Habul v Jakupovic & Moose Plastering Pty Ltd
[2013] QCAT 452
| CITATION: | Habul v Jakupovic & Moose Plastering Pty Ltd [2013] QCAT 452 |
| PARTIES: | Omar Habul (Applicant) |
| v | |
| Mustafa Jakupovic (First Respondent) Moose Plastering Pty Ltd (Second Respondent) |
| APPLICATION NUMBER: | BDL233-11 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | 8 and 9 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 22 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Applicant file in the Tribunal 2 copies and serve on the Respondents 1 copy each of any sworn statements of evidence with supporting documents attached concerning appropriate measures and costs of rectification of defects together with any submissions concerning costs of the proceedings by 30 September 2013.
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| CATCHWORDS: | BUILDING MATTERS - Contracting party – joint experts report – further dissenting report – exchange of trades responsibility for defects – transfer of responsibility for defects between trades - Level 4 plasterboard finish – straight and true substrate – notification of structural defects to a builder – assumption of responsibility for defects by fixing plasterboard – determination of liability without quantum. Parry & Anor v Ewart [2000] QDC 54 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The Applicant was represented by Mr A M Christie of Counsel instructed by Bartels Lawyers |
| RESPONDENTS: | The Respondents were represented by Ms J Crawford of Counsel instructed by Wheldon & Associates |
REASONS FOR DECISION
Mr Habul is a licensed builder. Mr Jakupovic is a licensed plasterer. Mr Jakupovic trades through a company Moose Plastering Pty Ltd.
Mr Habul built a home for himself at Drewvale. He had known Mr Jakupovic for a number of years, since Mr Jakupovic came to Australia. He asked him to do the plastering work on the Drewvale home.
The plastering was done over the period October 2010 to approximately March 2010.
Mr Habul moved his family into his new home in early April 2011. Sometime after that however he became dissatisfied with the plastering work. He thought it was substandard.
Mr Habul complained to the Queensland Building Services Authority about it in August 2011. Shortly after that he commenced these proceedings.
His initial complaint to the Tribunal was that plasterboard was bowed between studs. He claimed $45,000 from Mr Jakupovic for costs of rectification. That was more than he paid to have the whole job done.
Mr Jakupovic says it was his company, Moose Plastering Pty Ltd, not him, who contracted to do the plastering. Moose Plastering Pty Ltd has been joined as a respondent to the proceedings.
The Issues for Determination
The parties initially seek simply a determination as to liability. They say they shall endeavour to resolve quantum themselves after that. Perhaps. In any case, at hearing, there were two principal issues for me to determine. First, which respondent was the contracting party for the plastering, Mr Jakupovic or Moose Plastering Pty Ltd. Second, was the plastering work defective building work?
The Responsible Party
Mr Jakupovic says he was asked to quote on the job and he did that in writing[1] dated 5 October 2010 on his company's letterhead. Mr Habul claimed at hearing he neither asked for nor received a quote in writing.
[1] Ex 8.
Mr Habul was invoiced for the original work on 14 November 2010[2]. According to his cheque stubs, he paid that invoice two days before the written invoice issued on 12 November 2010. The cheque stub notes the payee as “Moose/House”. The invoice refers to the “quote dated 5th October 2010”. The invoice, and that of the following one on 21 February 2011, is on Moose Plastering Pty Ltd letterhead.
[2] Ex 23.
I note the payment is for the full dollar amount of the quote save for the cents involved, and payment to “Moose” was made 2 days before the first invoice issued on Moose Plastering Pty Ltd letterhead. Mr Habul said in evidence that he made the cheque payable to "Moose" because he was asked to do so by Mr Jakupovic.
I consider it far more likely that Mr Habul paid by reference to the quote rather than pursuant to request from Mr Jakupovic. I accept the evidence of Mr Jakupovic that he gave Mr Habul the written quote on his company letterhead of 5 October 2010. I conclude it was his company that was the contracting party, not him personally.
I might add at this point that I consider Mr Jakupovic gave evidence in a forthright and open manner, and conceded points where appropriate. In my opinion Mr Habul did not. Where the evidence between Mr Jakupovic and Mr Habul differs I prefer the evidence of Mr Jakupovic.
There was some mention made of some form of “double up” payment made by Mr Habul for some of the plastering work. The matter was not pursued with any real determination by the applicant however and I conclude Moose Plastering was paid the amount invoiced, once, and no more.
The Alleged Defects
The BSA was asked to report on defectivive plastering work for the Tribunal. That was done. Additionally there has been a joint report of experts. One of the experts, Mr Sorensen, a builder engaged by Mr Habul, has filed what is described as a further dissenting report after the joint report.
The experts inspected 12 items of complaint. Of those, items 11 and 12 are accepted by the builder as not being the responsibility of the plasterer. In turn items 4 and 10 are conceded by the plasterer as defective work requiring rectification.
Level 4 Finish
All are agreed, the experts, the BSA building inspector and the parties, that the standard of plastering required in the present circumstances is that described as level 4[3].
[3] Transcript 149.
By clause 3.1.4 of Australian standard 2589 – 2007[4] a level 4 finish is described as follows: "Level 4 shall be the default level for gypsum lining, unless specified otherwise. Flat or low sheen paints shall be used for this level 4. All joints and interior angles shall have tape embedded in jointing cement/jointing compound and a minimum of two separate coats of jointing cement/jointing compound applied over all joints, angles, fastener heads and accessories. All jointing cement/jointing compound shall be finished evenly and be free of tool marks and ridges in preparation for decoration. Notes: 1 In critical lighting conditions, surface imperfections may still be apparent in a level 4 surface finish. 2 Where gloss, semi-gloss and deep tone paints are used, surface imperfections will be more evident."
[4] Ex 11.
At 3.1.2 critical lighting is explained as natural or artificial light projected across a surface at a low incidence angle. Non-critical lighting is when the light striking the surface is diffuse or at right angles or both.
The joint expert report makes clear that the experts’ inspection of the premises was conducted in natural light. Nothing was said in the report however as to the types of paint used. Intriguingly Counsel for Mr Jakupovic asked Mr Atkinson, a plastering expert engaged by Mr Jakupovic, whether the interior paintwork was low sheen or matt finish[5] and he said he did not know. Given the experts clearly understood the requirements for level 4 finish, and no comment being made, I assume that the internal paints were at least not gloss or semi-gloss paints.
[5] T2-32 L13.
Artificial light such as that cast by household lights and the flash units of cameras distort and exaggerate surface imperfections. Hence the expression critical lighting conditions used in the standard. Accordingly the photographs[6] tended by the applicant taken under camera flash conditions do not assist me in determining whether there has been a failure to achieve a level 4 standard of finish and I do not rely upon them in forming any opinions associated with such.
[6] Ex 9.
Exchange of Trades
A level 4 finish in plastering cannot be achieved without a good plumb substrate. The substrate is the responsibility of the builder. The plasterer commences work after the substrate is finished.
According to Mr Sorensen, whilst it is the responsibility of the builder to ensure the substrate is suitable for plastering, before the plasterer starts fixing plasterboard any deviations in the substrate must be brought to the attention of the builder by the plasterer and rectified.
In contrast, Mr Atkinson said if there are framing issues the responsibility for the frame always stays with the builder. He says that is standard industry practice.
According to the Australian Standard 2589:2007 deviation in the frame immediately prior to installation of lining should not exceed certain measurements prescribed when measured over a 1.8 m span at any point. Effectively the steel and timber frame should not deviate more than 4 mm over 90% of the area and 5 mm over the remainder.
Mr Atkinson acknowledged the standard but objected that it is not the plasterer's job to assess that deviation, he says it is the builder’s.
The BSA publishes a guide to paint and plasterboard[7]. The guide does not seem to have any statutory basis or application but is intended as an educative tool for industry. The guide explains best practice methods. At page 6 of the guide the responsibilities of the various contractors are mentioned. As to the builder, it says the key responsibilities are to ensure that the plasterer can start his job with a frame that is plumb, square, straight and secure, that all trimmers are in place for other trades and that the ceiling has no deviations.
[7] Ex 12 Edition 3 June 2008.
With respect to the plasterer, it comments the key responsibilities are to check for deviation in walls and ceilings, check trimmers for change of direction and notify the builder of any rectification required.
At page 7 it says immediately prior to installation of wall lining, the bearing face of the finished framework must not deviate more than 4 mm measured over a 1.8 m span at any point along individual framing members or across adjacent framing members. Unacceptable tolerances must be corrected and may be rectified by planing back high spots before plasterboard is installed. It goes on to say plasterboard contractors should pay special attention to areas where girder brackets are fitted.
At page 8 it states when the frame is deemed to be plumb, square and straight, and all other considerations are ticked off, it's time to begin the installation process (my italics).
On the last page, page 27, under the heading Contractor Responsibilities, it states the builder must do a site check of the frame for plumb, straightness and secure fixing and check the ceiling for deviations, and for the plasterer he should do a prefixing frame check and a random check for deviation in walls and ceilings and notify the builder of any rectification required.
I consider the aforementioned sets out generally approved industry practice for builders and plasters. Accordingly I do not accept Mr Atkinson's statement that it is standard industry practice that deviations in the frame always remain the responsibility of the builder.
The plasterboard manufacturer, CSR, publishes a residential installation guide with respect to plasterboard[8]. At page 14 of the guide it states "the fixing of gyprock plasterboard linings is deemed to be acceptance of the substrate". That statement seems to accord with the proposition of Mr Sorensen.
[8] Ex 13.
This issue was canvassed in Parry & Anor v Ewart[9] by his Honour Judge McGill DCJ. There the issue was whether a tiler was required to do more than simply lay tiles on a balcony deck as contracted in circumstances where there was no waterproofing membrane on the surface to be tiled. The absence of a waterproofing membrane beneath the tiles subsequently constituted defective building work. His Honour said the question was essentially one of fact; what should a reasonably competent tiler do when asked to lay tiles in such circumstances?
[9][2000] QDC 54.
In that matter evidence had been given by a building consultant that it was the tiler's duty before tiling to inform an owner builder that it was imperative to install a waterproof membrane, both to achieve a reasonable standard of work and to comply with the relevant building standard (requirements). His Honour thought that that evidence was inherently logical. His Honour said: "obviously in the circumstances it is appropriate to warn of the need for this work to be undertaken, and if the appellants were not licensed to undertake the work themselves, to warn of the need for it to be undertaken by someone else.[10]"
[10] Ibid at [19].
But it was not only where an owner builder situation occurred that His Honour concluded this duty may exist. He went on to say that if the tiler had been acting under a contract with a builder it was by no means clear that there was no duty to give similar advice to the builder. "In such circumstances, the tiler should not be beginning work until the builder says that it is in order to begin work. Once that point is reached, if the tiler has reason to think that it may not be in order to begin work, because necessary preliminary work has not been completed, there may well be an obligation to raise the matter with the builder, even if this is a matter of which the builder ought to be aware.[11]"
[11] Ibid at [20].
I conclude, having regard to the aforementioned guides and manufacturer’s specifications and the comments of McGill DCJ, that it is a responsibility of both trades to ensure a plumb square straight and secure substrate exists before plasterboard is affixed.
If the plasterer finds the substrate is not such, and the attention of the builder is directed to the defect or defects, responsibility for rectification lies with the builder if the substrate is not remedied and the plasterer is directed to fix plasterboard regardless.
If, however, a plasterer fixes plasterboard to a defective substrate and the defective substrate is not brought to the attention of the builder before fixing, by that fixing the plasterer accepts responsibility for the appropriate level of finish of the plasterboard. If the plasterboard wall or ceiling is subsequently found to be less than level 4 finish, if level 4 finish is required, responsibility for rectification thereafter lies with the plasterer.
Accordingly a plasterer may become responsible for framing failures otherwise the responsibility of the builder where the plasterer does not check for a plumb square straight and secure substrate before plastering or checks and finds defective substrate but does not inform the builder and seek rectification to the substrate before plastering.
Defects 1 and 2
The ceiling in the living room to the home has a bowed plasterboard joint. That is defect 1. In the joint experts report it is stated that the defect is hard to see under natural light. Given that both experts regarded this as a defect however, and they say that the balance of the ceiling is to plasterboard level 4 finish or above, I accept the bow is outside the 4 mm deflection standard. The experts agree that the deviation is most likely the result of a low joist or possibly a row of joist hangers.
The kitchen ceiling also has a misalignment. That is defect 2. Again the experts agree that the misalignment is most likely the result of low or high ceiling/floor joists. I conclude from what they say that the finish is not level 4.
Though Mr Habul denies that the framing is at fault I accept what the experts say and these defects originate in the frame.
One means of ensuring ceiling framing is straight and true is to use battens or furring channels. Mr Habul claims Mr Jakupovic quoted to use battens both upstairs and downstairs. Battens were used upstairs but not downstairs. Mr Jakupovic points to the quote[12] which specifies the use of furring channels/battens for the top floor ceilings only and the bedroom downstairs. There were no other specifications for the job, just the quote.
[12] Ex 23.
As noted by Mr Atkinson in the joint experts report, it is hard to understand how Mr Habul, who was on site as builder whilst the plasterboard was being fixed, failed to see that no battens were being used downstairs. Mr Habul admitted that he remembered the men fixing the plasterboard and he spoke to them[13]. I prefer the evidence of Mr Jakupovic on this point. I find that battens were not specified by Mr Habul for the living room or kitchen areas. According to Mr Atkinson it is not unusual for plasterboard ceilings to be fixed directly to joists. Builders often do not want to pay the extra for battens[14].
[13] T79.
[14] T2-65 L40.
Mr Jakupovic didn't fix the plasterboard to the ceilings downstairs. His employees did. It was not made clear however in his evidence which employees did the fixing to the ceilings downstairs[15].
[15] T2-87 L17-23.
Mr Beynsberger and Mr Patten gave evidence. They are employees of Mr Jakupovic. They did the setting or finishing after the fixing. Mr Beynsberger gave evidence about discussions with Mr Habul concerning the expansion joint in the stairwell wall, the plasterboard at the stair treads and the exposed beam running in front of the dining and living rooms. However those discussions apparently did not extend to apprising Mr Habul, as builder, of the defects in his ceiling framing in the kitchen and living room. Nor was there any evidence of anything being said to him by the workers who fixed the plasterboard.
It was the duty of the plasterers to check the frame before fixing and directing the builder’s attention to the defects and requesting rectification before proceeding. By fixing the plasterboard to the defective substrate Moose Plastering Pty Ltd accepted responsibility for achieving a level 4 finish to those areas. It has not been achieved and accordingly that company is responsible for rectification of this defective building work.
Defect 7
The top plate of the lower wall and the bottom plate of the upper wall do not align at a horizontal expansion joint at the stairwell. The expansion joint used has a 3 mm lip on each side of the gap. The lip is covered by plaster. In end result there is perhaps a 6 mm raised area at places along the expansion joint which means no level 4 finish has been achieved.
Mr Beynsberger’s evidence at hearing was that the top sheet was proud of the bottom sheet at the control joint. He said he found a possible 3 mm step between the sheets[16]. His evidence was that Mr Habul directed one of his carpenters to remove the plasterboard they had already fixed at the stairwell and make certain changes to the bottom section of the top floor timber frame. According to Mr Beynsberger it was a carpenter who then re-sheeted the landing wall. It resulted in the misalignment mentioned.
[16] T2-112 L23 (sic).
Mr Beynsberger said he drew Mr Habul's attention to the problem with the framing resulting from the carpenters work and he recommended timber skirting be used to hide the joint rather than the rubber plasterboard expansion joint. He was, however, directed by Mr Habul to use the rubber expansion joint and set it as best he could.
The experts conclude in their report that the type of expansion joint used, given it has a 3 mm lip on each side of the expansion joint, makes it impossible to obtain a flat join. Mr Atkinson says in the joint report that the use of timber moulding to hide the expansion joint is the recommended method for a horizontal control joint.
It was put to Mr Beynsberger in cross-examination that the plasterers fixed the sheets consequent on the change to the frame. He said he was there when the carpenter did the re-plastering. I accept Mr Beynsberger’s evidence on this point. I accept that he apprised the builder Mr Habul that a timber moulding should be used to conceal a deviation at the expansion joint. I accept he was told by Mr Habul to use the rubber expansion joint and to simply set the plasterboard the best he could.
Mr Sorensen gave evidence that there was a misalignment between the sheets. He cannot explain it because he does not consider it was due to a marked difference between plates.
I conclude there was a framing problem which caused a misalignment of the sheets. The misalignment was most probably due to the work of Mr Habul’s carpenter when he did work to the frame and fixed new sheets, which I find was the case. The problem was brought to the attention of the builder, Mr Habul, who instructed the plasterers not to use timber moulding to hide the problem as they recommended, but to continue with the rubber expansion joint. The responsibility for any lack of level 4 finish with respect to this plastering work therefore remains with the builder. The plasterers are not responsible for the end result and this defect.
Defect 3
In the family room there is a claim that there is damaged cornice, some internal wall angles are not smooth and there is a rounded wall joint.
In the joint report the experts start with a conclusion that there was obvious damage to the cornices, but that that had occurred after the cornices were fixed into position. They go on to say that there is obvious water damage marks associated with the damaged cornices.
The BSA inspector noted in his report some 10% of the cornice had not been completed. The joint experts report however states only approximately 1 metre is “damaged”. The BSA inspector notes there is no notable deviation to the cornices.
In his affidavit evidence Mr Habul agreed the cornices were complete when Mr Jakupovic finished his work. He also said cornices were removed by CSR for testing and that is the 10% the BSA refers to. In cross-examination Mr Habul said he removed the cornice[17]. Just why and what the claim is against the plasterer is not clear. I conclude there is no defect associated with the cornice attributable to anything done by the plasterers.
[17] T97.
As to the claim concerning internal wall angles not being smooth, the joint expert report is unhelpful. The experts indicate by diagram only one corner of the family room shows a problem although the report refers to internal wall “angles” showing slight trowel marks. They then say that that "would imply that the internal angle has not been sanded to the required level 4 finish."
The conclusion at the end of the report is that the overall quality of the plastering is a minimum level 4 finish. In most areas it was very difficult to determine where the plasterboard joins were located due to the quality of the work. This included the balance of the areas of concern about the plastering. The workmanship was of a high standard and easily obtained a minimum level 4 finish. Confusing the matter however is an added comment by Mr Sorensen that patching and sanding is required to a minority of external corners but "patching and sanding is required to number (toward the majority) of internal corners compared to the internal corners". I assume Mr Sorensen was suggesting there were more problems with internal corners than external.
Mr Sorensen’s purported additional dissenting report, which is not really a dissenting report but an elaboration of his evidence in the joint report, does not make the extent of the problem with internal corners clear.
Mr Atkinson, a plastering expert, said in evidence not all internal angles were a problem and that the experts had examined about half a dozen rooms upstairs and about the same or a few more downstairs[18], but not all. He said he found only two internal angle defects, one of which could not be seen but could be felt under hand. He said the defects were trivial and required a simple touch-up patch and paint repair.
[18] T2-67 L15.
I accept Mr Atkinson’s conclusion. I accept his evidence that a small number of internal and external angles, probably 2 or 3 of each only, constitute minor plastering defects and the areas are not to a level 4 finish. As a guide concerning quantum, I might mention I conclude general painting throughout is probably unnecessary and spot paint matching should suffice. Mr Atkinson suggests that course. I also accept there is a rounded wall joint in the family room which is more likely than not to be attributable to the plasterer’s work rather than water damage as raised in the joint report, and which rounded joint constitutes defective plastering work.
Defect 5
The experts say in their joint report that there are gaps in the plasterboard where the plasterboard meets the internal stair stringer. There has also been visible attempts at repair by "persons unknown". In their opinion the area is not to a level 4 finish and it should be patched and sanded. Additionally it is noted that with respect to a cupboard under the stairs, a door jam and tread appear to have been fitted after the plasterboard was installed in the cupboard and this has resulted in the plasterboard being damaged.
Mr Beynsberger said in his affidavit that he discussed the plasterboard at the stair treads with Mr Habul. What he said was that he discussed the finishing off of the plasterboard with Mr Habul. He said he pointed out to him that it could not be finished because there was no timber frame behind the plasterboard sheets where the stair treads were. He suggested using timber beading around the stair treads but nothing further was said.
It is not clear whether this discussion occurred before the sheets were fixed or after and before setting (finishing). Given Mr Beynsberger’s job was setting the plasterboard, it is more likely than not that the discussion with Mr Habul occurred after the plasterboard was fixed and before it was set. I accept Mr Beynsberger had this conversation with Mr Habul and I also accept his evidence that Mr Habul provided no instruction or direction consequent to the discussion.
Mr Habul was the supervising builder on site. I conclude it was appropriate, the difficulty having been brought to his attention, that he should have taken appropriate steps or given appropriate directions forthwith with respect to the defective framing and rectified the framing. He did nothing. His inactivity meant the responsibility for the defective framing and any consequent poor plaster finish remained with him. I conclude the responsibility for this defect does not lie with the plasterers.
With respect to the damage to the plasterboard in the cupboard, the experts have concluded a door jam and tread have been fitted after the installation of the plasterboard. I cannot see how the plasterers can be responsible for this.
Defect 6
The joint report makes mention of PVC capping of the plasterboard at the stair stringer junction. The report goes on to say that a suggested rectification for this is to remove the PVC capping and replace it with a "set bead" and sand it to a level 4 finish.
The complaint concerning the PVC capping seems to be based on aesthetics. Mr Sorensen said in his evidence before the Tribunal[19] that the use of the PVC capping was one method to finish off a plasterboard edge. There was no suggestion that it was not appropriately fitted. I am puzzled how the plasterer is responsible for the aesthetics. I do not conclude there is any defect associated with the PVC capping.
[19] T159.
Defects 8 and 9
The experts found that walls in the landing and TV areas on the upper level and in the passageway behind the stairs were not straight. The problem was identified as poor building work. There were proud and misaligned studs and a door opening to an ensuite had been framed in using different types of wall studs and a different manufacturer’s plasterboard. Neither area was to a level 4 finish.
As previously stated, it is a responsibility of both builder and plasterer to ensure a plumb square straight and secure substrate before plasterboard is fixed. If the plasterer finds it not so, the attention of the builder must be directed to the defect.
There is no evidence that Mr Habul’s attention was drawn to these areas of complaint prior to fixing. Mr Beynsberger talked to Mr Habul about the stair treads, he talked to him about the expansion joint and he talked about an exposed beam in front of the dining room and living room. Accordingly, the plasterers are now responsible to rectify these areas of complaint to enable a level 4 finish to be achieved.
Quantum
The parties propose to initially attempt to resolve issues about rectification between themselves. Failing that the Tribunal shall adjudicate on damages and costs. The matter cannot remain with the parties indefinitely however. Accordingly I shall make appropriate orders now to finalise the matter in the event the parties are unable to resolve the matter between themselves. The final issues may be appropriately dealt with on the papers.
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