Cousland v Tropic Landscapes Pty Ltd t/as Sovereign Landscapes [2020] QCAT 449

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cousland v Tropic Landscapes Pty Ltd t/as Sovereign Landscapes [2020] QCAT 449 PARTIES: ROBERT WILLIAM COUSLAND (applicant) v TROPIC LANDSCAPES PTY LTD T/AS SOVEREIGN LANDSCAPES (respondent) APPLICATION NO/S: BDL 211-19 MATTER TYPE: Building matters DELIVERED ON: 10 November 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Paratz AM ORDERS: Tropic Landscapes Pty Ltd trading as Sovereign Landscapes is to pay the amount of twelve thousand and fifty-eight dollars and sixty-five cents ($12,058.65) to Robert William Cousland. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORKS – REMEDIES FOR BREACH – DAMAGES – where a landscaper failed to complete works and to remedy defects – where the landscaper made no response to the claims – where the claims were assessed – where costs were allowed for disadvantaging the other party Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 REPRESENTATION: Applicant: Self-represented Respondent: No appearance APPEARANCES: 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 6 -- 2 REASONS FOR DECISION [1] Robert and Lori Cousland entered into two contracts for landscaping works to be conducted by Tropic Landscapes Pty Ltd (the landscaper). [2] Mr Robert William Cousland, on behalf of the owners (the owners), filed an Application for domestic building works in the Tribunal on 9 August 2019, seeking an award for damages in the amount of $11,689.85 plus interest and costs. [3] The owners say that Contract 1 was dated 27 June 2019, in relation to a retaining wall and Colorbond fence, and involved some shared components of work with neighbours. [4] The application claims $1,731.64 in relation to Contract 1 as follows: Incomplete works $ 958.34 Defective works $ 773.30 Contract 1 claim $1,731.64 [5] Contract 2 was dated 20 July 2018. The contract price was $44,708.00. The owners, by their solicitors, gave notice terminating Contract 2 on 12 April 2019. The letter from their solicitors noted as follows:1 Our clients entered into landscape contract dated 20 July 2018 to complete landscaping works with practical completion for 31 October 2018. The practical completion date was moved to end of December 2018. We are instructed that your company has failed to complete tiling (87m2) and concrete work (5m2) as per contract. In fact your company has failed to return to work since 27 November 2018 and has been in substantial breach of contract. [6] The application claims $9,958.21 in relation to Contract 2 as follows: Incomplete works $11,575.20 Defective works $ 2,583.81 Contract 2 claim $ 9,958.21 [7] The owners seek damages in relation to the two contracts. The total claim for Contract 1 and Contract 2 is $11,689.85. [8] The owners say that the total contract amount was $66,988.60, and that total payments were made of $62,517.80, leaving an amount owing of the contract price of $4,470.80. Directions have been made in relation to the matter on 26 August 2019, 5 November 2019 and 23 January 2020. The directions variously required the landscaper to file a Response to the application, a Response to a table prepared by the owners as to their claim, to attend a Compulsory Conference, and to file Statements of Evidence. [10] The landscaper has not filed any material in the proceedings in relation to the Directions, or otherwise; and failed to attend the Compulsory Conference on 5 November 2019, or to provide any explanation for failing to do so. [11] The landscaper has not responded to the owners’ claims. 1 Letter Narayan Lawyers to Tropic Landscapes Pty Ltd, 12 April 2019. -- 2 of 6 -- 3 [12] I gave directions on 23 January 2020 for the application to be determined on the papers. [13] These are the Reasons in determination of the application. [14] Not all items that are referred to in the Application are the subject of a claim. I will assess and decide on each item in respect of which a claim is made. Where I consider that the claim is supported by evidence, and is reasonable, I will allow the claim. [15] Any amounts for works that are within the contract price which have been paid for and which have not been performed, and the reasonable cost of rectification of any defects in the work that has been performed, are recoverable as damages for breach of contract. Contract 1 – retaining wall and Colorbond fence [16] The owners say in the application that they have paid the contract price and variations for Contract 1 of $17,277.60 in full. Item 1 [17] This item is in relation to a missing Colorbond gate between the side walkway and new retaining wall at the front side of the house. [18] The claim is to supply and erect a 1.8 m high fitting single gate (1 m wide) with D- latch in Coloursmart – Ironstone. [19] A quote has been obtained from Fences R Us for $958.34. The quote is not challenged, and I allow that amount. Item 2 This item is a defect in relation to a leaning fence/poor concrete footings located at the last 15 m at rear of the property. The claim is to straighten and re-concrete for Colorbond posts. A quote has been obtained from Fences R Us for $386.10. The quote is not challenged, and I allow that amount. Item 3 [23] This item is a defect in relation to an incorrectly oriented and sized Colorbond fence panel which is 15 m from the rear boundary. [24] The claim is for $387.20 to replace the incorrectly fitted Colorbond panel. The quote is not challenged, and I allow that amount. Total allowed for Contract 1 Item 1 $958.34 Item 2 $386.10 Item 3 $387.20 Total allowed for Contract 1 $1,731.64 -- 3 of 6 -- 4 Contract 2 – concreting/tiling/pool fencing/stormwater The owners say in the application that the grand total for the contract price and variations of contract is $49,711.00 and that they have paid $45,240.20, leaving an outstanding balance of $4,470.80. Item 5 This item is in relation to completion of 87 m 2 of tiling work that was not performed. The claim is for $11,463.00, being a quote obtained from Evolution Tile and Stone dated 13 April 2019. Other quotes were obtained from PERC tiling for $11,814, and from Dejan Ocvirk for $13,560. None of the quotes is challenged, and I allow the lower quote from Evolution Tile and Stone in the amount of $11,463.00. Item 6 This item is for 20 missing glass pool fence panel spigot covers. A quote has been supplied from Oxworks for $112.20. The quote is not challenged, and I allow that amount. Item 11 This item is a back-charge for repair of an exposed water main that was left above the surface at the front of the property. The application states that the connection was severed by the landscaper at a depth of 30 to 40 cm, and was partially repaired during the stormwater installation on 6 November 2018. The claim is for rectification by digging into the required depth so the water main could be buried. A quote has been obtained from Fallon Solutions for $232.51. The quote is not challenged, and I allow that amount. Item 12 This item is in relation to a black aluminium pool fence panel which was not raked as specified. The claim is to remove and replace one panel of 1.2 m black flattop pool fencing with a 1.6 m long rake of 220 mm custom panel. A quote has been obtained from Fences R Us for $459.80. The quote is not challenged, and I allow that amount. Item 13 This item is in relation to alfresco garden beds with excessive fill which were not levelled. The claim is to move the excessive fill to behind a retaining wall near the filtration equipment. A quote has been obtained from Tropiscapes for $2,161.50. The quote is not challenged, and I allow that amount. -- 4 of 6 -- 5 Total items allowed for Contract 2 Item 5 $11,463.00 Item 6 $112.20 Item 11 $232.51 Item 12 $459.80 Item 13 $2,161.50 Total items allowed for Contract 2 $14,429.01 The total of items allowed for Contract 2 is $14,429.01. As an amount of $4,470.80 is still owing in respect of the contract, that amount is to be subtracted from the items allowed, giving an amount of $9,958.21. The total claim allowed is $11,689.85 as set out below: Contract 1 claim $1,731.64 Contract 2 claim $9,958.21 Total claim allowed $11,689.85 Interest The owners make a claim for interest in their Application. No amount, or basis for an award of interest, is specified in the application. The only reference is in clause 9 of Part C of the Application which says: Additionally the owner wishes to claim any interest payable on these amounts deemed applicable by the tribunal. In the absence of any applicable provision in a contract, or a claim giving notice to the landscaper of the extent of any interest claimed, or the basis upon which interest is claimed, in the Application, to which the landscaper could respond, no amount for interest can fairly be allowed. I do not allow any amount for interest. Costs The owners make a claim in clause 9 of Part C of the Application for costs. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that each party usually bears their own costs. Section 102 provides that the tribunal may make an order for costs if it considers the interests of justice require it to make the order. Section 102(3)(a) provides that the tribunal may have regard to whether a party unnecessarily disadvantages another party to the proceeding. The landscaper has not responded to the claim in any way, and has put the owners to the expense of pursuing their claim to a decision. That conduct of the landscaper has unnecessarily disadvantaged the owners. The owners have incurred a filing fee in the Tribunal of $368.80. No other costs have been identified. I allow costs to the owners of $368.80. -- 5 of 6 -- 6 Conclusion I am satisfied that the claim by Robert William Cousland in the full amount of $11,689.85 is substantiated. I allow costs in the amount of $368.80. The total award is $12,058.65. I order that Tropic Landscapes Pty Ltd trading as Sovereign Landscapes pay the amount of $12,058.65 to Robert William Cousland. -- 6 of 6 --