Holmes v Queensland Building Services Authority
[2010] QCAT 445
•7 September 2010
| CITATION: | Holmes v Queensland Building Services Authority [2010] QCAT 445 |
| PARTIES: | Mr Richard Wayne Holmes |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR066-08 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 15 April 2010 |
| HEARD AT: | CAIRNS |
| DECISION OF: | Ms Tracy Lee Fantin |
| DELIVERED ON: | 7 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application is allowed. 2. The direction to rectify dated 4 March 2008 is set aside. 3. The parties to file and serve any written submissions on costs within 14 days of the date of this order. |
| CATCHWORDS : | REVIEW OF ADMINISTRATIVE DECISION –– SET ASIDE – direction to rectify defective work – surface coating to swimming pool – water leaks Commercial and Consumer Tribunal Act 2003 subsections 101, 104 Act 2009 sections 17, 19, 20, 24, 28, 62, 256, 271 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Richard Wayne Holmes was self represented |
| RESPONDENT: | Queensland Building Services Authority represented by Mr Lovrincevic, QBSA legal officer |
REASONS FOR DECISION
Mr Holmes is a plasterer. In 2006 he applied finishing products to a sprayed concrete swimming pool shell near Airlie Beach. Later, the pool leaked. The owner complained to the Queensland Building Services Authority (QBSA). The QBSA issued to Mr Holmes a direction to rectify defective work dated 4 March 2008 (the Direction). It stated:
“Water egress is occurring from the inside of the swimming pool, resulting in damage to the steel work inside the shell and the external render.”
Mr Holmes applied to the Commercial and Consumer Tribunal (CCT) to set aside the Direction.
Relevant events leading up to the Direction
This matter has a long history. The owners of the land engaged Kemp Builders Pty Ltd (Kemp) and Hank Constructions Pty Ltd (Hank) to build a pool to “shell only stage” in accordance with structural engineering drawings prepared by Mr Gary Goddard.
In September 2005, Mr Holmes was approached by Whitsunday Pool Service (WPS) on behalf of the owners to provide an estimate of costs for the internal finishing of a proposed concrete block pool. An engineering plan was provided to quote on, which specified that a waterproof membrane had to be applied to the inner face to the pool.
Mr Holmes obtained an estimate for the waterproofing component from a licensed applicator of waterproofing, and incorporated that into his quotation dated 29 September 2005, which he supplied to WPS. The quotation expressly included a waterproofing system to a concrete block pool.
The concrete block pool was never built and the work described in the quotation of 29 September 2005 was never carried out. Mr Holmes provided a number of other quotations to WPS, none of which proceeded to contract.
In late 2005/early 2006, Mr Holmes was approached again by WPS on behalf of the owners to provide an estimate for internal finishing of a different pool on the same site. It was to be a sprayed concrete pool, in place of the concrete block pool earlier proposed. A new sketch plan was provided. The plan contained no reference to waterproofing.
On 27 March 2006, Mr Holmes provided a quotation to the owners to surface the sprayed concrete pool. Unlike his quotation dated 29 September 2005, it contained no component for, or reference to, waterproofing. The owners accepted this quote and engaged Mr Holmes.
In May 2006, the builder advised Mr Holmes that the shell was ready for finishing. Mr Holmes carried out the surfacing work pursuant to his quotation of 27 March 2006, which including applying a product called Quartzon.
10. Shortly after completion of the works in August 2006, the owner informed Mr Holmes that the pool was leaking and that she required WPS to rectify it. Mr Holmes did not consider that the leaks had anything to do with his works. He heard nothing more about the pool until September 2007.
11. In June 2007, the owner contacted WPS and Hank about problems with cracking and leaking through the pool walls.
12. On 5 June 2007, Hank obtained a report from Mr Goddard, the engineer, about cracks in the pool.
13. On 5 July 2007, WPS advised the owner that it did not build the pool, the owner had engaged and paid all contractors directly, the work WPS had done was confined to installation of pipes and filtration equipment and did not extend to waterproofing, and that it was not responsible for the leaks.
14. On 5 July 2007, the owner wrote to Hank noting that Hank had agreed to remove the existing Quartzon surface, apply waterproofing, apply fresh Quartzon and re-render the outside of the pool. Some of these works were subsequently carried out by Hank.
15. In about August 2007, Kemp advised the owners that it too was not responsible for the leaks because it had been engaged to carry out the building of the pool to shell stage only, and did not carry out any finishes.
16. On 11 September 2007, the owner lodged a complaint with the QBSA against Kemp.
17. After inspecting the pool with Mr Kemp, on 1 October 2007 the QBSA’s inspector Michael Hulme prepared a report concluding that Mr Kemp was not responsible for the leaks in the pool.
18. In December 2007, apparently based on advice from the QBSA, the owners then lodged a complaint against Mr Holmes. The owners noted that in the year and a half since completion of the pool, they:
“have been in discussion with both Whitsunday Pool Service and Hank Constructions to attempt to have the issue resolved, and despite various “quick fix” methods being applied to the outside walls, the problem remained. ... but investigations by the BSA have determined that the responsibility for the leaking most likely lies with Semco Contracting [Mr Holmes] as they feel that the waterproofing render applied has failed”.
19. In the complaint form under the heading “Date contract signed” the owners wrote “Quote 27/3/06”.
20. After inspecting the pool with Mr Holmes, on 19 January 2008 the QBSA’s inspector Mr Hulme prepared a second report.
21. The QBSA then engaged Mr Bailey of Bailey’s Pools and Spas, who held licences in swimming pool and spa construction and concreting, to prepare a report on the pool leaks, which he provided in February 2008.
22. On 12 February 2008, the QBSA requested that Mr Holmes rectify the leak. In response, Mr Holmes advised the QBSA that he did not intend to carry out rectification work because the leak was not his responsibility.
23. On 4 March 2008, the QBSA issued the Direction to Mr Holmes.
24. In response to the Direction, on 20 March 2008 Mr Holmes filed an application for review in the Commercial and Consumer Tribunal (CCT), stating that he did not agree that the water egress from the pool was caused by defective or incomplete work done by him.
Procedural history
25. Some of the procedural history is also relevant.
26. On 4 June 2008, the CCT granted a stay of the Direction pending the outcome of the review application, and directed that the QBSA provide a statement of reasons setting out its findings of fact, evidence on which the findings were based and reasons for its decision.
27. The QBSA filed a statement of reasons on 17 July 2008, prepared by its then solicitors HWL Ebsworth. Relevant parts stated:
3.3 The Applicant was responsible for the defects as the pool was defective not because of prior cracks in the shell works completed by Hank and Kemp, of which the Applicant was aware and to which he should have had regard, but as a result of either:
(a) “waterproofing inside the pool was inadequate”;
(b) water egress is occurring from either the failed waterproofing or leakage in the pipe work”;
(c) the water feature pump suction points in the pool were too close together at 600mm, with the Standard requiring it to be a minimum of 1 metre apart [see Mr Bailey’s report of 9 February 2008];
all of which works formed part of the Applicant’s quote of 29 September 2005.
3.4 The Applicant was, as confirmed by its quote of 29 September 2005, responsible for the works listed in paragraph 3.3(a) to (c) above, despite not holding an appropriate licence to complete these works.
3.5 A reasonable person, licensed to carry out these works would not have completed the works in the manner adopted by the Applicant.” [underlining added]
28. Mr Holmes filed a statement on 29 August 2008, which made it clear that:
a. The quote of 29 September 2005 relied upon in the QBSA’s statement of reasons was utterly irrelevant, because it was an earlier quotation that related to a different pool that was never built.
b. The works actually carried out were the subject of the quotation provided by him to the owner which stated:
“Re: surfacing of swimming pool at lot 31 Woodwark Ave Cannonvale
Job Description
Preparation of concrete shell for application of finishing products to include application of sand & cement rendered tiled band, shaping of shell …
apply waterline tiles to concrete swimming pool …
apply prep coat & finish coat quartzon to suitably prepared concrete pool …”
c. The quotation the subject of the contract did not contain any reference to waterproofing. (The copy of the quotation attached to Mr Holmes’ statement was undated but it was later confirmed to be the quotation dated 27 March 2006, referred to in the owner’s complaint form to the QBSA).
d. To the extent that the QBSA relied upon alleged leakage in the pipe work and water feature pump suction points of the pool, those works had nothing to do with Mr Holmes as they were carried out by others.
e. Mr Holmes had already advised the QBSA several times that its Direction was based on the wrong quotation and referred to work that he had not carried out.
29. Unfortunately for Mr Holmes, the QBSA (or its legal representatives) apparently did not consider, and certainly did not act upon, the points made in the Applicant’s statement until the Tribunal hearing, almost 2 years later. If it had done so, these proceedings may have been avoided.
30. In April 2008 and again in August 2008, Mr Holmes asked the owner of the land for permission for he and an expert to have access to the pool to inspect it and prepare a report. The owner of the land refused access.
31. The CCT make an order on 2 September 2008 directing that the owner provide access.
32. On 19 September 2008, the owner informed the CCT and the parties that “permission to enter the property and take photographs has not been given because the leakage of the pool has now been rectified at my own expense, so nothing to see and photograph”.
33. As a result of the owner’s response, Mr Holmes did not file any independent expert evidence.
34. On 13 October 2008, the CCT made further orders including granting the QBSA legal representation in the proceedings by consent, and for the filing of statements.
35. On 1 December 2009, the CCT was amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). By virtue of the transitional provisions of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), jurisdiction is given to QCAT to deal with a proceeding started before a former tribunal that is a ‘pending proceeding’: section 256. QCAT must deal with the matter under the QCAT Act or an enabling Act, but in doing so has only the powers and functions of the former tribunal, in this instance, the CCT: section 271.
36. The matter was listed for hearing on 15 and 16 April 2010 in Cairns. In Feburary and March 2010, the QBSA applied for, and was granted, leave for its witnesses to appear by telephone and to call evidence from a witness not previously identified by it, Mr Goddard, whose report was referred to in the QBSA’s statement of reasons.
37. On the first day of the hearing and without prior notice to Mr Holmes, the QBSA sought leave to amend its statement of reasons to:
a. Delete the reference to the incorrect quotation dated 29 September 2005 and replace it with the correct quotation dated 27 March 2006; and
b. Abandon the allegations in paragraphs 3.3(b) and (c) relating to leaks in the pipe work and pump suction points;
and to make consequential amendments to the statement of its inspector, Mr Hulme.
38. Under the QCAT Act, this Tribunal:
a. Must act fairly and according to the substantial merits of the case: section 28(2);
b. Must observe the rules of natural justice, but not be bound by the rules of evidence or any practices or procedures applying to courts of record other than as it chooses to adopt: section 28(3)(a-b);
c. Must act with as little formality and technicality and with as much speed as the proper consideration of the matters before it permits: section 28(3)(d);
d. May admit into evidence the contents of any document despite non-compliance with any time limit or other requirement under the QCAT Act or rules: section 28(4); and
e. Must do whatever is necessary for the speedy and fair conduct of the proceeding: section 62(1).
39. The amendments proposed by the QBSA did not raise any new issues but rather sought to abandon some allegations and rely upon a document which was already in evidence. It was an attempt by the QBSA to fix up the way in which its case had been pleaded, in response to matters raised by Mr Holmes. Bearing the above provisions of the QCAT Act in mind, I considered that there was no prejudice in leave to amend being granted and that it was in the parties’ interests for the hearing to proceed as scheduled.
Statutory regime
40. The Direction was issued on 4 March 2008 pursuant to section 72 of the Queensland Building Services Authority Act (“QBSA Act”) Reprint 8F. That section provided, relevantly:
72 Power to require rectification of building work
(1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
(2) In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.
(14) The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
41. In Schedule 2 of the QBSA Act:
a. Building work is defined to include renovation, alteration, extension, improvement or repair of a building.
b. Building is defined to include any fixed structure.
c. Defective, in relation to building work, includes faulty or unsatisfactory.
42. It was not disputed that Mr Holmes was a person who carried out building work for profit or reward for the purposes of section 72(5)(d) of the QBSA Act. What was in issue was whether the building work carried out by him was defective or incomplete.
43. The Direction was a reviewable decision under section 86 of the QBSA Act.
44. Pursuant to sections 101 and 104 of the Commercial and Consumer Tribunal Act 2003 (CCT Act), the CCT was empowered to make certain orders on a review hearing. The CCT was empowered to review a decision within jurisdiction under an empowering Act (in this case the QBSA Act), and had a discretion to confirm the decision; set the decision aside and substitute another decision within QBSA powers; or set the decision aside and return the matter to the QBSA with directions. The accepted function of the CCT when reviewing such a decision was to conduct a fresh hearing on the merits, in effect, ‘standing in the shoes’ of the decision-maker. The CCT was entitled to consider all of the evidence available to it.
45. QCAT has all the functions of the decision-maker for the decision being reviewed: section 19(c) QCAT Act. The tribunal hears the matter by way of fresh hearing on the merits: section 20(2) QCAT Act.
The issues
46. The issues to be considered by the Tribunal are:
a. what building work did Mr Holmes carry out?
b. was his building work defective or incomplete?
c. was the water leak from the pool caused by Mr Holmes’ building work?
d. was the decision to issue the Direction reasonable in the circumstances?
e. any other matters relevant to whether the Direction should be set aside.
What work did Mr Holmes carry out?
47. Mr Holmes carried out work pursuant to the quotation provided to the owner on about 27 March 2006, which contained no reference to waterproofing.
48. Mr Holmes’ evidence was that the sand and cement renders applied by him were for the purpose of aesthetically shaping seats, steps and covers before the application of tiles. He was not engaged to carry out waterproofing of the pool but only to apply a finishing product. His evidence was that the product, Quartzon, was an aesthetic render and not intended to be a waterproofing product.
Was Mr Holmes’ work defective or incomplete?
49. The QBSA’s case on this issue can be distilled to 2 grounds:
a. Failure to comply with contractual requirements; and
b. Failure to comply with manufacturer’s product guidelines.
50. Despite the fact that these grounds occupied much of the QBSA’s written and oral submissions at hearing, neither ground was articulated in the QBSA’s statement of reasons or its amended statement of reasons.
51. In its written submissions, the QBSA argued that Mr Holmes’ building work fell within category 1 of “defective building work” as defined in the Rectification of Building Work Policy approved by amendment to the QBSA Regulation 2003. Category 1 building work includes building work that is faulty or unsatisfactory because it adversely affects the functional use of the building. Examples given in the Policy were “leaks in roofs, showers, doors windows or walls”, “extensive cracking or distortion of wall or ceiling lining”, “shrinkage or thermal movement” and “extensive cracking or dislodgement of floor or wall tiles”.
52. The QBSA further submitted that:
a. defective building work included circumstances where there was a failure to comply with contractual requirements;
b. a failure to have regard to a manufacturer’s instructions was indicative, though not conclusive, that the work carried out was defective. If the works did not comply with the manufacturer’s instructions, it was incumbent on the contractor to demonstrate that the alternative method he had chosen was a satisfactory and acceptable method;
c. Mr Holmes’ work was defective because he was aware of cracks in the pool before he carried out the work but he did not have sufficient regard to the cracks and his waterproofing was inadequate, causing water egress or leaks from the pool;
d. Mr Holmes’s failure to apply Silasec or other waterproofing agent to a single crack he observed on the external wall of the pool constituted a failure to comply with the manufacturer’s guidelines, normal industry practice and the contract, and was therefore defective work.
53. Mr Holmes submitted that:
a. His work was neither defective nor incomplete;
b. He complied with the contractual requirements, which did not involve waterproofing;
c. He complied with the manufacturer’s guidelines for the product;
d. He complied with normal industry practice;
e. The Quartzon finish he applied has showed no indication of failure or delamination;
f. If waterproofing was required at all, it was the responsibility of the principal contractor who built the pool;
g. He was a qualified solid plasterer, not a licensed waterproofer, and relied upon the builder and engineer to decide whether waterproofing was necessary;
h. In any event, waterproofing was unnecessary for a sprayed concrete pool shell;
i. He was directed by the builder to continue applying the Quartzon product after he had notified the builder of a crack he observed in an external wall of the pool; and
j. The leaks were caused by things other than his work.
54. The QBSA relied upon evidence from:
a. its inspector, Mr Hulme;
b. the engineer, Mr Goddard; and
c. a swimming pool construction contractor, Mr Bailey.
55. Mr Holmes relied upon evidence from himself and his labourer, Susan Collins.
56. The QBSA inspector, Mr Hulme’s, first report dated 1 October 2007 concluded that:
a. “There was a small amount of cracking (shrinkage cracks) noticed after the shell was formed”;
b. “Significant water leakage notices through the pool walls; this was a result of broken pipe work”;
c. “Water egress is occurring from either the failed waterproofing or leakage in the pipe work”; and
d. “Kemp was not responsible as he only carried out construction of the shell”
57. Mr Hulme’s second report dated 19 January 2008 concluded that:
“water egress is occurring from either failed or lack of waterproofing or leakage in the pipe work through the shell of the pool”.
58. I refer to Mr Hulme’s oral evidence later in these reasons.
59. Mr Bailey had been inspecting pools for about 6 years and had held pool licences since 1994. His report to the QBSA dated 9 February 2008 stated:
“Re: testing of pipe work - 2 Woodwark Crescent Cannonvale
Pipe work and main drain tested for leaks. One leak was observed, due to damaged/split secondary line to main pool pump… The water feature pump suction points in pool are too close together at 600mm, as per Standard has to be a minimum of 1mt apart”.
60. In cross examination Mr Bailey conceded that:
a. He had not pressure tested the pipes or drained the pool during his inspection;
b. The pipe work had nothing to do with Mr Holmes because it was installed by others;
c. the internal finishes applied by Mr Holmes were not delaminating or failing;
d. the standard of Mr Holmes’ finish was fine;
e. He did not see the internal walls of the pool before Mr Holmes carried out his works so had no personal knowledge of whether there were any visible internal cracks at that time the works were carried out; and
f. A sprayed concrete pool shell can develop shrinkage cracks if it dries too quickly after the concrete is sprayed.
61. Mr Goddard was a structural engineer. It emerged that he had prepared the structural drawings for the proposed concrete block pool on the site which did not proceed. Those drawings contained a note requiring waterproofing to be applied. It was those drawings that Mr Holmes provided his first quotation for. However the pool in those drawings was never constructed. The construction method eventually used changed to a sprayed concrete method. The only drawings in existence for the pool constructed, a sketch plan, did not contain any reference to waterproofing.
62. On 5 June 2007, Mr Goddard was engaged by Hank to prepare a report on leaks in the pool. The report stated:
“The cracking appears to be shrinkage cracking only, no movement in the footings or cracking in the footings was observed. The cracks would be considered minor and not affecting the structural adequacy of the pool at this stage. From the information provided, the cracks were apparent before the pool was waterproofed and rendered. The cracks should have been addressed and sealed at the waterproofing stage. … We believe the main cause for the leaking on the outside of the pool is that the waterproofing inside the pool was inadequate to seal all the shrinkage cracks, which are common in concrete” [underlining added]
63. The oral evidence demonstrated that the report was flawed in a number of respects. First, when Mr Goddard referred to “from the information provided” he was relying entirely on hearsay. He had no personal knowledge about whether there were any cracks visible in the pool walls before Mr Holmes carried out his work. Second, in referring to the “waterproofing stage”, his report was based on an incorrect assumption that Mr Holmes had been expressly contracted to waterproof the pool. Third, he did not disclose in the report that he had prepared structural drawings for a pool on the site and that he may have inspected the pool during its construction at the request of the builder.
Did Mr Holmes comply with the contractual requirements?
64. The contract documents included the quotation of 27 March 2006 and a sketch plan. There was no reference in either of those contract documents to waterproofing.
65. Notwithstanding the absence of express words, the QBSA submitted that the words “preparation of concrete shell” in the quotation may include waterproofing, and that by failing to apply a waterproofing agent in accordance with the manufacturer’s guidelines, Mr Holmes had failed to comply with the contract.
66. The QBSA’s Mr Hulme stated in his report dated 1 October 2007 several times that a person later identified as Mr Holmes had applied waterproofing to the pool shell.
67. In cross examination, Mr Hulme admitted that at the time he wrote this report he had assumed that Mr Holmes had applied waterproofing and it had failed, because that is what he had been told by the owner and Kemp. He had also assumed (incorrectly) that Mr Holmes had been contracted to apply waterproofing based on the quotation dated 20 September 2005 which referred to waterproofing. He agreed that this quotation was irrelevant, and that the correct quotation forming the contract was the one dated 27 March 2006 which contained no reference to waterproofing, and was referred to by the owner in her complaint.
68. These flawed assumptions formed the basis of the Direction issued by the QBSA.
69. One of the issues relevant to compliance with contractual requirements was whether, despite the absence of express words in the quotation, it was necessary or normal industry practice to waterproof a sprayed concrete pool.
70. Mr Bailey initially said that it was often necessary to seal or waterproof a sprayed concrete pool in the Whitsunday area because the quality of the concrete used in that local area was often not “up to scratch”, ie. it was of poor quality. However he later conceded that under normal circumstances, you would not have to seal or waterproof the internal wall of a sprayed concrete pool unless you saw some cracking internally.
71. Mr Goddard said that in his opinion all concrete pools, whether they were block pools or sprayed concrete, should be waterproofed.
72. The QBSA inspector, Mr Hulme, had no particular expertise in swimming pools. He gave evidence that he had made enquiries of SPASA (the Swimming Pools and Spas Association), Quartzon and a local builder and that those persons had all advised him that it was not normal industry practice to waterproof a sprayed concrete shell pool.
73. Mr Holmes’ evidence was also that it was not normal industry practice to waterproof a sprayed concrete pool. He said that he had been finishing the interior of pools since 1994. In that time he had completed numerous sprayed concrete pools (at least 20 in the Whitsunday region, 20 in Victoria, 3 in Cairns and 3 in Mackay) and in none of them had he applied a waterproofing membrane or agent to a sprayed concrete pool. The advice he had received from SPASA and Quartzon was to the same effect. He had since conducted extensive research all of which had confirmed that ordinarily there is no requirement to waterproof a sprayed concrete pool.
74. When Mr Holmes started his works, the concrete pool shell had been completed by others. Even if Mr Bailey’s anecdotal experience about the quality of concrete in the local area was right, there was no evidence that Mr Holmes was aware before he carried out his work of any deficiencies in the quality of concrete used in the pool shell.
75. I find that:
a. it was not normal industry practice to waterproof a sprayed concrete shell pool;
b. it was not a contractual requirement for Mr Holmes to waterproof the internal walls of the pool before applying the Quartzon finish; and
c. Mr Holmes complied with the contractual requirements for the works.
Did Mr Holmes comply with the manufacturer’s guidelines for application of the product?
76. At the hearing, the QBSA relied upon a document annexed to Mr Holmes’ statement from the manufacturer of the product entitled “Quartzon Application Guidelines”. The manufacturer was not called. The QBSA’s original statement of reasons did not refer to the guidelines.
77. The Quartzon Application Guidelines stated:
5.1.1 All weepers must be repaired and sealed prior to application of Quartzon. Weepers can be filled with Quickset 2, Silasec or similar.
…
5.2.1 If shell requires sealing, also add “Silasec” or similar water proofing agent - follow manufacturer’s guidelines, allow to cure.
78. The QBSA submitted that Mr Holmes was aware of a crack or cracks in the pool shell before he carried out his work, and that the manufacturer’s guidelines required Mr Holmes to apply a waterproofing agent to seal those cracks or “weepers”, and that he did not.
79. However the only evidence about whether Mr Holmes was aware of any cracks or “weepers” in the pool shell before he carried out the work, was from Mr Holmes. His evidence was that:
a. before he carried out the work, he did a visual inspection of the inside wall of the empty pool shell;
b. during that inspection, he saw no cracks or “weepers” in the inside wall of the pool shell;
c. as a result, he did not consider it necessary to apply Silasec or similar waterproofing agent before applying the Quartzon finish to the inside of the shell;
d. the only crack he saw was a single fine crack on the external western wall of the pool;
e. after seeing that crack he notified the builder, Hank, who said he would contact the engineer, Mr Goddard, about it;
f. A few days later, Hank advised Mr Holmes in the presence of the owner that he had spoken with the engineer, Mr Goddard, who had advised that if there were no cracks in the footings it should not have any bearing on the integrity of the shell. Hank said “The pool shell is right to be finished”. Waterproofing was never mentioned. Relying upon that advice, Mr Holmes applied the Quartzon finish to the pool shell.
g. Quartzon is not intended for use as a waterproofing product, it is an aesthetic render;
h. he did not apply Silasec or similar waterproofing agent to the single fine external crack but instead he applied Davco Cement Fortifier to the aesthetic render;
i. he had a number of discussions with Quartzon in which he was assured that his preparation and works complied with their guidelines.
80. The QBSA’s witnesses, Mr Hulme, Mr Bailey and Mr Goddard, admitted that they had no personal knowledge of whether there were any visible cracks in the pool walls before Mr Holmes carried out the work, and whether Mr Holmes saw any such cracks. Hank and the owner were not called.
81. Mr Holmes’ evidence on this point was unchallenged and I accept it.
82. In cross examination, the QBSA’s Mr Hulme agreed that if there were no visible cracks in the internal lining of a sprayed concrete pool, there would be no need to apply a waterproof membrane to the pool.
83. Given that Mr Holmes did not see any visible cracks in the inside wall of the pool shell before he carried out the works, I find that there was no requirement for him to apply a waterproofing agent. I also find that Mr Holmes complied with the manufacturer’s guidelines for the product.
Did Mr Holmes’ work cause the defect, ie. the leaks in the pool?
84. The QBSA’s Direction stated:
“Water egress is occurring from the inside of the swimming pool, resulting in damage to the steel work inside the shell and the external render.”
85. It was undisputed that the pool leaked. The issue was whether Mr Holmes’ work caused the leaks. Although it alleged damage to steel work inside the shell, the QBSA did not adduce any evidence of this.
86. The QBSA’s evidence suggested a number of other possible causes of the leaks, including:
a. Structural cracks during construction;
b. Leaking pipe work installed by WPS;
c. If the pool shell was left for a long period before completion; and
d. If the pool was not filled quickly enough after the application of the Quartzon finish.
87. In addition, rectification work had been done to the pool since its completion by at least 2 separate contractors (by Hank in late 2007 to the outside western side of the pool shell and by Mr Bailey in August 2008 to 3 of the pool walls), making it extremely difficult if not impossible to identify the cause of the original leaks with any precision.
88. I find that there is simply insufficient evidence to prove that the works carried out by Mr Holmes, or his omissions, caused leaks in the pool. The cause of the leaks cannot on the evidence be attributed to Mr Holmes’ works alone or even as a contributing factor.
Was the decision to issue the Direction reasonable in all the circumstances?
89. The QBSA’s decision to issue the Direction was not reasonable in all the circumstances.
Other relevant matters
90. I draw no adverse inference from the fact that Mr Holmes did not file an independent expert’s report in the proceeding. He was prevented from doing so because the owner refused him access to the site.
91. The owner took steps to engage others directly to rectify the leaks. Mr Hulme of the QBSA gave evidence that the owner had advised him that the pool had been partly but not completely rectified.
92. Even if the evidence supported the making of the decision to rectify, which it does not, making an order to confirm the direction to rectify to Mr Holmes in these circumstances would lack utility.
93. After the hearing, Mr Holmes filed written submissions without leave. Those submissions opposed leave being granted to the QBSA to amend its statement of reasons on the basis that the amendments were made late, without notice and Mr Holmes had no opportunity to defend the allegations made. Further submissions were also made about the evidence. I have taken Mr Holmes’ written submissions into account in these reasons.
Conclusion
94. The matters complained of in the Direction are not as a result of defective or incomplete building work on the part of Mr Holmes.
95. The application is allowed and the direction to rectify is set aside.
96. Mr Holmes sought costs in his application. He did not provide any particulars of costs incurred and was self represented at the hearing, however his witness statement referred to solicitor’s advice.
97. I order the parties to file and serve any written submissions on costs within 14 days of the date of this order. Any decision on costs will be made on the papers.
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