Longrigg v Delgeo Pty Ltd t/as Decker Decking
[2014] QCAT 126
| CITATION: | Longrigg & Anor v Delgeo Pty Ltd t/as Decker Decking [2014] QCAT 126 |
| PARTIES: | David Longrigg Vanda Longrigg (Applicants) |
| v | |
| Delgeo Pty Ltd t/as Decker Decking (Respondent) |
| APPLICATION NUMBER: | MCDO2273-13 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 10 January 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Adjudicator Bertelsen |
| DELIVERED ON: | 4 April 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent pay to the Applicants the sum of $13,638.60. |
| CATCHWORDS: | Supply – fit for purpose – composite decking installed – short term deterioration – complaint – inspection opportunity – warranty – resupply/refund – inadequacy of decking installed – refund |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | David Longrigg and Vanda Longrigg by phone |
| RESPONDENT: | Delgeo Pty Ltd t/as Decker Decking was represented by Alex Rich - company director |
REASONS FOR DECISION
Application
By application filed 5 November 2013 David and Vanda Longrigg (Mr and Mrs Longrigg) seek $25,000.00 to remove wood plastic composite decking supplied by Delgeo Pty Ltd (Delgeo) and replace it with hardwood decking at their home 1383 Grand Junction Road, Hope Valley, South Australia. Mr and Mrs Longrigg assert the wood plastic composite decking is not fit for purpose.
Background and evidence
In late 2010 Mr and Mrs Longrigg corresponded by email with Mr Alex Rich, a director of Delgeo, regarding the use of Envirowood, a wood plastic composite (WPC) form of decking marketed by Delgeo. At the time Delgeo did not have any approved installers for this type of product in South Australia. Mr and Mrs Longrigg were referred to the Envirowood website the brand name for Delgeo’s product at the time.
The website lauded the benefits of Envirowood as opposed to natural wood. WPC decking was represented to be water resistant, termite resistant, no cracks, minimum contraction/expansion of WPC, stability, minimal corrosion, no painting required, 15 years to age. Additional benefits included UV stability preventing rapid colour aging, low maintenance, weather and moisture resistance, hardiness and longevity, no splintering, warping or fading and resilience to oxidisation. A 15 year limited warranty applied.
With respect to installation the process was stated to be the same as timber decking. Envirowood was rebranded as Decker towards the end of 2010. They were one of the same product. The WPC Decking was supplied in late 2010 with construction being performed and completed by licensed South Australian builder Mark Bortolo in December 2010.
By email on 11 January 2011 Mr Longrigg complained of “massive gaps which have appeared soon after the deck being completed”. Decking had been laid “to ensure there were no gaps whatsoever before securing the ends by screwing into the joists. The next day these gaps started to appear …”. This email attached photos of staining as a result of rain.
By email on 12 January 2011 Mr Rich stated that the “decking should have been installed with at least a 2-3mm gap rather than flush – that may cause an issue, but you could be lucky it was hot (please advise what temperature) and it may not need adjustment. Please refer to the general instructions which should have been adhered to by your builder – all WPC installations are virtually identical …”. The email then referenced the Decker website which as far as installation/construction was concerned was identical to the Envirowood website.
Mr Longrigg by email of 12 January 2011 indicated that the Envirowood website made no mention of expansion/contraction due to weather, the need to build in certain weather or the need to leave gaps. He asked why that information was not provided prior.
By further email of 13 January 2011 Mr Rich stated “instructions are key, and we mention them on our website but several months ago they were not on there as the company was not launched officially until December when the instructions were posted on the Decker site and also provided with each order”.
By email of 3 March 2011 Mr Longrigg pointed out that he had electronic versions and hard copy printouts of all pages of the former Envirowood and Decker websites. Further emails ensued through to 4 April 2011 at which point negotiations broke down.
On 13 February 2013 Mr Longrigg emailed Mr Rich requesting that a representative attend to inspect the deck which was according to Mr Longrigg oxiding, splitting, delaminating, warping, twisting cupping staining and bowing. In response photographs were requested. Some photographs were provided.
Construction of the deck
Mark Bartolo was a licensed South Australian builder. He had never before built a deck using WPC material. He says in his declaration of 13 September 2013 that he was told by the Longriggs that WPC required no additional or different tools or methodology to build and that a qualified builder could build a deck using the products website guidelines. Mr Bartolo viewed installation information on a website Mr Longrigg referred him too. He saw diagrams, technical specifications, photos and detailed explanations on how to use the product. These were sufficiently similar to the requirements for a standard wood deck for him to be able to confidently take on the job. However, he did not recall seeing any reference to a requirement to leave specific gaps and rejected any claim that the installation was incorrect due to no gap being left between board ends.
Mr Bartolo goes on to say he installed the deck according to HIA standards based on information provided on the Envirowood and Decker websites utilising the clip system unique to Envirowood and Decker. He says he was present at the time of product delivery and that he did not see any installation instructions with the product. No one offered him installation instructions; that despite asking the Longriggs to provide contact details of someone at Decker to discuss things with no name was provided; that he was not advised written instructions were available; that he never had contact with any person representing Decker nor provided with the opportunity to speak to anyone at Decker. He says the deck was installed to HIA standards.
Specific defects asserted
Delamination oxidisation and dilapidation of decking boards
Mr Longrigg asserted the deck could not be used because of the fine surface powder sticking to hands, clothes and shoes. Mr Rich asserted the product would fail because fitting instructions were not followed; that a high pressure jet wash which was not the correct way to clean the deck had been used. The Decker website recommended using a low pressure water wash of less than 1000 psi. Mr Longrigg said his once only spray wash of decking was only at 800 psi.
Mr Longrigg had obtained on 8 October 2012 an investigation report from Housepect. Mr Pister, a registered builder and inspector from that entity stated in the report that the “plastic composite product is showing signs of failure and breaking apart after being laid 18 months ago”. He stated “the boards on the ends are splitting and delaminating”. The photos accompanying that comment are of a walkway section of decking with no joins requiring gaps to be left. The splitting of individual boards is evident.
Mr Longrigg also obtained a report from FMG Engineering dated 10 October 2013. Nigel Syder, Civil Engineer, from that entity observed according to the report the following:
·Horizontal cracks in the ends of the boards approximately 50mm long and 2mm wide.
·Longitudinal cracks in the surface of the Boards, mostly extending from the ends, approximately 50mm to 75mm long.
·Boards warped and deformed particularly at the ends.
·Shrinkage gaps opened within 24 hours of installation.
·Surface of material has faded, broken down and stains skin and clothing.
·The surface of some boards has delaminated.
·Mould build up and staining has affected a number of boards.
As part of his summary Mr Syder says “the location and pattern of the cracking together with delamination and deterioration of the surface is probably a manufacturing defect and as such it is the writers considered opinion the product is defective and not fit for purpose”. Photo 7 of the report depicts “cracking at end of board” in an area that did not require gaps to be left. The Envirowood website refers to the product as “resilient to oxidisation”.
Unsightly stains
The extent of oxidisation is clearly depicted in Housepect’s report and FMG Engineering’s report. A fine light ochre powder rubs off on the hand or adheres to paper upon contact.
Mr Rich asserted the deck surface was never portrayed as maintenance free but rather low maintenance as detailed on the website. He maintained the deck would require cleaning as detailed on the website at the time; that it was not a miracle product. He further asserted neither Housepect nor FMG Engineering understood composite decking.
The Envirowood website at the time referred to “low maintenance” in terms of staining, oiling, painting and sealing. The Decker website refers to “very little and most of the time no maintenance” and “sweeping and cleaning with simple household cleaners are enough to keep your deck clean”.
Deformities – warping, twisting bowing
Mr Longrigg asserted that boards had deformed since installation. Mr Rich said that because the product was not installed according to fitting instructions the product would fail.
Mr Rich referred to his email of 12 January 2011 wherein he stated the “decking should have been installed with at least a 2-3mm gap rather than flush”. That email was in response to Mr Longrigg’s email of 11 January 2011 asking Mr Rich to “please comment on the massive gaps which have appeared soon after the decking being completed”. The email goes on to say “when we laid this we were extremely careful to ensure there were no gaps whatsoever before securing the ends by screwing into the joists. The next day these gaps started to appear and have got worse”.
The Envirowood website stated “Envirowood will not splinter, warp or fade”, “no bows or warps” and offered a limited fifteen year warranty. The Decker website made the same claims and offered “under the normal service condition, the manufacturers guarantee is a limited seven years warranty against warping, twisting or splitting of this product to the original owner. After buying, if there are any claims from consumers, the consumer need to supply the original receipt, installers details and a test from the local technological superintendent office detailing the failing in the product”. Deckers website also stated “We will aim to resolve all warranty issues within twenty-one (21) days”.
FMG Engineering’s report refers to “boards warped and deforming particularly at the ends” and to “the verandah decking boards have warped particularly in the ends with short lengths having a curvature of approximately 5mm depth measured at the centre of the board”. The report stated further “The writer has reviewed the Decker installation guide and is of the opinion that the decking has been installed in accordance with the recommendations of the guide”. Warping and bowing is evident from the photos produced by the Longrigg’s and in the photos included in FMG Engineering’s Report.
Not durable
Mr Longrigg asserted the boards have chipped on the edges despite there not being any use of the decking likely to cause such chipping. Mr Rich asserted the products public profile, his experience in composite production and his suggestion that “little relevance can be made on the report”. The report referred to is Housepect’s report of 8 October 2012 stating “I question the materials durability to withstand the Australian weather conditions especially the heat, because the decking is delaminating within eighteen months of it being laid”.
Mr Longrigg referred to the Envirowood website which stated the product to be durable, better than wood and longlasting and stable and referenced the Decker website which stated “Nothing beats the durability that a good wood composite will afford you”.
Too hot to walk on
Mr Longrigg asserted that the decking boards heated up to an intense temperature when exposed to direct sunlight making it impossible to walk on when the air temperature exceeded 25 degrees celsius. Mr Rich said the decking boards were similar to any other material in that they can heat up in hot conditions; that there was nothing unusual about that. Mr Longrigg referred to the Decker website at the time which stated “It does not change temperature drastically because of the plastic fibres mixed in with the wood. You may be experiencing the hottest summer day but you won’t have to worry about your deck heating up too much and can also walk on it barefoot all you want without getting splinters”. FMG Engineering’s report observes the “surface has blistered and starting to peel”.
Increased wastage
Mr Longrigg asserted higher than expected wastage due to poor quality board cuts and short board length; that such required the ordering of additional boards. Mr Rich stated that he did not plan the Longrigg’s deck; that the decking board lengths at 2.9 metres were as chosen by the Longrigg’s. Mr Longrigg quoted builder, Mark Bartolo’s statement “I recall there was a higher amount of wastage than expected, which in my opinion was due to the size of the boards supplied being too short for the size of the job & the poor quality of the factory cuts which required me to trim some board ends”. Additionally the Envirowood website in addressing builders makes as one of its points “less wood waste during cutting and drilling”. Mr Rich considered 30 sq metres wastage on just over 100 sq metres of deck unbelievable.
Large gaps between board ends
Mr Longrigg asserted that due to change of temperature large gaps appeared between board ends; that they appeared immediately after installation; that they remain and are unsightly and that there was never any instruction that decking boards needed to be installed with gaps between board ends to allow for expansion and contraction due to temperature. Mr Rich asserted in response to Mr Longrigg’s enquiry that the builder wanted to speak to someone from Envirowood about installation, that Mr Longrigg was contacted the next day and given information in that regard.
Mr Bartolo stated “Before accepting the job I viewed installation information on a website David Longrigg referred me to. I recall seeing the diagrams, technical specifications, photos & detailed explanations on how to use this product referred to by the Longrigg’s. I recall these instructions were sufficiently similar to the requirements for a standard wood deck for me to accept the Longrigg’s job, confident this was within my capabilities”.
Warranty
The Envirowood website offered a limited fifteen year warranty. The warranty and care page expressed to be on that website was not produced to the tribunal. The Decker website offered a limited seven year warranty. That website said “Under the normal service condition, the manufacturers guarantee is a limited seven year warranty against warping, twisting or splitting of this product to the original owner…removal and/or replacement costs are not included in the warranty”.
Delgeo’s terms and conditions of trade produced to the tribunal state under the heading “General warranties and liabilities” that “Delgeo warrants for a period of three months from the date of delivery, that the goods will be free from defects in material and workmanship except defects normally regarded as being commercially acceptable.…”. Under the heading “Limited residential warranty” it states “The wood plastic composite goods from Decker will typically give years of serviceable life as an outdoor deck, cladding or screening when managed and installed correctly….Decker solid decking products warranty period is twelve years from the date of purchase”.
Mr Rich produced a document entitled “Decker wood plastic composite – residential warranty of Decker products”. That document stated “Decker solid decking products. Warranty period twelve years from date of purchase”. The document goes on to state “if Decker products: rot, split, crack, splinter….we will at our sole option either replace the affected product or refund the amount paid for it to the owner according to the fair wear and tear clause of the product….”.
Mr Rich produced a nine page laminated brochure style document which spoke at some length about Decker products. Under the heading “Do I have to follow the gap guidelines” the following words appear:
At the end of the day, this is your call but if they are not followed then any warranty claim may well be invalid. We have been fitting decks around the world for many years and some installers follow the gap guidelines rigidly and others don’t leave a gap at all! The gap at the board ends are there to allow for expansion as the boards heat up. We have seen many decks with breaker boards that never have any issues with zero gaps but each installation is different and thus we have to ask for the gaps to guarantee that if there is a problem that it is down to us and not the fitment. Likewise, for the parallel gaps which the quips create, there have been installations done which have zero gaps but they have drainage built in. Again, every installation is different and thus we have to ask for the gap for warranty adherence.
Mr Rich produced a document entitled “Installation Guide for Decker (WPC)” he said was applicable as at December 2010 and which states spacing (gap to be left when butting boards end to end) allowance applicable according to temperature.
Conclusions
In late 2010 Mr Bartolo licensed South Australian builder installed the Longrigg’s deck using WPC supplied by Delgeo. He followed the Envirowood and Decker website instructions that included diagrams, technical specifications, photos and detail explanations on how to use the product. He recalled the instructions were sufficiently similar to the requirements to a standard wood deck for him to confidently accept the job. He did not recall seeing any reference to a requirement to leave specific gaps between board ends. If an installation guide of the nature asserted by Mr Rich was available in December 2010 it was more than likely not available to Mr Bartolo at that time. Mr Syder of FMG Engineering stated in the report of 1 October 2013 that he “has reviewed the Decker installation guide and is of the opinion that the decking has been installed in accordance with the recommendations of the guide”.
The thrust of Mr Rich’s argument was that as the fitting instructions were not followed then the failure of the product is not the supplier’s responsibility/liability. There was no evidence to suggest that the product was damaged to the point of failure due to asserted incorrect installation. On the contrary there was evidence the decking boards installed end to end and abutting one another in very hot conditions immediately shrunk. There is nothing in the chronology of events that explains delamination, oxidization, stains, warping twisting bowing, absence of durability or heat retention. It was perhaps unwittingly fortuitous that the decking boards were laid in the heat. If the suggested gap of 2-3mm had been left the gaps after shrinking may have been that much the greater i.e. at the time of installation the decking boards had most likely expanded as much as they were ever going to expand. The contraction has left gaps which have persisted to the present. No causal connection or correlation between the numerous failures complained of and the manner in which the decking was initially installed has been established.
That is quite apart from the fact that Mr Bartolo said he installed the deck in accordance with instructions sourced from both the Envirowood and Decker websites as well as Mr Syder’s statement that he reviewed the Decker installation guide and was of opinion that the decking had been installed in accordance with the recommendations of the guide.
Mr Longrigg was prepared to live with some dust and the odd crack. There was no expectation on his part of a ‘miracle product’. Mr Longrigg invited inspection of the product/decking boards as installed but that was declined by Mr Rich who requested photos instead.
Mr Rich criticised the reports of Housepect and FMG Engineering but instead of arranging an inspection by his own qualified personnel or expert he relied on his years of experience in the industry, absence of complaints generally to suggest that alleged incorrect installation must be the cause of numerous failures.
The Decker website in talking about consumer claims stated that the consumer needed to supply amongst other things a test from the local technological superintendent office detailing the failing of the product. It was never made clear to the Tribunal exactly what this office was or whether such an office even existed.
Mr Rich’s conduct was characterised by a consistency of denial that there could possibly be any defect in Envirowood/Decker products.
The Tribunal accepts the evidence of Mr Longrigg supported by photographic evidence (including photos in Housepect and FMG Engineering’s report) that delamination, oxidization and dilapidation has occurred; that unsightly stains have appeared; that deformities – warping twisting and bowing have occurred; that early deterioration is at odds with numerous representations on both the Envirowood and Decker websites; that shrinkage revealing large gaps occurred; that all of these deficiencies occurred within a matter of between a day and some months after installation; that the product/decking boards never performed as fit for purpose.
Mr Longrigg was aware of the warranties in various and somewhat conflicting forms especially timeframes. Those warranties appear to have been consistent at least to the extent that such were limited to resupply or refund.
Apart from any other consideration under the former Trade Practices Act and the current Australian Consumer Law the goods sold were always required to be of merchantable quality and fit for purpose i.e. the quality must accord with the price and description of the goods (decking) and be fit for the purpose that the consumer, in this case the Longrigg’s, described as the use to which the goods would be put. Here the decking was supplied to build a deck.
The decking in its present form is virtually useless in terms of the normal suburban household use to which it was to be put. It will have to be replaced. Some three years have passed. Opportunity was afforded to inspect and if necessary resupply. That never happened. It is appropriate therefore that the sum outlaid for purchase of the decking be refunded to the Longrigg’s ie $13,354 together with the application fee of $284.60 a total of $13,638.60.
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