Daniel Sabbadin Floorsanding v Tropical Source (Qld) Pty Ltd
[2014] QCAT 484
•29 September 2014
| CITATION: | Daniel Sabbadin Floorsanding v Tropical Source (QLD) Pty Ltd [2014] QCAT 484 |
| PARTIES: | Daniel Sabbadin trading as Daniel Sabbadin Floorsanding (Applicant) |
| v | |
| Tropical Source (QLD) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL246–13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 24 April 2014 and 16 June 2014 with written submissions on 21 July 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Johnston |
| DELIVERED ON: | 29 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Daniel Sabbadin t/as Daniel Sabbadin Floorsanding’s claim is dismissed. 2. Daniel Sabbadin t/as Daniel Sabbadin Floorsanding is ordered to pay Tropical Source (QLD) Pty Ltd the sum of Eleven Thousand and Four Hundred and Seventy Nine Dollars ($11,479.00), by 4:00pm on Thursday 30 October 2014. |
| CATCHWORDS: | Building matters – Dispute over the acceptability of a sanded and polished timber floor Australian Standard AS4786-2 2005 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Daniel Sabbadin – self-represented |
| RESPONDENT: | Debbie Orenshaw – Director of Tropical Source (QLD) Pty Ltd |
REASONS FOR DECISION
Background
In early February 2013 the Respondent requested a quote from the Applicant to polish a 270m² timber floor with a clear finish at Lot 3 Holt Road, Garners Beach, which is the residence of Dr and Mrs Gallus.
The contract between the Applicant and the Respondent was a written quote from the Applicant to the Respondent in the sum of $21,600, being $80 per square metre for labour and product.
The rate was higher than the industry rate but the Applicant assured the Respondent that his work would be of a higher quality than other contractors and the Applicant would produce a “perfect floor” and would be using superior products. The Tribunal considers this to be an oral representation that the finish would be of a high quality and this representation should form part of the agreement between the parties because this was the reason why the Respondent engaged the Applicant.
The Applicant required a deposit of $10,800 before commencing the work. The Respondent paid the sum to the Applicant.
The Applicant attended the property and performed the works over eight days between 24 February 2013 and 3 March 2013. The Applicant issued an invoice on 4 March 2013 in the amount of $10,800 being the balance of the monies payable under the agreement between the parties.
On or about 4 March 2013 the Respondent inspected the floor and formed the view that the finish was unsatisfactory.
On 5 March 2013 and 6 March 2013, the Respondent contacted the Applicant and expressed concerns over the appearance of the floor.
The Applicant disputed that there was anything wrong with the floor and was unwilling to attend to rectify the work which had been undertaken.
The issue before the Tribunal is whether the work meets the required standard for timber floor sanding and finishing.
The Applicant owes the Respondent a duty of care to exercise due care and skill in carrying out and completing the polishing of the timber floor with a clear finish.
The Applicant is required to use appropriate materials in undertaking the work.
The assessment of sanding and polishing timber floors is also the subject of an Australian Standard AS 4786.2 – 2005.
Mr Sabbadin’s evidence was that the floor had been finished to a high standard. He conceded that there were some “bubbles” in a couple of areas which he contended would resolve over time. He also conceded that there were some blemishes in the work due to contamination. He also conceded that the timber had been difficult to work with due to its high oil content.
Mr Sabbadin called his brother Lee Sabbadin and his mother Rosa Sabbadin who both worked on the job to give evidence. They both said that the work had been completed to a high standard.
Mr Orenshaw and Mrs Gallus both gave evidence that they were dissatisfied by the standard of the sanded and polished floor. The Respondent contacted the Australian Timber Flooring Association (“the ATFA”) the peak body for timber flooring in Australia to resolve the issue.
On 5 April 2013 Mr Robert Kopp a Certified Inspector inspected the floor and provided a report to the Respondents. This report indicated that the flooring had not been done to an acceptable standard.
The Applicant refused to meet with Mr Kopp and was unwilling to accept his findings and lodged a claim through the Tribunal for the payment of $10,800 by the Respondent to the Applicant.
What does the Australian Standard AS 4786.2 - 2005 have to say about sanding and finishing?
The Australian Standard in Appendix B at B1.1 sets out the way in which the quality of the finish of sanded and polished floors are to be judged and sets out the procedure for undertaking a visual inspection. The Standard notes that:
The acceptability of the final surface should be based on an understanding of the effect of lighting on the noticeability of surface marks and on the knowledge of what a few weeks of wear will do to the surface.
The Standard also sets out the characteristics of the surface which are to be judged in determining the acceptability of the finish. The Standard notes:
The list above includes some of the things that could be expected to some degree in any floor finish. The list does not give any limits for rejection or acceptance.
This method of assessment relies on judgement and the outcome may vary from situation to situation. Acceptability of the final surface should be based on an understanding of the effect of lighting on the noticeability of surface marks and on the knowledge of what a few weeks of wear will do to the surface.
There is accordingly a need for judgement to be exercised to determine the acceptability of the finish.
The AFTA has been set up to support the timber sanding and polishing industry. One of its functions is to certify accredited inspectors. This enables the inspectors to undertake visual inspections of floor sanding in accordance with the Standard and make judgements on the acceptability of the finish.
Mr Robert Kopp undertook an inspection and provided a report to the Respondent. Mr Kopp has been a carpenter for 31 years and has been accredited at Level 7 (the top level) by AFTA and had been undertaking inspections for six years.
In his report noted under the heading ‘Current appearance concerns’:
Uneven application of the coating which gives a rippled or dimpled effect over the floor with noted areas of blister and some contamination.
He provided photographs with his report highlighting his observations. These show the uneven or rippled effect; unevenness of the level of the coating; level of contaminants; and bubbles in the coating across some of the boards.
His report demonstrates that he is aware of the Standards and how floors are to be judged in terms of their acceptability. He found:
With regard to this floor it is considered that the main imperfection outlined was the uneven levelling of the coating resulting in an uneven appearance throughout the floor. In addition to this there were some bubbles in the coating and dust in the finish to some areas. These imperfections were noticeable to varying degrees depending on light direction and consistent throughout the floor area. Whilst a number of factors are considered to have contributed, it must be questioned whether all options regarding product choice and its application were considered, given the large floor area to be coated.
The Australian Standard indicates that imperfections can to some degree be expected in all in situ sanded floors however it is fair to say that in any given area and looking across any part of the floor the uneven look to this floor is noticeable and as such would not be regarded as being of an industry acceptable standard.
Mr Kopp reiterated in his oral evidence that he could see ripples in the floor; bubbling around doors; and levels of contamination in the floor polish and that for these reasons the standard of finish was unacceptable. He believes that the bubbling occurred because the skins dried too quickly on what were hot days and a large surface area. He obtained information about the temperature from reports from the Weather Bureau. He believed that the end result was a combination of several factors but that the decision about acceptability is in relation to the finished sanded floor.
The Applicant complained that Mr Kopp’s experience did not include experience as a floor sander. He on this basis sought to undermine Mr Kopp’s evidence.
The ATFA as a result of the Applicant's criticism of Mr Kopp requested Mr Tony Powell do an inspection and provide a report. Mr Powell has a significant amount of experience regarding the sanding and polishing of timber floors.
Mr Powell provided a letter to the Respondent dated 22 August 2013 in which he noted:
With regard to the floor, when first viewed it did not have an even appearance as had been outlined by Mr Kopp. When the floor was viewed down the length of the boards sanding imperfections were apparent in the form of mild chatter and drum stop marks. When chatter is mild it can be difficult to discern but can have significant influence on the evenness of the final appearance of the floor. It was also apparent that some butt joints had not been sanded flat resulting in depressions in the board surface. Also adding to the uneven appearance was grain dish out in areas, which is a direct result of the sanding process. These sanding faults coupled with surface tension issues in the coating are the main underlying cause of the uneven appearance as shown in Mr Kopp's report. When viewed at right angles to the board surface it is evident that the floor is now peaking with raised board edges. This was not apparent at the time of Mr Kopp's inspection and is not from the sanding and coating process.
… As such the floor was not level and flat as required by AS 4786.2 prior to the application of the coating system. The sanding faults have been made more obvious by the coating and gloss level selection and the application method.
Mr Powell notes the use of Kwila (also known as Merbau) which is an oily timber. He refers to the technical data sheet on Wattyl 7088 which states that this is a species to be careful of due to the problems that occur from high oil content. He makes the point that:
It is likely that this is responsible for the dull haze that has appeared on the floor and has also contributed to surface tension issues affecting the uneven appearance outlined by Mr Kopp.
Mr Powell concludes:
As a result of the above, the floor is of uneven appearance and I have no hesitation in saying that the sanding and coating was not done to an acceptable standard. The sanding and coating therefore fails to comply with the requirements of AS 4786.2
Mr Powell provided photographic evidence of the uneven appearance and the other aspects commented on in his report.
Mr Powell confirmed in his oral evidence that the floor sanding was not undertaken to a commercially acceptable standard. He was surprised by the use of Kwila and confirmed that ‘extractables’ (waxes, oils and resins) leach out or bleed from the timber (the oily content). This condition is more apparent with the use of solvent based polyurethanes and results from dissolving of these extractables into the coating and casting them on the surface after drying. The floor sander needs to deal with the extractable oils before the final coats are applied.
He told the Tribunal that he believed that there was an issue with the surface tension of the three coats. The Applicant used Wattyl 7008 two pack solvent based polyurethane. It looked to him that that there was a problem with one of three coats. He was of the view that coating had been applied heavily providing a high build and with both the inadequate preparation of floor through the sanding process and a lack of appropriate inter-coat procedures the final appearance presents as uneven levelling and consequently an uneven appearance throughout floor.
Mr Powell acknowledged that in new houses contractors would bring in foreign materials on their shoes and introduce contaminants. There were methods for dealing with different contaminants to ensure that they did not form part of the floor polish. He made the point that once a sander accepted an engagement he needed to use his skill and experience to deal with the floor before him and deliver an acceptable job. He would not have used the solvent used by the Applicant. The large surface area of the floor; the high-temperature and humidity; the nature of the timber; and the nature of the solvent were all factors in his view leading to the unsatisfactory finish.
Discussion of the evidence
The Tribunal accepts the evidence of Tony Powell and Robert Kopp. It is clear to the Tribunal that Mr Powell has a wealth of experience in the field and he was impressive in the witness box. The Tribunal prefers his evidence over Mr Sabbadin’s evidence where they differ.
The Tribunal accepts that the Applicant believes that he has finished the sanding to a high degree.
The Tribunal accepts that Mrs Gallus and Mr Wayne Orenshaw believe that the floor is unacceptable.
The ATFA has been set up to deal with these situations. The Association accredits inspectors who are then able to conduct visual inspections and make judgements given their experience of the acceptance or rejection of timber floor sanding and polishing.
The Tribunal accepts that Mr Kopp and Mr Powell were both experienced inspectors. Their professional opinions are that the floor sanding is not acceptable in accordance with the relevant Australian Standard. The Tribunal accepts this evidence and finds that the standard of the floor sanding and polishing was not acceptable. The Tribunal accepts that the evidence shows chatter marks; unevenness of appearance across the floor; unacceptable level of contaminants; and bubbling in several places.
The Tribunal accepts that there were several factors which made this job more difficult. This included: the size of the floor; the nature of the timber floor; the weather conditions at the time; and contaminants that were introduced to the floor during the construction of the residence. However the Applicant had the opportunity to look at the floor and chose to accept the job. The Applicant actually promised to deliver a high standard finish despite having concerns about the type of timber. The Applicant was then required to exercise all his skills and expertise in undertaking the contract. The Tribunal is not satisfied that the sanding was acceptable and from that it is clear that the Applicant has failed to deliver a surface in accordance with the standard required. The standard of the floor has been found to be unacceptable.
The Applicant's application is accordingly dismissed.
The Applicant’s agreement with the Respondent was to provide a polished floor of acceptable standard. The Applicant has failed to do so and the Respondent is entitled to damages for breach of contract. This involves the cost of having the work rectified. The Respondent is claiming the following sum as per its written submissions:
Description
Amount
Cost to rectify floor by new sander/polisher
$19,800
Cost of storing furniture while floor is rectified
$499
Cost of transporting the furniture while the floor is rectified
$660
Cost of repainting the skirting boards after rectification and new varnish
$1,320
Less value of a contract work
$10,800
Total
$11,479.00
The Tribunal believes that these costs are all reasonable in the circumstances. The Respondent provided evidence to support the costs that it will incur and having worked redone.
The Tribunal accepts the Respondent’s evidence that Mr Chris Munro of Timbertop Floorsanding will undertake the rectification work for the sum of $19,800. The Tribunal accepts that this is a reasonable cost for rectifying the work.
The Tribunal accepts that it is appropriate for Dr and Mrs Gallus’ furniture to be stored whilst the floor is rectified. The Tribunal accepts the Respondent’s evidence that the cost of storing the furniture while the floor is rectified is the sum of $499. The Tribunal accepts that this is a reasonable cost for storing furniture.
The Tribunal accepts that it is appropriate for the Respondent to claim the cost of transporting furniture to storage in the circumstances. The Tribunal accepts the Respondent’s evidence that the cost of transporting the furniture whilst floor is rectified is the sum of $660. The Tribunal accepts that this is a reasonable expense for this service.
The Tribunal accepts that it will be necessary to repaint the skirting boards after rectification and apply a new varnish. The Tribunal accepts the Respondent’s evidence that Jack Storch Painting can undertake the painting for the sum of $1,320. The Tribunal accepts that this is a reasonable expense for this service.
There was no serious attempt by the Applicant to challenge these amounts and the Applicant did not provide evidence showing that these were unreasonable charges or could have been done more cost effectively.
Costs
The Respondent has asked the Tribunal to order the payment of the costs.
Legal costs in the Tribunal are not awarded as a matter of course. Each party must bear their own costs[1], unless the interests of justice require the Tribunal to order a party to pay the costs of another party.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 s 100.
[2]Ibid s 102.
There is therefore a strong indicator against awarding costs:
Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.[3]
[3]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412 at [29].
The Tribunal is not satisfied in this case that there are good reasons to award costs. There is nothing unusual in this case; both parties represented themselves at the hearing; the decision turned on a judgment of the acceptability of the sanding and polishing.
Interest
There was no agreement between the parties to pay interest. The Tribunal is not satisfied in this case that there are good reasons to award interest.
Orders
The Tribunal for these reasons make the following Orders:
1. The Applicant’s case is dismissed;
2. The Applicant is ordered to pay the Respondent the sum of Eleven Thousand and Four Hundred and Seventy Nine Dollars ($11,479.00) by 4:00pm on Thursday 30 October 2014.
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