial basis. The builder in this case has not gone into evidence and until there was evidence to respond to it was not required to do so. 11 Maaken quote dated 5 November 2020 12 Exhibit 1 to Application for domestic building disputes. 13 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b). 14 Ibid s 28(3)(a). 15 Ibid s 28(3)(d). 16 Application for miscellaneous matters filed 12 April 2022 -- 7 of 8 -- 8 [50] The Tribunal cannot make findings of fact on guesses or assumptions or on the basis that the builder has not responded to an allegation. Evidence is required and the parties are responsible for preparation of their own case. [51] In view of Mr Edwards former occupation, the task of preparing his claim properly was not beyond him. [52] I dismiss the application. The parties make submissions in respect to costs, if any, in accordance with the timetable contained in the above orders. -- 8 of 8 --