Beesey v Zarafa t/as Dial-a-Plumber [2014] QCAT 277

CITATION: Beesey v Zarafa t/as Dial-a-Plumber [2014] QCAT 277 PARTIES: Rose Beesey (Applicant) v Steve Zarafa t/as Dial-a-Plumber (Respondent) APPLICATION NUMBER: BDL135-13 MATTER TYPE: Building matters HEARING DATE: 25 February 2014 HEARD AT: Brisbane DECISION OF: Dr Cullen, Member DELIVERED ON: 6 June 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Steve Zarafa t/as Dial-a-Plumber is to pay to Rose Beesey the sum of $2,266.50 ($768.50 + $1,498.00) no later than 1 July 2014. CATCHWORDS: DOMESTIC BUILDING DISPUTE – DEFECTIVE WORK – costs of rectification to be set off against amount outstanding to be paid to contractor APPEARANCES and REPRESENTATION (if any): APPLICANT: Rose Beesey represented by Ben Schefe of Michael Sing Lawyers Pty Ltd RESPONDENT: Steve Zarafa self-represented REASONS FOR DECISION Background [1] The applicant, Rose Beesey, engaged the respondent, Steve Zarafa from Dial-a-Plumber, to undertake building work at her property located on Arunta Drive in Mount Nathan. These works included: -- 1 of 6 -- 2 a) Installing a waste water system, in particular an “Enviro-cycle” treatment system to service the south side of the property; b) Replacing the original concealed spouting system located on the property; c) Consequential removal of asbestos material in the eaves; and d) Construction of a new rendered brick pillar to the front of the property. [2] Mr Zarafa commenced the works, and shortly thereafter Mrs Beesey (and her daughter and husband) became aware of a stench coming from the system, and were concerned that something was wrong with the installation of the new plumbing. She raised her concerns with Mr Zarafa on multiple occasions, and he endeavoured to rectify the stench issue, but was repeatedly unsuccessful. [3] Mrs Beesey then engaged Envirodisposal Pty Ltd trading as Edwards & Associates waste water consultants, to inspect the works undertaken by Mr Zarafa. Envirodisposal discovered that the unit installed was not a treatment system; rather it was a temporary septic tank system that was leaking effluent onto the Beesey property. Self-evidently, this poses a health risk. [4] Mr Zarafa argued that he had received approval from both Mrs Beesey and the Gold Coast City Council to put a temporary system in place, and says that the system was always meant to be replaced at some point in the future. His argument was not supported by further details about his alleged conversation, or any confirming paperwork. [5] Mrs Beesey told the Tribunal that she had been in correspondence with the Gold Coast City Council Plumbing and Licensing division, and had been advised that there was no application relating to the system, no soil testing and no verbal approval by the Council for the temporary system put onto the property. The inspector advised Mrs Beesey that there is no mechanism for legal approval for what is referred to as a ‘temporary’ system. I prefer Mrs Beesey’s evidence to that of Mr Zarafa for the reason that: (1) Mrs Beesey’s evidence is in keeping with standard plumbing and approval practices; and (2) The whole of Mrs Beesey’s evidence before the Tribunal has an inherent consistency in that none of the copious correspondence delivered by her to Mr Zarafa refers to the septic system as being “temporary”. Surely, if it had been temporary, rather than pushing Mr Zarafa to come back and rectify the stench problem, she would have instead been pushing for him to come back and install the “final” system. -- 2 of 6 -- 3 Nature of the defective works [6] On 23 April 2013, Mrs Beesey engaged Mr Kim Silk (BSA Licence No. 24122), Silk Building Reports Pty Ltd, to undertake a standard visual inspection of the work that performed by Mr Zarafa, or his subcontractors, on her property. The scope of the works inspected by Mr Silk is outlined in his report, and was based upon what Mrs Beesey told him had been done by Mr Zarafa. [7] Mr Zarafa claimed not to be responsible for some of the defective work, asserting that some aspects of the work were not his, but his subcontractors, and in some cases, outright denying that the work was done. Again, I prefer the evidence of Mrs Beesey. To the extent that there were subcontractors, Mr Zarafa is vicariously responsible for any defective work they completed, for the reason that he was the contractor in the main. The value of the domestic building work performed exceeded $3,300.00, and as such, Mr Zarafa should have entered into a written contract with Mrs Beesey, and then arranged for a Certificate of Insurance to be issued to Mrs Beesey following payment of an insurance premium in relation to the Queensland Building and Construction Commission’s Home Warranty scheme. Unfortunately, neither of these steps were undertaken by Mr Zarafa, despite his having been the conduit by which all of the work was organised. [8] I am not confident that Mr Zarafa was actually aware of the scope of work actually performed by his subcontractors, despite his having engaged them. Mrs Beesey, as the homeowner, would be more readily able to identify any new work performed, such as defective timber trim, fascia boards and eave linings. In a number of cases, the butt ends of timbers were not been sealed or primed, which would lead to weather damage eventually. Whilst Mr Zarafa denies that he completed this work, the photographic evidence before the Tribunal appears to depict new work. I accept Mrs Beesey’s evidence that the work was completed by Mr Zarafa and/or his subcontractors. [9] Mr Silk concluded that the work did not meet a reasonable standard of construction expected of a competent holder of a building or plumbing contractor’s licence. I agree that the work falls beneath the standard expected of a licensed builder and/or plumber. [10] In addition to rectifying the problems with the septic system, there are several other aspects of the work that require rectification, outlined in Mr Silk’s report:  The removal of the recently installed downpipe assemblies including rainwater heads, eaves, gutters, brackets, timber cover trims, timber fascias, and possibly the fibre-cement sheet eaves linings in order to expose the roof framing rafter members and bottom row of the roof battens. -- 3 of 6 -- 4  Allowance needs to be made along the left and right hand sides of the building for the ends of the corrugated metal sheet roofing to overhang into the new gutter systems by 40-50mm (presently, it is defective in that it does not have adequate overhang). Mr Silk believed that the timber fascias, eaves, gutters, and pvc round downpipe assemblies should be able to be restored for reuse.  In order to fix the inadequate falls in the downpipes, the guttering requires reinstallation in the correct position in relation to the fascia board in order to provide sufficient falls.  If damaged during removal, the existing timber cover trims may require replacement.  The existing galvanised timber iron type metal rainwater heads and new zincalume type metal rectangular downpipe assemblies require replacement with material compatible with the Colorbond steel eaves guttering system utilised.  Additional work may be required prior to repainting, such as addressing gaps between new and existing surfaces. [11] Having found that Mr Zarafa’s work was defective, the Tribunal must then consider what orders to make for compensation. Mrs Beesey has provided the Tribunal with quotations for rectification of the septic tank system, as well as the issues with the house. [12] In relation to the septic tank system, the Tribunal has been provided with a quotation from GKS Maintenance Pty Ltd for the supply and installation of an “Aqua Nova treatment system” dated 1 November 2012 in the amount of $6,485.00. [13] As part of the process of reinstating the septic system, soil testing has been required. The Tribunal has been provided with an invoice for work conducted by Envirodisposal Pty Ltd t/as Edwards & Associates Waste Water Consultants for $550.00. [14] There is no other evidence in relation to rectification of the septic tank system before the Tribunal, and there is no reason for the Tribunal to decline to award the sums claimed ($6,485.00 + $550.00 = $7,035.00) to Mrs Beesey, it appearing to be a reasonable reflection of her loss in relation to the defective septic tank installation. [15] In relation to the building works performed, the Tribunal has been provided with a quotation for rectification of the defective work from Bridgemill Pty Ltd t/as B.J. Millar Constructions. That quotation outlines the following costs: Remove all timber trim pieces to the underside of all the new fascia boards approximately 114- L/M and replace with 92 x 19 pre primed treated timber trims. Remove fascia boards to the bottom edge of the four timber cladded gables approximately 27-L/M -- 4 of 6 -- 5 Supply and fit a 1m metal rod to the bottom edge of the roof sheets to extend the roofing into the gutter on the right side of the house only approx 24-L-M Replace short and damaged metal barge flashing to two of the gable ends. Remove and replace and refit two down pipes using 100mm PVC pipe and bends. Electrical allowance: $800. (This quote excludes septic works) TOTAL: $13,800 + GST ($15,180 total) [16] Again, there is no other evidence in relation to the costs of rectification before the Tribunal, and as I am satisfied that Mr Zarafa and/or his subcontractors performed the defective work, the Tribunal will order that the sum of $15,180.00 be awarded to Mrs Beesey. Asbestos located on the property [17] Mrs Beesey has also complained that, during the course of the work, asbestos was discovered in the eaves on the property. She alleges that Mr Zarafa advised her that he was licensed to remove the asbestos. [18] The Tribunal finds that Mr Zarafa was not licensed to remove asbestos, however there is no loss flowing from Mr Zarafa’s actions in this respect. Although the Tribunal accepts that asbestos was left at the property following the works, Mrs Beesey would always have been in a position where it would have been necessary for her to engage a licensed asbestos removal contractor. She is therefore no worse off as a result of this discovery. Total costs of rectification [19] The Tribunal calculates the cost of rectification of the works to be $22,215.00 ($7,035.00 + $15,180.00). This is the sum that the Tribunal will order be paid by Mr Zarafa to Mrs Beesey. Mr Zarafa’s counter-application for payments owing [20] In his counter-application, Mr Zarafa asserts, and I accept, that Mrs Beesey has not paid him for the balance of the work performed by him. The evidence substantiates that the following invoices have been issued and payments made: “Stage 1” tax invoice from Dial-a-Plumber for $11,830.50. Mrs Beesey has paid $10,030.00, leaving a balance of $1,800.50 owing to Dial-a-Plumber. “Stage 2” tax invoice from Dial-a-Plumber for $19,646.00. The entire balance of this invoice remains outstanding. TOTAL owing for works undertaken (stages 1 + 2) = $31,476.50 less $10,030.00 = $21,446.50 -- 5 of 6 -- 6 [21] The appropriate quantum of Mrs Beesey’s loss must take into account the amounts remaining to be paid pursuant to the contract for the works. The Tribunal considers that the award should be the cost of the rectification works required less the amount owing on the contract. Mrs Beesey has asked the Tribunal to order that the money she has paid to Mr Zarafa be returned to her, that he pay for the rectification, and that she also be relieved of paying the amounts outstanding for the work performed. This is not reasonable, and would, in the Tribunal’s view, amount to a double recovery of her loss. [22] For these reasons, the Tribunal will order that Mr Zarafa pay Mrs Beesey ($22,215.00 rectification - $21,446.50 contract sum owing) = $768.50. Costs [23] Mrs Beesey has incurred costs in this matter of $1,223.00 for the report prepared by Mr Silk, legal costs and the QCAT filing fee of $275.00. [24] In circumstances where Mrs Beesey has not fully paid the amounts owing to Mr Zarafa, and the Tribunal has set off the costs of rectification against these sums, I do not consider that the interests of justice warrant a deviation from s 100 of the QCAT Act. However, I do not think that Mrs Beesey should have to incur the costs of Mr Silk’s report, or the filing fee, and will additionally order that Mr Zarafa pay $1,498.00 in costs to Mrs Beesey. Order 1. Mr Zarafa is to pay to Mrs Beesey the sum of $2,266.50 ($768.50 + $1,498.00) no later than 1 July 2014. -- 6 of 6 --