QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Jamieson and Anor v Rogers trading as Rogers Pools [2020] QCAT 399	
PARTIES:	lindsay ray jamieson
jie song	
	(applicants)	
	v	
	peter rogers t/a rogers pools	
	(respondent)	
APPLICATION NO/S:	BDL264-19	
MATTER TYPE:	Building matters	
DELIVERED ON:	22 October 2020	
HEARING DATE:	8 October 2020	
HEARD AT:	Brisbane	
DECISION OF:	Member Browne	
ORDERS:	The application for a domestic building dispute filed on 17 October 2019 is dismissed.	
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where swimming pool built – where alleged damage to property during construction – whether exclusion clause applied – where claims for money paid under the contract and for filing fees
Queensland Building and Construction Commission Act 1991 (Qld), s 4, s 77
Bellgrove v Eldridge (1954) 90 CLR 613
Bryan v Maloney (1995) 182 CLR 609
Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500.	
APPEARANCES & REPRESENTATION:	

Applicant:	
Self-represented by telephone	

Respondent:	
Self-represented by telephone	

REASONS FOR DECISION
[1]	The applicants engaged the respondent to build a reinforced concrete pool at the applicants’ house in Cornubia, Queensland.
[2]	The parties signed a standard Master Builders contract for the construction of the pool on or about 22 October 2018 (‘the contract’).
[3]	The pool was completed by the respondent on 23 May 2019 and final payment made by the applicants to the respondent for the completed pool works.
[4]	The applicants contend that during construction of the pool the respondent damaged the applicants’ concrete driveway to their home and the wall on the front of their home. The applicants also contend that after construction of the pool, the respondent damaged a number of pool tiles and removed excess soil from their property and placed it on the neighbouring property. 
[5]	The applicants seek an order from the Tribunal that the respondent pay to the applicants the costs to rectify the damage caused to their property and to remove the excess soil from the neighbouring property. The applicants also claim additional costs for various items paid to the respondent, that the applicants now contend were not payable under the contract.
[6]	In the application for a domestic building dispute and supporting evidence, the applicants’ claim the following:
(a)	Damage to the concrete driveway in the amount of $2,585.00.
(b)	Damage to the wall of the applicants’ property in the amount of $880.00.
(c)	Return of money paid to the respondent that was not due and owing under the contract for the following:
(i)	Supervision fee in the amount of $738.00.
(ii)	Margin fee in the amount of $226.00.
(iii)	Interest fee in the amount of $66.34.
(iv)	Extra tile fee in the amount of $439.00.
(d)	The cost of soil removal from the neighbouring property in the amount of $350.00.
(e)	Return of money paid to the respondent as a debt collection fee in the amount of $850.00.
(f)	Swimming pool tile damage in the amount of $2,286.00.
(g)	QCAT filing fee in the amount of $345.00.
[7]	Firstly, I am satisfied that the Tribunal has jurisdiction to determine the application pursuant to s 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) and the Tribunal has discretionary powers to, amongst other things, award damages under s 77(3).
[8]	In this matter, the applicants rely upon their own evidence, various photographs, the evidence of a lay witness, Vanessa Cooper and quotations obtained by them in relation to the costs of rectifying the alleged damage to the driveway, walls and tiles. The witnesses who prepared the quotations were not available from cross-examination at the hearing.
[9]	The respondent filed a response to the application but did not file any statements of evidence despite being given the opportunity to do so. At the oral telephone hearing before the Tribunal, Peter Rogers, appearing for the respondent, was given an opportunity to cross-examine the applicants and their witness. 
Damage to the concrete driveway
[10]	The applicants contend that the respondent damaged the concrete driveway to their property leaving a deep gouge at the bottom of the driveway. The applicants rely upon a quotation obtained from Sweedman Concreting Pty Ltd in the amount of $2,585.00 and photographs of the damaged driveway. The applicants submit that the respondent should be ordered to pay the cost of rectification to the concrete pathway in the amount of $2,585.00.
[11]	I accept that the respondent owes a duty to the applicants to take all reasonable care in performing the pool works and that the respondent may be liable to the applicants for any negligence arising from damage to their property. I also accept that the photographs tendered at the hearing by the applicants show damage to the applicants’ concrete driveway.
[12]	In responding to the applicants’ claim, the respondent submits that it is not responsible for the damage to the driveway and walls of the applicants’ property and contends that there were multiple contractors working on the site and using the driveway. The respondent submits that there is a special condition in the contract that absolves them of any damage caused to the applicants’ driveway. The relevant special condition (‘SC 1’) of the contract is now set out below as follows (emphasis added):
All facets of fence compliance (including associated costs and factors of compliance not included in the contract) is the complete responsibility of the customer. This includes all fencing and any other factors (this may range from neighbouring fencing to existing facets of the site) affecting the ability for the works to be finally certified. Removal of and reinstallation of any fences or walls etc required for machinery access and/or making good any damage to the access provided including but not limited to turf, driveways, paths, paving, fences and walls except for damage covered under normal Public Liability…
[13]	The question of whether special condition SC 1 protects the respondent from any liability for negligence or damage to the applicants’ property is a question of construction to be determined by reference to the wording of the special condition, the contract and the intention of the parties.
[14]	In this matter, it is noncontentious that the only access to the applicants’ property was via the concrete driveway and that the concrete driveway was damaged during construction of the pool. It is also undisputed that there were other tradespeople working on the applicants’ property when the damage to the driveway is said to have occurred. 
[15]	Mr Jamieson’s evidence, supported by the witness Vanessa Cooper, is that on 19 February 2019, he saw the respondent’s truck carrying formwork that was used on the pool backing down the driveway and the truck made a deep gouge at the bottom of the driveway. Mr Jamieson maintained his evidence during cross-examination that the respondent’s truck damaged the concrete driveway and not another tradesperson. I accept Mr Jamieson’s evidence about the damage to the concrete driveway.
[16]	The applicants have had an opportunity to present evidence in support of the claim for damage to the driveway. I am not satisfied based on the evidence before me that the respondent should be ordered to pay the cost of rectification to the concrete driveway. 
[17]	It is open for me to find that on a plain reading of special condition SC 1 of the contract, the parties did not intend for the respondent to be held liable for any damage to the applicants’ driveway and, amongst other things, the walls of the applicants’ property where such damage was necessary for the respondent to access the construction site. 
[18]	I am not satisfied that the respondent wilfully damaged the driveway and such damage although regrettable occurred during construction of the pool and in accessing the applicants’ property via the concrete driveway that was necessary for the transportation of machinery and equipment. 
[19]	The applicants’ claim for the damage to the driveway is refused.
Damage to the wall of the applicants’ property
[20]	The applicants contend that the respondent damaged the front house wall when the pool form work was installed on 25 January 2019 leaving white stains on the walls. The applicants rely upon a quotation obtained from Ray Chapman Painting in the amount of $880.00 and photographs of the damaged walls. The applicants submit that the respondent should be ordered to pay the cost of rectification to the walls in the amount of $880.00.
[21]	I accept that the respondent owes a duty to the applicants to take all reasonable care in performing the pool works and that the respondent may be liable to the applicants for any negligence arising from damage to their property.
[22]	As discussed above, I have found that the parties did not intend for the respondent to be held liable for any damage to the applicants’ driveway and this includes the walls of the applicants’ property where such damage was necessary for the respondent to access the construction site. 
[23]	The applicants have had an opportunity to present evidence in support of the claim for damage to the walls. I am not satisfied based on the evidence before me that the respondent should be ordered to pay the cost of rectification to the walls. It is noncontentious that there were a number of tradespeople not engaged or employed by the respondent who were performing work at the applicants’ property during the construction of the pool. It is therefore possible that another tradesperson is responsible for the damage to the walls.
[24]	If, however, the respondent is responsible for the damage to the walls, I am not satisfied that the respondent wilfully damaged the walls and such damage although regrettable occurred during construction of the pool and in accessing the site as was necessary for the transportation of machinery and equipment. 
[25]	The applicants’ claim for the damage to the walls is refused.
Other claims for the return of money paid to the respondent by the applicants
[26]	The applicants contend that the respondent claimed a number of items that should not have been claimed under the contract because the items were variations and were not put in writing. The applicants rely upon the respondent’s tax invoice dated 29 May 2019 and claim the following items that appear in the invoice, now set out below as follows:
(a)	‘Supervisor 7.5 hrs @ $98.50’ in the amount of $738.00;
(b)	‘Margin as per contract’ in the amount of $226.00; and
(c)	Extra tile fee in the amount of $439.00 being the balance from the amount claimed in the invoice (of $2,054.00) and the amount allowed under the contract (of $1,615.00).
[27]	The applicants also rely upon the respondent’s tax invoice dated 5 August 2019 and claim the following items that appear in the invoice now set out below as follows:
(a)	Interest ‘to date (71 days)’ in the amount of $66.34; and
(b)	Debt recovery costs to date in the amount of $850.00.
[28]	The applicants provide no legal basis for the entitlement to their claims identified above. It is clear from the contract that some of the items of work now disputed by the applicants in the present matter to be variations are in fact provisional sums under the contract. Part B of the contract identifies each of the provisional sums as ‘…excavation including mark out, supervision, machinery costs, labour, supply of and placement of gravel and removal of soil’. Further to that, there are some items of work now disputed by the applicants in the present matter as variations that are in fact prime cost items under the contract. Under Part A of the contract there are allowances for prime cost items such as pool coping, body tiles and mosaic tiles. 
[29]	It is open for me to find on the evidence that the applicants were required to pay to the respondent the contracted amounts for the pool works completed. This includes prime cost and provisional sum items such as supervision costs, margin fees and extra tiles. Under Clause 9.5 of the General Conditions of the contract the respondent is entitled to claim a margin that is an agreed rate for profit under the contract, if the actual cost of a prime cost item or the actual cost of the work in respect of the provisional sum is less that the total amount allowed for that item of work under the contract.
[30]	It is noncontentious that the applicants picked out the tiles for the swimming pool, have had the benefit of the work performed by the respondent including excavation works and have paid all of the money owing to the respondent under the contract for the contracted works. The respondent is entitled to charge the applicants for the costs of the tiles, the supervisor fees and the builder’s margin.
[31]	I am not satisfied that the respondent should be ordered to pay the applicants the amounts claimed as set out above for supervision, margin fees and extra tile fees. The respondent’s claim for the extra tiles is supported by a tax invoice from The Pool Tile Company Pty Ltd dated 1 March 2019. The respondent is entitled under the contract to charge the applicant for the costs of the tiles and a reasonable profit.
[32]	I am not satisfied that the respondent should be ordered to pay the applicants the amounts claimed for interest and debt recovery fee. The respondent is entitled to claim for the money owing under the contract as supported by the tax invoice dated 5 August 2019. It is noncontentious that the respondent performed the work as required under the contract and issued a tax invoice to the applicants for payment. The applicants have had the benefit of the completed contract works. 
[33]	The items claimed by the applicants are refused.
The cost of soil removal from the neighbouring property 
[34]	The applicants rely upon an invoice in the amount of $350.00 and photographs. The applicants contend that the respondent dumped soil on the neighbouring property and the respondent failed to remove it.
[35]	The applicants provide no legal basis for the entitlement to their claim for the removal of soil from the neighbour’s property.
[36]	I accept that the respondent owes a duty to the applicants to take all reasonable care in performing the pool works and that the respondent may be liable to the applicants for any negligence arising from damage to their property.
[37]	The applicants have had an opportunity to present evidence relevant to their claim for the removal of soil. I am not satisfied based on the evidence before me that the respondent should be ordered to pay for the costs of the removal of the soil. It is noncontentious that the work has been completed by the respondent in accordance with the contract and this included excavation costs and the removal of soil from the applicants’ property.
[38]	The applicants’ claim for soil removal is refused.
Swimming pool tile damage in the amount of $2,286.00.
[39]	The applicants claim that the respondent damaged the swimming pool tiles during rectification of the tiles and submit that the water line tiles are gouged and have been stripped of their colour. The applicants rely upon photographs of the damaged tiles, a quotation from Barry De Rooy in the amount of $1,100.00 to remove and replace the damaged tiles and a quotation from Poolwerx in the amount of $1,056.00 for pool supplies plus extra water claimed in the amount of $130.00.
[40]	There is no evidence before me that the respondent was required to install the tiles a certain way to ensure an even finish or certain thickness of the tile. I accept that the respondent was required to complete the pool works in accordance with the contract and owes a duty to the applicants to take all reasonable care in performing the pool works.
[41]	Mr Jamieson’s evidence is that the damage was caused by the respondent’s employee referred to as ‘Dean’ and that Dean is known to be Mr Rogers’ son. Mr Jamieson gave evidence that while Dean was grinding the coping tiles to try and level the underside, he damaged some of the tiles. Mr Jamieson was questioned by Mr Rogers at the hearing about whether a person from the tile company (and not the respondent) performed the grinding work. Mr Jamieson said that he saw a man in a ‘Bunnings’ hat in the pool and that he assumed it was ‘Dean’, Mr Rogers’ son.
[42]	The damage to the tiles caused by the grinding is regrettable. The applicants have, however, had an opportunity to present their evidence to the Tribunal to be relied upon in support of their claim. I am not satisfied based on the evidence before me that the respondent is responsible for any damage to the tiles as contended by the applicants. The item claimed by the applicants for pool damage is refused.
QCAT filing fee in the amount of $345.00 and disposition of the application
[43]	The Tribunal has the discretionary power to award costs under s 77(3) of the QBCC Act. I am not satisfied that an order requiring the respondent to pay the applicants’ cost of the filing fee for the application should be made in this matter having refused their various claims against the respondent. The claim for the filing fee is refused. 
[44]	In this matter it is appropriate to order that the application for domestic building dispute filed on 15 October 2019 is dismissed on the basis that the applicants have not been successful in their various claims against the respondent. I order accordingly.