Kernohan Constructions Pty Ltd v Nautilus Pools
[2011] QCAT 142
•5 May 2011
| CITATION: | Kernohan Constructions Pty Ltd v Nautilus Pools [2011] QCAT 142 |
| PARTIES: | Kernohan Constructions Pty Ltd |
| v | |
| Nautilus Pools |
| APPLICATION NUMBER: | BDL343-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21 April 2011 |
| HEARD AT: | Maroochydore |
| DECISION OF: | Louise McDonald, Member |
| DELIVERED ON: | 5 May 2011 |
| DELIVERED AT: | Maroochydore |
ORDERS MADE: | That the Respondent pay the applicant $13,872 plus interest of $1,562 within 60 days of the date of this order. |
| CATCHWORDS: | Subcontractor – work performed without reasonable care and skill – work not performed in an appropriate way |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Darren Kernohan |
| RESPONDENT: | Peter Byrne |
REASONS FOR DECISION
On 1 April 2008, the applicant builder contracted with the respondent pool company for the construction of a concrete swimming pool at 30 Noosa Parade, Noosa at a cost of $113,529. The owner of the premises was to supply the pool tiles and coping as a term of the contract.
This matter was commenced in the Noosa Magistrates Court, but transferred to QCAT under order of the Noosa Magistrates Court, dated 16 June 2010.
The applicant is claiming $23,554.61 plus costs and interests against the respondent for negligence and breach of contract. Although contractual breach was claimed in the documentation, it was not argued at the hearing. The applicant claimed the subcontractor operated without the appropriate level of skill, and the result of this was defective tiling. He asserts that the Respondent failed to provide pool tiling in a good workmanlike manner, failed to be familiar with the type of tile supplied or the proper procedure resulting in a finish which was uneven and not of an acceptable standard. In addition he claims that the respondent failed to construct the weir in such a manner that it did not leak, and constructed a water fountain in such a manner that it leaked into the bedroom of the residence.
For the tiling concerns: he claims damages for the cost of retiling the pool $13,872.10, work performed by NRG under invoice of 8 August 2009, as well as $5,635 for the replacement tiles which were purchased and supplied by the owner.
In addition he claims for the costs of the damage from the leaking weir and water fountain.
Replacement of pool lighting $374
Pool care costs 14 December 2009 $431
Subcontractor carpentry costs $1,200
Applicants’ Apprentice Costs 23 March 2009 $400
Repair external rendered Wall $480
Remove and Reinstall cabinetry in bedroom $300
Plastering repair for damaged gyprock in bedroom $240
Painting 31 March 2009 $240
Leakwise 16 March 2009, 23 March 2009 $379
The respondent seeks the application is dismissed. He asserted a counterclaim in his statement of evidence claiming for the costs associated with rectifying defects.
THE APPLICABLE LAW
The Tribunal is empowered by s 77 of the Building Services Authority Act 1991 to decide a building dispute, which is defined under Schedule 2 of this Act to include a domestic building dispute. The tiling and weir work falls within reviewable domestic building work within the meaning of the Domestic Contracts Act 2000, giving the Tribunal jurisdiction to determine the matter. Section 44 of the Domestic Building Contracts Act 2000 provides an statutory warranty that work will be carried out by the contractor in an appropriate and skilful way; and with reasonable care and skill.
THE MOSAIC POOL TILES
Applicant’s Case
Architectural drawings and specifications indicate that the interior of the pool was to be a glass mosaic, a travertine stone was to be coping and waterline. The owners of the premises supplied an imported Italian mosaic tile and travertine coating directly from Italy. The mosaic had a hot melt system for adhesion. The imported Trend mosaic was the tile laid by the respondent in the interior finish of the pool. Evidence was led by both parties that the tile’s hot melt backing system was new to Australia at the time of the construction of the pool.
The Applicant argued that the work was not performed in a workmanlike manner, resulting in obvious lipping at sheet joins, deflecting, and an uneven surface. He indicated that the contract was part of a high profile construction for a highly demanding client in a prestige precinct and as such, a very high level of quality was expected as part of the engagement of the subcontractor. The Applicant gave evidence that he was awarded a Master builders award for the entire house construction and carried the rectification costs until the application given the profile of the job.
The Applicant rejects the contention that the tile is flawed and does not meet Australian standards. He provided an article entitled “Pool Safe Mosaic Sheeting Systems” from an online industry magazine “splash magazine” explaining the various types of backing systems. The literature suggests the hot melt system is a new technology designed to precisely bond each mosaic. The article refers to a number of mosaic tiling failures in pools occurring as “a consequence of using a mosaic which was adhered to the backing mesh with excessive amounts of inappropriate glue.”[1] The Respondent argues the hot melt system the article refers to is that imported by Reviglass, which provides a more even coverage of the adhesive backing than the Italian import. He further argued that comments as to the quality of the hot melt system in this article are self serving statements from Reviglass.
[1] At p37.
[10] Promotional material on the hot melt system at Annexure 15 of the Applicant’s statement suggests the bond is three times stronger than the PVC dot system, previously the leading technology in mosaic adhesion. It is noted that this refers to the Reviles mosaic, made in Spain rather than the Italian import.
[11] In annexure 16 of the Applicant’s statement promotional material about the benefits of the hot melt system refers specifically to Australian standards. It notes no specific standard for glass mosaics beyond the standards that apply to ceramic tiles and window, but notes:
“The industry regulation states that at least 80% of the back of the tile should be exposed to adhesive.”
[12] The article from slash magazine refers to direct consideration to the manufacturers instructions for the installation technique. He gave evidence that the Respondent did not request this.
[13] The Applicant gave evidence that he had requested the Respondent to confirm with the supplier the adhesive and type of grout to be used with the Trend tile. Site meeting minutes of 20 January note that the approval of the adhesive and grout chemicals from the importer or manufacturer.
[14] The Applicant submitted that the defects were brought to the Respondent’s attention early in construction, noting that tiling commenced on 22 January 2009, and his first concerns were addressed to the Respondent about the quality of the tiling on 28 January 2009. He was assured by the Respondent that defects would be remedied and the quality would improve as grouting made defects less obvious.
[15] Photographs were submitted of the works taken on 9 February 2009, demonstrating lipping and visible sheet joins. The Tribunal has reviewed the photos and considers that even to the untrained eye, these flaws are apparent.
[16] At 10 February 2009, site meeting minutes note that the pool was 65% completed. This is consistent with the photographic evidence taken on 9 February 2009. The Respondent submits that the pool was only 40% completed when he raised concerns with the tile nature, however the photographs would appear to support the Applicant’s evidence in this regard. I note the evidence of Lee Foster that only 25% had been completed at this stage, but photographs suggest otherwise.
[17] The Applicant provided minutes of site meetings from 21 February 2009 and 24 February 2009, noting rectification of mosaics was to occur. Minutes of the 3 April 2009 specified part defects including misaligned waterline and coping which needed to be re-laid.
[18] The meeting of 21 February 2010 was attended by the property owners. Minutes record that site meeting commenced at 10:30 am. The mosaics were an early agenda item. The Respondent contends that the Applicant was aware that he considered there was a flaw in the tile, and was nonetheless instructed to continue. The Respondent stated in evidence that between noon and 1pm the wall “looked like a dog’s breakfast”. He considered the owners had been misled and he relied upon their confirmation to continue the works. The Minutes reflect that rectification of the misalignment was to occur.
[19] The Respondent’s evidence was that he was instructed to rectify the curbing but not the dimpling to the wall, as he told the Applicant could not rectify this.
[20] The Applicant further stated that the workmanship on the subsequent work on the spa and spillway deteriorated rather than improved. Tiles were described as out of parallel and uneven between 10ml and 20ml. Photos taken on 17 February 2009 at Annexure 23 to the Applicant’s statement support this assertion, showing misaligned tiles. This evidence was supported by Lee Foster, agent for the owners.
[21] The Respondent’s evidence was that because of the timeframes for completion, many labours and tradesman were on site, and the coping had been stepped on by the Applicant’s employees and contractors.
[22] When questioned, the Respondent noted that rectification of the sheet joins would require that he cut out the under strip on each tile where the adhesion was not sufficiently supportive, but this would result in considerable wastage, and be inordinately time consuming. The Applicant submitted a sample of the imported Trend tile which demonstrated no sheet joins, but the Respondent questions the value of this evidence, given that it was laid on a horizontal surface. This evidence has not been relied upon by the Tribunal to support the Applicant’s assertion that it is possible to lay the tile without visible sheet joins.
[23] The Applicant argued that the surface of the pool shell had not been rendered flat as part of preparation for the tiling. He produced evidence from Nathan Green to support this submission. Mr Green is a qualified tiler who was engaged to retile the pool.
[24] Mr Green provided evidence that he did not consider the rendered substrate prior to tiling was sufficiently flat and this resulted in unevenness in the finish. He said a wavy effect would result as tiles would follow the shape of the render.
[25] Mr Green advised that he was present on the site at the time of pool construction, engaged to do other works, and stated that he observed the work performed under John Penny, the tiler subcontracted by the respondent to perform the works, from its commencement to completion.
[26] It was his observation that John Penny did not use a fibreglass trowel or flat object to bed the tile into the adhesive. This resulted in an irregular surface. He stated he observed Mr Penny to use a 1ml edge of the trowel and that in his opinion, creates a lift from row to row. He said at the finish of each day he observed that Mr Penny did not fret the edge of the tile, and the next day this created problems bedding it in, as the glue had hardened before tiling had started. Extreme lipping was the result. He observed Mr Penny use a grinder to grind that off, but indicated that in usual circumstances this was done while the glue was wet. He noted that Mr Penny missed bits when grinding excess glue the following day. He stated that the lipping was observably worse where the days tiling had ended. He stated that there was also lippiness throughout the tiling. In his view a 6ml notch trowel was needed for the job as less would not be quite enough.
[27] Mr Green produced a sample sheet of tiled Trend mosaic which he had laid, which demonstrated an even finish and stated that such an even finish was achievable on a well prepared surface. The Respondent argued that this was produced on a horizontal surface, not comparable to the vertical pool line, and unreliable evidence in that regard. The tribunal places no weight on this sample of Mr Green’s laying of the tile as evidence of the ability to lay the tile satisfactorily as conditions are not comparable.
[28] Mr Green did not consider the tile was problematic to use. It was laid with a 6ml trowel. He stated that the key to his gaining the desired effect was surface preparation and a flat trowel to push the sheet on. There was enough adhesive behind the tile that when embedded it shouldn’t shrink. He said the adhesive needs to be thick enough hold the weight of the mosaic. He said he did not have to spend inordinate to perfect it, and the tile easily achieved a satisfactory standard.
[29] Mr Lee Foster, Contract Administrator at Kidd and Co Architects, acted as agents for the owners, and participated in each site meeting. He stated that he was informed by Kernohan Constructions of the defects very early in the construction, specifically lacking alignment. He stated that the meeting of the 21 February 2009 with the owner derived the result that the tiles would be rectified. The owner was concerned about the quality of the tiling, and it was understood as a result of the meeting that the quality would improve by the tiler rectifying the deficiencies. Given the nature of the job as a multimillion dollar project, the quality was expected to be exceptional across the whole project. This was not the case with the pool tiling, according to Mr Foster. He said that the owners were fully informed throughout the process
[30] Mr Foster said that he had undertaken research into the different mosaics available and quality of the tiles. In his view if the shell of the pool was sufficient, the coverage of the adhesive is good, but a flat surface was necessary.
[31] Mr Foster said that the mosaics were only part of the defects with the pool. Defects in set out cutting laying and grouting of the waterline tiles and coping. In his view the quality of the workmanship deteriorated as the job progressed.
[32] He stated that given the value of the contract the best and most experienced tiler would be employed to complete the works.
[33] The Applicant argued that the hot melt system of adhesion was a new technology which introduced more adhesive to the back of the tile than other backing methods and was designed to cause the least obstruction between the tile and the wall. The new method is asserted to improve coverage with the polyurethane backing by precisely bonding each piece of mosaic. He subjected the glue to testing through ParadexDavco Technical Services Report. Adhesion Tests conducted on 30 April 2009 produced results that the strength of the adhesion was 1.3Mpa, where the standard requirement was .5Mpa, significantly greater indicating a strong bonding.
[34] Further tests for moisture distortion were conducted in April 2010. Don Muir of ParadexDavco gave evidence to the tribunal. Mr Muir conducted tests to test the strength of the adhesive backing. Four samples returned a result of 1.5Mpa, well above the normal Mpa. The tile was laid with a 6ml notch and tapped with a rubber float, and tested for flatness with a steel ruler. No shrinkage was found.
[35] When immersed for seven days there was no shrinkage to any degree, and no deflection.
[36] The adhesive dried overnight and no deflection was noticeable. He explained possible sources of deflection of the product may be the size of the trowel used, resulting in too much glue on the surface, but that the plastic matting on the back should not be the cause. In his view there is no reason that the tile would not be used.
[37] The Respondent raised concerns that these tests did not test the last row in each sheet, the samples appearing 9-10 tiles wide rather than 15 tiles. Mr Muir stated that the entire sheet had been used, and the matting had stayed intact over and above the requirements.
[38] The Respondent questioned whether these tests had been performed on a horizontal plane, and therefore less likely to show shrinking or slumping problems. Mr Muir stated that if laid with a 6ml or even 4ml trowel, and the backing embedded in the glue, the variation should be taken up. Mr Muir stated that a polymer additive adhesive would reduce the likelihood of shrinking and increase the strength of the tile’s adhesion. A cement based adhesive in his view would cause the shrinking to occur. The Respondent denied that a cement based adhesive was used.
[39] Mr Muir made the point that glass in mosaics is not perfect, and that is part of the characteristics of glass, being a hand crafted product. Some may look at this as a defect.
The Respondent’s Case
[40] The Respondent argued that the tile itself was the source of the problem, and did not meet Australian Standards. No evidence was led as to what was Australian Standards beyond the assertion. He indicated he had raised concerns with the Respondent about the adequacy of the tile on or about 12 February 2009. As a result of site meeting on 21 February 2009, wherein the owner accepted the work, he was encouraged to continue the work to completion despite these problems. He argued that the owner viewed the work at an hour of the day when the problems were not obvious, and in this sense had been misled into accepting the work at the time. He acted in reliance of this to complete the works despite the poor quality that the tile produced.
[41] The Respondent denied that he had accepted that workmanship was poor in discussion between the parties during the construction. He maintained that he made the Applicant aware of problems with the tile and was instructed to complete regardless. He was of the view that there had been sharp timelines that created a pressure to complete the job within stated timeframes in order to avoid harsh penalties upon the Applicant builder imposed by the owner.
[42] He stated that the Trend tile is not applicable to Australian Standards. He argued the imported hot melt system has problems with the coverage of the adhesive on the back, noting the last tile on each sheet of the imported trend tile was “hanging in the breeze” without adhesive covering the bulk of the tile. He described the backing as uneven.
[43] He exhibited tiles the Trend tile imported to Australia by Reviglass demonstrated a plastic central to the tile in contrast to the imported tile. He considered this was likely to create a flatter more even application. The imported tile was submitted as an exhibit.
[44] The Applicant also provided an imported tile by way of exhibit. There was a remarkable difference in the coverage of both tiles on the last tile. Notably the Applicant’s adhesive was centrally placed on the last tile, but the Respondent’s exhibit had much less coverage. These tiles were noted to come from the same pack. There were apparently therefore nuances in this and the tile provided by the Applicant did not support the assertions made by the Respondent. The Applicant argued that the tile the Respondent exhibited was not a good example of the hot melt system.
[45] He exhibited a Trend Australia tile which he stated showed a sheet of film at the front and no interruption to the back of the tile. He described this as the classic form of adhesion for mosaics.
[46] He exhibited a Bizazzo tile, a competitive mosaic manufacturer, which provided an even mesh backing.
[47] The Respondent also argued that the nature of mosaic tiles, and in particular Italian mosaics, begets an imperfect finish. He submitted a photograph under annexure “Q” of his statement photos from the website of Trend Italy demonstrating mosaic tiles. The photographs clearly show an imperfect finish, with what the Respondent describes as uneven sheet lines, and grout joints which are not dead flat. He argued that the Italian tiles can only produce such an imperfect fitting, and that the Italian hot melt system contributed to that imperfection. He stated that the photo is evidence of that Italian standards fall below Australian, and mosaics were seen as a ‘work of art’.
[48] He stated that he had never seen the hot melt system prior to this job, and that he tried to do the best he could with the tile he was given. He said that at the time he was given the tile he did not think it would cause a problem. He considered the glue drying cause pulls out the tile. He denied that too much glue was used and stated that a 7ml notch was used, denying a 4ml was used. He said that he had to use a deeper notch trowel as there was more glue was necessary.
[49] Robert James, witness for the Respondent, is managing director of the Pool Tile Company, who is in the business of supplying imported mosaic tiles and travertine to the swimming pool industry since 2003. In his view, the unevenness of the backing adhesive of the “hot meld” system resulted in unevenness in the finish. He considered it virtually impossible to have an even finish as the tiles would tilt or “rock” where they were unsupported, giving a wavy effect. He considered the tile itself would make it impossible to have a satisfactory result. Cutting the edge tile off would overcome the problem of sheet joins but would result in wastage. He stated that he did not import this tile, as it was flawed and people would not pay for them. He had no other experience with this tile beyond its presentation to him by the Respondent.
[50] Mr James considered it would be more appropriate to use a 4ml notch trowel. A bigger trowel would require more adhesive in his view. He considered the thickness of the glue would not have any impact on the quality of the finish with the tile.
[51] Nicholas Parry, witness for the Respondent is a licensed ceramic tiler specialising in swimming pool tiles, particularly glass mosaics, and has been working in the industry since 1987. He considered that the tile showed irregularities in the hot melt glue system in that glue was not evenly spaced along the centre of each tile or edge, which could cause the tile to dip and rise, creating deflections as the glue dried. He compared the Rev Glass hot melt system with the imported tile and noted the rev glass hot melt system provided more even coverage, and was better quality.
[52] Mr Parry was asked by the Applicant what other possible sources of shrinkage beyond the tile backing. He indicated shrinking in the adhesive, using a notch trowel bigger than 6ml. He considered that a deeper notch trowel would require more glue.
[53] Mr Parry commented that he had never seen the tile before and would refuse to lay it given apparent flaws in the backing. He considered there would always be irregularities. He commented that to reduce the visibility of sheet joins the tiler would have to cut and shorten the sheet resulting in wastage, but not as much as 10% and a degree of wastage was usually anticipated in any job.
[54] Evidence of John Penny was that the pool walls were rendered months before tiling commenced when they had better access, but the render was perfectly flat. He noted that there was other tradesmen working over the top and around the pool shell near the steps and spa who walked over the top of tiling work done as it was being laid. He noticed shrinkage in corners or edges of sheets when the glue dried, pulling the tile back and creating unevenness between sheets joins. He stated that he had never used the tile previously. He stated that he had never previously had a problematic finish with a mosaic tile. He had previously done work for the managing architects, Kidd and Co, and they were satisfied with this work. He had not previously worked with this tile and was not perturbed when he first saw it, thinking the backing was a new type of backing. He stated that he informed the Respondent that the backing was the source of the problem.
[55] Mr Penny stated that he had to use extra glue because there was very little glue on the backing of the tile. He had to use a 6ml notch trowel because of this. He gave evidence that the dried film of glue would be taken off each day with a grinder, the next morning, or by the time he would lay the next sheet.
DISCUSSION OF THE EVIDENCE
[56] The parties’ respective arguments suggest that a central issue before the tribunal was whether there was a poor standard of workmanship that was not at the standard to be expected or whether there were inherent flaws in the nature of the tile.
[57] It was evident this construction was a high profile job, which exacted considerable scrutiny from the owners, and attracted the Applicant builder an award from the industry. It was evident from the Applicant’s submissions that he exacted a high standard from his subcontractors because of this, and the imperfect mosaic tiling had detracted considerably from the standard expected. Lee Foster, the owner’s agent, noted the quality of tiling work did not reach the standard expected of a pool which cost in excess of $100,000, and was well below the standard of the balance of the multi-million dollar construction.
[58] The question arises, whether the nature of the mosaic, being frequently referred to throughout the proceeding as a ‘work of art’, was not of itself able to provide the level of perfection demanded. I think this point can be dismissed because a “flawless finish” was achieved when the pool was retiled, using the same tile, and substrate rectified. Also comments about the mosaics by Mr Muir of ParadexDavco refer to the imperfections in the glass rather than the symmetry of the laid tile.
[59] The Respondent has exhibited a range of mosaic tiles to support his contention that the imported Trend tile had an inferior adhesive system. In light of the evidence of ParadexDavco, these assertions are not supported.
[60] The Testing conducted by ParadexDavco clarified that there was no flaw in the tile’s adhesion, and that it performed significantly in excess of the standard. Don Muir’s evidence clarified that the necessity to bed the tile into the adhesive.
[61] According to Nathan Green’s evidence, a flat object was not used, but the 1ml edge of the trowel in the bedding in process which created a lift.
[62] The Tribunal places weight upon the evidence of ParadexDavco who have conducted scientific tests upon the tile to confirm their findings. Although they have had no prior experience with the tile or backing system, their investigations were conducted using scientific methods to test the strength of the tile’s adhesion and durability under water.
[63] Evidence put forward by tile supplier Robert James indicates he had no familiarity with the tile nor the hot melt system. The literature from splashmagazine.com.au contradicts the evidence of Mr James. I place greater weight on the published article on pool mosaic sheeting systems in that regard. His evidence was inconsistent with the Respondent’s own evidence with regard to the depth of the trowel to be used.
[64] Similarly registered tiler Nicholas Parry indicated he considered the tile was flawed due to the inconsistency of the backing system and he would not use it. He indicated he had no direct experience with the tile. Given his unfamiliarity with the tile there is a difficulty relying on this evidence. It is also inconsistent with the scientific findings.
[65] The evidence of Nathan Green indicated that he observed that Mr Penny had not completely rendered flat the surface of the pool shell. Further Mr Penny’s technique was observed to lead to the visible sheet joins.
[66] Mr Penny’s own statement indicates that the pool shell was rendered several months before tiling commenced. It is reasonable to consider that the exposure to the elements over several months may undermine the integrity of the render. The Tribunal therefore accepts the evidence of Mr Green over that of Mr Penny that the rendered surface was not completely flat.
[67] The evidence of John Penny indicated that he used extra glue to counter the inadequate backing adhesive. The Respondent’s evidence also attested to the need to apply more glue than usual. The excess glue was ground off the next day. It appears the use of excessive glue, according to the splash magazine literature, is a source of failure of swimming pool mosaics. Mr Muir of ParadexDavco suggests that too much glue on the surface may also source deflection.
[68] The weight of this evidence suggests that the tile is not flawed of itself, and that the technique was the source of the defects.
[69] The photographic evidence and that provided by Mr Foster and the Applicant indicate that there were visible defections and obvious sheet joins throughout the works, and this fell below the standard expected for pool contract of this value. It was consistently recorded in site meeting minutes that this work was to be rectified before completion.
[70] The evidence indicates that the tiler was unfamiliar with the new technology on the tile backing, and did not take steps to familiarise himself with the manufacturer’s installation instructions, which were written in Italian. Given the value of the contract, the concerns which were communicated very early in the project by all parties involved, it is reasonable that the instructions be translated into English and followed. The evidence was that these instructions were in the box but were not requested by the Respondent or his subcontractor.
[71] It is evident that Mr Penny is a tiler with many years experience, and has developed a solid reputation based on other work. The Tribunal concludes however, in this instance, the respondent and Mr Penny did not familiarise themselves with the requirements of installation of this new technology, and as a result, generated tiling work that was defective. It is the Tribunal’s view that the works fell below the standard expected for a project of this value, and accordingly the work was not performed in an appropriate and skilful way or with reasonable care and skill. The Tribunal finds the Respondent in breach of the statutory warranty within s 44 of the Domestic Building Contracts Act 2000.
[72] The Applicant claims the cost of retiling by NRG Tiling Pty Ltd, and I note the invoice 0001187 dated 8 August 2009 indicates this cost was $13,872.10. Interest is payable under s 77(2)(b) of the Queensland Building Services Authority Act 1991, and this should also be awarded from the date of the BCIPA adjudication, 5 March 2010, some 411 days. Under Regulation 34B, this is at a rate of 10%.
[73] He also claims the cost of replacement of the tiles, and provides an invoice made out to the owners from Jerrems Stone and Tile in the amount of $5,635 for 115 units of Trend Italian Glass mosaics. However, at no time did the Applicant carry this cost. It was a term of the contract between the parties that the owners supply the mosaic. The Applicant states that he intends to reimburse the owners, and while the Tribunal does not doubt the Applicant’s intention, there is no legal basis to award him such compensation, which could be only the subject of action by the owners themselves.
[74] An additional $2,000 is claimed for costs awarded under Building and Construction Industry Payment Adjudication which the applicant argued was wrongly claimed by the Respondent in that process. The claim does not form part of the application and has been included in the Applicant’s statement of evidence. Inadequate evidence was led on this beyond the Applicant’s statement. In these circumstances the Tribunal makes no award in this regard.
WATER FEATURE LEAK / FOUNTAIN
[75] The Applicant argued that the water blade was damaged during installation causing water to flood the front bedroom.
[76] The Respondent quoted $3,950 to supply and fit a 2.4m water blade and pump including valves and plumbing with the pricings on 17 December 2007. He argued that there were no leaks in the weir when he performed the work and he was not responsible for damage done when the pool was retiled.
[77] It is noted the dates on all the invoices for work undertaken have occurred after the retiling toward the end of 2009 and beginning of 2010. All of these invoices are dated after the invoice of 8 August 2009 for retiling by NRG Tiling Pty Ltd. Therefore the Tribunal cannot be satisfied that the damage has occurred as a result of the Respondent’s negligence. There is no award on this basis.
COSTS
[78] Finally, there is an application for costs. Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 requires that each party bears their own costs. This is displaced only in circumstances that the interests of justice require under s 102 (1) and within the scope of s 102(3).
[79] There are no factors in this case which suggest that it is in the interests of justice to award costs. The application for costs is dismissed.
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