Auscoast Builders Pty Ltd v All State Waterproofing [2011] QCAT 491

CITATION: Auscoast Builders Pty Ltd v All State Waterproofing [2011] QCAT 491 PARTIES: Auscoast Builders Pty Ltd v All State Waterproofing APPLICATION NUMBER: BDL052-10 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Ms Kate Buxton, Member DELIVERED ON: 14 October 2011 DELIVERED AT: Brisbane ORDERS MADE: That the sum of $2,761 be paid by the Respondent All State Waterproofing to the Applicant, Auscoast Builders Pty Ltd within 30 days of this order. CATCHWORDS: Summary determination and assessment of damages for rectification – water proofing APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Auscoast Builders Pty Ltd („Auscoast‟), the applicant in these proceedings, engaged All State Waterproofing („All State‟), the respondent, in about July 2007, to perform waterproofing works at a Townsville unit development. [2] On 2 March 2010, at a point where the parties had been unable to resolve their dispute in relation to those waterproofing works, Auscoast filed an application to QCAT. Auscoast sought rectification of those works and associated costs. [3] On 29 March 2010, All State filed a response indicating a preparedness to rectify. These proceedings have been managed through a serious of directions hearings and compulsory conferences. To date, certain rectification works have been carried out to the roof. The planter boxes at -- 1 of 4 -- 2 the development have not been rectified and remain the only outstanding issue between the parties. On 21 February 2011, during a compulsory conference, the parties agreed that this remaining issue of the planter boxes be resolved by agreement in the following terms: “The Applicant and the Respondent agree to meet on site at a time between 14 March and 2 April 2011 at which time: a) The Applicant will remove soil 150 mm either side of the expansion joint in the planter boxes subject of this dispute and test for leaks with water. b) The Respondent will inspect the waterproof membrane and sealant to the expansion joint and if damaged will: i) Repair and rectify same in a proper and tradesmen like manner; ii) Shall bear the cost of such rectification. c) Upon compliance with direction (a) hereof the application shall be dismissed. d) Should there be any dispute as to as to compliance with direction (a) hereof the Building Services Authority shall be appointed by the Tribunal to undertake an inspection of the planter box and a report by the BSA shall be final and binding on the parties.” [4] However, this matter was not resolved in accordance with that agreement. The meeting did not take place on site between the agreed dates and, as a result of the meeting not having taken place, the rest of the agreement has been unable to be carried out. Directions have since been given for the parties to make submissions to the Tribunal and for the Tribunal to make a decision on the papers on a summary basis in relation to the outstanding of liability for and assessment of costs of rectification of the planter box. [5] The agreement clearly contemplated that, at the time it was made, there was an issue remaining between the parties as to who was responsible for the ongoing waterproofing issue. The material filed by the parties deals substantively with only the issue of assessment of costs. It is clear from the application that the Applicant holds the Respondent, who has carried out the waterproofing services, responsible for this issue. The Respondent has not filed any substantive material in response to those allegations and has, in relation to certain aspects of the assessment issues dealt with below, indicated a preparedness to pay those costs. On the state of the evidence available to be taken into account in determining this matter on the papers, there is sufficient evidence to form a concluded view that the issue of liability in relation to the waterproofing is not seriously in dispute by the Respondent. [6] I do not regard the task with which the Tribunal is now charged to be affected or influenced by the agreement reached on 21 February 2011. That agreement was not carried out and the Tribunal is left to adjudicate between the parties as to the liability for the re-waterproofing. I have indicated that -- 2 of 4 -- 3 this liability rests with the Respondent. In those circumstances I will turn the evidence in relation to the assessment of damages. [7] By letter to QCAT dated 27 July 2011, Auscoast has submitted what it has described as a “detailed estimate of costs for rectification of leaking planter box”. The sum of those costs is $4,589.88. [8] On 1 August 2011 All State responded by indicating that many of the items on Auscoast‟s “estimate” should be at its own cost. All State have also referred to the agreement of 21 February 2011 to determine who should pay what. The items of the costs which All State‟s admitted it should bear total $1,144 plus GST (the Applicant‟s items 5 and 6 only). [9] Despite being given the opportunity to file any relevant material, it is surprising that neither party has offered any independent evidence as to the likely cost of rectification. The Applicant‟s “estimate” appears to have been created by the Applicant to assist the Applicant and must be weighed accordingly. Having said that, All State does not make any submissions as to the reasonableness of the calculations made by Auscoast, but rather submits that it ought to be reasonable for only some, but not all, of those costs. Subsequently, in a more detailed response filed in QCAT on 6 September 2011, All State have provided alternative calculations for sums totalling $1,006 in rectification costs, again asserting that All State would be undertaking that work. The difficulty in forming a concluded view as to the cost of rectification of the planter boxes in the absence of any independent quotes, estimates or expert evidence on the topic is further hampered by the parties‟ reference to the agreement which has not been, and now cannot be, carried out and which is not applicable in the Tribunal‟s determination of this assessment. [10] In making that assessment, Auscoast claim $4,589.88 and All State submit that $1,006 is sufficient. Turning to Auscoast‟s material (filed 27 July 2011) first, I do not consider that Auscoast is entitled to any site establishment fees. They have not demonstrated why the rectification works cannot be undertaken by sufficiently local company to obviate this need. [11] As the agreement is not applicable the Respondent‟s admission that the removal soil, plants, water systems etc. should rest with the Applicant is now irrelevant. Items 2, 3 and 4 totalling $715 appear to have been arrived at using a reasonable estimate of time and hourly rate and will be allowed. Items 5 and 6 are the items totalling $1,006 referred to above which All State seems to accept are reasonable. Both these sums should be paid by the Respondent. [12] The remaining sum of $1,040 for 16 hours in labour in repairing and re- waterproofing also appears reasonable. I have already indicated that liability for the rectification costs rests with All State. The material in the Applicant‟s application, together with certain admissions made by All State, are consistent with this conclusion. Finally, I do not accept that the Applicant has proven the need for accommodation for workers or site disestablishment fees for the same reasons expressed above in relation to site establishment fees. -- 3 of 4 -- 4 [13] The allowable cost for rectification works is therefore the sum of the allowed amounts of $715, $1,006 and $1,040 totalling $2,761. I order that the sum of $2,761 be paid by All State to Auscoast within 30 days of this order. -- 4 of 4 --