BestLay Pty Ltd v Brisbane Construction Group Pty Ltd [2013] QCAT 597

CITATION: BestLay Pty Ltd v Brisbane Construction Group Pty Ltd [2013] QCAT 597 PARTIES: BestLay Pty Ltd (Applicant) v Brisbane Construction Group Pty Ltd (Respondent) APPLICATION NUMBER: BDL184-13 MATTER TYPE: Building Matters HEARING DATE: 27 September 2013 HEARD AT: Brisbane DECISION OF: Member McLean Williams DELIVERED ON: 6 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The respondent is to pay to the applicant the sum of $7,649.48 within 28 days of the date of these orders. 2. The applicant is to rectify the garage slab and to fix the slab under the front bedroom wall at Lot 105 Silverwattle Drive at Jimboomba at no further cost to the respondent within 28 days of the date of these orders, or such further period as may be agreed between the applicant and the respondent in writing. APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Mathew Best (director) RESPONDENT: Mr Carl Graham (director) REASONS FOR DECISION [1] The applicant in this matter is Bestlay Pty Ltd, a corporate entity under the control of Mr Matthew Best. Mr Best is a concreter in the building construction industry. -- 1 of 5 -- 2 [2] The applicant commences this claim before QCAT seeking the sum of $13,181.50 from the respondent, Brisbane Construction Group Pty Ltd, a house construction and general building company operated by Mr Carl Graham. [3] On or about 20 April 2013, Bestlay and the Brisbane Construction Group entered into an agreement for the preparation and pouring of a new house slab, at Lot 105 Silverwattle Drive, at Jimboomba. The applicant commenced works at Lot 105 on 22 April 2013, and the job was essentially complete by 13 May 2013. [4] On 20 May 2013 Bestlay provided Brisbane Construction Group with an invoice for an amount of $33,181.50, inclusive of GST. On 28 June 2013 Brisbane Construction Group paid the sum of $20,000.00, yet took issue with some of the further charges, although it did acknowledge that some monies were probably still owed to Bestlay. Factual Background [5] In about April 2013 a Mr Reoz Cy Taurua, an industry associate who operates another concreting business under the guise of “Tommy T Concreting”, contacted Mr Matthew Best, who is the sole director of Bestlay Pty Ltd. [6] Mr Taurua told Mr Best that he often performed concreting jobs on behalf of Mr Carl Graham and the Brisbane Construction Group, yet on this occasion he was unable to take on the job, such that he wished to refer the job to Bestlay. Mr Best advised Tommy T that he would have a discussion with the Brisbane Construction Group, and would be able to provide concreting services for them at a competitive rate. [7] Mr Best says that an agreement was then struck between himself and Mr Graham on about 20 April 2013 to pour the house slab at Lot 105 Silverwattle Drive at Jimboomba, on the basis of the Brisbane Construction Group paying 110% of the costs incurred by Bestlay for the supply of materials and plant, and 120% of the costs incurred by Bestlay for the supply of labour, all exclusive of GST. Other than that, Mr Best says that there were no discussions in relation to fixed daily rates, or indeed any discussions in which the Brisbane Construction Group offered to supply items of plant. [8] Mr Best says that works commenced on 22 April 2013 and that these were concluded by 13 May 2013. Mr Best says that the initial site cut was of a poor standard, such that Bestlay then had to do a lot of further digging and other preparation works in order to box up the slab. Mr Best also says that there were difficulties caused by inadequate set-outs, in order that the slab could be sized and positioned on the site correctly. Then, on 10 May 2013 Mr Best had a discussion with Mr Graham as to when the slab should be poured. Mr Best recommended against pouring the slab on 11 May (a Saturday), because rain was forecast for that day and because overtime rates would be applicable with respect to labour. Despite that, -- 2 of 5 -- 3 Mr Best says that Mr Graham insisted that the slab be poured on Saturday 11 May, as the house frames were already on site, and he wanted to start erecting these on the following Monday (13 May 2013), such that he was prepared to accept the risk of rain, and any degradation in the quality of the slab that may arise as a consequence of that. [9] Mr Best says that he proceeded to pour the slab on Saturday 11 May, yet as predicted, it rained, and very heavily. Because concrete batching plants close early on Saturdays, partway through the pour Mr Bests says he had to order extra concrete in order to avoid the risk that he would run out of concrete before the batching plant was closed. By the time the slab was completed there was however as much as 5.8 cubic metres of concrete left over. Although Mr Graham had previously said that any excess concrete might be used as the basis for the footing for a block wall that was to be constructed by him subsequently, this was unable to be done on the day because there were no starter bars available to commence the footing. In the result, the excess concrete was not able to be utilised, and was just wasted. The heavy rain meant that there were inordinate problems in perfecting the slab, and Bestlay‟s men did not leave the site until 8pm that evening. Mr Best says that the slab was completed to the best possible standards, given the weather conditions, yet he does acknowledge that the slab is not as good as it could have been, had it not rained during the pour. [10] Mr Best also concedes that there were some other minor defects, and that these needed to be rectified, by him. He says that on 16 May 2013 he and Mr Graham inspected the slab and that Mr Graham noted that the rebates at the front of the slab required cutting down. Mr Best agreed that the rebates required cutting down, and these were rectified in accordance with Mr Graham‟s instructions. After that, Mr Best provided his invoice for $33,181.50 (on 2 June 2013) yet the full amount of this has still not been paid by the Brisbane Construction Group, who now dispute that they should be required to pay as much as that. [11] At the hearing before the Tribunal Mr Best explained that the additional costs in the invoices presented by him included the additional labour that was required and some further costs to hire some machinery including a plate vibrator and two troweling machines. Mr Graham is unhappy about that, because Tommy T Concreting has always provided his own machines, and at no extra cost to him. [12] On 28 June 2013 the applicant received a cheque for $20,000.00 from the respondent in payment of the invoice dated 2 June. On 2 July 2013 Mr Graham wrote to Bestlay disputing the amount of the invoice and pointing out that a number of “unnecessary extra costs” had been passed onto the Brisbane Construction Group. [13] Mr Carl Graham is the sole director of the Brisbane Construction Group Pty Ltd. Although the applicant says that the agreement it had with the respondent was for the respondent to pay 110% of material and plant costs and 120% of the costs incurred for the supply of labour, Mr Graham -- 3 of 5 -- 4 refutes this, and says that his standard agreement with his usual concrete contractor, Tommy T Concreting, was for him to pay 110% of the cost of materials plus a daily rate of $450 per day for labour. Mr Graham says that he always presumed that because Tommy T had arranged for Bestlay to do the job in their stead, that the same arrangements that applied in the case of work given by him to Tommy T Concreting would also apply, in the case of work performed by Bestlay. [14] Although I accept that this may have been the arrangement between the Brisbane Construction Group and Tommy T Concreting, I am not prepared to transpose any agreement with that entity to the case of a separate agreement entered into between Bestlay Pty Ltd and the Brisbane Construction Group, without clear evidence that Mr Best understood that he was contracting on exactly the same terms as Tommy T. There is no evidence of that, and Mr Best rather pointedly denies it. Both parties are at fault for not having reduced the terms of their arrangement to writing. Despite that, it is now the case that a slab has been laid by the Applicant on behalf the Respondent, and the Respondent should be required to pay the fair and reasonable cost of it, as assessed on a quantum meruit basis. [15] Mr Graham says that there was a discussion about conducting the concrete pour on a Saturday, and that it was he who had raised the concern that it was likely to rain. Mr Graham says that he was then however assured by Mr Best that the rain would not be a problem, as Bestlay would use plastic sheeting to protect the slab, in the event of rain. Further, Mr Graham says he raised a concern about his needing to pay penalty rates, yet again Mr Best assured him that this would not be a problem, as he would „speak to his concrete rep and get the penalties removed‟. Mr Graham was particularly concerned that so much concrete (5.8 cubic metres) was left over (effectively an entire truck load), as a professional concreter ought to be able to calculate how much concrete is required for a job, to within a couple of wheelbarrow loads. [16] At the end of it, it would seem that Mr Graham has proceeded on the basis that he was still contracting with Tommy T Concreting, and that Mr Best was performing the job as a sub-contractor to Tommy T. I cannot accept that contention, given that the Brisbane Construction Group has received invoices from Bestlay and has paid some of these, and negotiations about arrangements for the job appear to have been with Mr Best rather than Mr Taurua. In the event that this was a true case of subcontracting with Tommy T, then one would expect that the invoices received by the Brisbane Construction Group for this job would have come from Tommy T and not from Bestlay, yet this is not the case. [17] It seems clear to me that there has been some confusion in the agreement between Mr Best on behalf of the applicant and Mr Graham on behalf the respondent. It now falls to the Tribunal to determine what is a fair and reasonable outcome in all the circumstances. There are some aspects of the job performed by Bestlay which are clearly inadequate, and which will still require rectification. In parts, the slab is too short because Bestlay did not apparently measure correctly. Even notwithstanding asserted -- 4 of 5 -- 5 problems with the initial set outs for the slab, these are properly matters that need to be rectified by Bestlay and they should now be rectified at no expense to the Brisbane Construction Group. [18] In relation to the extra costs, I determine that because the respondent agreed to proceed with the pour on a Saturday he thereby agreed - by necessary implication - to wear any extra costs (such as overtime for labour, or keeping the batching plant open) that arose as a result of that. So too, the respondent must ultimately wear the risk of extra costs arising as a result of rain, as well as for the slab being of a lesser quality than would have been the case had it not rained. The Applicant should nonetheless still be required to rectify any difficulties arising as a result of the slab being too short, and at no further cost to the applicant, as this problem cannot be attributed to the weather and is a matter that relates to the competence of the concreter. [19] In relation to the applicant‟s contention that he was providing plant and materials at cost plus cost plus 10% and labour at cost plus 20% I find that to be a generally reasonable market rate, and I allow it, on a quantum meruit basis. [20] In my view, the respondent is correct in his contention that any reasonably diligent concreter should be able to measure and order quantities of concrete so as to minimise waste, and unnecessary expense. On a job the size of this one, an acceptable excess of concrete should be no more than a few wheelbarrows, at most. The Brisbane Construction Group should therefore not be required to pay for 5.8 cubic metres of excess concrete, an enormous amount, which is clearly a calculation error on the day of the pour, by the applicant. Certain remediation costs have also been incurred by the respondent, for masonry cutting, removal of concrete edges, the installation of termimesh, etc. Although the respondent contends that his extra costs are now as much as $8,425.74, I find that the extra costs to the respondent should be confined to items 1 – 5 (inclusive), and item 8 in the items claimed by the respondent, in his statement of response to the applicant‟s claim. This amounts to $5,817.02. That sum should now be deducted from the applicant‟s claim for $13,446.50 (which is the sum claimed by the applicant plus the $285 QCAT Filing Fee). [21] In light of the foregoing I determine that the respondent should pay to the applicant the sum of $7,649.48 within 28 days of the date of these orders. In addition, the applicant is ordered to rectify the garage slab (which is 200mm too short) and to fix the slab under the front bedroom wall at no further cost to the respondent, within 28 days of the date of these orders, or such further period as may be agreed, in writing, as between the applicant and the respondent. -- 5 of 5 --