Jones v Rutch Constructions Pty Ltd
[2022] QCAT 82
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jones and Anor v Rutch Constructions Pty Ltd [2022] QCAT 82
PARTIES:
ERIC JONES and LORRAINE ANN JOHNSTON (applicants)
v
RUTCH CONSTRUCTIONS PTY LTD (respondent)
APPLICATION NO/S:
BDL256-19
MATTER TYPE:
Building matters
DELIVERED ON:
3 March 2022
HEARING DATE:
7 and 8 December 2021
HEARD AT:
Caloundra
DECISION OF:
Member King-Scott
ORDERS:
1. The Tribunal:
(a) Orders the respondent pays the applicants the sum of $162,370.27 in respect of their claim by 4:00 pm 14 April 2022;
(b) Invites the parties to make submissions in relation to costs.
(c) Directs that the parties file written submissions, if any, as to costs as follows:
(i) The applicants by 4.00 pm 31 March 2022.
(ii) The respondents by 4.00 pm 14 April 2022.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND
RELATED CONTRACTS – THE CONTRACT –
CONSTRUCTION OF PARTICULAR CONTRACTS
AND IMPLIED CONDITIONS – OTHER MATTERS –
where parties entered into a building contract for
construction of a house – where directions to rectify defective work – where water and moisture ingress and rising damp still occurring – conflicting expert opinions. Respondent failed to carry out building works in an appropriate and skilful way and with reasonable care and
skill in breach of contractBuilding Act 1975 (Qld)
Domestic Building Contract Act 2000 (Qld)
Batch v Archer (1774) 1 Cowp 63
APPEARANCES & REPRESENTATION:
Applicant:
K McAuliffe – Lake of Counsel instructed by Fox Taylor Midwaters
Respondent:
J Meredith of Counsel instructed by Batthersby Legal
REASONS FOR DECISION
Introduction
[1] The applicants, Eric Jones and Lorraine Johnston, who I will refer to collectively as the “homeowners” own a residential property at Arthur Street, Caloundra. It was built by the respondent, Rutch Constructions Pty Ltd (Rutch Constructions) in 2013 on a site earlier occupied by a house which had been removed.
[2] The rectangular allotment is 607 m2 in area. The land on which the house is constructed runs from the rear which is a northerly aspect to the south which fronts Arthur Street. It was accepted that the northeast corner is 24.5 m above sea level and the southeast corner is 21.25 meters above sea level. There is a drop in height of 3.25 meters running from the rear of the property to the front of the property on Arthur Street.[1] Drainage over the allotment ranged from good to poor and runoff dispersing to the south/southwest.[2]
[1]Transcript 2-56 line 40
[2]Agreed Bundle 123
[3] Since its completion, the homeowners have complained of water ingress. They allege they first experienced moisture ingress within 6 months of taking up residence, which was in or about December 2013. They have provided an extensive and detailed history of their experiences over the period from 2014 to 2019.[3]
[3]Agreed Bundle 999 to 1102
[4] The house is described by Counsel for the homeowners as a timber framed, two-story blockwork on slab construction. It is within 700m of breaking surf. The home features a great many windows, and steel structural supports to the west, and an art-workroom which sits below ground level.
[5] On the morning of the first day of hearing I was taken, by the parties, on an inspection of the home.
The homeowners’ complaints
[6] The homeowners’ complaints relate principally to water ingress from several causes including stormwater drainage, waterproofing, window installation, external control joints as well as corrosion of steel columns.
[7] Their application sets out in Part B the List of Alleged Defects:
DETAILS OF DEFECTIVE WORK AND/OR INCOMPLETE WORKS SCHEDULE
Description of defective/ incomplete work
Builder notified of defect
Date first noticed
1
Water entry onto stairwell via upper windows frames
Yes
12/8/14
12/8/14
2
Garage lintel water ingress
Yes
24/8/14
24/8/14
3
Water ingress on ceiling and wall in mezzanine bedroom 1
Yes
24/8/14
24/8/14
4
Water ingress on work room walls lower level
Yes
12/8/14
12/8/14
5
Water entry rear door work room lower level
Yes
12/8/14
12/8/14
6
Water on mezzanine floor bed 1
Yes
2/12/14
2/12/14
7
External southwest wall render cracking and delaminating
Yes
17/6/15
17/6/15
8
Water ingress on floor upper level living
Yes
22/6/17
22/6/17
9
Water ingress on floor in lower living area
Yes
28/3/17
28/3/17
10
Water ingress in TV room upper level
Yes
18/10/17
18/10/17
11
Water ingress on floor in workroom lower level
Yes
18/10/17
18/10/17
12
Water ingress in kitchen upper level
Yes
22/6/17
22/6/17
13
Water ingress in front entry door level
Yes
4/9/17
4/9/17
14
Undisclosed variations of plans and variations
Yes
1/5/17
4/5/17
15
Defective/non-compliant site drainage
Yes
13/6/19
28/3/17
16
Storm water drainage/failure to follow plan requirements
Yes
13/6/19
28/3/17
17
Subsoil drainage impacting on foundations and building
Yes
13/6/19
13/6/19
18
Incorrect installation of slab vapour barrier allowing rising damp
Yes
13/6/19
13/6/19
19
Retaining wall ground level defective waterproofing allowing moisture and water to enter building
Yes
13/6/19
28/3/17
20
Window installation - fixing throughout building allowing moisture to enter
Yes
13/6/19
2/12/14
21
External render control joints and paint membrane system defective
Yes
13/6/19
2/12/14
22
Structural steel columns upper level corroding and not complying with design drawings
Yes
13/6/19
1/5/17
23
Moisture and efflorescence is evident on the slab edge upper level rebate. Waterproofing and weatherproofing of suspended reinforced concrete slab cannot be relied upon to protect the reinforcing steel from corroding
Yes
13/6/19
1/5/17
[8] The Homeowners allege that the cause of the defects was a failure by Rutch Constructions to comply with its obligations under the contract and breaches of implied warranties under the now repealed Domestic Building Contract Act 2000 (Qld) (“DBCA”). There have been many attempts by Rutch Constructions to rectify the problems. They are detailed below.
The Contract
[9] The parties agree that the Contract was contained in the following documents:
(a)Master Builders Residential Building Contract Schedule, signed 21 April 2013. [4]
(b)Master Builders Residential Building Contract General Conditions.[5]
(c)Plans - Taylor’d Distinction Architectural Design Drawings (1211-1236 A1A12) [6]. and
(d)Specifications - Rutch Constructions Quote No. RC 238B (10 pages).[7]
[4]Agreed Bundle 27
[5]Agreed Bundle 39
[6]Agreed Bundle 54.
[7]Agreed Bundle 81.
[10] In addition to the above, Rutch Constructions was provided the following which informed the work to be done under the contract:
(a)Caloundra Building Approvals Development Application Notice (the DA)[8], setting out the relevant Building Conditions 12 required by the DA; and
(b)Geo Consulting Soil Investigation & Classification Report dated 7 February 2013[9], setting out relevant site conditions.
[8]Agreed Bundle 93.
[9]Agreed Bundle 123.
[11] The usual warranties are found in the contract, Rutch Construction warranties are in clause 10 and are as follows:
10.1 The Contractor’s warranties
The following warranties are incorporated into the Contract under Part 4 of the Act:
(a) The Contractor will carry out the Works:
(i) in an appropriate and skilful way;
(ii) with reasonable care and skill;
(iii) in accordance with the Plans and Specifications ; and
(iv) in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975;
(b) Materials supplied by the Contactor for use in the Works will be good and suitable for the purpose for which they are to be used and, unless otherwise stated in the Contract, will be new; …
…
(d) If the Works consist of the erection of construction of a detached dwelling …. the Works will be suitable for occupation when the Works are completed.
[12] In addition to the general warranties, the Rutch Construction’s Quote provided expressly for compliance with the Building Code Australia (BCA) and all relevant standards. Clause 10 of the Quote RC 238B states:
The whole of the works shall be constructed in accordance with the Architectural Plans, Structural Engineering Plans including amended pages S1 & S2, Soil Test, Building Code of Australia and all relevant codes, acts and standards.
(bold as in original).
[13] It became an issue in during the hearing whether the Australian Standards were guidelines only.[10] The homeowners submit that:
(a)the respondent has expressly incorporated them into the contract; and
(b)in any event, the non-compliances with relevant Australian Standards and the BCA amounts to defective work, as the non-compliances caused damage to the applicants’ home and/or potentially shortened its lifespan.
[10]Rutch Constructions’ submissions [155]
I accept the homeowners’ submission.
[14] The following provisions of the DBCA are relevant:
43 Compliance with legal requirements
The building contractor warrants the subject work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975.
44 Standard of work and exercise of care and skill
The building contractor warrants the subject work will be carried out—
(a) in an appropriate and skilful way; and
(b) with reasonable care and skill.
45 Adherence to plans and specifications
(1) This section applies to a regulated contract if plans and specifications form part of the contract.
(2) The building contractor warrants the subject work will be carried out in accordance with the plans and specifications.
46 Suitability of premises for occupation
(1) This section applies to a regulated contract if the subject work—
(a) consists of the erection or construction of a detached dwelling to a stage suitable for occupation; or
(b) is work intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation.
(2) The building contractor warrants the detached dwelling or home will be suitable for occupation when the work is finished.
[15] Particularly relevant to the issues in this case is section 53 which provides:
53 Foundations data
(1) This section applies if the subject work proposed for a regulated contract—
(a) requires the construction or alteration of footings, or a concrete slab, for a building; or
(b) may adversely affect the footings of a building or a concrete slab forming part of a building.
(2) Before entering into the contract, the building contractor must obtain the foundations data that is appropriate for the building site, having regard to the following—
(a) the Building Code of Australia.
(b) the need for a drainage plan.
(c) the need for engineer’s drawings and computations.
(d) the need for information on the fall of the land at the building site. Maximum penalty—100 penalty units.
….
History of complaints
[16] Both Mr Jones and Ms Johnston filed affidavits and gave oral evidence. I refer to Ms Johnston’s evidence in detail only because she seems to have been the principal recorder of events.
[17] Ms Johnston in her statement of evidence said that in mid 2014 she first noticed water running down the internal wall and pooling in the stairwell. Water was also entering the mezzanine and ground level art room doorway at the rear of the home.[11] She states that this was the beginning of a systematic series of water leaks and other issues. Over the next 3 years she raised these issues with Rutch Constructions. The builder attended but she says only applied cosmetic or superficial solutions to the problems.
[11]Agreed Bundle 982
[18] By letter dated 10 July 2017[12] the homeowners wrote Rutch Constructions In the following terms:
[12]Agreed Bundle 1104
As you are aware, there are ongoing problems with:
Water
• Visible and damaging water entering on the southern side upper and lower mezzanine level
• Garage wall blistering on the southern side invisible water signs on western side
• Water penetration on the floors in a number of areas on upper and lower levels
• Blockwork cracks now worsening and causing lifting and separating of external painted render on the rear south western side
• Cracks appearing in slab on steps at western side
• Blockwork cracks on the lower rear eastern wall
Commencing early 2014 there have been at least seven attempts by you to rectify the above issues by silicone joints, drilling into the southern louver window frame, filling joints and painting to seal the cracks.
None of the above actions appear to have addressed the real an underlying cause of the damage. in fact, the problems are getting worse and more visible signs are appearing.
…
[19] The homeowners requested the Rutch Constructions to put in place plans to investigate the root causes of why the above problems were happening and actions to rectify the problems.
[20] Rutch Constructions responded by letter dated 13 July 2017[13] acknowledging that there had been some minor water penetration over the years caused by settlement cracks which had been attended to in a timely manner. To their knowledge, they had not had to fix the same area twice. They expressed the opinion that most, if not all, of the homeowners’ concerns were caused by settlement of the house which in part was due to the soil in the area being very reactive. They relied upon the fact that at every stage, the home was checked and passed by the engineer John Titmus and a Final Certificate was obtained from the Certifier.
[13]Agreed Bundle 1105
[21] The homeowners contacted John Titmus of JTC Consulting Engineers and were informed by him, after he had carried out an inspection, that there was no evidence of subsidence and that any changes made to the contractual specifications were the responsibility of the builder.[14] This was not ventilated as an issue in the current proceedings.
[14]Agreed Bundle 1003
[22] The homeowners then lodged a complaint with the Queensland Building and Construction Commission (QBCC).
[23] An inspection was carried out by the QBCC on 4 September 2017. Present were the homeowners, the builder and a friend of the homeowners Mr Greg Warren who was a registered builder.
[24] The QBCC advised the homeowners that there were limitations on their investigations as they could not undertake invasive work to investigate certain areas. However, with the agreement of the homeowners, Mr Warren did carry out an invasive investigation.
[25] The QBCC engaged Ausure Building Group to investigate water penetration. They carried out water testing by using a garden sprinkler hose to simulate rain. Water was directed at the rear windows to the upper level (internal corner above rear access door and small window) externally. The sprinkler was left on for approximately 30 minutes and during that time water was visible inside the dwelling at the following locations:-
(a)Garage area, right hand side of ceiling and wall junction (directly below where testing was being carried out).
(b)Kitchen living area upper level, approximately 300 millimetres away from window water was seeping through the polished concrete slab cracks.
(c)Sunroom directly below window, water was entering in numerous areas to ceiling and wall junctions.
(d)Entrance door rear water was also coming through ceiling and wall junction.
[26] After water testing was carried out to the rear, a small section of cement render was cut out and removed to the side of the leaking window. This was done to confirm if any waterproofing was applied, and it was confirmed that no visible waterproofing was seen only raw brickwork was noticed at time of inspection.[15]
[15]Agreed Bundle 199, 200 & 201
[27] A second area of water testing was carried out by using a garden sprinkler hose to simulate rain. Water was directed at the external wall at ground level to the front of the building and was left on for approximately 5 hours. After that time water/moisture was discovered inside the dwelling to the polished concrete. There were some concrete cracks inside, which is where water moisture was easily visible. The report contained numerous photographs depicting the various findings.[16] Mr Carpenter was critical of this method as he believed the water testing created extreme conditions far in excess of that normally occurring with heavy rain. He said that the water testing methodology illustrated in the report was inappropriate and the QBCC were incorrect to rely on it in deciding to issue the DTR. [17] The proof of the pudding is in the eating, the testing revealed the defects subsequently revealed when the windows were removed.
[16]See Report dated 23 September 2017 Agreed Bundle 192.
[17]Agreed Bundle 848 paragraph 82 & 84
[28] Following an inspection on 20 October 2017 QBCC issued a DTR on 24 October 2017[18] in respect of 6 items that identified the defective work as follows:
1. Wall - water entering between wall and ceiling mezzanine Bedroom 1.
2. Floor – water on floor mezzanine Bedroom 1.
3. Ceiling – Water penetration damage Utility Room 1.
4. Wall - water penetration Utility Room 1.
5. Floor – water entering rear doorway Utility Room 1.
6. Floor – water penetration under polished concrete floor Dining Room 1
[18]Agreed Bundle 247
[29] The QBCC gave the following direction in respect of each of the items:
The construction of the building does not meet the minimum requirements specified in the Building Code of Australia, AS 3700-2011, AS 4773.2 -2010 & AS 2047-1999 in that, windows, render and weatherproofing of the single skin masonry at the rear of the dwelling have not been installed in accordance with acceptable building practise allowing water ingress into the dwelling causing undo dampness and/or loss of amenity and deterioration of building elements.
[30] I should interpolate here that Mr Greg Warren carried out an invasive investigation on 6 September 2017[19]and found the following: [20]
(a)The cut of the recess in the slab has exposed all connections to C blocks the length of all the windows above, as well as leaving cut steel exposed.
(b)The 30 mm concrete cover over steel was cut to a depth of 55 mm demonstrated by ruler with recess chiselled out.
(c)Clear evidence of water entering under windows.
(d)Corrosion on metal post.
(e)Rotting timber.
(f)No evidence of Davco Damplex Rio waterproofing [as stated by builder].
(g)No evidence flashing or other membranes.
[19]Agreed Bundle 276
[20]It was agreed during the hearing that Mr Warren’s evidence would be factual only and any opinions he has expressed would not be relied upon, even though he was a registered builder, therefore, only his findings are referred to, his opinions have been omitted.
[31] On 27 November 2017 a further inspection was carried out by the QBCC. A report, dated 13 February 2018, listed 5 complaints.[21] Those complaints were:
(a)A contract variation to slab upper floor, steel posts and beam supporting roof changed without consent or engineering documentation.
(b)Water ingress through sliding door upper level - TV room.
(c)Upper-level water ingress through sliding door east - Kitchen.
(d)Water ingress concrete floor - work room lower level.
(e)Lower level doors not capable of stopping water and pest entry into home
[21]Agreed Bundle 249 - 259
[32] QBCC engaged Cornwell Engineers to investigate the block work steel posts and slab rebate. Cornwell Engineers produced a report dated 13 February 2017.[22] The lounge room steel column was found not to have been installed in compliance with the engineering drawings but as constructed the report found the connection acceptable.
[22]Agreed Bundle page 1428
[33] In respect to the lounge room suspended slab rebate the report found two issues. The first was that the engineer’s approved drawings did not provide for a suspended slab edge detail specific to the lounge room window and did not authorise an edge rebate for the window framing. Concrete masonry C blocks had been used instead of a formed slab edge. The rebate was unapproved. This caused structural engineering issues being:
(a)The capacity of the slab to transfer its own weight (dead load) and the load it carries to the wall has been reduced by the rebate. Nevertheless, the report found it structurally adequate.
(b)The thickness of the concrete from the top layer of steel reinforcement to the surface of the concrete was reduced by the rebate, that could result in early and/or accelerated corrosion of the top slab reinforcement. Without destructive testing the exact location of the top reinforcement could not be confirmed. At the time of the second inspection Rutch Constructions had removed the windows and wet-sealed the slab rebate with two coats of concrete sealant which has decreased the requirement for concrete to cover the reinforcement. The author believed the slab was performing within expectation. There was no need for further rectification at the time.
[34] The report opined that there was no structural degradation using C-blocks as edge formwork.
[35] In respect of the complaints 2 and 3 the inspector tested the area by hosing to simulate rain. He found that silicon had blocked up the sill channel and drainage slots, when cleared by the builder the water was free to drain. However, a visual inspection could not identify or confirm that the waterproofing to the masonry surface underneath the aluminium joinery was constructed as detailed. Having observed that the current waterproofing installation was suspect the QBCC considered the installation was performing and it was not fair and reasonable to issue a DTR.
[36] With respect to complaint number 4 the inspector noted on visual inspection evidence of rising damp and moisture within the exposed polished concrete floor slab on the left-hand side and rear of the dwelling. This complaint related to an earlier complaint. He noted that work was in progress to rectify this. Once completed the remedial work would be recovered by a statutory builder’s warranty. He did not consider it fair to issue a DTR.
[37] Complaint number 5 was investigated by hosing to simulate rain. There was no obvious water ingress from the junction of the door frames. Some water ingress occurred at the base of both entrance doors due to the omission of a waterproofing seal. However, a visual inspection could not identify or confirm that the waterproofing to the masonry surface underneath the aluminium joinery was constructed as detailed.
Rectification work carried out by Rutch Constructions
[38] Rutch Constructions, initially, organised another builder to quote on carrying out the rectification work. Advanced Buildings were engaged and attended the home between 6 and 14 December 2017. However, the work did not proceed.
[39] Rutch Constructions created a Scope of Works which is undated. It was quite extensive in the items to be attended to, but brief in detail.[23]
[23]Agreed Bundle 273
[40] Rutch Constructions attended the home between 19 December 2017 and 8 January 2018 and commenced rectification work on 29 January 2018. Rutch Constructions notified that they had completed the rectification work. According to Ms Johnston having advised that they had completed the rectification work they returned several times to carry out further work and in February 2018 they carried out storm water and ground works.
[41] Mr Rutch agreed that they carried out further work which was not included in the scope of works but he kept no record of that work.[24] Even though there was a direction to rectify the steel beams[25] Mr Rutch conceded that it was not included in the Scope of Works.[26]
[24]Transcript 1-90 line 1 - 4
[25]In this regard Mr Rutch may have been speaking of the steel posts that are referred to in Item 12 &13
[26]Transcript 1-90 line 25 -30
[42] In February 2018 Ms Johnston sent photographs of water inside the home to the QBCC. This continued to be a problem through March to June 2018. In June Mr Rutch attended the property at the invitation of Ms Johnston to observe water ingress in the lower-level living area. He allegedly dismissed this as ‘normal atmospheric moisture’. However, in cross-examination he agreed that after the rectification work had been completed there were still problems with water ingress.[27]
[27]Transcript 1-90 line 20
Post rectification inspections
[43] Mr Helisma’s report dated 2 March 2019 related to inspections that predated the rectification work. Mr Carpenter’s report related to inspections after the rectification work had been completed.
[44] In the joint report Mr Helisma relied upon historic photographs of evidence of water ingress. The photographs were taken before and after the rectification work had been completed.[28] In addition Mr Helisma reinspected the lower ground floor and external site conditions for his second report, dated 2 October 2019 and confirmed that rising damp matters were still prevalent. This inspection did not cause Mr Helisma to change the Scope of Works he has proposed.
Assessment of witnesses
[28]Agreed Bundle 1097-1101
The Homeowners
[45] The homeowners have provided an extensive history of the problems they have endured since construction ceased. Their affidavits are extensive and descriptive and supported by numerous photographs.[29] I found them both to be honest and careful in giving their evidence.
[29]Agreed Bundle Eric Jones 981 – 1229 and Lorraine Johnston 1230 - 1477
Mr Rutch
[46] Mr Rutch’s affidavit was confined to identifying the contractual documents, an acceptance that any defective building work had been attended to and was no longer defective as it had been approved by the QBCC. In respect of allegations of any other defective or incomplete work he relied upon the independent expert evidence of Mr Carpenter of Datum Building Consultancy Pty Ltd and did not comment on it himself.
[47] His oral evidence was defensive, notably for his refusal to even concede obvious facts. He was also confused in giving some of his evidence and, it was obvious that he had difficulty in remembering some events. Mr Rutch had a hearing impairment, and it was obvious that he had difficulty in hearing some of the evidence despite attempts by court staff to accommodate his problem with assisted hearing devices. Nevertheless, when giving evidence I was satisfied that his hearing did not impact on his understanding of the questions.
Mr Warren
[48] I confined Mr Warren’s evidence to his observations and although he was a registered and experienced builder the parties accepted that his evidence should be confined to his observations, and his opinions where expressed would not be admissible. After making those rulings, his evidence was not challenged and he was not cross-examination.
Mr Helisma
[49] The homeowners engaged Building Investigation & Consultant Qld Pty Ltd. Mr Martin Helisma prepared a very extensive and detailed report dated 8 March 2019[30] (BICQ #1 report) and an addendum to that report dated 2 October 2019 (BICQ #2 report).[31] He inspected the house on 2 March 2018 and 28 September 2018.
[30]Agreed Bundle 285
[31]Agreed Bundle 737
[50] In his report dated 8 March 2019 Mr Helisma discussed the drainage and Rutch Constructions’ non-compliance with the plans and specifications and relevant laws and legal requirements.
[51] Mr Martin Helisma has extensive formal qualifications in building and construction as well as 45 year’s experience in the industry.
Mr Carpenter
[52] Mr Gary Carpenter of Datum Building Consultancy Pty Ltd was retained by Rutch Constructions to investigate the homeowners’ complaints. His report is dated 8 April 2020. Mr Carpenter has 46 year’s experience in the construction industry.
The expert evidence
[53] Despite their extensive investigations, there was very little that the respective experts agreed upon. They met in conclave and produced an experts report dated 25 February 2021 and gave their evidence together. At the end of the day very little was agreed upon and their opinions remain as diametrically opposed after they gave evidence as it had before.
[54] Because there is very little expert agreement it has become necessary to examine in some detail the respective expert reports and their opinions. It has also brought into sharp focus the observations of the homeowners and their detailed record of events supplemented by the numerous photographs.
[55] Since the rectification work was completed by Rutch Constructions the homeowners claim to have experienced further water inundation which they have particularised. Each description is supported by photographs.[32] These complaints are the basis of the current application even though the causes may be a continuation of the original defective and incomplete work and/or the rectification work itself.
[32]Agreed Bundle 1097-1101
[56] The areas they say are currently most affected by moisture are:
(a)the exterior, the Eastern side of the home (next to the water tank);[33]
(b)the exterior, the Western side of the home (waterproofing render);[34]
(c)the art workroom/workshop on the lower level;[35]
(d)the living area/art studio on the lower level (at the North-east end of the house);[36]
(e)the master bedroom/bedroom 1 on the upper level;[37]
(f)the upper-level lounge/dining area, including the south facing bank of windows and adjacent areas;[38] and
(g)the kitchen.[39]
[33]Agreed Bundle 309 & 1102
[34]Agreed Bundle 1537.
[35]Agreed Bundle 321 & 1097- 1098.
[36]Agreed Bundle 1100-1101.
[37]Agreed Bundle 1555, 1568, 1586
[38]Agreed Bundle 1558, 1565, 1582, 1584, 1587 & 1588
[39]Agreed Bundle 1062 (Photo top right of p. 31 of the “Post rectification Book”, Marked for ID), 1556, 1559, 1570 & 1585.
[57] Some of the issues that preceded the rectification have now ceased to be a problem, the current proceedings are confined to allegedly existing problems which have not been rectified as well as problems that have arisen from the rectification work itself.
[58] The report considered the alleged defects under the following headings with the Items 1 to 4 considered collectively under Damp and Waterproofing:
(a)Damp and Waterproofing
(i) Item 1 Defective External Site Drainage - influencing rising damp.
(ii) Item 2 Defective Surface Water Drainage – influencing rising damp.
(iii) Item 3 Defective Subsoil Drainage – influencing damp.
(iv) Item 4 Defective Underslab and Slab edge Moisture Barriers – influencing rising damp.
(v) Item 5 Defective Retaining wall waterproofing and drainage causing water ingress to the lower level.
(vi) Item 6 Defective and Non-Conforming Stormwater Drainage System-
A.Not installed in accordance with the Building Approval and legal discharge point.
B.Creating a nuisance within the property and adjacent property.
(vii) Item 7 Defective waterproofing due to sill installation - allowing water and/or moisture ingress.
(viii) Item 8 Defective weatherproofing around door and windows due to non-conforming Detailing of Flashings and Sealants allowing water and/or moisture ingress.
(ix) Item 9 Defective weatherproofing at External Render Control Joints and Paint System.
(b)Suspended Slab Engineering
(i) Item 10 Defective formation and weatherproofing of the first-floor window wall rebate.
(ii) Item 11 Defective concrete cover over the suspended slab reinforcing steel.
(c)Steel Columns.
(i) Item 12 Defective structural Steel columns causing corrosion.
(ii) Item 13 Defective Structural steel Column bolt embodiment into concrete.
Measurement of moisture
[59] Evidence of moisture and water ingress comprised the homeowners’ direct evidence, the experts observations, photographs of the affected areas taken by the homeowners and the experts as well as the results of moisture indicators.
[60] Both Mr Helisma and Mr Carpenter used moisture reading instruments to gauge the degree of moisture present.
[61] There was much criticism and disagreement as to the usefulness of these instruments and their accuracy when assessing wood and concrete. It was agreed that their effectiveness was in being indicative of where the moisture was coming from.[40] Mr Helisma noted that at the time of his examination the moisture reading in the skirting was 90.2% and 29.3%[41] respectively at the northeast corner. I appreciate that the moisture measuring devices may be problematic, but I accept that they are useful as an indicator of changes in moisture levels.
[40]Transcript 2 -11 line 40
[41]Taken 70 mm above the other reading
[62] The photographs depict:-
(a)discoloration of concrete surfaces at the slab edge and moisture wicking up shrinkage cracks.[42]
(b)Metre readings of 90% in the front left corner of the and higher than normal moisture readings ranging from 15% to 20% in the external wall skirting boards along the north and east elevations.[43]
(c)Comparative relative moisture readings were observed at the slab edge and at the centre of the slab panel. The elevated moisture readings were depicted in the photographs with relative readings of 690 at the edge compared with 499 in the centre of the slab panel.[44]
(d)The readings in the preceding paragraph were significantly higher than those taken on the ground level slab in the workshop area which ranged between 428 at the retaining wall to between 238 and 196 away from the retaining wall.[45]
[42]Agreed Bundle 302
[43]Agreed Bundle 303
[44]Agreed Bundle 303
[45]Agreed Bundle 304
[63] Mr Helisma believed that normal concrete readings were expected to range between 150 and 300. Elevated readings above 300 were indicative of an increased moisture regime. He noted that moisture content varied seasonally, and levels taken in the wet season would be higher than those taken in a dry season however in each case the readings remained above normal.
[64] Mr Carpenter was critical of using moisture reading devices calibrated for timber being used to indicate rising damp in a concrete slab.[46]
[46]Transcript 2-12 5
Damp and waterproofing
[65] Mr Helisma believed there were five major defects that caused or contributed to the issue of rising damp and water ingress occurring within the living areas, garage and workshop. They were:
(a)Inadequate site drainage preventing water from draining away from the building causing ponding creating high moisture conditions next to and under the footing and slab system.
(b)Non-compliant stormwater drainage installation discharging into an unapproved and/or illegal discharge point resulting in surface water becoming a nuisance around and on adjacent properties. In addition, the inadequate stormwater drainage increases the amount of water and the moisture conditions around the footing and slab system.
(c)Incorrect subsoil drainage installation that introduces water into the subsoil foundations creating high and abnormal moisture conditions around and beneath the building.
(d)Incorrect installation of Underslab Moisture Barriers allowing rising damp and slab edge moisture conditions to occur.
[66] Mr Helisma’s position was that there was inadequate site drainage which prevented water from draining away from the building causing water to pond thus creating high moisture conditions next to and under the footing and slab system. This arose because Rutch Constructions failed to comply with the Contract, Plans, Specifications and Building Conditions.
[67] Mr Carpenter says that the property is built on a sloping site and surface water runs downhill and that is the cause of water inundation from neighbouring properties. Landscaping to the property adjacent to the walls of the property should include drainage at the top of and behind the retaining walls to catch rainwater and control seepage from upper levels. Such drainage, Mr Carpenter said was not evident during his inspection.
[68] I note that landscaping including retaining walls at the northern and eastern side of the courtyard was carried out in December 2013 and January 2014 by independent contractors in conjunction with Rutch Constructions prior to and up to the time of the handover of the property.[47] I, note the homeowners submission that ponding only began after 2017 even though the retaining wall had been there since 2013/2014.[48]
[47]Transcript 1-18 and 1-19
[48]Agreed Bundle 1350
[69] Mr Carpenter agreed with Counsel that overland flow of water was a matter that a builder had to consider when constructing a building, it was the builder’s responsibility. However, he contended that where there was development of the property, in this case the construction of retaining walls by others it may not be his responsibility.[49]
[49]Transcript 2-17 lines 25 – 45 and 2-18 lines 1 to 2
[70] Counsel for Rutch Constructions for some time developed the theme with Ms Jones that the water came from the street on the north-eastern and northern side of the property and that was the cause of the pooling around the water tanks depicted in the photographs. Ms Jones testified that she had never seen water entering the property from that direction. From her observations the water came from the water tank.[50]I accept her evidence on that point.
[50]Transcript 1-54 line 35
[71] The surface drainage system consisted of roof down pipes which ran down the back to rain water tanks situated on the eastern side of the house, a line then ran from the tank to the north across the front of the building out on to the street and that line collected water from down pipes on the way through.[51] The system was described as a sealed or charged system which meant that the water remained where it discharged. When it exceeded that height, it supposedly was to drain out to the street.
[51]Transcript 2 -13 lines 40- 45
[72] The site contour plan provided for two 100 mm diameter PVC lines running from the tank to the street in a 1:100 mm fall. Only one was installed. Mr Carpenter agreed that if there was no water coming out of the pipe there would be a problem. Following the rectification work Mr Helsima noted that the storm water was to discharge to the street, but it now discharges to the rear of the property, through stop valves.
[73] Mr Helsima noted that there was no surface water collection provided in the north-east corner to drain that part of the site which in his opinion increased the amount of water and moisture conditions around the footing and slab system.
[74] Rutch Constructions introduced new exposed gravel drains along the north elevation this was not part as part of its compliance with the Direction to Rectify (DTR). These are not documented but were referred to by Mr Rutch in his evidence.[52]The DTR made no specific reference to subsurface drainage. All drainage is now directed towards the rear of the site. Both experts agreed that this was the case. [53] This water now accumulated in a rubble pit at the rear of the site.
[52]Transcript 1-86 and 1-87
[53]Agreed Bundle 320 and 881
[75] Building Conditions that Mr Helsima asserts Rutch Construction failed to comply with are detailed in his report 8 March 2019.[54]There are numerous breaches.
[54]Agreed Bundle 299
[76] Mr Helsima observed that there were no stormwater pits to join the area along the front north elevation and around to the east elevation where there was a timber overlaid concrete patio. under normal conditions, and over land flow path down the side of the building should have been provided. However, he noted that the over land flow path had been obstructed by the concrete patio slab.
[77] Mr Helisma believed:
(a)a 450mm x 450mm x 450mm pit should have been installed adjacent to the patio graded 1:100 towards the inlet.
(b)Other surface drainage should be connected to this pit e.g. a grated strip drain.
(c)The pit should then be piped with DN 150[55] to a discharge point approved by the Local Authority ensuring that overflows in major storm events do not present a hazard to people or cause significant damage to property.
(d)The specification in the contract drawings requires the roof water to be discharged to the road via 2 x 100 mm PVC pipes. Only one pipe has been installed.[56]
[55]Pipe size 150 mm
[56]Agreed Bundle 308
[78] Additionally, Mr Helisma noted that the site notes require Surface drainage to discharge evenly within the site and without nuisance to adjoining properties.[57] he observed that this has not been adequately addressed after completion of the works or after rectification.
[57]Agreed Bundle 55
[79] He observed that the rectification work included the construction of an on-site rubble dispersion pit which was not capable of preventing flooding as well as causing a nuisance to the property at the rear of the site. Photographs taken in June and September 2018 depicted the extent of flooding.[58] In summary, he believed the as constructed works including rectification works do not meet the deemed to satisfy requirements of AS3500 or the requirements of the Building Approval.
[58]Agreed Bundle 309
[80] Mr Carpenter says that there is no evidence that excess water affects the walls to the north, west or south elevations due to the natural fall of the land. He referred to the northeast corner where he says that the ground slopes towards the building but says that was caused by landscaping carried out by the owners.
[81] The Building Conditions of the Contract No 14 required Stormwater system to be designed to AS3500.5.[59] These requirements, according to Mr Helisma have not been addressed either during construction or rectification. Mr Helisma believed the installation of a rubble dispersion pit was not capable of preventing flooding and was causing a nuisance to the rear of the property.[60] Photographs taken in June and September 2018 depicted the extent of flooding.[61]
[59]Agreed Bundle 98
[60]Agreed Bundle 1519
[61]Agreed Bundle 309
[82] Mr Helisma also says the site drainage on the east elevation of the building is obstructed by the concrete patio pavement. Additionally, the ground level is lower than the patio creating ponding of water. This is depicted in the photographs. The only drainage point is a grated strip drain connected to a 100 mm PVC pipe. Water travelling along the retaining wall footing enters the PVC pipe at the T section and is directed towards the tanks on the eastern elevation. Mr Helisma considered a grated drainage located at the step should have been installed the length of the retaining wall rather than relying agricultural drainage to collect surface water. He considered that current drainage arrangement directed water into the subsoil which heightened the levels of abnormal subsoil conditions.
[83] His inspection revealed the presence of high moisture conditions/water in the area of rising damp as depicted in photographs attached to his report.[62]
[62]Agreed Bundle 312
[84] Mr Helisma noted the DTR 5 which found:
The construction the building did not meet the minimum performance requirements specified in the Building Code of Australia in that the minimum floor slab height had not been achieved at the front of the building and inadequate waterproofing of the single skin masonry being (sic) provided allowing water ingress into the lower level of the dwelling causing undo dampness and/or loss of amenity
[85] The National Construction Code 2013 3.1.2.3 Surface Water Damage (b)(ii) which required that the height of the slab-on-ground above external finished services must be not less than 50mm above impermeable- paved or concreted areas. Rutch Constructions carried out rectification work at the front north and east elevations of the building. It included removing the external pavements to expose the footings and external block walls followed by waterproofing the top of the footing and junction of the wall, installing a new exposed aggregate concrete pavement including a strip-drain and surface gravel drainage located between the retaining wall and lower pavements.
[86] I note that in cross-examination Mr Rutch discussed the excavation of the agricultural pipes on the southeast side of the house near the room next to the garage and found them to be clogged with fines.[63] It was cleared and re-waterproofed. Questioned further, he surmised that the clog was down at the gravel pit because there was a large pot sitting on top of the overflow. It is not at all clear from his evidence but appears that a pipe was inserted to run across of the back of the rubble pit to the western side. No documentation of this rectification or variation of the drainage system was implemented.[64]
[63]Transcript 1 - 87 lines 1-15
[64]Transcript 1 – 88 lines 1 - 10
[87] Mr Helisma observed the new pavement directs water into subsoils, the isolation joint had not been properly sealed at the junction of the path and external walls to comply with the architect’ specifications. The down pipe had not been lagged and sealed to isolate the pipe from the concrete as required by AS2870 and AS 3500.5.[65]
[65]Agreed Bundle 314
[88] After perusing photographs provided by the homeowners Mr Helisma determined that the underslab damp-proofing membrane was not installed in accordance with the NCC making the ground floor slab susceptible to rising damp. Further, he believed the waterproofing and or the membrane was also defective as it did not comply with NCC 3.2.2.6 Vapour Barrier (including AS 2870).
[89] Photographs taken by the homeowners during construction indicated that the vapour barrier had not been installed continuously under the slab and footings and did not extend to ground level as required. Mr Carpenter relies upon the fact that the pour was approved by the engineer.[66] Mr Carpenter accepted that the homeowners’ photographs showed that the DPM (Damp Proof Membrane) was not continuous below the foundations. He expressed the opinion that unless there was evidence of water pooling below the foundations the susceptibility of the foundations to allow damp to rise into habitable areas was so low as to be inconceivable.
[66]Transcript 2-74 line 35
[90] Mr Helisma, on the other hand believed groundwater or moisture can transport up through the slab and slab edge and the blockwork will also draw moisture up when allowed to accumulate at the footing and slab edge interface.[67]
[67]Agreed Bundle 318
[91] In addition to the waterproof membrane, the external painted membrane/render concealed below the pavement level, according to Mr Helisma, had not been completed in accordance with AS4773-2010. Mr Helisma says that it should have been installed continuously extending to the top of the footing and underslab vapour barrier, where external pavements were proposed and a minimum of 50 mm below the slab level elsewhere. Again, this has been depicted in the homeowners’ photographs.
[92] Mr Carpenter accepted that previously it may have been the case that damp transmitted from the slab edge horizontally prior to Rutch Constructions installing the membrane on the slab edge under the QBCC direction. He considers that since that work was carried out edge damp had been prevented and there was lack of any visible evidence of water ingress.
[93] Mr Helisma advised that stormwater drainage was specified to be charged to the tanks with the overflow to a legal discharge point at the street kerb. All other subsoil surface drainage was to discharge to an out fall at the rear of the property. Because of the drainage issues Rutch Constructions changed this to redirect all the drainage to the rear of the site. Mr Carpenter agreed that this had occurred.[68]
[68]Agreed Bundle 881
[94] During his inspection Mr Helisma observed evidence of high moisture conditions and water ingress in the workshop room on the lower level. Photographs supplied by the homeowners depicted water entering from beneath the stairs. During his inspection on 2 March 2018 external pipework and the construction joint in the line with the workshop retaining wall was exposed. I should interpolate here that this retaining wall was part of the original construction and not part of the landscaping.[69]
[69]Transcript 2-20 line 45
[95] The PVC pipe which Mr Helisma assumed collected water from behind the retaining wall and possibly from the front of the building was connected to an agricultural pipe. he noted the block wall was overhanging the footing which did not appear to have a waterproof membrane continuing down the face of the footing. There was no evidence of vapour barrier being installed and returning up the face of the footing. Photographs provided by the homeowners depicted the waterproofing product being painted over unprepared surfaces.[70] This was an attempt to stop water ingress into the workshop area.[71] Mr Helisma was of the opinion the waterproofing performed as depicted in the photograph did not comply with NCC Part 2.2 Damp & Weatherproofing & 3. Part1 Site Preparation.
[70]Agreed Bundle 321
[71]Agreed Bundle 322
[96] Mr Carpenter's response was that he had not seen any evidence of water ingress occurring as a result of the affected building works since Rutch Constructions had carried out work in accordance with the QBCC DTR dated 24 October 2017.
[97] Mr Helisma recorded relatively high moisture conditions out of the stairs and internal rear walls after the rectification work.[72]
[72]Agreed Bundle 1517
Window flashings, sealant and installation detailing
[98] Mr Helisma referred to a photograph which he took as an example which showed that sealant was missing which was a departure from NCC Part AS2047 industry practice.[73] He assumed that other windows would have been treated in the same manner. The windows had been installed without any tanking and sealant between the window frame and the reveal substrate. Waterproofing had not been installed below the infill which allowed moisture to be trapped and migrate inside. He was informed that two coats of waterproofing product had been applied on the same day. Mr Helisma advised that they required dry film thickness (DFT) could only be achieved with the application of three coats. He noted that the water proofing had not been applied to the concrete substrate prior to the infill being installed. He noted green algae was depicted between slab and the blockwork. This was likely due to the concrete substrate not being waterproofed allowing moisture to wick back into the unsealed termite barrier/DPC. From photographs Mr Helisma formed the opinion that the waterproofing was defective because it did not extend the full width of the block wall or return around to the face of the external wall.[74]
[73]Agreed Bundle 323
[74]Agreed Bundle 326
[99] The threshold weather strip sill had not been sealed allowing water ingress. This was tested by Mr Helisma who poured a cup of water on the junction of the sill the water immediately flowed inside. To rectify it would be necessary to remove the sill and jambs and properly seal all junctions of the aluminium joinery with the door reveals and concrete slab.
[100] Dec Con Pty Ltd was commissioned to determine whether the external render and paint coating was compliant. It identified that the DFT reading recorded 50 microns. Additionally, they tested the thickness of render where delaminated and found it was 4mm thick. Dee Con believed the coating applied was not in accordance with the manufacturers specification as that specification required a DFT of two coats at 120 microns. Their conclusion was that the cause of water ingress to several areas was due to the lack of thickness of the paint coat applied. They also expressed the opinion that an expansion joint was required at the first-floor level. Mr Helisma disagreed with that assessment in that the manufacturers specifications required 6 millimetres minimum coverage. In his opinion the correct paint system comprised of three coats of paint consisting of first coat of Accra primer based followed by a second and third coats of Accra shield with the recommended minimum coverage DFT of 156 microns. Therefore, to comply with those recommendations Rutch Constructions needed to apply 2 further coats.[75]
[75]Agreed Bundle 330
[101] Due to the requirement to remove and reinstall store windows and extend paint membranes to marry with the moisture barrier at the slab/footing edge Mr Helisma believed an additional coat of paint would be needed to be applied to the entire building.
[102] In respect of the control joint, Mr Helisma observed that they had been saw cut and not filled with sealant prior to repainting, consequently, gaps have been left which would allow water moisture to enter behind the paint and render system. Again, he noted the presence of green algae.[76]
[76]Agreed Bundle 331
[103] Mr Helisma referred to the HB161-2005 Guide to Plastering[77] that specifies:
… control joints should be formed in the plaster to coincide with all joints in the structure where movement is likely to occur. They should also be formed at all junctions between dissimilar backgrounds.
Control joints may be a narrow margin (3mm to 4mm) produced or cut with a piece of blade from a masonry cutter and sealed against water ingress and airborne pollution.
After the base code is cured and dried, this groove may be filled with an appropriate sealant prior to the overall application of the finish coat.
[77]Agreed Bundle 332
[104] Photographs of the building in the course of construction revealed that control joints had not been installed to the full height of the wall and in some cases had been installed through windowsills and hood. The discontinuity prevented the wall from articulating at the location and, consequently, caused cracking in the render which could be observed in the photographs.[78]
[78]Agreed Bundle 332
[105] Mr Helisma believe the entire joint needs to be raked out to the full width of the block wall and a backing rod and joint sealant installed.[79]
[79]Agreed Bundle 334
Suspended slab engineering
[106] The upper floor level of the building consisted of a 250 mm thick reinforced concrete suspended slab. The issue in these proceedings was a change from the engineer detail to incorporate a window rebate to the Dining/Kitchen area.
[107] According to Mr Helisma the issue arose during the assessment of moisture ingress along the dining area window. Mr Helisma reported that the ‘as constructed’ formation of the rebate became a concern when Rutch Construction performed remedial works for water proofing that the slab had been cut back potentially exposing the steel.[80]The engineer responsible for overseeing the works was not aware that a rebate had been installed.
[80]Agreed Bundle 334
[108] Subsequent assessment by Concrete Scanning & Investigation Pty Ltd revealed that the concrete cover over the reinforcing steel at the slab edge window rebates was insufficient at 0 to 40mm cover. [81]
[81]Agreed Bundle 739
[109] In his second report[82] Mr Helsima noted the concrete slab at the external wall and subsoil rebate was not watertight. In those circumstances, 65mm concrete cover was necessary particularly being in 750 meters from the coastline. Mr Helsima sought the opinion of Mr John Van de Hoef of NJA Consulting who advised that if left untreated it would be expected that the reinforcing would corrode, and the concrete would spall within the life of the building – expected to be 50 years.[83]
[82]Agreed Bundle 737
[83]Agreed Bundle 739
[110] Alternative solutions to rectifying the problem were either to expose the steelwork and apply an epoxy coating and reinstate the concrete or instal an appropriate waterproof membrane and weatherproof the window subsill that would achieve an environment equivalent to a fully enclosed part of the building to meet the requirements of AS3600 Concrete Structures 4.10.3.
[111] Mr Helisma thought that was the most appropriate option. He noted that other sources of moisture required remedial work in conjunction with the above work due to poor detailing and sealing of control joints in the external slab masonry wall adjacent to the windows.[84]
[84]Agreed Bundle 740
[112] Mr Helisma inspected the works for his second report on 23 August 2019 and on reinspecting the lower ground floor level and external site conditions his early opinion was confirmed that the rising damp was still prevalent.[85]
[85]Agreed Bundle 740
Steel columns
[113] There were three still posts fitted at the rear of the building where the large bank of windows was installed. They supported the lintels above the windows. The homeowners were concerned that the work carried out did not comply with the plans and specifications. There was also water damage in the area.
[114] Following investigations moisture ingress was noted in the living room where column one was exposed at its base and was observed to be corroded. The structural steel had the onset of corrosion and the timber attached to the post supporting the window corner flashing was also rotting.[86]
[86]Agreed Bundle 341
[115] The structural steel supporting roof loads at the rear living area consist of one corner post and two posts that support the lintels.
[116] According to Mr Helisma post one design consisted of web stiffness at lintel level and a 10mm base and top plates with 6mm CFW, chemset into slab with four M12 bolts with a minimum 200mm embedment. Post 2 was specified to include 10mm base and top plates fixed with 6mm CFW[87], chemset into the block wall 130mm with four M12 bolts with a minimum 200mm embedment. Post 2 was specified to be cast into the block wall.[88]
[87]“CFW” means continuous fillet weld 6 mm thick
[88]Agreed Bundle 344
[117] As the engineer did not specify how the steel posts were to be treated Mr Helisma believed that the NCC-2013 Volume 2 Part 3.4.4 Structural Steel Members applied. That states that all structural steel members that are not built into a masonry wall must be protected against corrosion in accordance with the table specified. That table provided that where there was a severe environment, in this case within one kilometre of breaking surf, certain corrosive protection was required.
[118] Mr Helisma believed that if P2 had been properly encased within concrete with the required cover it may not be an issue that no corrosive protection had been applied, provided the paint membrane and waterproofing of the window reveals have been installed correctly.[89] He also noted that the chemset bolt fixings specified, had been reduced to two bolts with 100 mm embedment instead of four M12 with 200 mm embedment on P1.
[89]Agreed Bundle 342
[119] Mr Helsima was critical of Cornell engineers who deemed the work to be satisfactory because:-
(a)The base plate was not fabricated using 10mm plate.
(b)The bolts are only M12mm and that 60mm of thread occurs above the plate.
(c)The column has not been provided with the required corrosive protection.
(d)Only half the minimum embedment specified by the engineer has been achieved.
Further, the engineers did not provide any calculation in accordance with AS1170.[90]
[90]Agreed Bundle 343
[120] Mr Carpenter agreed that ‘as constructed’ the work was not in accordance with the contract drawings or specifications but as Cornel Engineers had signed off on it, he did not consider it an issue.[91] Mr Helisma did not refer this matter to Mr Van de Hoef for an engineer’s opinion. Failure to comply he thought would affect the longevity of the structure.
[91]Transcript 2-105 46
Resolution
[121] Mr Carpenter’s opinion does not address in any detail the numerous references by Mr Helisma in his reports of breaches by Rutch Constructions not only of the Contract, plans and specifications but also the Building Conditions, the Building Act 1975, Australian Standards and National Building Codes. Mr Helisma’s reports are indeed detailed but not prolix as submitted by the respondent. It is not sufficient to merely deny that there have been breaches as Mr Carpenter often does in his report.
[122] Mr Carpenter claims that he observed no evidence of water ingress or moisture, yet that is inconsistent with the observations of the homeowners, Mr Warren, Mr Helisma and the QBCC inspectors. Mr Carpenter criticised Mr Helisma’s reliance upon moisture meters. He suggests that to assess moisture content in concrete more strident testing is required. He refers to higher level of specific data and interpretation of that data being a scientific exercise that should be performed by experts. However, Rutch Constructions have not followed Mr Carpenter’s suggestion and no such evidence was obtained.
[123] I am reminded when assessing evidence of the oft quoted maxim that regardless of the burden of proof, the evidence should be assessed in accordance with Lord Mansfield’s dictum in Batch v Archer[92] where his Lordship said
It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted
[92](1774) 1 Cowp 63 at 65
[124] The Tribunal, therefore, is left with Mr Helisma’s moisture meter findings and his reliance upon those findings.[93]I accept Mr Helisma’s evidence. I accept the homeowners’ evidence and their photographs. It is not suggested that the photographs have been altered or do not represent what they depict. Their evidence is supported by Mr Warren who was not challenged in cross-examination. He said in his affidavit:
Since the rectification work by RUTCH in the home was finished, I have observed water ingress in all levels of the home along with seeing photos taken at different times by Eric and Lorraine. Lorraine’s art workroom is unusable and has not been addressed by the builder’s rectifications.
[93]Agreed Bundle 842 paragraph 40
[125] Mr Rutch offers no evidence in denial of the claims made against Rutch Constructions. Clearly, the workmanship up to the time of rectification was justifiably criticised by QBCC and the Ausure Building Group. The confidence expressed by the QBCC that the installation was performing after observing that the waterproofing was suspect must be doubted.[94] Additionally, even though the Building Inspector observed that there was evidence of rising damp and moisture within the exposed polished concrete floor slab on the left side and rear of the dwelling he was confident that the work in progress would rectify the problem. If it didn’t, he said then the homeowners can recover under the statutory builder’s warranty![95]
[94]See paragraph [35] above.
[95]See paragraph [36] above.
[126] In respect of the Cornwell Engineers investigation and approval of the rectification work was criticised by Mr Helisma. I some regard that may be justified. Mr Warren in his evidence (confined to his observations) observed:
The western window was removed first followed by the bank of southern windows of the building. I observed the windows being removed, half an hour later, one coat of waterproof had been laid. The flashing was laid straight on top. Even though there were significant signs of deterioration on post, timber, waterproofing was simply brushed over them without removal or treatment of the corrosion or rotten timber.
[127] That work was approved by the engineer even though he did not inspect the work prior to the waterproofing being applied. Mr Rutch in evidence explained that he had limited time being that day to take the windows out, waterproof, and then replace them. He said the engineer was running late so they proceeded with the application of the waterproofing without him inspecting the work. The engineer never had the opportunity to observe whether the surface had properly been prepared yet approved the work.[96]
[96]Transcript 1 - 93
[128] Mr Helisma prepared a Scope of Work[97] based on the findings in his two reports and the opinions he expressed in the Joint Expert Report. In monetary terms the cost of work to rectify the defects found by Mr Helisma comes to $162,370.27. The Scope of Work is very detailed but little, if any, hearing time was devoted to examining and or dissecting the costs. Mr Carpenter’s response, generally, has been to deny that the rectification work is required as he could find no evidence of defective work since Rutch Constructions carried out the rectification work.
[97]Agreed Bundle 1528 - 1533
[129] In the circumstances, I am satisfied that there is continuing water ingress and rising damp due to the failure of Rutch Constructions to comply with its obligations under the Contract and breaches of implied warranties under the DBCA. I am satisfied that the homeowners have established listed defects claimed in their application. I find that the cost of rectification is reasonable.
[130] I order the respondent pay the applicants the sum of $162,370.27 by 31 March 2022. I invite the parties to make submissions in relation to costs.
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