Crawford v Doug Thoms & Son Master Painters [2014] QCAT 404

CITATION: Crawford v Doug Thoms & Son Master Painters [2014] QCAT 404 PARTIES: Neville Crawford (Applicant) v Doug Thoms & Son Master Painters (Respondent) APPLICATION NUMBER: BDL302-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 21 August 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Applicant is relieved from the requirement to pay the Respondent the sum of $2,000 pursuant to the contract between the Applicant and the Respondent dated 12 August 2013. 2. The Respondent is ordered to pay the Applicant the sum of $3,413.24 within twenty-eight (28) days of the date of these orders. CATCHWORDS: DOMESTIC BUILDING DISPUTE – application for final payment by builder, homeowner alleges work is defective, expert report supports finding by Tribunal that work was defective, costs of rectification awarded to homeowner APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Neville Crawford (‘the Applicant’), has commenced a claim before QCAT seeking an order that he now be relieved from a contractual -- 1 of 4 -- 2 requirement to pay $2,000 to Doug Thoms & Son Master Painters (‘the Respondent’), representing the final instalment sum due pursuant to a contract for house painting entered into between the Applicant and the Respondent. [2] In addition, the Applicant also seeks the costs for rectifying defective and incomplete painting works ($2,500); as well as some costs that are referable to his bringing this claim before QCAT ($913.24). [3] On 12 August 2013 the Applicant and the Respondent entered into a Master Painters’ Australia contract for the Respondent to paint the Applicant’s newly constructed home, at Biggera Waters. The contract price was for $18,975, and the Applicant paid a deposit of $5,693 to the Respondent. [4] The Applicant has paid the Respondent all the various progress payments, bar the final progress payment. The Respondent has claimed payment of the final progress payment ($2,000), contending that the job is now complete. Yet, the Applicant contends that the job is still far from complete, and he has identified many aspects of the job that are not of an acceptable quality. In this regard, the Applicant says:  Raked ceilings have been painted the wrong colour;  Bath tubs were scratched by the Respondent’s workers using ladders in the bath tubs without adequate surface protection;  Roofing sheets have been damaged;  In many instances the Respondent has failed to use masking tape, and that has resulted in poor cutting-in around various glass doors and other fixtures;  In many areas timber staining was not undertaken satisfactorily by the Respondent particularly on the side edges, tops and bottoms of architraves;  The Respondent has failed to paint inside wardrobes;  Drop sheets have not been used in all areas, such that tiles and other surfaces have become marked by paint drips and paint over-spray;  The Respondent has not properly supervised his workers on the job and in consequence final coats on exterior walls were applied even before other trades had completed their works, and in other areas painting has been left incomplete; and  The Respondent has failed to respond to the Applicant’s request to confirm the brand of external paint that was used to paint the house and the process to be followed by the Applicant in order to obtain a 15-year written warrantee from the paint manufacturer. -- 2 of 4 -- 3 [5] In correspondence filed before QCAT by the Applicant the Respondent has acknowledged that some works do require rectification, yet has insisted that he be paid in full before these rectification works are undertaken. Those discussions did not result in any resolution. [6] The Respondent has not filed any materials before the Tribunal. [7] The Applicant has obtained a report from Building Survey Australia Pty Ltd and the author of that report, Mr Bruce Moore, concludes that painting throughout the home at Biggera Waters has been conducted in a sub- standard manner. A series of photographs included as part of Mr Moore’s report clearly demonstrate a range of obvious defects and poor workmanship, including:  Numerous instances of over-paint to painted surfaces, fixtures and fittings;  Insufficient paint coverage;  Poor finishes;  Areas of no paint coverage at all;  Seal joints having not been installed;  Insufficient preparation prior to painting; and  Damage to roof sheeting. [8] I accept the report from Building Survey Australia Pty Ltd as clearly evidencing substandard works. This report also demonstrates that the job has not been completed. The Applicant has obtained a quote from another painter, Colour Elegance Painting & Decorating Pty Ltd. This quote reveals that it will now cost $2,500 (inclusive of GST) to complete the job started by the Respondent. [9] In my view, the Respondent was not entitled to make claim to the final instalment sum and there would now be very little utility in the Tribunal ordering that the Respondent return to the site in order to perform rectification works, or complete the job. In all the circumstances I regard it as being more preferable that another painter perform these rectification works instead. The quoted costs of rectification are reasonable, such that I will allow the Applicant that sum as compensation. [10] The Applicant also seeks the $550 cost of the building report that he obtained from Building Survey Australia Pty Ltd in order to demonstrate the nature of the problem, and his court costs ($285) and postage and photocopying fees ($78.24). These costs are also reasonable, such that I will allow them. -- 3 of 4 -- 4 [11] The order of the Tribunal is as follows: 1. The Applicant is relieved from the requirement to pay the Respondent the sum of $2,000 pursuant to the contract between the applicant and the respondent dated 12 August 2013. 2. The Respondent will pay to the Applicant the sum of $3,413.24 within twenty-eight (28) days of the date of these orders. -- 4 of 4 --