Boorer v Rogers [2022] QCAT 426

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Boorer v Rogers [2022] QCAT 426 PARTIES: STEPHEN BOORER (applicant) v DARRELL ROGERS T/AS SEAPOINTE HOMES (respondent) APPLICATION NO/S: BDL250-21 MATTER TYPE: Building matters DELIVERED ON: 13 December 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The Respondent pay the Applicant the sum of $3,684.00 by 4:00 pm 13 January 2023 CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where parties entered into a building contract for construction of a house – where laundry chute depicted in plans not installed – front stairs not built according to plan – ambiguity as to meaning of a specification – conflict between specification and plans Queensland Civil and Administrative Tribunal Act 2009 (Qld) 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) Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] The Applicant, Stephen Boorer, and the Respondent, Darrell William Rogers, entered into a Queensland New Homes Construction Contract, dated 29 September 2020, as homeowner and builder respectively, for the construction of a house on Macleay Island in Moreton Bay. -- 1 of 4 -- 2 [2] Work commenced on 19 October 2020 and was completed on 3 August 2021. The value of the Contract was $393,857.00. [3] On completion of the works a list of incomplete and defective work was prepared. All but 2 matters were attended to, to the satisfaction of Mr Boorer. There remained 2 outstanding items, they were: (a) A laundry chute which was not installed; and (b) Front steps which were not built to plan. [4] The complaints could not be resolved and Mr Boorer lodged the Application for domestic building dispute on 20 October 2021. [5] Mr Rogers has filed a Response and counter-application. Laundry chute [6] In relation to the absence of a laundry chute Mr Rogers says that Mr Boorer did not include the laundry chute in cabinet work he arranged with a sub-contractor. It was discussed in the original scope of works but not finally included. Mr Boorer used up the whole of the provisional sum and more for the shelving in the showers. As part of the resolution of the defects Mr Rogers was prepared to allow a $200 credit for the absence of the chute. I note that there is provision for the laundry chute in the plans. There was no variation to remove the chute. Mr Boorer is not claiming the cost of cabinet work but for the costs of making a hole for the chute in the concrete slab. Subsequently, that was costed at $460.00. I allow that sum. Front stairs [7] Mr Boorer complains that the front stairs have not been built to plan. The stairs, as built, are wood steps sitting on metal stringers. I note his comments that the stairs do not comply with the Building Code but there is no expert evidence on this issue. [8] Mr Boorer alleges that fully housed stairs were discussed and included in the plans. There are no details of when or where these discussions took place or who was present. Mr Rogers denied that fully housed stairs were discussed. [9] It seems to be agreed that what is meant by fully housed stairs are stairs with horizontal timber steps with vertical timber risers on timber stringers. Mr Boorer says the drawings depict this. He says that on the drawings the batten skirting which encloses the underneath of the house is not visible where the stairs are located. That supports his contention that the stairs were intended to be fully enclosed. If the drawings depicted the stairs as built then it follows that the battens would be visible. [10] Mr Rogers says that there were pre-contract discussions with Mr Boorer in respect of sandstone stairs being installed but they were not part of the contract. Mr Boorer says those discussions were at a very early stage and Mr Rogers talked them out of the idea. [11] Mr Rogers says that the metal stringers laid on the ground of the building site for some months before being installed and it must have been apparent to Mr Boorer that they were to be used in the construction of the stairs. [12] Mr Rogers says that the external stairs were discussed, and the specifications modified many times and he said further: -- 2 of 4 -- 3 “…the stairs unfortunately were still excluded in the final price and no allowance was made for them. There was never a discussion on fully housed external stairs”1 He further states that Mr Boorer made handwritten alterations to other parts of the specification so why did he not correct the reference to outside stairs. [13] Clause 13.6 provides the order of precedence of documentation for the purpose of interpretation. It provides the order as follows: (a) any special condition; (b) these general conditions; (c) the specifications: (d) the plans, then (e) other documents. [14] Mr Boorer relies on the plans, but there is an obvious conflict between the specifications and the plans in respect to the external stairs. According to the above order the specifications would take precedence. [15] The specification document includes the following: GENERAL 1. (a) … (u) ⌦ Where this symbol is shown in the specifications, the said works are not included and it shall be the responsibility of the Proprietor to contract a licensed Queensland Tradesperson to complete any said works not included by the builder, if required. … 7. STAIRS & TIMBER FLOOR (a) External stairs are not ⌦ applicable. (b)(Standard) Internal Stain Grade Timber staircase is included, to the value of $4,675.00 [16] Elsewhere where the symbol ⌦ appears in the specification document, and it appears many times, it is in phrases such as “… are not ⌦ included”, an example is “Fencing is not ⌦ included” or “Gas wall oven is not ⌦ required”. What is meant by “are not ⌦ applicable” is unclear. The phrase only appears once in the specifications document. The phrase “not included” is unnecessary if the symbol ⌦ is used. Indeed, the symbol ⌦ seems to be unnecessary. [17] I find the reference to ⌦ in the clause relating to the external stairs is ambiguous when compared with the rest of the document. It would seem that the failure to include the stairs was an oversight by the parties. Indeed, Mr Rogers concedes as 1 Response and/or counter-application Part D, paragraph B v. -- 3 of 4 -- 4 much where he said: “the stairs were unfortunately excluded…”. He now argues that he should be reimbursed for the cost of the stairs he installed! [18] In my opinion the plans are sufficiently detailed for me to infer that fully housed stairs were intended. [19] It seems incomprehensible that a builder would build a house on stumps without stairs as Mr Rogers now maintains. The stairs are an integral part of the building, and it would not have been certified without them. The issue then is whether the stairs to be built were to be built ‘as built’ or ‘as per plan’. Mr Rogers, in the material filed, claims that he made no profit on the building because of rising costs, supply change problems, the remoteness of the location and costs of getting materials to the island. The stairs that were built cost much less than the stairs now being claimed by Mr Boorer. It was to Mr Rogers’ advantage to install the cheaper version. I infer from Mr Rogers’ conduct in now asserting that he did not have to install the stairs that he, also, had not turned his mind to what stairs were required. In the end it is the drawing that must be relied upon for clarification of the type of stairs to be installed. [20] I find that the stairs should have been the fully housed version. Supply and installation has been costed at $3,224.00. [21] In his Application in response and counter application Mr Rogers makes a claim for $11,100.40. It is not fully particularised. There is a claim for the cost of 2 variations of $1,000.00 and for $1,185.00, an extra expense over budget for the internal stairs that he did not charge for. The balance of the items making up $11,100.40 is not identified. [22] Mr Rogers relies upon clause 1 (n) of the Specifications to charge a fee of $500.00 for each variation. Variation #1 was for $175,00 for bathroom shelves and grabrails and Variation #2 was an ex gratia payment of $3,572.00 to the builder for scaffolding hire.2 Mr Boorer says that Mr Rogers had not complied with Clause 20 of the Contract. There is no variation document in the material filed for variation #2. I find that it was an ex gratia payment. The variation fee for Variation #1 was not raised until after this dispute arose. I find that it has been waived. I doubt that Mr Boorer would agree to a variation that cost $175.00 if a $500.00 fee applied. [23] There was no variation documents in relation to the additional cost for the stairs, so Mr Rogers is precluded from claiming the additional cost. [24] In conclusion, I order Mr Rogers to pay Mr Boorer the sum of $3,684.00 comprising $460 for the laundry chute and $3,224.00 for the fully housed front stairs by 4:00 pm 13 January 2023. 2 Email dated 29 July 2021 S Boorer to Seapointe admin. -- 4 of 4 --