Corden Homes Pty Ltd v Mitchell [2013] QCAT 210

CITATION: Corden Homes Pty Ltd v Mitchell [2013] QCAT 210 PARTIES: Corden Homes Pty Ltd (Applicant) V Ms Marie Mitchell (Respondent) APPLICATION NUMBER: BDL028-11 MATTER TYPE: Building matters HEARING DATE: 20 September 2012 HEARD AT: Brisbane DECISION OF: Mr Jim Allen, Member DELIVERED ON: 16 May 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Corden Homes Pty Ltd is ordered to pay Ms Marie Mitchell the amount of $60,202.60 within 28 days CATCHWORDS: Building Dispute – defective building work – unauthorised variations by builder – damages for failure to comply with contract specifications Bellgrove v Eldridge (1954) 90 CLR 613 APPEARANCES and REPRESENTATION (if any): APPLICANT: Corden Homes Pty Ltd was represented by Dr Crane, consultant with Gadens lawyers. RESPONDENT: Ms Marie Mitchell was self-represented. REASONS FOR DECISION [1] Corden Homes constructed a dwelling for Ms Mitchell at 5 Grand Canyon Drive, Springfield Lakes. The contract was entered into by the parties on 1 July 2009 and a practical completion inspection occurred on 12 July 2010. Ms Mitchell had raised a number of concerns in regards to the construction as early as 12 May 2010 and, following practical completion, a series of further issues were raised and attempts made by Corden -- 1 of 25 -- 2 Homes to deal with them. There were a number of complaints made to the Queensland Building Services Authority concerning defective and/or incomplete work. On 20 January 2010 Ms Mitchell gave a list of maintenance items to be attended in accordance with the 6 month defects period under section 24 of the contract. On 7 February 2010 Ms Mitchell notified Corden Homes that it was in substantial breach of the contract because it had not rectified the defects and also for breaches of section 33 in regard to unsuitable materials and work not being carried out in an appropriate and skilful way. Corden Homes requested particulars of the breaches and Ms Mitchell attempted to provide these. In an email of 16 February 2010 Corden Homes advised they had instructed their solicitors to file an application in the Tribunal as their position was there was no contractual support for the breach notice. [2] The initial application by Corden Homes had been filed on 15 February 2010 and sought a declaration that Corden Homes was not in breach of clauses 24 (defects), 25.1 (substantial breach), 33 (warranties) and that Ms Mitchell is not entitled to terminate the contract pursuant to clause 25.4 (termination for failure to rectify substantial breach). [3] Following the advice that an application had been filed in the Tribunal, on 16 February Ms Mitchell advised Corden Homes’ solicitors that she would withdraw the notice to show cause. Ms Mitchell was advised by Corden Homes’ solicitors by email again on 16 February 2010 that the matter was before the Tribunal and that they did not intend to engage in further correspondence with her and recommended that she engage a solicitor. [4] It was agreed by the parties that the original application would be dismissed by consent with issue of costs to be reserved. Having regard to the fact that the show cause notice had been withdrawn as early as 16 February 2010 there was no other order to be made. [5] The parties also agreed at the hearing that the turnkey specifications and scope of works formed part of the contract and not the schedule referred to in Ms Mitchell’s email to Corden Homes of 9 May 2010. [6] Ms Mitchell filed a counterclaim against Corden Homes alleging, amongst other things, that there were various defects and incomplete work in respect of the dwelling as constructed. The contract general conditions in clause 33 contain warranties which reflect the Domestic Building Contracts Act 2000 in particular in that the works will be carried out in an appropriate and skilful way and in accordance with the plans. The items alleged by Ms Mitchell are partly taken from a report prepared by Mr Des Salmon, Ms Mitchell’s expert, and partly from quotes provided by Mr Thomas Esprester of ESP Developments (Aust) Pty Ltd. Mr Esprester provided quotes in respect of the work identified by Mr Salmon and also other defects and incomplete work identified by Ms Mitchell and her partner Mr Johnstone, who is a tradesperson himself. During the course of her ongoing issues with Corden Homes, Ms Mitchell appointed her spouse, Mr Ashley Johnstone to represent her so although reference may -- 2 of 25 -- 3 be made in these reasons to Ms Mitchell, the action may have been taken on her behalf by Mr Johnstone. [7] Corden Homes submitted a report from its expert Mr John Groom in response to the reports from Ms Mitchell. The Tribunal convened an experts conclave and a joint experts report1 was produced. In accordance with Tribunal practice direction2 the joint report is taken to be the experts statement of evidence and an expert may not, without the Tribunal’s leave, contradict, depart from or qualify an opinion about an issue the subject of agreement in the joint report. An expert may submit a further statement of evidence which relates to areas of disagreement in the joint report. [8] The joint report was based on Mr Groom’s report which dealt with the work identified by Mr Salmon, identified by a DS designation and Mr Esprester, identified by a TE designation. For convenience the same designations will be used in the Tribunal’s reasons for decision as follows. DS1 - External cladding [9] The plan states weatherboard cladding-specification refers to the plan. Installed is a plain finish board that appears to have been imported. This board does not have straight lines, extensive areas are damaged and joins are incorrectly fitted. Cost to rectify $20,240.00. [10] The experts agreed that:- a) The plans signed by the owner as contractual drawings specify “weathertex” sheeting. b) The working drawings approved by the Building Certifier show “Weatherboard Cladding”. c) There are no structural or performance differences between these types of boards. The difference is aesthetic and the imported board is likely to be cheaper. d) The cladding has defects to the finish, sealing and cracking. An estimate of approximately 24 man hours to affect the currently installed cladding excluding painting, scaffold and materials. e) Cost to rectify by third party $3,010 and $600 high access excluding GST. [11] Corden Homes have accepted this defect and agreed3 to allow an amount of $3,007.27 excluding GST to scrape out all defective no more gaps refill and repaint all weatherboards including scaffold hire. This is predicated on 1 Exhibit Joint experts report dated 29 March 2012. 2 Practice Direction No 4 of 2009. 3 Exhibit 7 – Compendium of Quotes to rectify defects dated 19 September 2012. -- 3 of 25 -- 4 the Tribunal accepting that the weatherboards supplied are compliant with the contract. [12] At the hearing Mr Salmon noted that the plans attached to the contract specified Weathertex cladding. The question then is was this the house as in the plans, or an agreed variation. But there was no agreed variation and if there was a change it was unapproved. The approved plans show a change to Weatherboard cladding. It was stated to Ms Mitchell that she did not know what the difference was, (between Weathertex and weatherboard) until Mr Johnston came along. It was not on behalf of Corden Homes that a certificate of practical completion was issued and that of the items which were noted as requiring attention, it was only repairs to the external cladding in several places. Ms Mitchell stated that the final payment was made in protest and that a list of maintenance items was supplied. She considered that she was entitled to compensation, being the difference between the cost of Weathertex and board used. [13] Ms Mitchell provided quotes from Mr Edward Heard4 in respect of the work to be performed. Mr Heard quoted $37,550 to remove the entire existing wall cladding and replace it with new Weathertex (200mm). He stated that the 210mm imported cladding boards currently installed are not able to be matched. Replacement of the numerous damaged cladding and improperly nailed boards would require machining a completely different cladding product, which when installed would not match the currently installed boards or be cost effective. The unsuitable sealant material used to externally seal the boards has been extensively used not only at the cladding ends, but also between the boards. It is impossible to remove all the installed sealant material. The price includes replacing timber stops, Zincalume window flashing and supplying scaffolding to comply with workplace health and safety requirements. [14] Mr Correnti stated at the hearing that weathertex is a generic term a standard in softwood. He said he couldn’t confirm the cladding board personally and that the difference is aesthetic. The product that Corden Homes imports has higher properties to meet Australian standards. The company has built 924 houses and Ms Mitchell paid $186,400 for her house. The product was used elsewhere without issue in 10 homes. Mr Correnti did agree that the carpenter had installed it poorly and the company will pay a fair price. They had never had to replace the entire cladding on a house before. [15] Mr Correnti stated that the cladding was a fibre cement product from China and that he was the importer of it. That it was at a reduced cost to Weathertex and that Mr Groom had the specifications. [16] There are two separate issues in regard to the cladding. Firstly whether or not the work is defective and then, whether it conformed to the contract. The experts have agreed on the question in regard to defects and if there were no contractual issues then that would be the end of the matter. Here 4 Exhibit 6 – Quote from Mr E.W. Heard dated 17 July 2012. -- 4 of 25 -- 5 though, the plans specified that the cladding would be Weathertex and during the course of having the final plans prepared that was altered to weatherboard. The house has been clad with a weatherboard product described by Mr Correnti as fibre cement and the experts have noted that the difference between this product and Weathertex is mainly aesthetic and there would be a cost saving. [17] The Tribunal considers that the requirement that the cladding be Weathertex was a term of the contract as the plans which specified same were deemed to be part of the works by the contract. There was no agreed variation to this term and in fact, Ms Mitchell may not have been aware of it until it was pointed out to her by Mr Johnstone. This in no way diminishes her contractual entitlement. [18] Ms Mitchell is entitled to have her house built in accordance with the contract and therefore the house should have been clad in Weathertex.5 The measure of damages “…is the difference between the contract price for the work or building contracted for, with the addition in most cases, of the amount of profits or earnings lost because the breach”.6 There is a qualification that the work be necessary and reasonable. To enable the conformance with the contract it is necessary that the current cladding be removed and that new Weathertex cladding be installed and the walls be painted. It is noted that the cladding work done, using the original cladding, was done poorly and this was acknowledged by Mr Correnti, so there is already work required to be done. In these circumstances Corden Homes has received a benefit from an unapproved variation and the house has been clad in product of a lesser quality. The Tribunal is satisfied that it is reasonable to allow Ms Mitchell the cost of recladding the house in Weathertex and the consequential repainting. The claim is allowed in the amount of $40,858.00 including GST. DS2 – The Bottom plate [19] The bottom plate overhangs the concrete slab by up to 40mm, being structurally inadequate. This is to 3 areas at the entrance and front north side. Also, because of this the bottom external board cannot be attached to the plate. Cost to rectify $2,940.00. [20] The experts agreed that:- a) The overhang to the front entry and north of the front entry is category 1 defective as the frame is overhanging the slab excessively when compared to the tolerances allowed under the Building Code of Australia. b) The bottom board is adequately attached to the plate as the plate is overhanging the slab. This is not defective. 5 Bellgrove v Eldridge (1954) 90 CLR 613. 6 Bellgrove supra. -- 5 of 25 -- 6 c) The details will have to be designed by an engineer and certified before costing can be established. [21] Corden Homes have accepted this defect and allowed an amount of $900.00 excluding GST to rectify it with a preliminary engineering drawing included in the compendium. [22] Mr Heard’s quote to supply and fit as per engineers inspection and design a 900mm x 20mm galvanised steel plate to the three walls, where the bottom plate overhangs the concrete slab, remove the entry concrete path to allow access to garage wall slab to fit plate and bolts, reinforce and reconcrete entry path and exposed aggregate, remove and replace entry downpipe to allow access to entry wall slab to fit plate and bolts is $4,400. It is noted that termite protection may be required at an additional cost. A separate quote was obtained from Structerre in the amount of $1,045 to assess design and inspect the engineering detail for the bottom plate rectification. An invoice from Auspacific Engineers Pty Ltd in the amount of $500.50 including GST was provided for rectification detail of the overhanging bottom plate. [23] The experts noted that the details will have to be designed before the Tribunal will accept the quote form Auspacific, which is the lower of the two quotes provided by Ms Mitchell for design of the works. The work which Mr Heard has quoted appears to be significantly more than that contemplated by the experts in regard to the concrete path and downpipe. The Tribunal will allow the amount which set out as the third party quote by Mr Groom in the amount of $990.00 including GST. The total then to be allowed is $1,490.50 including GST. DS3 – paint on window and door frames [24] The experts agreed that there is paint on the window and door frames due to a lack of care during painting. This applies to both internal and external areas. This is category 2 defect generally. The cost to rectify by a third party builder was $400 excluding GST. [25] Corden Homes have accepted the defect and allowed an amount of $400 excluding GST to rectify it. [26] Mr Heard provided a quote in the amount of $1,100 to remove paint on all internal and external window and door frames. [27] The Tribunal accepts the amount that was agreed by the experts in regard to this defect and an amount of $440 including GST will be allowed. The component for external work will go towards the cost of painting the recladded house. DS4 – Windows [28] On installing window flashings the aluminium has been scratched. Cost to rectify DS3 and DS4 $1,310.00. The experts agreed that this can be -- 6 of 25 -- 7 rectified by cut and polish during cleaning costs included in item DS3. Corden Homes accepted this defect and the costs. [29] Mr Heard provided a quote in the amount of $300 to repair the scratches on windows. [30] As the experts agreed that there would be no additional amount for this item while the defect is accepted, there will be no amount allowed. DS5 – Concrete around steel columns [31] The installation of concrete around steel columns while carried out the ground has been dug lower than surrounding areas allowing water to lay/pond at the foundations. Cost to rectify $495.00. [32] The experts agreed that:- a) Levels and falls around cannot allow ponding of water around the base of the columns and therefore must be filled with soil. b) Four column footings identified. c) Install compact clay consistent with the soil on the site. d) Costs for third party builder $15 excluding GST. [33] Corden Homes have accepted this defect and allowed an amount of $15 excluding GST for rectification by a third party builder. [34] Mr Heard quoted an amount of $1,800 to remove and replace concrete around the base of the columns to allow water to run-off away from the columns and fill surrounding column areas with required clay material and compact. [35] The quote of Mr Heard is not in conformance to the work agreed by the experts. The claim will be allowed at the cost agreed by the experts of $16.50 including GST. DS6 – Retaining wall near steel columns [36] To install the concrete around the steel columns, the owner was required to remove a completed retaining wall. The wall is now required to be rebuilt. Cost to rectify $3,500.00. [37] The experts agreed that:- a) The owner was required to remove the retaining wall sleepers attached to the columns installed by the builder due to the builder being required to put cappings on the concrete footings to the base of the columns. -- 7 of 25 -- 8 b) The retaining wall installed by the owner would have required certification and would therefore not have complied with the Building Act. [38] Corden Homes does not accept any liability in regard to this retaining wall. It is said to be an owner installed non-complying structure that threatened the integrity of the engineer approved foundations. Corden Homes does not believe that it should be forced to re-install a non-complying structure. A quote for the re-installation of the retaining wall was obtained by Corden Homes in the amount of $895 including GST. [39] Ms Mitchell stated at the hearing that Corden Homes did defective work which required removal of the retaining wall for inspection and if the work had not been defective, the retaining wall would not have needed to be removed regardless of whether it was compliant or not. She stated that she had a compliance certificate design Form 15 from Knunet Kateri dated 28 January 2012. [40] Mr Correnti stated that Ms Mitchell had taken ownership of the work and changed the profile of the ground. He said that Corden Homes would not pay for Ms Mitchell’s defective work. That the wall was 5 planks high and it used the houses post as support and this pre-loaded the columns and exposed them to risk. [41] Mr Heard quoted an amount of $5,475.00 to rebuild the retaining wall to the engineer’s plans. [42] The retaining wall was built by Mr Johnstone and was not in compliance with the Building Code as it was not engineered and it would have required certification. While it is clear that the wall has been removed as the result of the need to rectify the columns it is not for Ms Mitchell to obtain an additional benefit but only to be returned to the position she was in. If a wall was built by a tradesperson in compliance with the Building Code this would be an improvement. The wall was built by Mr Johnstone and therefore if it is put back up then it is for him to do so but of course only if it is safe to do so having regard to the load this would put on the columns. There is to be no amount allowed for this item. DS7 – Painting of steel columns [43] While installing the concrete around the steel columns, the bases were painted. Because this was necessary the whole column should be painted, not partially as done. Cost to rectify $690.00. [44] The experts agreed that the epoxy paint is required at the foot of the columns for structural (corrosion) purposes. The experts cannot agree that the entire column should be painted for aesthetic reasons. Mr Salmon was to check the specifications. [45] Corden Homes have accepted that this is required for aesthetic reasons and allowed an amount of $662.73 excluding GST. -- 8 of 25 -- 9 [46] Mr Johnstone stated at the hearing that the rustguard specification had not been complied with. [47] Mr Heard quoted an amount of $900.00 to prepare and remove paint and overspray from columns and to paint the entire steel columns to one standard of finish. [48] Mr Correnti stated at the hearing that poles crack over time and to stop that an epoxy membrane is put between the concrete and the post. He agreed to an amount of $729.00 including GST for the painting of the columns. [49] Mr Correnti, on behalf of Corden Homes, has accepted this item while the experts were not in agreement and his quote will be accepted. There will be an allowance of $729.00 including GST in respect of this item. DS8 – side stairs laundry [50] These stairs are not parallel. Also the steel stringers go directly into the ground with no concrete mounded up as required. Paint has been splashed over the step treads. The balustrade posts or framing have not been installed with the TRADAC recommendations. Cost to rectify $1,145.00. [51] The experts agreed that: a) The side stairs are measured and visually parallel. The side balustrade frame under the dwelling closing the inner stringer is crooked which is making the stairs look out of align. b) The connection of the top and bottom balustrade rails does not meet the requirements of the BCA. c) There is paint on the stair treads which is visual. d) The frame work to the stairs is in accordance with AS1684 other than the rails. [52] The experts could not agree in regard to the in-ground stringer as to whether the ground should be built up. In Mr Groom’s opinion the stringer was not defective under AS2870 or AS3660 nor could they agree on costs. Mr Groom’s estimate of costs excluding GST was for (a) $35.00; (b) $160.00; (c) $11.00. [53] Corden Homes stated that the in-ground stringer is not defective under AS2870 or AS3660.1 and that the concrete shroud was undermined by Ms Mitchell’s retaining wall work. Corden Homes allowed an amount of $342.50 including GST for the supply and installation of a plain broom finish concrete pad to the base of the existing stair stringers near the laundry, including SL72 mesh, boxing and chair bars. -- 9 of 25 -- 10 [54] Mr Heard quoted an amount of $1,835.00 to move stringer on laundry steps so that they are parallel to the house, re-concrete stringers into the ground, remove stair treads and sand excess and spilled paint off timber treads, re-attach treads and handrails to be removed and re-fixed with dowels. [55] At the hearing Mr Salmon stated that the concrete should be mounded so that water does not lay against it causing rust. The Tribunal notes that Corden Homes has allowed for this as mentioned above. [56] The Tribunal has considered the quote from Mr Heard and notes that it does not deal with the work as agreed by the experts in terms of dealing with the alignment issue and includes work that was not agreed for the handrails to removed and doweled. [57] The Tribunal will allow an amount of $569.10 including GST to cover the work based on Mr Groom’s estimate and the amount from Corden Homes for the concrete pad. DS9 – Rear Stairs [58] The balustrade down the stairs is not straight. Steel stringers go directly into the ground without concrete protecting the bases. 90 x 90 balustrade posts have been cut to 40mm x 40mm. This does not comply and the balustrade rails do not comply, they require an angle bracket, bolt or checked/housed and screwed. None of this has been done. [59] The experts agreed that: a) There are connection issues which compromise the structural integrity of the balustrading around the deck and stairs. b) At the same time the aesthetics of the top rail on the stairs should be improved. c) The existing situation with the steel stringers is unacceptable but it is unclear who is responsible for raising the ground level. d) The notching according to TQ Technical data sheets is not defective, however the fact we do not have two connections per member is non-compliant and should be addressed. e) There are two newel posts inadequately connected to the door frame strutting to the landing of the stairs that will require additional strut stabilisation and the connection of the top and bottom balustrade rails do not meet the requirements of the BCA. f) There is paint on the stairs that is visual. [60] The experts did not agree on a budget for this work. Mr Groom’s estimate of costs excluding GST was for (d) $112.00; (e) $94.00 to stabilise -- 10 of 25 -- 11 strutting and $520.00 to install angle brackets to all newell posts; (f) $11.00. [61] Corden Homes state that the concrete shroud of the in-ground stringers is undermined by the owners retaining wall. They have provided a quote for $342.50 including GST to supply and install a plain broom finish concrete pad to the base of the existing stair stringers to the deck at the rear of the property, including SL72 mesh, boxing and bar chairs. [62] Mr Heard quoted $6,150.00 to remove all handrails to alfresco and re-fix with dowels, supply and replace new handrail to alfresco steps, replace roof support post and newell posts, remove excess paint off timber stair treads and re-attach, re-concrete stringers to make good. [63] At the hearing there was a question of whether there was a need to remove the treads to enable the paint to be removed. Mr Salmon was of the view that the amount of paint splatter justified this, Mr Groom disagreed. The photographic evidence in the two experts reports7 show some paint splattering but it appears only to be minor and would not justify the removal of the treads to rectify it. [64] Mr Heard’s quote was observed by Mr Groom at the hearing to go outside of the scope of works agreed. This is clear in particular in regard to the removal of the handrails and their replacement and the replacement of the roof support and newel posts and the removal of the treads. [65] The Tribunal accepts the quotes from Mr Groom totalling $810.70 including GST in regard to items (d), (e) and (f). [66] The steel stringers are, according to Mr Groom, in compliance with the relevant standards and the main issue is again the question of water ponding. This is dealt with by the work agreed to by Corden Homes in the amount of $342.50 including GST. [67] The Tribunal will allow an amount then of $1,153.20 including GST to cover this claim. DS10 – Rear patio [68] The rear patio framing timber is pine. This is unsuitable for use in exposed areas. Cost to rectify DS9 and DS10 $4,830.00. [69] The experts agreed that: a) The timber by definition of TQ technical data sheet AS1884 and the Building Code of Australia allows T2 timber to be used in semi or partially protected areas. 7 Exhibit 3 QBI Building Report – Mr. Salmon photo 35 and exhibit 5 Mr Grooms Report at page 28 -- 11 of 25 -- 12 b) The T2 subject to this item is partially protected thus it is fit for purpose and is not a category defect as defined by section 72 of the QBSA Act 1991. [70] Corden Homes confirmed that it agreed with the experts that there was no defect in regard to the framing timber. [71] Mr Heard quoted an amount of $180.00 to nail/screw installed timbers to strengthen timber framing. [72] As the experts have agreed that there is no defect and there was no issue raised by Ms Mitchell in regard to compliance with the terms of the contract, there is no amount to be allowed in regard to this item. DS11 – Alfresco [73] The timber flooring that has been replaced, another style is installed, the original are grooved, some new ones are smooth under. Cost to rectify $1,430.00. The experts agreed that the flooring is different but it is only noticeable from the subfloor. Corden Homes confirmed that it agreed with the experts that there was no defect in regard to the Alfresco timber flooring. [74] Mr Heard quoted $350.00 to replace decking that does not match existing. [75] As the experts have agreed that there is no defect and there was no issue raised by Ms Mitchell in regard to compliance with the terms of the contract, there is no amount to be allowed in regard to this item DS12 – Kitchen [76] There is a crack to the stone bench top which runs 400mm from the corner. The contract requires stone bench tops. I do not believe this is the case. The bench top is 20mm thick with a 300mm overhang. The bench top has been joined over the dishwasher opening supported on 15mm x 40mm wide pine. The top should be replaced, however before doing so bracing/reinforcing should be carried out to prevent the same happening again. Cost to rectify $4,940.00. [77] The experts agreed that: a) Stone bench tops have been installed as detailed in the contract. b) The breakfast bar bench top is cracked due to a lack of adequate support to the bench top on a critically weak point in the design. This bench section may be repaired via an invisible repair. Advice must be sought on this type of repair after the bench support has been adequately supported. This crack has occurred due to the actions or lack of action by the licensee. c) The crack to the left hand side of the stove top has occurred due to overloading as the top is adequately supported. Noted owner has -- 12 of 25 -- 13 lodged a photograph of a workman standing on the bench top at the location of the crack which was seen by experts. [78] Mr Salmon was not sure that the stone was not defective. [79] Corden Homes believes that the cracks are the responsibility of Ms Mitchell and that it should not be responsible for the damage. Corden Homes refers to the original grounds raised by Ms Mitchell as being the extreme heat generated by the cook top and the later photographic evidence of a tradesperson standing on the bench top. A quote for the repair work for the two cracks including the provision of additional support, if necessary, in the amount of $600 was supplied. The quote notes that the process used when repairing the cracks unfortunately does not make them invisible. [80] Mr Heard quoted $6,643.00 to remove and replace damaged kitchen stone bench tops. Any attempt to repair the cracks in the bench tops will be noticeable and the cracks will still be evident. Install adequate support for breakfast bench top. At the hearing Mr Heard confirmed that he had done two visual inspections of the property and that he had been a registered builder for 35 years. He acknowledged that each item had been costed individually [81] At the hearing Ms Mitchell produced photos of a man standing with one foot on the bench top near the area where it is cracked next to the cook top. Mr Correnti says that this was the Corden Homes maintenance person who was performing rectification work in the area. Mr Salmon was of the view that this section of the bench top would need to be replaced due to the extent of the work as it is broken right through. He acknowledged that the bench top at that section is adequately supported. He said that it would be possible to replace that panel with a matching colour. Mr Groom considered that bench top repairs are very good and an expert was required to tell you if it can be repaired. He thought the crack would not be visible after the repair. [82] It was noted that the bench top near the top had been part of a complaint to the Authority and this had also been mentioned in the material. The inspectors report notes that “minor pitting is evident may be the result of a heat source from adjacent stove top”. [83] Ms Mitchell stated at the hearing that the bench top cracked soon after moving in and that the supplier of the cook top technico had advised that the damage to the bench top was not due to overheating and that it was either bad installation or stone weak spot. [84] While Corden Homes believes that it should not be liable for these cracks the experts agreed that the breakfast bar crack was as a result of inadequate support due to the actions or inactions of the licensee, Corden Homes. The Tribunal is satisfied on this basis that Corden Homes is liable for the defective building work in regard to the breakfast bar. -- 13 of 25 -- 14 [85] The situation with the bench top near the cook top was not as clear as the experts agreed that this bench top had adequate support. The Tribunal notes that the crack in this area is much greater than the crack in the breakfast bar, this is clear from the quote opened by Corden Homes. The experts considered the cause of the crack was overloading and Ms Mitchell provided a photo of one of Corden Homes workmen with a foot near this section of the bench top. There is no evidence from Ms Mitchell that the crack occurred around this time. The experts did not consider whether the crack could be as a result of the cook top. There is then insufficient evidence that the crack near the cook top is as a result of defective work. [86] A quote has been provided for repairs to the bench top but it is made clear that these repairs will be visible. Ms Mitchell is entitled to have the bench top returned in new condition in regard to the breakfast bar, so a repair will not be adequate. Noting from the plans that the bench top at the breakfast bar represents approximately 60% of the total bench top area, the Tribunal will allow $3,985.80 including GST which is 60% of Mr Heard's quote. DS13 – Bedroom front south side [87] There are nails protruding from jamb head, the internal one is quite dangerous and a person could rip their skin reaching onto the shelf. The experts agreed that this is a minor issue and just needs a nail tapping in 5-8 mm a cost of $1.00 excluding GST for this work was agreed. [88] Corden Homes accepts this defect at the quoted amount of $1.00 excluding GST. [89] Mr Heard quoted $100.00 to repair protruding nail in architrave of bedroom wardrobe. [90] Mr Heard acknowledged at the hearing that his quotes are done on an individual basis and so each had a component for the tradesperson attendance. This item can be rectified in conjunction with the other work to be performed and there will be no amount allowed. DS14 – Entry head [91] The entry head is poorly painted and a nail is obvious. The experts agreed that the angled head does contain a cosmetic defect of a minor nature and is a category defect under Section 72 of the QBSA Act 1991. This defect is relative to initial building settlement. Estimated cost for nail pop $35.00 excluding GST and painting of $45.00 excluding GST. [92] Corden Homes accepts this defect at the total cost of $80.00 excluding GST. [93] Mr Heard quoted an amount of $130.00 to repair the popped nail in entry head. -- 14 of 25 -- 15 [94] Corden Homes have accepted the defect and the experts have agreed on a cost of $88.00 including GST, this amount will be allowed in preference to Mr Heard as there was agreement by the experts. -- 15 of 25 -- 16 DS15 – Rainwater tank [95] The slab height should be above the ground, it has been built below allowing water to pond and soil erosion. Therefore a retaining wall around the slab is required. Cost to rectify DS13, DS14 and DS15 - $1,180.00. [96] The experts agreed that: a) The tank is at the correct level. b) However the surrounding soil must be adequately drained. c) Which might be achieved by adjusting the soil levels or installing a drain. [97] Corden Homes believes that the issue of ponding is directly related to the timber edge board installed by Ms Mitchell around the tank. Corden Homes have supplied a quote in the amount of $930.00 for a 6 metre long retaining wall of a between 200mm and 400mm in height. [98] Mr Heard quoted an amount of $1,780.00 to install a grated drain around the tank slab and connect to storm water. [99] Again, as Corden Homes has accepted the defect, the work will be allowed at the amount they have also agreed of $930.00 including GST. TE1 – Painting [100] Repainting of the house internally and externally excluding the sand and paint of internal doors. Prepare all surfaces as required, putty all nail holes and paint all surfaces new and existing. Cost to rectify $14,625.00. [101] The experts agreed that the existing external cladding can be repaired and painted corner to corner (not patch painted). However if the Tribunal should decide that the entire external cladding should be replaced then the entire area should be repainted. [102] Corden Homes have accepted that the painting of the external cladding is defective as set in DS1 above. [103] Mr Heard has quoted $39,446.00 to repaint all external and internal painted surfaces. [104] The external painting has been allowed under item DS1. The Tribunal will allow whatever internal painting is required in rectifying other defects. TE2 – Architraves and skirting boards [105] Replace the architraves and skirtings throughout the house. Remove all the splayed architraves and skirting boards with finger jointed pine “Colonial Classic” profile boards. Cost to rectify $4,518.00. -- 16 of 25 -- 17 [106] The experts compared Hume architraves and skirting brochure and confirm that the skirtings and architraves are not their classic or colonial profiles. The profile is top splayed. Corden Homes were to provide further information confirming the supplier/profile. If existing skirting and architraves remain, the cracking and shrinkage is to be repaired. [107] Corden Homes provided its evidence that the correct Architraves and Skirting was installed which was a letter from Ms Mitchell stating that the architraves should be 42 x 12 half splayed pine trim, but instead single level as has been installed, and the skirting was to 68 x 12 mm half splayed pine trim, but instead single arch has been installed. Also the turnkey specification which stated the skirting was to be 68/12 colonial classic profiles and the architraves 42/12 colonial/classic. An amount of $188 excluding GST was to be allowed for filling the cracked skirting to wall in areas and repaint. A third party quote in the amount of $429 including GST was also noted. [108] It was agreed at the hearing that splayed architraves and skirtings had been installed not classic or colonial under the Hume detail. Ms Mitchell stated that the contracted skirting and architraves were not installed. [109] Mr Heard quoted an amount of $5,675.00 to remove all skirting and architraves and replace with colonial/classic profile. [110] The architrave and skirting were to be colonial/classic profile in accordance with the turnkey specification. Again Corden Homes has not supplied the agreed product and has substituted another product as confirmed by the experts. There has been no agreed variation in regard to this item and Ms Mitchell is entitled to have the contractually agreed skirtings and architraves. The claim will be allowed in accordance with the quote from Mr Heard in the amount of $5,675.00 including GST. TE3 – Internal doors [111] Sanding and painting of the internal doors, paying special attention to the routed features in each door. Cost to rectify $1,850.00. [112] The experts agreed that the inset rebate to the internal doors generally has been poorly sanded and prepared prior to painting. The appearance and general finish to the doors is below an acceptable industry standard. The product supplied to Ms Mitchell is unacceptable and should be discussed with the supplier of the doors. The experts agreed on the cost as $1,380 excluding GST. [113] Ms Johnstone stated at the hearing that the tops and bottoms of the doors had not been painted. [114] Corden Homes accepted that the painting of the internal doors was defective and agreed to the amount to be allowed of $1,380 excluding GST. -- 17 of 25 -- 18 [115] Mr Heard quoted an amount of $3,105 to supply and fit new internal doors stating that this was required after discussion with Hume Doors. [116] The experts agreed with the quote from Corden Homes at the hearing. The claim will be allowed in the amount of $1,518.00 including GST. TE4 – Landscaping [117] To repair and replace, where necessary, all landscaping materials to make the site comply with the approved landscaping plans page S12 signed and dated 20-08-09. Cost to rectify $10,850.00. [118] The experts agreed that they could not make a definite opinion on the issue of landscaping turf and plants because the date of their inspections (e.g. November 2011) is a far way away from the completion date of 5 August 2010. Once Ms Mitchell has rectified the retaining wall and installed the retaining wall at the correct height, the subsided garden edging installed by Corden Homes needs to be repaired and made good. [119] Corden Homes believes they did everything in their power to complete the works as contracted. The level neighbouring property retaining wall prevented the builder from finishing a garden bed at the correct level. The turf has been damaged by a lack of care and maintenance, and the dumping of surplus soil from under the house. [120] Corden Homes has accepted that it is required to repair the section of edging that is broken and build up the subsided edge as per the detail provided in the amount of $375.00 including GST. It has also provided a quote of $1,605 including GST to supply machinery and labour to aerate the existing turfed areas, fertilize and provide a water truck to water-on existing turf areas up to three times. [121] Mr Heard quoted an amount of $12,125.00 to repair landscaping to plan specifications. [122] Mr Correnti stated at the hearing that at practical completion the lawn had been turfed and curbing replaced. The stepped edging had been replaced with quick curb. Mr Johnston had asked Corden Homes to deal with the adjoining owner. A letter had been sent to the builder. There is one metre of curb which is sagging down. The retaining wall needs to be raised three planks. The next door neighbour has built a retaining wall which is non- compliant and as a result they could not put in curbing. Mr Correnti confirmed Corden Homes offer to pay $375.00 including GST. Ms Mitchell has removed the retaining wall and put soil around the yard and Corden Homes will not pay for landscaping. [123] The parties agreed at the hearing that work required was that noted by the experts in regard to the edging which had been quoted at $375.00 including GST. The Tribunal will allow an amount of $375.00 including GST in respect of this item. -- 18 of 25 -- 19 TE5 – Bathroom Vanity [124] To repair the bathroom vanity by removal of the basin and bench tops of the vanity. Supply and install a new bench top, relocate the basin to the position specified. Cost to rectify $875.00. The experts agreed that the vanity has not been installed/located in accordance with the plan (Plan S2). [125] Corden Homes considered the vanity was installed to industry standards and aligned as necessary for both visual and practical purposes and that the works were not defective. [126] Ms Mitchell stated at the hearing that with the vanity installed in the centre, it was hard to access the drawers and the power point was to one side. [127] Mr Heard quoted an amount of $1,035.00 to remove and reinstall the bathroom vanity basin in position as per plan, supply and install new vanity top to suit vanity basin position as per plan, make good all plumbing. [128] The vanity has not been installed as set out in the plans and this has resulted in inconvenience to Ms Mitchell. The claim will be allowed in accordance with the quote from Mr Heard in the amount of $1,035.00 including GST. TE6 – Air-conditioning [129] Required to move air-conditioning units by decommissioning the existing units, relocate the concrete pads to the external walls as originally specified, relocate the living room internal unit and replumb and connect both units, commission and test units. Cost to rectify $2,180.00. [130] The expert agreed that: a) The air-conditioning units have not been installed as per the plan. b) Air conditioner (head unit) in bedroom 1 could not go on the toilet wall for structural reasons. It would appear that the position as installed is the most logical position. c) Technically the air-conditioning head in the lounge room could have been installed on the north wall, however was relocated to the south wall to avoid the tank under the dwelling and to provide a shorter line between the head and compressor which has provided a more energy efficient install. d) The two external compressor units have been correctly located in the subfloor to avoid the tank and to provide the best energy efficient installation. The external units have been correctly installed in the subfloor to protect the units from weathering and damage which will -- 19 of 25 -- 20 increase the life of the compressors and will reduce the cost and extent of ongoing maintenance. e) The lounge air-conditioning head should contractually be relocated, however the owner will need to accept the fact that this will increase the energy usage and will have a slight increase on the maintenance costs as the compressor to the head refrigerant line will be longer and the compressor will need to work harder to provide the cold air over a greater distance. f) The two condensate pipes should be taken to a legal point of discharge. [131] Corden Homes contests the claim while agreeing that the air-conditioner was not installed as per the plan. The air-conditioner was repositioned to deliver best environmental efficiency and room circulation. This was a during construction decision as it became evident. Original position is adjacent to window would have caused vibration, and condensation on window. Air con would not have combated radiant heat in an economical fashion. Corden Homes have provided a quote in the amount of $1,100.00 including GST to relocate the air conditioners. [132] Mr Heard provided a quote in the amount of $3,345.00 to decommission and re-commission air conditioning units and relocate to positions as specified in the plans, change condensate pipes so that they are attached to a legal point of discharge, move electricity supply to suit new air- conditioning unit positions. [133] It was confirmed at the hearing that the air conditioner head in bedroom 1 cannot be moved because the ensuite door can’t be moved. [134] Mr Correnti stated that Ms Mitchell was never given discretion on air- conditioning, that if it was on the wall of the ensuite it would vibrate and that it was a mistake by the draftsperson. If on another wall it would have blown over the lounge. The air-conditioning guy had said that heat transfer from the condenser would cause moisture on the windows and for them to rattle and that a distance between the head and compressor would cause loss of efficiency. They had been doing the best for Ms Mitchell. When queried as to whether this constituted a variation of the contract, Mr Correnti stated that he had accepted the advice of the air- conditioning guy and he did not think he would have to call the client to cause them concern. [135] While again there has been a breach of the terms of the contract, as the air-conditioner heads have not positioned as agreed, the Tribunal is satisfied that it is not reasonable that rectification occur as an advantage has been gained by Ms Mitchell in terms of efficiency and the positioning of the air-conditioning on the ensuite wall would result in a detriment. -- 20 of 25 -- 21 TE7 – Boundary fence [136] Fix a 1.8m high timber paling fence to the side of the garage at the southern boundary of the house. Move the north side fence to position marked on the plan. Make good all surfaces. Cost to rectify $1,890.00. [137] The experts agreed that: a) The only boundary that is not in accordance with the contract is the northern near fence which is 1660mm high in sections up to 1800mm high. b) This is believed to be caused due to the third party retaining wall builder failing to meet his contractual obligations. c) The owner will need to raise the lower wall so the fence can be installed reasonably level and to allow a reasonable appearance generally. d) Once the northern retaining wall is raised along with the ground, the northern wing wall can also be relocated as per the S12 drawings. e) It is believed that Corden Homes was unable to fulfil its contractual obligations due to the actions of the third party builder. f) Corden homes has put in an inappropriate temporary retaining structure in place against the fence. g) Quotes are supplied for provision of a northern fence in the amount of $720.00 excluding GST and to relocate the north wing fence $180.00 excluding GST. [138] Corden Homes accepts that this is a defect and the quoted amount for rectification. At the hearing Mr Correnti acknowledged that what was built was a temporary fix and other solutions, such as battering the slope, had been offered. [139] Mr Heard quoted an amount of $6,620.00 to remove inappropriate retaining structure against the fence, remove fill behind inappropriate retaining structure, relocate and adequately backfill storm water drainage pipes behind inappropriate retaining structure, remove existing fence and fence return to house, erect 1.8 metre high paling fence in line with boundary and erect return fence. [140] Corden Homes has accepted this is a defect and the experts have agreed on the cost of rectification as $990.00 including GST. Mr Heard’s quote requires work outside of the agreed work and the claim will be allowed to the extent of $990.00 including GST. -- 21 of 25 -- 22 TE8 – Internal stairs [141] To repolish the internal stairs, replace the split timber riser and post. Sand and polish the internal timber staircase. Cost to rectify $1,380.00. [142] The experts agreed that: a) There are two minor visible blemishes in the timber polished stairs. These should have a local sand and repair; however they do not justify a full sand and refinish of the stairs. The cost to repair a couple of minor blemishes is not a fair and reasonable cost. b) Experts noted that there is extensive gouging to the treads on the stairs at the time of this inspection. c) Quote for $45.00 excluding GST. [143] Corden Homes accepts that this is a defect and that the amount of $45.00 excluding GST should be allowed for its rectification. [144] Mr Heard quoted an amount of $1,760.00 to repair defective (cracked/split) internal stair timbers, sand internal stairs to remove blemishes, re-polish entry internal staircase to consistent and even finish. [145] Corden Homes have accepted the defect and the experts have agreed on the cost of rectification as $49.50 including GST. This amount will be allowed in preference to Mr Heard’s quote as it is again for work outside of that agreed. TE9 – Patch plaster [146] Repair to plaster board linings, including the relocation of the internal air- conditioning unit, sand and make good ready for painting. Cost to rectify $1,300.00. [147] The experts note that this work relates to the work in regard to the air- conditioning which is discussed above. A third party quote for $560.00 excluding GST was mentioned by Mr Groom in his report. [148] Corden Homes note that this item is dependent on whether the claim is allowed for the air-conditioning. [149] Mr Heard quoted an amount of $1,570 to repair internal wall gyprock holes/damage once air-conditioning units are repositioned. [150] This claim will not be allowed as there has been allowance for work to relocate the air-conditioning heads. TE10 – Tie downs [151] Provide tie down connections to external walls of the house and to the floor frame, this includes threaded rod installed beside each door and -- 22 of 25 -- 23 window opening when cladding has been removed. Where this is not possible, strapping will be provided to the connection points. An inspection by a certified engineer will be done prior to re-sheeting. Cost to rectify $3,650.00. [152] The experts agreed that this item has been covered up and cannot be inspected, however the building has been certified. [153] Corden Homes agree with the experts. [154] Mr Heard quoted an amount of $4,130 to install tie downs. [155] There is no evidence to support this claim as agreed by the experts, the claim is disallowed. TE11 – Stormwater [156] New storm water lines are to run to the street and will pick up the retaining wall drains as well as surface drains. Cost to rectify $1,460.00. The experts agreed that they could not comment and noted that the owner is installing drainage to solve drainage problems. Corden Homes agreed with the experts. [157] Mr Heard quoted an amount of $2,790.00 to install retaining wall drainage, install adequate surface drains and drainage to side and rear garage, connect new drainage to stormwater line run to street. [158] Mr Correnti stated that he could connect stormwater to downpipes; the retaining wall was pulled down but the storm water as supplied was certified as correct. [159] There is insufficient evidence to show that the stormwater drainage work installed by Corden Homes is defective and it is noted that extensive site work has been performed by Mr Johnstone, including retaining walls and changing of soil contours. This item will be disallowed. TE12 – Rainwater pump [160] Supply and install rain water pump. Cost to rectify $480.00. The experts agreed that they could not comment in regard to this item. Corden Homes agreed with the experts. [161] Ms Mitchell stated that there was no pump on the day of handover. It was noted that the certificate of practical completion annexure 12 stated there was no working pump. [162] Mr Johnstone stated at the hearing that he had been doing some work at the back of the garage and the pump was sitting there. The plumber was on site and he disconnected the pump and put it to one side of the wall. He said he could wait. He left the pump there and went at around 8 July 2010. -- 23 of 25 -- 24 [163] Mr Correnti stated that there was no insurance in respect of the pump. [164] Mr Heard quoted an amount of $1,320 to supply and install rainwater tank pump. [165] A rain water pump was installed by Corden Homes and this was disconnected by the plumber at the request of Mr Johnstone. The plumber then left the premises and the pump has gone missing after Mr Johnstone left the premises. There is no evidence that Mr Johnstone made any attempt to protect the pump form theft by covering it or moving it to safety. The site was, at the time, under the control of Corden Homes, though a claim could have been made on their insurance. As there appears to have been contributions from both sides, an amount of $240.00 which was 50% of the original quote will be allowed for this item. TE13 – Floor tiling [166] Replace the floor tiling to the following rooms. I have assumed current tiles will not be able to be matched and therefore new tiles are to be supplied and installed. The tiles are to be laid on FC tile underlay sheeting. The ensuite floor is to be waterproofed. All quotes include the removal of the existing tiles and underlay, supply and install new underlay, supply and install new floor tiles. Cost to rectify kitchen and lounge room $9,355.00, hallways $1,485.00 and ensuite $3,440.00. [167] The experts agreed that there were leaks to both bathrooms and that this matter was subject to a Queensland Building Services Authority direction to rectify. [168] Corden Homes state that these works were completed, and inspected and approved by the Queensland Building Services Authority. A copy of a letter from the Authority is provided noting that Ms Mitchell had denied access to Corden Homes, that there was no further leaking but there were some other issues. [169] Mr Heard quoted an amount of $17,450.00 to remove existing tiles and underlay, clean and prepare floor surfaces, supply and install new floor tile underlay, supply and install similar new floor tiles as we can match existing tiles, areas to be retiled are kitchen/lounge, hallway and ensuite. [170] It was agreed at the hearing that the Tribunal is not dealing with TE13 as this matter is before the Queensland Building Services Authority. Delay [171] Ms Mitchell made a claim for liquidated damages in respect of delay at the rate of $15.00 per day due to late completion. This is in accordance with item 10 and 11 of the contract, which required the house to reach practical completion within in 180 days after commencement, which included calculable days of 55. After two extensions of time, the date for practical completion was to be 17 May 2010. Practical completion occurred on 5 -- 24 of 25 -- 25 August 2010 and a claim is made for $1,200.00 as the amount of liquidated damages claimed. [172] Corden Homes say that a notification of a further extension of time was made on 12 July 2010 which would have extended the building period to 7 July 2010. This notification was made on the basis of delay said to be caused due to the side boundary issue with the neighbours. Ms Mitchell claims that this extension request was objected to, though there does not appear to be any formal objection as envisaged in clause 16 of the contract general conditions. Delay as a result of a dispute with a neighbour is included in the definition of incalculable delay. Mr Johnstone considered that the problems with the boundary fence should not have delayed the finalisation of the building works in respect of the house. The Tribunal notes that practical completion as defined in the contract means when the works have been completed in accordance with the contract. The works included the landscaping as set out in the plans, so therefore this delay will have delayed practical completion. So the Tribunal accepts that there have been extensions of time which took the date for the works to be complete to 7 July 2010. [173] The Tribunal notes that there were various inspections of the property by the parties with the final one on 5 August 2010. This date is the date that Mr Don Vosper, a Queensland Building Services Authority inspector, has used in his report as the date that the work was completed. There is no further extension of time request to cover the period between 7 July 2010 and 5 August 2010. The Tribunal will allow liquidated damages for delay in respect of this period in accordance with clause 29 of the general conditions in the amount of $435.00, which is 29 days x $15.00. Orders [174] There were other matters for which Ms Mitchell was requesting orders but the Tribunal’s jurisdiction in these matters is contained in section 77 of the Queensland Building Services Authority Act and it is limited to building disputes and the orders requested were outside of that area. [175] Corden Homes is ordered to pay Ms Mitchell the amount of $60,202.60 within 28 days in respect of the defects and incomplete work identified above. -- 25 of 25 --