Ambience Designer Pools and Spas Pty Ltd v Curry and Anor [2011] QCAT 614

CITATION: Ambience Designer Pools and Spas Pty Ltd v Curry and Anor [2011] QCAT 614 PARTIES: Ambience Designer Pools and Spas Pty Ltd v Jason Curry Yvonne Cochrane APPLICATION NUMBER: BDL366-10 MATTER TYPE: Building matters HEARING DATE: 16 August 2011 HEARD AT: Brisbane DECISION OF: Mr Paul Favell, Member DELIVERED ON: 9 December 2011 DELIVERED AT: Brisbane ORDERS MADE: Mr Curry and Ms Cochrane pay Ambience Designer Pools and Spas Pty Ltd $4,920.68 by 4:00pm on 23 December 2011. CATCHWORDS: Domestic swimming pool contract – Variations – Progress claims – Non payment – Valid termination – Counterclaim APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Victor Todorovic on behalf of Ambience Designer Pools and Spas Pty Ltd – self represented RESPONDENT: Mr Jason Curry and Ms Yvonne Cochrane – self represented REASONS FOR DECISION [1] On or about 6 July 2010 the applicant, Ambience Designer Pools and Spas Pty Ltd (“Ambience”), and the respondents, Jason Curry and Yvonne Cochrane, signed a SPASA Domestic Swimming Pool Contract pursuant to which Ambience was required to construct a swimming pool at 19 Elkington Circuit, North Lakes, the home of Mr Curry and Ms Cochrane. -- 1 of 5 -- 2 [2] The contract price was $41,130.00. [3] The contract was made up of a Contract Schedule, General Specifications, a list of pool/spa equipment, a Prime Cost Schedule, a list of additional charges, a sketch of the proposed pool special conditions and general conditions of contract. The contractor’s margin contract price and provisional sums were included. [4] Ambience contends that it performed the works required by the contract between July and September 2010. It issued four invoices to a total of $33,130.95. That amount included $2,295.95 for variations. Mr Curry and Ms Cochrane paid Ambience $28,609.00. An amount of $4,521.95 of the claimed sum was not paid and Ambience claims that amount and $7,325.00 as damages for breach of contract (loss of profits). [5] It also claims interest and an order for the return of items supplied by Ambience but not paid for by Mr Curry and Ms Cochrane. [6] Ambience sent a Notice to Remedy Breach to Mr Curry and Ms Cochrane on 13 October 2010, which also included a Notice of Suspension of Works and a Notice of Intention to Terminate Contract. [7] The basis of the Notice was an alleged breach of clause 10 of the contract in that payment of two invoices had not been made in full within 5 days. [8] Clause 10 of the contract required Mr Curry and Ms Cochrane to pay each progress claim or other payment request immediately upon receiving the claim or request. If Mr Curry and Ms Cochrane disputed the amount stated in a progress claim they were obliged to pay that part of the claim not disputed and give Ambience a written notice setting out the grounds of the dispute on the balance within 5 days. Mr Curry and Ms Cochrane had no right to deduct any amount from a progress payment due to Ambience. [9] Clause 16 of the contract allowed Ambience to give Mr Curry and Ms Cochrane a notice in writing, setting out the specific details of the failure or default, and stating its intention to terminate the contract, if the failure or default was not remedied within 5 days and when Mr Curry and Ms Cochrane had failed to pay any progress or other amount due to Ambience within the time allowed for by the contract and the default or failure was capable of being remedied. [10] If Mr Curry and Ms Cochrane did not remedy the failure or default within the 5 days, Ambience could terminate the contract immediately upon giving them a further written notice. [11] I am satisfied that Ambience, by invoice numbers 314 and 326, made progress payment claims for Stages 2 and 3 respectively in accord with the contract and I am satisfied that those claims were not paid in full within the time allowed under the contract. [12] I am satisfied that Ambience did give Mr Curry and Ms Cochrane a Notice to Remedy Breach dated 13 October 2010. I am also satisfied that Mr Curry and Ms Cochrane did not remedy the breach. -- 2 of 5 -- 3 [13] I am satisfied that Ambience was entitled under clause 15 of the contract to suspend work, which it did and it was entitled to give the notices contemplated by clause 16 of the contract. [14] I am also satisfied that Ambience was entitled to terminate the contract under clause 16(3) of the contract, which it did by an emailed letter dated 27 October 2010. [15] Upon termination of the contract, Ambience was entitled to recover its losses and expenses arising from the breach and the termination of the contract. [16] Invoice number 326 was a claim for Stage 4 under the contract relating to the installation of filtration equipment. In Annexure “A” to the claim it was described as a claim for the completion of Stage 3, the completion of coping. That annexure was amended at the hearing of this matter to reflect the actual claim made, and the claim partly the subject of the notices given. [17] Part of the claim of Ambience is “$7,325 being for damages suffered as a result of loss of profit”. During the hearing I was told that that claim included $3,000-$4,000 for damages, legal costs and a sum for the items admitted as being provided to Mr Curry and Ms Cochrane as set out in paragraph 10 of Annexure “A”. [18] The response of Mr Curry and Ms Cochrane prior to the hearing was to deny that Stage 3 had been completed. That is no longer part of Ambience’s claim in that the Stage 3 claim is not pursued and Stage 4 is claimed. [19] I was informed by Mr Todorovic that Stage 4 was complete. Photographs of the installed filtration systems are exhibit VT7 to exhibit 1. [20] I accept that the stages claimed had been completed and the claims were appropriately made. Mr Curry and Ms Cochrane have not claimed otherwise. The claims complied with clause 10 or clause 26 of the contract. [21] Mr Curry and Ms Cochrane claim that Ambience terminated the contract without sufficient reason based on an unpaid progress claim for incomplete works. I do not accept that claim for the reasons I have given above. [22] Mr Curry and Ms Cochrane claim $24,821.00 from Ambience made up of $6,074.00 for out of pocket for costs to complete works including the unpaid progress claim works in question; $8,843.00 for rectification of defective work and damage caused by the applicant; $9,904.00 for “award for damages and legal fees”. [23] The last mentioned claim above was said to be particularised in Annexure “B” to the response to the claim. Annexure “B” is a record of a time line. The contents of Annexure “B” do not form a basis for this claim. There is no entitlement under the contract. There is no particularisation of the claim and no basis for quantifying the claim. [24] The rectification claim primarily concerns the cost of rectifying a damaged deck over which machinery passed during construction of the pool. Ambience had admitted liability for the replacement or rectification of the deck. During the hearing I was informed that the insurance company CBE -- 3 of 5 -- 4 agreed to pay for the deck and that Mr Todorovic undertook to remit the payment for the deck in full to Mr Curry and Ms Cochrane and pay the $500.00 excess. I was told that such a proposal was acceptable and the Tribunal need not be further concerned with that part of the claim. [25] Mr Curry and Ms Cochrane claimed that some items which should have been supplied under the contract were not provided. One such item was three underwater spa electronics niche lights with a quoted price of $990.00. During evidence, Mr Todorovic agreed to reimburse $400.00 for one light which was provided for in the contract but was not on the plan which he says accompanied the contract. [26] Mr Curry and Ms Cochrane say that the following items were included in the contract but not supplied by Ambience: a) Skimmer box lid $118.00 b) 3-way valve $ 36.00 c) Eyeball white parts $ 22.00 d) Suction 50mm parts for pool pipes $ 26.00 e) Backwash trenches, pipes and hookup $500.00 f) Completed install of pipes / valves / fit pump / backwash / test pipes $305.00 Total $1,007.00 [27] I was not supplied with evidence of the cost of those items. Mr Todorovic admitted that the backwash connection was not begun. He said he supplied the backwash line but could not connect them because he was waiting for a licensed plumber to carry out the work. He said a 3-way valve was not supplied because it was not part of the filtration system but was part of a water feature. [28] Mr Curry and Ms Cochrane make their claims primarily based on the presumption that the contract was not validly terminated. For the reasons I have already given, the contract was validly terminated. [29] Ambience is entitled to its claim of $411.95 (balance of invoice number 314) and $4,110.00 (balance of invoice number 326). [30] Ambience is also entitled to its loss of profit on the remainder of the work, which on the contract price is $10,295.00. There is no evidence of what the profit would be and in those circumstances the Tribunal is unable to determine the quantum of the loss of profit. [31] Under the contract, Ambience is entitled to interest on overdue payments at the rate of 10 per cent. At that rate, the interest award should be $452.20 per annum. I award interest for 13.5 months, namely, $508.73. [32] Mr Curry and Ms Cochrane are not entitled to the cost of completion of the pool because the contract was validly terminated. They are entitled to the -- 4 of 5 -- 5 cost of remedying any proven defect. I have not been provided with evidence of defects. I do not accept any order should be made for defects. [33] Both parties represented themselves. Both apparently had incurred legal costs but neither proved those costs. I am not satisfied that the interests of justice require a departure from the usual order for costs under section 100 of the Queensland Civil and Administrative Act 2009, namely, that each party bear their own costs. [34] During the hearing, Mr Curry and Ms Cochrane conceded that they should pay $290.00 with respect to part of the claim in paragraph 18 of the Annexure to the claim. The respondents have the items listed in paragraph 10 of that Annexure for which Ambience has paid but not proved the cost. The items are not able to be returned and in the circumstances I am unable to determined any compensation order or cost of supply. [35] Further, Mr Todorovic conceded that he should pay $400.00 because of one fewer light. [36] Accordingly, the order of the Tribunal is that Mr Curry and Ms Cochrane pay Ambience Designer Pools and Spas Pty Ltd $4,920.68 by 4:00pm on 23 December 2011. -- 5 of 5 --