Domestic Maintenance Pty Ltd v Randall [2013] QCATA 31

CITATION: Domestic Maintenance Pty Ltd v Randall [2013] QCATA 031 PARTIES: Domestic Maintenance Pty Ltd (Appellant) v Peter Randall Selinda Randall (Respondents) APPLICATION NUMBER: APL258-12 MATTER TYPE: Appeals HEARING DATE: On papers HEARD AT: Brisbane DECISION OF: K S Dodds, Judicial Member DELIVERED ON: 21 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – BUILDING MATTER – where the applicant entered into a contract with the respondents to pave an area between the respondent‟s house and pool, and around the pool – where the paving work failed, could not be rectified and had to be removed – where the applicant was ordered to pay for the removal of the slab and pavers, and reimburse the funds paid by the respondents to the applicant – whether the contractor breached his warranty of skill and care – whether leave to appeal should be granted Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b) Domestic Building Contracts Act 2000, ss 3, 44 Hadley v Baxendale [1854] 156 ER 145 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Randall and Anor v Domestic Maintenance Pty Ltd [2012] QCAT 266 -- 1 of 8 -- 2 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 [1] This is an application for leave to appeal a decision of the Tribunal in a building matter. [2] On 22 June 2012, the Queensland Civil and Administrative Tribunal (“the Tribunal”) ordered the applicant pay to the respondents the sum which they had paid to it for domestic building work viz. $10,720 together with a sum for the removal of the domestic building work it had done viz. $7,348 being a 46m² cement slab and pavers laid upon it. [3] I have read through the voluminous material contained in the Tribunal‟s file provided to me, the transcript of the hearing before the Tribunal on 18 April 2012 and the exhibits received. I have read the reasons for the Tribunal‟s decision, the application for leave to appeal or appeal and the voluminous grounds advanced for leave. I have read the written submissions of the parties. Leave to Appeal [4] Leave is required to appeal in this matter.1 Leave will only be given when there is shown to be a reasonably arguable case of error on the part of the Tribunal and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.2 It is necessary then to briefly consider the circumstances, the evidence and the Tribunal‟s decision. The Circumstances and Evidence [5] The material site is the respondent‟s dwelling house allotment. They had purchased it with the dwelling house upon it a relatively short time before the domestic building work in question commenced. [6] The allotment is rectangular with its long axis north south. The rear of the dwelling is at the northern end of the allotment. The allotment slopes from the front to the rear, the fall being in the order of 7m from front left to right rear corners. It was cut and filled for construction of the dwelling. A rock wall 3.5-4m in height is situated at or adjacent to the rear or northern boundary with a return part way up the western side. Beyond the wall the land slopes steeply to a gully and creek, the slope being in the order of 25- 30 degrees, total fall from rear of allotment to creek being approximately 7m. This slope was heavily vegetated at the material time. The filled land on which the dwelling was located continued to the top of the rock wall. 1 QCAT Act s 142(3)(b). 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 8 -- 3 [7] In about August 2009 some short time after the respondents had moved into the dwelling they arranged for a fibreglass swimming pool on the northern side of the dwelling to be built. The pool contractor during excavation for the pool found that the entire pool excavation area was fill down to about 3.5-4m (i.e. below the pool depth). Consequently he installed piers down into natural ground and poured a concrete base for the pool tied to the piers. The pool was then installed onto the concrete base and the pool excavation back-filled with crushed gravel. This work was the subject of a contract variation. [8] The female respondent (“SR”) then set about obtaining quotes for a paved area between the rear of the house and the pool and around the pool. According to SR, she approached three contractors. One was the contractor who was to install the coping for the pool. He was not prepared to do the work. Another was an elderly fellow who quoted and the third was a principal of the applicant, Clint Jackson (“CJ”). [9] There is some conflict in accounts about what was said in discussion between SR and CJ. According to SR she informed CJ of the piering of the pool because of fill. According to CJ she did not. She told him she wanted the tiles flush with the pool coping. He advised against it. It was best to have a small step to allow for the inevitable small movement between the surfaces, but she rejected that advice. There was other discussion. He asked, as he said was his practice, whether there were any easements on the property he needed to know about and whether „there was anything else he needed to know about the property‟. He was not told anything materially significant. He observed the boulder wall and looking over it saw fresh soil at its base which he thought was from the pool excavation. At SR‟s request he wrote a quote on a business card. She accepted it and told him she wanted the work started quickly. He said he prepared a formal quote and contract which he left in the respondent‟s letter box when the work started. The quote and contract was for what had been discussed, a 100mm concrete slab between the rear of the house and pool and around the pool and the laying of pavers supplied by the applicant glued onto the slab and grouted, the pavers flush with the pool coping. SR said the respondents had never received it. [10] The work commenced on 11 August 2009 and completed some days later. In early 2010 some subsidence of the pavers was noticed. Contact with the applicant did not achieve a resolution and the Building Services Authority (“BSA”) was contacted. In April 2010 the BSA made an inspection. In May 2010 it conducted another inspection with an engineer (Mr Beale of Hughes, Beale and Wright, consulting engineers) engaged by the BSA. [11] There was evidence before the Tribunal from three engineers. Mr Beale inspected on 18 May 2010, Mr Morrison engaged by the applicant inspected on 21 June 2011 and Mr Fox engaged by the respondents inspected on 24 August 2011. The engineers met in an experts‟ conclave subsequently. They agreed: i) [t]he damage to the slab and tiling is due to subsidence of the slab relative to the pool and coping; -- 3 of 8 -- 4 ii) the subsidence of the slab is due to instability of the ground supporting the slab; iii) the instability of the ground is the result of some possible combination of the following; instability of the boulder retaining wall, settlement of the original fill, settlement of the pool shell backfill; iv) the measurements taken by the experts are consistent and demonstrate ongoing movement; v) they don‟t know the extent to which the filling is compacted. [12] They disagreed about whether the applicant could reasonably have assumed the ground supporting the slab was stable, Mr Beale and Mr Fox being of the opinion CJ could not, and Mr Morrison being of the view he could. The Tribunal Decision [13] The Tribunal in its reasons for its decision noted the conflict I have referred to above. It did not explicitly address and resolve it although it may be concluded it did so implicitly in that in paragraph [37] of its reasons it accepted CJ honestly did not consider the site was filled 'despite it being remarkably obvious from all physical site indicators.‟ Rather it proceeded by considering whether a licensed contractor such as CJ should have been alerted by his inspection of the site that the construction sought by SR had the potential to be problematic. It considered whether a licensed contractor such as CJ should reasonably have been alerted to the risk of the ground upon which the slab and pavers were to be placed was uncontrolled fill in light of the boulder wall, the apparent original natural slope of the land and the apparent cut and fill and made specific enquiry. [14] It had regard to the purposes of the Domestic Building Contracts Act 2000: (a) to achieve a reasonable balance between the interests of building contractors and building owners; and (b) to maintain appropriate standards of conduct in the building industry.3 [15] It also considered s 44 of the Domestic Building Contracts Act 2000 which provides that a contractor warrants the subject work will be carried out - (a) in an appropriate and skilful way; and (b) with reasonable care and skill. [16] It agreed with the view expressed by Mr Fox and Mr Beale that the physical characteristics of the site should have alerted CJ there was likely quite extensive fill under the potential slab area and thus a real potential risk of unsatisfactory performance of the slab and pavers. It agreed with the evidence of Mr Clayton, an experienced builder and representative of the BSA, that this site with a 3.5-4m retaining wall 900mm from the edge of the concrete slab to be constructed required a determination about fill there. The Grounds of Appeal 3 Domestic Building Contracts Act 2000 s 3. -- 4 of 8 -- 5 [17] As observed earlier the material which is said to be the grounds of the application for leave is voluminous. It contained much material more in the nature of submissions. [18] In summary they were as follows. I will deal with them seriatim: a) The work done was exempt building for approval purposes; The applicant‟s trade contract licence did not require the applicant to have competency to prepare plans and specifications for concrete slabs. Regarding these they do not materially address the Tribunal‟s findings that CJ should have been alerted to the potential problem for the required construction on the site. b) The applicant did not at the time of the hearing appreciate the weight the Tribunal would give to the boulder wall in its decision. When CJ had looked at it on the day he gave his quotation his view was limited and he thought it was only about 1m in height. As to this there was considerable reference to the boulder wall in the evidence at the Tribunal hearing and in the engineers‟ reports. There was ample opportunity for CJ in his evidence to the Tribunal to say what he wished about his observation. Nothing emerges from a reading of the transcript of the Tribunal hearing which could reasonably be regarded as requiring the Tribunal member to question CJ about his observations. c) The other quotation by the elderly fellow was of a similar value to CJ‟s quotation, an indication that person saw no problem with the site. The pool builder only discovered on excavation for the pool, the deep fill. As to these, the fact that the other fellow who quoted may not have perceived a problem with the site is of little, if any, material relevance. The Tribunal has concluded from all the evidence that a licensed contractor such as the applicant should have. As for the pool builder it appears that the pool contract allowed for variation in the circumstances that eventuated. What was found on excavation was fill to a depth beyond the depth of the pool and appropriate engineering followed. d) There was no evidence a 4m high retaining wall was evidence of fill, certainly not uncontrolled fill. Mr Morrison was the only engineer who thoroughly investigated the wall and it was his opinion the subsidence was due to northward movement of the retaining wall. The excavation for the pool was very close to the wall. The boulder wall was not supported during the excavation. Crushed gravel fill for back filling the excavation after the pool was in place was not compacted properly. As to these, the height of the boulder wall was an indicator but not the only indicator of the need for enquiry. That the boulder wall may have moved contributing to soil movement does not impact on -- 5 of 8 -- 6 the Tribunal‟s findings. The Tribunal accepted, as it was entitled to do, the evidence of Mr Fox and Mr Beale. e) An earth moving contractor preparing a house platform is required by regulation to compact fill to a specification. There was no evidence this was not done. The applicant was entitled to expect this was done. As to this, there was evidence during the hearing before the Tribunal touching upon this. It seems apparent the Tribunal did not agree. It does not seem to me to materially bear on the Tribunal‟s conclusion. f) The opinions of Mr Beale and Mr Fox rely on hindsight because they were provided with engineering reports etc. before forming their opinions. The applicant did not have this sort of material when quoting. As to this, it does not appear from the evidence that the opinion of the engineers about what should have been apparent to CJ was influenced by hindsight. Apart from that, this could have been pursued if thought necessary at the hearing and in submissions. It cannot be assumed their opinions were infected by hindsight. g) The Tribunal allowed two experts, Mr Beale and Mr Fox, for the respondents, and one, Mr Morrison, for the applicant. This was contrary to QCAT Practice Direction 4 of 2009 which provides a limit to the number of experts in a particular area of expertise. The applicant should be or have been allowed to call another expert. As to this Mr Beale was engaged by the BSA and Mr Fox engaged by the respondents. Their reports were in evidence before the Tribunal. There was no objection to all three engineers‟ reports being evidence before the Tribunal. There is nothing in this ground. h) In its reasons in paragraph [4] the Tribunal, speaking of the nature of the failure of the works, referred to the slab and paving having sunk below the level of the pool coping to the extent of some 200mm causing substantial cracking. On the face of it this appears to misrepresent the evidence. A complete reading of the Tribunal‟s reasons however indicates it was truly seized of the extent of the subsidence. There is correct reference to it throughout. The reference to 200mm in paragraph [4] would appear to be an inadvertent mistake. There is nothing in this ground. Decision [19] The Tribunal was not prepared to accept Mr Morrison‟s evidence about the obligation of a „finishing trade‟ such as that of the applicant. It expressed its view in this way: [33] I find in this matter that the siting of a substantial concrete slab within some 1.2 metres of a 4 metre retaining wall is not works undertaken in an appropriate and skilful way or with reasonable care and skill if the construction of such works fails to take account of the likelihood of -- 6 of 8 -- 7 those works being the subject of subsidence because of the existence of fill. [34] I am persuaded in this regard by the evidence of Mr Fox, Mr Hughes and Mr Clayton. Whilst I am mindful of the evidence of Mr Morrison concerning the obligations of a finishing trade I do not accept that a person licensed to construct substantial concrete structures which are meant to be robust and perform as building works can in these particular circumstances accept blindly that the soil upon which he stands is either properly compacted or will not be the subject of subsidence. Particularly when he is standing just a metre away from a 4 metre boulder wall over which he has already looked. [35] He is not in those circumstances entitled as a finishing trade to assume that the ground is natural ground and sufficient to accept and support the structure he constructs. At the very least he should have perceived the problem and brought it to the attention of the owners. [36] … He was constructing very substantial works where the potential damage of those works failing is great and is in fact now great because they have failed.4 [20] There is no doubt the slab and paver construction is unsatisfactory. Both vertical and horizontal movement has occurred and is continuing. Cracking and separation has occurred. The pool fence and gate is compromised. The work that was done under the contract and the state it has been reduced to is unsightly and unsafe. There was no evidence to support any finding that it was of any residual value to the respondents. Nor for that matter to the applicant. [21] The Tribunal‟s finding that this was not a case for rectification of the works appears to be correct. On the evidence, as the Tribunal observed, even if it was possible it could not be achieved at reasonable expense. [22] It seems to me that the findings of the Tribunal based on the evidence it accepted were open to it. It is not shown they were affected by error. It was entitled to accept the evidence it accepted and come to the conclusions it did. Because another person (i.e. Mr Morrison) expressed some contrary view does not mean the conclusion of the Tribunal is shown to be wrong. [23] The Tribunal ordered the applicant pay to the respondents the cost of removal of the slab and pavers plus reimbursement of money paid by the respondent to the applicant. It declined to order payment for removal and reinstatement of the fence, a reasonably substantial amount. In view of the findings of the Tribunal, its orders seem to me to be a fair and reasonable assessment of the damage to the respondents arising naturally from the applicant‟s breach of the contract.5 The Tribunal put it another way; as an entire contract where the consideration, the slab and pavers contracted for, had entirely failed. [24] In the end result, I am not satisfied it has been shown there is an appealable error on the part of the Tribunal. 4 Randall and Anor v Domestic Maintenance Pty Ltd [2012] QCAT 266 at [33]-[36]. 5 Hadley v Baxendale [1854] 156 ER 145 at 151. -- 7 of 8 -- 8 [25] The application for leave to appeal is refused. -- 8 of 8 --