Kathrada v Chelbrooke Homes Pty Ltd
[2012] QCAT 8
•19 January 2012
| CITATION: | Kathrada and Anor v Chelbrooke Homes Pty Ltd [2012] QCAT 8 | |
| PARTIES: | Mr Ismail Kathrada Ms Aneesa Kathrada | |
| v | ||
| Chelbrooke Homes Pty Ltd | ||
| APPLICATION NUMBER: | BDL346-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 16 May 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr J Allen, Member |
| DELIVERED ON: | 19 January 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Chelbrooke Homes Pty Ltd rectify the following defects at 5 Olsen Close Kuraby in a good and workmanlike manner on or before 28 February 2012: a) general bathroom – Mosaic/frieze in shower and top of vanity uneven. b) ensuite – Mosaic/frieze on right of vanity uneven. c) driveway – concrete eroding. |
| CATCHWORDS: | Rectification of defective building work Queensland Building Services Authority Act 1991 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Ismail Kathrada and Mrs Aneesa Kathrada appeared in person |
| RESPONDENT: | Mr Peter Reiwoldt, director appeared for Chelbrooke Homes Pty Ltd |
REASONS FOR DECISION
Mr and Mrs Kathrada contracted with Chelbrooke for the construction of a home at 5 Olsen Close, Kuraby in 2009. The house reached practical completion on 18 December 2009. Mr and Mrs Kathrada notified Chelbrooke of alleged defects in the construction would not rectify.
A complaint was made to the Queensland Building Services Authority by Mr and Mrs Kathrada on 18 July 2010. The house was then inspected by Mr Steven Noble from the Authority. While there were some defects found by Mr Noble they were considered to be category 2 defects which required notification within 6 months of practical completion of the property for the Authority to take further action. Mr and Mrs Kathrada have applied to the Tribunal seeking an order for rectification of the alleged defects.
The Tribunal has jurisdiction[1] to determine a building dispute[2]. The building of the Kathrada’s residence by Chelbrooke constitutes a domestic building dispute[3]. There are warranties implied into the contract between the parties in particular that the subject work will be carried out in an appropriate and skilful way and with reasonable care and skill[4]. The Tribunal may award damages or order rectification or completion of defective or incomplete tribunal work[5].
[1]Section 77 of the Queensland Building Services Authority Act 1991.
[2]Defined in the Dictionary of the Queensland Building Services Authority Act 1991 to include a domestic building dispute.
[3]See definition of reviewable domestic work in the Queensland Building Services Authority Act 1991 and section 8 of the Domestic Building Contracts Act 2000 for definition of domestic building work.
[4]Sections 41 and 44 of the Domestic Building Contracts Act 2000.
[5]Section 77(2) of the Queensland Building Services Authority Act 1991. Tribunal work includes the erection or construction of a building (s 75(1)(a) of the Queensland Building Services Authority Act 1991).
The alleged defects are as follows:
a)General bathroom – A tile chip on left side/top of bathtub. Mosaic/frieze in shower and top of vanity uneven.
b)Ensuite – Mosaic/frieze on right of vanity uneven.
c)Media Room – left wall uneven.
d)Driveway – concrete eroding.
Each of the alleged defects will be dealt with separately.
General bathroom
During the defects period under the contract the Kathrada’s notified Chelbrooke by email on 23 February of a list of faults with their house. This included “chip on tile-left corner top” and “mosaic in shower to be redone. Chelbrooke in an email following completion of the maintenance period it was noted that the “chip on tile was not on H/O” (referring to the hand over list) and that the mosaic in shower was acceptable. The report by Mr Noble[6] confirmed the chip on the tile and stated that the “finish of the mosaic frieze is not levelled adequately, leaving an extremely unsightly finished surface which does not comply pursuant to AS 3958”[7].
[6] Exhibit 2.
[7] Exhibit 5.
In his evidence at the hearing Mr Noble stated his opinion that installation of parts of the mosaic frieze was not to a suitable standard in terms of the requirements for tile finish and joints in regard to lipping and joint alignment. Mr Noble’s qualifications and methods were questioned by Chelbrooke at the hearing. The Tribunal accepts that Mr Noble as an inspector for the Authority has the appropriate qualifications to report on the matters reported and that in regard to the tiles he used a straight edge to determine whether the work complied with the standards.
There was no evidence given at the hearing as to the origin of the stone chip.
In its response to the application Chelbrooke stated that as the stone chip was not mentioned on the handover list it could not be established by whom or when this occurred. While disputing that the finish of the mosaic was extremely unsightly Chelbrooke accepted that not all tiles in this area have the same finish and stated the cost to rectify would outweigh the aesthetic value gained. Mr Reiwoldt in his evidence at the hearing agreed that there were some defects in the mosaic tiles but strongly disagreed they were extremely unsightly.
Chelbrooke noted in Stephen Goulding’s affidavit[8] that mosaic tiles are a feature and as such if selected attract an additional cost for both purchase and laying of the tiles. This point was also raised by Mr and Mrs Kathrada in their statement of evidence.[9] Mr Noble estimated that the cost of rectifying the tiles in both the general bathroom and the ensuite would be $500 with Mr Reiwoldt estimating it as $250.
[8] Exhibit 4.
[9] Exhibit 1.
[10] A building owner entitlement to undertake remedial work at the expense of a builder is not subject to any limit other than is to be found in the expressions “necessary” and “reasonable”[10]. In this case Mr and Mrs Kathrada have paid extra for a feature mosaic and the tribunal accepts that the installation of that mosaic has been defective. That is on the basis that the work has not complied with the relevant Australian standard as demonstrated by Mr Noble and the acceptance of the defects by Chelbrooke. As they have paid an additional amount it would be expected that the work required additional skill and that it would be performed with additional skill and that has not been the case here. The rectification is considered by the tribunal to be necessary to provide Mr and Mrs Kathrada with the mosaic to the standard of finish they are entitled to having regard to the additional cost. In terms of the reasonableness of the rectification the tribunal considers that the costs estimated by Mr Noble for the work is reasonable in the circumstances here. The tribunal will order that Chelbrooke rectify the mosaic tiles in the shower.
[10] Bellgrove v Eldridge [1954] HCA 36.
[11] In term of the stone chipped tile the tribunal cannot be satisfied that this chip was caused prior to handover of the house and that claim for rectification will not be allowed.
Ensuite
[12] The Kathrada’s first notified that the “mosaic /frieze on right of vanity was uneven” in their complaint to the Authority. In his report Mr Noble noted after inspecting the frieze that “the finish of the mosaic frieze is not levelled adequately, leaving an extremely unsightly finish which does not comply pursuant to AS 3958”. At the hearing Mr Noble stated that there were similar issues with the ensuite to those in the general bathroom.
[13] In its response to the application Chelbrooke state that it is not “an extremely unsightly finished surface”. While noting however “we accept that not all tiles in this area have the same finished look. The cost to rectify would outweigh the aesthetic value gained”. At the hearing Mr Reiwoldt noted that the tile issue in the ensuite had not been raised at the handover.
[14] Here again the Kathrada’s have paid an additional amount for the mosaic tiles and their laying and there is an expectation that this work would have been done without defect. The tribunal accepts Mr Noble’s evidence that the laying of the tiles was defective as it did not reach the standard required under AS 3958. It is noted that Chelbrooke have accepted that there are some issues with the tiles in question. Having regard to the cost of rectification which has been suggested above the tribunal is satisfied that it is both necessary and reasonable for the ensuite mosaic tiles to be rectified. The Tribunal will order that Chelbrooke rectify the mosaic tiles in the ensuite.
Media Room
[15] The Kathrada’s notified Chelbrooke in their email of 23 February 2010 of “left wall warp” in the media room. This was not rectified by Chelbrooke as it was advised to be “acceptable” in an email from Chelbrooke of 17 June 2010. It was made part of the complaint to the Authority by the Kathradas and described as “left wall uneven”. Mr Noble in his report stated that a substantial bow is evident to the finished wall 3m returning from the window. It is determined that the installation of the non load bearing wall is not adequately installed leaving an unsightly finished product pursuant to AS1684, Cl 6. It was not noted that the defect does not effect the structural integrity or performance of the building. At the hearing Mr Noble stated that the rectification of the bow would require that the bottom plate be moved across and secured and that this could be achieved by crippling in accordance with AS1684. He stated the bow was 10 mm and was a substantial bow and that the cost of the rectification work would be $1,000.00. He later clarified that he had estimated not measured the extent of the bow.
[16] Chelbrooke in its response accepts that there is a slight bow in one section of the wall due to a metal strap behind the plasterboard sheeting and is to an acceptable standard. In Mr Goulding’s affidavit it is stated that the a slight bow of 4mm-5mm to the wall does appear approximately 3.0 m returning from the window. The reference to AS1684 is refuted and it is stated that reference may be gained by using the “Guide to Standards and Tolerances 2007”.
[17] In his evidence at the hearing Mr Reiwoldt stated that the cross bracing to the stud and bottom plate of the wall had resulted in the bow and that he would not consider it unacceptable. Further that AS1684 has no reference to crippling to top or bottom plate.
[18] Mr and Mrs Kathrada in their statement advised that they had raised the issue of the bow in the wall shortly after handover and that the only action taken was the sanding of the skirting board. At the hearing they stated that whether the bow is caused by a strap or not there should not be a bow in the wall and that the other walls in the house are straight.
[19] While all parties agree that there is a bow in the wall it needs to be demonstrated that the bow constitutes a defect. That is that it is not within the tolerances allowed for good building practice. Mr Noble referred to AS1684. That standard has no references to the tolerances in respect of straightness of walls. The reference provided by Chelbrooke refers to a wall being defective if it deviates from plane (bow) by more than 4mm within any 2m length. In both Mr Noble’s report and Mr Goulding’s affidavit the wall length is agreed as 3 metres. There is then no evidence of a deviation within 2 metres of wall space. The Tribunal cannot be satisfied that the bow in the wall constitutes a defect and there will be no order for rectification of the media room wall.
Driveway
[20] The Kathradas state that discussions were held with Chelbrooke about the wearing away of the driveway as early as 19 February 2010. The first email to Chelbrooke in regard to the driveway was on 14 June 2010 describing it as “driveway is wearing away/being exposed”. This item was not attended to by Chelbrooke and was made part of the complaint to the authority.
[21] Mr Noble in his report stated that “it was evident that the concrete installed to the driveway is not finished to an acceptable industry standard. It is evident that that the finished pavement is categorized as a class C and additional water was added to the surface to retard the curing process during installation. It is determined that the finished surface does not comply pursuant to AS3610 and the Cement Concrete and Aggregate Association Guide to tolerances of concrete surfaces”.
[22] At the hearing Mr Noble stated that he noticed that the finished surface of the driveway was poor and in his opinion some product had been placed on it to make it more workable and this had reduced the strength of the concrete. In terms of A3610 he stated that a deviation of 6mm was allowed and that he had used a 3 metre straight edge to assess the variation and it was greater than 6mm. He described it as an exposed aggregate driveway and that the photos attached to his report showed that it was overexposed at some points. He stated that the area in question was approximately 1m2 and it would cost $1,500 to have it cut out and replaced or $500 to use a product called ARDITT to fill the gap. Though the ARDITT would change the colour of the driveway at that point. At the hearing Mr Noble was asked if the damage could have been caused by a high pressure gurney. He stated that he did not see that and that the driveway was dirty. At the hearing Mr and Mrs Kathrada also denied the use of a high pressure gurney on the driveway.
[23] Chelbrooke in its response disputed Mr Noble’s finding in his report. It stated that “though there is evidence that in some areas the slurry has separated causing an uneven finish the driveway is built for purpose”. Mr Goulding in his affidavit noted that the respondent agrees that areas of the finished surface of the driveway have deteriorated since the handover. The affidavit also has annexed copies of correspondence and dockets from the supplier of the concrete for the driveway which are said to show that no water was added to the concrete for the driveway. A photo of the driveway is annexed to the affidavit and it is said that it is evident that at some stage the driveway has been pressure cleaned and this would have assisted the surface to deteriorate.
[24] At the hearing Mr Reiwoldt stated that driveways do deteriorate though it was strange to see it happen so quickly. In terms of rectifying the driveway he estimated that it would cost $400 to $500 to cut out and replace it. He said that he had not seen the use of ARDITT in circumstances like this.
[25] It is clear from the photographic evidence that there has been some deterioration in the concrete surface of the driveway. The tribunal accepts Mr and Mrs Kathrada’s evidence that they have not applied a high pressure cleaner to it and so they cannot be the cause. Whether or not it was a result of additional water being applied to it on installation as opined by Mr Noble the deterioration is not due to the actions of the Kathradas. The Tribunal notes Chelbrooke accepts that there has been some deterioration in the surface of the driveway.
[26] The Tribunal accepts Mr Noble’s opinion that the relevant standard in this case is AS3610 in regard to tolerances for the surface of formed concrete and that the driveway in this case does not meet industry standard. While the defect does not effect the performance of the driveway at this stage it is not acceptable that it has deteriorated so rapidly. The cost of rectifying the defect which has been estimated by Mr Reiwoldt at between $400 and $500 appears reasonable. The Tribunal is satisfied then that there is a defect which is necessary and reasonable to be rectified and will order that Chelbrooke rectify the driveway.
Variation of driveway
[27] The Tribunal notes that the Kathradas had originally made a claim in regard to the amount they were entitled to for a variation in the amount of concrete supplied for the driveway. This was not pursued at the hearing. In the material supplied by the Kathradas with the application it is noted that they have signed a variation accepting the credit amount for the concrete. In an email which accompanied the variation they state they do not agree with how it was calculated. They have not stated that they intend to pursue the matter further. So while they may have signed the variation under protest they have accepted it and can not now argue the matter further so the tribunal would not have allowed the claim.
Costs
[28] The Kathradas indicated in a statement that they wished to pursue the costs of the application and their witness Mr Noble but they did not raise this matter at the hearing.
Orders
[29] The Tribunal notes that the Kathrada’s were happy overall with the quality of their home and that there were many items on their defect list that were appropriately attended to by Chelbrooke. It would appear that for this reason they have not sought damages from Chelbrooke but wish them to rectify the defects which they have found in their home to date.
[30] The order of the tribunal then is that Chelbrooke rectify the following defects at 5 Olsen Close Kuraby in a good and workmanlike manner on or before 28 February 2012:
a)General bathroom – Mosaic/frieze in shower and top of vanity uneven.
b)Ensuite – Mosaic/frieze on right of vanity uneven.
c)Driveway – concrete eroding.
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