Kelly v Majestic Pools and Landscaping Pty Ltd
[2013] QCAT 420
| CITATION: | Kelly v Majestic Pools & Landscaping Pty Ltd [2013] QCAT 420 | |
| PARTIES: | Dr Thomas William Kelly (Applicant) | |
| v | ||
| Majestic Pools & Landscaping Pty Ltd (Respondent) | ||
| APPLICATION NUMBER: | BDL315-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 14 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 21 August 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application is dismissed. |
| CATCHWORDS : | BUILDING DISPUTE - alleged breach of warranty by pool builder-blockage of pipes - delay in damage - expert evidence as source of blockage Domestic Building Contracts Act 2000 Part 4 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Dr Kelly was represented by Mr G Kelly, partner of Kelly Lawyers |
| RESPONDENT: | Mr Andrew Jakovac, director appeared for Majestic Pools & Landscaping Pty Ltd. |
REASONS FOR DECISION
Introduction
Dr Kelly engaged Majestic Pools to build a pool and perform landscaping work at his residence at 5 Marara Court, Albany Creek in 2007 with the works completed around 20 June 2007 and hand over occurring on 8 September 2007. There is no issue with the quality or standard of the actual pool work performed by Majestic Pools for Dr Kelly.
It is alleged that Majestic Pools or its employees or sub-contractors who laid the decorative stones around the swimming pool did not do so in an appropriate and skilful way and disposed of the excess fixing agent by washing it down the stormwater drain on the property. This is said to be a breach of statutory warranty.[1]
[1] Domestic Building Contracts Act 2000, Part 4.
The result of this is alleged to be that the area of the property near to where the works were conducted flooded from time to time and the stormwater drainage system on the property appeared to be blocked. As a result of which Dr Kelly has suffered the damage set out below.
Dr Kelly
Dr Kelly stated[2] that after the installation of the pool he did not notice any abnormality regarding drainage on his property until approximately late 2009. He recalls that the weather had been especially dry as South east Queensland was in drought and he did not recall any consistent or heavy rain at the property during this period. From approximately late 2009 Dr Kelly observed the northern portion of the property flooded from time to time. The pool pump burned out twice once on or around 7 October 2009 and again on or around 30 March 2010.
[2] Exhibit 1.
Dr Kelly engaged Richmine Pty Ltd, trading as Fixzit Marks’ Plumbing Service on or around 7 April 2010 to inspect the stormwater drainage system by the use of an “eel” device and it was discovered that the stormwater drain was substantially blocked. A quotation to replace the drain following a different route to the blocked drain was submitted by Fixzit in the amount of $4,200 plus GST.
Dr Kelly wrote to Majestic Pools enclosing a copy of the quote from Fixzit and requesting that they pay for the work on the basis that the plumber had suggested that the slurry mix blocking the drain could have only come from the pebblecrete lining on the pool. Majestic then requested a sample of the blockage which was supplied by Mr Kelly.
A letter from Majestic Pools dated 23 July 2010 describes the sample provided by Dr Kelly as follows “layered and very chalkie”. The letter states that “the sample was viewed by various people in an attempt to ascertain what it could be but no-one was able to give further clarification of what it was but it was determined that it was not pebblecrete, the sample seems to have a different outer layer and white appearance in the middle there is no pebble component at all”. The letter also confirms that the pebble applicator has been in the industry for over 25 years and not under any circumstances do they wash out in stormwater this is done either into a slurry pit or drum.
The pool pump again burnt out on the 15 September 2010. A letter from Cool Pool Care dated October 2010 confirms that the pump was beyond repair and that it was replaced for the amount of $1,045.00. It is stated that the pump had been totally submerged under water for a lengthy period of time.
Dr Kelly sent a further letter to Majestic Pools setting out the history of his dispute with them and enclosing a copy of Fixzit’s quote for $4,200 to replace the blocked storm water pipe and asking Majestic Pools to supply or indemnify him for the new storm water drain. The letter was copied to the Office of Fair Trading, the Queensland Building Services Authority and the Swimming Pool and Spa Association.
Dr Kelly received a response form each organisation. The Association in a letter to Dr Kelly dated 6 December 2010 agreed with Majestic Pools that the sample was not from the pebblecrete application process. The Office of Fair Trading in a letter dated 21 December 2013 advised that they could not deal with contractual disputes and a Tribunal application could be made. Dr Kelly stated that in the Authority’s reply to his letter it suggested that his neighbours may have blocked his drains. Dr Kelly stated that he had excellent relationships with all of his neighbours.
A further inspection of the drains by Corey Stevens Enterprises Pty Ltd trading as Albany Creek Gas Fitting and Plumbing occurred around 12 August 2011. Albany Creek Plumbing was asked by Dr Kelly to give an opinion regarding the repairs required. Albany Creek Plumbing’s opinion was that Fixzit’s method of repair was not appropriate and that the blocked portion of the stormwater drain should be removed and replaced along the same route as the blocked drain.
Dr Kelly engaged Albany Creek Plumbing to conduct the repairs. These were performed between August and September 2011. Dr Kelly paid the sum of $9,849.42 for the work done by Albany Creek Plumbing. Part of the repairs required the removal of concrete between the dwelling and the swimming pool. This concrete bore a stencil and it was replaced with concrete without the stencil. Dr Kelly accepted at the hearing that one of the invoices from Albany Creek Plumbing was for work done in his front yard which was confirmed By Stevens from Albany Creek Plumbing to be as a result of leaf build up in the drain. The claim is then reduced by $1,466.36 to $8,383.06
A quote was requested from Adstyle Concretors to replace the stencil painted finish on the concrete. Adstyle Concretors advised Dr Kelly that the stencil painted finish on all of the concrete areas would need to be replaced to ensure that the new concrete matched the existing concrete and quoted the sum of $6,735.00 to complete this work. A quote was also obtained by Dr Kelly from Kustom Concrete Finishes in the amount of $10,021.00 to replace the stencil painted finish on the concrete.
Dr Kelly later noticed that the pump connected to the swimming pool was not working on 23 November 2011 and he engaged Cool Pool Care to inspect it. They informed Dr Kelly that it required replacement as it had been fully immersed in water as part of a flooding event. Which Dr Kelly alleges was again caused by the blockage of the storm water drain. Cool Pool care quoted the amount of $682.00 to replace the pump.
Dr Kelly’s claim is then for the following:-
a) Albany Creek Plumbing - $8,383.06 for removal and replacement of the blocked storm water drain;
b) Adstyle Concretors - $6,735.00 for replacement of the stencilled concrete;
c) Cool Pool Care - $682.00 for replacement of the pool pump; and
d) Interest and costs.
Majestic Pools
Majestic Pools accept that they had a relevant duty of care in respect of the works carried out at Dr Kelly’s house. They deny though that they disposed of anything inappropriate into any drainage system at the property or that if there was any inappropriate behaviour of Majestic’s employees or subcontractors it represent those persons being on a frolic of their own undertaking of which Majestic is not vicariously liable. Further that if the behaviour alleged did in fact take place while admitting that some form of loss or damage would be within Majestic Pool’s reasonable contemplation it denies that such reasonable damage would at all represent the extent of the damage claimed by Dr Kelly. There was also alleged to be a failure by Dr Kelly to avail himself of a sites works insurance policy of which he was a beneficiary, in that he failed to notify the insurer of a potential claim within the required period of becoming aware of the alleged loss.
Delay
In his material Dr Kelly is adamant that no other tradespeople who would have brought any concrete or fixing agent onto the premises have been engaged by him either before or after the Majestic Pool works. The supposition is then that the only tradespeople who brought material onto the property similar to that which blocked the pipes was Majestic Pools and so they must be responsible.
One of the issues here is that there is a fairly long delay between when the work was done and when Dr Kelly first observed the flooding issues. If the material was brought in by Majestic Pools it appears logical that issues should have arisen soon after the pool was finished. Dr Kelly says that the area was in drought and there was little rain. Mr Jakovac of Majestic Pools provided material[3] from the Bureau of Meteorology that indicated that there were significant rain events on 26 occasions where there was more than 30 mm of rain with 6 individual days of 100 mm of rainfall and 15 individual months that recorded over 70 mm of rainfall during the period between September 2007 and October 2009.
[3] Exhibit 10.
Mr Jakovac states that given Dr Kelly’s pool size and observed weather conditions the pool would have been backwashed (or excess water sent to waste) approximately 12 times per year. As such if the drainage was actually blocked as alleged Dr Kelly should have experienced the blocked drain including yard flooding at least 24 times between the alleged blockage date and the alleged first flooding in late 2009. At the hearing Dr Kelly stated that he only backwashed the pool twice during the period in question. He confirmed that the backwash process would involve pool water going down the drain. The material supplied by Mr Jakovac from the bureau of meteorology was not called into question by Dr Kelly at the hearing.
In response to Mr Jakovac, Dr Kelly provided a further affidavit[4] where he stated every time there was a heavy deluge of rain over a significant period of time he noticed there was a significant amount of water present on the property, which did not quickly drain away. He did not experience a problem with drainage unless there was a heavy deluge of rain. It took him some time to realise that here was a significant problem with drainage on the property and to engage a plumber to investigate because of personal circumstances in 2007 and because the drainage issues only occurred sporadically.
[4] Exhibit 2
Mr Jakovac provided a job card for the work at Dr Kelly residence in his affidavit and it noted on the card that Dr Kelly complained of the pool leaking two cm a day on 31 October 2007 which was tested by Seek a Leak with their invoice dated 6 November 2007 stating “to dye and pressure test pool structure and plumbing system. Leak found broken return 1 metre under concrete slab in front of glass gate”. At the hearing Mr Jakovac stated that the pool would have been backwashed at the time of the Seek a Leak testing and they would have known then if the pipe was blocked. This was not challenged by Dr Kelly.
Expert evidence
Dr Kelly engaged Mr David Carter, a mettalurgical engineer employed by Alfatest to analyse the material blocking the drain. Mr Carter provided an affidavit[5] and stated that he had been engaged in August by Mr Kelly to test a sample of inorganic material which according to Dr Kelly had been extracted from a blocked drain on his property. Mr Carter issued a report on 16 August 2012 and noted that the sample consisted predominantly of silicon dioxide (sand) and calcium dioxide (quicklime). The testing report described the sample as inorganic debris. The chemical analysis showed CaO 27.8% SIo2 33.3% and LOI 23.44. At the hearing LOI was clarified as Loss on Ignition and represents organic material forming part of the sample.
[5] Exhibit 5
Dr Kelly again engaged Alfatest in November 2012 to test a further sample of inorganic debris which was said to be a sample of building material used by Majestic Pools. This sample was said to have been extracted from between decorative stones laid around the swimming pool. The sample was tested on 28 November 2012 and a report issued on 4 December 2012. The second test showed CaO of 27.5% and Sio2 of 33.7% with LOI of 22.78%. Mr Carter notes that the second sample consisted predominantly of Silicon Dioxide (Sand) and Calcium Oxide (Quicklime).
On a request from Dr Hywell-Evans, Majestic Pools expert, Mr Carter stated that the testing was undertaken by Australian Analytical Services Pty Ltd (ALS) and the tests were conducted according to ALS Test Procedures ME-XRF26 Wholerock by Fusion/XRF and ME-GRA05 H20/LOI by TGA furnace and to the best of his knowledge these are the standard test methods used for analysis of this type of sample.
In his affidavit[6] Dr Kelly states that upon reviewing the reports from Alfatest he noticed that the chemical make-up of the material which caused the blockage in the drain was almost identical to the chemical makeup of the fixing agent, He believes that the material which caused the blockage in the drain is excess fixing agent which Majestic’s workers disposed of by washing it down the stormwater drain on the property.
[6] Exhibit 1.
Mr Jakovac provided a further affidavit[7] which showed the results of tests he had arranged to be conducted on various samples including a prediction by Dr Hywell- Evans, a replica grout sample, a quarry sample and a sample from the property and compared the results to those provided by Dr Kelly. The results were as follows:-
[7] Exhibit 3.
Si
Ca
Al
Mg
Fe
K
Na
LOI
Kelly
Pipe
33.3%
27.8%
9.92%
1.74%
2.04%
0.24%
0.22%
23.44%
Kelly
Grout
33.7%
27.5%
9.81%
1.6%
2.16%
0.20%
0.19%
22.78%
Replica
Grout
73.7%
15.4%
1.65%
0.15%
0.42%
0.21%
0.08%
6.37%
Quarry
sample
76.8%
2.93%
7.80%
1.28%
4.21%
1.34%
1.7%
Hywell
77.94%
17.23%
2.84%
0.23%
0.58%
0.50%
0.47%
On-site
Grout
71.00%
13.45%
1.40%
0.02%
0.21
0.16%
0.16%
12.42%
Mr Jakovac took the quarry sample from ground material outside of a quarry at Brendale, five kilometres from Dr Kelly’s residence. The quarry sample was in relation to a theory from Dr Hywell-Evans, Majestic Pools expert that the blockage could have been caused by windblown material settling in the pipes. The replica grout was prepared by Mr Connell and is discussed below. Included with the affidavit are photos of Dr Kelly’s backyard and the pipe containing the blockage material which was provided to Majestic pools by Dr Kelly for evaluation. The photos of the grout when compared to that of the material blocking the pipes show clear physical differences in that the grout material looks grainy and the material in the pipe shows characteristics of being chalky.
Dr Duncan Hywell-Evans provided an affidavit[8] discussing his views in regard to the Alfatest reports and notes that the reports contain the XRF oxide analysis of the mineral deposits. He notes that it is important to understand that the XRF technique tests samples to their basic oxides in a fused bead so that under x-ray radiation, the mixed oxides fluorescence may be recorded. In general the emitted x-ray for a particular element is independent of the chemistry of the material.
[8] Exhibit 6.
For example a calcium peak obtained from CaCO3, CaO and CaCl2 will be exactly the same spectral position for all three materials. In summary this technique gives the elemental position only.
To determine the mineral composition XRPD or x-ray powder diffractometry is used to produce the diffractogram of the mineral crystal. This is missing from the Alfatest report and Alfatest was contacted to provide this and no XRPD appears to have been undertaken and the comments about the original materials are a poor conjecture if not just random guesses. Mr Carter accepted at the hearing that it was conjecture to state what the element material was based on the analytical technique used.
Dr Hywell-Evans notes that it has been proposed that the material originated from the grout being used. Firstly the grout being used would have coarse sand in it, typically .3mm-2.36mm in diameter, no large sand grains are evident.
Simply put the XRF of the deposit will be the sum of the oxide analysis of the parts. This result is set out above in the table. This analysis differs substantially from the Alpha analysis in several important ways, to a cement chemist the presence of 360 times the iron content would indicate a very dark cement rather than the light colour of the grout, second the presence of 683 times the magnesium content suggests that the blockage material is not of cementious origin, magnesium is very carefully controlled. In all cases the Alpha test results for Dr Kelly’s samples differs from the values expected should the material have been deposited from the grout.
Dr Hywell-Evans provided a further affidavit[9] following the analysis of the quarry sample and the site grout sample. Stating that with regard to the initial grout prediction derived from the elemental analysis of the raw materials there was no allowance made for the possible organic content of the mixture. However, there are a limited number of organisms that can tolerate such high PH environments. For the critical elements such as Aluminium, magnesium, iron, calcium and silica these occur in levels which cannot be attributed to the grout as they occur in the blockage material at levels much greater than that found in the parent grout materials. This suggests very strongly that the source of the materials forming the deposit in Dr Kelly’s pipe did not come from the grout. Furthermore, the substantial differences in the LOI supports the premise that the pipe deposit material is substantially different to the latest site grout sample.
[9] Exhibit 7.
Mr Connell’s evidence
Mr Charles Connell, the tradesperson who installed the surrounding paving at 5 Marara Court provided an affidavit[10]. Mr Connell states that he no longer works for Majestic Pools. Mr Connell takes extreme issue to any allegation that he caused any such material, the fixing agent, to be placed into Mr Kelly’s drainage system. Such behaviour would be against all logic of his as an experienced tradesperson, and he affirmed that he did not cause Mr Kelly’s drainage system to be blocked in the course of his work. This was not challenged at the hearing.
[10] Exhibit 9.
Mr Connell notes that Dr Kelly had previously claimed the blockage material was pebblecrete and then concrete slab related. Mr Connell viewed photos of the material that blocked the drain and it was described to him by Majestic Pools as being chalky, extremely fine and powdery in nature, able to be easily broken and crumbled in the hand and easily scoured with a finger. He noted that one of the photos shows what looks to be a scratch mark on the cut face of the chalky surface which is consistent with the description given to him.
While not claiming to be an expert in chemical analysis Mr Connell notes that the fact that a report notes that “silica” is present in the blockage material doesn’t mean that the sand he used is present in the tested material in question. The sand he used on that day and many other sites is much more large and coarse than the photos show and much more coarse and large than the description above would allow; especially when you consider that the blockage material is layered, and would have been subject to water washing through it which would tend to leave the largest particles of coarse sand behind in the pipe as opposed to the smaller silty particles.
The proportion of sand he uses is also much larger than that in the test results (3:1). This was also not challenged at the hearing and is borne out in the analysis of the replica grout and onsite samples above.
Mr Connell had undertaken to make a replica sample of the grout mix used at Dr Kelly’s in 2007, using the same brands and materials that he used back then. He stated that he had mixed the identical grout mix hundreds of times over a number of years. The sample material can then be tested to compare to the blockage material. Mr Connell notes that he signed the affidavit before the sample was tested.
Mr Connell notes that Dr Kelly claims that the drain was substantially blocked in a number of locations; therefore the amount of blockage material would have been extensive, as it filled up a 90mm pvc pipe over at least a number of feet. If material was placed in the drainage line, he presumes that not all of that material would have remained in the line (ie some would have presumably washed away). Accordingly this would amount to literally multiple buckets of “blockage material” having been placed in the drainage line, which is simply absurd when considering normal grouting practice.
When completing projects such as this, tradespeople prepare their grout mixes incrementally and on an “as needed” basis. This is because no tradesperson wants to use more materials than needed on a job; and secondly, because the job actually needs to be done incrementally because you don’t want the grouting material to “go off” in the bucket while working. Incremental mixing of grout means that almost no unnecessary grout gets made in practice, and therefore almost no unnecessary grout is thrown away.
As such, to suggest that the amount of excess grout in question was even produced by him let alone irresponsibly placed in a drainpipe is preposterous and goes against both common sense and industry practice. It would also go against every normal habit and procedure that he has followed in over 10 years that he have been carrying out his trade.
Discussion
There is no doubt that Dr Kelly has had his pipes blocked and that he has suffered damage as a result. For Majestic Pools to be liable for this damage it has to be proved on the balance of probabilities that the damage resulted from the breach of a duty or warranty that Majestic Pools owed to Dr Kelly.
Dr Kelly’s evidence is that there were no other tradespeople who worked at the premises and used similar material either before or after the work done by Majestic Pools and that the damage occurred after the pool works were completed. He originally explained the long period between the work being done and the first report of damage as being due to the lack of rain as a result of the drought. When Mr Jakovac provided evidence that there were significant rain events which should have resulted in the pool being back washed he said that rain had been sporadic and he had personal issues to deal with.
The Tribunal though is concerned that at any point in time when the pool was backwashed the blockage of the pipes would have meant that the back yard would have flooded and such an event would have been witnessed by the person backwashing the pool and action would have been expected at that time. The pool was backwashed at the time it was commissioned and when Seek a Leak tested it. Dr Kelly says he backwashed it no more than twice. Still having regard to the fact that the work was finished and the pool commissioned in September 2007 it would be expected that if Majestic Pools were responsible for the blockage it would have been reported much sooner than April 2010.
Dr Kelly’s independent corroboration is from the Alfatest results which show marked similarity between the sample from the pipe and the one from the work done by Majestic Pools. Mr Connell the tradesperson who performed the work maintained that the proportion of sand to cement he used was 3:1 as opposed to 1:1 in the samples sourced by Dr Kelly. Mr Connell’s position is backed up by the analysis of the grout sample which he reproduced and the on-site grout sample taken by Mr Jakovac. Both sets of tests were performed under the supervision of Alfatest and so there can be no doubt as to the validity of the test results.
The Tribunal is not satisfied that the sample from the pipe is from the same material as used by Mr Connell in his grout mix as the ratio of sand to cement are not the same. Further Dr Hywell-Evans a cement expert has made it clear that the material in Dr Kelly’s sample included elements such as Fe (iron) and Mg (magnesium) in proportions that would not be found in cementious material.
Mr Connell in his affidavit and at the hearing stated that he had not blocked the drain. This was not challenged by Dr Kelly.
Dr Hywell-Evans had a theory that the blockage could have been from material deposited on Dr Kelly’s roof from a nearby quarry. Dr Kelly provided evidence that his neighbours had not experienced similar blockages and this would tend to indicate that this theory was not sound. Though it is not for the Tribunal to determine the origin of the blockage except to determine whether or not the blockage was caused by material brought onto the site by majestic Pools.
The Tribunal is not satisfied on the balance of probabilities that Majestic Pools has breached a warranty or duty of care owed to Dr Kelly as it is not satisfied that the blockage was the result of material brought onto the site by Majestic and so the application is dismissed.
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