Blank Canvas Solutions Pty Ltd t/as Axiom Access v OzRig Pty Ltd [2018] QCAT 427

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blank Canvas Solutions Pty Ltd t/as Axiom Access v OzRig Pty Ltd [2018] QCAT 427 PARTIES: BLANK CANVAS SOLUTIONS PTY LTD t/as AXIOM ACCESS (applicant) v OZRIG PTY LTD (respondent) APPLICATION NO/S: BDL 172-17 MATTER TYPE: Building matters DELIVERED ON: 12 December 2018 HEARING DATE: 9 October 2018 HEARD AT: Brisbane DECISION OF: Dr Collier, Member ORDERS: 1. The Applicant is to pay the Respondent $13,521.62 within 30 days. 2. Submissions as to costs may be filed by 31 January 2019. If no submissions as to costs are filed by any party by 31 January 2019 no costs will be ordered and parties bear their own costs. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – the terms of the contract arising from an exchange of correspondence – implied term that work is to be performed in a workmanlike manner – The Moorcock (1899) 14 PD 64 – defective work performed by the contractor CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where implied term that contractor will perform the work in a workmanlike manner – defective work performed by the contractor – appropriate remedy – set- off Queensland Building and Construction Commission Act 1991 (Qld) The Moorcock (1899) 14 PD 64 -- 1 of 15 -- 2 APPEARANCES & REPRESENTATION: Applicant: D Benton, director of Blank Canvas Solutions Pty Ltd Respondent: P O’Brien, barrister REASONS FOR DECISION [1] This dispute concerns the erection of tensioned fabric structures at height on the existing atrium roof of Jupiter’s Hotel and Casino on the Gold Coast (‘Jupiters’). The tensioned fabric structures envisaged were to be both an architectural feature of the building and to provide protection for people and property below from weather and environment. [2] The principal contractor acting for Jupiters was CPB Contractors Pty Ltd. CPB Contractors engaged MakMax Australia Pty Ltd (‘MakMax’) as the supplier of the product to be erected. MakMax, in turn, engaged OzRig Pty Ltd (‘OzRig’) as the mechanical contractor responsible to perform the safe and proper erection of the tensioned fabric structures. [3] OzRig, however, did not possess the staff with the qualifications necessary to operate using ropes at the heights involved, so OzRig contracted Blank Canvas Solutions Pty Ltd, which trades as Axiom Access (‘Axiom’), to perform the high-risk tasks involved in the actual erection of the tensioned fabric structures according to MakMax’s designs. [4] Early negotiations concerning support in erecting the fabric structures were conducted between OzRig and Rope Access and Rescue (not Axiom). It appears that, while Rope Access and Rescue Pty Ltd is still a company registered by the Australian Securities and Investments Commission, Blank Canvas Solutions Pty Ltd, trading as Axiom Access, is a new company established by a director of Rope Access and Rescue with a work colleague. No issue has been raised concerning the proper identity of the Applicant, so this decision proceeds on the basis that Axiom is the appropriate Applicant in this matter. [5] By what is called a ‘draft quote’ dated 15 August 2016, Axiom (on letterhead of Rope Access and Rescue) made an offer to OzRig to perform the erection of the tensioned fabric structures for $181,500. [6] By a ‘Recipient Created Tax Invoice’ dated 31 August 2016, OzRig accepted the offer made by Axiom. This acceptance was accompanied by a document entitled ‘Ozrig Pty Ltd – Terms & Conditions of Trade’. This document appears to be relevant to a contract in which OzRig is the contractor and the other party is a customer of OzRig. Its relevance to the agreement in this case between OzRig and Axiom, in which Axiom is the sub-contractor here, is less clear. [7] Axiom completed, or substantially completed, the work identified in the contract plus allowable variations. Axiom says the agreed price, after variations, for the work was $188,793.63, of which $166,150.00 has been paid by OzRig. -- 2 of 15 -- 3 [8] However, near the end of the job and after erection of the tensioned fabric structures had been completed by Axiom Access there were many occasions when Jupiters complained to the principal contractors and MakMax about leaks from the new fabric structures. [9] As a result of these leaks, evidently caused by defects in the erection work, OzRig claimed that Axiom had breached the contract between them and refused to pay the final amount claimed by Axiom of $22,643.63. This amount comprises the balance of an unpaid invoice dated 15 December 2016 of $15,000 plus variations amounting to an increase in the contract price of $7,643.63.1 In its Application, Axiom now seeks to have the Tribunal order OzRig to pay Axiom $22,643.63, plus interest from the date of the respective invoices, plus its filing fee of $326.80. [10] However, in its Response and Counter-Application, OzRig says that, because of the repair work it had to complete and the other costs it has incurred as a result of the defective work performed by Axiom, it seeks the following orders from the Tribunal: (a) an order that the Respondent is not liable to pay any further sums to the Applicant; and (b) an order that the Applicant pay the amount of $36,165.25 to the Respondent.2 [11] OzRig cancelled the contract with Axiom by letter on 6 April 2017 based on the alleged breaches of the contract by Axiom. [12] This dispute is a commercial building dispute, not being a major commercial building dispute, within the meaning of those terms in the Queensland Building and Construction Commission Act 1991 (‘QBCC Act’). [13] All amounts mentioned in this decision are inclusive of GST unless otherwise indicated. [14] Given the number of parties and individuals involved in this project it is convenient to list the key individuals. Each of these individuals provided written statements prior to, and gave testimony at, the hearing: (a) Alberto del Arco, project manager, MakMax (b) Dean Peters, director, OzRig (c) Beau Estaughffe, supervisor/leading hand, OzRig (d) Darren Benton, director, Axiom (e) Chris Roberts, director, Axiom (f) Luke Creighton, employee of Axiom 1 Comprising the following invoices: $3,166.63 issued 13 November 2016; $2,431.00 issued 29 November 2016; and $2,057.00 issued 15 December 2016. 2 The details of which are listed in the invoice dated 17 May 2017 by MakMax to Ozrig, and represent amounts paid by MakMax to remedy, and arising from, defects in the tensioned fabric structures. -- 3 of 15 -- 4 (g) Hugh De La Fontaine, site manager/supervisor, Rope Monkeys3 What was Axiom contracted to do? [15] The offer from Axiom to OzRig dated 15 August 2016 contained few contractual terms and conditions, but the principal terms relevant to the issue here include the following: This quote is to supply a qualified and experienced rope access team to install the new fabric roof structure required at Jupiters Casino. The team will be onsite to perform all installation works that cannot be accessed by the Ozrig team. The size of the team will vary as the demand of the job dictates. Rope access labour will be present from commencement through to completion of the final sealing of the wall flashing and any welding of fabric flashing on the Atrium Roof. The Team will take direction only from Rope Access Supervisors. These instructions must be provided by OzRig or MakMax (with Ozrig approval). Makmax and Ozrig will be responsible for providing methodology to complete each step of the job. This can then be refined by the Rope Access Team. Basic power & hand tools required to complete the work will be supplied by Rope Access & Rescue. All extraordinary tools, such as cable tensioners, fabric welders, etc, will be supplied by the main contractor. [16] In its acceptance of the Axiom offer on 31 August 2016, OzRig repeated the terms mentioned in paragraph [15], above, and added two additional, but important, terms, namely: Axiom will be responsible for the final sealing of the wall flashing & any welding of fabric flashing on the atrium roof. All works need to be completed by the 16th of November 2016 unless asked to accelerate to finish early. Site works 10 hours per day. [17] There is no evidence that Axiom ever demurred to the inclusion of these additional terms, so that the contract between the parties included the terms noted in paragraph [16]. [18] While there is no specific term incorporated into the contract between OzRig and Axiom dealing with the quality of the work to be performed, consistent with custom and usage in the building and construction industry, and being necessary to give business efficacy to the contract, the presumed intention of the parties is that each would perform their respective work competently and in a workmanlike manner. This warranty or term is incorporated by operation of law into the agreement between the parties in this case.4 3 Rope Monkey’s Pty Ltd ACN 125 106 747. 4 The Moorcock (1899) 14 PD 64. -- 4 of 15 -- 5 [19] OzRig did not have staff qualified to work using ropes at the heights involved, so was reliant on the task being performed, completed, and supervised by Axiom. For the same reason, OzRig could not inspect the work completed by Axiom except in a few cases and thus relied on Axiom to certify the work performed. [20] The respective roles of each of the parties relevant to this activity were as follows: (a) MakMax: to supply the fabric to be erected and to perform the relevant designs and calculations; (b) OzRig: to be responsible for the erection of the fabric (which it sub-contracted to Axiom); and (c) Axiom: to perform the erection of the fabric at height. [21] Fabric is supplied in sections that, once in location at height, are fixed to structures using mechanical devices fixed to the buildings. Once in place the fabric sections are welded to each other so as to create a series of continuous fabric structures that look like sails. Once the welds are complete the fabric is then tensioned using devices for this purpose and, once tensioned, have to be flashed to other fabric and the building to prevent unwanted gaps. [22] OzRig was familiar with the fabric to be used in this activity. It possessed the knowledge concerning fixing of the fabric to structures, welding different parts of the fabric together, and flashing and finishing the work to prevent gaps. Axiom was to supply the labour qualified to operate at height, while it was OzRig’s responsibility to train the labour supplied by Axiom in the relevant techniques to erect, weld and finish the fabric, and flash the fabric when it met another surface. Ozrig was also the mechanical supervisor of the project, and was responsible for ensuring the fabric, materials and tools were available to Axiom in the quantities and on the occasions they were needed. [23] The reason OzRig had to engage Axiom for this project, and the particular tasks Axiom was engaged to do, are described succinctly in an email from Dean Peters to Chris Roberts on 9 February 2107. In this email he said: We are not rope technicians and cannot give any physical on the spot guidance as a result since the sealing and flashing works are a rope access requirement. Hence the reason you/Axiom were engaged. You agreed at the outset to take on the scope of flashing and sealing the structure to the existing walls of the casino. We have given a great deal of guidance as to how to weld the fabrics and the flashings … [24] Luke Creighton of Axiom was critical of the flashing design. In his statement he said: As part of the final seal we were to install a fabric flashing around the sides of the sails using a new system that MakMax had supplied. I was the first to attempt to install the locking system on the flashing and it did not work. I asked the MakMax employee if he’d tried it before and he said we were the first to use the system.’5 5 Statement of Luke Creighton dated 16 August 2018, par 6. -- 5 of 15 -- 6 [25] The particular fabric used in this project had been used only once previously in Australia, at the Western Australia Cricket Ground, however the techniques and tools required for erection are essentially the same for most tensioned fabric structures. Alberto Del Arco of MakMax made the observation that, in respect of the work to be completed by OzRig and Axiom, ‘The methods used were common to these types of PTFE structures and have been widely used in our industry.’6 [26] Mr Del Arco also observed that, according to the records, Mr Creighton appears only to have been on site after 8 November 2016, although the testimony of Mr Creighton was that he was on site daily from 12 September 2016. In response to Mr Creighton’s comment about suitability of the locking system Mr Del Arco said that it had been proven earlier to work and had been used successfully on the Perth Stadium project.7 [27] Part of the quality plan for the project involved the completion of Inspection and Test Plan (ITP) certificates to certify that work had been completed to the standard and quality required. OzRig requested Axiom to complete these but Axiom declined to do so. [28] The final invoice from Axiom to OzRig is dated 15 December 2016 so that, by this date, Axiom had completed, or substantially completed, its work on the project, subject to rectification of defects. [29] In March 2017, OzRig was removed from the work site at Jupiters and had no further control over the site or remediation of the tensioned fabric structures. The remediation work on the structures was completed by another firm, Rope Monkey’s under the supervision of Hugh De La Fontaine at the request of MakMax. The problems with the tensioned fabric structures [30] Near the end of the work, and after the work had been completed by OzRig and Axiom, Jupiters began complaining about water leaks. Their comments included, in emails to OzRig: 8 Dec 2016: ‘There is a leak above WQ in the sail, can clearly see daylight… When is this never ending flashing job going to be complete?’ 25 Dec 2016: ‘… we currently have up to 10 water leaks in the atrium area’ 15 March 2017: ‘Unfortunately the current rain event has proved that the Atrium Roof still requires your attention in fixing Leaks.’ There were also numerous other emails among the parties detailing the extent of the leaks during this period. [31] After Axiom had quit the site OzRig continued to identify how the problems being experienced by Jupiters could be documented and resolved. [32] The evident deficiencies could have come about from a limited number of causes, either: 6 Statement of Alberto Del Marco dated 6 November 2017, par 6. ‘PTFE’ is an abbreviation for Polytetrafluoroethylene, similar in characteristic to teflon. 7 Statement of Alberto Del Marco dated 25 September 2018, par 32-38. -- 6 of 15 -- 7 (a) The fabric or other material supplied was not suitable for the purpose; (b) An inadequate or unsound design; (c) The training, supervision and support supplied by OzRig was deficient; or (d) The task of erection had not been performed satisfactorily by Axiom. [33] A detailed report on the tensioned fabric structures at Jupiters was prepared by Hugh De La Fontaine8 and is contained in his statement dated 28 February 2018. This report is based on his observations during May 2017, after the work had been completed by Axiom, and after Jupiters had complained of leaks in the structures for several months. [34] Mr De La Fontaine is an experienced tradesman with decades of experience dealing with tensioned fabric structures. His evidence by way of his report and testimony at the hearing marked him as a credible and reliable witness. [35] In a report prepared for MakMax on or about 25 May 2017 Mr De La Fontaine said:9 Though the flashings are baggy and unattractive and the welding very poorly executed the structure appears sound. The main problem appears to be that it is unfinished the hotel side does not have sufficient sika-flexing along the lengths of the extrusion or on the ends and joints of the extrusion as shown in the photo’s [sic] And a number of holes where extrusions meet on a corner as shown in the photo’s The casino side has a number of unwelded flashings that allow water in and requires more sika-flexing for extreme weather and heavy rainfall. The main foyer leaks would appear to be a problem with the tanking in the sump room water has been observed coming out from the second level of the pelmet and not from the ceiling or roof structure onto the pelmet. I believe the photos reveal that finishing the roof sika-flexing and welding the PTFE closures will stop further water entry from the roof. [36] In his testimony Mr De La Fontaine said that, in his opinion, the work on the structure was substandard and unfinished. In particular he was critical of the flashings, which were inadequate. [37] During May 2017 Mr De La Fontaine performed and supervised the remediation of the defective tensioned fabric structures as a contractor to MakMax after which they appeared to be performing as expected and designed. There is no evident cause for the problems arising from the quality or design of the fabric or other material. [38] In respect of the design of the structure Chris Roberts of Axiom opines in an email that ‘My professional opinion is that the old structure was connected to the wall in a much better design than the new one.’10 In that email he goes on to state that Beau 8 Formerly known as Hugh Elliott. 9 Repeated in his statement dated 28 February 2018, par 10. 10 Email Chris Roberts to Dean Peters dated 9 February 2017. -- 7 of 15 -- 8 Eastaughffe also expressed concerns, with which Mr Roberts agreed, ‘… about the design of this closure and that it should be a flat bar pinning it directly to the wall like the old one.’ [39] On the other hand, documentation discloses that the structure was subject to considerable design effort including relevant calculations and the preparation of drawings, the structure was ultimately made watertight once completed competently, and the material used in the structure was not significantly different to materials then in common use for similar structures. These facts speak against the assertions of Mr Roberts concerning a defective design. [40] I am satisfied that the fabric and other material supplied for this project was suitable and fit for purpose, and that the design of the tensioned fabric structure was adequate and sound. [41] The issue comes down to which of Axiom or OzRig was responsible for the defects in the structure? Axiom’s claim [42] Axiom has supplied copies of invoices to support its claim for the $22,643.63 set out in its Application. [43] Axiom suggests that, at the date when Axiom ceased work on the job, the work had been 99% complete.11 There was no testimony given that contradicts this conclusion. Therefore, apart from repairing remaining defects, there is no cogent evidence suggesting that Axiom had not completed or substantially completed the task described in the contract and is entitled to the payment of its invoice. [44] OzRig has denied the Axiom claim on the basis that the work was not complete, or was not completed satisfactorily, or that Axiom did not return to make good on the outstanding defects at the end of the work. OzRig’s claim [45] There were problems with the structures after Axiom had completed its job on or about 15 December 2016 – there were leaks in the structure when there should not have been. This caused loss and damage to Jupiters and to its contractors including, ultimately, OzRig. The problems with the structures were eventually remedied, but in achieving this, OzRig incurred costs of $36,165.25. [46] OzRig said that Axiom:12 … failed to complete the works to a workmanlike standard. [Axiom] failed to properly complete the final sealing of the wall flashing, extrusion and welding of fabric flashing on the atrium roof for both the accommodation and the casino side of the building as required under the Purchase Order. [47] As noted earlier, a detailed report on the tensioned fabric structures at Jupiters was prepared by Hugh De La Fontaine and is contained in his statement dated 28 February 2018. Based on Mr De La Fontaine’s report and testimony, the tensioned 11 For example, in the email from Darren Benton to Dean Peters of 3 February 2017. 12 Respondent’s Statement of Evidence dated 7 November 2017, par 6. -- 8 of 15 -- 9 fabric structures erected by Axiom were unsatisfactory and required remediation to render them satisfactory and fit for purpose. [48] In the Applicant’s Further Statement of Evidence dated 21 March 2018, Darren Benton is critical of Mr De La Fontaine’s qualifications and competence as an ‘expert in PTFE’. Mr Roberts also alleges that Mr De La Fontaine’s report is biased because it ‘provides him with more work’ and that he is ‘motivated to find faults for financial gain’.13 Based on the thoroughness and detail contained in Mr De La Fontaine’s report and his testimony I am satisfied that Mr De La Fontaine was a credible and truthful witness. [49] The work completed by Axiom was deficient to such an extent that it was not completed in a competent and workmanlike manner. Leaks were evident, indicating that there were gaps in either or both the welding and the flashing. Hugh De La Fontaine in his written report and in his testimony identified over 125 defects in the work performed by Axiom. [50] Axiom claims that OzRig contributed to, or was responsible for, the defects in the Axiom work because of a failure properly to do what OzRig was required to do under the contract between them. In order to determine the contribution, if any, of OzRig to the defects in the work it is necessary to identify their contractual obligations and assess whether they had been performed to the standard required because, as in the case of Axiom, OzRig had to perform its obligations in a workmanlike manner. The obligations of OzRig about which Axiom raised concerns were: (a) the provision of sufficient and adequate planning and supervision of the work; (b) the timely delivery of materials of the right type and quantity needed for the work; (c) the provision of sufficient training of Axiom staff in the specialised work involved; and (d) the provision of sufficient and complete documentation relating to the work to be completed. Each of these issues is examined below. Planning and supervision [51] Chris Roberts of Axiom was critical of the plan for the project. He describes it as ‘… a very vague plan of attack …’ and as ‘… vague, poorly documented and very badly communicated from OzRig to Axiom.’14 [52] However, as noted elsewhere, OzRig provided adequate documentation and training, it provided daily toolbox talks at the beginning of each workday, and OzRig had staff available for consultation and advice at all reasonable times, most of the time on-site. There is nothing of substance in the evidence that discloses that OzRig failed to 13 Applicant’s Further Statement of Evidence dated 21 March 2018, par 14. 14 Statement by Christopher Roberts dated on or about 16 August 2018, pars 7 and 9. -- 9 of 15 -- 10 provide advice and guidance when required. Beau Eastaughffe provided assistance from time to time while ‘on the ropes’, although he appears not qualified to have been working at height, and should not have done so. [53] Luke Creighton of Axiom in his undated statement is critical of OzRig on several points: (a) Performing the erection during the storm season in Queensland; (b) The early removal of scaffolding during the job; (c) The use of substandard tape for temporary sealing; and (d) The locking system on the flashing was a new untested product that did not work. [54] Axiom was critical of the decision to undertake the project as the wet season was commencing. There is little doubt that the occurrence of some dramatic weather comprising extreme winds and rain occurred during the project, as mentioned by Alberto Del Arco in his email dated 31 October 2016 to CPB Contractors where he refers to five rain events, including one on 21 September 2016 ‘… which tore out the temporary flashings …’, and to another on 29 October 2016 which involved ‘… very high winds and a short burst of intense rainfall.’ [55] Apart from the locking system for the flashing, each of these issues is not relevant to the quality of the final job. The satisfactory performance of the locking system is covered elsewhere in this decision. [56] In the Applicant’s Statement of Evidence dated 5 October 2017 Axiom said, in clause 4, that it operates ‘… as “specialists” in access issues, not “membrane specialists”, providing labour only.15 But there is little use employing a specialist in access unless, once they are working at height, they are able to achieve a designated task or series of tasks. Axiom staff had to erect the fabric: that is, fix the fabric, weld the fabric, and complete the flashings. These tasks had to be done to a workmanlike standard. They were not. At the same time, attempts by OzRig to check and confirm progress and quality by having Axiom complete Inspection and Test Plan (ITP) forms was frustrated by Axiom’s refusal to complete the forms. Delivery of materials [57] Axiom claimed that it was, occasionally, delayed by a lack of some materials on site when required, which was an obligation of OzRig, and that inferior product was supplied, particularly relating to the quality of the temporary flashing tape used during erection of the fabric. [58] While there may have been some delays due to inadequate 3M tape being made available in a timely fashion, this principally, if not only, affected the temporary flashings needed before the fabric was tensioned and finished. It was not a factor in the completeness or quality of the work. 15 Which is stated again in similar terms by Chris Roberts to Dean Peters in his email dated 9 February 2017 when he says: ‘… we are NOT fabric installation experts and were not engaged as such.’ -- 10 of 15 -- 11 Training [59] Axiom claimed that the training that OzRig had to supply to Axiom staff was not provided as required or necessary in order for Axiom to complete its work. Chris Roberts of Axiom said that: 16 Our experience with membranes was in our favour to win the job, but we are not membrane specialists. That was clearly the role of OzRig and MakMax and close guidance, clear direction and training was required [for] Axiom and not given by either of the specialists. [60] The evidence disclosed that OzRig, in particular Beau Eastaughffe, trained the Axiom staff in the techniques required to fix, weld and flash the fabric being used. In his statement dated 1 November 2017 Mr Eastaughffe said: 4. I was a supervisor on the Jupiter’s Casino (Jupiter’s) project and I was present onsite from the outset to practical completion of the project 5. Whilst I was on site, I showed and instructed Darren Benton and Chris Roberts, directors of Axiom Access (Axiom) and a lot of their staff, how to weld and install the flashings and the membrane. We viewed the drawings and discussed the project a number of times. Axiom also had drawings which they used to quote on to determine the processes involved in the job and what tools and equipment that they needed since they were required to supply these. 6. I am aware that Dean Peters (Dean) also workshopped welding and welding of flashings with Axiom and their workers during the project. 7. As is normal practice, Axiom were to maintain this knowledge and pass this information to their workers. [61] In his testimony Mr Eastaughffe said that he conducted two days of training at the beginning of the project attended by a number of people including Darren Benton and Chris Roberts of Axiom and other Axiom employees. He also said that he had worked on the ropes approximately ten times providing instruction on welding fabric and flashings. [62] However, the evidence showed that during the period of the erection Axiom had difficulty in retaining staff; it had a high staff turnover. In this regard Mr Eastaughffe, in his statement went on to say: 8. During this project, the workers for Axiom were constantly changing. Axiom constantly had staff leaving for other work with other companies. It seemed that after Axiom’s workers were shown how to install the flashings and weld they would leave and Axiom would have to train new people. The knowledge of practice and procedure was lost constantly. [63] Mr Del Arco of MakMax made a similar observation: ‘During the course of the works, there was a substantial turnover and absenteeism of staff by Axiom, which affected the progress of the works’.17 He went on to comment that: Throughout the project, Axiom did not display any sensitivity to the schedule or overall quality of the works. Throughout their time on site, Axiom failed to 16 Statement by Christopher Roberts dated on or about 16 August 2018, par 10. 17 Statement of Alberto Del Marco dated 6 November 2017, par 11. -- 11 of 15 -- 12 supply the necessary manpower to complete the project in the scheduled time… Axiom staff turnover was high, resulting in new workers continually being trained on site, thereby further slowing down the works and compromising the required quality.18 [64] OzRig also complained to Axiom about inadequate numbers of staff being deployed by Axiom to complete the job. This is illustrated in concerns expressed by Dean Peters of OzRig by email to Axiom over a period of three weeks: 24 Oct 2016: ‘We should have min 10 on site atm [at the moment] which will increase from your side to 14 once we begin welding flashings. ‘I need a commitment from you to have guys on site and be working on multiple tasks at once. 3 people is not enough’ 2 Nov 2016: ‘… we have another new guy today. To date on the job we have Darren who is the only original person. Clearly it’s hard to maintain knowledge of methods and procedures with so many people coming and going. This is not productive.’ 4 Nov 2016: ‘We have been asking and expecting Axiom to increase numbers for sometime. ‘I really am hoping that you have at least another 4 guys for start on Monday.’ 5 Nov 2016: ‘The two guys that are here are not experienced with joint closures let alone anything else and are not able to proceed with the works by them selves.’ 16 Nov 2016: ‘You guys are obviously down on numbers since Saturday. ‘Can you pls let me know what you are planning to increase staff levels from today?’ [65] OzRig said that, after it had trained the Axiom supervisors in the methods of fixing and welding it became the responsibility of Axiom to train new Axiom employees. It further said that it continued to provide training for new Axiom employees. [66] I am satisfied that OzRig provided sufficient training and guidance to Axiom consistent with its obligations under the contract. Documentation [67] Axiom said that the documentation provided by OzRig to the Axiom staff onsite was deficient. In this regard OzRig said: … the Respondent provided a site folder on site containing all the drawings and documentation relevant to the project. The Applicant had full access to these drawings on site throughout the whole construction period.19 [68] The site folder contained:20 18 Ibid, par 16. 19 Respondent’s Statement of Evidence dated 7 November 2017, par 27. 20 Statement of Alberto Del Arco dated 25 September 2018, par 29. -- 12 of 15 -- 13 (a) Safe Work Method Statement (SWMS) prepared by Rope Access and Rescue and signed by the project employees; (b) SWMS prepared by MakMax and signed by the project employees and subcontractors; (c) Casino rigging overview; (d) Hotel rigging overview; (e) Project design overview (f) Structured Trafficability Statement by MakMax dated 21 June 2016; (g) Installation sequence of the atrium roof prepared by MakMax; and (h) MakMax general notes in relation to the project with design drawings. [69] I am satisfied that OzRig supplied and made available to Axiom sufficient documentation. Summary [70] The evidence demonstrated that OzRig satisfied its obligations to Axiom under its contract with Axiom. [71] On the civil test, being on the balance of probabilities, I am satisfied that the work completed by Axiom was defective, was not completed in accordance with the terms of the contract with OzRig and, in particular, that it was not completed in a competent and workmanlike manner. [72] I am also satisfied that OzRig performed its obligations under the contract to a workmanlike standard. Damage suffered [73] In respect of the claim by Axiom, there is sufficient evidence that Axiom completed, or substantially completed, the work it was contracted to do (apart from the quality of that task). It invoiced OzRig for the work, including variations, and OzRig has not objected to the amount claimed. Therefore Axiom is entitled to recover its claim of $22,643.63 subject to set-off for the payments OzRig had to make to remedy Axiom’s defective work. [74] To deny Axiom’s claim while also seeking to recover the costs of remediation from Axiom, as OzRig seeks to do, is to claim twice against Axiom. Axiom should be entitled to payment of its invoice and OzRig should be entitled to recover the losses associated with the defective workmanship. [75] Mr Del Arco of MakMax arranged for the incomplete or defective work remaining once Axiom left the site to be completed by Rope Monkey’s (Hugh De La Fontaine). He said ‘The associated costs and materials to carry out these works were charged -- 13 of 15 -- 14 back to OzRig. The costs of these works are indicative of the amount of unfinished and/or defective work there was to attend to.’21 I generally agree with this sentiment. [76] Mr De La Fontaine undertook repair of the defects in the atrium roof for MakMax during or about May 2017. He said that the repairs were completed by himself and the following contractors:22 (a) Anthony Blood $5,610.00; (b) JVG Sound Lighting & Visual $1,840.00; (c) Sydrig $4,377.50; (d) Hugh De La Fontaine $16,800.00; and (e) B.A.S.E. Solutions Pty Ltd $4,250.00 [77] This totals $32,877.50 exclusive of GST, or $36,165.25 including GST. The evidence before the Tribunal demonstrates that the price charged by Mr De La Fontaine for his work was reasonable. [78] OzRig is entitled to recover losses that are direct and reasonably foreseeable. Anthony Blood appears to be a rope technician, JVG Sound Lighting and Visual appears to rent-out lighting equipment (among other things), Sydrig is involved in tensile membrane construction, and B.A.S.E. Solutions Pty Ltd is involved in work using ropes at height. Each of these costs appears sufficiently necessary for the remediation work completed and supervised by Mr De La Fontaine. [79] I am satisfied that OzRig is entitled to recover the costs of remediation of the work completed by Axiom in the amount of $36,165.25. Decision [80] Axiom is entitled to payment by Ozrig of its final invoice of $22,643.63. OzRig is entitled to recover from Axiom the costs paid by OzRig as a result of Axiom failing to complete the job in a competent and workmanlike manner, an amount of $36,165.25. The net result is that Axiom is to pay OzRig $13,521.62. [81] The Tribunal makes the following decisions: (a) The Applicant is to pay the Respondent $13,521.62 within 30 days. (b) There is no basis for interest to be paid in the agreement between the parties and no interest will be ordered in respect of either claim. Costs [82] The parties have not made detailed submissions to the Tribunal concerning costs in this matter. 21 Statement of Alberto Del Marco dated 6 November 2017, par 14. 22 Statement of Hugh De La Fontaine dated 28 February 2018, par 20, and MakMax invoice 17302 to OzRig dated 17 May 2017. -- 14 of 15 -- 15 [83] Submissions as to costs may be filed by 31 January 2019. [84] If no submissions as to costs are filed by any party by 31 January 2019 no costs will be ordered and parties are to bear their own costs. -- 15 of 15 --