Gunning v Parry
[2016] QCAT 386
•25 October 2016
CITATION: | Gunning v Parry [2016] QCAT 386 |
PARTIES: | Winsome Gunning |
| v | |
| Matthew Parry t/as Fair Dinkum Aussie Roofing (Respondent) | |
APPLICATION NUMBER: | BDL223-15 |
MATTER TYPE: | Building matters |
HEARING DATE: | 9 September 2016 |
HEARD AT: | Southport |
DECISION OF: | Member Steven Holzberger |
DELIVERED ON: | 25 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Mr Parry pay to Mrs Gunning the sum of $11,554 by 4.00 pm on 15 December 2016. 2. The application and cross application are dismissed. |
CATCHWORDS: | BUILDING DISPUTE –Domestic Building Dispute –defective workmanship –mitigation of damage – appropriate measure of damages |
APPEARANCES: | |
APPLICANT: | Winsome Gunning |
RESPONDENT: | Matthew Parry |
REASONS FOR DECISION
In April 2013, Mrs Gunning replaced the roof of her home. The existing roof was leak proof but degraded.
The works to replace the roof were carried out by Mr Parry. Mr Parry says he asked Mrs Gunning whether sarking was to be installed, but she declined for budgetary reasons.
After completion of the works Mrs Gunning became concerned about the appearance of moisture patterns around the edges of the ceilings of all rooms of her house.
On the assumption that this was caused by condensation she had a whirly bird installed on the roof by another contractor. The problem became more pronounced and obvious in the rains which fell in the summer of 2014 and 2015 to the extent that she was required to place blankets under certain parts of the ceilings.
Mr Parry inspected the ceilings at her request in February 2015. He recommended the installation of two additional downpipes. Mrs Gunning accepted this advice. The works were carried out by Mr Parry, incompetently according to Mrs Gunning, but were not in any event effective. Mr Parry invoiced Mrs Gunning $467.50 for those works which was not paid by her and which is now the subject of Mr Parry’s counter-claim.
Communication between the two broke down and still looking for a solution Mrs Gunning contacted her insurer. She subsequently made a claim on her policy and ultimately that claim was accepted by the insurer.
As part of the insurance investigation and at its request the house was inspected by WaterCycle Solutions in May 2015. It provided a report to the insurer dated 15 May 2015, a copy of which was lodged with the application.
That report stated that:
a)The roof was in good condition and not in need of maintenance;
b)Light was evidenced through the ridge from within the ceilings;
c)There was no sarking under the roof sheets; and
d)The downpipes installed by Mr Parry were not installed correctly but in any event did not solve the problem.
The report concluded that the installation of a layer of sarking would ensure no further leaks.
In September 2015, Mrs Gunning settled her insurance claim by accepting a sum of $2,132.16 from her insurer. It is her evidence that the amount was in respect of her ceiling damage and did not include a component for a repair of the roof. That is consistent with the wording of the settlement release which was copied in as annexure A-9 to her affidavit lodged on 13 June 2016.
Her insurer having shown no interest in fixing the cause of the damage, it was left to Mrs Gunning to seek quotations for repairs. She said she obtained three quotations before accepting ‘a fixed priced contract to rectify my water issues with Johns Lyng (Qld) for $11,554.40’.[1]
[1]Applicant’s Affidavit dated 10 June 2016, p5
I am satisfied that Mrs Gunning’s scope of works is best defined as preventing her roof from leaking whatever the cause may be. The scope is relevantly defined in the domestic building contract she signed with Johns Lyng (Qld) dated 24 September 2015 as follows:[2]
2.1 Remove existing roof, supply and install sarking and reinstall existing roof. 156sqm approx.
[2]Domestic Building Contract dated 24 September 2015.
On 12 October 2015 a report bearing Mrs Gunning’s insurance claim reference number (B1602132) and stated to be prepared for ‘JLG’ was prepared by Lee Meehan of Lee Meehan Roofing. A copy of the remarkably brief or incomplete report is attached to the application,[3] Mrs Gunning’s affidavit[4] and is referenced in the expert witness statement of Jeffery Hills.[5]
[3]Application for Domestic Building Disputes dated 9 November 2015 pages 18 and 19.
[4]Applicant’s Affidavit dated 10 June 2016, Appendix A11, p4.
[5]Statement of Evidence of Jeffrey Hill dated 3 June 2016.
The end report shows a photograph of Mrs Gunning’s roof after the ridge capping has been lifted with the following notation:
Short roof sheets
Short sheets with only 40mm of cover by ridge cap. This coupled with no sarking would allow water to enter the ceiling cavity in moderate winds in rain.
Mr Parry says that he was not present when the ridge capping was removed by Mr Meehan and cannot say for sure whether the photograph in the report shows the roof exactly as he left it. He did acknowledge several times during the course of the matter that he had, in fact, short sheeted the roof when he installed it. There is no other reasonable inference that the roof or at least that part of it, would be other than as he installed it.
Apparently as a result of that discovery, Johns Lyng (Qld) not only removed the existing roof and installed sarking, but replaced 15 of the short sheeting panels and reinstalled the rest of the roof, apparently at no additional cost to Mrs Gunning. While there is no variation of the original contract, nor mention of the additional materials in the final invoice, the only reasonable inference that can be drawn is that the newer panels were installed by Johns Lyng (Qld).
Both parties sought expert, or at least independent witness reports, in Mr Parry’s case from TRM Carpentry, and in Mrs Gunning’s from Jeffrey Hills. They both attended the premises at the same time. This, it was explained by Mr Hills, was to avoid lifting the ridge capping more than once. Mr Hills subsequently provided a report dated 5 April 2016 and was called by Mrs Gunning to give evidence at the hearing. TRM Carpentry did not provide a report or give evidence.
Mr Parry is an experienced roofer. He gave evidence that he has in the course of his trade frequently been required to identify and rectify water problems relating to roofs and ceilings.
He says Mrs Gunning’s problems are caused by condensation in the roof which could be resolved by the installation of sarking. I accept his evidence that he recommended sarking to Mrs Gunning at the time of the installation of the roof and that she refused it.
Mr Parry’s evidence is that:
a)The moisture patterns he observed, and those described by Mrs Gunning are consistent with condensation rather than a direct leak;
b)Other contractors have worked on the roof since he installed it, at least to install the whirly bird and lift the roof capping on two occasions before Mr Hills inspected it;
c)Mr Hills has not seen his roof, but rather the roof reinstalled by Johns Lyng (Qld);
d)Mrs Gunning cannot prove ‘conclusively’ that the roof would not have leaked anyway during a severe storm; and
e)Sarking would have prevented the problem in any event.
Mr Hills’ qualifications include being a registered professional engineer, a licensed open builder and a licensed completed residential building inspector. He impressed as a qualified and knowledgeable witness well aware of his obligations to the Tribunal.
Mr Hills’ report provides that Australian standards require that roof flashings and cappings have a minimum coverage or lap of 150mm over steel roofing.[6]
[6]Statement of Evidence of Jeffrey Hills dated 3 June 2016 Attachment JH2 pages 3 and 4.
He notes that Mr Meehan uncovered parts of the lap with as little as 40mm when he lifted the roof capping, but at the time of Mr Hills’ inspection after the replacement of some of the short sheets the lap was still only 100mm. Mr Hills was able to identify the sheets which were replaced by Johns Lyng (Qld) because the sheets were marked by the manufacturer with the date of manufacture. The sheeting used on the roof was manufactured in 2012, before Mr Parry quoted for Mrs Gunning’s job. Accordingly, sheets used in the job were not specifically measured for it and that is why the laps were not correct.[7]
[7]Statement of Evidence of Jeffrey Hills dated 3 June2016 Attachment JH2 pages 8 and 9.
Mr Parry disputes this saying that date on the sheets is the date of colour bonding, not the date of manufacture, but it is difficult to see how this avoids the conclusion that the sheets were manufactured before the quotation.
In any event, while the extent of the short sheeting is dispute, it is not disputed that the roof was short sheeted in the area of the ridge capping.
In his written report Mr Hills concluded:[8]
The cause of the water penetration was not identified. It may have been through poor fixings on the roof sheeting or it was through a lack of lap on the ridge capping. Based on my experience the lack of lap on the sheeting was a primary source wind driven water to the roof cavity. Given that there were no areas that were identified where the lap length complied with the requirements of the Australian Standard found water entry through ridge and hip cappings on the roof could occur during significant wind/rain events.
[8]Ibid page 10.
Mr Parry seized on the first sentence of that paragraph, but it must be considered in the context of the paragraph. Mr Hills clearly is of the view that water entered the roof cavity in wind/rain events. While he does not identify all entry points, he is adamant that inadequate lapping was a primary source of the wind driven water.
In his oral evidence he asserted that ceiling damage due to condensation in the roof cavity was not a significant problem in Queensland, and that as a result the Australian Standard did not require sarking to be installed in Queensland while it does in other states.
I have some reservations about Mr Parry’s analysis. Obviously it is not an objective analysis and is not supported by expert or independent testimony. He, in fact, inspected the damage and elected to remedy it, unsuccessfully as it turns out, by the installation of additional ‘downpipes to help alleviate the overflow of gutters’.[9] This does not appear to be consistent with his insistence that this is a condensation problem.
[9]Respondent’s Affidavit dated 4 July 2016 page 1.
I also note the contents of the WaterCycle Solutions report referred to in paragraph [8] of these reasons. In particular, that light was evident through the ridge from within the ceiling. I accept Mr Hills’ evidence on this point and accordingly find that the short sheeting was not in accordance with the relevant Australian Standard and was a primary cause of water entering the roof cavity during wind/rain events causing damage to Mrs Gunning’s ceiling.
Damages
Mrs Gunning amended her original claim in her affidavit of 10 June 2016, and at the hearing. Her claim is as follows:
a)Costs of roof repairs - $11,554.00;
b)Anticipated cost of repairing ceiling - $8,360.00;
c)Costs (being filing fees of $305.00 and Mr Hills’ costs of preparing his report and appearing totalling $3,250.00) - $3,555.00.
There are two concerns with the amount claimed for roof repairs.
Firstly, it is Mr Hills’ evidence that the work undertaken by Johns Lyng (Qld) which is the basis of the claim does not bring the roof into compliance with Australian standards or solve the problem of water leaks, at least in the long term.
The fifteen sheets replaced by Johns Lyng (Qld) are on one side of the roof and there is still inadequate lapping on the other. Water is still entering the cavity, according to Mr Hills, during rain events as a result of the remaining short sheeting. While that water is currently being trapped by the sarking, it is to be expected that the sarking will deteriorate over time and water will once again begin leaking into the roof cavity.
To make the roof compliant and water tight, Mr Hills says:[10]
…it would require the roof sheeting to be lifted and the roof sheeting replaced to allow sufficient lap of the ridge and hip cappings…
[10]Statement of Evidence of Jeffrey Hills dated 3 June 2016 Attachment JH2 pages 10 and 11.
He estimates the cost of this to be $14,500.00 plus GST.
This does not appear to concern Mrs Gunning. She seems to accept that Johns Lyng (Qld) has fulfilled its brief to stop water entering her roof cavity.
The second concern raised by Mr Parry is the reasonableness of the amount charged by Johns Lyng (Qld). Mr Parry had, two years earlier, charged less than half of that amount to lift and remove the original roof and supply and install a new one. At the time of giving the quote, Johns Lyng (Qld) did not propose any new sheeting. I accept that Mr Parry could have done the works carried out by Johns Lyng (Qld) for a lesser amount, but while saying that he thought the amount charged was ‘ludicrous’ he did not call any evidence to show overcharging by Johns Lyng (Qld).
Mrs Gunning is not required to give Mr Parry an opportunity to repair the roof although she had done in any event. Whilst she is required to mitigate her damage, she is not required to seek out the cheapest price. She is only required to act reasonably and I find that she has done so. Her evidence is that the Johns Lyng (Qld) quote was consistent with two others that she obtained. She accepted that quote on the basis that it was a fixed price and that Johns Lyng (Qld) were recommended by her insurer.
Mr Hills’ evidence that the repairs themselves are unsatisfactory does not prevent Mrs Gunning recovering the amount she paid. Those costs are, after all, less then than the cost of correctly repairing the damage as estimated by Mr Hills.
I am not prepared to allow the amount claimed for ceiling repairs. Mrs Gunning’s evidence is that she has claimed for such repairs under her householders policy and has accepted a cash settlement in the sum of $2,132.16.
Mrs Gunning cannot double dip. By making a claim on her insurance policy, Mrs Gunning’s rights to pursue Mr Parry are subrogated to the insurer. Her dissatisfaction with the settlement does not entitle her to pursue Mr Parry for the balance let alone the full amount.
Generally, parties to proceedings in this nature are required to pay their own costs.[11] While the Tribunal may make an order as to costs if it considers the interests of justice require it, I decline to do so. While I accept that the financial consequences of the decision will be significant to both parties, I do not believe that Mrs Gunning has sufficiently established that the interests of justice require a costs order.
[11]QCAT Act s 100.
It is ordered:
1. That Mr Parry pay to Mrs Gunning the sum of $11,554.00 by 4:00pm on 15 December 2016;
2. That the application and cross-application are dismissed.
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