Loesch v Placid Pools Pty Ltd
[2018] QCAT 46
•1 March 2018
| CITATION: | Loesch v Placid Pools Pty Ltd [2018] QCAT 46 |
| PARTIES: | Ralph Loesch (Applicant) |
| v | |
| Placid Pools Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL 093-17 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15 December 2017 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member King-Scott |
| DELIVERED ON: | 1 March 2018 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal directs that the Application is dismissed. |
| CATCHWORDS: | Contract – Home owners refusal to allow pool builder to carry out aspects of his work – builder not allowed to apply acid wash or sealant – owners subsequent complaints of rust stains and organic material in aggregate. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | In person |
| RESPONDENT: | Peter Hamilton, Manager of the Respondent |
REASONS FOR DECISION
Introduction
Mr Loesch, and his wife, Beatrice, also known as Trixie, engaged Placid Pools Pty Ltd ("Placid Pools) to build a swimming pool at their residence at 16 Totley Chase, Trinity Park Cairns.
The contract for the construction of the pool is dated 23 March 2016. It cost $26,500. Work commenced on 22 June 2016. It became apparent, at about that time, that construction of a decorative concrete pool surround had not been included in the contract. A variation in writing was signed and approved to include the construction of the surround, comprising an exposed concrete aggregate, at an additional cost of $6,356. The total cost was therefore $32,856. So much is not in dispute.
The Claim and Defence
Mr Loesch, who is a qualified civil engineer, has some knowledge of projects involving concreting.
Placid Pools engaged a subcontractor, Wayne Cox, to carry out the concreting work. The concrete was supplied by Pioneer North Queensland Pty Ltd and arrived at the site premixed in an agitator.
Mr Cox's job was to lay and treat the concrete to produce the exposed aggregate appearance.
Mr Loesche claims that the aggregate used contained organic impurities, being woodchips and bark, as well as ironstone which resulted in the appearance of unsightly rust spots on the surface. He, also, claimed that there were cavities or blowholes in the concrete.
Placid Pool's defence is that ironstone is naturally occurring in the raw material, particularly, in North Queensland, and that small amounts of organic material also finds its way into the concrete aggregate mixture. Placid Pools alleges that Mr Loesche interfered in their work, more particularly, the work of subcontractor Wayne Cox and is the cause of the problems Mr Loesche is now experiencing.
Mr Loesche filed quotes for rectification of the work, one from Sven Margraf Constructions of $14,721.85 including GST. The work entailed in that quote, was to rip up the existing concrete and relay it. The other quote was to clean and strip the concrete and, then apply a sealant at cost of $4,140 including GST. No one gave evidence in support of either quote. It was clear that Mr Hamilton objected to the evidence.[1] Mr Loesche appeared to abandon reliance on the quotes and relied upon a quote by Mr Sunny Ng which I will refer to later in these reasons.
[1]Transcript 1-34 and 1 - 37
Mr Loesche gave evidence that he and his wife bought the house newly constructed in 2010. It had an exposed aggregate patio which they wished to match with the new work. There was a discussion as to whether the particular surface had been sealed at some stage. Mr Loesche maintained that it hadn't, although, I am not entirely convinced that is the case.
Placid Pools’ case was that Mr Loesche interfered in the performance of the contract by attempting to direct the subcontractor, Mr Cox, on how he should carry out his duties. Mr Cox gave evidence that Mr Loesche argued that he should not install ableflex[2] between the pool and the new concrete area. Mr Loesche said this was untrue[3] and that there was no such discussion and Mr Cox has made it up. I accept Mr Cox’s evidence. There is no reason for him to make up the complaint.
[2]I understand that ableflex is material used as a joint filler for expansion joints.
[3]Transcript 1-15 ll 1, 1-69 ll10 - 18
On this occasion, Mr Cox, ignored this interference and carried on with his work. Mr Cox referred to a number of other incidents including one where he lost a worker who, according to Mr Cox, could no longer put up with Mr Loesche’s harassment of him on how he should carry out his work.
Relevantly, to the matters in issue, when Mr Cox returned to the site to carry out an acid wash to the newly laid concrete, a day or two after it had been laid, Mr Loesche refused to allow him to do so, as Mr Loesche thought it was contrary to good practice, when the concrete, in his opinion, had not fully cured. Mr Cox was permitted to water blast the concrete but that is all. Mr Cox returned some days later to carry out the sealing but, in his terms, he was hunted from the property. Mr Cox says he tried to explain to Mr Loesche that the purpose of sealing the concrete was to prevent rust staining.
Mr Loesche stated that the reason he asked Mr Cox to leave was because Mr Cox was requesting payment to apply the sealant. Mr Loesche said it was not necessary, it was not included in the contract and they were not buying it.[4]
[4]Transcript 1-19 ll 3 - 7
In cross-examination, Mr Loesche continued to maintain this allegation yet, surprisingly, he did not question Mr Cox about it when Mr Cox was giving evidence until he was prompted to do so by the Tribunal.[5] I do not accept any such suggestion was made by Mr Cox. Mr Cox provided a possible explanation. He says, that some eight months later, when he and another member of Placid Pools attended the site, which was after the dispute arose, that paying for the sealant was mentioned then.[6]
[5]Transcript 1 - 71 ll 40
[6]Transcript 1 – 72 ll5 - 15
After considering the matter, and taking account of Mr Loesche's persistent accusations against Mr Cox I am of the opinion that there was no confusion. Mr Loesche only abandoned the allegation that Mr Hamilton and Mr Cox were being untruthful when his attention was drawn to his, or his wife’s email dated 22 February 2017[7], where it was admitted that they had refused to allow Mr Cox to apply the sealant.
[7]Exhibit 1
It was not until February 2017 that Mr Loesche contacted Placid Pools complaining about the rust spots. In an email exchange it was explained to him that the rust spots arose from the failure to seal the surface. In an email response under the name of Beatrice Loesche, but acknowledged by Mr Loesche, as his document,[8] he stated that it was correct that the concreter had attempted to seal the aggregate surface within a few days of it being poured and that he told the concreter "emphatically" not to proceed.
[8]Transcript 1 – 50 ll40
The experts
Mr Loesche called an expert, Ian Victor Brauman, a civil engineer and work colleague. Mr Brauman was very experienced and claimed an extensive involvement in design and construction of concrete structures. However, I am not convinced he was as experienced in the laying and treatment of exposed aggregate concrete surfaces.
Mr Brauman express the opinion in his undated Statement of Evidence that the concrete around the pool was not of an acceptable standard. He gave his reasons as follows:
a) the texture and appearance was not uniform throughout the area;
b) there should be no visible organic material;
c) they should be no aggregate particles that cause unsightly staining;
d) there should be no blowholes larger than say 1 mm or 2 mm across.
Mr Brauman says he observed blowholes measuring 14 mm x 7 mm which he noted had sharp edges which could cause injury to children. He further observed that the durability of the concrete had been compromised by the organic particles that will break down over time and the ironstone particles that, eventually, could rust away, leaving cavities and blowholes. As well as these defects, the general appearance of the finished surface suggested that the concrete may not have been fully compacted. He further observed that swimming pool water often contained salt and other chemicals which makes it corrosive to concrete.
He stated that rainwater is on the acid side of neutral, making it also corrosive to concrete. Over time, water penetrating the surface could reach the steel reinforcement, causing rusting and eventual spalling of the overlying concrete. I thought this was rather an extreme view.
He recommended that the contractor be directed to remove and replace the concrete.
Cross-examined on his statement Mr Brauman conceded that the local material had a high incidence of ironstone. He accepted that a sealant would prevent oxidisation as long as the seal remained in place. He did not consider it was normal practice to apply an acid wash initially, after a pour, but agreed it could be done.
He agreed the cavities were not a significant problem and could be rectified by filling them in, with suitable material, but said the ironstone and organic material could not be readily treated or removed.
Mr Brauman was not asked, but at the conclusion of his evidence, volunteered his opinion on the range of different finishes. This was something that was not the subject of much comment at the hearing by Mr Loesche and was not commented upon by Mr Ng.
I was concerned that Mr Brauman was not truly an independent expert and I have borne that in mind when assessing his evidence.
Placid Pools called as an expert Mr Sunny Ng, the Operations Manager for Pioneer North Queensland Pty Ltd. It was his company that provided the concrete aggregate the subject of these complaints. I have been cautious in assessing his evidence as an "independent" expert as well, because of this fact. Mr Ng is a civil engineer, by profession.
Mr Ng considered the exposed concrete finish was satisfactory in placement in respect to line, level, and density of aggregate exposure. He observed that the surface staining from ironstone oxidisation was quite evident. Mr Ng further stated that the staining of the surface had been caused by the incorporation of ironstone into the concrete mix, this, he stated, was unavoidable, due to the geological location of the Cairns Region source rock In his opinion, the source of contamination of the organic material could not be readily identified but could only have been incorporated before the final screeding of the wet concrete. He stated that it could have been introduced in the raw material or it could have been introduced on-site.
He advised that the use of sealants was considered best practice and was commonly used in the Cairns Region. Sealants, he said, would prevent the ironstone from oxidising and can be applied within 7 to 28 days of exposing the surface. The method employed to expose the aggregate surface is not related to the period for curing and sealing. Should the surface of the exposed concrete contain aesthetic anomalies they can be removed and the surface void repaired with a suitably sized aggregate and epoxy adhesive.
He considered organic impurities should also be removed at the time of the acid wash and pressure clean. Voids can be filled with a suitable replacement aggregate.
Under cross examination, Mr Ng stated that without sealing the ironstone in the aggregate would oxidise resulting in surface staining. Sealing will slow down the deterioration and would provide some chemical protection from pool chemicals and the like. Without sealing the surface voids would collect dirt and mould and would age prematurely. He agreed that had the surface been sealed it would have stopped the degree of staining that he observed. He commented that it may also have sealed the organic matter. He considered a sealant would have to be applied regularly from 1 to 5 years depending upon its quality, this was normal for the Cairns region.
He did not consider that there was a lot of organic matter in the concrete surface at the time of his inspection. He did not consider it unreasonable that the concreter would want to seal the surface two days after it had been poured.
Cross-examined about when the concrete could be acid washed and whether it was necessary to let the concrete cure for a day or two or whether you could acid wash the same day, he commented, that though he was aware of the Cement & Concrete Association of Australia guidelines some acid washes counter those recommendations as the producers of those acid wash products say they are less deleterious. I inferred from this, that it was permissible to use such sealants within a day or days of a pour.
In his report Mr Ng estimated the cost of remedial work at $1,090 which included 2 days labour.
Discussion
Mr Loesche was not a good witness. I have already made some observations about his credit. He was not always easy to understand and I have endeavoured to give him the benefit of the doubt where I thought there may be some confusion. Nevertheless, I think it is tolerably clear, that Mr Loesche refused to let Mr Cox apply the acid wash and the sealant, considering that he knew better than Mr Cox and Placid Pools, who I accept were very experienced and competent in the tasks that they were undertaking.
I preferred the evidence of Mr Ng to that of Mr Brauman. I thought Mr Ng was better qualified to comment on the matters relevant to this claim. Mr Brauman, I thought, expected a higher standard of finish than could reasonably be expected from the product.
I find as a fact that ironstone was a common element of the aggregate used in North Queensland and that the effects of oxidisation could be ameliorated by the application of an appropriate sealant. I also find that the presence of organic matter was not as bad as maintained by Mr Brauman and Mr Loesche and I prefer Mr Ng’s comments that I have already referred to in that regard.
Had Mr Cox been permitted to carry out his work then it may not have been a problem and, if it was, then Mr Loesche would have a stronger basis for his complaint. However, he has lost that opportunity, as it was not sealed at an early stage, and it is not known what effect the sealant would have on the organic matter. I do not think the blow holes are as serious as maintained by Mr Brauman nor do I not think the difference in surface textures was a significant defect. Neither were commented upon by Mr Ng, who I considered took a very pragmatic approach to the problem and its solution.
I note that Mr Hamilton did not even observe such contaminants when he carried out an inspection.[9] He criticised the photographs of the alleged defects. He says that they were taken very close up and the defects and not from 1.5 meters as recommended for defects.
[9]1 - 55 ll15 to 20
It was pointed out in the course of the proceeding that Mr Loesche was in breach of the terms of the contract[10]. Clause 7.5 provided:
The Customer and any person authorised by the Customer to attend the Site must not interfere with the performance of the Works.
[10]Exhibit 1
Further, Clause 24.6 provided:
The Contractor is not liable to make good any defects in the Works which have arisen as a result of:
a.any act or omission of the Customer, including the Customer’s failure to properly maintain the Works; ..
The refusal by Mr Loesche to allow Mr Cox to acid wash and seal the works is a clear breach of the terms of the contract. He cannot now claim rectification for work that Placid Pools was not permitted to carryout.
Mr Loesche relied on Mr Ng’s estimate of the cost of remedial work for justifying his claim for rectification as he argued that repeated applications would be required over at least 25 years, and those costs would far exceed the alternative cost of his claim. I remain uncertain as to what his claim actually is, but I suspect that he still maintains that the concrete should be ripped up and re-laid which is the basis of the Sven Margraf Constructions quote of $14,721.85.
In my opinion, the most that Mr Loesche could recover would be the cost of the remedial work as proposed by Mr Sunny Ng which involved not only resealing but removal of the stains already present. However, in my opinion, as he refused to allow Placid Pools to complete their work, it would be unreasonable, at this late stage to impose the cost of cleaning and sealing the work, when if it had been done during the performance of the contract, no cleaning of rust stains would have been necessary and sealing would have been part of the overall cost.
I accept the evidence that resealing of the concrete, on a regular basis is necessary, particularly, in North Queensland. As one witness commented, it is part of ordinary maintenance, just as one would paint a house. Consequently, I see no basis for Mr Loesche’s claim for the recurring cost of resealing.
It follows that Mr Loesche fails in his claim and I dismiss his Application. I invite the parties to file written submissions in relation to costs, if any. Such submissions, if any, to be filed by the Respondent by 12 Match 2018 and any response by the Applicant by 26 March 2018.
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