Corden Homes Pty Ltd v Mitchell [2013] QCATA 322

CITATION: Corden Homes Pty Ltd v Mitchell [2013] QCATA 322 PARTIES: Corden Homes Pty Ltd (Applicant) V Ms Marie Mitchell (Respondent) APPLICATION NUMBER: APL251-13 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe OAM Member Roney DELIVERED ON: 22 November 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal is dismissed CATCHWORDS: Appeal – where issue of appropriate measure of damages considered. Bellgrove v Eldridge (1954) 90 CLR 613 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Original decision [1] A decision was delivered in BDL028-11 on 16 May 2012. [2] It is only that part of the decision concerned with the external cladding to the dwelling at 5 Grand Canyon Drive, Springfield Lakes which is under appeal. That part accounts for an award of $40,858.00 in favour of the respondent homeowner. The reasons in relation to that issue appear at pages 1-5 inclusive of the decision. -- 1 of 3 -- 2 Issue under appeal [3] From the reasons it does not appear to be controversial that the applicant builder in this appeal did not provide cladding that is external cladding in accordance with the contract. The contract called for according to its floor plan, “Weathertex wall cladding”. “Weathertex” appears to be a brand name denoting a particular type of sheeting. What has been supplied is a generic cladding product known as “weatherboard”. Experts report [4] There is certain agreement between the experts as set out in paragraph 10 of the judgment. “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.” [5] Also relevant to the cladding issues are paragraphs 14, 15, 16, 17 and 18 of the judgment. [6] The appellant says that it was not reasonable to order the whole dwelling to be reclad and that the Member at the hearing was, in some fashion, “bound” by what are described as earlier findings of the Tribunal and by the joint experts report. The issue of leave to appeal has not been addressed in the submissions. It is not entirely clear from the appellants submission but it seems most likely that the appellant contends that the Tribunal misapplied the law in relation to the damages available to the homeowner consequent upon the builder’s breach in relation to the cladding. Leave to appeal for an error of law is as of right however it is a question for this Appeal Tribunal whether that ground is made out. Was the learned Member in error? [7] The Tribunal at first instance accepted the evidence of the homeowner specifically that evidence of Mr Heard in relation to his quote for rectification dated 17 July 2012 (exhibit 6 in the proceedings). He gave evidence to the effect that the removal of the existing cladding and the supply and installation of the contractually specified cladding product Weathertex was necessary to achieve a proper outcome. Importantly Mr -- 2 of 3 -- 3 Heard gave evidence about the aesthetics of the prepare work contemplated by the experts. This evidence went to the issue of the contractual standard of finish to which the homeowner was entitled. Even the appellants witness, Mr Correnti conceded that there was a difference in the presentation of the 2 products, the specified Weathertex and the weatherboard cladding. He said the difference was “aesthetic”. We assume that means one looks better than the other the further inference is that the specified product is more attractive than that supplied. [8] The homeowner is entitled to that standard of finish and presentation which has been specified or compensation for the diminution in value resulting from the failure to provide the contractual standard (Bellgrove v Eldridge (1954) 90 CLR 613). Here the homeowner, on the appellants case, should accept the lesser product not that specified and accept a rectification outcome whereby the product would not be adequately matched with the existing cladding. On the evidence of Mr Heard, which the Tribunal accepted as it was entitled to the rectification proposed would result in mismatch boards and the presence of unsuitable unspecified sealant material. [9] The cladding work has to be rectified on the review. Given that which was specified, the homeowner is entitled to insist upon a finish which approximates the contractual standard. There is no evidence about the loss and value of the dwelling by reason of the inferior installed product. It is apparent that there would be such a loss in value. The Tribunal has acted upon the evidence available to it. The decision to allow the costs to remove and reinstall the specified cladding is not unreasonable in context of the following: i. The apparent concession by the appellant that the installed product is of a less attractive presentation. ii. The need for rectification which is conceded in the builder’s case. iii. The acceptance of the evidence by Mr Heard that the rectification would not achieve satisfactory outcome. [10] Had the work not required rectification the position at law may have been different. The appellant however has no one to blame but itself for the position it is in. [11] The learned Member has applied the correct principles at law in assessing the homeowners damages. The learned Member was on no proper view, bound or fettered in his decision making at the hearing by any previous Tribunal ruling or the experts report. The learned Member was obliged to make findings under the contract in relation to the cladding which he did and which had not previously been made. [12] The appeal is dismissed. -- 3 of 3 --