Engapadalil v Steve Parcell Building Services [2015] QCAT 54

CITATION: Engapadalil v Steve Parcell Building Services Pty Ltd [2015] QCAT 54 PARTIES: Fageer Engapadalil (Applicant) v Steve Parcell Building Services Pty Ltd (Respondent) APPLICATION NUMBER: BDL253-14 MATTER TYPE: Building matters HEARING DATE: 5 February 2015 HEARD AT: Brisbane DECISION OF: Member Favell DELIVERED ON: 18 February 2015 DELIVERED AT: Brisbane ORDERS MADE: The applications are dismissed. CATCHWORDS: BUILDING MATTERS - where contract to build new residence - whether contract required brick work to be rendered - effect of variation APPEARANCES and REPRESENTATION (if any): APPLICANT: Fageer Engapadalil RESPONDENT: Steve Parcell Building Services Pty Ltd REASONS FOR DECISION [1] Fageer Engapadalil and Venitha Crispin contracted with Steve Parcell Building Services Pty Ltd for a new domestic dwelling to be built at the Promenade, Springfield Lakes on 19 June 2013. The contract was a master builder’s residential building contract made up of 28 pages. [2] This application was listed as a hybrid hearing however the parties agreed that it was unlikely there would be compromise. The application was then heard. -- 1 of 6 -- 2 [3] The building contract in the special conditions had the wording “as per building specification and quote #1683/3 dated 17 June 2013”. That quote relevantly described the exterior under the heading “building specifications” as: “Exterior cladding –  Boral single height bricks, from builders range, with natural mortar  Rendered brick to front façade and  Linear to remainder.” [4] Mr Engapadalil complains that the builder did not render the brick work on the house and seeks an order that the builder render the brick work or pay the owner the cost of rendering. He contends that the rendering was required by the contract and was based on a covenant requirement applicable to the area. His claim is for approximately $5,000.00 - $6,000.00. [5] He also seeks an order that the builder pay the owner the cost of variation of $400.00 which was chosen by the owner to upgrade to double height brick. [6] The whole of the claim made depends on whether there was an obligation in the contract to render the house. [7] Mr Engapadalil contends that because the plans which were drawn by William H Wilson and Associates had on drawing sheet 4 of 11 the words “rendered B’work” on the front elevation and the right side elevation it was a term of the contract that the brick work would be rendered. [8] Mr Parcell contends that there was no such obligation agreed to in the contract and points to the wording used under the heading “exterior” and the 2 pages of drawings attached to the quote which made no reference to rendered brick work except for a portion on the front elevation. Those drawings have on them a statement that the drawing remains the property of Steve Parcell Building Services and it has the notation “proposed dwelling at lot 396 the Promenade Springfield Lakes for Fageer and Vinitha.” [9] In clause 10 of the contract the builder warrantied that it would carry out the works in an appropriate and skilful way with reasonable care and skill in accordance with the plans and specifications and in accordance with all relevant laws and legal requirements. [10] At the time of the signing of the contract the only plans in existence were the 2 plans signed and dated the 19 June 2013. The only specifications were those that were contained in the quotation also signed on 19 June 2013. -- 2 of 6 -- 3 [11] Mr Engapadalil relies on the plans drawn by W H Wilson made up of 12 pages. Whilst on page 4 of 11 there appears the words “rendered B’work” on the front elevation and the right side elevation there is no such notation on the left side elevation or the rear elevation. [12] The words “rendered B’work” are said by Mr Parcell not to be a term of the contract requiring brickwork to be rendered. He contends that on the front elevation the rendered brickwork was to be confined to an area on the side of the garage and on the right side it was to be rendered so as to be able to finish the render on the front elevation by taking it around a corner. [13] The William H Wilson plans were drawn on the 5 July 2013 after the contract was signed. [14] Mr Engapadalil in part relies on a covenant approval for his lot from Lendlease dated the 29 July 2013. It includes a stamp signifying approval by Lendlease on the 6 pages of the Wilson plans included with the covering letter. [15] The difficulty with that is there is no evidence that the builder was in anyway involved with the obtaining of covenant approval or agreed to the rendering of brick work as claimed by Mr Engapadalil. [16] Mr Engapadalil also relies on clause 16 in the building covenant. Clause 16 provides: “External building materials A selection of external building materials and colours which add variety and complement the style of architecture must be used. All homes within the Promenade must have a rendered finish to all external walls, and may incorporate the following materials as a feature element:  one colour block, split, honed or polished;  feature stone;  prefinished metal feature panelling with light weight battens;  light weight cladding suitably painted or stained (e.g. weatherboard, plywood); Alternative materials may be permitted and will be considered on within the Promenade. Galvanised iron, zinc or aluminium coated steel, corrugated or unpainted fibre cement sheeting and bare, painted or pre coloured concrete bog work are also not permitted for any external building works.” [17] “Render” is defined in the glossary of terms as “a finish applied to walls to cover the bricks and mortar joints. The finish of render is commonly smooth, but may be textured if desired as long as mortar joints and the brick or masonry profile is not visible.” -- 3 of 6 -- 4 [18] Although the covenant asked for a site plan, floor plans, elevations and sections with natural surface level and a schedule of external building materials and colours, no such schedule was provided and the only mention of render was on the front elevation and the right side elevation on one wall of the garage. [19] Again there is no evidence that the builder was a party to the covenants. [20] The building contract allowed for variations by agreement. In clause 12 either party could give the other written notice requesting a variation and the parties could agree to vary the works by adding or omitting work from the works. [21] In an email of 16 January 2013 from Mr Parcell to the owners there appeared the following “firstly we are working on the understanding that your home will include the following inclusions…render to front garage…” On the 4 April 2013 a further email confirmed a further inclusion as “rendered mail box”. [22] An email on the 19 August 2013 Mr Parcell, in response to a question from the owners said “to change the linear to the front of the family room to render would be an extra $482.” In an email of the 29 August to Mr Parcell from Mr Engapadalil a variation form with render to the front family room was requested. [23] On the 2 September 2013 Julie Dayes sent an email to the respondent which included the words “also he wants the cost to render the bricks on the top side of home so all brick rendered from end of garage to bed 3 please.” By an email 5 December Mr Parcell noted the bricks specified which only included rendered brick to the front area. At that time he asked the owners to confirm their brick selection and told them that he was happy to render 1.2 meters down the side of the garage for them. [24] A variation signed by the owners on 24 September 2013 said: “to change the linear to the front of the family room to render would be an extra $482.00.” [25] On 18 October 2013 the owners signed a variation with the following description: “change for single height bricks with natural mortar to Haymarket double height bricks with natural mortar as marked in black on an attached plan.” The portion was that marked in black was on sheet 3 of 11 of the Wilson plans. That change had been made to all of the right side. The variation change was to cost a further $400.00. The variation noted that the owners understood and accepted the conditions detailed in the variation and certified that the variations were made at their choice. [26] In an email 5 December 2013 to Mr Parcell, Mr Engapadalil, under the heading “Issue” said “during one of the colour selection meeting we were told that the rendered brick stopped at the side of the garage and the rest was unrendered.” – “Later Darleen clarified the render was only at the front”. -- 4 of 6 -- 5 [27] Darleen Keats gave evidence1 that on or around 18 October 2013 she received a request from Mr Engapadalil to prepare a variation to change the side of the garage from single height bricks to rendered brick. She emailed a plan hatching in black the area to be changed to render brick and also emailed the variation with the additional charge. [28] The email 18 October 2013 which enclosed the hatched area had the words “attached is a variation and plan showing the area to be changed to rendered brick.” The variation which was sent at that stage described the work as: “change side of garage as hatched on the attached plan from single height bricks of natural mortar to rendered brick.” That area was the right hand side of the building. [29] After that quote was supplied for the variation to render Mr Engapadalil asked for a variation changing all brick to double height. Darleen Keats returned a variation and a plan showing the area to be changed to double height brick and later that day Mr Engapadalil replied “If upgrading to double brick we won’t be rendering side of garage so please do variation form for all the brick area.” That was then done and the variation was signed. [30] Ms Keats, and Mr Parcell2 gave oral evidence as well as their affidavits and were subject to cross examination. The effect of the evidence was that it was not a term of the agreement that brick work be rendered. [31] In my view the emails and discussions prior to the contract being signed and the emails and variations after the contract was signed corroborate the claim that rendering was not part of the contract. [32] In any event even if it were, the subsequent variation removed any requirement for rendered brick with the exception of the front elevation, where it was provided. [23] Julie Dayes also gave evidence and was cross examined.3 Contrary to the allegation of the owners she said that she did not advise the owners that their house was fully rendered. The emails that she refers to in her affidavit, in my view support the contention that it is unlikely there was to be rendering of brick apart from the front elevation. A photograph tendered by the applicants showing double height brick on the right hand side of the house also shows the render that has been returned from the front of the house around to a portion down the side.4 [24] The available evidence does not support the contention that it was a term of the contract that all of the brick work was required to be rendered. Many of the statements in the emails referred to above are contrary to there being a requirement to render all the brick work. There is nothing in the written contract that requires the brickwork to be rendered. The 1 Exhibit 6. 2 Exhibit 3. 3 Exhibit 5. 4 See exhibit 1. -- 5 of 6 -- 6 reference to “rendered B’work” on the Wilson plans was created after the contract was agreed and signed. [25] I am not satisfied that it was a term of the contract that brick work was to be rendered. Even if it was however, there was a variation that changed any such obligation if it existed. [26] The application for an order requiring the builder to render the brick is dismissed. The alternate claim for compensation to render the building is also dismissed. I further note there was no evidence of the cost of any rendering to support the alternate claim. [27] The claim for the cost of the variation is dismissed. There is no basis to make such a claim and the material demonstrates that the variation was made in writing and agreed to by the applicants. -- 6 of 6 --