Bedford and Anor v Drott and Anor [2012] QCAT 267

CITATION: Bedford and Anor v Drott and Anor [2012] QCAT 267 PARTIES: Suzanne Bedford Alan Shore v Jeff Saxe Drott & Excavator Hire Pty Ltd APPLICATION NUMBER: BDL042-11 MATTER TYPE: Building matters HEARING DATE: 25 May 2012 HEARD AT: Brisbane DECISION OF: R F King-Scott, Member DELIVERED ON: 28 June 2012 DELIVERED AT: Brisbane ORDERS MADE: The order of the Tribunal will be that the Respondent shall pay to the Applicants the sum of $31,250.00 plus costs of $275.40 on or before 31 July 2012. CATCHWORDS: Oral agreement to construct equestrian arena – claim for damages for cost of rectification APPEARANCES and REPRESENTATION (if any): APPLICANT: In person RESPONDENT: In person REASONS FOR DECISION Introduction [1] The Applicants, Dr Suzanne Bedford and Mr Alan Shore are husband and wife. They own a 5 acre property at 974 Lamington National Park Road, Canungra. [2] Dr Bedford is an academic. Her husband, Mr Shore, is a hot air balloonist. [3] Dr Bedford is also an equestrian. She has been interested in horses for about 12 years. In 2009, she had 2 horses. -- 1 of 5 -- 2 [4] Dr Bedford’s equestrian interest had advanced to a stage that she wished to have on their property her own equestrian arena. I am advised that a full-sized dressage arena measures 60 metres x 20 metres. [5] In 2007, Dr Bedford made enquiries about constructing such an arena on their property. She spoke to an earthmoving firm who advised her that the work was beyond the scope of their abilities as they only had one bobcat. They recommended the Respondent. [6] Jeff Saxe Drott & Excavator Hire Pty Ltd is, as the name suggests, a company that specializes in hiring heavy excavation equipment with operators. Annexed to the Applicants’ statement is a copy of the online advertisement by that company. In the advertisement, the company states, inter alia: Jeff Saxe Drott & Excavator Hire Pty Ltd, equipment hire, Gold Coast have over many years experience in providing equipment hire services to residents and businesses throughout the Gold Coast. Jeff Saxe Drott & Excavator Hire Pty Ltd, equipment hire, Gold Coast, specialize in different types of equipment hire including house site excavation, dry race, tennis courts, tree clearing and general earthworks. Services we offer:- House site excavation Driveways Tennis courts Horse arenas Tree clearing etc Dam construction Low loader hire House and shed excavation including footings etc Laser leveling Land clearing Post hole boring Spreader bar General earthmoving and earthworks [7] The principal of the company is Jeff Saxe who gave evidence before the Tribunal. [8] Dr Bedford contacted Mr Jeff Saxe who came to the property to discuss the proposed equestrian arena. Several sites on the property were considered and rejected as not suitable for a variety of reasons. One had a natural water course running through it, another site would have involved the removal of underground electrical cables. [9] Eventually, a sloping area on the north western side of the property was selected. It was a paddock used for occasional grazing. It had grass -- 2 of 5 -- 3 growing to about a metre high on it. [10] The parties rely on an oral agreement reached in the course of an inspection of the site on or about 19 April 2009.1 The terms of the agreement were that the Respondent would, in the area identified, cut and fill a suitable platform. There is a dispute whether the initial agreement was for an area of 60 x 20 metres or 40 x 20 metres. Dr Bedford is adamant that Mr Saxe agreed to a 60 x 20 metre platform. Mr Saxe says that was Dr Bedford’s dream, but until he could clear the grass and topsoil from the area, it was difficult to assess by tape measure (because of the slope) whether a 60 x 20 metre platform could be achieved. [11] The price was agreed at $8,000. The works were expected to take 3- 4 days. After a couple of weeks (the works were delayed by rain) Mr Saxe approached the Applicants and allegedly advised that it was taking longer than expected and costing him more and he required a further $4,000 to complete the works. Surprisingly, the Applicants appeared to accept this request without demur and agreed to pay the additional $4,000. [12] Mr Saxe’s version is that he determined, after clearing the area, that he could extend the platform a further 20 metres. He assessed the additional cost at $4,000 and advised the Applicants in that regard. [13] In the end, nothing much turns on whether it was agreed, initially, to construct a 60 x 20 or a 40 x 20 metre platform. The works were completed by June 2009. [14] It is astonishing that works of this scale could be agreed upon on the basis of an oral agreement without even a written quote as evidence as what was the scope of work. I note that a written quote was requested by the Applicant but the Respondent refused saying he did not give written quotes. Mr Saxe says he refused to give a written quote because he did not know the extent of work that was involved. Indeed, Mr Shore did comment in evidence that he was surprised at the size of the earthworks that was actually carried out. [15] At Christmas 2009, a large crack, some 40 metres long, had appeared in the platform, and the surface level had dropped away in the south/south- east corner. Mr Saxe said the failure in the platform was the result of heavy and unseasonal rainfall. [16] Expert evidence obtained by the Applicants suggests otherwise. In a report, Mr Darren Rockesky, a geotechnical engineer, advised that the failure mechanism of the fill batter including the placement of uncontrolled fill on site with an overly steep batter slope were not in accordance with AS 3798-2007 guidelines nor did they constitute good building practice. Mr Rockesky considered the platform was unstable and recommended its removal. [17] I am advised that the Applicants have removed the platform and situated it 1 The contract was not a regulated building contract under the Domestic Building Contracts Act 2000 and, therefore, was not required to be in writing. -- 3 of 5 -- 4 elsewhere on their property. The cost of the reconstituted platform, I was advised by Dr Bedford was around $45,000. I observe here that in view of the extent of the work carried out, that price is not surprising. [18] Mr Saxe, as I said, gave evidence. When it was put to him that he held himself out as having the expertise to construct an equestrian area, he did not disagree. Although he said he knew little about horses, he knew a lot about earthmoving and felt that he had the expertise to carry out this project. He did not dispute the Applicants’ assertions that he had represented himself as an expert in this area. His explanation for the failure was as stated earlier, that it was due to unseasonable heavy rainfall. [19] I am satisfied that all parties gave their evidence honestly and to the best of their recollection. It may be as Mr Saxe said of Dr Bedford that it was her dream to have a 60 x 20 metre equestrian area and, perhaps, she did not or was not prepared to accept anything smaller despite Mr Saxe’s reticence about constructing a platform of that size. Mr Shore said in evidence that Suzanne always wanted a 60 x 20 and Mr Saxe said he would do his best to construct to that size. Perhaps, that was the agreement. However, as I have stated earlier, it does not matter. [20] I am satisfied that Mr Saxe did represent that he could carry out this project. I have some hesitation in accepting the Applicants’ naiveté in commissioning Mr Saxe’s company to carry out this project on the basis of an oral agreement and without any consideration of the requisite approvals required from the local authority and without any engineering. Nevertheless, I find he is in breach of the oral agreement and the Applicants are entitled to damages. [21] Even if the agreement had been to construct a 40 x 20 metre platform then Mr Saxe was in breach as the nature of the construction was so defective that it had to be removed. [22] Not only was the nature of the work defective in that the job was not properly compacted, the slope was essentially too steep and the natural surface had not been properly prepared prior to the placement of the fill. Further, no approvals had been obtained from the local authority. The Respondent, holding himself out as an expert in this area, should have obtained a permit for material change of use of the land and an approval for construction of the arena. There should also have been an operational works permit obtained from the local authority. [23] The Applicants claim damages of $25,000. That comprises the amounts already paid of $12,6002. In addition, the Applicants incurred the sum of $9,000 in clearing up the site. There were also additional expenses for engineers and engineers’ reports of nearly $10,000 relating, inter alia, to whether the arena could be salvaged. That exceeds the $25,000 claimed for damages. The Applicants seek no more than $25,000 damages and I am prepared to award that sum. 2 The additional $600 was for postholes that were constructed and subsequently are useless. -- 4 of 5 -- 5 [24] In addition, the Applicants claim interest on the sum. Any award of interest would be made under s 47 of the Supreme Court Act 1995. I award 2.5 years interest at a rate of 10% p.a. Interest amounts to $6,250.00. [25] The Applicants are entitled to costs being the filing fees which I understand to be $275.40. [26] The order of the Tribunal will be that the Respondent shall pay to the Applicants the sum of $31,250.00 plus costs of $275.40 on or before 31 July 2012. -- 5 of 5 --