Eco Projects & Developments Pty Ltd v Queensland Commercial Plasterers [2014] QCAT 167

CITATION: Eco Projects & Developments Pty Ltd v Queensland Commercial Plasterers [2014] QCAT 167 PARTIES: Eco Projects & Developments Pty Ltd (Applicant) v Queensland Commercial Plasterers (Respondent) APPLICATION NUMBER: BDL024-14 MATTER TYPE: Building matters HEARING DATE: 2 May 2014 HEARD AT: Southport DECISION OF: Adjudicator Trueman DELIVERED ON: 2 May 2014 DELIVERED AT: Southport ORDERS MADE: 1. That the Respondent pay to the Applicant the sum of $2520.50 within seven days. CATCHWORDS : Building works – domestic contract – whether defective plaster works – alleged damage caused to windows – reasonable costs to rectify and repair APPEARANCES and REPRESENTATION (if any): APPLICANT : Graham Meyer (Director) Eco Projects & Developments Pty Ltd RESPONDENT: No appearance -- 1 of 4 -- REASONS FOR DECISION [1] Eco Projects & Developments Pty Ltd (“Eco Project”) employed Queensland Commercial Plasters (“QCP”) to undertake plastering works to a project being the construction of a new residence located at Pacific Parade at Tugan. [2] Eco Projects filed their application for domestic building disputes in Brisbane on 6/2/2014. They claim the sum of $2,235.50 for rectification costs and the filing fee to be reimbursed to them by QPC. [3] Mr Nicholas Byrne is the sole Director of QCP. He did not appear at the hearing. Mr Byrne had filed a response on 26/2/2014 and statements and evidence in response to the claim. [4] Eco Projects allege that QCP failed to complete some of the plaster works as agreed, that some works were defective and not in a tradesman like manner, and that QCP contractors caused damage by sanding and stripping off the paint to some of the powder coated window frames in the property. [5] Eco Projects stated that QCP commenced works on or around 15 July 2013 and that the works were never completed. They claim that they paid QCP a total sum of $74,140.00 for the plaster works and that all funds have been paid in full to them. [6] Eco Projects said that QCP were paid on a do-and-charge basis, that they were paid an hourly rate and that the budget for the works had nearly double, having budgeted for $40,000.00 and yet costing some $74,000.00. Eco Projects stated that QCP were the only contractors paid on this basis and they had agreed to engage them on this basis as QCP said the job was “too big for them to quote and give a fixed price”. Eco Projects said that the job was well over budget and that at times the Director of QCP was often not on site, causing the job to slow down, that the contractors would not take direction from Eco Projects and that it was later discovered that some of the contractors employed by QCP were “not licensed or qualified”. Eco Projects stated that when he discovered that a contractor was not licensed he was removed from site and that caused problems between Eco Projects and QCP. [7] Eco Projects said the defective works were noted and advised to QCP. He said they refused to return to site to rectify the defective works. A dispute arose regarding a final payment of some $1500.00. Eco Projects said they withheld the funds to try and induce QCP to return to site and rectify the defective works. QCP refused to return until paid. Eco Projects said they paid $1000.00 to QCP on 4 December 2013 on an agreement that they would come back to fix the works. Eco Projects said that QCP still refused to come back to rectify the works [8] Eco Projects said the rectification works were performed on 17 December 2013. A tax invoice was presented to QCP to pay for the rectification works and for payment of repairs to the damaged frames. -- 2 of 4 -- THE EVIDENCE [9] Eco Projects provided photos to the tribunal of the defective works and damaged frames. The photos clearly show plaster works that required some rectification, some minimal finishing off, and the damaged window frames. Eco Projects state that the window frames were scratched due to the plaster contractors sanding too close to the frames. The photos seem to support that contention. The cost of the paint repairs to the window frames was $792.00 and evidence by tax Invoice from “Window Revival” dated 6/12/2013. [10] Eco Projects provided itemised invoices from “Jason Swanson Painting & Decorating” for the repainting of walls due to defective plastering works and rectification of the bulk head due to defective plastering. Those invoices are $792.00 and $110.00 respectively. [11] In order to obtain any order for the cost of the rectification works the applicant would need to prove that the works were defective, were not completed and that the said rectification works were necessary and have in fact been performed. In my view this has been proven. [12] Eco Projects contracted with QCP to professionally undertake the plastering works at this property with a high quality of workmanship and with skill and due diligence. Eco Projects allege that the property was a large prestigious property and was more than a two million dollar project. Eco Projects claim that the terms and conditions of contracting with QCP were based on them providing the highest quality of work and skills, and this was not provided. [13] QCP claims in the statement of Mr Nicholas Byrne from QCP that they should not be responsible for any payment for rectification works and that the issues with the project relate to “poor project management and failures to process payments of invoices”. [14] QCP stated that they provided labour only to the job and would supply time sheets with weekly invoices for payment. QCP state that that Eco Projects were to project manage the works and filed to do so. QCP allege that Eco Projects “demanded that QCP perform work at the dwelling house not to code.” [15] QCP state that on 4 December 2013 Eco Projects contacted them and instructed them to return to site for further patch work caused by other tradesmen under the instruction of Eco Projects. QCP said they would not return to site to perform any further works until outstanding invoices were paid. QCP agree that Eco Projects agreed to pay $1000.00 of the outstanding account with approximately $600 still owing. [16] QCP said they checked their account the next day (5/12/2013) and the funds had not been transferred. They then refused to return back to site until paid. QCP said that Eco Projects queried why they had not returned back to site after the payment was made. QCP told them they had not received the funds. It is alleged that Eco Projects told QCP not to return back to site and they would arrange for another contractor to complete the plastering works and rectify the damages. [17] The Respondent did not appear at the hearing of this matter. Upon being satisfied that he had notice of the hearing I determined to proceed in his -- 3 of 4 -- absence. I nevertheless had regard to matters raised previously in his response, a statement and attachments filed on his behalf. [18] I am satisfied that the evidence supports a finding that the plastering works were not completed and some of the works were defective. I find that the damage to the window frames was caused by QCP contractors and the photos and evidence suggest the scratches and marks are consistent with sanding back of the plaster. I am not satisfied that other contractors employed by Eco Projects caused the damage and that QCP cannot shift the blame for the damage to other contractor that may have been onsite. [19] In an unfortunate turn of events the parties in this case fell out over an outstanding invoice for approximately $1500.00. This was a small matter considering the total funds paid by Eco Projects to QCP for the total project cost of more than $74,000.00. I find that QCP should have returned to rectify the defective works, so painting could proceed, and should have taken responsibility for the minor damage sustained to the frames. In the circumstances I accept that the evidence of Eco Projects, that they were required to have the defects and repairs completed as “the client was an architect who worked in Brisbane, the project was massive, a prestigious property in Tugun and he noticed the defects and wanted them fixed.” I agree with Eco Projects on this point. [20] In light of the large amount paid to QCP, in my opinion, to go back to the site and to rectify the small matters raised by Eco Projects was more than a fair and reasonable request in the circumstances. It would have also provided QCP with an opportunity to mitigate their losses as they could have rectified the defects for minimal cost and effort. For whatever reason they refused to return. I find the evidence supports Eco Projects contention that they had paid QCP the total outstanding invoice of $1540.00 with proof of those payments with NAB receipts for two payments, one of $1000.00 on 4/12/2013 and the last payment of $540.00 paid on 29/12/2013. [21] In the circumstances I am satisfied and find that it is a fair and reasonable decision that QCP pay to Eco Projects the sum as claimed by them for rectification of the minor defective works, plus the cost of the repairs to the window frames and the clean up cost and administration fee. The invoice is for $2235.50 and I order that it be paid in full together with the filing fee of $285.00, the total amount being $2520.50, ORDER 1. That the Respondent must pay to the Applicant the sum of $2520.50 within seven days. -- 4 of 4 --