Davey v Findlay Trading Pty Ltd trading as Spanline Home Additions Wide Bay [2013] QCAT 453

CITATION: Davey v Findlay Trading Pty Ltd trading as Spanline Home Additions Wide Bay [2013] QCAT 453 PARTIES: Geoffrey Brian Davey and Jacqueline Anne Davey (Applicants) v Findlay Trading Pty Ltd trading as Spanline Home Additions Wide Bay (Respondent) APPLICATION NUMBER: BDL282-11 MATTER TYPE: Building matters HEARING DATE: 12 July 2013 HEARD AT: Bundaberg DECISION OF: Graham Quinlivan, Member DELIVERED ON: 6 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondents will pay to the Applicants within 14 days the amount of $6,876.00 CATCHWORDS: BUILDING MATTERS - Terms of agreement APPEARANCES and REPRESENTATION (if any): APPLICANTS: Geoffrey Davey and Jacqueline Davey RESPONDENTS: Findlay Trading Pty Ltd represented by Greg Findlay and Leanne Innes REASONS FOR DECISION [1] Geoff and Jacqueline Davey own a property at 51 Bisdee Street, Coral Cove, Qld. In October 2009 they engaged Mr John McGrath, a design assessor to arrange for the supply and installation of a screened room for their home. -- 1 of 5 -- 2 [2] Mr and Mrs Davey emphasised in their initial discussions that the posts and rails in the screened room had to be black to match their residence. They claim that Mr McGrath agreed that this could be done and black powder coated posts and rails could be supplied. [3] After some further negotiations regarding extra costs to install the black posts and rails, Mr and Mrs Davey signed a “Minor Works Contract” on 15 October 2009 with Findlay Trading P/L. [4] Greg Findlay on behalf of Findlay Trading P/L says that powder coated posts and rails were only available in white or cream in Bundaberg at that time. Mr McGrath was directed to inform Mr and Mrs Davey that if they wanted black posts and rails then they would have to be painted. This would involve an additional payment of $1,000. The parties agreed to split the cost and this was then reflected in the final quote. The price for the works was $23.093.00. [5] The room was constructed and practical completion was achieved around February 2010. [6] In their application Mr and Mrs Davey sought rectification of the works performed by Findlay Trading P/l and an award of costs. Subsequently in their Statement of Evidence they sought to have their roof repaired by a professional plumber and to have the defective posts and rails replaced with a powder coated aluminium product. [7] In their response Findlay Trading P/L sought that they be ordered to repair the leak, that there be no rectification or replacement of the existing structure and that there be no award of costs to the respondents. [8] On 28 February 2012, a representative of the Queensland Building Services Authority, Daniel Stephenson conducted a site inspection in the presence of Mr and Mrs Davey and Mr Findlay. [9] A report from Mr Stephenson made the following observations:  In the rear entertainment area, a water drop was present on the finished surface of the ceiling above the aluminium sliding door prior to any water testing;  After water testing on the roof surface water leaked to inside the rear entertainment area in 2 locations where the patio roof structure abuts the dwelling existing metal fascia;  The aluminium support posts and mullions have a paint system applied to the finished surfaces;  A majority of the aluminium members have signs of oxidisation between the paint system and the raw aluminium finish. -- 2 of 5 -- 3 [10] Based on these observations Mr Stephenson found that the leaks were considered to be defective and that the problem with the aluminium posts and rails was, at that time a cosmetic defect, but overtime the oxidisation issue would affect the structural adequacy of the aluminium support posts and rail members. What Happened? [11] Mr and Mrs Davey contend that shortly after practical completion in February 2010, the roof of the room started to leak. Mr Findlay attended on a number of occasions “with a tube of silicon” but inevitably the roof started to leak somewhere else. [12] In January 2011, Mr and Mrs Davey advised Findlay Trading P/L that 2 rails were blistering. Findlay Trading P/L replaced these immediately at no cost to them. [13] In June 2011 Mr and Mrs Davey advised Findlay Trading P/L that, less than 18 months after practical completion, more posts and rails were blistering and starting to oxidise. At this point Mr and Mrs Davey allege that Mr Findlay advised them that their warranty had run out and they were no longer covered. [14] They also claim that it was at this point that Mr Findlay told them that he had advised them at the time of practical completion that they should use “Penetrol” on the posts and rails to stop them from blistering. Further Mr Findlay is alleged to have confirmed that the posts and rails were not powder coated and as a result the warranty was void. [15] Attempts were made by the parties to determine the cost of repairing the leaks and repairing the posts and rails. Mr and Mrs Davey obtained quotes to fix the leaks from 3 plumbers during May/June 2012. Those quotes were for $1,320.00, $1,876.60 and $2,085.85, all inclusive of GST. [16] Mr and Mrs Davey could only obtain one quote from a painter to coat the posts and rails for $7,500.00. Two other painters advised that in their opinion the paint had failed and an acceptable job could not be done because the aluminium should have been powder coated. [17] Mr and Mrs Davey also obtained two quotes the replace the posts and rails with powder coated aluminium. The two quotes appear to be from the same company and are for the same amount of $7,500.00. [18] Findlay Trading P/L acknowledged throughout the proceedings that they had some obligation to rectify the situation. In their submissions of 7 December 2012, they suggest that they were prepared to accept two quotations to repair the leak and complete re-painting to the total value of $4,000.00. [19] Mr Findlay regards himself as an expert in the area of coatings based on 34 years experience in the coatings industry and his years of practical -- 3 of 5 -- 4 construction experience. He confirmed this opinion of his expertise in his oral evidence. [20] Consequently Mr Findlay assessed the various quotes provided by Mr and Mrs Davey and dismissed them as excessive or unacceptable. It is apparent from his own written statements that Greg Findlay has had a considerable influence in relation to preparation of the quotes provided by Mr and Mrs Davey. [21] In relation to the repair of the posts and rails, Mr Findlay submits that: “Powder coating is not the answer to halting oxidisation or corrosion. Regular maintenance is. Low maintenance is not no maintenance and the salt environment presents an additional issue to be taken into account”. [22] Therefore Findlay Trading P/L seek to rely on condition 13.3 of the Minor Works Contract which says that the Contractor is not responsible for rectifying any alleged defects arising from a failure of the owner to do proper maintenance. They claim they have done everything to the best of their ability to comply with Mr and Mrs Davey’s requests within reason. [23] In his oral evidence, Geoff Davey acknowledged that his home was about ¾ to 1 km from the beach. He claimed that he had maintained the room by hosing it and cleaning it down on a fortnightly basis when he mowed the lawns. He said he did so more regularly in summer but admitted that he didn’t go round and polish it. The Outcome [24] When Mr and Mrs Davey entered into the contract to build the room onto their house that had expectations that they would get what they paid for. In particular that wanted a room that matched the rest of the house. It was necessary to negotiate with Findlay Trading P/L to get the terms of the agreement settled. They were entitled to get what they paid for. Initially they were very pleased with the finished product and pointed out that Greg Findlay took photos of the room and entered them in a competition. [25] The problems started when the leaks developed and the coatings on the posts and rails started to deteriorate. Mr and Mrs Davey say that they regularly maintained the posts and rails. Findlay trading P/L imply that they either didn’t do the maintenance properly or at all. There remains a question as to whether powder coated posts and rails would have avoided that aspect of the dispute. [26] There does not appear to be a substantial disagreement about whether the leaks in the roof need to be repaired. Unfortunately the ongoing dispute means that any level of co-operation between the parties has long ago ceased and as a result the only outcome possible will be to determine a monetary solution. [27] With respect to the leaks in the roof, the quotes range from $1,320.00 to $2,085.85. I have determined that the middle quote of $1,876.60 is a -- 4 of 5 -- 5 reasonable amount to be paid by Findlay Trading P/L to assist in the rectification of this aspect of the claim. [28] With respect to the rectification of the posts and rails, the evidence consists of two options. The first is a quote of $7,500.00 to re-paint the damaged areas but without any guarantee because the outcome will eventually breakdown. The second was a quote of $7,500.00 to remove and replace existing outdoor screen enclosure. Neither of these quotes was acceptable to Findlay Trading P/L and no other option was proposed. I find that on the basis of the evidence provided that a figure of $7.500.00 is a reasonable amount to repair the damage. [29] I have taken into account the evidence and arguments raised about maintenance of the posts and rails and I have formed the view that on the balance of probabilities the level of maintenance performed was not sufficient to fully protect the posts and rails given the property’s location and environment. However I am not satisfied that given the Mr Findlay claims to be an expert in the field of “coatings” it was reasonable for Mr and Mrs Davey to expect reasonable advice from him regarding the use of Penetrol to supplement the maintenance required. I am not satisfied that this advice was given. [30] There for I have determined that Findlay Trading P/L should be responsible for 2/3 ($5,000.00) of the estimated cost of the repairs. [31] Mr and Mrs Davey have also sought an order for costs in an amount of $1,087.00 made up as follows: QCAT Application fees $265.00 Building Report $250.00 Solicitor Fees $572.00 [32] The Tribunal has regularly had cause to consider the question of whether it is appropriate to award costs to a party in proceedings. Tribunal President Wilson has observed “(u)nder the QCAT Act, the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100”1. [33] I find nothing in these proceedings that points compellingly to a costs award and do not propose to make such an order. [34] The order of the Tribunal will be: The Respondents will pay to the Applicants within 14 days the amount of $6,876.00. 1 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [29]. -- 5 of 5 --