Knuth, Roofguard Roof Painting v Archer

[2018] QCATA 185

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Knuth, Roofguard Roof Painting v Archer [2018] QCATA 185

PARTIES:

JEFFREY ALAN KNUTH
ROOFGUARD ROOF PAINTING
(applicant/appellant)

v

RON ARCHER

(respondent)

APPLICATION NO/S:

APL070-18

ORIGINATING APPLICATION NO/S:

Q12/17

MATTER TYPE:

Appeals

DELIVERED ON:

22 November 2018

HEARING DATE:

23 October 2018

HEARD AT:

Brisbane  

DECISION OF:

Justice Carmody

ORDERS:

The application for leave to appeal or appeal is refused.

CATCHWORDS:

APPEALS – MINOR CIVIL DISPUTE – where the tribunal found the applicant liable to repay $7,000 for breaching anti-mould warranties for a protective roofing paint system applied to the respondent’s roof – where the applicant argues a fundamental mistake of fact – where the  applicant alleges the paint used on the respondent’s roof was a different product not covered by anti-mould guarantees – where the applicant seeks leave to file a post-hearing affidavit in support of his submission – where there is no satisfactory explanation for the witness’ unavailability for direct examination at the tribunal hearing – where even if the evidence is accepted it does not prove the respondent knew a different product was used – where leave is refused

APPEARANCES & REPRESENTATION:

Applicant:

Jeffrey Alan Knuth

Respondent:

Ron Archer

REASONS FOR DECISION

1. The application is for leave to appeal a $7,000.00 tribunal refund order in a consumer dispute after being held liable for breaching anti-mould warranties for a protective roofing paint system.

   The context

2. Roofguard primed and applied 2 coats of “Solar Reflect” (RSR) (described as the best available in “our tropical climate”) to the respondent’s house and shed roof in Ayr.

3. He later claimed the “product used” by Roofguard failed to perform on coated areas “as advertised and guaranteed” because it was not self-cleaning for surface mould.

4. At the hearing the applicant unsuccessfully contended that the mould in issue was due to external elements beyond its control (e.g. low rainfall or sugarcane ash) and in any case the warranty was voided by the respondent’s own failure to regularly maintain the paint work as recommended.

5. The applicant submitted a grab bag of appeal points in his Form 39. While he did not seek to rely on any of them at the hearing they should be disposed of for completeness.

6. He claimed that because the roofing work did not contravene consumer guarantees (i.e. it was applied with due care and skill, it was fit for purpose and completed in the estimated time frame) the tribunal’s decision should be overturned. He also argues that the question of whether Roofguard was entitled to refund or repair the paintwork depends upon a finding under the ACL that the problem was “minor” or “major” and such a finding was never made by the tribunal. Roofguard offered to clean the roof (for a fee) which was refused. The application of the consumer guarantees is an entirely new argument and the tribunal did not make an error by failing to consider points that were not raised by either party at the hearing.

7. He also raised that Roofguard is not liable for a full refund in any event because the claim was only for the respondent’s house roof ($5,500.00) and did not include the shed roof ($1,500.00). This claim is clearly contradicted by the transcript.[1]

   [1]Transcript of proceedings, 21 February 2018, 1-2:15-20.

8. Lastly he contended that the correct avenue for a complaint about the paintwork was via the QBCC, where there is a 3 month time limit for complaints about structural defects and a 7 month limit for non-structural defects and the applicant’s complaints were raised more than 12 months after the installation of the paint. There is no merit in this point as the tribunal clearly has jurisdiction over consumer-trader disputes.

9. The sole argument advanced at the oral hearing of the leave proceeding (first raised after the Form 39 was lodged), however, is that the order is vitiated by a fundamental mistake about which Roofguard product was in issue.

10. As the applicant explains in an appendix to the Form 40 dated 16 August 2018, he has “…taken the time (since the hearing decision) to question and investigate the circumstances, the contract and type of product used on (the respondent’s) roof” and after speaking to his brother, former company salesman Troy Knuth, he is convinced that the respondent was left with “…ample and detailed information in regard to the product (actually) applied to his roof”; that is, the Danish Iso Paints Nordic AS which does not claim to be self-cleaning or come with a no mould guarantee.

11. He says that the respondent’s minor civil dispute claim succeeded on the tribunal’s misunderstanding (he himself induced) that the product used was the one advertised on the Roofguard website until 2017; that is, a self-cleaning “German innovation, polyurethane protective coating” and covered by an exclusive no mould guarantee. He explains that the (German) product advertised on the website was not the (Danish) paint applied to the respondent’s roof in February 2016 because the company stopped importing Iso Paints Nordic after the respondent’s job and “… moved onto manufacturing a product in Australia”.

12. The submission is supported by a belated statutory declaration from Troy Knuth.

13. Mr Knuth solemnly and sincerely states that prior to signing the contract on 11 February 2016 the respondent was given “Iso Nordic Documented Pamphlets” and related information containing the “…product’s maintenance procedures”. He says that the respondent opted for RSR and he “…seemed unconcerned at the time about issues related to possible mould problems” adding that (the respondent) “…was made very clear and aware to the fact he was to receive Iso paint (with a Dulux primer) applied to his roofs … (and) Dulux never offered a warranty with other brands with their primer (and) … only ISO Nordic would offer warranty with other brand primers”.

14. The product description attached to Mr Knuth’s statutory declaration refers to “… a solar reflecting roof coating … developed on the latest technology in an entire new and revolutionary way” and “…offers ultimate protection against sun, rain and snow. Depending on location, design and roofing material, the roof will appear nice and beautifully painted for many years since the effect of solar radiation is lowered dramatically”. Notably “self-cleaning” is claimed for the product but a treatment of “Iso A-Clean” approximately every 2 years “… is recommended … to keep a nice clean surface” and deal with unwanted algae and mould.

15. The care and maintenance guide for the new German roof paint, by contrast, identifies mould as the most common cause of loss of surface appeal and, despite the self-cleaning properties of the membrane coating, recommends “… to get the most out of your roof coating and to comply with warranty” washing down the roof with a detergent and mop every two years.

16. Additional prevention strategies to help reduce mould growth include trimming back shady trees to allow in more sunlight and removal of nesting and roosting sites for bats and birds.

17. The Roofguard Solarguard warranty system dated 19 February 2016 (but not supplied to the applicant until 8 September 2017) is signed by Troy Knuth. It backs “their products” and is able to provide a 10 year warranty supported by a 15 year “…life expectancy” but an express disclaimer exempts Roofguard from responsibility for mould above the product surface as a result of surrounding unmanaged trees.

18. The tribunal’s minor civil claims jurisdiction is to resolve disputes according to the substantial merits by making orders it considers fair and equitable to the parties based on the disclosed material.

19. The tribunal is to decide the case before it on the basis it was conducted. The tribunal did that according to the facts open on the evidence and the correct law. The inevitable consequence for a litigant who relies on the wrong defence or does not call relevant evidence is loss. Of course, remedies may apply where the winning party deliberately (or recklessly) misleads the tribunal into fundamental error but nothing like that happened here. It is not for a litigant to assist his opponent to his own detriment. There is no sign of the consumer taking unfair advantage of the trader.

20. Appeals primarily exist to correct material errors. Where, as here, leave is required the error must also cause substantial injustice.

21. Roofguard has 40 years’ experience in the sun reflecting roof coating business. Responsibility for any misunderstanding at the hearing clearly lies with it. Also the time to investigate and answer contested assertions in the claim is before, not after, the tribunal decision. There is no satisfactory explanation of Mr Knuth’s unavailability for direct examination at the tribunal hearing.

22. Even on the benevolent assumption that this is truly a case of mistaken product identity the applicant fails the test for a grant of leave. First of all the contract documentation does not clearly distinguish between the Danish and German counterparts. Secondly, the warranty tendered at the hearing only specifically excludes liability for mould “above the product surface” due to unmanaged trees. No other category of exemption is mentioned. Thirdly, the Danish RSR product does say, somewhat elliptically, “…the client has a duty of care to maintain the roof by a regular standard maintenance system as per the policy of their (the respondent’s) insurance guidelines” but there is no evidence of any “policy of their insurance guidelines” and, more significantly, maintenance is suggested within 2 years of application, or 6 months after the mould problem in issue was evident.

23. No arguable appellable error is demonstrated. 

24. Roofguard’s monetary loss for not defending itself properly at the hearing should be left to lie where it falls and not shifted onto the unsuspecting consumer.

25. Leave to appeal is refused. The liability finding and refund order, therefore, both stand.