Davies v Amazing Decks Pty Ltd [2014] QCAT 316

CITATION: Davies v Amazing Decks Pty Ltd [2014] QCAT 316 PARTIES: John Paul Davies (Applicant) v Amazing Decks Pty Ltd (Respondent) APPLICATION NUMBER: BDL346-12 MATTER TYPE: Building matters HEARING DATE: 18 March 2014 HEARD AT: Brisbane DECISION OF: Member A Fitzpatrick DELIVERED ON: 2 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Amazing Decks Pty Ltd pay to John Paul Davies the sum of $611.60 within 21 days of the date of this Order. CATCHWORDS: Building dispute – defective work – damages for breach – liquidated damages. APPEARANCES and REPRESENTATION (if any): APPLICANT: John Paul Davies, self represented RESPONDENT: Amazing Decks Pty Ltd represented by Simon Ramke, Director. REASONS FOR DECISION Background [1] The applicant Mr Davies entered into a contract with the respondent Amazing Decks Pty Ltd for the construction of a landscape deck abutting his residence and extending over a septic tank on the property. [2] Mr Davies signed a Master Builders Minor Works Contract Schedule on 18 October, 2011. The Contract Schedule provides that a quotation forms part of the contract. The quotation is dated 17 October, 2011 and -- 1 of 6 -- 2 comprises a description of the work by reference to an attached Plan dated 13 September, 2011. Also attached to the Contract Schedule and initialled by Mr Davies is a document headed “Conditions of Sale and Quotations”. The Contract Schedule expressly provides at Item 14 that no Contract Information Statement was provided to the home owner. [3] The contract price was $44,301.40 inclusive of GST, payable in stages, with the bulk of the sum payable by the time of commencement of installation of posts, battens and decking. [4] The commencement date was said to be 31 October, 2011. The Contract Schedule provides for a date for practical completion of 20 December, 2011. [5] During the course of construction, the nominee of Amazing Decks Pty Ltd, Mr Ramke encountered personal difficulties which resulted in delays to completion of the deck. The deck was completed on 22 June, 2012, a delay in completion of 185 days. [6] Mr Davies made certain complaints to the Queensland Building Services Authority (QBSA), which directed Mr Ramke to rectify aspects of the work. This was completed to the satisfaction of the QBSA. [7] Mr Davies has brought this claim in relation to other matters. Claim [8] Mr Davies claims: a) liquidated damages of $50.00 per day for a period of 185 days in the sum of $9,250.00; b) re-imbursement of $556.00 plus GST paid as part of the contract price for materials not supplied as part of the completed work:  316 Stainless steel wire rope at $10 per metre, 14 metres - $140.00  Jaw/Jaw rigging screw and lag screws, 6 at $24/piece - $144.00  Flat Bar 316 Stainless Steel Spreader at $5.25/metre, 8 metres - $42.00  Protectadeck Impervious Joist Protection at $25/25 metre roll, 12 rolls - $300.00  3 step Galvanised steel stair stringer at $130.00. [9] As first formulated Mr Davies, claimed an unspecified amount for “Septic tank top rework of hatch”. He also claimed labour charges of $3,000.00 plus GST, estimated at 10 six hour days (60 hours) at $50.00/ hour for rectification work carried out by another contractor to alleged defects to the support structure of the deck. -- 2 of 6 -- 3 [10] Mr Davies tendered a report from Steven Drury Builder, dated 18 October, 2012, which set out a list of defects in the work performed by Amazing Decks Pty Ltd. Mr Drury was engaged to rectify this work, however, there is no discrete supporting evidence as to his costs in undertaking that rectification work. Mr Davies said at the hearing that rectification of non- tradesman like work did not form part of the claim against Amazing Decks Pty Ltd. [11] Mr Davies subsequently claimed the sum of $5,963.79 for labour performed and materials supplied by Steven M Drury, Builder who installed further hatches above the septic tank and who dismantled and reconstructed parts of the deck. Mr Davies tendered a list of costs from Mr Drury in relation to this work. Mr Drury was not called to give evidence or to be cross examined. [12] Mr Davies’ evidence was that leaving the battens exposed for a long period of time caused excessive weathering, creating cracks and that lack of Protectadeck joist protection resulted in boards lifting at regular intervals. He also gave evidence that it was not possible to paint the deck to give it protection until the defective work had been rectified including the work directed to be performed by the QBSA which was performed in October, 2012. [13] Mr Davies also tendered a number of photographs of the allegedly defective work and photographs evidencing work and materials omitted from the deck. [14] Mr Davies relied upon a paragraph in relation to “Liquidated Damages” set out at page 3 of the Master Builders 06/11 Contract Information Statement which he obtained from Master Builders Queensland, in support of his claim for liquidated damages of $50.00 per day. He submitted that the Domestic Building Contracts Act 2000 requires the contract information document to be provided to him. The Contract Information Statement explains that the contract provides for a default rate for liquidated damages of $50 per day where nothing is stated in the contract schedule. [15] Finally, Mr Davies pointed to the drawing attached to the quotation in the contract documents which referred to “access hatches” to support his contention that Amazing Decks Pty Ltd had only installed one hatch to access the septic tank, when 3 were required. Response [16] Mr Ramke on behalf of Amazing Decks Pty Ltd gave evidence that there was no contractual term between the parties which entitled Mr Davies to liquidated damages for delay. His evidence was that he informed Mr Davies during the course of the project of the reasons for delay and that Mr Davies expressed understanding. He does not otherwise deny the delay. -- 3 of 6 -- 4 [17] Mr Ramke did not deny that an 11th row of wires around the deck balustrade was omitted, nor that 2 rather than 3 steps were installed. Nor did he submit that there had been an adjustment to the contract price to take account of these omissions. [18] In relation to application of the Protectadeck product, Mr Ramke said that a product ‘H4” was used which meant that there was no need for Protectadeck. [19] Mr Ramke pointed to the description of works in the quotation which referred to construction of an “access hatch”, singular. He says that he was not told at any time during the course of construction that 3 hatches were required. [20] Mr Ramke submitted at the hearing that Mr Drury was unqualified to say what work needed to be rectified and that in any event the installation of a steel floor frame was unnecessarily expensive. The original floor frame was timber. [21] Mr Ramke submitted that none of the costs paid to Mr Drury need to have been incurred and that the QBSA would have required rectification works to be performed if necessary. That did not occur. He said that he offered to rectify any defective work, however that offer was declined by Mr Davies. Findings [22] I find that the documents comprising the contract between the parties are; a) the Master Builders Minor Works Contract Schedule dated 18 October, 2011; b) quotation, dated 17 October, 2011 together with an attached drawing dated 13 September, 2011 and c) “Conditions of Sale and Quotations” document initialled and dated 18 October, 2011. [23] It is apparent that Amazing Decks Pty Ltd has used part, but not all, of the Master Builders’ standard form contract. The standard form usually includes a set of general conditions to accompany the Schedule. Amazing Decks Pty Ltd has added its own set of general conditions to be read in conjunction with the Schedule. The question is whether the Master Builders’ general conditions which are said to contain a default provision in relation to liquidated damages can be taken to be incorporated as terms of the contract. [24] Provision of its own detailed general conditions and failure to provide the Master Builders general conditions to Mr Davies, suggests that Amazing Decks Pty Ltd had no intention of incorporating the general conditions as terms of the contract. It appears that Mr Davies had no knowledge of the existence of general conditions until he pursued a copy of the Contract -- 4 of 6 -- 5 Information Statement after the dispute with Amazing Decks Pty Ltd arose. The general conditions are not in evidence. [25] This is not a case where there is a liquidated damages item in the schedule which has been left blank so that there might be the opportunity for a default provision to operate. In this case there is no reference at all to liquidated damages in the schedule, to which a default provision might attach, even if the general conditions were found to form part of the terms of the contract in question. [26] I also note that it is not apparent on the face of the Contract Information Statement forming part of Mr Davies evidence that it is the Contract Information Statement which accompanies a minor works contract or whether it is relevant to a different contract in the suite of Master Builders documents. The Contract Information Statement does not purport of itself to constitute terms and conditions of any contract, it is merely provided for information purposes to aid understanding of a contract entered into by a home owner. Mr Davies has not provided a copy of the term from the standard terms and conditions on which he relies in order for it to be interpreted by this Tribunal or considered by Amazing Decks Pty Ltd. [27] For these reasons I find that there was no term of the contract between the parties that liquidated damages of $50.00 per day apply. Mr Davies claim for liquidated damages must fail. [28] In relation to the claim for recovery of moneys not expended by Amazing Decks Pty Ltd on works omitted from the contract I find on the basis of Mr Ramke’s evidence that the work was not performed, the materials were not supplied and there was no consequent adjustment to the contract price. On that basis Mr Davies is entitled to recover the sum of $556.00 plus GST ($611.60) for the items set out at paragraph [8](b) above. In relation to the Protectadeck claim, I find that application of H4 was in any event part of the contract work and that the contract specifically provided for “all battening and joists to have Protectadeck impervious joist protection installed”. H4 was not a substitute for the Protectadeck product. [29] In relation to the claim for recovery of the sum of $5,963.79 I accept the submissions of Mr Ramke that there is no evidence of defective work which necessitated rectification in the manner effected by Mr Drury. Mr Drury did not give evidence and was not able to be cross examined in relation to the work he performed. I am not satisfied on the evidence that there has been any breach of contract by Amazing Decks which required dismantling of the sub floor frame and replacement with a steel floor frame. I am not prepared to order that Amazing Decks meet those costs. [30] In relation to the instalment of 3 access hatches over the septic tank, there is no evidence before me of any local authority requirement in relation to the extent of access required. The contract itself is not clear in relation to how many hatches should be installed. In any event, even if I were to find that Amazing Decks Pty Ltd was in breach of contract for failing to install more than one access hatch, I cannot discern from Mr Drury’s list of costs -- 5 of 6 -- 6 what labour and materials relates to construction of the additional access hatches apart from the other reconstruction work carried out by him. For these reasons I refuse the claim by Mr Davies relating to construction of further access hatches. Order [31] I order that Amazing Decks Pty Ltd pay to Mr Davies the sum of $611.60 within 21 days of the date of this Order. -- 6 of 6 --