Deane Australia Pty Ltd v Sinclair [2011] QCAT 55

CITATION: Deane Australia Pty Ltd v Sinclair [2011] QCAT 55 PARTIES: Deane Australia Pty Ltd v Mr Lindsay John Sinclair APPLICATION NUMBER: BD070-07 MATTER TYPE: Building matters HEARING DATE: 12 May 2009; 12-13 August 2010; and 24 September 2010 HEARD AT: Brisbane DECISION OF: Mr Paul Favell, Member DELIVERED ON: 18 February 2011 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that the Respondent pay the Applicant the claimed amount of $21,099.80. CATCHWORDS: Building contract – supply of doors and windows – whether contract was to supply to a commercial standard – terms of contract – goods chosen by sample – fitness for purpose APPEARANCES and REPRESENTATION (if any): APPLICANT : On 12 May 2009: J A McNab instructed by QBM Lawyers On 12 and 13 August 2010 and 24 September 2010: L Bowden instructed by QBM Lawyers RESPONDENT: On 12 May 2009: D N Logan instructed by Hall Lawyers On 12 and 13 August 2010 and 24 September 2010: G Thomson instructed by Hall Lawyers -- 1 of 8 -- BD070-07 / Page 2 of 8 REASONS FOR DECISION Introduction 1. On or about 14 July 2001 the parties entered into a building contract (“the contract”) for the supply of windows and doors at a site situated at 42 Cronin Avenue, Main Beach. Factual Background and Claims 2. The Applicant contends that all items under the contract were supplied and delivered, as ordered, by the Applicant on or around 22 July to 13 September 2004. Accordingly, the Applicant claims the sum of $21,099.80 as monies owing pursuant to the contract. 3. The Respondent contends that the windows and doors supplied by the Applicant were defective, of an inferior standard and were not fit for the purpose for which they were intended. 4. In particular the Respondent contends that: (a) the Applicant should have supplied commercial grade windows and door frames; (b) the windows and frames were to be made of quality materials and should have a high standard of aesthetic finish; (c) the equivalent of series 445 Aluminium extrusions as manufactured by G James Glass and Aluminium “as demonstrated by an example and in accordance with the plans and specifications of the dwellings” should have been supplied and they were not so supplied. The Applicant contends that those terms and conditions could not be made out. 5. The Respondent also counter-claims against the Applicant for the sum of $39,000.00 being the costs of removing the existing windows and doors and installing windows and doors in accordance with the original contract. Applicant’s Claim 6. The Applicant contends that the Respondent requested that the windows and doors have a wind rating of 1000 pascals and a water rating of 150 water pascals. The Applicant claims that the windows and doors supplied exceed this standard. 7. The Applicant denies a claim that the Respondent requested that the windows and doors be of a “commercial” or “semi commercial” standard prior to placing the order. The Applicant claims that the Respondent stated he was building a house. -- 2 of 8 -- BD070-07 / Page 3 of 8 8. The Applicant contends that the building falls under the category of “Residential Building” for the purposes of the Building Code of Australia building classification. 9. The Applicant contends that as the building is residential, the applicable deflection requirement for the building is “span/180”. The Applicant claims that the doors supplied are in compliance with this standard. 10. The Applicant further claims that a test by Wintec Aluminium on a door of the same make and size as the one supplied to the Respondent confirms that the doors supplied are in compliance with the Australian standards. 11. The Applicant claims that the Respondent signed a stamp on the quote/order form which stated: “Order confirmation please check the details of this order carefully as that is what will be delivered. Please sign to confirm details are correct.” The Applicant claims that this quote/order form together with the stamp that had been signed by the Respondent constitutes the contract between the parties. The Applicant further claims that the Respondent breached the contract by refusing to pay the contract amount. Respondent’s Response 12. The Respondent alleges that the terms of the contract, which it contends was breached, are as follows: (a) the slider door frames are 300 mm in excess of the maximum height specified by the manufacturer in that they are 3,000 mm high instead of 2,700mm; (b) the slider doors flex and wobble when opened or used; (c) the result of the movement of the door frames compromises the durability and water resistance of the frames and is in breach of the Australian Standards; (d) the wind rating of the downstairs doors and windows is not sufficient or satisfactory to meet the Australian Standards or the consent conditions for the dwelling situated at Main Beach; and (e) the upper floor windows supplied were of domestic grade. Respondent’s Counterclaim 13. The Respondent claims that he was unable to have the premises certified until the windows and doors complied with the Australian standard. 14. The Respondent claims the anticipated costs of bringing the windows and doors to the compliance of the Australian standard which are as follows: (a) $2,000.00 for the removal of the existing doors; and -- 3 of 8 -- BD070-07 / Page 4 of 8 (b) $37,000.00 for the replacement costs of the windows and doors. Reasons 15. The Applicant’s claim is for monies owing pursuant to a written contract dated 14 July 2004 for the supply only of windows and doors to the Respondent at 42 Cronin Avenue, Main Beach. 16. GD8 to exhibit 5 is a quotation/order from C-View Windows dated 14 July 2004. It is quotation number 8538. It contains various items with the quantity of each item and their description of each item along with the price. The finish of the items is noted as “stone beige” and the type of glass is “CLR Float”. The wind load is noted as “P1000/W150”. The invoice also has the following words on it: “Order confirmation. Please check the details of this order carefully as this is what will be delivered. Please sign to confirm details are correct. Signature (respondent’s handwritten signature). Date. 15/07/04. Goods delivered and installed remain the property of C- View and can be repossessed unless fully paid for.” 17. That quote was signed by Mr Sinclair, the Respondent. The total amount on the quotation/order, including GST, was $31,593.10. 18. Mr Graham Deane is a director of the Applicant. The Applicant manufactured aluminium windows and doors and was a Wintec and Bradnam product fabricator. It manufactures and supplies windows and doors using Wintec and Bradnam products. 19. Mr Deane’s evidence was that the agreement was for the supply only of windows and doors and the Respondent was responsible for the installation of the windows and doors that were supplied. After hearing the evidence I accept that was correct. 20. He said that Mr Lindsay Sinclair, the Respondent, visited the Applicant’s showrooms on three separate occasions prior to placing the order for the windows and doors. Mr Deane dealt with Mr Sinclair personally. He said that Mr Sinclair viewed various products in the showroom and took away samples of aluminium used in relation to the construction of the sliding doors. Mr Deane was told by Mr Sinclair that he intended to give the sample to a builder for sizing prior to placing the order. He says that Mr Sinclair then ordered the windows and doors based on the products that he had inspected in the showroom and also in respect of the samples that he had taken away. Mr Deane said that he was informed by Mr Sinclair on the first visit that the windows and doors needed to have a wind and water rating of P1000/W150. 21. The items which appear on the quote were as follows: (a) Items 1 – 4 were Wintec doors; (b) Item 5 was a Bradnam’s fixed frame window; (c) Item 7 was an aluminium bi-fold door; -- 4 of 8 -- BD070-07 / Page 5 of 8 (d) Items 8 and 9 were Bradnam’s sliding doors; (e) Items 10 – 19 were Bradnam’s double hung windows. 22. On or about 12 June 2004, the son of Mr Sinclair arrived at the showroom with a 1m x 1m example of a sliding door transported on the back of a ute. Mr Deane viewed that door and was told that was the type of door that Mr Sinclair wanted. He recognised that the example was a Wintec door and it was the product that Mr Sinclair had ordered from the examples in the showroom. 23. The windows and doors supplied were made at the Applicant’s factory and the first of them was delivered on 22 July 2004. On 2 September 2004, the balance of the order was delivered. Mr Deane said that the Wintec doors and the Bradnam windows and doors supplied to Mr Sinclair exceed the requirements of the specifications requested. Mr Deane denies an allegation by Mr Sinclair that Mr Sinclair, in placing the order, mentioned the term “semi-commercial” and referred to G James 445 Aluminium series products. He said that he was never provided with plans or architectural drawings for the project. 24. Mr Sinclair gave evidence of the circumstances of ordering the doors and windows. Part of his evidence is set out in exhibit 7 wherein he describes having conversations with Mr Reid about the type of doors and windows. Mr Sinclair said that he told Mr Reid that he would like them to be similar in style and appearance to the G James 445 series. He says that when the doors and windows were delivered they were not similar to the G James 445 series and he complained about that. 25. Malcolm Reid gave evidence that Mr Sinclair came to C-View one evening and enquired about windows and doors for a project. He went over what he required. Mr Reid showed Mr Sinclair a range of bi-folds, stacker doors and windows and he said that Mr Sinclair accepted those in the showroom. Those that were shown to Mr Sinclair were a standard range. He said that he had never heard of G James 445 series and that that was not mentioned to him. He also said that the terms “commercial quality” or “standard” were not mentioned at any stage. He was specifically cross-examined about the conversations said to be had with him as they are set out in exhibit 7. He denies the majority of those conversations. He said that Mr Sinclair was shown Bradnam doors and windows as they were in the showroom. I accept Mr Reid’s evidence. His evidence was forthright and, in my view, credible. 26. Damien Macklin was the General Manager of Deane Australia Pty Ltd. He gave evidence concerning a meeting of 15 September 2004 wherein Mr Sinclair contends that he told Mr Macklin and Mr Reid: “these window frames are nothing like G James 445 series. They are nothing like the frames that Deane showed me in his office when I placed the order for these. They are not commercial frames and they are totally unacceptable. In addition, it appears that you have used three different materials from different manufacturers to create the frames which you never told me about and had I known I would not have ordered these frames.” -- 5 of 8 -- BD070-07 / Page 6 of 8 Mr Macklin recalls some of the statement in that a 445 series was mentioned, but he says that there was no mention of frames shown by Deane in the office. He accepted that Mr Sinclair said to him words to the effect “Are these commercial?” and that Mr Macklin replied with the words to the effect “No, they are what we call semi-commercial”. He said that he asked Mr Sinclair if the doors were taken out of the equation, would Mr Sinclair pay for the rest and Mr Sinclair said that he would not. 27. Mr Macklin is no longer an employee of the Applicant. I thought his evidence was credible and I accept his evidence. 28. Mr Eric Fox, a consultant engineer, considered the classification of the building in accordance with the Building Code of Australia and the applicable parts of AS2047. He was of the view that the correct part of the Standard to use in order to satisfy any stated requirement for commercial grade doors was “subsection 2.3.2 Residential Buildings”. The standard requirement from clause 2.3.2.3 was that the deflection ratio not exceed “span/180” when tested with the specified wind pressure. In his view, the doors, as tested, exceeded the minimum requirements of AS2047-1999. 29. Exhibit 16 is a report prepared after the conclave of experts was held. Mr Olley is an accredited NATA technical assessor for Wintec Aluminium. He, and Mr Jeffrey Hills of Jeffrey Hills & Associates, were present when there was a testing of Wintec doors after a site meeting at the Respondent’s residence. Mr Olley inspected Wintec sliding doors on the ground floor at the southern end of the residence and found it was a Wintec standard sliding door with add-on tracks. He said that the doors were difficult to operate and he noticed that the sill was full of dirt and debris. The rollers had stopped turning and the door was skidding due to the dirt and debris in the rollers. 30. A deflection test on the doors was carried out on the door panel with the dimensions of 3 metres x 2.40 metres. Mr Hills measured the panel and checked that the aluminium extrusions were the same as the ones installed at the Respondent’s residence. The tests that were conducted were a deflection test, an ultimate strength test, and an operating force test. The results of the tests are agreed on. 31. On my reading of the reports, and having heard the evidence given by Mr Olley and Mr Hills, the real difference between them is whether the appropriate standard required a performance requirement of 180 or 250. The difference in the performance requirement arises because of the applicability or otherwise of an Australian standard. The deflection requirement for residential building construction is a span over 180. The deflection requirement for commercial buildings is 250. 32. The testing shows that the door, as tested, exceeds the span at a deflection of 180, but in one respect, fails the performance criteria for 250. 33. I am of the view that what was ordered was by reference to samples which were shown to Mr Sinclair in the showroom. I find that the products ordered were not by reference to G James 445 series or by reference to a commercial standard. The reference to “COMM” in the invoice is a reference to a type of product which formed part of those shown to Mr Sinclair. -- 6 of 8 -- BD070-07 / Page 7 of 8 34. Accordingly, in my view the appropriate standard to be applied was the residential standard and the evidence establishes that the products meet that standard. 35. Mr Klaus Schrader is a semi-retired consultant to the aluminium and glass industry. He was formerly the manager of G James Glass & Aluminium. He gave evidence, having examined the aluminium doors and windows at 42 Cronin Avenue, Main Beach. That inspection took place on 1 June 2009. He found that the Wintec stacker sliding doors on the southwest corner of the ground floor had bowed interlocking stiles to the extent that the glass edge was showing roughly at mid-seam. The leading locking door was excessively floppy in the open position and the other three-door panels also had far too much flexing (wobble) in the external interlocking stile in the open moving position. He found that the doors were hard to slide, mostly due to an installation and an adjustment problem. He found bi-fold doors in the right hand villa were unserviceable. In his report which became exhibit 33, he distinguished between residential and commercial doors. He commented on the performance and properties of the doors installed, and with respect to the stacker doors of three metres height, he found that the mullions were extremely flexible, to the extent that the interlocking stiles collide prematurely in the closing process and that banging together caused the stiles to partly pull away from the glass at roughly mid point. That problem could be addressed by the fitting of a small sheet stainless steel guiding ramp to facilitate the smooth interlocking of meeting stiles. The doors were residential doors, as were the bi-fold doors. The bi-fold doors, which were found to be not serviceable, were most likely due to a clearance or installation problem. 36. He found that two different brands of sliding doors (Bradnam Aluminium and Wintec Aluminium) had been used on the same project. He agreed with the evidence of Bevan Sim Architect that the sliding doors should be uniform in appearance. In my view, that may be so, however it was a matter for the owner to determine what sliding doors were to be provided. I am of the opinion that what he chose was supplied. 37. Mr Schrader, in his report, was of the view that the three metre high doors installed on the ground floor rear elevation were not fit for the purpose for which they were intended. That may also be true, however, on the evidence I find that the doors ordered were by sample and the Respondent did not require or rely upon the Applicant to design doors and warrant their suitability. Further, the installation of the doors and windows was a matter for the Respondent. 38. During his oral evidence, Mr Schrader commented that the Wintec door was one of the better doors on the market and that it had good features but there was a problem when the height of it was increased. He accepted that the defects shown in the photographs attached to his report could be caused by abuse, such as slamming the door and the like. 39. Important to this case is the determination of whether or not the contract was for the sale of goods or the installation and sale of goods. On my finding, the contract was simply for the supply of goods. In my view there is no credible evidence to suggest that there was to be an element of installation. -- 7 of 8 -- BD070-07 / Page 8 of 8 40. I accept that for the Applicant to succeed on its claim, it must prove those matters which are set out in section 50 of the Sale of Goods Act 1896. In my view, the Applicant has successfully shown that there was a contract for the sale of goods, that property in the goods the subject of the contract passed to the buyer and that the buyer has wrongfully neglected or refused to pay for the goods. 41. The refusal to pay for the goods was on the basis of an allegation that the goods were not for a particular purpose and/or not in accord with the terms of the contract. That is, that they were not of a commercial standard as required and/or that they were not similar to a G James 445 series product. 42. In that regard the Respondent had the onus of showing that the terms and conditions, if relied on, are made out. In my view, the Respondent has not shown that the terms and conditions that he relies on are part of the contract the subject of this dispute. 43. It may be that Mr Sinclair had in his mind a certain look for his windows and doors, but in my view he has not shown that that certain look was communicated to the Applicant or that there were conditions of the contract that the doors or windows be of a commercial grade or similar to the G James 445 series. 44. On the evidence, the use of the expression “commercial” in the quotation was used in a descriptive sense. I accept that it was used to distinguish one product from another and that the words are representational or descriptive in nature and not promissory. They are not the basis for a warranty. 45. So far as the appearance and finishes are concerned, the evidence establishes that it was Mr Sinclair, in choosing from samples the particular products, who determined the appearance and finish. There is nothing to suggest that the appearance or finish is a departure from the samples shown to Mr Sinclair. 46. In my view, the claim made by the Applicant is made out and the counter- claim by the Respondent is not. 47. Accordingly, I order that the Respondent pay the Applicant the claimed amount of $21,099.80. 48. The parties at the end of the hearing asked to address on costs separately. In that regard, I direct that the parties are to deliver any submissions on costs in writing on or before 4pm on 11 March 2011. -- 8 of 8 --