Allen v Duncalfe [2012] QCAT 51

CITATION: Allen v Duncalfe [2012] QCAT 51 PARTIES: Mr John Allen v Mr Neil Duncalfe APPLICATION NUMBER: BDL395-10 MATTER TYPE: Building matters HEARING DATE: 14 July 2011 HEARD AT: Brisbane DECISION OF: Mr Jim Allen, Member DELIVERED ON: 3 February 2012 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders that Mr Duncalfe pay Mr Allen the amount of $2,250 within 14 days of the date of this order. CATCHWORDS: Defective building work in regard to floor – contribution to damages – Oral contract Queensland Building Services Authority Act 1991 Domestic Building Contract Act 2000 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Allen appeared for himself at the hearing RESPONDENT: Mr Duncalfe appeared for himself at the hearing REASONS FOR DECISION Introduction [1] Mr Allen has over a number of years engaged Mr Duncalfe to perform minor building work for him and had been well satisfied with the work done. Mr Duncalfe agreed to remove a non-load bearing wall, reconfigure some arches and to install a pre-finished engineered timber floor for the renovation of Mr Allen’s new residence in September 2010 under a verbal agreement at an hourly rate of $45 per hour cash in hand. [2] Mr Allen was not satisfied with the quality of the job in respect of the floor and engaged another tradesman to re-sand and polish the floor for an -- 1 of 8 -- 2 amount of $4,5001 on the understanding that Mr Duncalfe had agreed to bear this cost. Mr Allen calculated that he owed Mr Duncalfe $1,125 for unpaid work in respect of the floor and requested that Mr Duncalfe pay the amount of $3,375 representing the difference between what he was owed and the cost of the additional work2. Mr Duncalfe refused to pay and Mr Allen made application to the Tribunal seeking payment of the amount owing of $3,375. [3] A person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute3. A dispute between a building owner, Mr Allen and a building contractor4, Mr Duncalfe in regard to the renovation of, alteration, extension, improvement or repair of a home constitutes a building dispute5. The Tribunal then has the jurisdiction to hear this matter. The Tribunal may make among other powers make an order in regard to the payment of money owed by one party to another or order relief from the payment an amount claimed by one party from another6. Mr Allen’s evidence [4] Mr Allen stated that he had known Mr Duncalfe for about 10 years and over that time he had engaged Mr Duncalfe to carry out construction work and renovation work at two of his houses. He had had no complaints with the work carried out. No contracts were ever signed and he was engaged on an hourly rate and was paid in cash on the completion of the work without invoices being issued. [5] As part of the renovations to Mr Allen’s new house, it was planned that a floating, pre-finished engineered timber floor be installed through the entire floor area. Mr Allen had done a considerable amount of research relating to the installation of such a floor and had sourced and ordered the required amount of flooring for the job. [6] Mr Allen stated that some weeks before the house purchase settled on 13 September 2010 he had asked Mr Duncalfe if he had experience in installing floating timber floors. Mr Duncalfe had assured him he had and given him the details of a property where he had installed such a floor. Mr Allen visited the house inspected the floor and spoke to the owner who said that “she was quite happy with the work that was done”. As a result Mr Allen engaged Mr Duncalfe to carry out the installation of the floor. [7] Mr Allen had a meeting with Mr Duncalfe prior to the floor installation to determine the method of installing the floor. Mr Allen stated that from his research and reading of the material supplied by Boral the manufacturer of the floor a floating floor method should be used. He stated that he was 1 Exhibit 1 – Tax invoice from Dusan Ocenas dated 15 October 2010. 2 Exhibit 3 – Letter Mr Allen to Mr Duncalfe 17 October 2010. 3 Section 77(1) of the Queensland Building Services Authority Act 1991. 4 Definition of “Building Contractor” in Dictionary to the Queensland Building Services Authority Act 1991. 5 Definition of “Building Dispute” and “domestic building dispute” and “reviewable domestic work” in Dictionary to the Queensland Building Services Authority Act 1991 and Section 8 meaning of domestic building work in the Domestic Building Contracts Act 2000. 6 Section 77(2) of the Queensland Building Services Authority Act 1991. -- 2 of 8 -- 3 convinced by Mr Duncalfe that the best way to perform the installation was by the direct stick method. [8] Mr Allen was then asked by Mr Duncalfe to purchase the adhesive for the job. Mr Duncalfe provided Mr Allen with a partly used adhesive sausage to which he said he would apply the adhesive to the boards before laying. Mr Allen from his research noted that the adhesive should be applied from a drum using a notched trowel, applied to the concrete sub-floor and the board then stuck to the adhesive. Mr Duncalfe is said to have stated that in his experience the way to go was to use the caulking gun and sausage pack of adhesives. Mr Allen states that when he went to the hardware store they confirmed that a bucket of adhesive should be purchased and applied with a notched trowel and that would be a better and cheaper method of purchasing the adhesive. Mr Allen stated that however to satisfy the requirements of Mr Duncalfe I purchased all the sausages they had and delivered them to him. [9] The boxes of timber boards were delivered to the site on 29 September 2010 which Mr Allen describes as containing a pristine pre-finished product. Mr Duncalfe then started to work out a plan as to how the boards should be laid and commenced the installation on 30 September 2010. [10] Mr Allen states that it was part way through the installation that he became aware of the dirty condition of the surface of the boards already laid. Surplus adhesive that had been dropped from the caulking gun was being stood on and carried to other parts of the already installed floor on the soles of the working boots. He also observed boards being dropped onto previously laid boards; tools being placed on and dragged over previously laid boards and Mr Duncalfe hammering the surface of the pre-finished boards causing indentations on what he said should have been a pristine floor. Mr Duncalfe is said to have replied that “she’ll be okay” when Mr Allen raised concerns about how the job was looking. [11] Mr Allen provided photographs taking during the floor laying process7 which show a dirty and heavily marked floor with Mr Duncalfe laying floorboards while kneeling on the newly laid floor. There were also floor boards waiting to be laid set on top of the newly laid floor. [12] When the job was completed on 7 October 2010, Mr Allen pointed out to Mr Duncalfe the considerable amount of marks on the surface of the floor in all rooms. Mr Duncalfe is said to have conceded this was adhesive that had been left on the surface of the boards and that he would attempt to clean it off. Mr Allen states that the correct procedure should have been to remove any excess adhesive as the work proceeded but that was not done, and the adhesive had dried over the time of the installation and had left marks on the floor. The removal of adhesive in this manner is in accordance with the Boral installation guide8. Mr Duncalfe is also said to have agreed he would attempt to remove the marks with methylated spirits, though Mr Allen warned this could remove the coating from the boards. [13] Various attempts were made to remove the marks to no avail. Mr Allen says that he had a discussion on 7 October 2010 with Mr Duncalfe and that 7 Exhibit 9. 8 Exhibit 11 page 10 para 14. -- 3 of 8 -- 4 he had suggested to Mr Duncalfe that because of the failed attempts to clean up the floor, it would appear that there was a distinct possibility that the floor would need to be sanded back and then recoated to restore the surface to its original condition. If that were the case then Mr Duncalfe would need to be responsible for the payment of the work. Mr Allen states that Mr Duncalfe’s reply was “I am not going to lose any sleep over this so, if that is what it takes, then do it”. Mr Allen took this as approval, that in the event that that was needed, then in his absence I was to do it and he would pay the bill. [14] On 8 October 2010 after another failed attempt by Mr Duncalfe to clean the floor Mr Allen states he called him and suggested that a representative from Boral Timbers come and inspect the floor, and see if there was any way to clean up the mess. Mr Duncalfe is said to have agreed to this and Mr Allen then made an appointment for a representative from Boral Timbers to come on 11 October 2010. [15] On 11 October Mr Brendan Hughes the representative of Boral Timbers inspected the floor. A short report from Mr Hughes9 was provided to the Tribunal. In it Mr Hughes stated: “on Monday the 11/10/10 the floor inspection revealed the adhesive used to direct stick the timber flooring product, was smeared across the entire pre-finished surface of the Silkwood floorboards, being a polyurethane adhesive this can be very hard to remove effectively, and can potentially cause problems associated with (recoating) of the existing surface when required. The options for rectification discussed on site were: Try to mechanically remove the adhesive by washing the floor with appropriate solutions to soften the adhesive, before scrubbing the entire surface with a suitable machine, then recoat the entire floor; and Resand the entire surface coating back to raw timber, re-apply suitable floor coating product. As discussed on site, the first method may not work effectively due to the amount of adhesive spread across the floor which possibly may take more time and labour costs to remove than resanding the floor completely. Potential problems can also be associated with this method when re-coating the floor as any residue adhesive that remains on the floor can cause adhesion problems when re-coating. Resanding the entire floor within this situation, as detailed above, would be considered by Floor sanders to be the most viable and effective option to solve the problem within the floors finished appearance, as proceeding with the first option would be considered by most to be to risky, with the potential of ongoing problems that can escalate as detailed above. [16] Mr Allen asked Mr Hughes to recommend a tradesman who could competently do the work to resand and polish the floors and Mr Allen was then contacted by Mr Dusan Ocenas from Renaissance Floors. Mr Ocenas 9 Exhibit 2 – email Brendan Hughes to Helen and John Allen dated 15 November 2010. -- 4 of 8 -- 5 is said to have made an attempt to remove the marks on a small part of the floor with methylated spirits and was partially successful. Mr Ocenas was of the view that considering the amount of the clean up that was necessary, the time it would take would be longer than starting from scratch and resanding. There was also no guarantee that all the marks would be removed. He then did some measuring and worked out a quotation of $4,500 to resand and recoat with three coats of water based coating to restore the floor to its original condition. [17] Mr Allen filed a letter from Mr Ocenas10 confirming the above. It also stated that in the installation of the flooring it appeared that excess adhesive had been allowed to remain on the surface of the boards and had dried hard over large areas in all of the rooms. [18] Mr Allen states that given Mr Duncalfe’s statement that “if that is what it takes, then do it” and because Mr Duncalfe was interstate at the time he instructed Mr Ocenas to undertake the work which he commenced the next day and Mr Allen moved into the house on 19 October 2010. Mr Duncalfe raised an issue as to whether Mr Ocenas was licensed to perform the work. The Tribunal obtained a Queensland Building Services Authority licence search which showed that Mr Ocenas had a then current licence in the classes of Floor Finishing and Covering restricted to Floor Sanding and Finishing-Timber Floors11. Mr Duncalfe’s evidence [19] Mr Duncalfe in his response to the application stated that Mr Allen had employed another person to help lay the floor, who was with me laying the floor to the end of the job. That Mr Duncalfe had been paid $1,507.50 for laying and he was owed $810 to finish laying the floor and $360 to replace skirtings. He stated why should one person be at fault when two persons were laying and two guns were used. He also claimed that Mr Allen was not happy with the dullness or the quality of the material. The material supplied was a downgraded floor and was not compatible with the glue supplied. [20] At the hearing Mr Allen confirmed that he had asked a gentleman known as Paddy who he knew through an organisation he was connected with to come to the house and help with the floor installation and that he was paid separately by Mr Allen. He said that he told Paddy to open boxes and feed material to Mr Duncalfe, to throw away empty boxes and make tea. He said he was horrified to see Paddy cutting and laying boards as Paddy had no experience in the laying of floor boards. He said he was concerned that pressure had been placed on Paddy by Mr Duncalfe. Mr Allen acknowledged that he had not communicated to Mr Duncalfe the instructions he had given Paddy in regard to what work he was to perform. He disputed the idea that Paddy could be responsible as Mr Duncalfe was the principal contractor. Mr Allen stated that he told Paddy not to lay the floor boards on 1 October 2010. [21] Mr Duncalfe stated that Paddy commenced on 1 October 2010. That Paddy had arrived and come in and cleaned up and moved boxes. Paddy had tipped over glue in a container which got on the floor and Paddy had said he 10 Exhibit 1 undated letter from Dusan Ocenas. 11 Exhibit 12. -- 5 of 8 -- 6 would clean it up. Paddy had told him he had been a trade assistant and could lay floor and that he could do this work. Mr Duncalfe then went out and bought another gun and thought it would be cheaper for Mr Allen but he did not know what Mr Allen was paying Paddy. After that he had started to pick Paddy up each day. [22] Mr Michael McGahan, an electrician who had performed some work at the premises appeared as a witness for Mr Duncalfe. Mr McGahan stated that he saw the floor on 7 October 2010 and that the floor looked great and that it will clean off. He advised Mr Allen to get professional cleaners in to deal with the little blemishes. He thought that cleaners could do the job. [23] Mr Duncalfe stated that he had not been contacted by Mr Allen after the meeting with the Boral representative. While he was away he said he had his mobile with him and could be contacted. Further that at no stage when he employed Mr Oceans did Mr Allen tell him that he was going to charge him for the sanding of the floor. He said that after he attended at the house on 8 October 2010 at which time only Mrs Allen was present he had no further communication from Mr Allen until his letter of 16 October 2010 and that he could not recall any conversation where he said “not losing any sleep over it”. If Mr Allen had rung him about a quote for $4,500 he would have said he could get another quote and Mr Allen has only got one quote. [24] Mr Duncalfe produced two quotes for the resanding and polishing of the floors: a) W D Smith & Sons – for light sand and three coats water based polyurethane satin $2,340 dated 2 February 201112; and b) The original Rons Natural Floors site unseen quote to disk sand and apply two coats of moisture cure polyurethane to pre-finished floor 130m $1,500 to apply extra coat $500 dated 19 March 201113. [25] The Tribunal obtained a Queensland Building Services Authority licence search in respect of Mr Duncalfe14. This search showed that Mr Duncalfe was not currently licensed in any class of building work and had not been since 10 March 2000. Mr Duncalfe confirmed the results of the search to the Tribunal. [26] Mr Duncalfe confirmed to the Tribunal that he had not laid the floor in accordance with industry guidelines. Discussion [27] It is clear that the laying of this floor has gone wrong the reason being that it was not laid in accordance with the manufacturers guidelines or with due care and attention. Mr Duncalfe has accepted that he did not lay the floor according to the guidelines from Boral which clearly set out that excess glue is to be removed as soon as possible. This is of course only one of the issues with the floor but it is the only issue before the Tribunal. [28] The amount to be charged for the floor installation and ancillary work with the skirtings board was either $2,633 based on Mr Allen’s calculation or 12 Exhibit 13. 13 Exhibit 14. 14 Exhibit 15. -- 6 of 8 -- 7 $2,677.50 based on Mr Duncalfe’s calculation. Either way the contract for the work is for an amount or value less than $3,300. This means that the contract is not subject to the Domestic Building Contracts Act 2000 which would have required it to be in writing15. The carrying out by Mr Duncalfe of the work is not unlawful under the Queensland Building Services Authority Act 199116 and he is entitled to his payment for the work done. [29] Mr Duncalfe as a builder is under a duty to perform his work in a proper and workmanlike fashion17. Mr Allen provided an independent report from Mr Hughes which states that the excess glue requires rectification. The excess glue was also confirmed in the letter from Mr Ocenas although he is not independent in the matter as he was the contractor who was engaged to rectify the floor. The oral evidence of Mr McGahan, an electrician, was that the floor has some blemishes which could be cleaned off cannot stand against the evidence of a representative of the floor manufacturer. The Tribunal is satisfied that the floor laying was defective in regard to the failure of Mr Duncalfe to remove the excess glue from the floor and this constitutes a breach of Mr Duncalfe’s duty to perform the work in a proper and workmanlike manner. [30] The measure of damages that Mr Allen is entitled to is the remedial work necessary and reasonable to remedy the defect18. Mr Allen has expended $4,500 in having the floor sanded and repolished. The Tribunal accepts that this work was necessary to remedy the defect in accordance with the report of Mr Hughes. The question is was it reasonable that Mr Allen only obtained one quote for the work and did not seek Mr Duncalfe’s agreement to have the work performed for this amount. [31] Mr Allen says that he had the implicit agreement of Mr Duncalfe to pay the work by his stating his statement of 8 October 2010 that he would not lose any sleep over it. The Tribunal would normally expect though that some consultation occur so that the party who has agreed to bear the cost has an input to the burden they are being expected to carry. [32] The Tribunal notes that Mr Duncalfe has provided two quotes for sanding and recoating of floors at much lower prices than that charged by Mr Ocenas. Those quotes were obtained without the benefit of inspecting the floor to determine how much effort would be required and for that reason the tribunal prefers the costing of Mr Ocenas who inspected the floors and performed the work. [33] In terms of the rectification work performed the Tribunal considers that what was done was the bare minimum to make the floors presentable as it has not dealt with the underlying issues of the incorrect application of the glue. This would have resulted in a much more extensive rectification and so it is not unreasonable that the cost of rectification be that paid to Mr Ocenas. 15 Sections 8 and 9 of the Domestic Building Contracts Act 2000. 16 Definition of Building Work in Dictionary to the Queensland Building Services Authority Act 1991 and “Work that is not Building work in Regulation 5 of the Queensland Building Services Authority Regulations 2003. 17 Perry v Sharon Development Co Ltd [1937] 4 ALL ER 390. 18 Bellgrove v Eldridge [1954] HCA 36. -- 7 of 8 -- 8 [34] The Tribunal accepts the cost of rectification of the floor at $4,500 for the purpose of determining Mr Duncalfe’s liability in this matter. [35] Mr Duncalfe raised the issue of the contribution to the damages by Paddy who was separately employed by Mr Allen to assist Mr Duncalfe. Mr Allen states that he gave separate instructions to Paddy which set out his duties and these did not include the laying of the floor. Mr Allen acknowledges that this was not communicated to Mr Duncalfe. Mr Allen states that Mr Duncalfe was the head contractor and he should be liable. That is not the case here. As Paddy was paid directly by Mr Allen he should have been supervised by Mr Allen and clearly this did not occur. Therefore Mr Allen must bear some contribution to the cause of the damages. He did not supervise Paddy and he did not inform the person who Paddy was assisting of the limits of Paddy’s duties. [36] Mr Allen also knew that Mr Duncalfe was not intending to perform the laying of the floors in accordance with the Boral Timbers instructions and this should have raised concerns about Mr Allen’s capacity to perform the task appropriately. The Tribunal notes that Mr Allen had a long association with Mr Duncalfe and was satisfied with his previous work and in this case specifically inspected work that Mr Duncalfe had said he had done in regard to the laying of floors. Mr Allen though stated that he had done extensive research in regard to the selection of the floor and should have been aware that the installation required a high level of skill in that area and the installer should have had qualifications to lay such a floor. In this case it is clear that Mr Duncalfe was not licensed to perform this work and he did not represent to Mr Allen that he was. [37] For the above reasons the Tribunal considers that Mr Allen bears a 25% contribution to the damages to the floor for his failure to adequately supervise Paddy and allowing a person without the appropriate trade qualification to perform the work. Therefore the amount Mr Allen is entitled to for rectification of the floor is $3,375. [38] As mentioned Mr Duncalfe is entitled to the remainder of his payment which states is $1,170. Though Mr Allen states that it is $1,125 based on Paddy advising him that Mr Duncalfe had worked for a further 33 hours after 4 October at $45 per hour. Mr Duncalfe has not issued an invoice and has not provided any supporting material. Whereas Mr Allen has provided correspondence from 17 October 201019 setting out his calculation. The Tribunal prefers Mr Allen’s calculation and notes that this is the amount he has agreed to pay. [39] Mr Allen is entitled to the amount of $3,375 less $1,235, that is $2,250. Order [40] The Tribunal order that Mr Duncalfe pay Mr Allen the amount of $2,250 within 14 days of the date of this order. 19 Exhibit 3. -- 8 of 8 --