Crespan & Anor v Baxter & Anor [2019] QCAT 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Crespan &Anor v Baxter & Anor [2019] QCAT 29 PARTIES: MARK CRESPAN and VALINA CRESPAN (applicants) v BRETT BAXTER and CHGC PTY LTD TRADING AS HARDCORE CONCRETE GRINDING AND POLISHING (respondents) APPLICATION NO/S: BDL126-17 MATTER TYPE: Building matters DELIVERED ON: 20 February 2019 HEARING DATE: 20 June 2018 HEARD AT: Brisbane DECISION OF: Member Allen ORDERS: CATCHWORDS: APPEARANCES & REPRESENTATION: Applicants: CHGC Pty Ltd must pay Mark Crespan and Valina Crespan the amount of $1,000 within 14 days of the date of this order. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where alleged defective work in grinding, polishing and staining of driveway – where evidence from representative of company who manufactured stain – whether costs of rectification were in excess of damage CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where oral contract – where quote for only part of works performed – where acceptance of payment by employee of contracting party – whether the contractor is able to claim amounts in excess of that accepted Queensland Building and Construction Act 1991 (Qld) Self-represented -- 1 of 4 -- 2 Respondent: Brett Baxter: Self-represented CHGC Pty Ltd: Ms C Hahn, director REASONS FOR DECISION Introduction [1] Mr and Mrs Crespan engaged CHGC Pty Ltd to perform concrete grinding work and colouring of their garage and driveway in 2016. Mr Crespan found the company through its website and all dealings were with Mr Brett Baxter including the initial telephone contact, quoting on and performing the work. The garage was done first and then the driveway. The Crespan’s were not completely satisfied with the driveway but paid Mr Baxter an amount of $5,322 after the work was completed, they say on the basis that Mr Baxter had said he would return to rectify the work. Mr Crespan signed a document at the time of payment stating that the amount of $5,322 was for “work carried out on 7 Judd Street, Gumdale”. Mr Baxter did not return he says because of the behaviour of Mr Crespan. [2] The Crespan’s had the work inspected by a representative of the company that manufactured the concrete tint and he reported that there were areas where the colour had not taken and that the concrete had not been sealed. They are claiming an amount of $3,300 to rectify the driveway and have provided various quotes for the work. The rectification includes cleaning, staining and sealing of the entire driveway. Their claim is against Mr Baxter as well as CHGC Pty Ltd, they acknowledge that Mr Baxter is an employee of CHGC Pty Ltd. [3] The respondents counterclaimed for the outstanding amount from the original quote of $7,000 in respect of the grinding of the driveway, that is $1,678 and an amount of $800 for the staining of the driveway. [4] There was also a claim by the respondents for loss of business due to alleged harassment by Mr Crespan, as well as compensation for alleged emotional stress and trauma resulting from Mr Crespan’s alleged threats and harassment. The Tribunal’s jurisdiction is limited to matters in regard to building work including whether the work is defective or not and for payment thereof in accordance with the Queensland Building and Construction Commission Act 1991 (Qld). Therefore the claims in regard to damages and or compensation for Mr Crespan’s alleged conduct are not matters for which the Tribunal has jurisdiction and they were not able to be pursued by the respondents as part of the counterclaim. [5] There is a question as to who is the proper respondent. While Mr and Mrs Crespan dealt with Mr Baxter only it is clear and accepted by them that at all times he was an employee of CHGC Pty Ltd. As any contract was with CHGC Pty Ltd then in accordance with the doctrine of privity of contract, it is that company which is liable for any defects and would be able to take advantage of any order in regard to the counter-application. It is not unusual that parties deal with an individual and are unware that the individual is an employee of a company or other entity. -- 2 of 4 -- 3 Defects [6] The Crespan’s described the works in their claim as “to grind and existing concrete driveway and to prepare the surface and the application of a colour stain to the concrete driveway.” They alleged that the colour stain was uneven, was not the same colour as the sample, and the colour stain faded, came off on shoes and drained away leaving streaks when wet. They provided photos of the driveway which showed some areas where the stain was indeed uneven and of someone’s feet showing the stain had come off on them. They also provided a report from Mr Ian Chopping, a representative of the company that manufactured the stain used by Mr Baxter on the driveway. Unfortunately, Mr Chopping was not available to give evidence at the hearing. [7] Mr Chopping’s’ report dated 5 December 2016 states that he inspected the site at 7 Judd Street, Gumdale and confirmed the following: In areas at the top of the driveway the colour stain has not been absorbed into the substrate, causing the colour to wash off when wet. In my opinion this has been caused by the slurry from grinding not being completely removed before the stain was applied. These areas need to have all the stain that is not colour fast removed with a high pressure washer, then re-applied. The driveway appears to have been insufficiently treated with a penetrating sealer. This is evident when the driveway is wet, as in most areas the water does not bead, but absorbs into the concrete. This can be rectified by applying more penetrating sealer at the correct dosage rate. [8] The respondents contend that the damage to the driveway was caused by the application of a hose to the driveway at a time when the stain had not tired and note that the area where the stain runs are prominent is close to the garage where there is a hose. The material from the respondents confirms that the work was complete on 23 November 2016 and payment was made on 25 November 2016. The applicants say that they made the payment of $5,322 to Mr Baxter on the proviso that he would return to attend to the defects in relation to the running of the stain and that he never did. [9] The respondents provided an invoice from Parchem dated 16 November for 4 one litre black and 2 one litre white quantities of AVS Colour stain and a technical data sheet for the same product. The Technical data sheet describes the product as finishing colour stain for use with resurfacing system and most concrete surfaces. It was the respondent’s evidence through Mr Baxter that mixing the stains in the proportion of 4 litres black and 2 litres white mixed to achieve grey. [10] The photos provided show that the surface of the driveway is grey. I note that the Crespan’s originally claimed that the driveway was not the correct colour in accordance with samples blocks which were stained by Mr Baxter. Mr Baxter provided photos of the original blocks and the driveway after it was stained. The stains appears to be consistent and the question of colour was not raised by Mr Chopping as a defect or otherwise pursued by Mr and Mrs Crespan. [11] The photographic evidence and Mr Chopping’s report confirm that the stain has run in some places. Though clearly it is limited to the areas at the top of the driveway which has not been specifically defined and the quotes provided for rectification of the defects are for the whole of the driveway. -- 3 of 4 -- 4 [12] While I accept that the colour has run in some areas I am unable to quantify an amount that should be allowed for rectification as the Crespan’s have provided insufficient proof of the cost of rectification of the area which has been affected by the running of the colour stain. [13] In the case of the sealing of the driveway. There is no evidence that any sealant was applied by Mr Baxter and the lack of sealant is considered a defect in accordance with Mr Chopping’s report. The work to rectify this area will be in respect of the whole driveway. Mr and Mrs Crespan provided several quotes for work on the driveway from Patterned Concrete. There is a quote of $3,300 to clean, stain and seal the entire driveway and a later quote of $2,200 to clean and stain the driveway. I will assume that the difference between these quotes of $1,000 is the amount necessary to cover the sealing of the driveway. [14] I am satisfied that the work in respect of the driveway was defective in accordance with Mr Chopping’s report and the quantifiable amount for damages in respect of rectification of that work is $1,000. Claim for amount owing to CHGC Pty Ltd [15] CHCG filed a quote to Mr Crespan for $7,000 dated 7 November 2016 in respect of grinding to a 250m driveway to remove existing paving paint. Though in the statement filed by the director of CHCG, Ms Cindy Hahn she said that the price had been reduced to $6,000 on their system. Mr and Mrs Crespan claim that they negotiated an amount of $5,000 in respect of the grinding, polishing, staining of the driveway for an amount of $5,000. As mentioned above Mr Baxter signed a piece of paper when he accepted the amount of $5,322 to say that it was for work done at the property. This would include the grinding and staining of the driveway as that work had been done and Mr Baxter has never returned to the property. Whereas the recept provided to the Crespans state that it was only for grinding of the driveway though it notes it was for work already done. The statements made by the parties are inconsistent and unreliable. [16] The photographic evidence shows that the work performed included the staining of the driveway and Mr Baxter signed a piece of paper saying that the payment was for the work carried out on 7 Judd Street, Gumdale. On that basis I am satisfied that the respondent CHGC Pty Ltd has received the full amount it is entitled to in respect of the work performed at 7 Judd Street, Gumdale and there is no amount allowable in respect of the counter-application. Order [17] The Tribunal orders that CHGC Pty Ltd must pay Mark Crespan and Valina Crespan the amount of $1,000 within 14 days of the date of this order. -- 4 of 4 --