Duggan v Berry t/a Hotondo Homes Yeppoon [2010] QCAT 409

CITATION: Duggan v Berry t/a Hotondo Homes Yeppoon [2010] QCAT 409 PARTIES: Ms Ellen Joyce Duggan v Mr Neville Berry t/a Hotondo Homes Yeppoon APPLICATION NUMBER: BD418-08 MATTER TYPE: Building matters HEARING DATE: 17 & 18 June 2010 HEARD AT: Rockhampton DECISION OF: P McGrath – Presiding Member DELIVERED ON: 18 August 2010 DELIVERED AT: Rockhampton ORDERS MADE: 1. That the Respondent pay the Applicant the sum of $3340.94 within 60 days. 2. That the Respondent complete the deck staining as agreed by 30 September 2010. CATCHWORDS : Domestic Building dispute APPEARANCES and REPRESENTATION (if any): APPLICANT : Ms Ellen Joyce Duggan appeared in person. RESPONDENT: Mr Neville Berry t/a Hotondo Homes Yeppoon appeared in person. -- 1 of 8 -- BD418-08 / Page 2 of 8 REASONS FOR DECISION 1. This application was filed by Ellen Duggan in the Commercial and Consumer Tribunal on 20 November 2008 and a subsequent defence was filed by Neville Berry trading as Hotondo Homes Yeppoon on 27 November 2008. 2. There are a number of claims by the Applicant Ms Duggan and her claims have been amended as the proceedings have continued originally through the Commercial and Consumer Tribunal and now through the Queensland Civil and Administrative Tribunal. 3. The application related to the erection of a house property by Hotondo Homes (here and after called the builder) for Ms Duggan (here and after called the owner) at Lot 60 Miami Crescent Pacific Heights, Yeppoon in the state of Queensland. 4. The matter was heard in Rockhampton on 17 June 2010 and both the owner and the builder appeared. The owner called a witness, Mr Terry Bishdon and the builder called one witness, Mr Brad Crook. I have taken into accoun the evidence of these witnesses as well as the evidence of the parties themselves. 5. There are some 11 claims by the owner against the builder and there are some counter claims in reply. I propose to deal with each of the items in the claim sequentially to determine whether or not the claim and or the counter claim if appropriate should be allowed. Claim One 6. This relates to the rectification of retaining works from 0.5 of a metre to 1 metre of solid ground as per the original plans before the council amendment for which no notification was allegedly given by the builder to the owner and was made without a signed variation. The owner states that there is an estimate of approximately $3263.00 to rectify the retaining works. 7. The residential contract to build the property was signed on 7 September 2007. The plans for the property were approved by the Livingstone Shire Council on or about the 19 September 2007. Apparently council regulations required an amendment to the plans which required a concation of the retaining wall of the retaining wall on the western boundary. The owner states that the amendment on the western boundary from 1.5 to 2 metres resulted in the distance between the house and the retainging works on the eastern boundary being reduced from 1.5 of a metre which meant she was unable to get round the corner of her house with any gardening equipment and there was consequently a drop of 1.8 metres at this point on the property. 8. The builder states that there was discussion with respect of the truncation of the retaining wall and that an engineer, Mr Mark Hull suggested the truncation. The builder admits he did not notify the owner of the variation of the retaining wall as per the contract. 9. The builder states that the minor works contract was signed for a retaining wall with a maximum height of 1.8 metres to be constructed as per the quotation but no application was made to the Council by the builder to amend the western boundary from 1.5 metres to 2 metres, this amendment was made by Council when approving plans on or about 19 September 2007. The builder states that the house could not have been moved closer to -- 2 of 8 -- BD418-08 / Page 3 of 8 the road as it is located the minimum distance of 6 metres from the front boundary and the developers covenant requirements provided that the building shall be 2 metres from the side boundary for 2 storey dwellings. To move the wall further away from the house would have meant increasing the height of the wall above the 1.8 metres allowed in the contract. 10. Mr Bishdon provided an estimate to extend the retaining wall which did not include drawing new plans, new engineering and new council approval. The builder states that this would be required as it would be a new wall over 1.8metres high and would require a new contract. The builder estimates the total cost of the new retaining wall including revised plans, engineering and council approval would be $5,000 and again 160mm would not warrant that expenditure. The owners accusation against the council was referred to the BSA resulting in the BSA upholding the council decision and no loss had been incurred, according to the builder. 11. Whilst the owner might have suffered some inconvenience in the relocation of the retaining works they were done subject to council approval and in the circumstances her claim in this respect is disallowed. Claim 2 12. Claim 2 relates to the widening of a stair case inside the property. The owner states that she made a verbal request that the internal stair case be widened from 900mm to 1100mm. 900mm is the internal measurement of the stair case as shown on the house plan. On 15 April 2008 the owner signed a variation to widen the internal stair case and she did not check the measurement until after she had moved into the house. The internal measurement is 990mm, which is confirmed by Mr Bischdon in his evidence. In reply the builder stated that the 900mm refers to the overall measurement of the staircase including the springers and rails and this was widened as per the variation sought by the owner. 13. In reply the builder stated that the rails are now 1100mm apart but that does not mean that the distance down the stairs would be 1100mm. The measurement from the top of the rails is 1100mm but it has to take into account a distance between the wall and the steps going down to the ground floor and it was not possible to have the same width at the top of the staircase as at the bottom. The owner claims a refund of $2500 in relation to this claim. I am satisfied that the builder varied the width of the staircase at the top as sought by the owner and therefore this claim must fail. Claim 3 14. Claim 3 relates to the decking and the exterior wood finish to the decking. The owner states that 3 coats of Sikkens exterior wood finish were included in the contract. After approximately 4 months after moving into the house the wood finish was showing significant signs of erosion. The owner states that this was placed on a 6 months maintenance list which was due on 22 February 2009 and provided to the builder on 13 February 2009. The builder apparently, by letter of 30 March 2009 stated that – “The coating was applied as directed, it is the owners responsibility to continue maintenance as per the maintenance guide given on handover”. -- 3 of 8 -- BD418-08 / Page 4 of 8 The owner states that she contacted the Sikkens representative who said that 3 coats of Sikkens should not erode within 4 months and a query was forwarded to her to be completed by both the painter who applied the finish and the builder to determine what “had gone wrong”. The painter applied the wood finish with a pad adaptor as application was not recommended by spray, roller or applicator pad. 15. The maintenance guide provided that all hard wood decks should be left uncoated for as long as possible until all the extractives have leached from the timber fibres and the timber is thoroughly dry. For very dense, slow drying timbers such as spotted gum (which this was) it is recommended a minimum of 6 months or more. 16. The builder agreed that the decking needed to be recoated and had proposed to do so although because of an unusual amount of rain in early 2010 the recommendation was that the recoating be left until at least September. The issue was that the moisture content should be under 18% before recoating should it take place. The builder stated that the painting of the deck was applied appropriately after being sanded the builder agreed to recoat the deck and the Tribunal is of the view that this should be done as soon as the appropriate moisture level has been reached, in the circumstances this should be done no later than 30 September 2010. Claim 4 17. Claim 4 relates to the progress payments made by the owner to the builder apparently there was a changed methodology with respect to the payments. The owner states that when the contract was signed on 7 September 2007 the owners daughter, Miss Selina Berry, went through the contract with her. The owner states that she believes an inadequate explanation was given to her from the change from method A to method B. She was not advised that method A contract built to all stages is the standard “designated stages” and the stages listed in method B were significantly altered. Method A would involve a percentage ratio of 30% up until the enclose stage and 70% for the following stages whereas method B was changed up to the enclosed stage and 30% for the following stages. The owner states that the consequences of the change in percentage rates meant that in various stages of the contract the amount she owed the builder was significantly less than the work that was still to be done and that the builder benefited greatly by receiving 70% of the contract before the enclosed stage. The owner states that she paid $4,210.57 in interest under method B as opposed to $1263.00 that she would have paid under method A, being a difference of $2,947.00 which she is claiming. 18. The builder states that the methodology of progress payments was explained to the owner, she signed the methodology B as did the builder and it is clear on the face of it the owner was aware of what she was up for by way of progress payments at each stage of the construction. The builder stated that methodology B relates to a multi story house as opposed to methodology house as opposed to methodology A which relates to a single story premises. The Tribunal is satisfied that the owner was aware of the progress payment methodology and accordingly in her claim for interest is disallowed. Claim 5 19. This relates to the timber decking and other flooring in the premises, the Applicant states that the contract which was signed on 7 September 2007 included black butt select grade -- 4 of 8 -- BD418-08 / Page 5 of 8 timber flooring and spotted gum decking. It was the responsibility of the builder to supply and lay this flooring. The decking was to be supplied and installed by Northern Rivers Timbers. The owner states that she advised Miss Selina Berry during the signing of the contract on 7 September 2007 that Northern Rivers Timbers would require 3 months notice to ensure the availability of the timber and that she advised the builder on at least 1 other occasion that 3 months notice was required. 20. The owner states that at a later date which is unknown she was verbally advised by the builder that Northern Rivers Timbers would no longer be supplying and installing the timber as per the contract as the timber was unavailable and that the cost for transporting the timber to Yeppoon were far higher than originally quoted. The owner states on 3 May 2008 she discovered that the partially laid decking timber was not 140 x 25mm as specified but was 130 x 19mm. She complained to the builder about the change in contract in variation credit of $1500 was signed by her. This amount was for the different size that he partially laid. 21. The owner states that she requested on several occasions a copy of the invoice in respect to the timber but this was refused and she wasn’t able to establish the grade of the timber. By email of 11 June 2008 the builder stated – “Our contract price is to build your house is a fixed price contract this means that I do not charge you extra if items cost more than I have allowed which they have. Likewise if they cost less you cannot claim a refund.” 22. The owner subsequently received tax invoices following a directions hearing in the Tribunal and the owner subsequently requested a price from Northern Rivers Timbers which price was more than the timber purchased by the builder. The difference was $4.49 per linear metre between 140 x 25mm select grade and 130 x 19mm standard (?) grade. The owner claims an amount of $2,226.70 being the price difference of $20,726.70 less $1,500 already paid by the builder. The owner received a letter from the builder dated 26 May 2009 claiming an amount of $19,085.52 which letter stated “clients are responsible for any costs over and above the allowance”. The builder claims the difference in cost of timber as he had to purchase timber from a different supplier and arranged for it to be laid. The Tribunal accepts that there was a difference in the cost of the timber for the decking but refers to the email dated 11 June 2008 from the builder to the owner which states – “I do not charge you extra if items cost more than I have allowed which they have”. In the circumstances both the owners claim and the builders counter claim in respect of this item is disallowed. Claim 6 23. This claim relates to the eastern boundary retaining wall, the owner states that she wrote to the builder regarding this issue on 13 February 2009 as part of the 6 month maintenance list. She stated that part of the retaining wall was considerably lower than the house site level. When she signed the contract the retaining wall and the site levelling quotation she had thought that the retaining wall would be the same height or near to the height of the house level site. The owner states that she was not on any occasion warned the retaining wall on the boundary would be considerably lower than the height of the house site. 24. The builder replied on 19 February 2009 stating that on commencing construction of the house there was an agreement to raise the house to the same level as the garage and -- 5 of 8 -- BD418-08 / Page 6 of 8 avoid having to step down from the garage. A credit was given for this as there was less work involved. The owner states that the difference in height between the retaining works and the house site is significantly more than 300mm. The owner states that she has obtained the quote from Terry Bishdon to raise the height of the existing eastern retaining wall and this quote is for $1734.00. The builder states that the wall which was erected was designed by Mark Hull the engineer, as per the quote, and the height was 1.8 metres at which it was constructed. The owner states that she paid the final claim even though she thought the works had not been completed. The builder states that the owner inspected the retaining wall works before construction of the dwelling commenced and made payment of final claim accordingly. In the circumstances the claim by the owner is disallowed. Claim 7 25. Claim 7 relates to the commencement of the building. The owner is claiming liquidated damages of $10 per day from 7 September 2007 when the builder commenced on the work site until 31 October 2007 which is when the builder claims the contract commenced being a total of 54 days at $10 per day. 26. The owner states that materials were delivered to the site on approximately 7 September 2007 but work was not commenced until 1 November 2007. On 21 August 2008 in answer to a query by the owner the builder replied, “Your contract date commences on the preparation of the footing slab when the piers are poured our invoice is for concrete confirm that this was done on 31 October 2007 your contract start date is therefore 31 October 2007”. The residential building contract item 9 states the date for commencement is “on preparation of footings/slab”. The date of practical completion is 273 days. The builder states that the preparation for the slab i.e. site levelling, profiling, plumbing trenches commenced approximately the 27-28 October, practical completion occurred on 22 August 2008 which is approximately 290 days extension of time given because of implement weather. In the circumstances the Tribunal finds that there may be approximately 7 days that the owner could claim liquidated damages and orders that the builder pay the owner the sum of $70.00 in relation to this claim. Claim 8 27. This claim relates to the supply of 79 lineal metres of retaining wall in respect of the erection of the retaining wall. The retaining wall and site levelling quotation states, “supply 79 lineal metres of retaining wall – hardwood”. The retaining wall measures 71.4 lineal metres. The owner wrote to the builder on 18 May 2009 about this. She stated – “I can only assume that when the suggestion was made to truncate a section of the retaining wall to save money and a 3 metre height corner post the saving was not passed on.” The wall is 7.6 lineal metres short of the quotation this amounts to an amount $2,423.94. The Tribunal notes that the builder did not dispute that the retaining wall is shorter than the original length quoted and accordingly the amount claimed by the owner is allowed in the amount of $2,423.94. -- 6 of 8 -- BD418-08 / Page 7 of 8 Claim 9 - Window 28. This relates to a window in the family room. The house plans show a 1200mm window in the family room, the owner states that on the original plan the family room was to be on the western side of the house and the kitchen on the eastern side. This was changed and the kitchen window had to be 1200m high to allow for kitchen cupboards underneath and the family room was to have a full length window. During the construction 2 1200m high windows were fitted, 1 to the kitchen and 1 to the family room instead of a full length window in the family room. The owner asked for the correct sized window to be installed as per her request when the rooms were changed. She had not noticed that the plans still showed a 1200m high window in the family room. She states that she was originally charged $60.50 for the replacement but after discussions with the builder this was $500 being half the cost of the actual window. The builder states that he could not presume as to what the owner wanted in respect of the window and a variation was made and the owner was given credit for the sum of $1160.50. In he circumstances the error was not the builders but the owners and accordingly the claim is disallowed. Claim 10 – Solar Power Variation 29. The initial power in relation to the hot water system in the contract was to be a standard gas T26 tank but there was a variation completed prior to the contract being executed which provided for a solar hot water system tank on ground of 315 litres. This was subsequently changed to a 400 litre tank by variation and agreement. The owner states that she was charged a difference between a standard gas tank of $1,229.70 and $4,057.99 which was the 315 litre solar tank. The 400 litre solar tank was valued at $4,378.64. The builder stated that there was always going to be a solar hot water system, not a gas one, a credit was given on 20 May 2008 by the builder when the owner decided not to proceed with the solar hot water system, that credit was $3678.64 and the owner admits to receiving the credit in the circumstances as the owner was aware of the variation to the contract in respect of the size of the tank and that subsequently she did not proceed with the solar powered hot water system, the fact that she has received a credit in the amount that she has leaves the Tribunal to disallow this particular claim. Claim 11 30. Items needed to complete your home included an estimate price. This relates to the installation of stainless steel fans, there was to be 8 stainless steel fans supplied by the electrician for the PC allowance of $1576.00. The owner states that she cancelled the installation of these fans as she had purchased alternate fans. She was credited with $1576.00 but an amount of $847 was deducted from this and is clear the PC allowance is for the supply of the fans and not the installation. The installation was to be included in the contract price, the owner states that there were actually 10 fans installed as provided by the owner not 8, in the circumstances the $847 was deducted from the amount originally credited of $1576 should be credited to the owner. The Tribunal orders accordingly. 31. There was also an issue in claim 11 related to the installation of standard rural security screens to all doors and windows. The owner stated that she did not require security screens to the upstairs windows apart from to the doors. The builder states that there was only insect screens provided upstairs not security screens, he stated that the owner got what she paid for by way of security screens and insect screens and that no credit -- 7 of 8 -- BD418-08 / Page 8 of 8 was applicable to this item. The owner has not claimed a specific amount in respect of this and no claim will be allowed by the Tribunal in this regard. 32. In submissions the owner stated that the builder did not meet his contractual obligations with respect to the retaining wall and no variation notice was given to her in respect of certain items. The builder stated that the owner removed some $40,000 work from the contract and she wasn’t charged variation fees for this. Conclusion 33. I conclude that the owner is entitled to recover from the builder sums relating to claim 7 in the amount of $70.00, claim 8 in the amount of $2,423.94 and claim 11 in the amount of $847.00. Therefore the order of the Tribunal is as follows – 1. That the Respondent pay to the Applicant the sum of $3340.94 within 60 days 2. That the Respondent complete the deck staining as agreed by 30 September 2010. -- 8 of 8 --