Diggles v Warren [2014] QCAT 494

CITATION: Diggles v Warren [2014] QCAT 494 PARTIES: Denis Philip Diggles (Applicant) v Joe Warren (Respondent) APPLICATION NUMBER: BDL036–14 MATTER TYPE: Building matters HEARING DATE: 16 July 2014 HEARD AT: Cairns DECISION OF: Member Johnston DELIVERED ON: 1 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Diggles’ Application is dismissed. 2. The parties are to each bear their own costs. CATCHWORDS: Building matters – Dispute over terms of contract – no written agreement – uncertainty over oral terms – implied terms APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Denis Diggles – self represented RESPONDENT: Mr Linton Michael Warren – “Joe” Warren self represented REASONS FOR DECISION Background [1] Mr Diggles the Applicant owns a property situated some 78 km northwest of Cooktown. [2] Mr Warren operates a concreting business known as “Independent Concrete” out of Cooktown. -- 1 of 6 -- 2 [3] Mr Diggles had engaged Mr Warren to construct a flat concrete slab and build container stands on the stab. This work was completed and Mr Diggles paid Mr Warren for that work. [4] Mr Diggles at a later time approached Mr Warren to pour a concrete apron next to the existing slab. [5] Mr Diggles was not happy with the work undertaken and has brought an Application claiming the sum of $5,000 for rectification of the works. The specific claims which are detailed in his Application are: firstly to repair the slab and make it level; and secondly to rectify the supports that hold up the containers. He has provided a number of photographs as evidence supporting his claims. [6] Mr Diggles’ claims are therefore in relation to two separate jobs that Mr Warren has undertaken. [7] Mr Warren states that there was no written agreement between the parties. He stipulated to Mr Diggles that he had to attend the site before the concrete was poured to ensure the work was done in accordance with Mr Diggles’ requirements. Mr Warren had set up the form work for the pour and was concerned that slope of the land would affect the height of the concrete. Mr Diggles did not attend the site when required and Mr Warren proceeded with the pour. Mr Warren stated that he had passed Mr Diggles on his way back to Cooktown after the job had been finished. The first issue for the Tribunal to determine is the nature of the agreement between the parties. Mr Diggles [8] Mr Diggles confirmed that he had asked Mr Warren to build a slab that he could put containers on. Mr Warren had accepted the job, undertaken the work and he had paid Mr Warren for that work. [9] Mr Diggles asked Mr Warren to extend the slab. He acknowledged that Mr Warren had asked him to attend on-site before the pour. He confirmed that he was on the way to the site at around 10:30 in the morning when he was passed by Mr Warren who was heading back to Cooktown. Mr Warren told him that the job had been done and that the workmen were tidying up the site. Mr Diggles stated that the slab looked fine. When the slab dried he became aware that there was a 2 inch fall. [10] Mr Diggles contacted Mr Warren and told him there was a 2 inch fall. Mr Warren told Mr Diggles that he had built a 2 inch fall so that water would not stay on the slab. Mr Warren also said to Mr Diggles that he had not been there to give him instructions on how he wanted the job completed. -- 2 of 6 -- 3 [11] Mr Diggles confirmed that there was no written contract and no real oral terms. He told the Tribunal that Mr Warren was to lay a level slab so that he could work on boat trailers. [12] Mr Diggles says that Mr Warren was provided with a plan which is Exhibit 1. Mr Diggles was asked whether it was totally up to Mr Warren how he undertook the work and he answered “yes”. He said that if Mr Warren needed fill to make up the level that was available. Mr Diggles believes that Mr Warren didn't use enough fill and ran out of concrete. [13] When asked about the costs of rectification Mr Diggles conceded that he did not know how much it would cost to rectify the concrete pad. He put in a global amount but has not obtained a proper quote. Mr Diggles hoped that by bringing the application Mr Warren would be ordered to undertake the rectification work. [14] Mr Diggles confirmed that he had paid Mr Warren some months after he had undertaken the job. When asked by the Tribunal why he had paid Mr Warren if he was unhappy with the job that he had undertaken Mr Diggles told the Tribunal that Mr Warren had promised if he was ever out there again he would do the slab again. Mr Warren [15] Mr Warren told the Tribunal that he had given Mr Diggles a number of options for undertaking the work but that Mr Diggles wanted to limit the cost so that limited the options open to him. The work which he undertook was what guided by the money which Mr Diggles was prepared to pay. Mr Diggles did not understand that the slope would use more concrete. Mr Diggles was not prepared to pay for extra concrete. [16] Mr Warren told the Tribunal that he had done the form work for the concrete slab and was concerned that the land was sloped and was keen for Mr Diggles to view the site before the concrete was poured to confirm that he was happy with what Mr Warren was doing. [17] Mr Warren told the Tribunal that he could build any type of slab that might be required by Mr Diggles but that Mr Diggles finances were limited so that he was trying to build a slab at a cost that Mr Diggles could afford. [18] Mr Warren refuted the claims by Mr Diggles that he did not have enough fill and that he had run out of concrete. Mr Diggles did not have the finances to do the job the way that Mr Warren would have undertaken the work. Mr Warren was working on a tight budget and was keen for Mr Diggles to see the form work before the concrete was poured so that he could have some input on what he wanted. Mr Diggles did not attend at the time he had requested so Mr Warren started the pour. He denied being provided with plans other than the rudimentary sketch plan which is Exhibit 1. He pointed out that there is no detail on Exhibit 1 and that he was not given any directions by Mr Diggles in relation to the way in which the work was to be undertaken. His evidence was that there were a variety -- 3 of 6 -- 4 of ways approaching slopes. These involve different costs and he chose a slab with a 2 inch fall but he could have changed the form work if Mr Diggles had a different requirement. [19] Mr Warren denied being told that slab needed to be completely level. He also denied being told that a roof was to go over the slab. [20] Mr Warren told the Tribunal that he was happy with standard of the work undertaken on the job. He batched the concrete himself and had the contractors to the form work and level the slab. The slab [21] The issue for the Tribunal is whether Mr Warren has breached the agreement he has with Mr Diggles. There is no written agreement and no clear understanding of the terms. Mr Warren told the Tribunal that Mr Diggles was never on-site for the construction of any of the slabs and he did the job in the way he thought appropriate given what Mr Diggles was prepared to pay for the work. Mr Diggles confirmed this situation saying that it was completely up to Mr Warren how he undertook the jobs. The evidence is that Mr Warren did exactly that he undertook the work in the way in which he thought was appropriate. The Tribunal accepts Mr Warren's evidence that he was concerned when he did the form work that because of the slope of the land he would be doing a two inch drop from the existing slab. He told Mr Diggles that he wanted him on-site before the concrete pour so that Mr Diggles could make changes if he was unhappy with the slab. Mr Diggles confirmed that Mr Warren had asked him to attend the site and that he had failed to do so before the pour took place. [22] The reality in this matter is that Mr Diggles is the architect of his own misfortune. He has abdicated his responsibility to provide instructions to Mr Warren as to how he wanted the job undertaken. He has left it completely up to Mr Warren. [23] Mr Warren for his part was clearly concerned about the absence of instructions and aware that Mr Diggles’ expectations needed to be managed gave him the opportunity to attend before the pour. He did not take that opportunity. [24] The Tribunal accepts Mr Warren's evidence that Mr Diggles finances were limited and this affected the options open to Mr Warren in providing the slab. [25] There is considerable uncertainty about the terms of arrangement because there is not written contract and no agreement over any oral terms. [26] The Tribunal accepts that there will be implied terms about the quality of workmanship and appropriateness of materials used. Mr Warren was required to use appropriate materials and provide a reasonable standard -- 4 of 6 -- 5 of workmanship. Mr Warren contends that the work was done to an appropriate standard using appropriate materials. Mr Diggles does not dispute the standard of the workmanship. His complaint is that the slab is not level with the other slab. The Tribunal accepts Mr Warren’s evidence that the use of more concrete and filling would have cost substantially more and Mr Diggles was not prepared to incur such costs. [27] The Tribunal does not accept that the Applicant has proved his case that the slab was not in accordance with his instructions. The Tribunal is not satisfied of the evidence that Mr Warren was given any instructions other than to prepare a slab that would act as an apron for the existing slabs. There was no contract. There was no agreement on oral terms? The plans do not provide directions in relation to the work that is to be undertaken and the Tribunal is not satisfied that documents other than Exhibit 1 have been provided to the Respondent by the Applicant. Mr Warren sought Mr Diggles’ involvement and he turned up after the concrete had been poured and after Mr Warren had started to return to Cooktown. [28] There is an onus on Mr Diggles to prove his case on the balance of probabilities. The Tribunal is not satisfied that Mr Diggles was discharged the evidentiary onus required to be successful in this case. [29] The Tribunal also notes that Mr Dingle hasn't provided any quotes setting out the alleged costs of the rectification he is seeking so that in the event that the Tribunal had made a finding that Mr Warren was responsible the Tribunal would not have been able to determine the damages that would flow from the breach of contract. The Tribunal does not have the power to compel Mr Warren to undertake rectification work. The Tribunal has the power to award damages against Mr Warren if it could have been shown that he had acted outside of his instructions; used inappropriate materials; or displayed poor levels of workmanship. The Tribunal would need at the very least a quotation from a tradesperson with the appropriate skills setting out the estimated costs of rectification. This evidence could then be tested at the hearing by the tradesmen giving evidence. [30] The Tribunal is willing help litigants especially self-represented parties conduct their cases but there is an onus on parties and expectation that they will be properly prepared before they issue proceeding. This requires some independent proof of the cost of repairs/rectification/damages relating to the party’s loss or damage. The steelwork to support containers [31] Mr Warren acknowledged that he had made a mistake with the steelwork and had undertaken to have that fixed. [32] Mr Warren confirmed that the steelwork had been done poorly and has indicated to Mr Diggles that he needs to get back and rectify the same. The photos provided by Mr Diggles, which are Exhibit 2, highlight deficiencies in Mr Warren’s work. However again Mr Diggles has not provided evidence of the cost of rectification. The Tribunal is of the view -- 5 of 6 -- 6 that Mr Warren should be given an opportunity to repair the defective work. If Mr Warren is not willing to repair the defective work then Mr Diggles needs to get a quote of the costs of rectification from an appropriately skilled tradesperson and ask Mr Warren to pay those costs. If Mr Warren fails to do so than the Applicant should have the right to issue proceedings against Mr Warren for the defective steelwork. He would then be able to call the tradesperson to give evidence about the defects and the cost to repair the same. [33] The Tribunal has not referred to the evidence of the other witnesses called by Mr Diggles as they were not parties to the agreement could not give relevant evidence of the terms of the agreement. [34] The Tribunal accepts that Mr Diggles is unhappy about the two inch drop but Mr Diggles could have had told Mr Warren to do it differently if he had attended before the pour. Orders [35] The Tribunal for these reasons make the following Orders: 1. The Applicant’s case is dismissed; and 2. The parties are to each bear their own costs. -- 6 of 6 --