Cochrane v Korn [2022] QCAT 378

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cochrane v Korn [2022] QCAT 378 PARTIES: SEAN COCHRANE (applicant) V RICHARD KORN (respondent) APPLICATION NO/S: BDL091-21 MATTER TYPE: Building matters DELIVERED ON: 9 November 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: Richard Korn must pay to Sean Cochrane the amount of $33,909 within 28 days of the date of this decision. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where claim for defective work – where lack of evidence of legally enforceable contract – whether negligence established – quantum of damages Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 77, Schedule 1B s 3, s 4, s 5, s 13 Barbi v Brewer [2013] QCAT 348 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 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] Sean Cochrane is a homeowner, and Richard Korn operates a business named AllCrete & Excavations. [2] Mr Cochrane is seeking damages against Mr Korn for the rectification of defective building works, plus the costs of the proceeding. [3] Mr Korn has not filed any evidence, and the matter has been set down for determination on the papers. -- 1 of 4 -- 2 Work to be undertaken by Mr Korn [4] Mr Korn provided Mr Cochrane with two quotes. [5] The first quote was dated 3 July 2019. The quote relates to the extension of a concrete path, and the removal a section of existing concrete. The amount quoted was $5,887.53. [6] The second quote was dated 12 July 2019. The quote relates to the application of Covacrete to the concreted area. The amount quoted was $14,899.50. Complaints by Mr Cochrane [7] Mr Cochrane was dissatisfied with the work undertaken by Mr Korn. Mr Cochrane made a complaint to the Queensland Building and Construction Commission, which appears to have resulted in some aspects of his complaint being remedied. The remaining matters in relation to which Mr Cochrane continues to be dissatisfied are the subject of the present proceeding. [8] Mr Cochrane obtained an expert building report from Martin Helisma of Building Investigations and Consultants Pty Ltd. The reported is dated 15 January 2021. [9] Mr Helisma has 45 years of experience in the construction industry, including a period of 16 years working for the then Queensland Building Services Authority. He holds a Master of Construction Management and an Associate Diploma of Applied Science (Building). I am satisfied that he possesses relevant expertise. [10] I will deal in turn with each of Mr Cochrane’s outstanding complaints, and Mr Helisma’s opinions in relation to them. Defective construction of the pavement expansion/construction joints [11] As set out in Mr Helisma’s report, Mr Cochrane had sought to have Mr Korn rectify a previously defective construction joint where a new concrete driveway had been installed adjacent to an existing driveway. [12] Mr Korn removed a strip of concrete on each side in an attempt to rectify the construction joint, and poured a new concrete infill strip. However, the compressive filler used by Mr Korn was installed only to 70mm, and not to the full depth of the concrete. Mr Helisma also expressed the view that there was insufficient working space to allow holes to be drilled for new dowels, and it is unlikely that any dowels were installed as part of the works. [13] Mr Helisma expressed the view that the new joint is defective, and will become misaligned and/or fail causing cracking and spalling as well as creating a step between the pavements. He concluded the new joint was not fit for purpose. Poor surface drainage [14] Mr Helisma noted that the pavement installed by Mr Korn was relatively level, and without the required fall of 1 in 100mm. He expressed the view that this would result in water ponding. Defective application of the new textured pavement paint system [15] Mr Korn applied a Covacrete coating to the driveway, replacing an early Avista resurfacing system which had failed. -- 2 of 4 -- 3 [16] Mr Helisma noted that the sealer was not applied in a consistent manner and applied in different directions, resulting in an uneven appearance. [17] Mr Helisma expressed the opinion that the person who applied the sealer product was not competent in the application of sealer over coloured concrete resurfacing systems. Contractual claim [18] ‘Domestic building contract’ is defined in s 3(1)(a) of Schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) to include ‘a contract to carry our domestic building work’. [19] ‘Domestic building work’ is in turn defined in s 4(1)(b) of Schedule 1B to include ‘the renovation, alteration, extension, improvement or repair of a home’. Accordingly, the concreting work the subject of this proceeding falls within the definition of domestic building work. [20] ‘Regulated contract’ is relevantly defined in s 5(1)(a) of Schedule 1B to be a domestic building contract for which the price is more than the regulated amount of $3,300. As the prices quoted by Mr Korn are each more than $3,300 but less than the level 2 amount of $20,000, the contracts are a level 1 regulated contracts pursuant to s 6 of Schedule 1B. [21] Section 13(5) of Schedule 1B provides that a level 1 regulated contract has effect only if the contract is in a written form, dated and signed by or on behalf of each of the parties to it. [22] There is no evidence before me of a written contract signed and dated by the parties. In the absence of such a contract or contracts, the contract is unenforceable and Mr Cochrane has no contractual claims against Mr Korn. Negligence claim [23] In Barbi v Brewer [2013] QCAT 348 at [10], the Tribunal recognised that while a contract which has no effect under the QBCC Act cannot form the basis of a claim in contract, the Tribunal may still have regard to the contract between the parties to the extent that it is relevant to the negligence claim. [24] In order to establish a negligence claim, Mr Cochrane must prove that Mr Korn owed him a duty of care, that Mr Korn breached that duty by failing to take reasonable care, the breach resulted in damage to Mr Korn and the damage is not too remote. [25] It is trite to state that Mr Korn owed Mr Cochrane a duty to take reasonable care in performing the concreting work. [26] I am satisfied, based on the uncontested report of Mr Helisma, that Mr Korn failed to take reasonable care in respect of each of the three complaints outlined above, thus breaching his duty of care. Assessment of damages [27] Mr Helisma expressed the view that it would be necessary to remove the section of concrete adjacent to the front door to achieve the required falls and for the correct installation of the construction/expansion joints. He also expressed the view that the entire resurfacing system would need to be removed, followed by a new resurfacing system. -- 3 of 4 -- 4 [28] I am satisfied on the basis of the uncontested report of Mr Helisma that this work is necessary to remedy the breach of duty by Mr Korn, and the costs associated with these works are not too remote. [29] Mr Helisma calculated the total costs of these works to be $36,703.71 (inclusive of GST). This included demolition of $3,845, concreting costs of $4019.29, surface preparation of $6,725.61, resurfacing system of $18,776.26 and GST. [30] I note that Mr Cochrane obtained a quote for this work from Dunrite Concreting dated 3 February 2022. The amount quoted was $30,400 (inclusive of GST). For completeness, I note that earlier quotes from February 2021 were provided by Dunrite Concreting totalling $29,825, however these quotes are now outdated. I take judicial notice of the rising costs in the construction industry. [31] I will assess damages in the amount of $30,400, being the more recent quote from Dunrite Concreting. I note that this amount is still lower than that calculated by Mr Helisma. Costs [32] Section 77(3)(h) of the QBCC Act provides that, in deciding a building dispute, the Tribunal may ‘award costs’: see Lyons v Dreamstarter Pty Ltd [2012] QCATA 71, [10]-[11]. [33] Mr Cochrane has provided copies of invoices from Mr Helisma totalling $3,157. He has also paid a filing fee of $352. [34] Accordingly, I am satisfied that it is appropriate to exercise my discretion and award Mr Cochrane costs in the amount of $3,509. Disposition [35] I will order that Mr Korn pay to Mr Cochrane the amount of $33,909 within 28 days. -- 4 of 4 --