DU PLESSIS and BGC RESIDENTIAL PTY LTD - [2012] WASAT 24

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: DU PLESSIS and BGC RESIDENTIAL PTY LTD [2012] WASAT 24

MEMBER: MR C RAYMOND (SENIOR MEMBER)
DR A ZURHAAR (SESSIONAL MEMBER)

HEARD: 11 NOVEMBER 2011

DELIVERED : 9 FEBRUARY 2012

FILE NO/S: CC 1140 of 2011

BETWEEN: CHRIS DU PLESSIS
Applicant
AND
BGC RESIDENTIAL PTY LTD
Respondent

Catchwords:

Building Services (Complaints Resolution and Administration) Act 2011 - Whether roof tiles faulty or unsatisfactory

Legislation:

Builders' Registration Act 1939 (WA), s 12A
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36, s 38
Competition and Consumer Act 2010 (Cth)
Interpretation Act 1984 (WA), s 37

Result:

Application granted

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr A Buchan

Solicitors:

Applicant: Self-represented
Respondent: Hotchkin Hanly

Case(s) referred to in decision(s):

Goldfields Homes Pty Ltd v Blacker (1999) 23 SR (WA) 75

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant lodged a complaint before the Building Disputes Tribunal which was transferred to the Tribunal pursuant to the provisions of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The complaint alleged that a large number of broken roof tiles installed by the respondent were defective. As a result of the respondent's persistent rejection of liability, the applicant engaged his own contractor to replace the roof tiles and sought an order for compensation in respect of the cost incurred by him of $5,083.
The Tribunal found that there were aspects of the applicant's case which were misconceived. The Tribunal rejected the applicant's contentions that a breach of the Australian Standards requirements for testing roof tiles meant that the roof tiles were faulty or unsatisfactory, and further, that in the circumstances, the onus lay on the respondent to prove that the roof tiles were sound and fit for purpose.
The Tribunal rejected evidence from the respondent that the broken roof tiles were concentrated on areas in which tradespersons had carried out work fixing installations on the roof. The Tribunal found that the roof had been inspected after the installations had been completed and that there was no indication of broken roof tiles. The evidence showed that during a number of inspections of the roof, walking on it had not caused any roof tiles to break. In addition, there was evidence that an adjoining roof on which the same tiles had been used was suffering from the same problem. The roof tiles had broken predominantly in precisely the same manner in the area of the tile underlap. Once the soundness of the roof tiles was called into question, the respondent purported to carry out testing to establish that the tiles were not defective. The testing carried out was not conducted in accordance with the Australian Standard and was of no evidential value. The Tribunal, having regard to all of the evidence, found that the roof tiles were faulty and unsatisfactory.
The Tribunal found that the costs claimed by the applicant were excessive. The quotation also included charges for work which was not the subject of the complaint. Having regard to the respondent's evidence in relation to costings, the Tribunal awarded the applicant compensation in the sum of $2,500 inclusive of GST.

The proceedings

On 27 April 2010, the applicant lodged a complaint with the Building Disputes Tribunal. The complaint related to what was alleged to be an inordinately large number of broken roof tiles on the applicant's dwelling at No 140B Ravenscar Street, Doubleview, Perth. The roof tiles are marketed by Harmony Roof Tiles under the name Miner's Gold Villa. At that stage, the applicant (owner) sought an order against the respondent, BGC Residential Pty Ltd (BGC) for the removal of the broken roof tiles, removal of broken tile debris from the gutters, replacement of the defective tiles, or the cost to the owner of carrying out such work.
The complaint was lodged because BGC rejected liability on the basis that no issue had been raised about the condition of the roof tiles on completion of the building and that, subsequently, other tradespersons had erected various installations upon or connected to the roof.
The proceedings were in due course transferred to the newly established Building Commission and then referred by the Building Commission to the Tribunal for resolution pursuant to the provisions of the Building Services (Complaints Resolution and Administration) Act 2011 (Act). Unless otherwise stated, all references to legislation are references to the Act, which shall be referred to as the Act unless the context requires reference to the full name of the Act to avoid confusion.
Prior to the hearing of the matter and as a result of BGC's continued rejection of liability, the owner had approximately 160 roof tiles replaced, the ridge cappings repointed and all waste removed from site at a cost of $5,083. The owner seeks an order for payment of that amount.
The final hearing of the matter took place on 11 November 2011. The owner gave evidence himself and called no other witnesses. For BGC, evidence was given by Mr Gary Wayne Congdon, BGC's Construction Manager, Mr Richard Thomas Bromley, the Divisional Manager of Harmony Roof Tiles, and Mr John Leslie William Smart, a Service Manager also employed by Harmony Roof Tiles.

The issues for determination

The complaint raises the following principal issues for determination.
1)Are the roof tiles faulty or unsatisfactory?
2)If the answer to 1 is in the affirmative, is the owner entitled to compensation in the sum of $5,038 for the cost of removing and replacing the defective roof tiles?

The alleged defective roof tiles

There is little dispute between the parties about the facts as set out below. To the extent that there is any controversy about the facts, that is addressed in the Tribunal's consideration further below.
It is common cause that construction of the dwelling by BGC was completed in approximately 2005 pursuant to a contract entered into with the then owner of the property (not the applicant).
The owner purchased the property in late 2006. A prepurchase property inspection was carried out on behalf of the owner by J&M Building Surveys & Inspections on 28 September 2006. A copy of that report appears in the book of documents which was admitted as Exhibit 1 in the proceedings at pages 42 49. At page 44, the roof covering and roof plumbing was addressed. The report reflects:
ROOF TILES
3.1The roof tiles are concrete and are in functional condition. Roof tiles appear to be in good order.
…
There does not appear to be any cracked or broken tiles on this roof.
…
In the following paragraph, reference is made to the eaves guttering and the author of the report, Mr Kevan James Rowbottam, noted that 'gutters are relatively clear except for some minor chips off tile edges'.
Photographs incorporated in the report show incidentally that a television antenna had been installed on the roof and that a steel framed metal clad pergola was attached to the northeast rear corner of the building, all prior to the inspection.
The owner gave evidence that he first noticed the extent of the cracked roof tiles approximately six months before making his complaint to the Building Disputes Tribunal. That would have been in approximately October or November 2009, the complaint having been made in April 2010. The cracked roof tiles were particularly evident when driving up the driveway because of the line of sight then aligning with the roof slope allowing shards of the broken tile underlaps to become visible.
The owner's evidence is that all of the attachments to the roof, including the television antenna, a satellite dish, air conditioning and the patio were installed by the previous owner prior to his purchase of the property.
The owner had been up on the roof on two occasions and had applied a flexible sealant in some areas. On one of the occasions referred to below, when BGC carried out an inspection, the owner had requested the BGC representative to repair a couple of roof tiles which were allowing water to leak into the dwelling.
There was evidence that a light sensor had been installed to the soffit. (This is located in the approximate south-west section of the roof as marked on the roof plan Exhibit 1 page 69. It is diagonally opposite the patio which is described as being on the northeast corner of the building.) It is not clear on the evidence as to when this installation occurred.
Following the complaint to the Building Disputes Tribunal, Mr Smart, the Service Manager employed by Harmony Roof Tiles, and Mr Murray Dobosz, a Maintenance Supervisor employed by BGC, conducted an inspection of the roof on 4 June 2010. Mr Smart, by letter dated 4 June 2010, gave an account of the inspection to Mr Leo Carbone, BGC's then Construction Manager, of his observations during the inspection and of the action taken. Reference was made to the television antenna, the Foxtel satellite dish, the patio/pergola and the sensor light. The point was made that trades must have accessed the roof to complete these works and that this 'caused roof tile/ridge/valley damage'.
The roof damage observed was further described in some detail as follows:
•The ridge capping is cracked in sections due to tradework movement in nearby locations. This is evident in all locations that the abovementioned trades have worked.
•Broken valley cuts are visible from walking in the valleys incorrectly.
•There are numerous broken underlaps to the roof tiles and a broken valley cut which has been siliconed. This is evident in all locations that the abovementioned trades have worked.
•Silicon has been used in various location [sic] to repair damage in order to prevent leakage. This is evident in all locations that the abovementioned trades have worked.
•Broken hip tiles have been repaired with silicon.
Mr Smart further stated that he and Mr Dobosz had walked the entire roof during the investigation and did not crack or break any roof tiles. Mr Smart mentioned that he had retrieved two sample tiles from the roof for testing. He also stated that the roof tiles had been installed in accordance with Australian Standards AS 2050 2002 and that the results of the tiles tested, in all the tests conducted, were a significant pass, particularly the strength test.
On or about 30 June 2010, the owner caused a further building inspection to be carried out by Mr Tony Beton, BRB No 4322, on behalf of John Firth and Associates. In this report (Exhibit 1 pages 54 56), Mr Beton noted:
Approx 100 roof tiles have corners broken off. At first it appeared to be from foot traffic on the roof. But considering the number of breakages over the entire roof and in the same part of each tile, it may well be a bad batch of roof tiles[.] The adjoining unit has the same tiles and the same problem.
On 6 October 2010, an inspector of the Builders' Registration Board, Mr Whittle, conducted an inspection of the roof in the company of Mr Congdon and Mr Carbone on behalf of BGC and the owner. Neither party required Mr Whittle to attend to give evidence, but his report dated 19 October 2010 was put into evidence (Exhibit 1 page 38). The report reflects that the complaint relates to a large number of chipped and cracked roof tiles, which include 53 tile pieces approximately 60 millimetres long by 25 millimetres at the widest point forming a triangular shape. The broken roof tile pieces were laid out in the front portico at the time of the inspection. Mr Whittle described that the pieces were broken off the underside lap of the roof tiles where the tiles joined to form a consistent joint but does not form part of the roof surface and cannot be observed looking straight down on the tile from immediately above it. It was noted that the 'discrepancy' could be observed from the ground. Mr Whittle noted that he and the other parties present had walked on the roof and no cracking or breaking of the roof tiles was caused by the weight of any person walking on the roof.
The owner included in his evidence a photograph showing himself stepping on the overlap of a roof tile (Exhibit 1 page 50) to demonstrate that this did not appear to cause the breakages which had been experienced. The owner was subjected to some cross-examination concerning this photograph because it was contended for by BGC that this was not an appropriate place to stand on a roof tile. Both Mr Bromley and Mr Smart stated that the most appropriate place to stand was at the point of overlap of one roof tile immediately above another, because that point would be supported by the under baton rather than the overlap at the side.
The owner conceded under cross-examination that, as a microbiologist, he had no specific expertise upon which to express the opinion, stated at Exhibit 1 page 50, that it was more likely that the overlap would break rather than the underlap if a person were to stand as he had done in the photograph.
The evidence of both Mr Bromley and Mr Smart is that it is more likely that the underlap would break if a person were to stand on the roof tile in a manner exhibited by the photograph in question (which is duplicated in Exhibit 1 at page 34) and we accept that to be the case. Mr Bromley's evidence is that he has had some 30 years experience in the roof tiling industry and that the roof tiles would not have cracked without extraneous force. It was his view that the cracked roof tiles were as a result of roof traffic. This is understood to be a reference to the activities of tradesmen involved in fixing the various attachments, to which reference has already been made. He also testified that if the underlap cracked, it could be expected that it would not be immediately apparent. It would take some time for the broken shards to migrate out and become visible.
Mr Smart's evidence is to the same effect. He was quite specific that the cracking was in the vicinity of these installations. The installations were marked on the aerial photograph of the roof and agreed by the parties.
In accordance with directions made by the Building Disputes Tribunal on 9 February 2011, the owner and Mr Congdon met on site on 17 March 2011 to verify the number of broken roof tiles the subject of the complaint. At the conclusion of the inspection, it was agreed that there were 159 broken roof tiles distributed as marked up on the aerial photograph of the roof shown in Exhibit 1 at page 69.
When Mr Smart's attention was drawn to that document, he was unable to explain the very significant number of roof tiles broken in areas which were well removed from any of the installations and did not appear to be on any obvious access route to them.
As set out in an appendix to the formal complaint (Exhibit 1 page 11), the breakage of individual roof tiles was described as being identical and on the underlap area. This is demonstrated by sections of the underlap of broken roof tiles which were set out and photographed (Exhibit 1 page 35). The owner estimated that 90% of the broken roof tiles were broken in this way.
In the owner's complaint to the Building Disputes Tribunal, it was specifically alleged that the breakage of tiles had occurred all over the roof and was not confined to any particular area. Further, that a similar breakage pattern was observable on the roof of an adjacent strata property built by BGC at the same time, using the same roof tiles. This was pointed out by the owner to Mr Congdon during the inspection on 17 March 2011 as conceded by Mr Congdon. Mr Congdon did not recall a proposition put to him in crossexamination that he had indicated he was not interested in inspecting the adjoining property. He said he did not recall a conversation to that effect at all. He went on, however, to confirm that he was on site to inspect the owner's roof.
At the directions hearing before the Building Disputes Tribunal, referred to above, BGC was also directed to provide details of the addresses where other roof tiles in the batch were installed. BGC never complied with this order because Harmony Roof Tiles declined to furnish addresses citing a concern that to do so would breach privacy legislation. Photographs were provided of the roofs of the other buildings at which it was stated that the roof tiles had been supplied from the same batch. Harmony Roof Tiles asserted that no complaints had been received from the other owners. A letter of response from Harmony Roof Tiles setting out its position and the photographs are set out in Exhibit 1 at pages 75 79.
The photographs have all been taken at some distance so that it is not possible to examine the state of the roof tiles in any meaningful way. Although the addresses are not supplied, someone has written across each photograph the suburb in which each building is said to be located. None of the buildings are in the owner's suburb, Doubleview. The letter under cover of which the photographs were provided (Exhibit 1 page 75) does not refer to there being any identification of the suburbs in which the buildings were located, and it is not clear who wrote this information on the photographs.
As already pointed out in a letter from Harmony Roof Tiles dated 13 July 2010, Harmony Roof Tiles stated that two sample roof tiles provided during the inspection on 4 June 2010 were to be tested. In a further letter from Harmony Roof Tiles dated 17 February 2011, responding to the directions made by the Building Disputes Tribunal on 9 February 2011, Harmony Roof Tiles provided what were described as the test results on a batch of roof tiles used at the abovementioned residence (Exhibit 1 page 75). Attached to that letter was a document described as 'test results on Miner's Gold Villa'. A test certificate number 4396 was provided. It reflected strength test and absorption test results. Under the strength test result, a mean result is given, said to have been taken from six samples at the time of manufacture. It is then further stated that two samples were retrieved from No 140B Ravenscar Street, Doubleview and strength tested in June 2010 providing a new result. The results were well within the minimum strength said to be allowable under the applicable Australian Standard. The absorption test result is also given without any explanation as to whether it applied to the testing at the time of manufacture or to the two sample roof tiles later retrieved from the property, or to both tests.
It is to be noted that, in the letter already referred to from Harmony Roof Tiles dated 4 June 2010 addressed to BGC, it is stated that the two sample tiles retrieved from the roof would be tested at 'our Canning Vale manufacturing facility'.
Also provided with the letter dated 17 February 2011, in accordance with the Building Disputes Tribunal's directions, was a copy of the Australian Standards 2049 2002 Roof Tiles. The scope of that Australian Standard sets out that it establishes standards for performance, fit and finish, quality of materials and the finished product. It incorporates by reference a number of other standards, including Australian Standard 4046 Method of Testing Roof Tiles. A copy of both of these Australian Standards is included within Exhibit 1 at pages 86 and 106 respectively.
The Tribunal had issued directions for the preparation of the matter for hearing on 25 October 2011 which included an order that on or before 1 November 2011, the parties were to file with the Tribunal and give to the other party any additional documents, not already filed with the Building Disputes Tribunal, on which they wished to rely. Provision was made for the Executive Officer to prepare a hearing book containing the relevant documents filed with the Tribunal. Notwithstanding this direction, BGC tendered, for the first time at the hearing through Mr Congdon, a document headed 'Harmony Test Tile Results' dated 9 June 2010 (Exhibit 4).

AS 4046.0 2002, the Australian Standard for methods of testing roof tiles, sets out that the objective of the test methods is to provide laboratory staff with test methods for the testing of roof tiles and associated materials. The scope reflects that all tests are on roof tiles drawn from an initial sample of 12 tiles. There are numerous aspects of the roof tiles which are to be tested, including distortion, transverse strength, water absorption and permeability. For the transverse strength test, six roof tiles must be selected from the 12 tiles. Prior to the testing procedure being commenced, the tiles must be immersed in water of a temperature of 20 degrees centigrade (plus or minus 5 degrees centigrade) for not less than 24 hours and for not more than 26 hours. Immediately before the test, each tile must be removed individually from the water and the surplus moisture removed. The specific procedure for transverse strength testing is then set out. The standard then requires that a report be provided setting out specific information.
A production analysis under the letterhead of BGC Cemtech was tendered through Mr Congdon (Exhibit 3). It appears to contain all of the prescribed reporting information, save that the exposed width of the roof tiles is not provided. The Harmony Roof Tiles test results (Exhibit 4) provide no more than the breaking load (presumably expressed in newtons as required by the standard) at which the tile failed. There is no reference to any Australian Standard, as required under the prescribed reporting information. Unlike the BGC Cemtech report, there is nothing to indicate that the roof tiles were immersed in water in accordance with the required standard.
It is, in particular, noted that the reporting requirements require that in any re-test, which is understood to cover a test subsequent to that carried out from the initial batch of 12 roof tiles, the test procedure is to be applied to 12 tiles, not six tiles as in the original test, and the report must provide the required information in respect of each of the 12 tiles.
As the owner had not been supplied with the Harmony Roof Tiles results in any form other than that provided under cover of the letter dated 17 February 2011 at any time prior to the hearing, he prepared his case on the basis that the two roof tiles retrieved from the property in June 2010 had been tested by BGC Cemtech and that such testing was deficient and not in accordance with AS 4046. The owner presented a screen shot of the BGC Cemtech website (Exhibit 2) which states:
BGC Cemtech safeguards the high quality standards of BGC's cement, concrete, paving, tile and brick products. Cemtech's nationally accredited laboratory conducts exhaustive chemical and physical tests to ensure the group's manufacturing products continue to exceed the stringent standards of the Australian Standards Code.
It is common cause that BGC Cemtech and Harmony Roof Tiles are companies within the BGC group of companies.
The owner stated in evidence that he had contacted Mr Michael Remias, a senior employee of BGC Cemtech, who had acknowledged that BGC Cemtech was not accredited by the National Association of Testing Authorities, Australia (NATA) to carry out the testing of roof tiles in accordance with AS 4046.0 2002. The owner also referred to a screen shot obtained from the NATA internet website (Exhibit 1 page 67) which sets out the types of tests for which BGC Cemtech is accredited and which does not include the testing of roof tiles in accordance with the above Australian Standard. Mr Remias is named on the website as the contact person for BGC Cemtech and it is also noted that it sets out the names of the individuals who are the approved signatories for particular tests which reflects that Mr Remias is approved for all of the tests for which BGC are accredited to conduct.

The parties' contentions

The owner places emphasis on whether the roof tiles comply with the relevant Australian Standards. He points to the progressive increase in the number of roof tiles breaking since the installation in 2005, with most breaking in a similar breakage pattern which it is submitted suggests that the roof tiles are defective.
The owner stresses strongly that BGC (which is taken to be a reference to the BGC Group, not merely the respondent) consistently claim, publicly advertise and have made deliberate representations of compliance with Australian Standards, including the relevant standards for roof tiles, and that, therefore, the onus is on BGC to demonstrate compliance with the standards and that it has failed to do so because the test was inadequate and was not conducted in an appropriately accredited laboratory. It is submitted that the Tribunal should determine whether BGC has made representations in contravention of the Competition and Consumer Act 2010 (Cth) (CC Act) and that findings in favour of the owner should result in compensation being awarded to replace the roof tiles in question.
Counsel for BGC submits that the onus rests upon the owner to demonstrate that the roof tiles are faulty or unsatisfactory. There is a plausible explanation for the cracking in that there had been considerable traffic on the roof and that cracks which occurred at an earlier time would not have been apparent until the underlap shards began, over time, to work loose. It was submitted that there was nothing misleading in the tests carried out which were directed merely to the issue of whether or not the roof tiles were of adequate strength. As there is a credible explanation for the breakages, it is submitted that the owner has not discharged the onus upon him.

Consideration

The owner has misconceived elements of the case, which is perhaps not surprising, as he is a layperson who has not had the benefit of any legal assistance in the proceedings.
The complaint made by the owner was one which the Building Disputes Tribunal had jurisdiction to deal with under s 12A of the Builders' Registration Act 1939 (WA) (BR Act). That empowered the Building Disputes Tribunal to make either an order against the person who carried out the building work to remedy faulty or unsatisfactory building work, or to pay to the owner of the building the costs of remedying the building work that is faulty or unsatisfactory. The BR Act was repealed by the Act, so that subject to the application of s 37 of the Interpretation Act 1984 (WA), orders may now be made under the Act, either to remedy a building service, or for the payment of costs of remedying the building service or for compensation for the failure to carry out a building service in a proper and proficient manner or for faulty or unsatisfactory building work (s 36 and s 38 of the Act).
The Australian Standards have no coercive effect, and noncompliance does not preclude a finding that works have been carried out in a proper and workmanlike manner: Goldfields Homes Pty Ltd v Blacker (1999) 23 SR (WA) 75. The owner also misconceives this Tribunal's jurisdiction. There is no jurisdiction to investigate and make findings or to grant any remedy under the CC Act. Our jurisdiction and powers are limited to the enabling legislation under which a matter is referred to the Tribunal, in this case, the Building Services (Complaints Resolution and Administration) Act 2011 (WA).
In the circumstances of this case, and as defined above, the sole issue is whether or not the roof tiles were faulty or unsatisfactory. The onus to establish that is upon the owner. In the Tribunal's view, that onus has been discharged.
BGC's theory that the broken roof tiles were caused by the various installations on or adjacent to the roof was based upon Mr Smart's report of 4 June 2010 in which he attributed the damage to those factors. Further, in his evidence, he was quite specific that the damage was located in proximity to these installations. This evidence was quite patently wrong; the damaged roof tiles were distributed fairly evenly over the roof, with significant numbers of broken roof tiles where there was no obvious reason for anyone to walk upon those places while accessing the installation points identified.
BGC has failed to address in any way the situation pointed out by the owner and in the owner's expert report from John Firth and Associates, which observed and recorded that there was similar cracking occurring in the roof tiles of an adjoining unit in which the same roof tiles had been used and which the owner alleged had been built by BGC at the same time. The owner was not tested in any way as to his knowledge or the basis upon which he averred that BGC had built the adjoining unit at the same time as the property in question. It is a matter which could have been so easily rebutted if wrong. While the owner has put forward no evidence to support the allegation, there is sufficient evidence from the John Firth and Associates report to support a finding that, at the very least, the adjoining unit has the same roof tiles and the same problem.
That is something which one would expect a registered builder to be capable of observing, and the author of the report, Mr Beton, is stated by the report to be the holder of a Builders' Registration Board No 4322, which the Tribunal understands to indicate registration as a builder. John Firth and Associates holds itself out as a firm specialising in building consultancy and inspections. Without any challenge of the standing or content of the report, the Tribunal gives it sufficient weight to make the finding that the adjacent unit has the same roof tiles and suffers from the same problem, namely, excessive cracking, particularly in the region of the underlap, as in the roof tiles in question.
The Harmony Roof Tiles report dated 4 June 2010, the Builders' Registration Board inspection report dated 19 October 2010 and the evidence of the owner establish that walking on the roof is unlikely to have caused the damage which has been experienced. Even with the owner stepping on the point of the overlap, no breakage occurred; yet, there has been an extraordinary number of roof tiles which have broken.
The attempt by BGC, through Harmony Roof Tiles, to establish that the roof tiles supplied for use on the owner's property were not defective has been half-hearted, to say the least. Mr Smart's inspection was either inadequate or reported in a self-serving manner. The subsequent testing of two roof tiles is, in the Tribunal's view, of absolutely no evidential value. Whether intended or not, the incorporation of whatever tests were carried out in respect of the two roof tiles removed in June 2010 under test certificate no 4396 was misleading. It creates an impression that testing has been carried out under some scheme or standard, such that a certificate should be given some weight. Not only that, but 4396 is not a certificate number, but the number of the production analysis carried out by BGC Cemtech on 14 June 2005 (Exhibit 3). It has no application to whatever test was carried out in June 2010. This documentation, coupled with the production of test results only at the hearing (Exhibit 4), together with the inaccuracy in Mr Smart's evidence are a cause for concern.
The Australian Standards require that retesting be carried out on 12 roof tiles. The intent is obviously to ensure that the test results can be regarded as representative of a larger batch of roof tiles. The testing of two roof tiles on their own in some unspecified manner cannot be regarded as representative. There are clearly a majority of roof tiles on the owner's roof which did not fail.
The Tribunal has the benefit of the expertise of Dr Zurhaar, who is a materials scientist. Dr Zurhaar put to Mr Smart, and it was not disputed, that a possible cause of failure of a roof tile may be inconsistency in the cement mix. Mr Smart is understood to have accepted that might be the case. Such a possibility has not been excluded by BGC. The Tribunal understands BGC's contention to be that it is under no obligation to do so.
However, it is evident from the prepurchase inspection report, referred to above, that some close scrutiny was given to the condition of the roof tiles. It was a matter which was the subject of specific comment. The Tribunal accepts that cracking of the underlap of the roof tiles might not be immediately noticeable and that it may take time for the broken shards to work sufficiently free to become noticeable. It seems improbable, though, that some cracking would not have been noticeable. The photograph incorporated in the prepurchase inspection report of the guttering shows that the author of the report would have been at eye level to most of the roof when looking at it as a whole (Exhibit 1 page 44). Further, the BGC approach to this assumes that the underlap cracking was caused by tradespersons carrying out the various installations to or adjoining the roof, which is contrary to the evidence that during the various inspections, walking on the roof caused no cracking, even when the owner walked on the area of overlap most likely to crack. The owner has therefore, in the Tribunal's view, demonstrated that, for some unknown cause, the roof tiles commenced cracking, and that cracking became progressively worse over a period of time. That progression is demonstrated by each subsequent inspection identifying an increased number of broken roof tiles. Although BGC Cemtech is not accredited to test roof tiling, the production analysis report no 4396 indicates a system of testing by an organisation with some specialised skills which, at the very least, purports to be in compliance with AS 4046. It stands as some evidence that the batch of roof tiles to which the six samples related appeared to meet the requirements of the standard and therefore, on the face of it, constituted good and sound material which was fit for purpose.
Once problems were reported with the roof tiles, it is evident that the soundness of the materials was put in question. In ordinary circumstances, evidence of traffic on the roof and the likelihood that that would cause damage might be expected to suffice so that little more would be required than to refer to that evidence and to the original test results. But, for the reasons given above, it is evident that the cracking complained of is unlikely to have been caused by such traffic and that a significant number of roof tiles were failing on a progressive basis. The Tribunal accepts that this is an unusual occurrence and the coincidence of the same problem existing with the same roof tiles on an adjacent building leads to an inference that those roof tiles were probably supplied at the same time as those used at the owner's property. But even without this inference, the unexplained progressive cracking predominantly in the same manner over the entire roof points to the probability that there was some inherent defect with the roof tiles which had not been picked up in the sample of tiles tested at the time. The Tribunal finds that the owner has established that the roof tiles which have been replaced were faulty and unsatisfactory. If Harmony Roof Tiles or BGC had carried out proper and representative testing of the tiles, that might have led to a contrary conclusion.

Compensation

As outlined above, the owner claims an amount of $5,083 in respect of the cost of removing and replacing the cracked roof tiles. A quotation and tax invoice from the contractor which carried out the work appears in Exhibit 1 at pages 62 and 63. Those documents show that the charge included an amount for repointing all ridge cappings. The cracking of the ridge cappings was never part of the complaint and cracking of the cemented joins would usually be regarded as a normal maintenance issue. There is no breakdown in the quotation or the invoice to show how the costs were allocated. Mr Bromley tendered three quotations covering the same work, that is, including the repointing of the ridge cappings. The first is from Monier Prime Pty Ltd (Exhibit 5) and is for a total amount of $1,760. The second is from Rooftop Industries (Exhibit 6) and is for an amount of $1,985.50. The third is from Harmony Roof Tiles (Exhibit 7) and is for an amount of $1,974.50. All of these amounts are inclusive of GST and none give any breakdown of the costs so that the amount allowed for the replacement of ridge capping can be deducted.
Mr Congdon's evidence was that the ridge capping work would be the most time consuming. In his view, $700 would be sufficient to cover material and labour for the ridge capping based on a labour charge of $50 per hour. In his view, the replacement of the 160 roof tiles would take approximately five and a half hours for which he would allow labour of $275 and the balance of the cost would be made up in respect of the cost of the tiles. He advised that the roof tiles would cost between $2.50 and $3 each. Given that there is also a charge for removing all the waste from site, those costings appear to be in line with the Monier Prime Pty Ltd quote, which is for a total of $1,760, but would be somewhat under the other two quotes, both of which were slightly under $2,000. The costings do not, however, include any profit component nor any charges for supervision, which the Tribunal must take to be included in the quotations which have been provided.
Under crossexamination, Mr Bromley conceded that the quotations reflected a 'good price' when it was put to him that was likely, because those providing the quotations were all in the same industry with Harmony Roof Tiles. In the circumstances, the quotations tendered through Mr Bromley do not reflect the market cost of what would be charged by any of the companies providing the quotations to a private individual. It can also be accepted that contractors quoting for remedial work will usually charge a premium because of the very nature of the work. A reasonable premium should be included in the reasonable and necessary costs to be allowed a successful claimant. The Tribunal accepts BGC's submissions that the amount claimed is excessive, not only because it includes work that is not the subject of the complaint, but also because of the overall charge. Doing the best we can on the evidence provided, we consider that the reasonable and necessary cost which should be allowed the owner will fall somewhere between $2,000 and $3,000, inclusive of GST, and in the circumstances, we will allow the claim in an amount of $2,500, inclusive of GST.

Order

For the above reasons, the Tribunal will cause an order to issue that:
1.On or before 7 March 2012, the respondent must pay the applicant the sum of $2,500, inclusive of GST, being the reasonable and necessary cost of remedying the faulty and unsatisfactory roof tiles.

I certify that this and the preceding [64] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER