Blumson v Enviropest Sunshine Coast Pty Ltd [2015] QCAT 281

CITATION: Blumson v Enviropest Sunshine Coast Pty Ltd [2015] QCAT 281 PARTIES: Margaret Elizabeth Blumson (Applicant) v Enviropest Sunshine Coast Pty Ltd (Respondent) APPLICATION NUMBER: MCDO2433-14 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 19 March 2015 HEARD AT: Brisbane DECISION OF: Adjudicator Bertelsen DELIVERED ON: 10 June 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Enviropest Sunshine Coast Pty Ltd pay to Margaret Elizabeth Blumson the sum of $2,318.60. CATCHWORDS: Minor civil dispute - pest treatment – adequacy of service provided – prior state of premises – damage applicable to failure to fully carry out service – assessment of quantum of damage APPEARANCES: APPLICANT: Margaret Blumson RESPONDENT: Rod Walker, Group Operations Manager REASONS FOR DECISION Application [1] By application filed 16 October 2014, Margaret Blumson (‘Ms Blumson’) seeks a refund of $2,024.00 she paid Enviropest Sunshine Coast Pty Ltd (‘Enviropest’) for a full termite inspection, installation of a chemical barrier and a three month follow up visit at her property 3 Riversleigh Road, Beachmere (‘the property’) as well $10,091.25 for consequential loss of -- 1 of 6 -- 2 rent, repairs and rectification due to the failure of Enviropest to properly perform the services for which she paid. Background and Evidence [2] On 23 July 2013, L J Hooker Beachmere (‘the agent’) as managing agent for Ms Blumson’s rental property enquired of Enviropest ‘please quote to do a barrier of the property’. [3] On 31 July 2013, Enviropest provided a quote for: a) full termite inspection for the property; b) installation of a chemical barrier with options of Fipronil or Befentherin chemicals; and c) a three month follow up visit. [4] The Fipronil option was quoted at a cost of $2,648.00 and the Befentherin at $2,248.00. [5] On 21 August 2013, Enviropest received a work order from the agent to proceed at $2,024.00. [6] On 26 August 2013, Enviropest representative attended the property with the service recorded as ‘chemical soil barrier treatment initial treatment drill and inject existing concrete initial service follow up injection Camilleri Reticulation System’. Shortly after Ms Blumson paid $2,024.00. [7] The quoted full termite inspection of the property was not carried out nor was the three month follow up visit. [8] On 4 February 2014 the property tenants contacted the agent stating they believed there were termites in the property again. Enviropest was requested to check termite activity at the property. [9] On 14 February 2014 Enviropest employee Daniel Shigroff attended the property and conducted a visual internal inspection. He treated a garage window frame area but was apparently not fully satisfied that the treatment applied fully addressed the termite presence. Daniel Shigroff spoke to his manager Tracy Langfield and it was proposed that a Termatrack appliance be utilised to determine whether the treatment had been successful or otherwise. [10] On 5 March 2014 Tracy Langfield attended the property inspecting the garage area utilising the Termatrack. Active termites were located in the bulkhead on the right side of the garage and treated with Thermidor. A builder’s inspection was recommended. [11] On 1 April 2014 Mr Langfield attended the property to ascertain the effectiveness of the treatment applied. On this occasion termite activity was identified in the bulkhead on the left side of the garage. Thermidor was -- 2 of 6 -- 3 applied. A builder’s inspection was recommended to check the integrity of both bulkheads. [12] On 15 April 2014 Mr Langfield attended the property to find Gyprock had been removed from around the bulkhead areas. He considered the removal compromised the Thermidor treatment he had applied earlier. Whilst there Mr Langfield assisted Colin Blumson (Ms Blumson’s brother-in-law) to remove a built in cupboard which he said exhibited prior termite damage; that upon removal old termite workings were found to be in the wall behind. Mr Langfield considered that this could well have been an area treated by another entity Exit Pest a short time prior to engagement of Enviropest. Prior History [13] On 29 June 2013 the property tenants reports to the agent termites in the broom closet recorded as ‘his fingers went through the wall and also outside’. [14] On 2 July 2013 a full visual termite inspection was conducted by Exit Pest Management & Carpet Cleaning (‘Exit Pest’). [15] On 3 July 2013 Exit Pest reported live termite activity. [16] On 4 July 2013 the agent issued a work order to carry out treatment of live termites. [17] Termite treatment was completed on 17 July 2013 with final inspection of that treatment conducted on 7 August 2013. [18] That a structural termite treatment had been conducted by Exit Pest immediately prior to involvement of Enviropest in July 2013 was not disputed. [19] The quote by Enviropest for inspection, installation and follow up was given against the background of an existing quote by Exit Pest of $3,353.00. [20] Mr Walker of Enviropest admitted at hearing that Enviropest failed to conduct any full termite inspection of the property as quoted for indicating that had such an inspection taken place Enviropest would have gone down an additional path ie structural eradication in the first instance; that what was being contested was the quantum of claim not necessarily liability. [21] Ms Blumson contended that if the three month follow up inspection had been conducted on time the problem would have at least been picked up earlier. Mr Langfield considered that Exit Pest had not done its job properly in eradicating structural active termites; that as a result there were active termites trapped within the property structure; that this was particularly so because the Camilleri Reticulation System (the perimeter barrier) originally installed by Austerm Pest Management in 2007 had effectively been installed again by Enviropest. -- 3 of 6 -- 4 [22] In short Enviropest contended the termites not eradicated by Exit Pest and remaining within the structure had nowhere to go other than to remain where they were, the perimeter barrier effectively holding them within the structure; that the remaining termites sought moisture and hence new areas of the structure which could be infested. [23] Apart from claiming $2,024.00 refund from Enviropest for failed termite treatment Ms Blumson also claimed $10,091.25 for loss of rent, repairs and rectification as follows. [24] Ms Blumson claimed $2,960.00 being eight weeks loss of rent at $370.00 per week. That is the time she asserted it took to repair the garage area. Mr Walker stated eight weeks for a claimed $10,000.00 worth of building works was excessive given that a whole house could be built in 16 weeks. He suggested five working days to strip out, frame and gyprock would be all it would take to complete repairs. He said that Enviropest could have had its own preferred builder complete the job quickly at less cost given the opportunity. [25] Ms Blumson claimed cost of repairs to the garage at $5,056.25 relying on a number of invoices evidencing labour and materials. [26] Firstly Ms Blumson claimed $280.50 paid to one Geoffrey Searle for supply of new garage support beams. [27] Then $439.90 paid to USG Boral Building Products Pty Ltd for plasterboard products. Mr Walker contended particleboard was in fact purchased and questioned why particleboard would be needed to plasterboard the internal garage walls. [28] Then $550.00 paid to one Dan Rosier for plastering work. Mr Walker contended Mr Rosier’s invoice recited no ABN number nor was there any reference to a licence. [29] Then $2,329.00 paid to EH Friend registered builder for labour and materials, including beams, at $791.85. Mr Walker contended that beams had already been accounted for in Mr Searle’s invoice for $280.50; that there appeared to be double charging in respect of beams. [30] Then $35.40 and $396.00 paid to Stratco. For what exactly was unclear due to poorly reproduced and somewhat illegible receipts. [31] Then a Moreton Bay Regional Council charge for rubbish deposit at $37.00 and $49.39 for moulding presumably cornice mouldings. [32] Then painting at $1,280.00 paid to Mr Arndt a painter to repaint damaged areas. His invoice/receipt does not disclose an ABN number nor a licence number. [33] Then Ms Blumson paid $395.00 to Aussie Professional Pest Control Services to inspect and treat for termites on 15 August 2014. Additionally in August 2014 Ms Blumson paid to have an ‘ex terra termite monitoring and -- 4 of 6 -- 5 baiting system’ installed at a cost of $1,680.00. Mr Walker took issue with termite treatment at $159.09 (part of the $365.00 invoice); that the extent of the termite treatment was not clear nor was the necessity to have it done at that time. [34] Mr Walker asserted that the monitoring and baiting system was a secondary monitoring system external to the structure; that such a baiting system was ongoing and a first line of defence whether or not there was a termite problem; that such a system was precautionary and was never contemplated by nor included in any pest treatment prior. [35] Mr Walker put to the Tribunal ‘how could we determine pre and post damage’ ie damage that had already been inflicted by termites prior to Enviropest involvement and damage post due to failure to carry out an initial structural inspection. Mr Walker contended the original initial inspection pursuant to the quote was only going to be a visual inspection; that a normal industry inspection post eradication was usually an invasive inspection. He said Exit Pest firstly failed to eradicate and secondly to do a final inspection to see if eradication was complete and (assess) extent of damage; he contended that Ms Blumson must establish the extent of damage; that there was a percentage of damage prior to Enviropest’s involvement in the job; that termites were present for an undisclosed period of time prior. [36] Mr Colin Blumson, Ms Blumson’s brother-in-law gave evidence to the effect that he considered repairs and works generally were carried out economically and as frugally as possible. [37] Tracy Langfield gave evidence to the effect that even if an initial inspection had been carried out termite activity would not have been seen because termite activity was concealed. He felt that because live termites had been captured in concealed areas they sought out moisture in the concealed timber framework. He confirmed finding old termite damage when a cupboard was removed concluding that termites in the bulkheads were cut off by what Exit Pest ‘had done down below’. [38] Mr Langfield stated that the Termatrack appliance identified active termites but that when he re-attended the property to gauge the effectiveness of treatment that had been applied by Enviropest the builder was already there dismantling the garage walls. [39] Mr Walker did not consider structural damage over and above what was already there was created by Enviropest. He said whilst willing to refund some moneys Enviropest was not responsible for structural damage. [40] Ms Blumson contended that if Enviropest had properly carried out the ‘full termite inspection for her property’ active termite activity would have been identified; that steps could then have been taken to complete the structural eradication and that the installation of the chemical barrier as quoted for would have been effective. -- 5 of 6 -- 6 Conclusions [41] The installation of the Camilleri Reticulation System in 2007 and Exit Pests attendances in July 2013 to eradicate active termites strongly suggests that termites had been a problem at this property for some years prior to July 2013. It is also clear that Exit Pest failed to eradicate active termites in July 2013. [42] Enviropest’s admitted failure to conduct the quoted inspection meant, on Enviropest’s own evidence, that termites trapped within the property structure remained active and destructive. Whilst it was contended that even if the quoted full termite inspection had taken place in August 2013 it would not have identified the termites activity later found, the fact of the matter remains that no inspection was conducted. It is not good enough to state what might have been the case many months after that inspection should have taken place. Enviropest’s own conclusion was that if the full termite inspection had taken place it would have gone down an additional path ie initial eradication. [43] It is also however clear that structural damage had been inflicted by termites prior to Enviropest’s involvement in August 2013. [44] The invoices for repairs replacements make no distinction between what might be termed old damage and recent damage. Additionally the claim for installation of an ex terra termite monitoring and baiting system cannot in any event be allowed because at the time such a system was never ever intended nor quoted for. It was always an additional precautionary measure not a treatment. Here there is an admission of liability for failure to conduct a full termite inspection. But liability for what? There was no evidence produced to the Tribunal that would allow the Tribunal to discern with any accuracy that damage which was present prior to Enviropest’s involvement and that damage most likely latterly occasioned to the property (garage area) because Enviropest failed to conduct its quoted inspection. [45] It was always for Ms Blumson to prove on balance both liability and quantum of her claim. Here there is no reasonable way to assess the quantum of Ms Blumson’s claim. Mr Walker indicated a willingness to refund some moneys. Here Enviropest’s quoted for works as carried out failed. It could reasonably be construed as due to failure to conduct the full termite inspection. Where the service provided fails in its intended purposes it is reasonable that the sum paid for the service be refunded in full. [46] The Tribunal considers a fair outcome is for Enviropest to refund $2,024.00 to Ms Blumson. The Tribunal allows the filling fee of $294.60. -- 6 of 6 --