GUNER and PROJEX MANAGEMENT & CONSTRUCTION PTY LTD
[2022] WASAT 5
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: GUNER and PROJEX MANAGEMENT & CONSTRUCTION PTY LTD [2022] WASAT 5
MEMBER: MS KY LOH, MEMBER
DR A ZURHAAR, SENIOR SESSIONAL MEMBER
HEARD: 21 OCTOBER 2021
DELIVERED : 19 JANUARY 2022
FILE NO/S: CC 685 of 2021
BETWEEN: MURAT GUNER
Applicant
AND
PROJEX MANAGEMENT & CONSTRUCTION PTY LTD
Respondent
Catchwords:
Building services complaint - Noisy hybrid floating floors - Whether indication of uneven subfloor
Legislation:
Building Act 2011 (WA), s 3
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 38(1)(a), s 38(1)(b)
Building Services (Registration) Act 2011 (WA), s 3, s 11
Building Services (Registration) Regulations 2011 (WA), reg 3, reg 13
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | B Mayers and Sean Dye (as representatives) |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Mr Murat Guner, the owner of a new home in Willeton built by Projex Management and Construction Pty Ltd, is dissatisfied with the performance of his 'Hybrid XL' floating floors installed on his ground floor (floors), particularly in the living area.
The owner finds that there are a lot of squeaky and noisy areas on the floor, with planks moving up and down. He believes that the subfloor has not been levelled properly before laying the hybrid floors, and questions whether the installation was in accordance with the manufacturer's guidelines.
The builder disputes that there are any issues with the subfloor level nor with the installation of the floors.
There was a varying degree of subjectivity on the noise from the floors, ranging from the owner being able to hear his young daughter walking on the floors from his first floor, to an inspector not finding any noise evident.
We do not accept that noise from the floors is a sufficient indicia of whether the subfloor is level, nor is there any other evidence of building work failing legislative workmanship standards.
Issue for determination
The primary issue for determination is whether the builder carried out regulated building service in a proper or proficient manner or is faulty or unsatisfactory.
The following secondary issues arise:
1)Was the builder carrying out a 'regulated building service'?
2)Was the building work carried out in a proper or proficient manner or was it faulty or unsatisfactory; that is, is the subfloor on which the floors were installed level?
3)Given the builder's non-attendance at a mediation, should an order for the Tribunal's costs of the mediation 'thrown away' be made?
Background
The following background facts are not in dispute between the parties.
In May 2019, the builder commenced building a new dwelling pursuant to a home building work contract with the owner (who is one of the owners named on the contract) for the contract sum of $299,000 (inclusive of GST).
By variation to the contract, laminate flooring was to be installed to the living, dining entry areas to the ground floor level, the living area to the first floor area, and all bedrooms.
In fact, the floors were 'Hybrid XL' floating floors, with a 1.5 millimetre Ethylene Vinyl Acetate (EVA) underlay, which are manufactured by Godfrey Hirst.
The owner commissioned a pre-handover standard property inspection report from HI-TECH Building Consultant dated 21 June 2020 and a practical completion report from BCI dated 20 May 2020. Neither report made any comments about the subfloor or the floors.
Handover occurred on 3 July 2020, and the owner notified the builder straight away about maintenance issues with the house, including the noisy flooring on the ground floor.
Between September and November 2020, representatives of the builder and the installation company (NailedIt Flooring WA (NailedIt)) inspected the home.
On 16 November 2020, the manufacturer's representative, Mr Jon Dunkley, inspected the home.
On 20 January 2021, remedial works were carried out by NailedIt from the kitchen bench area to the entry area, but not the living area.
The owner was dissatisfied with the remedial works, and lodged a building service complaint to the Building and Energy Commission on 11 February 2021.
On 9 April 2021, an inspection of the floors was carried out by an inspector from the Commission, Mr Andrew Chadbund, along with the builder's representative Mr Brett Mayes, a representative from Harvey Norman (Mr Damian Borland), and Mr Dunkley.
Mr Chadbund recommended dismissal of the complaint, which the owner challenged. The matter was then referred to the Tribunal on 3 May 2021.
On 8 June 2021, the Tribunal ordered that the parties attend mediation on 5 August 2021, but the builder failed to do so.
The builder says that its staff member who was managing these proceedings had failed to ensure the builder complied with the Tribunal's order and who has since been dismissed by the builder.
On 31 August 2021, the Tribunal ordered that the Tribunal's costs thrown away on 5 August 2021 caused by the builder's non-attendance at the mediation be determined at the final hearing.
The owner's case and evidence
The owner contends that the noisy floors are indicative of the subfloor not being level, in reliance on the manufacturer's installation notes, which states that uneven subfloors can cause the floor to sound drummy or become noisy.
He also contends that the remedial works were ineffective in levelling the subfloor as the wrong product was used and had been dried too quickly, and the manufacturer's guidelines had not been followed.
The owner otherwise does not contest the quality of the floors.
He relies on the expert report of Mr Andrew Booth, and called Mr Booth to give evidence at the hearing.
He also relies on a video of Mr Booth walking on the floors.
The builder's case and evidence
The builder denies that the floors are noisy, and submits that the noise level is typical of hybrid floors.
The builder relies on the property inspection report and practical completion report, neither of which indicated any issues with the subfloor or the floors.
The builder also relies on Mr Chadbund's inspection report, and called Mr Chadbund as a witness.
The builder called Messrs Borland and Dunkley, as flooring experts, to attest to the quality of hybrid floors and to the rectification works.
Documentary evidence
AS1684.2-2010
Whilst not tendered into evidence, the parties have referred to AS1684.2-2010 'Residential timber-framed construction'.
The builder's expert witnesses say that this standard is not relevant as it does not refer to nor apply to hybrid floors.
Mr Booth refers to the standard in his expert report only to the extent that it provides guidance on the level of support required if the subfloor was timber.
Western Australia Guide to standards and tolerances 2019 ('Guide')
The Guide acknowledges that regulated building standards are contained within the Building Code of Australia (BCA) (page 11 of the Guide).
The Guide has been developed for builders and owners to use as a convenient reference to the minimum technical standards and quality of work (page 10 of the Guide).
Where a determination is required under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the Act) as to whether a regulated building service is being carried out in a proper or proficient manner or is faulty or unsatisfactory, the Guide can be used to determine whether an item is defective only where this cannot be done by reference to the contract, the BCA or the relevant regulations (see page 11 of the Guide).
It notes that some materials used in buildings are often supported by manufacturer's installation instructions, and those instructions take precedence over the Guide (page 11 of the Guide).
Relevantly, para 19.12 'Floor coverings' of the Guide provides that:
…
Floating floors which rest on the structural floor are defective if not installed in accordance with the manufacturer's installation requirements. Movement noises are an inherent characteristic of this type of flooring.
Godfrey Hirst Hybrid XL Installation Instructions ('installation instructions')
The installation instructions have been referred to by the parties' witnesses as the manufacturer's guidelines, and in these reasons, the two terms will be used interchangeably to refer to the same document.
The installation instructions contain the following general notes:
•Generally Godfrey Hirst hybrid flooring does not need to be acclimatised. However, if boxes are exposed to extreme temperatures (under 5oC or over 50oC) within the 12 hours prior to installation, unopened boxes should be acclimatised for a minimum of 12 hours at temperature between 18-27oC and a relative humidity between 3060oC (Note 3).
•Install a plastic sheet over rough subfloors such as chipboard to ensure the product's backing does not get caught on the rough subfloor (Note 5).
•Minimum 6-10 millimetres expansion gaps to be provided at all fixed vertical surfaces (including around cabinetry, island benches and all fixed furniture) (Note 6).
•Skirting boards or Godfrey Hirst scotia and/or end caps will be needed to cover the perimeter expansion gap. Alternatively, the skirting boards can be undercut. Fixings should be to the wall only, never directly to the floor. Silicone or caulking compound is not recommended (Note 9).
In a section entitled 'Please note', the installation instructions state:
•Hybrid floors must be installed using a floating floor system - they need to be able to move. Ensure expansion gaps allow for movement (Note 2).
•Uneven subfloors can cause the locking system to break and/or the floor to sound drummy, or become noisy, and will cause early deterioration and/or failure of the floor (Note 5).
Witness evidence
The owner
The owner's impression of the floors is that it is noisy and squeaky at about 20 spots on the floors.
The level of the noise is such that he could hear his daughter (who weighs 18 kilograms) walking on the floors from the first floor, and has to walk on the floors on the tips of his toes.
After having originally raised the complaint in July 2020, the builder carried out the remedial work over a couple of hours on 20 January 2021 (having been told it would require two days).
Of his observations of the remedial work, the installer had removed some planks in the entrance, hall, kitchen and living area, but otherwise did not touch the living or dining areas. The installer performed localised grinding and applied some patching compound before re-installing the planks.
He found just a little improvement to the noisy floors after the remedial work, and instead found newly created squeaky and uneven areas which were not there before.
Mr Booth
Mr Booth is a registered building practitioner and holds a Bachelor's degree in civil engineering from Curtin University of Technology.
His experience in the building industry includes working as a site engineer or project manager with design and construction companies, and also as a registered builder since 1993. He has been a building inspection consultant since July 1999, and has inspected approximately 8,500 residential and commercial properties in that time.
He has prepared practical completion inspection reports, including for about 50-100 houses with laminate and hybrid floors.
In his report of 1 July 2021, he concluded that the floors, when trafficked, produce a hollow sound, and recorded a video of himself walking over the floors in thick socks.
Mr Booth conceded that he was unable to inspect the actual subfloor without removing the floors and floor trims, where the skirtings and trims at the perimeter of the floor were glued down with a construction adhesive; however, he concluded that the manufacturer's advice that uneven subfloors can cause drummy noises supported his opinion that this is the cause of the noisy floors.
He also concluded that the remedial work was ineffective:
a)the installer had failed to lay a plastic sheet underlay over the subfloor, which he considered was likely to be rough from plasterboard flushing dags, contrary to the manufacturer's guidelines;
b)based on his instructions that there was sealant under the edge strip provided to the laundry door which filled the edge gap, he surmised that edge gaps have been compromised by adhesives at the perimeter of the floors;
c)his observation of the adherence of the floors to the subfloor at the edges has compromised the movement of the floors; and
d)the floors were levelled with an inappropriate compound for levelling and the levelling process may have been compromised as fans were used to accelerate the drying process, possibly causing the edge of the filling to deteriorate and break away. Further, the compound likely did not allow a smooth transition between filler and original subfloor.
He also raised a concern about the weather when the installation and the remedial work were undertaken. His report noted that the Bureau of Meteorology recorded a maximum temperature of 33.6oC on the day of the remedial work, and less than 5oC on four days of the month of June 2020.
In oral testimony, Mr Booth concedes that use of the plastic underlay would not have prevented the complaint about the noisy floors, but perhaps could have exacerbated the noise.
He has experienced noise whilst inspecting floors on other jobs, but none at the same degree of noise as the floors.
He accepts that he is not able to say if the level of the subfloor is outside of the BCA or Australian Standard tolerance limits.
Mr Booth disagrees that the floors are able to follow the contours of the subfloor, as he considers them too rigid.
Mr Borland
Mr Borland is the director of flooring and State leader at Harvey Norman, as the supplier of flooring for the builder.
He worked at Choices for a year before working at Harvey Norman for the last three years.
He says that there are no university or TAFE qualifications relating to the products, but he has attended some Australian Timber Flooring Association (ATFA) courses, and undertaken training modules run by the manufacturers.
Otherwise his understanding of the products has been through onthe-job experience, and relying on source information from the manufacturers and Australian standards.
He inspects about 50 installed floors in a year, and has also walked on display floors.
At the time he inspected the floors, he observed that the level of noise from the floors was as expected and was typical of the product. Indeed, he considered they were quieter than laminate floors.
A difference between laminate floors and hybrid floors is that laminate is high density fibre which is rigid, whilst floating floors follow the level of the floor.
He says all hybrid floors have noise because there are micro air pockets which amplify noise caused by movement to the floor.
He does not consider heat to be an issue in relation to noise from the floors.
As there are no Australian Standards for hybrid floors, Harvey Norman follows the manufacturer's guidelines.
He disputes that the subfloor surface had been contaminated with debris such as rocks or particles during the remedial work as that would show through the floors. Indeed, if the floors had been installed over ceramic tiles, the grout would show through the floors over time.
He disputes that a plastic sheet was required as an underlay as the reference to 'rough' surface in the manufacturer's guidelines did not include concrete subfloors.
When asked in cross-examination why the floors bend and click when pressed with a thumb, Mr Borland says that is a normal characteristic of hybrid floors.
Mr Dunkley
Mr Dunkley has worked for Godfrey Hirst for the last four years as a sales representative, and conducts inspections for customers where there are installer or product issues. He has worked in the flooring industry since 2001, including as an operations officer for installation companies.
He says that it is a characteristic of hybrid floors to make noise, although there is a tolerance level.
He says that hybrid floors can compress, such that you can get movement when you are on the floors, within tolerance limits, and it will not usually be completely flat.
Hybrid floors can be installed on most subfloors as long as they are flat.
He says that there is no need to use a plastic underlay as the hybrid floor already has an EVA foam underlay.
He says that hybrid floors follow the contours of the floor, even with the EVA underlay, because the boards are only 180 millimetres wide. That is why it is important for the subfloor to be relatively flat otherwise it could cause pressure on the joints.
At his first inspection in November 2020, he had observed that the floor was not level using a spirit level at one spot near the kitchen bench, which he considered gives some idea of the level of the subfloor.
This was the only high point he could find.
He found this unacceptable, and so recommended that the installer rectify it by topping and grinding the subfloor.
He considers that the concrete subfloor is smooth, not rough. The reference to rough subfloor in the manufacturer's guidelines is to floors like chipboard floors, which will cause unevenness.
He considers the sound from the floors to be extremely minimal. The real concern raised in that note of the manufacturer's guidelines is that an unlevel subfloor of greater than 2 millimetres will break the locking system.
Mr Chadbund
He has been a registered builder since 1994, working as a construction manager for eight to nine years, as well as a builder in his own building company building luxury homes. He became a building inspector at the beginning of 2021. He has had experience inspecting floors, although this was his first case of inspecting hybrid floors.
In Mr Chadbund's inspection report of 22 April 2021, he noted, without specifying the basis for his statement, that a 6-10 millimetre expansion gap is left around the perimeter of the floors, and a skirting board is then laid over the expansion gap to complete the finish of the floor.
Mr Chadbund stated that he had randomly placed a 2.0 metre spirit level to the areas involved, and considered that the majority of the floors had little or no variance from level.
He also observed a gap under the level of 2-3 millimetres in the kitchen area, although he considered it acceptable given it was within the parameters of the manufacturer's installation guidelines.
He did not observe any gaps or undulations evident when viewed from a normal viewing distance of between 1.5 to 2 metres and under natural light conditions.
He recommended dismissal of the owner's complaint, as he found that there was an absence of evidence that can clearly demonstrate that the respondent's work was faulty and unsatisfactory.
In oral testimony, he confirms that he did not discern any noise when he walked over the floors, which was surprising given he weighed 116 kilograms. Indeed, he had to ask where the noise was coming from.
He accepts that he is not able to say that the level of the subfloor is outside of the BCA or Australian Standard tolerance limits.
Legislative framework
BRO
Under s 38(1)(a) of the Act, the Tribunal can make a building remedy order (BRO) if satisfied that the regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
If not so satisfied, the Tribunal may decline to make a BRO: s 38(1)(b) of the Act.
A BRO is an order which compels a person who carried out the regulated building service to remedy the building service (s 36(1)(a)), or pay for costs of remedying the building service (s 36(1)(b)) or compensation (s36(1)(c)): s 36(1) of the Act.
'Regulated building service'
'Regulated building service' is relevantly defined under s 3 of the Act as 'a building service carried out by a registered building service provider'.
In turn, under s 3 of the Act:
•'building service' is relevantly defined as 'building work (as defined in s 3 of the Building Act 2011 (WA)) [(Building Act)]' or 'any other service or work prescribed for the purposes of this definition'; and
•'registered building service provider' is defined as 'ha[ving] the meaning given in s 3 of the Building Services (Registration) Act 2011 (WA) [Building Registration Act]'.
'Building work' is relevantly defined in s 3 of the Building Act as 'the construction, erection, assembly or placement of a building'.
'Registered building service provider' is defined in s 3 of the Building Registration Act as either a 'building service practitioner' or a 'building service contractor'.
Under s 11 of the Building Registration Act, only building service contractors are entitled to carry out 'prescribed building service', which is relevantly prescribed in the Building Services (Registration) Regulations 2011 (WA) (Building Registration Regulations) to include 'builder work as a principal builder'.
In turn, under the Building Registration Regulations:
•'builder work' means, under reg 13, building work for which:
a)a building permit is required; and
b)with a value of $20,000 or more based on the value of the work estimated under Sch 2; and
c)carried out in an area of the State set out in Schedule 3; but
f)does not include certain types of building work (which are not applicable to these proceedings).
•'Principal builder' is defined under reg 3 as a person who carries out, or undertakes to carry out, the builder work for another person but does not include -
a)a person engaged as a subcontractor to carry out all or part of the builder work; or
b)a person who carries out, or undertakes to carry out, all or part of the builder work for an owner-builder.
Service not carried out in a 'proper' and 'proficient' manner or is 'faulty or unsatisfactory'
In the Macquarie Dictionary Online (as at 19 January 2022), the following terms carry the following meanings:
•'proper' is relevantly defined as '… 2. conforming to established standards of behaviour or manners; correct or decorous[.]';
•'proficient' is relevantly defined as '… 1. well advanced or expert in any art, science, or subject; skilled[.]'; and
•'unsatisfactory' is defined as '… not satisfactory; not satisfying specified desires or requirements; inadequate'.
Issue 1 - was the builder carrying out a 'regulated building service'?
It is not in dispute between the parties that the builder was carrying out a 'regulated building service'.
We find that to be so on the basis that the builder was a registered building service contractor as a principal builder, and that the works the subject of the complaint – the subfloor – was carried out as a part of building works in constructing the dwelling.
Issue 2 - Was the building work carried out in a proper or proficient manner or was it faulty or unsatisfactory - that is, is the subfloor on which the floors were installed level?
We are not satisfied that the subfloor over which the 'noisy' hybrid floors have been observed is uneven.
Firstly, there is no direct evidence of that part of the subfloor being uneven, with no witness having observed that part of the subfloor since the hybrid floors were laid.
Secondly, we are asked to infer that the subfloor is uneven based on the noise emitted by the hybrid floors on certain spots.
However, the expert witnesses were unable to agree amongst themselves whether the floors are 'noisy' or 'noisier' than expected of hybrid floors.
Notwithstanding Mr Booth's qualification in civil engineering, his principal basis for his contention of an uneven subfloor is his impression of a noisy subfloor. To that extent, he is in no better a position to advise the Tribunal than Messrs Borland and Dunkley.
That the degree of subjectivity is so variable is illustrated by the contradictory experiences of the owner (who could hear his daughter's steps from the first floor) to that of Mr Chadbund (who could not hear any noise).
Further, the Guide specifically recognises that some degree of noise is to be expected when walking on hybrid floors.
In addition, the manufacturer's guidelines indicate that if the subfloor was uneven, the locking system would be at risk of breaking or the floors would have failed or deteriorated. That this has not occurred in the 1½ years since handover undermines the owner's contention.
We find the video of Mr Booth walking on the floors to be of limited utility as he had stepped on certain 'noisy' spots in a slightly heavier way rather than at a normal walking pace, and so no reliance is placed on the video.
Ultimately, based on the variability of experience between all witnesses as to the noise emitted from the floors, we are not satisfied that it is an appropriate indicia of whether the subfloor is even.
To the extent that it is necessary to express a preference, we prefer the evidence of Messrs Borland and Dunkley, both whom we have found as reliable witnesses and whose specific and extensive experience with flooring and hybrid floors places them in a better position to advise as to the levels of noise to be expected from hybrid floors.
Whatever may be said of the quality of the remedial work, given that it pre-dated the complaint, it could not have been the cause of the noisy floors, and so it is not necessary to find that it has contributed to the noisy floors.
To the extent that it is necessary to express a view, given their specific experience with flooring, we prefer the evidence of Messrs Borland and Dunkley that the installer engaged by the builder has complied with the manufacturer's guidelines, and prefer their interpretation of the requirements of the manufacturer's guidelines to Mr Booth's.
With respect to the concerns about the temperature of the installation and remedial work, there is no direct evidence of the floors having been exposed to extreme temperatures prior to installation or reinstallation, only evidence of the temperature on the relevant days or time period. To the extent necessary, we reject that temperature was a relevant factor in determining whether the builder carried out works in a proper or proficient manner or whether the works were faulty or unsatisfactory.
Issue 3 - Should an order for the Tribunal's costs of mediation 'thrown away' be made?
Whilst we do not wish to encourage a practice of non-attendance by parties of mediations, and, in general, non-compliance with Tribunal orders, we accept in this case that there has not been a deliberate flouting of the Tribunal orders but instead this is a case where the builder has been 'let down' by one of its staff members.
We are advised that that staff member has now been dismissed by the builder.
Keeping in mind that the starting point in any costs matter before the Tribunal is that each party is to bear its own costs (Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 at [50]), and in the circumstances of this case, we will decline to make any order as to costs of the mediation.
Conclusion
For reasons set out above, we are not satisfied that the subfloor is uneven or that the builder has carried out works in a manner which was not proper or proficient, or carried out faulty or unsatisfactory works.
We will dismiss the owner's application.
Orders
The Tribunal makes the following order:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
19 JANUARY 2022
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