Higgins and Baars v Moseley Holdings Pty Ltd t/as Ash Moseley Homes
[2014] QCAT 331
•4 July 2014
| CITATION: | Higgins & Baars v Moseley Holdings Pty Ltd t/as Ash Moseley Homes [2014] QCAT 331 |
| PARTIES: | Karen Higgins and Frank Baars (Applicant) |
| v | |
| Moseley Holdings Pty Ltd t/as Ash Moseley Homes (Respondent) |
| APPLICATION NUMBER: | BDL172-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 13, 14 February 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Favell |
| DELIVERED ON: | 4 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent arrange for the rectification of the water proof membrane to be carried out by 4:00pm on 18 July 2014. 2. The Respondent should file and serve on the Applicants any submissions as to costs by 4:00pm on 11 July 2014 and the Applicants file and serve on the Respondent any submissions on costs by 4:00pm on 25 July 2014. |
| CATCHWORDS: | Application for rectification of works – whether building work conforms with Australian Standards – whether Direction to Rectify and/or Complete carried out – whether Tribunal has jurisdiction to determine publication of photographs of property |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | Frank Baars and Karen Higgins |
| RESPONDENT: | C.J. Eylander, Turner Freeman Lawyers |
REASONS FOR DECISION
The applicant and the respondent entered into a Master Builders Association building contract on 4 May 2011 for the construction of a dwelling at 24 Alexandra Street, Clifton Beach at a cost of $1,634,587.00.
The applicant carries on the business of a licensed Bed and Breakfast with the Cairns Regional Council, trading as Warrawong Lodge.
Ms Karen Higgins and Mr Frank Baars lodged a Direction to Rectify form with the Building Services Authority on 12 September 2012. In it, they complained of six items as follows:
Item 1: Leaks and water damage to the ceiling
Main front entrance to home
Item 2: Leaks and water damage to the ceiling and water leaking from light
Front timber patio ceiling and left hand side light
Item 3/4: Leaks and water damage to the ceiling, water runs down the walls and leaching of the substance in block wall through paint
Front side tiled patio
Item 5: Bubble in the paint and water leaked down internal wall (has been seen to by Ash Moseley and no longer leaking but needs repair)
Internal wall beside laundry door at bottom of internal stair case
Item 6: Window frame paint bubbled and cracked and leaks very bad every time it rains (have yet to have a response on this leak)
Window frame at bottom of internal stair case on the ground.
Moseley Holdings Pty Ltd t/as Ash Moseley Holmes, received a Direction Rectify or Complete from the Queensland Building Services Authority on 13 September 2012. It directed the rectification or completion of the following works:
a) Rectify damaged paint work and water ingress issue. All works to be in accordance with AS2311, Building Code of Australia part 2.2 – O2.2 (a) (iii) and manufacturer’s requirements – pertains to item 1 on BSA complaint form
b) Rectify damaged paint work and water ingress issue. All works to be in accordance with AS2311, Building Code of Australia part 2.2 – O2.2 (a) (iii) and manufacturer’s requirements – pertains to item 2 on BSA complaint form
c) Rectify damaged paint work and water ingress issue. All works to be in accordance with AS2311, Building Code of Australia part 2.2 – O2.2 (a) (iii), AS3500, SAA HB-39 and manufacturer’s requirements – pertains to item 3 on BSA complaint form
d) Rectify damaged paint work and water ingress issue. All works to be in accordance with AS2311, Building Code of Australia part 2.2 – O2.2 (a) (iii), AS3500, SAA HB-39 and manufacturer’s requirements – pertains to item 4 on BSA complaint form
e) Rectify damaged paint work. All works to be in accordance with AS2311, Building Code of Australia part 2.2 – O2.2 (a) (iii) and manufacturer’s requirements – pertains to item 5 on BSA complaint form
f) Item 6 of the BSA complaint form deemed unreasonable to rectify and or complete.
In a letter to the applicants dated 28 May 2013, the QBSA indicated that Moseley Holdings had failed to comply with the BSA Direction to Rectify.
The applicants in the matter made 15 claims as follows:
1.In bedroom 1 Ensuite, water pools in the shower floor next to the drain rather than going in the drain because that part of the floor is lower than the drain, This contravenes AS3740, which provides that ‘the entire shower area shall be constructed so that water flows to a waster, without ponding.’
2.There are chips and scratches on exterior windows and doors
3.There are scratches, paint spatters, chips and discolouration on exterior windows and doors and screens
4.The frame of the three section bi-fold exterior door to lounge room is scratched, spattered in paint, discoloured and corroded
5.There are scratches, paint spatters, chips and discolouration on sliding glass frame doors of bedrooms
6.The sliding glass door by car-park has corrosion and a sticky black substance on the frame where builder has concealed tarnish
7.Glass panels on balustrade by the pool are scratched and stained from veranda paint
8.Roof panels by viewing deck are damaged after a subcontractor poured acid on them
9.Door to the storage area on the viewing deck is warped and cannot close
10.8 of 10 W02 windows have a frame for louvered windows, not fixed lite panel as required by the contract
11.There are painting problems throughout the interior and exterior due to cutting-in practices
12.The electricity invoice valued at $1800 has not been paid by Moseley Holdings Limited as required by the contract
13.There should be fines per day for not rectifying the defects as per QCAT order BDL040-12 dated 21 May 2012
14.As-built electrical drawings have not been supplied
15.Photos of property on Ash Moseley Homes Facebook page must be removed and are not to be used on any website or for any other purposes.
Three later claims were added and argued during the hearing of the application.
Claim 1: Water ponding in the shower of bedroom 1.
William Courtney, a building inspector from the QBCC, and Simon Wonnacott, a building inspector from Northern Building Inspection Consultants, conducted a flood test in the bathrooms in their inspections but did not check the slope of the floors with a level. They reported no apparent problem from the flood test.
However, Bryan Peach and Frank Baars, who did use levels to check the slope, testified that the slope did not meet the Australian Building Standard recommended 1:60-1:80.
That Standard provides:
The primary consideration for falls in floor finishes is to ensure water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements.
Photographic evidence dated 13 February 2014 tendered by the applicants shows water ponds in the shower. The floor is slippery, according to the applicant, and the bathroom must be mopped with an extra towel after showering.
No valid justification was given for failure to comply with the standard.
The applicants ask that AMH rectify the shower floor so that it slopes toward the shower drain in accordance with the Australian Building Standard recommended 1:60-1:80.
The respondent denies the pooling of water and says the work complies with building standards. The respondent contends that the shower passed inspection by Mr Simon Wonnacott and was tested by the QBCC inspector, Mr Courtney.
The respondents rely on Mr Courtney’s evidence that the level test conducted by the applicants may have been inaccurate.
The respondents contend the en suite bathroom is a full wet area with a dual waste system. The respondents note the applicants refuse to accept this position and that the applicants maintain that all the shower water must drain to the shower waste.
The respondents submit the en suite bathroom is compliant with AS3958.1 as a full wet area and submit that this item of the claim be dismissed.
By way of further submissions, the applicants contend that the respondents have provided no evidence of any manipulations in the tests undertaken by the applicant.
Claim 2: Scratches in glass of exterior doors and windows.
Simon Wonnacott’s first inspection report contained the following:
All aspects of the building, i.e. external/internal walls, door/window frames, class panels etc, will need to be professionally cleaned to ensure that they are blemish free. Currently this is not the case…
The applicants gave evidence that they were not aware of the scratches in the glass as a defect until about 16 August 2012, once they had moved in and washed the windows. In an email to the respondent Ash Moseley dated 16 August 2012, the applicant identified all scratches.
Simon Wonnacott testified to the contrary. He indicated that he could see blemishes on the glass and the frames because he used a 900 lumens torch. The applicant contends that this is impossible, given he spent a limited time at the house for the inspection and the report was written one day later.
The applicants ask that AMH remove all scratches in all glass windows and doors as identified in the email dated 16 August 2012.
The respondent denies any fault or causing the scratches and chips. The respondent contends that Mr Wonnacott’s report did not observe any chips or scratches in the exterior windows and doors. The respondent submits the scratches and chips were caused by the Applicants cleaning, operations of the business and general use. The respondent submits this item of the claim be dismissed.
Claim 3: Scratches in screens of exterior doors and windows.
The applicants ask that AMH remove all scratches in all exterior doors and windows as identified in the email dated 16 August 2012.
The respondents repeat the contentions in relation to claim 2. Mr Ash Moseley provided evidence that the respondent company engaged Ultra Kleen to perform a final clean at the house.[1]
[1]Ashley Moseley Statement, AM-02.
The respondent alleges the applicant has failed to discharge their onus of proof due to lack of evidence that the screens are scratched, paint splattered, chipped or discoloured.
Claim 4: Three-pane bi-fold door scratches and corrosion.
The applicants contend that the scratches would have been covered by the dirt that covered the windows. It was not included in Mr Courtney’s report.
The applicants ask that AMH remove scratches and corrosion from the three-pane bi-fold door fame and put it back as new.
The respondents repeat the contentions in relation to claim 2 and ask that this item be dismissed due to lack of evidence.
Claim 5: Sliding glass door frames scratched.
For the same reasons as claim two, the applicants ask that AMH remove scratches on all sliding glass door frames specifically identified in the 16 August 2012 email.
The respondents repeat the contentions in relation to claim 2 and ask that this item be dismissed due to lack of evidence.
Claim 6: Sliding glass door with black substance on lower part of frame.
The defect was identified in Simon Wonnacott’s first report, which indicated that the door should be polished to remove the tarnish.
Mr Wonnacott claimed that it was fixed upon a second inspection.
The applicants contend that the respondent has not provided any evidence to refute their claim that the respondent is responsible for rectifying this defect, and that the black substance remains.
The respondent claims that it polished the powder coat finish of the door frame and that it passed Mr Wonnacott’s second inspection.
The respondents further allege that the alleged defect is a minor cosmetic defect and not defective building work. The respondents contend that this item be dismissed due to lack of evidence.
Claim 7: Balustrade by pool.
The applicants’ claim 7 has been dropped from complaint.
Claim 8: Roof panels acid damage.
The applicants contend that it is undisputed that the roof panels were damaged by an acid cleaner used by a subcontractor during the construction of the dwelling. The applicants claim the Ash Moseley’s failure to notify the applicants of this defect was not done in good faith.
The applicants claim that Ash Moseley also made a false statement in relation to the manufacturer’s warranty of the roof, which they contend does not exist due to the damage on the panels.
The respondent contends that prior to Mr Wonnacott’s first inspection, a subcontractor placed a bottle of rust convertor onto the Colorbond Ultra Steel roof sheeting which caused tarnishing. The respondent engaged D&M Painting Contractors to paint the entire roof panel with matching Colorbond paint.
The respondent contends that roof sheeting has a statutory warranty of 6 years and 6 months after practical completion; and a manufacturer’s warranty for 10 years from the date of installation.
The respondent contends that the damage has been rectified and that this claim should be dismissed. The respondent alleges that the applicants claim is for the replacement of the entire roof section.
Claim 9: Warped door to storage room.
The applicants contend that the door to the storage room became so badly warped 1.5 months after handover that it was not possible to close the door.
The respondent claims that the doors were replaced by the Respondent prior to handover as they were warping at that location.
The respondent contends that the doors are functional and performing in their location. The respondent relies upon Mr Courtney’s evidence which states that the warping of the door was natural due to its full exposure to the weather, environment and sun.
Claim 10: Eight of the ten W02 windows have a frame for louvered windows.
The applicants state that the architectural drawings specify the house required a C3 wind classification. The applicants contend that the windows supplied may not be compliant with the specifications to achieve a C3 wind classification, due to the respondent’s modifications to the windows louver frame.
The applicants also contend that the modified louver frames are not cosmetically in keeping with the rest of the house. The applicants claim is for rectification of the windows to have the identical fixed lite frame and fixed lite panel and certification for C3 wind pressures.
The respondent denies the windows require rectification upon the following basis:
a) The architectural plans provided for louvers to eight windows marked W02.
b) QCAT ordered on 21 May 2012 that ‘All windows identified at W02 on the plans are to be finished in fixed lite panels at practical completion’. The respondent contends it complied with this order.
The respondent denies that there is any breach of contract or negligence on its behalf. The respondent contends the windows are fit for purpose and standard compliant.
Claim 11: Painting cutting in practices.
The defect was identified in Simon Wonnacott’s first report which indicated that the painting cutting-in practices were not compliant with Australian Building Standards.
The applicants contend that the painting has not been rectified despite its notification in Mr Wonnacott’s first report. The applicants rely on Darin Sansom’s oral testimony that the painting has not been rectified in the kitchen or lounge room.
The respondent denies this allegation. The respondent says that it responded to the allegations at the time of the original inspection and says that the painting cutting in practices passed the reinspection by Mr Wonnacott. The respondent contends this claim ought to be dismissed.
Claim 12: Electricity invoice for $1,800.
The applicants contend that there was an agreement between the parties that the applicant would pay $300 per month. The applicants rely on an email chain in Michelle Moseley’s affidavit, attachment MM09 as evidence of the contention. The applicants claim that by continuing to use the electricity from the power line instead of using generators, AMH accepted the applicants’ offer.
The respondent contends that the supply of electricity was included in the contract price in part I of the appendix to the contract. The respondent submits that the applicant’s claim for electricity should be dismissed.
In the alternative the respondent submits that the applicant’s demand of $300 per month has no basis and lacks an evidential basis.
Claim 13: Non-compliance with QCAT Order.
QCAT ordered on 21 May 2012 that an independent inspector issue a certificate to certify that all defects had been rectified. The independent inspector was Simon Wonnacott. The applicants contend that Simon Wonnacott was not independent and was advocating for the respondents.
The applicants claim that Simon Wonnacott denied that there were any communications between Ash Moseley and himself between the two inspections. The applicants say that AMH did not comply with the conditions of Simon Wonnacott’s certificate ‘and therefore the certificate was not issued by the deadline date in the QCAT order’.
The applicants make a claim for $250 per day, up to a maximum of $25,000, because of the purported invalidity of the independent inspector’s certificate.
The respondent submits the Tribunal ought to dismiss this claim because:
a) The respondent complied with QCAT Order BDL040-12 dated 21 May 2012.
b) Mr Wonnacott certified that all reasonable defects had been attended to.
c) There is no basis for the operation of order 9 of the QCAT decision dated 21 May 2012 providing for liquidated damages of $250 per day.
d) The QCAT decision dated 21 May 2012 is a final decision of QCAT and the Tribunal has no jurisdiction to enforce this order.
Claim 14: As-built electrical drawings.
The applicants request that AMH provide the as-built electrical drawings and provide confirmation of the date the drawings were forwarded to AMH from Toucan Electric.
The respondent denies this claim and says the electrical drawings were provided by the applicant and a copy of same was provided to Tucan Electrical, the subcontractor electricians. The respondent contends that it has no knowledge of “as built electrical drawings” and does not have these in its possession.
The respondent submits this claim is unfounded or alternatively that it is not within the Tribunal’s jurisdiction.
Claim 15: No photos to be used.
The applicants did not want Ash Moseley Homes to use photos of their home for promotional purposes. They now state that they ‘now understand that QCAT may not have the authority to make an order on this’ and that they ‘are in no position to argue otherwise’.
The respondents submit this item is not a domestic building dispute and does not fall within the jurisdiction of the Tribunal.
Claim 16: Water ponding in shower of bedroom 2.
The applicants contend that William Courtney and Simon Wonnacott did not use a level to check the slope of the floors in the bathrooms. The applicants contend that using a level to check the slope, as did Bryan Peach and Frank Baars, the slope is non-compliant with Australian Building Standards. The applicants state that the bathroom is intended to be wheelchair friendly and that the pooling of water makes the bathroom unfit for its purpose.
The respondent denies this claim. The respondents rely upon Mr Wonnacott’s evidence and his flood testing. The respondents state that the area is a dual waste system and a complete wet area.
Claim 17: Crack in concrete in suspended slab through which water leaks.
The applicants have received an offer from AMH to rectify the waterproof membrane. The applicants state that 17 March 2014 is a proposed date. The applicants seek an order from QCAT enforcing this obligation if rectification does not occur.
The respondent denies this is defective building work. The respondent denies there is any breach of contract or negligence on its part.
The respondent relies on the evidence of Mr Charles Gianarakis who provided a report on 3 February 2014, stating that ‘the cause of the cracking is due to a combination of plastic shrinkage and drying shrinkage’.
The applicants in their further submission assert that the building defect alleged is the water penetration through a waterproof membrane such that the water goes through the suspended slab and into the storage room.
Claim 18: Gyprock plasterboard not used.
Section 5.02 of the specifications state that ‘10mm gyprock plasterboard lining of internal walls’ is to be used. The applicants contend that this wording is specific and refers only to the Gyprock brand of plasterboard. The applicants contend that the Knauf Mastershield plasterboard which was provided is of inferior quality and that the warranty is 15 years less than that of the Gyprock brand. The applicants claim for the Knauf Mastershield plasterboard to be replaced with Gyprock plasterboard.
The respondent says the plasterboard used complies with all Australian Standards and is a superior product. The respondent has filed quotes which show that Knauf Mastershield is more expensive than Gyprock plasterboard.
The respondents submit that to replace the Mastershield board with Gyprock board would be unreasonable.
Other matters
The applicants propose that both parties bear their own costs.
The applicants contend that a procedure for rectification be included in the Tribunal’s order, including a timetable and statement of work to be undertaken.
Further submissions
The applicants filed further submissions on 14 March 2014 in the Cairns QCAT Registry. In most part the applicants repeat and rely on their original submissions as outlined.
The applicants contend the respondent provided false information to the Tribunal.
The applicants seek an order to rectify which includes a procedure that:
a) Provides a written statement of work;
b) Includes a timetable;
c) Establishes when the workers start and finish work; and
d) How long the affected area will be off limits.
The applicants submit that the statement of work must:
a) State exactly what work will be performed, including which materials will be used and how the work will be done; and
b) Be agreed upon by the applicants before the work is to begin.
The respondents submit that the work is to be performed in accordance with the contract, and further that the applicants’ submissions are beyond the powers of the Tribunal with respect to supervision of performance.
The respondents repeat and rely on their original submissions.
It is appropriate to deal with each of the issues raised separately.
Bedroom 1 En Suite
With respect to the claim concerning alleged water ponding in the shower of bedroom 1, the Tribunal has heard conflicting evidence from William Courtney and Simon Wonnacott on one hand and Bryan Peach and Franks Baars on the other hand. Both Mr Courtney and Mr Wonnacott testify that there was no apparent problem in the shower of bedroom 1. Mr Peach and Mr Baars contended that the slope of the floor in the shower did not meet the Australian Building Standards. Mr Wonnacott gave evidence after a notice to appear was given on behalf of the applicants. Both are independent witnesses. Both gave evidence that the shower passed inspection and the work complies with the appropriate Building Standards. Mr Courtney carried out a test and reported on 17 January 2013 that, ‘visual inspection noted and flood test revealed a shower room that was installed as a full wet area. The vanity is fully raised form [sic] the tile surface and the full floor and wall junction has been treated. Flood test revealed that water did flow to the floor as provided’.[2] Mr Courtney during his evidence explained the flood test and said, ‘the water was draining to the wastes provided, there was no damage to the building elements or an issue to the health and safety of the occupants’.[3] Mr Courtney did not accept that exhibits 22 and 23, they being the applicants’ photographs of the bedroom 2 and bedroom 1 ensuites, showed that a flood test was properly carried out.
[2]Exhibit 24, Report of William Courtney 17.01.13.
[3]Transcript 2.75 and 2.76.
Mr Courtney was also critical of using a level to test the falls in the floor. I accept his evidence in this regard and his evidence generally.
Generally I preferred the evidence of Mr Courtney and Mr Wonnacott over that of Mr Peach.
In my view Mr Peach’s evidence did not properly address the Australian Standards 3958.1-2007 and in particular Appendix D where the primary consideration for falls in floor finishes is to ensure water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements. I accept the proposition that the area was a full wet area with a dual waste system. Mr Peach performed a flood test by using a bucket rather than a shower rows. I accept that that is an incorrect method of flood testing on the basis of Mr Courtney’s evidence. I note that Mr Peach conceded during his evidence that the building elements were not compromised. In my view the failure to carry out the tests correctly compromises his evidence.
I find that the work conformed to Australian Standard AS3958.1.
Scratches and chips to many exterior windows and doors
The applicants identified scratches in the glass as a defect on 16 August 2012, six weeks after they moved in. They say that they identified those scratches after washing the windows and did not see them on their final inspection because the glass was dirty.
It is apparent that when Mr Courtney inspected the exterior windows and doors and reported on 17 January 2013 that there were numerous windows and doors throughout the house that exhibited signs of scratching to panes of glass or the powder coated framework.
The respondent denies that it was the cause of any scratches and chips. It relies on the report of Mr Wonnacott and his evidence that he did not observe any chips or scratches to exterior windows and doors despite an initial inspection wherein he checked the surfaces with a 900 lumenstorch and no defects were identified.
The real question in this regard is when the scratches and chips occurred and who caused them.
I am not satisfied on the evidence that those scratches and chips were caused by the respondent.
Exterior window and door screens
The applicants claim that many exterior windows and doors have screens that are scratched, have paint splatters, chips and discolouration. Again those things were not noticed until about 11 August 2012. The respondent denies that they were the cause of such scratches and paint splatters and relies on the observations of Mr Wonnacott and Mr Courtney and the admission by Mr Baars that he had recoated the deck.
Mr Wonnacott had identified the cleanliness of the premises as requiring improvement at his initial inspection. Subsequent to that, Ultra Kleen performed a final clean at the house. That was done on 5 July 2012.
I am not satisfied that the applicants have shown that any screens scratched, paint splattered, chipped or discoloured were caused by the respondent.
Lounge room bi-fold exterior door
On the evidence before me I am not satisfied that the applicants have shown that any scratching to the frame, paint splatters, discolouration and corrosion to the three section bi-fold exterior door to the lounge room was caused by the respondent.
Sliding glass door frames
Again these claimed defects were said to be noticed on 11 August 2012. The respondent denies the claim and repeats what it is previously said about the other scratches, paint splatters, discolouration and corrosion.
I am not satisfied that the applicants have shown that there are any defects in the sliding glass door frames caused by the respondent.
Sliding glass door by car park
The applicants claim that the sliding glass door by the car park has corrosion and a sticky black substance on the frame where the builder concealed tarnish. The respondent denies the claim.
Mr Wonnacott at his first inspection identified tarnishing at the door frame. Evidence was given that the powder coat finish to the doorframe was polished by the respondent and passed Mr Wonnacott’s second inspection. It appears that tarnish has reappeared around the same area of the frame as that which was inspected by Mr Wonnacott at the initial inspection and passed at the second inspection. The real question is what the cause of the tarnish is and whether its appearance requires rectification by the respondent.
The respondent argues that pursuant to clause 19.1 and clause 1 of the Residential Building Contract General Conditions, it is only required to rectify defects and omissions in the works which become apparent and are notified to the contractor during the defects’ liability period defined as 6 months from the date of practical completion. It argues that there is evidence that the tarnish can be caused by environmental factors as well as cleaning products and that the alleged defect was a category 2 defect under the QBCC Board policy, it being a minor cosmetic defect not affecting the performance or use of the doorframe.
It argues that because the home is positioned at Clifton Beach in a coastal environment and the building elements will be affected by the exposure to the environment as well as cleaning and normal use, tarnish is not a building defect and its presence does not indicate a breach of contract or negligence by the respondent for a building defect. It argues that the presence of the discolouration or tarnish is matter of owner maintenance.
I accept that argument and I find that the applicant has not shown that the respondent is the cause of the tarnish or that it is a defect that ought to be ordered to be rectified.
Roof panels acid damage
The applicants claim the roof panels by the viewing deck were damaged by a subcontractor when he poured acid on them. They argue that even though the builder has painted over the roof panels, they now have second hand materials in breach of their contract and no manufacturer’s warranty on that section of the roof.
The evidence is that a subcontractor placed a bottle of rust convertor onto the Colorbond Ultra Steel roof sheeting which caused tarnishing of the roof sheeting in three places as shown in the report of Simon Wonnacott dated 17 June 2012.[4] The respondent arranged for D&M Painting Contractors to paint the entire roof with matching Colorbond paint. The respondent argues that the damage has been rectified and the roof sheeting has a statutory warranty for a period of 6 years and 6 months from practical completion. It also argues that the roof sheeting has a manufacturer’s warranty for a period of 10 years from the date of installation subject to terms and conditions.
[4]Exhibit 10.
Further there is evidence that the Colorbond Ultra Steel roof sheeting is new and has been rectified in accordance with the Blue Scope Technical Bulletin and Deluxe Warranty[5] in a manner accepted by Mr Wonnacott and Mr Courtney. Mr Peach in his evidence accepted that the method of rectification was to paint the roof sheeting.
[5]Exhibit 9.
The evidence is that the rust convertor did not compromise the steel and that the painting of scratches and damage is a common method of rectification. The colour of the roof, it having been painted in its entirety, is uniform.
In my view the claim by the applicant cannot be sustained. I do not accept that the roof is second hand material nor do I accept that there is any defect in the roof.
The applicant was entitled to have a building erected upon his land in accordance with the contract and the plants and specifications which formed part of it. Their damage is the loss which they sustained by the failure of the applicant to perform its obligation to them. If that was not the case the applicants would be entitled to damages for the breach of the building contract. The measure of those damages recoverable by the building owner for the breach of a building contract is the difference between the contract price of the work or the building contracted for and the cost of making the building or work conform to the contract. That is subject to the qualification that not only must the work undertaken be necessary to produce conformity but that also it must be a reasonable course to adopt.[6] Here the applicants sought to have all the roof panels that were painted removed and replaced.
[6]Belgrove v Elridge (1954) 90 CLR 613 at 617.
The evidence is that.[7]
[7]De Galambros and Son Pty Ltd v McIntyre (1974) ACTR 10; Lida Build v Miller and Anor [2013] QCATA 139.
In my view in circumstances where the roof stains have been rectified and the total roof has been painted it would not be reasonable or necessary to order that the roof sheets be replaced.
Door to storage area
The applicants claim that the door to the storage area on the view deck is warped so badly it is no longer possible to close. They contend that the door was left unpainted for months, exposed to sun and rain and that exposure caused the warping which they first noticed on 11 August 2012.
The respondent denies the claim and says that the doors are installed in accord with the contract and contractual drawings supplied by the applicants. They say there are no allegations that the doors have not been installed in an appropriate and skilful way with reasonable care and skill. That is correct.
The respondents say that they replaced the doors prior to handover as they were warping in the location where they were placed.
That the door was warped does not does not seem to be disputed. What is disputed is whether the door is warped because of the defect caused by the respondent.
Mr Courtney inspected the door and said ‘visual inspection noted the bottom of the storage door had warped. This will always occur at a location exposed to the weather. The door is still operable and will move depending on the amount of sunlight, depending on exposure to the weather and temporary to variants from both sides of the door’. Mr Courtney did not classify it as a defect. He deemed that it was natural for that door when it was exposed to the weather fully. Absent evidence that the doors have been installed negligently or in breach of contract and in the face of evidence that the doors are functional and performing in their location the warping cannot be attributed to the respondent. I accept that the warpage is an owner maintenance matter for the applicants.
8 of the 10 WO2 windows
The applicants claim that 8 of the 10 WO2 windows have an incorrect frame, in that they have a frame for louvered windows not fixed light panel. They also claim that the contract required G.James windows and the windows that have been provided are manufactured by Breezy.
In their submissions the applicants say that the present mix of two fixed light panel windows and eight windows with a modified louver frame and flat sheet of glass do not comply with the specification.
The architectural plans provided for louver to eight windows marked WO2. The engineering specifications with wind relevant loads prevented two of the windows with louvered and fixed lite panel windows to match the other windows being installed. According to the respondents the applicants were advised of that change at a site meeting on 4 May 2011. The architectural plans showed louvers to eight windows marked WO2 and the specifications to the contract altered the bay window to fixed lite.
The respondents say that the applicants selected cedar bay louvers for those windows but after installation changed their minds and wanted fixed lite windows. By a consent order dated 21 May 2012 QCAT by order 10 ordered ‘all windows identified at WO2 identified on the plan are to be finished in fixed lite panels at practical completion’. That order was complied with and the louvers were replaced with fixed lite panel windows.
The applicants in their submissions said that it was of primary importance to them that the windows handled the wind pressures for C3 wind classification.
I heard evidence from Peter Brereton from G.James. I heard that modification used component parts from the manufacturer Breezeway and the modification was performed in accordance with instructions from Breezeway. He was of the opinion that the modified louver window frames met wind pressure requirements. I accept his evidence in that regard. Further he gave evidence of the wind ratings for the modified windows and said that they modified the windows in accordance with the National Australian Testing Association and Breezeway figures. Modifications were done with Breezeway components to their standards and for the Breezeway system.
Mr Brereton gave evidence that when they tended to replacing the louvered windows to fixed lite they used Breezeway manufactured and supplied frames, manufactured for the purpose of converting louver window frames to fixed lite. Mr Peach, Mr Wonnacott, Mr Courtney and Mr Brereton all gave evidence that there was no defect to the window frames. They are of the same profile but a different thickness to the original fixed lite window frames.
The evidence was that a form 15 and a form 16 have been provided for the design and installation to show that the windows installed comply with all the standards.
In my view there is no identified defect in the window installation or modification and it seems that the changes were made in accord with a consent order. In those circumstances I dismiss the applicant’s claim for 8 WO2 window frames to be changed.
Painting cutting in
The applicants claimed that throughout the interior and exterior there were painting problems due to cutting in practices. Mr Wonnacott at his initial inspection identified poor cutting in practices which he says were attended to by the respondent.
The paint cutting in practices passed reinspection by Mr Wonnacott and the QBCC inspector, having inspected the complaint item, was of the opinion that the painting meets the relevant standards. Mr Wonnacott, Mr Courtney and Mr Sansom gave evidence of the standards providing for a visual inspection at 1.5 metres under natural light. Exhibit 20 illustrated the normal viewing positions and said,
generally, variations in the surface, colour, texture and finish of walls, ceilings, floors and roofs and variations in glass and similar transparent materials are to be viewed where possible from a normal viewing position. A normal viewing position is looking at a distance of 1.5 metres or greater (600mm for appliances and fixtures) with the surface or material being illuminated by non-critical light. Non-critical light means the light that strikes a surface is diffused and is not glancing or parallel to that surface. Slight variations in the colour and finish of materials do not always constitute a defect.
Exhibit 11 is a photograph relied on by the applicants said to be depicting the cutting in practice at 1.5 metres under natural light. Mr Wonnacott, Mr Courtney and Mr Sansom all rejected the contention that the photograph depicted cutting in practice at 1.5 metres under natural light. They suggested that the photograph was either taken closer than 1.5 metres or had been taken with a zoom lense and under a flash. The applicants in their submissions conceded ‘the photo taken by Frank Baars of this wall and previously submitted into evidence may have used the zoom feature of the camera’. Mr Wonnacott, Mr Courtney and Mr Sansom gave evidence that the cutting in practice was not defective building work. I accept their evidence and the application for an order that the painting be fixed so that the cutting in meets the Australian standards is dismissed. In my view, it has been established that the painting and the cutting in practice has met the Australian standards.
Electricity
The applicants claim for electricity they say was not paid for as agreed. The claim is for $1,800. The applicants say that they made an offer to the respondents to provide electricity for $300 per month through the solicitor for the respondent which they say was conveyed to the respondents. No acceptance of that offer is pointed to except it is said that the respondents continued to use electricity from the power line instead of using generators.
The respondent says that part 1 of the appendix to the contract includes electricity in the contract price and that reflects an agreement between the applicants and the respondent that electricity would be made available to construct the home. I am not satisfied that there was an agreement that the respondents would pay for electricity and further there is no basis for the purported charge of $300 per month. No evidence as to consumption was produced.
The claim for $1,800 for electricity is dismissed.
Fines per day as per QCAT order BDL040-12
An order made by consent required the independent inspector issue a certificate that identified the defects were rectified.
Simon Wonnacott the independent inspector certified that all reasonable defects had been attended to pursuant to order 8 of the QCAT orders dated 21 May 2012 within the 14 day period.
The applicants contend that Mr Wonnacott was not an independent inspector when he issued his second report and certificate. They say he was an advocate for AMH and they say they have shown a number of defects identified in his first report still existed some months later.
I accept the evidence that the certificate was provided in the relevant time period. In my view it is not appropriate to go behind the giving of the certificate in the manner suggested by the applicants. I find no credible evidence that Mr Wonnacott was other than independent. The fact of the certificate being given means that the liquidated damages of $250 per day provided for by order 9 is not engaged. In any event it is not now appropriate for me to go behind the orders that were made on 21 May 2012 by consent.
As built electrical drawings
The applicants seek an order that the respondent hand over a copy of the as built electrical drawings. The respondent says that it has no knowledge of as built electrical drawings and does not have any such drawings in its possession.
There is no evidence to establish that there are ‘as built electrical drawings’ nor is there any evidence that there is an obligation to provide such drawings.
The claim for “as built electrical drawings” is dismissed.
Photographs of the house
The applicants sought an order that all photographs of their house currently published on the internet by the respondent be removed and that the respondent not use any photographs of their house on the internet or for promotional purposes in the future.
The respondent says that it had a Facebook page where home under construction had images displayed but when the applicants demanded their home be removed from the page in or about March 2013 the photographs of the applicants’ house were removed.
This is not a matter which is a domestic building dispute and in my view the Tribunal does not have jurisdiction to make the orders sought.
Bedroom 2 bathroom floor
The applicants claim that the slop in the shower of bedroom 2 does not meet the Australian Building Standard recommended of 1-60:1-80. They contend that there was no slope. The claim made was ‘pooling of water in bedroom 2 bathroom floor’.[8]
[8]Exhibit 5.
Evidence was given that prior to the contract being signed the applicants requested that the framed shower screen be removed from bedroom 2 shower area to allow for easier access for a wheel chair. That was done.[9]
[9]Exhibit 27, pages 65 and 66 to the statement of Michelle Moseley.
The respondents point to the Building code (Part 3.8.1 Wet Areas Appropriate Performance Requirements). It states that for a shower area “unenclosed” as this shower area is that the entire unenclosed shower area is to be waterproofed.
Mr Wonnacott gave evidence that he performed a flood test on 15 June 2012. On a reinspection on 29 June 2012 he passed the bedroom 2 bathroom floor.
He said that the wet areas were designed as complete wet areas so that a standard test would be to run the showers through the shower roses to ensure that there was adequate water pressure and the water that discharges from the shower goes into the floor waste provided. He said that his test showed that the water ‘did in fact, flow out of the shower to the floor waste then pass it, but no further and then it dissipated back into the floor waste’. He deemed that to be acceptable having regard to Australian Standard 3740 Appendix B.[10]
[10]Exhibit 17.
He said that there was no Australian Standard for ponding and his interpretation of it was simply an area where water sits and does not have the ability to dissipate to a waste and also causes health hazards to occupants of the building. He says that from the tests that he performed, the water did not appear to be pooling. Australian Standard 3958.1 at Appendix D provides ‘the primary consideration for falls in floor finishes is to ensure that water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements’.
Mr Wonnacott’s evidence is that the tests to the area show that the floor complies with the standards. He was of the opinion that it was acceptable that the water drained to either the shower waste or the floor waste. I accept his evidence and I note that the evidence of Mr Peach conceded that the alleged defect was not adversely affecting the elements of the building. Mr Peach did not perform a flood test.
My view is that the applicants have not shown that the water in the shower floor does pond or that there is a breach of Australian Standards. The application for rectification of this shower floor is dismissed.
Cracking concrete in suspended slab
The applicants allege that there is a crack in the concrete in the suspended slab which allows water to go all the way through it.
The respondents deny that there is defective building work and say that there is no breach of contract and the work was not negligently performed.
The suspended slab was inspected by Mr Charles Gianarakis who provided a report dated 3 February 2011 and also gave evidence.[11]
[11]Exhibit 1.
Mr Gianarakis observed that the pattern of cracking was generally random and evenly spread of the slab. The majority of the cracks were fine cracks; however, had a wider appearance during to the feathering that has occurred on the surface. Moisture was observed on the feet of the slab at several crack locations. There is no sprawling or any deterioration in the reinforcement.
He said
the cause of the cracking is due to a combination of plastic shrinkage and drying shrinkage. Plastic shrinkage occurs in the drying out of the surface of the concrete before the concrete is set, that is, whilst in the wet state. Drying shrinkage occurs in the hardened state. Shrinkage is caused by the volumetric movement in concrete which is a property of the hardening process and cannot be prevented. The pattern of cracking did not indicate bending/structural failure in the slab.
I accept the evidence of Mr Gianarakis. I accept his opinion that neither the plastic shrinkage or the drying shrinkage was defective building work.
The respondent gave evidence that Mr Steven Tryer of Mastic Master provided a twenty year guarantee to the waterproof membrane.
I also accept the evidence of Mr Gianarakis that there was moisture on the underside of the slab and that the waterproofing was not doing its job.
That being the case in my view an order should be made that the respondent arrange for the rectification of the water proof membrane to be carried out by 4pm 18 July 2014.
Plasterboard
The applicants contend that the contractor plasterboard brand gyprock was not used and that a cheaper product Knauf Mastershield was substituted.
The evidence is that the product Knauf Mastershield was used in the construction. The contract specifications at clause 5.02[12] provides ‘10mm gyprock plasterboard lining of all internal walls’.
[12]Exhibit 27, page 37.
Evidence was given that the term “gyprock” is the industry generic term for gyprock and plasterboard. The applicants accept that “gyprock” is used in the construction trade as synonymous with the word plasterboard. However they contend that because of the words ‘gyprock plasterboard’ only the gyprock manufactured by CSR Building Products Limited should have been used. I do not accept that that is the case. In my view the specification properly read was referring to 10mm plasterboard generally described as “gyprock”.[13]
[13]Belgrove v Elridge (1954) 90 CLR 613.
The evidence given by Ashley Mosley[14] was that the Knauf Mastershield was dearer than the CSR gyprock. I accept that evidence.
[14]Exhibit 4, paragraph 6.
There is no evidence that the plasterboard used is defective.
In my view it would not be reasonable nor required in circumstances where there is no effect identified nor evidence of any real loss or damage the replacement of the gyprock would serve no purpose and simply be an unnecessary cost. If there is a difference in warranties between the CSR product and the product used as claimed by the applicants, in my view that is not sufficient to require the replacement of the gyprock for the reasons I have referred to early and articulated in Belgrove v Eldridge[15].
[15](1954) 90 CLR 613.
The claim for the replacement of the plasterboard is dismissed.
The applicants submit that both sides should bear their own costs. The respondent seeks direction for the timetabling for submissions on costs. The respondent should file and serve on the applicants any submissions as to costs by 4:00pm on 11 July 2014 and the applicants file and serve on the respondent any submissions on costs by 4:00pm on 25 July 2014.
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