Cobine Pty Ltd v Queensland Building and Construction Commission - [2014] QCAT 59

CITATION:

Cobine Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 59

PARTIES:	Cobine Pty Ltd (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR347-11

MATTER TYPE:

Building matters

HEARING DATE:

28 and 29 January 2014

HEARD AT:

Brisbane

DECISION OF:

Member Paratz

DELIVERED ON:

17 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building and Construction Commission made on 27 May 2013 to issue Direction to Rectify and/or Complete Number 39012 is confirmed.

2. No order as to costs.

CATCHWORDS:

Directions to rectify – timber floor – detachment of timber floor boards from concrete slab -whether timber boards properly glued to concrete slab – adhesive applied in strips rather than full trowel – influence of water events on detachment

Ireland, Larry v QBSA & Hawkins [1999] QBT 180

APPEARANCES and REPRESENTATION:

APPLICANT:

Ben Whitten (Counsel)
Instructed by Sciaccas Lawyers

RESPONDENT:

Robert Lovrincevic (Lawyer QBCC)

REASONS FOR DECISION

Cobine Pty Ltd (the builder) built a house at 46 Lae Drive, Runaway Bay, Queensland for Mr Omar Correa and Ms Nicole Pickeering between August 2006 and March 2007. It was a single story slab on ground brick house. The builder described it as a “high-end” house as to finish.
The entire floor area of the house (with the exception of the home theatre, store, bathroom and 4 ensuites) was floored with ironbark timber tongue and groove flooring. The timber boards were glued directly to the concrete slab.
The house was sold in October 2008 to Ms Danielle Read. On or about 18 July 2011, Ms Reid filed a complaint with the Queensland Building Services Authority (now known as the Queensland Building and Construction Commission, and hereafter referred to as the Commission) complaining of alleged defective timber flooring to several rooms of the house.
The Commission conducted investigations and on 12 October 2011 issued Direction to Rectify and/or Complete Number 36915. That direction referred to the provision of adequate expansion joints. The builder filed this application to review that decision in the Tribunal on 4 November 2011.
Further inspections were conducted by the Commission resulting in an amended decision being made on 11 July 2012. The Tribunal ordered on 12 July 2012 that the later decision be substituted in the proceedings.
In making the amended decision, the Commission had regard to advice provided by the builder that the product that was used to glue the boards to the slab was “Sikabond Timber Flooring Adhesive”. The amended decision made reference to expansion joints; loose cramping; and the non-compliant use of the Sika product which require application over the full surface area with a notched spreader.
The builder then said in its statement of evidence dated 28 September 2012 that the product that was used was actually “Emfimastic PU Parquet 120”. Following this advice the Commission again amended its decision and on 25 October 2012 made a decision, which was substituted by the Tribunal on 25 October 2012, that:-
1.The T & G Flooring in various areas of the house has detached from the substrate due to an inadequate application of adhesive. The detachment has resulted in tenting and peaking of the flooring.
The Commission then had reason to re-issue the direction to correct the time period allowed, and on 27 May 2013 issued Direction to Rectify No 39012. That decision then became, by direction of the Tribunal of 18 September 2013, the decision under review. The wording of that Direction was identical to the previous decision.
The matter was heard over two days. Oral evidence was given for the commission by Mr David Hayward (Australian Timber Flooring Association); Mr Colin McKenzie (Timber Queensland); Mr Luckin ( a QBCC inspector); and Mr Malcolm Johnston (the adhesive supplier). Oral evidence was given for the builder by Mr Terry Betteridge (a builder) and Mr David Parra (a principal of the applicant builder).
It is not disputed that tenting and peaking has occurred to areas of the timber flooring.
The Commission argued that the builder had failed to properly install the timber flooring, because it applied the adhesive by means of a gun type dispenser in strips at approximately 450mm centres, rather than a full surface spreading of adhesive using a notched trowel.
The builder argues that the method of applying the adhesive was satisfactory, and that the only reason that areas of the floor were detached and tenting and peaking was because they were affected by water from various plumbing leaks or rainwater.
The matter comes down to these questions:-
(1)Was the timber properly adhered to the concrete slab ?
(2)Has the timber detached from the slab only because, and only where, it was water affected?
(3)Would the timber have detached from the slab even if it was properly adhered, as a consequence of being water affected?
I was asked to decide a preliminary question of law at the commencement of the hearing. Counsel for the builder submitted that the Direction to Rectify was invalid, as it was vague and imprecise, and not in accordance with Section 72 of the Queensland Building Services Authority Act 1991 (Qld) (the QBSA Act).
I was referred to Ireland, Larry v QBSA & Hawkins[1] where Member White noted that:-
In terms of drafting, it is my opinion that this discretion should not be unnecessarily fettered or become cluttered with technical requirements. A Direction should be construed sensibly and not in a strict legal technical way. That said, it must satisfy the basic requirements of s.72. Further, it must be generally fair and comprehensible. The factual context can be considered in determining whether a direction is fairly drafted. For example, the facts might demonstrate that when a document refers to “defective pavers near front gate”, that both parties understand exactly which pavers are being referred to. These Directions are usually drafted by building inspectors with a practical industry background, rather than lawyers. Further, the tribunal can vary the wording of a Direction.
[1][1999] QBT 180 at p 9.
I ruled that the Direction was sufficiently comprehensible by the parties and was valid. There is only one building element involved, the timber flooring, and the builder can readily identify which sections are detached and tenting and peaking. The builder has examined the floor on several occasions, as has its expert witness, Mr Betteridge, and have identified on plans the areas which they say are affected. If rectification is directed, I was advised that the usual practice is that the builder and the Commission would confer as to the rectification work to ensure it was satisfactory before being “signed-off”.
I noted a further passage from Ireland that indicated that in the case of a identifiable element, such as a roof (or in this case, a floor) that the Commission simply has to point out the defect and the builder must fix it[2]:-
Sometimes, it is not possible to determine the precise cause of a problem, without dismantling part of the construction. It is not a pre-condition for the issuance of a direction that the Authority identify with precision the cause of the defect. It is enough that the direction points to a defect and leaves it up to the builder to undertake the investigations necessarily involved in proper rectification. A practical example is a leaky roof. It is sometimes difficult to diagnose the precise cause of the leak. The Authority does not have to do that. It simply has to point out to the builder that there is a leak and he or she must fix it. Of course, in practice, the authority’s inspectors and the respondent/builders often negotiate and consult with each other, as to an acceptable mode of rectification.
[2]P 10.
Throughout the history of this matter there was uncertainty as to what adhesive had actually been used on this floor. Initially the builder thought a Sika product had been used (based upon information provided to it by the installers they engaged). Then an Invoice was obtained from the adhesive supplier which suggested a product called “Emfimastic PU Parquet” had been used (based upon a supply invoice).
In the course of the hearing, it became obvious from all witnesses that “Emfimastic PU Parquet” could not have been used, because that product is a cherry colour, whereas the glue used on this floor was beige.
The confusion of the adhesive was finally resolved when the adhesive supplier, Mr Malcolm Johnson, of “Adheseal” gave evidence. He explained that the invoice description was misleading, and that the product that was supplied was definitely another product called “Emfiparquet PU Mono R400”. He explained that his company packaged that product into 600ml sausages. That product was beige in colour.
The builder accepted during the hearing, in the evidence of David Parra, that “Emfiparquet PU Mono R400” was the product that had been used, but that they just bought it, and knew it, as “Adheseal PU”.
I am satisfied, beyond any doubt, that the adhesive that was used in this application was “Emfiparquet PU Mono R400” (R400).
Mr Hayward is the technical manager of the Australian Timber flooring Association. He has been involved in the timber industry for about 30 years. He referred to a section of flooring (which subsequently became Exhibit 8) which had been removed from the house, and said that the residue on the rear of the timber adhesive looked like it had been applied by a “sausage-gun” in strips, rather than by a full-trowel application.
He said that no adhesive would be appropriate to apply with a sausage-gun in this application, and that the adhesive was wrongly applied. He said this type of flooring was usually installed on timber battens 450mm apart and became mechanically fixed.
He was asked if there was an external water event whether he would expect tenting or cupping, irrespective of the adhesive application. He replied that it would depend whether the water went to the bottom of the boards, but if there was substantial water damage he would expect to see other damage (such as to the robes in bedroom 2). He said the whole board would swell, but the less adhesive there was, the less restrained the board would be. He said that in areas where the floor width was greater, that he would expect more peaking.
He was referred to a technical data sheet published by Timber Queensland Limited[3] on Recommended Installation Practices. The only relevant reference there was at page 4 which said:-
Installation of Strip Flooring over Concrete
Assessing the concrete slab
Timber floors may be laid on battens or plywood over a concrete slab, or by direct fix. Direct fix to the slab is a specialist field and appropriate professionals in this field should be consulted if considering this method.
[3]Data Sheet 18 – Recommended Installation March 2006.
Mr Hayward was strongly of the view that the more adhesive there was, the more holding power there would be onto the floor, and that this would affect the performance of the floor as the result of a water event. He referred to a bamboo floor which had been submerged for 24 hours in the last Brisbane flood, and which did not explode off the base.
Mr McKenzie is the Manager of Timber Application and Use for Timber Queensland. He had inspected the house first on 23 September 2011. He wrote a report[4] in which he concluded[5]:-
From the information, observations and measurements obtained during the site inspection it is considered that:
- The original floor has expanded since initial laying due to uptake of moisture, most probably from the atmosphere. Moisture uptake from the slab seems less likely as the boards have a fairly consistent moisture profile through their depth. Also, it is not considered that the suggested water leakage from the coffee machine could not have been the primary contributor to the expansion that has occurred as the floor exhibits this characteristic across a broad area including the entry foyer well away from the kitchen.
He also noted:-
- The apparent “cupping” in the floor is most probably “peaking” due to uneven pressure being applied to the top shoulder of the boards as a result of expansion that has occurred and the significant undercut that is associated with the board profile. An undercut of approximately 0.5mm is considered appropriate for 80mm wide flooring and the measured undercut was significantly greater than this.
[4]Timber Queensland Report to QBSA, 23 September 2011 (SOR p 61).
[5]Para 4 “Conclusions” of Report (SOR p 64).
He then re-inspected the house on 25 June 2012, when sections of the timber floor were removed for examination. He wrote a further report[6], and noted that further information had been gained and accepted at this inspection which included:
-      A moisture sealer had not been applied to the slab prior to floor laying
-      The flooring had been direct fixed using a polyurethane flooring adhesive
-      During installation, the flooring had been temporarily pinned to the floor using face nails at approximately 800mm ors
-      Due to the direct stick installation method, tight clamping of the floor could not be undertaken and boards were just tapped into position.
[6]Timber Queensland Report to QBSA, 26 June 2012.
A section of the flooring was lifted in the Entry at the location of the tenting and this revealed at this location that:
-      The floor had been direct fixed using lines (beads) of flooring adhesive at approximately 450mm crs perpendicular to the boards
-      At this location, thin shims of softwood packing had to be used to ‘level’ the floor and that the packing had been glued to the concrete slab and the flooring then glued to the packers
-      Adhesion of the flooring to the slab/packing was inconsistent from well adhered to poorly adhered.
He concluded that:-
From the information, observations, and measurements obtained during the site inspection it is considered that:
- The ‘direct stick’ method used to install the flooring is not in accordance with industry or flooring glue manufacturers recommendations which generally require a full bed of adhesive to be applied by grooved trowel to achieve a minimum of 70% glue contact area (refer to Appendix 2) and that due to this, the flooring has not been sufficiently restrained to prevent movement and lifting associated with normal moisture content variations/use that could be expected in the timber in service.
- Additional slab moisture sources have exacerbated the problems in Bedroom 3.
In evidence, he said that there was significant moisture on one side of bedroom 3, between bedroom 2 and bedroom 3, but that the external wall of bedroom 3 did not show high levels of moisture.
He described the adhesion of the boards as inconsistent, and that there was less adhesion where the boards were affected by moisture, but that there was still not very good adhesion on the areas where the boards were not wet. He pointed out the entry where there was no moisture, but part of the boards were well adhered and part were not. He described the floor as having lifted from the concrete slab in numerous areas throughout the house.
He thought that there was so much moisture in bedroom 3 that nothing would have held the boards down in that area; but doubted that the coffee machine leak in the kitchen area would have been a significant event as the whole floor would have tented and popped.
His view was that, assuming the whole of the house was glued at 450mm spacings, it was problematic that the timber would part from the slab. His view was that the method of gluing was not sufficient to prevent tenting of the boards.
He was not aware of any data sheets as to proper use of adhesive for a direct stick application. He was referred to a publication by the Australian Timber Flooring Association called “Timber Flooring” and noted that there were no instructions for direct stick application, but that on page 23 of the publication a photo was shown which was described as direct-stick, and showed a full-trowel application of adhesive which was typical of a notched trowel.
He did speculate that polyurethane glues are moisture setting and form a membrane, and that if it was a closed cell adhesive, and if it had 100% cover, that it would act as a waterproof membrane.
I accept the evidence of both Mr Hayward and Mr McKenzie. I found their evidence to be consistent and credible, and that where they made speculations, that those were based upon significant industry experience with timber floors of this type, and with relevant adhesives.
The builder engaged Mr Betteridge as an expert. As he was only engaged on 9 January 2014, and his report was dated 22 January 2014, which was less than six days before the hearing, it was not possible to have him participate in an experts conclave prior to the hearing. The Commission did not object to the reception of his evidence, and as he was the only expert engaged by the builder, I allowed his evidence to be heard as a matter of fairness to allow the builder to put its best case. I do note however that the builder had been directed on 6 December 2012 by a Senior Member to file any expert report by 18 January 2013, over a year before. Counsel for the builder suggested the delay arose because of discussions with the Commission. I allowed the experts to confer at the start of the hearing, and stood the matter down to allow that to happen, but they were unable to come to any joint views.
In his report, Mr Betteridge concluded that:-
7.6 I formed the opinion the subject floor has partially detached from the substrate due to water coming into contact with the adhesive resulting in deterioration of the adhesive at the area of water contact with the adhesive.
7.7 I do not believe the tongue and groove flooring has detached from the substrate due to an inadequate application of adhesive.
7.8 I do believe detachment of the floor is the result of water damage to the adhesive
Mr Betteridge is a very experienced builder, and has had a lifetime of experience in building timber floors. These however have all been “conventional’ installations using boards affixed to timber joists. He candidly admitted that he had no experience at all with direct-sticking of timber floors.
Mr Betteridge was operating under the belief that the adhesive that was used was “Emfimastic PU Parquet” and has based his assessment on that presumption, and has had reference to the data sheet for that product. That was the incorrect product as it transpires. They are similar products in that they are both polyurethane glues, but there must be differences between them which were not elucidated in the evidence.
The data sheet for R400 describes it as having “Water resistance: excellent”[7]. The data sheet for the product that Mr Betteridge thought was used is to similar effect[8], and says “Water and salt spray resistance: Excellent”. None of this data is consistent with the view of Mr Betteridge that the adhesive was affected by water. I also note the evidence of Mr McKenzie that polyurethane glues form a membrane.
[7]EMFI Data Sheet Emfiparquet PU Mono R400 Product code: X9027W.
[8]EMFI Data Sheet Emfimastic PU Parquet Product code: 7D088D.
Mr Betteridge said that his experience with adhesives in general was that water breaks them down, but he said that he did not have experience with R400.
I therefore do not see the basis for, or accept, the conclusion of Mr Betteridge that the adhesive was damaged by water, and that this led to detachment of the floor.
In his report Mr Betteridge noted that one method of fixing a timber floor to concrete is to use timber battens fixed to the concrete substrate with tongue and groove flooring nailed to the battens. He argued that battens at 450mm spacing is satisfactory, as they effectively act as floor joists to support the tongue and groove floor[9].
[9]Report Terry Betteridge & Co Pty Ltd, 22 January 2014, paras 7.5.8.7 and 7.5.8.8.

He then went on to argue that “Adhesive spacings of 405mm to 460mm effectively replace the battens or floor joists on this particular project”[10].
[10]Report Terry Betteridge & Co Pty Ltd, 22 January 2014, para 7.5.8.9.
However, in his evidence Mr Betteridge said that when floor boards are attached to joists, they are usually nailed to the joists and sometimes adhesive is used as well. He said that he did not recall where a timber floor was ever applied over joists using adhesive only.
The nailing of boards to the battens creates a mechanical fixing of the boards to the battens, which are in turn mechanically fixed to the concrete. The result is that all of the boards, the battens and the concrete slab are mechanically fixed to each other by fastenings as well as adhesive. If adhesive only is used, which on the evidence is not industry practice, as was done in this case, then the same level of mechanical fastening is not achieved.
I therefore do not accept the proposition of Mr Betteridge that the adhesive application in strips in this case does effectively replace the floor battens or joists.
Mr David Parra is a principal of the builder. He was asked on what basis the system of gluing the floor with strips of glue was employed, and replied that the company had done it that way for the previous 10 years, and assumed that they would do it the same way.
Mr Parra said that he only knew the adhesive as “Adheseal glue”, that his practice was just to ring up Mr Johnson and describe the job, and that he would be sold the appropriate adhesive. He said that in this instance, he received the sausages of glue, a bag of nozzles, and that Mr Johnson included an applicator gun.
He had no recollection of any data sheet being supplied. It was apparent that the builder did not have regard to any data sheet or manufacturer’s instructions of any sort, and indeed that the builder was not even aware of what the exact brand and product of adhesive was that it was using.
The difficulty for that builder is that it was unable to provide any substantiation that application of the adhesive in strips was appropriate for this application. It did not call any expert witness who said this was an appropriate application, and it did not point to any technical manual, manufacturers instructions, or supporting independent documentation of any kind that supported the process of application which it employed.
The builder simply relied on its experience of previous jobs which it said had been satisfactory, and Mr Parra was adamant that apart from this job that he had never had a problem with timber flooring.
Mr Parra said that he used a width of 450mm between the glue strips, as that is the industry spacing of joists supporting a timber floor. He said that he was aware of direct-sticking by trowel spreading the adhesive, but that it took a lot longer and was messy. He said he found the gluing in strips to be more efficient.
He described an incident of water damage to the floor in the kitchen area by a leaking coffee machine, which had been the subject of an insurance claim in 2008. The builder was called back to the site and gave a quote of $5,915.00 to repair the floor, and replace 103 square metres of damaged boards which is described in the quote as “in family room”[11] but which he described in evidence as throughout the family room, kitchen, sun room and living room. Another builder’s quote was accepted, an independent assessor authorised payment of $6,215.00 on 18 June 2008, and the initial owner was paid that sum by his insurer, Suncorp.
[11]Quotation Cobine Pty Ltd 12 September 2011 (SOR-5).
The initial owner, Mr Omar Correa, described the water damage as being to “the timber boards in the kitchen area”[12] and says that he did not have any repairs effected, and that he sold the house on 19 October 2008 in that condition.
[12]Statutory declaration of Mr Omar Correa sworn 1 February 2012.
The purchaser, Danielle Reid, did not observe any defect in the floor[13]. This suggests that the damage was either relatively minor, or that the floor resolved itself, and that this was not a highly significant water event that would have affected the greater part of the house, being the whole of the kitchen, meals, sunroom and living areas.
[13]Quoted in Inspection Report 14 September 2011 (SOR-6).
Counsel for the builder submitted that the only areas of the floor that were detached were those affected by water. He specifically identified the Family Area, Bedroom 3 and the Entry Area as being the relevant areas. He suggested that the family area was affected by the leaking coffee machine, and perhaps by rain coming in from sliding doors; that bedroom 3 was affected by water from an unidentified plumbing leak or a cracked bath, or an open skylight; and that the entry was also water affected, and surmised that this was due to the same causes as affected bedroom 3.
He referred to the 2008 insurance claim for water damage and pointed to this as confirming that water damage had occurred in the family area.
He argued that it had not been shown as a matter of causation that full trowel application of adhesive would have enabled the flooring to remain attached when subjected to the same water effect.
The Authority submitted that the defect arose because of inadequate application of adhesive. Mr Lorencivic postulated that if the only glue used on this job was that as shown on the Adheseal invoice, and it was all used, that was 120 sausages of 800 grams each, being 96 kilograms of adhesive. He referred to the R400 data sheet which showed an application rate of 1 kilogram per square meter. By applying that rate to the floor area of the house of 240 square metres, this suggested that the appropriate amount of adhesive should have been 240 kilograms. The difference is 144 kilograms less glue. He described this as a significant difference, and that the builder had used between 2 to 3 times less glue than the manufacturers recommendations.
The Adheseal invoice showed the cost of the glue was $1,164.00 plus GST. If that was for 96 kilograms as suggested, the cost is approximately $12.13 plus GST per kilogram. The cost of the additional 144 kilograms would be $1,746 plus GST.
The builder has clearly used much less glue by applying the adhesive in strips rather than full width. That is apparent by simply looking at the board that was removed. There was clearly a cost saving to the builder to use what may have been 144 kilograms of adhesive, and it was also quicker and less messy to apply.
The builders principal contention was that the flooring would have been satisfactory if it had not been water affected. He supported this argument by saying that he had used this method of gluing on very many previous jobs, and that the results had been satisfactory. This is an anecdotal argument only, which is not supported by any independent verification.
There was no clear evidence that the amount of water that affected the floor was substantial, or that the whole of the kitchen, meals, sunroom and living areas were water affected.
I accept the evidence of the experts called by the Commission that there are areas of detachment of the flooring throughout the house. The detachment is evident in the areas where the runs of timber are longest, which is as expected by Mr Hayward.
I accept that the movement of the boards is most likely to have been caused by the timber normally taking in moisture from the air and expanding, as described by Mr McKenzie.
I am satisfied that if the boards had been glued down with a full trowel application of adhesive that they would have been able to withstand the normal moisture intake as anticipated by the adhesive manufacturer.
The normal moisture intake from the air may have been exacerbated by the effect of water from the leaking coffee machine, and perhaps plumbing faults in bedroom 3, and perhaps some rainwater ingress, but I am not satisfied that those water events alone were the cause of the detachment, or significant factors in the detachment in comparison to the improper method of gluing.
I am therefore satisfied that the boards became detached because they were not restrained by sufficient adhesive to glue them consistently and strongly to the concrete slab.
I am satisfied that the builder has not properly applied the adhesive, which led to the defects, and that it is fair to order it to rectify the works.
I order that the decision of the Queensland Building and Construction Commission made on 27 May 2013 to issue Direction to Rectify and/or Complete Number 39012 is confirmed.

Costs

The Commission did not seek costs generally in the event that the Direction to Rectify was confirmed. However, it did seek $500 costs which it said were thrown away on the first day of the hearing between 9.45am and 10.45am, when Counsel for the builder was conferring with his Solicitor and the builder’s expert, because certain documents had not previously been provided to Counsel. This resulted in cost to the Commission (presumably from experts fees).
I understand the Commission’s frustration, but the Tribunal is not a cost focussed jurisdiction. The hearing did complete within the two days allocated, so the delays on the first morning did not increase the anticipated costs overall. Whilst the tribunal will generally try to manage proceedings so that the costs to the parties are minimised, it can be difficult to manage the time for attendance of experts precisely. I am wary of inviting too close an inspection of proceedings and analysis of costs.
In the circumstances, I do not propose to allow the costs thrown away as requested. I make no order as to costs overall.