Combined Building Services Pty Ltd v Springall and Anor [2011] QCAT 674

CITATION: Combined Building Services Pty Ltd v Springall and Anor [2011] QCAT 674 PARTIES: Combined Building Services Pty Ltd (Applicant) v Mr Kenneth Alexander Springall Ms Janet Gwen Cornell (Respondents) APPLICATION NUMBER: BDL316-10 MATTER TYPE: Building matters HEARING DATE: 9-10 June 2011 and 17-18 October 2011 HEARD AT: Townsville DECISION OF: Ms Joanne Browne, Member DELIVERED ON: 23 December 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondents, Mr Kenneth Alexander Springall and Ms Janet Gwen Cornell pay the amount of $15,891.67 to the Applicant, Combined Building Services Pty Ltd by 4.00pm on 20 January 2012. CATCHWORDS: Whether works had reached practical completion – breach of contract – calculation of money owing under the contract Queensland Building Services Authority Act 1991, s 77 Bellgrove v Eldridge (1954) 90 CLR 613 cited Wheeler & Anor v Ecroplot Pty Ltd [2010] NSWCA 61 cited APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Kerry Anger representing Combined Building Services Pty Ltd RESPONDENT: Ms Janet Cornell representing the respondents -- 1 of 16 -- 2 REASONS FOR DECISION Introduction [1] Mr Springall and Ms Cornell (the respondents) engaged Combined Building Services Pty Ltd to build a pergola and complete some renovation work to their house at 11 Michelle Court, Alice River, Queensland. [2] Mr Anger is a Director of Combined Building Services Pty Ltd and has been a builder for some 22 years. Mr Anger was responsible for the contracted building work at the respondents’ house. [3] A Master Builders Residential Building Contract was signed by the parties on 25 June 2009 and Combined Building Services Pty Ltd were contracted to undertake the following works which commenced on or about 18 August 20091: Close in garage and make 2 rooms Close in patio Add new room with bathroom and kitchenette [4] During completion of the works a dispute arose between the parties. The applicant claims that the final progress claim was not paid by the respondents, practical completion having been reached on 22 March 2010. The respondents argue that practical completion (as required under clause 17.1 of the contract) has not been reached and that the applicant is in breach of the contract. [5] The total contract amount for completion of the works was $147,197.00. The respondents have made various payments to Mr Anger which total the amount of $120,701.54. [6] Mr Anger filed an application in QCAT on 1 October 2010 seeking an order for payment of the final progress claim. The amount now claimed by the applicant as the final progress claim (which is not disputed) is $23,534.52. [7] The respondents filed a response and counter-application on 26 October 2010 and seek an order for relief of payment of the final progress claim and that the applicant pay the amount of $32,519.48 as follows: 1) Liquidated damages (from 16/02/10 to 18/10/11) $30,450.00 2) Damages for breach of contract- $25,604.00 -pergola reconstruction $17,854.00 -replacement of the fascia $6,000.00 -cleaning $1,750.00 The hearing 1 Exhibit 1, attachment “ZF”. -- 2 of 16 -- 3 [8] The hearing was listed for 2 days commencing on 9 June 2011. On the second day of the hearing (on 10 June 2011) it became apparent that the hearing time allocated was inadequate and the proceedings (by consent) were relisted for a further 2-day hearing (on a date to be advised by the Tribunal). In an attempt to resolve the matter without a further delay, the proceeding proceeded (with each party’s consent) to a compulsory conference for the remainder of the day (on 10 June 2011). Unfortunately the matter did not resolve (on 10 June 2011) and the matter proceeded to hearing (part-heard) on 17 and 18 October 2011. The parties did, however, make concessions during the hearing in relation to some of the issues in dispute, in particular the amount claimed by the applicant for the ceramic tiles (prime cost item) and variations to the contract (for tiling and the bathroom). These items are relevant to the amount of the final progress claim which the applicant alleges is owing under the contract. [9] Mr Anger, Mr Springall and Ms Cornell gave sworn evidence and were cross-examined at the hearing. Documents were tendered at the hearing including photographs of the house taken during completion of the building work. Written submissions were also filed by both parties. [10] Mr Anger relies on his own affidavits (with attachments) and the affidavits of Mr Sean Leslie Westwood (employee) and Mr Anthony Poole (Painter). Mr Leslie and Mr Poole were not required for cross-examination and their affidavits were tendered by Mr Anger without objection. [11] Ms Cornell relies on a joint statement of the respondents (with attachments) and the affidavits of Mr Anthony Jacobs (witness) and Mr Bruce Dalton (witness). Mr Jacobs and Mr Dalton were not required for cross- examination and their affidavits were tendered by Ms Cornell without objection. [12] Some preliminary issues were raised by Ms Cornell at the commencement of the hearing in relation to the production of documents (by the applicant) as per the Direction of the Tribunal dated 9 March 2011 in response to the respondents’ application for miscellaneous matters filed 3 December 2010. Mr Anger referred the respondents to the Further and Better Particulars dated 16 March 2011 (in response) and stated (during oral submissions) that there was no defects list, as the parties could not agree to a list of defects. In relation to the certificate of completion, Mr Anger tendered at the hearing a Form 15 (compliance certificate) dated 30 April 2009 together with amended plans (Exhibit 5). Ms Cornell on day three of the hearing tendered (during evidence) a Form 61 (non-compliance notice) dated 26 March 2010 (Exhibit 16) which she states was obtained by her from Mr Ian Mills (certifier). The issues to be determined [13] For the purposes of section 77 of the Queensland Building Services Authority Act 1991 the Tribunal is satisfied that this is a “building dispute” which may be determined under the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). -- 3 of 16 -- 4 [14] The issues to be determined by the Tribunal are: 1) Whether the final progress claim is due and owing by the respondents – was cleaning of the works completed and did the respondents take early possession of the works? 2) Whether the applicant is in breach of the contract (regarding the pergola and fascia)? Entitlement to final progress claim (money owing to Mr Anger) [15] Mr Anger argues that the works were completed by the applicant and practical completion was reached on 22 March 2010. Mr Anger claims that on 9 June 2010 he delivered to the respondents a final progress claim for the Practical Completion Stage claiming an amount of $27,280.56 which remains outstanding (adjusted at the hearing to an amount of $23,534.52).2 [16] Mr Anger contends that notwithstanding practical completion being reached (as alleged) the respondents took possession of the works in late January 2010 by occupying the two front rooms of the renovation without first obtaining the applicant’s consent. Mr Anger contends that under clause 17.9 of the contract if the owner takes occupancy then the works are deemed to have reached practical completion under the terms of the contract. [17] The respondents argue (in written submissions) that the works never reached practical completion on the basis that: 1) the applicant failed to make a final inspection, provide a defects list and a certificate of completion as required under clause 17.1 of the contract; 2) cleaning of the works was not completed by the applicant so as to identify all defects in the works prior to a final inspection; 3) the applicant is in breach of the contract – the pergola is not constructed in accordance with the approved plans (the contract) and the fascia does not “match existing”. [18] For the purposes of clause 17.1 of the contract, the respondents (in written submissions) submit that only the contractual certificate (providing a date and time for a final inspection) and not the compliance certificate (certification by a registered certifier that the works comply with the certified plans) is relevant.3 [19] Mr Anger claims in written submissions that despite the respondents taking early possession of the works he still (on behalf of the applicant) made an effort to fulfil his contractual obligations by nominating a date (30 March 2010) to inspect the works and complete a list of defects. Mr Anger, in his statement and during oral submissions refers to various emails exchanged between the parties, in particular an email dated 22 March 2010 to Mr Springall which states: 2 See Exhibit 1, attachment “J”, Tax Invoice dated 9 June 2010 (final progress claim). 3 Amended written submissions dated 23 March 2011, [8]. -- 4 of 16 -- 5 …I have booked a cleaner in for Wednesday this week to clean and after that we should be at practical completion. I will then do a list of any defects and I would ask you to do the same on the completion of all cleaning please…4 [20] The practical completion stage is defined under the contract (Part 1 Definitions) as: means that stage of the works when the works are completed in accordance with the contract and all relevant statutory requirements, apart from minor omissions or minor defects, and the works are reasonably suitable for habitation. [21] In written submissions, Mr Anger contends that he has attempted on a “number of occasions” by email to settle on a list of defects with the respondents and that the respondents have either failed and/or refused to agree on a list of defects.5 The respondents dispute this and contend (in written submissions) that the applicant has failed to provide a contractual certificate and a final defects list and complete cleaning prior to a final inspection. [22] If the respondents’ submissions are accepted and a finding is made by the Tribunal that practical completion has not been reached, the respondents seek an order for liquidated damages on the basis that the works have not reached practical completion. [23] The Tribunal has considered the emails exchanged between the parties during the period of time it is alleged (by the applicant) that practical completion was reached. The emails are attached to Mr Anger’s affidavit (Exhibit 1) and the respondents’ statement (Exhibit 9): 1) On 7 March 2010 the respondents request that the applicant remove guttering and fascia to match the existing “profile”. 2) On 22 March 2010 Mr Anger requested the respondents prepare a defects list “on the completion of all cleaning” (Exhibit 1, attachment “Q”). 3) By reply on 22 March 2010, the respondents notified Mr Anger of various items (12) that “need to be completed before practical completion [can] be achieved as these items are not minor defects”. The respondents state that a list of defects will be prepared once the cleaning is completed and practical completion has been achieved. 4) On 23 March 2010 the respondents query why the cleaner “is coming” as there is “still painting to be done inside and outside the house”. 5) By reply on 24 March 2010, Mr Anger states that the cleaner “needs to come in now and clean the majority of marks that are on the walls” and that the painter can do any touch ups once the cleaner has finished. 6) On 28 March 2010 the respondents request that Mr Anger give 24 hours notice of who will be on site and details of work to be carried out. They also query when the shade cloth will be installed on the pergola. 7) On 29 March 2010 Mr Anger notified the respondents that (amongst other things) someone will clean the louvers and he “will attend [on 30 March 2010] in order to complete a defects and omissions list”. Mr Anger also queries the colour of the shade cloth chosen by the respondents. 8) By reply on 29 March 2010 the respondents informed Mr Anger that the inside of the house needs to be cleaned “first” and that a “full list of defects cannot be completed 4 Exhibit 1, attachment “Q”. 5 Written submissions dated 8 March 2011, [37]. -- 5 of 16 -- 6 until all of the house, inside and out has been cleaned and all works completed”. The respondents also enquire about the guttering and the “quote for fitting of the correct/matching fascia”. 9) On 30 March 2010 Mr Anger emailed the respondents stating that he is “cancelling the cleaner” and will rebook the cleaner when all the painting is complete. Mr Anger stated that the painter will be in contact to arrange a time to complete all “touch ups” and will advise of the cost to replace the fascia. 10) On 10 April 2010 Mr Anger informed the respondents that the painter will be attending next week and that he will be attending to the shade cloth on “Monday” (12 April 2010). 11) On 12 April 2010 the respondents state that the guttering will need to be painted “along with the fascia” to “match existing”. 12) On 13 April 2010 Mr Anger notified the respondents about attending to the guttering and fascia (painting), problems with the “A/C” unit, tiling for the splash back and the mirror and that the “cleaner will be the last to be done as requested”. 13) On 28 April 2010 Mr Anger notified the respondents that he had completed “all works up to practical completion” and requested that they put any “defects or omissions” in writing to him. 14) On 4 May 2010 the respondents emailed Mr Anger a list of works “not yet completed” and that they are unable to “make a final inspection” as the work “has not been cleaned”. 15) On 10 May 2010 Mr Anger requested that the respondents provide a “letter for the pergola as the Certifier will not issue a Final Certificate until he has the letter”. Mr Anger also states that he requires access to the property with the engineer. 16) By reply on 10 May 2010 the respondents notified Mr Anger of the access times for the engineer. They referred to the list and stated that the “areas highlighted in yellow on the attached list are still not complete” and that they are “devoting all [their] energies toward getting the attached list finished in full before addressing any other matters”. 17) On 11 May 2010 the respondents queried when the engineer would be on site. 18) On 12 May 2010 Mr Anger by reply stated he is waiting for a reply from the engineer and that he “will have men on site tomorrow to do some works outside also”. 19) On 13 May 2010 Mr Anger claims (in his affidavit) that an employee (Mr Westwood) attended to cleaning at the house. 20) On 24 May 2010 Mr Anger requested the respondents contact G James (glass manufacturer) or himself (Mr Anger) to arrange a site visit and requested access (on 25 May 2010) to “tidy up a couple of things such as the tiles”. 21) On 24 May 2010 the respondents by reply confirmed that G James (representative) will visit Wednesday and stated that access is not possible tomorrow (Tuesday) – stating “Wednesday fits with [us]”. 22) On 9 June 2010 Mr Anger issues a claim for payment for practical completion. 23) On 1 July 2010 Mr Anger receives a letter from the respondents’ solicitors (Wilson Ryan Grose Lawyers) stating that (amongst other things) the applicant is in breach of the contract because a certificate of practical completion has not been issued and that the respondents “intend to terminate the Contract” unless the applicant rectifies the breach within 10 days. 24) On 9 July 2010 the applicant’s solicitors (Ruddy Tomlins & Baxter) reply in writing to Wilson Ryan & Grose Lawyers stating (amongst others) that the works have reached practical completion. 25) On 16 July 2010 the respondents’ solicitors indicate (in writing) that they reserve their right to terminate the Contract. 26) On 21 September 2010 the applicant’s solicitors request (in writing) that the respondents pay the final progress claim. [24] The Tribunal finds that the parties have demonstrated an intention to no longer be bound by the terms of the contract as evidenced in the emails exchanged between them (from 22 March 2010 to 12 May 2010) as set out in paragraph [23] (above); and notwithstanding any alleged departure from their contractual obligations neither party has exercised their respective rights to terminate. -- 6 of 16 -- 7 [25] The Tribunal finds that the applicant did give notice to the respondents of a date for final inspection of the works (by emails dated 29 March 2010 and 28 April 2010); however the inspection did not take place as the respondents indicated (by emails dated 29 March 2010 and 4 May 2010 respectively) that there were incomplete works and the house had not been cleaned. [26] The Tribunal finds that the respondents’ conduct (as evidenced in the emails exchanged) was at times contradictory by making requests for the completion of certain works (which appear to be minor defects and omissions) before cleaning can be done and then requesting that cleaning be done before minor defects and omissions are attended to by the applicant. The applicant has attempted to address the issues raised by the respondents and this has led to a breakdown in communication and a departure from the parties’ respective contractual obligations. For example, on 23 March 2010 the respondents query why the cleaner is coming as there is painting (works) to be done inside and outside and on 28 March 2010 the respondents request the applicant give 24 hours notice of who will be on site and details of work to be carried out. However, in an email dated 30 March 2010 the respondents, in reply to Mr Anger’s email stating he will be attending (on 30 March 2010) to inspect the works and to complete a defect and omissions list, state that the house needs to be cleaned first and all works completed before a list of defects can be prepared. Mr Anger (in response) cancelled the cleaner and did not attend an inspection (email dated 30 May 2010). The applicant did, however, state that he would arrange for the painter to complete all touch ups (minor defects and omissions). [27] The respondents refer to various items that they claim “need to be completed” before practical completion can be reached (emails dated 22 March 2010, 29 March 2010, 4 May 2010 and 10 May 2010). No evidence was adduced (at the hearing) by the respondents to establish that that the items (to be completed) were not minor omissions or defects. The respondents did, however, indicate in an email dated 22 March 2010 that the items were “not minor defects”. The reference to “touch ups” (on 30 March 2010) and to “tidy up” (on 24 May 2010) would appear to be (in the absence of evidence to the contrary) references to minor omissions or defects. [28] Practical completion is reached as stated under the contract and as provided under s 67 of the Domestic Building Contracts Act 2000 when all works are completed in accordance with the contract and all statutory requirements apart from minor defects and omissions. The respondents have raised an issue (breach of contract) in respect of the pergola and the fascia; however, during the time in which the applicant alleges practical completion was reached (22 March 2010) the respondents have not raised any issues in relation to the pergola and the fascia (in the various emails exchanged); in fact quite the contrary. The respondents (email dated 28 March 2010) query when the shade cloth for the pergola will be installed but did not raise any issues about the pergola construction – that it was not square and that it does not extend from the roof. These are issues that have been raised in the respondents’ response and counter-application. -- 7 of 16 -- 8 Furthermore, the respondents have instructed the applicant in writing (email dated 12 April 2010) to arrange for painting of the guttering and fascia notwithstanding issues being raised (in emails dated 9 December 2009, 7 March 2010 and 29 March 2010) about replacing the guttering and fascia to “match existing”. The respondents did not raise any issues about the applicant being in breach of contract during the time of practical completion (22 March 2010) and again these issues (fascia not “matching existing”) have been raised as part of the respondents’ response and counter- application. [29] The Tribunal finds that the works, as at 9 June 2010 when a claim was made for final payment, had been completed by the applicant save for minor defects and omissions. Notwithstanding the findings made by the Tribunal about whether practical completion has been reached, the applicant is entitled to recover any money owing for the works completed under the contract on the basis that the respondents have had the benefit of the works, less any claim for defective and incomplete work.6 It is therefore necessary for the Tribunal to address the other issues raised by the respondent: cleaning, early possession and breach of contract. Cleaning [30] The respondents (in their statement) refer to numerous photographs (attachments KS79 and KS82 to 95, inclusive) which they submit show the interior and exterior of the works as being left by the applicant without being cleaned. The respondents further submit that cleaning was required to enable a final inspection to take place. [31] Mr Anger argues that numerous attempts were made to arrange final inspection and cleaning but the relationship had broken down between the parties. Mr Anger contends (in his affidavit and during cross-examination at the hearing) that notwithstanding the relationship breaking down, cleaning was done and the photos tendered by the respondents are of the outside areas so wind and dust would get in. The respondents dispute this and argue that the photos show “builders residue” and the glass on the louvers and tiles are not cleaned and it was therefore not possible to do a final inspection. The respondents also rely on an email (and affidavit) from Mr Dalton (Manager, G James Glass & Aluminium) in relation to the glass not being cleaned and that Mr Dalton was of the opinion that the glass looked like a construction site. The witness was not however called by the respondents to give evidence. [32] Mr Anger relies on the affidavit of Mr Westwood (employee) tendered at the hearing in relation to the cleaning of the external areas (6.5 hours on 13 May 2010). Ms Cornell during oral submissions argues that the respondents were not home at the time the cleaning was done and relies on the affidavit of Mr Jacobs (witness) who states that the respondents were 6 See Nguyen v Luxury Design Homes Pty Ltd [2004] NSWCA 178, see Chesire and Fifoot, Law of Contract (9th Aus Ed, 2008) p 1081. -- 8 of 16 -- 9 not home on 13 May 2010. Mr Jacobs was not required for cross- examination. [33] The evidence of Mr Dalton (uncontested) refers to the louvers as being in a “condition consistent with a building under construction”. Mr Dalton’s evidence is in the form of an email in response to the respondents’ request for a statement “outlining the condition of the glass” during his visit of the works on 26 May 2010. The evidence of Mr Dalton (email) and the reference to a “building under construction” is ambiguous in that Mr Dalton fails to address the issue of whether the louvers and the surrounding areas had been cleaned. The Tribunal attaches no weight to Mr Dalton’s evidence. [34] The Tribunal does, however, accept the respondent’s evidence that the applicant did not complete any cleaning to the interior areas. Mr Anger does not dispute that the cleaning undertaken (by Mr Westwood) was not internal but contends that the cleaning was to the external areas. The applicant has not adduced any evidence to contradict the respondents’ contention that the internal areas were not cleaned. During cross-examination at the hearing Mr Anger stated that he could not recall if arrangements were made to have the internal areas cleaned. The explanation provided by Mr Anger in response to the photographs (which he says are of the outside areas so wind and dust could get in) is not accepted by the Tribunal. The Tribunal has viewed the photographs tendered by the respondents, the originals were also produced at the hearing, and find that the photographs do show debris on the floor (attachment KS87) and smudges to the louvers (viewed from the inside – attachment KS79). [35] Ms Cornell tendered two quotes for cleaning costs at the hearing. The Tribunal finds that the amount of $1,000.00 is reasonable based on the quotations tendered (Exhibits 14 and 15). Early possession by the respondents (as alleged) [36] There are factual issues in dispute and it is therefore necessary for the Tribunal to make findings in relation to whether the respondents occupied the two front rooms (took early possession) in early January 2010 and the works are therefore deemed to have reached practical completion, as alleged by the applicant. [37] Mr Anger gave his consent in writing (by email dated 18 November 2009) to the respondents to store their belongings in the front two rooms while the tiling was being completed.7 During cross-examination at the hearing Mr Anger gave evidence that he saw a bedroom set up and that he saw people living in the two front rooms. Mr Anger referred to beds being slept in and clothes and desk furniture in the rooms. [38] Ms Cornell denies that the respondents were living in the two front rooms and gave evidence at the hearing that they had simply moved their bedroom furniture from two existing rooms (which were being tiled) to the two front 7 Exhibit 1, para 43 and attachment “T” (email dated 18 November 2010). -- 9 of 16 -- 10 rooms as they were instructed to do by the applicant. Mr Cornell states that the furniture was only recently moved back and she denies that the respondents or their family (children) had been sleeping there. Ms Cornell tendered a photograph at the hearing (Exhibit 19) of a room which she says her children have been sleeping in since November 2009 as evidence that the two front rooms have not been occupied by the respondents (or their family). The respondents also refer to the photographs taken (Exhibit 9) in relation to the cleaning of the works (issue) which Ms Cornell submits clearly shows they have not taken possession of the works. [39] The Tribunal cannot be satisfied, based solely on the evidence of Mr Anger that the respondents were sleeping in the two front rooms, as alleged. There is no independent evidence before the Tribunal to corroborate Mr Anger’s assertion that the respondents had taken up occupancy. There were obviously other tradespersons (such as the tiler) completing work at the house during the time when it is alleged the respondents took early possession and yet no independent statements have been obtained in relation to observations made about whether the respondents were sleeping and living in the two front rooms. The Tribunal has also considered the photographs taken by the respondents – the photographs (Exhibit 9) show the works as being vacant (not occupied). The Tribunal does not accept the applicant’s submission that the respondents took early possession of the works by occupying the two front rooms. Alleged Breaches of Contract [40] The alleged breaches of contract include: 1) The pergola – the respondents allege it was not constructed in accordance with the approved plans (in the contract) in that the pergola does not come off the fascia and it does not extend the entire length of the house and is a square (not with a rake). Furthermore, it was not constructed for the purpose for which it was intended and that they could not have known this until after it was finished. In particular the sun heats up a part (or gap) of the wall – the pergola was finished in winter and it was not until summer that the gap (difference from where the shade cloth ends) that the sun heated up the exposed wall by reason of the gap. 2) The fascia – it does not “match existing”. [41] The issue of whether the applicant is in breach of contract (pergola and fascia issues) is also relevant to the issue of whether or not the works had reached practical completion – it is alleged by the respondents that the pergola and fascia were not completed by the applicant in accordance with the terms of the contract and that such works are not minor omissions or defects.8 The pergola 8 Respondents’ Amended Written Submissions dated 23 March 2011. -- 10 of 16 -- 11 [42] It is not disputed that the pergola was not constructed according to the approved plans which form part of the contract. A certificate of compliance cannot issue until the respondents consent to the variation in the plans. The respondents argue that they never saw the amended plans until December 2010. [43] Mr Anger submits that it is not necessary to have a certificate of compliance from the certifier for practical completion to be reached; however he concedes (during oral submissions) that it is necessary to have a certificate of compliance to be able to insure the works under the Queensland Building Services Authority Act 1991. [44] Mr Anger argues that the respondents consented to the variation in the pergola plans. The respondents do not agree and contend that the variation (which is disputed) was never put in writing by the applicant. [45] Mr Anger admitted, during cross-examination at the hearing, that he had failed to put in writing the alleged variation of the pergola, stating that it was a “mistake on [his] behalf”. [46] It is not disputed that Mr Anger built the pergola and that it was paid for by the respondents. Furthermore, the applicant, once the pergola was constructed, painted it and installed a shade cloth at the request of the respondents. Mr Anger argues that he is therefore entitled to be paid for the work completed by him. [47] The respondents contend that they allowed Mr Anger to complete the pergola because they were scared of him and they were told by other builders to get the work done. Furthermore, the respondents contend that the pergola was not constructed for the purpose for which it was intended – to provide shade cover to the side of the house, and that this could not have been known by them until summer when the sun heated up that part of the wall which is not covered by the shade cloth. [48] The relevant factual issue in dispute concerns a conversation which allegedly took place on 6 October 2009 when Mr Anger says the respondents agreed to amend the plan so that the pergola would extend from the wall and not from the roof (fascia) because Mr Anger says the integrity of the roof would be compromised – the roof could leak if the pergola was constructed that way. [49] Mr Anger also contends that the respondents agreed to the pergola being constructed as a “square” and not with a “rake” as the approved plans show. Mr Anger argues that the respondents agreed to the design (the “square”) and the respondents dispute this and allege that Mr Anger constructed the pergola that way because it was cheaper. [50] Ms Cornell cross-examined Mr Anger at length at the hearing about the issue of the pergola being constructed as a “square”. She referred to various invoices (addressed to Mr Anger) which Ms Cornell argues is evidence that Mr Anger ordered shorter planks of wood before the alleged conversation in October 2009 (the date of alleged consent to the variation) -- 11 of 16 -- 12 and that the invoices are evidence that he always intended to build the pergola in the “square” shape. [51] Ms Cornell also gave evidence about holes being dug into the ground by Mr Anger (in August 2009) before the October conversation and that the holes (depicted in photographs tendered at the hearing) are evidence that Mr Anger intended to build the pergola “short”. This is disputed by Mr Anger. Mr Anger argues that the respondents agreed to put the posts to the left hand side of the storm water drain (also depicted in the photograph) and this is the reason why the shade cloth does not extend the entire length of the building (house) and the length of the pergola is “short” as alleged by the respondents. Mr Anger contends that the respondents agreed to the position of the post and also states that the old and new plans show the pergola finishing short of the fascia. [52] At the hearing Ms Cornell referred to quotes from builders she says can vary the design of the pergola – move the post and extend the shade cloth. Ms Cornell also referred to an email to show that she requested the builder to quote on the basis that the post was to be moved. Ms Cornell also produced quotes on the basis of demolition and reconstruction of the pergola in accordance with the approved plan. [53] The Tribunal has some difficulty with the respondents’ evidence that they did not consent to the variation in the plans as to the construction of the pergola. On 28 March 2010 the respondents emailed Mr Anger requesting that he notify them as to when the shade cloth will be fitted to the pergola. There were several emails exchanged between the parties during the construction of the works; particularly emails sent by the respondents referring to various issues but no mention of any issues with the pergola design – the square shape, the gap in the extension and that it does not extend from the roof. On 2 February 2010 the respondents emailed the applicant stating, “we want to finish painting the pergola. When will the paint be dropped off?” In the same email the respondents refer to other issues with the works such as (amongst others) the doors and bathroom. [54] The Tribunal attaches no weight to the evidence adduced by the respondents (invoice regarding material purchased) which they submit show the applicant had plans to construct the pergola (not in accordance with the plans) prior to the October 2010 conversation. Mr Anger, during cross- examination at the hearing, presented as a reliable witness and responded to Ms Cornell’s questions about the materials ordered (in the invoices) to construct the pergola. For example, Mr Anger stated (in relation to the timber ordered) that the same size timber could be used had the pergola been constructed from the fascia. [55] The Tribunal attaches no weight to the evidence adduced by the respondents in relation to the Form 61 (Exhibit 16). Mr Anger, during cross- examination at the hearing, gave evidence that the items referred to in the Form 61 were examined by the engineer (Pat Murray) on site with the respondents and the only issue outstanding is that the respondents need to “sign off’ on the amended plans to so that a final compliance certificate can be issued for the pergola (construction). -- 12 of 16 -- 13 [56] The Tribunal attaches no weight to the evidence adduced by the respondents in relation to the Queensland Building Services Authority (QBSA) licence search (Exhibit 17) which Ms Cornell contends is evidence that Mr Anger has no regard “for the rules”. The QBSA licence search shows that the applicant’s licence was suspended from 17 November 2009 to 3 December 2009 and Ms Cornell submits that Mr Anger continued work on the house during this time. The evidence (QBSA licence search and letter dated 26 November 2009) was obtained after the commencement of the hearing (tendered by Ms Cornell on 17 October 2011). Ms Cornell admits, however, that she received notification of the suspension of the applicant’s licence in correspondence received from the QBSA in November 2009 (letter dated 26 November 2009) and had “forgotten” about the QBSA letter – she had the letter in a “pile of papers”. Mr Anger, during cross- examination, stated that the reason for the suspension of the licence was in relation to providing financial documentation (to be provided by his Accountant) to the QBSA and Mr Anger stated that he continued working during the period of suspension to “keep the job moving”. [57] The Tribunal does not accept the respondents’ contention that the applicant was claiming progress claims before the works were completed. Mr Anger addressed the issues raised (for example) by Ms Cornell during cross- examination in relation to the Tax Invoice dated 27 November 2009 (claim for sheeting and plastering, Exhibit 1 attachment KS27). Mr Anger stated that there were some changes to the works (plastering) as requested by the respondents and this explained why a progress claim was issued before plastering work was completed. [58] The Tribunal does not accept the evidence of the respondents that they did not raise any issues about the construction of the pergola with Mr Anger because when they raised objections with him he became aggressive and intimidatory. Mr Anger gave oral evidence at the hearing that he has never been aggressive and denied that he has raised his voice as alleged by Ms Cornell. Ms Cornell, during cross examination at the hearing, gave contradictory evidence about this issue (intimidatory conduct) – she referred to Mr Anger’s aggressive behaviour but also stated that the respondents did not raise any objections about the pergola as they did not believe they could get another builder on site so while they explored their options they went ahead with the pergola. Notwithstanding the contradictory evidence given by the respondents about the intimidatory conduct of Mr Anger, they did not raise any objection (with Mr Anger) in their emails to the applicant during construction of the pergola. [59] The Tribunal prefers the evidence of Mr Anger in relation to the October 2010 conversation about the changes to the construction of the pergola. Mr Anger presented as a reliable witness and was able to recall the conversations with the respondents about the change in the plans – pergola coming off the wall (and not the roof) and the footing holes (length of pergola). For example, Mr Anger recalled where the respondents were standing during the October 2010 conversation – at the rear of the property near the septic tank. Mr Anger also conceded during cross-examination that the plans (existing and amended) show a slope in the pergola design (the -- 13 of 16 -- 14 pergola has been constructed as a square). Mr Anger stated that the plans do not, however, specify an angle the pergola should be placed at (the rake). The Tribunal also accepts Mr Anger’s evidence in relation to the position of the posts and that the old and new plans show the pergola finishing short of the fascia. [60] The Tribunal finds that the applicant is not in breach of the contract in respect of the pergola construction and that the respondents either expressly or implied by their actions consented to the variations in the pergola design. [61] The Tribunal does, however, accept the respondents’ evidence that when meeting with Mr Anger (prior to construction of the pergola) they indicated that they “wanted a pergola to shade the western side of the house to make it cooler” and that the pergola constructed provides inadequate shade cover to the side of the house and that this was not something which could have been known by the parties at the time of construction – it became apparent in summer that part of the wall heats up and therefore the pergola does not fulfil the purpose for which it was constructed. [62] The respondents rely on various quotations obtained for the costs associated with demolishing and rebuilding the pergola and the costs to move the existing footings and extend the shade cloth to rectify the issue of the sun heating up the side of the wall. The Tribunal has considered the decision in Bellgrove v Eldridge9 where the rectification work to be performed must be both necessary and reasonable10 and the decision in Wheeler & Anor v Ecroplot Pty Ltd11 in determining the reasonableness of rectification costs. [63] The Tribunal finds that the quotation obtained by the respondents (Exhibit 13) from Tropical Lifestyle Builders in relation to moving the existing footings and fitting a new shade cloth in the amount of $6,642.85 is reasonable and should be deducted from any money owing by the respondents to the applicant for completion of the works. The fascia [64] The respondents allege that the fascia was not installed in accordance with the terms of the contract – “like to match like”. Mr Anger (on behalf of the applicant) argues that it was not possible to match the existing fascia. [65] Ms Cornell relies on various emails from suppliers as evidence that it was possible to get materials to match the existing fascia which was installed some two months before any issue was raised by the respondents about it "matching existing". [66] The Tribunal does not attach any weight to the evidence adduced by the respondents in relation to the availability of materials to “match existing” 9 (1954) 90 CLR 613 referred to in Pulitano v Mikescapes Pty Ltd [2010] QCAT 248 and Franklin v A&S Bricklaying Service [2010] QCAT 69. 10 See Tabcorp Holdings Limited v Bowen Investments Pty Ltd [2009] HCA 8. 11 [2010] NSWCA 61. -- 14 of 16 -- 15 which they say could have been obtained by the applicant. Mr Anger gave evidence at the hearing (during cross-examination) that he had contacted several suppliers and used a material which was only “slightly different”. Mr Anger states that he removed (on 13 April 2010) guttering already installed at no expense to the respondents on the basis that they were not satisfied with the product that had been used. Mr Anger states in his affidavit that he removed the guttering in the “interests of customer relations”.12 [67] Notwithstanding the emails which Ms Cornell says support the respondents’ submission in relation to the fascia, the fact remains that the respondents told Mr Anger to arrange for the fascia (installed by the applicant) to be painted (by Mr Tony Poole) on 12 April 2010. The applicant relies on the affidavit of Mr Tony Poole who was responsible for painting the fascia at the respondents’ house. [68] Ms Cornell admits that the respondents asked the applicant to arrange for the painting of the fascia but once painted, it did not match the existing fascia. The respondents (in their statement) state that they requested the fascia be painted, as they wanted to see if it would match as the applicant refused to replace it without payment of additional money. [69] Ms Cornell relies on quotes obtained to remove the existing fascia and replace it with fascia to match the style of the house. The quote is in the amount of $6,000.00. The issue of the fascia was raised by the respondents in emails dated 9 December 2009, 29 March 2010, and 30 March 2010. On 30 May 2010 Mr Anger advised the respondents that the cost to replace the fascia would be $2,800 (before painting). The Tribunal prefers the evidence of Mr Anger that the fascia had been installed several weeks prior to the issues being raised by the respondents and that they have accepted the installation of the fascia and elected to continue with the contract by instructing Mr Anger (on 12 April 2010) to arrange for painting of the fascia. The respondents’ claim for the costs of replacing the existing fascia is not accepted. Calculation of money payable [70] The Tribunal has assessed damages (based on the findings made) as follows: Money owing under the contract - $23,534.52 LESS cleaning costs - $1,000.00 LESS pergola costs - $6,642.85 Balance owing $15,891.67 [71] The Tribunal orders that the respondents Mr Springall and Ms Cornell pay the amount of $15,891.67 to the applicant, Combined Building Services Pty Ltd by 4.00pm on 20 January 2012. Upon payment of the money owing under the contract ($15,891.67) by the respondents, the applicant is to 12 Exhibit 1, [72]. -- 15 of 16 -- 16 deliver to the respondents the keys and all documents (including manuals and certificates) relating to the works completed. -- 16 of 16 --