Braund v Sandrey and Marant Holdings Pty Ltd t/as SMS Projects [2021] QCAT 440

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Braund v Sandrey and Marant Holdings Pty Ltd t/as SMS Projects [2021] QCAT 440 PARTIES: KYLIE BRAUND (applicant) v SHANE SANDREY and MARANT HOLDINGS PTY LTD t/as SMS PROJECTS (respondent) APPLICATION NO/S: BDL122-20 MATTER TYPE: Building matters DELIVERED ON: 16 December 2021 HEARING DATE: On the Papers HEARD AT: Brisbane DECISION OF: Member King-Scott ORDERS: The respondents, Shane Sandrey and/or Marant Holdings Pty Ltd t/as SMS Projects pay the applicant Kylie Braund the sum of $21,345.80 by 4:00 pm on 16 January 2022. CATCHWORDS: DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – PROOF AND EVIDENCE where the builder did not rectify defective work – where little detail provided as to the need for replacement of bathroom fixtures as part of the defective work - whether reasonable to for the bathroom to be reconstructed with new fixtures Queensland Civil and Administrative Tribunal Act 2009 (Qld) Bellgrove v Eldridge (1954) 90 CLR 613 Robinson v Harman (1848) 1 Ex 850 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) -- 1 of 4 -- 2 REASONS FOR DECISION On 6 May 2021 the Tribunal directed that a final decision in favour of the Applicant Kylie Braund against the Respondents Shane Sandrey and Marant Holdings Pty Ltd t/as SMS Projects conditional upon the assessment of damages. I am asked to assess the damages. Marant Holdings Pty Ltd by a HIA Queensland Kitchen, Bathroom and Laundry Supply and Install Contract agreed to renovate a bathroom at her Kenmore property. Marant Holdings Pty Ltd agreed to carry out the work for $17,805.70. Agreed variations increased the contract cost to $18,718.70. Work was said to commence on 31 January 2019 and was completed on 28 March 2019. Ms Braund filed an application against both respondents for domestic building dispute on 25 November 2019. She initially claimed $17,805.70 for costs to enable her to rectify the defective building work. The Queensland Building and Construction Commission issued a Direction to Rectify on 7 April 2020. The Direction to Rectify was not complied with and 5 items had not been completed satisfactorily. The items are described as follows: (a) The installation of the sealant is defective. As it does not comply with the requirements of QBCC Standards and Tolerances Guide, May 2019, or Australian Standard AS 3958.1, “Ceramic Tiles-Guide to the installation of Ceramic Tiles.”, in that the sealant has failed to remain adhered to adjacent surfaces. (b) The performance of the pop-up waste is defective in that it remains in the closed position when pressed and requires repeated attempts to open the fitting to allow drainage of water from the vanity bowl. (c) The plaster cornice is defective and does not comply with the QBCC Standards and Tolerances Guide, May 2019, 10.15 in that cracks are observable in the mitres when viewed from normal viewing position. (d) The installation of the vanity drawers is defective, in that the drawer is unable to be fully removed from the vanity carcass and thus inhibits access to waste and water services, and the access to the carcass frame for the cleaning thereof. (e) The installation of the bathtub is defective and does not comply with the Building Code of Australia 2016, Volume 2, F2.4.3. In that the ponding of water on horizontal surfaces creates an unhealthy environment, in that it creates an environment conducive to the development of mould and deterioration of building elements adjacent to and underneath the ponding water, and water, escaping the shower enclosure and flowing to the floor creates a dangerous condition when stepping out of or approaching the bath. The installation of the shower screen does not comply with Australian Standard AS 3740, 5.16.2, in that the screen is not installed flush with the inside of the shower area. Ms Braund made a claim under the Queensland Home Warranty Scheme which was refused because she was out of time. Ms Braund alleges that the bath is incorrectly installed and does not comply with the Building Code. To rectify this Ms Braund says essentially requires the bathroom to -- 2 of 4 -- 3 be rebuilt. The current bath needs to be removed which also means all tiles and fixtures need to be stripped out, waterproofing redone & the room rebuilt from scratch. Ancillary to this she says the following needs to be attended to. (a) Shower screen to be fitted along bath edge so that complies with AS3740. (b) Failed grout in several areas (holes, cracks, lifting out, breaking away) including around bath rim & fascia (allowing water to seep below the bath – moisture detected by Hoffman builder while giving quote to rectify), along floor/wall join by toilet and beneath vanity, around doorway trim and windowsill, so that complies with QBCC standards and AS3958.1. (c) Vanity coming away from wall at 2 of 3 corners – needs to be secured. (d) Broken / unusable vanity draw clip – fix defect. (e) Cornice fitted level with tile lines and joined correctly so not cracking and coming away from ceiling, so that complies with QBCC standards. (f) Stuck down vanity sink pop-up waste plug – fix defect. (g) Cracked tile from window frame to door edge – fix defect. (h) Mirror corrosion around entire edge – fix defect. Ms Braund has obtained two quotes to carry out the work. They are: (a) Hoffman Building Construction and Maintenance Pty Ltd - $28,657.00. (b) QTG Pty Ltd - $24,310.00. Both quotes include the replacement of all fixtures and fittings including the bathtub, vanity basin, toilet pedestal and tapware. It is trite to say that in cases of contractual breach by a builder, the home-owner is entitled to claim from the builder damages that enable the home-owner to be placed in the same position as the home-owner would have been had the contract been performed according to its terms.1 The measure of damages recoverable from a builder by a home-owner for defective work is usually the difference between the contract price of the work and the cost of rectifying the work so it conforms with the contract. In this case, it is not explained why items such as the bathtub, vanity basis and tapware needed to be replaced. In Bellgrove v Eldridge2 the trial judge held that the defects in the house constructed were so great that the only measure of damages was to demolish and re-erect it. The High Court upheld that decision reiterating the general rule as to the assessment of damages as stated above but adding a qualification that if such drastic action as demolition was necessary to effect conformity, then it must be the only reasonable course to adopt. It is a question of fact whether the remedial work is necessary and reasonable. No allowance appears to have been allowed for salvage for items I have referred to which could only be a couple of years old. On the other hand, there are other factors to be considered such as the additional costs that may be incurred in removing 1 Robinson v Harman (1848) 1 Ex 850. 2 (1954) 90 CLR 613 -- 3 of 4 -- 4 fixtures in a manner that they could be re-used or that removal will in any event make the items unusable. Further, should some allowance be made for the increase in building costs. In detailed directions made by the Tribunal on 24 February 2021 and in part repeated on 18 November 202 Ms Braund was asked to provide details of each item of defective work and the cost of replacement or rectification. In the quotes provided by Ms Braund there is no reason given for replacement of fixtures of those I have described above. In all the circumstances, and doing the best that I can, I have assessed damages at $21,000.00. I have allowed the costs of filing fees of $345.80. In reaching that figure I have allowed for the increase in building costs as damages should be assessed at the time of assessment. I have also allowed for some credit for reusing some fixture items or salvage costs. I order the respondents Shane Sandrey and/or Marant Holdings Pty Ltd t/as SMS Projects pay the applicant Kylie Braund the sum of $21,345.80 by 4:00 pm 16 January 2022 -- 4 of 4 --