LOWKE and BGC RESIDENTIAL PTY LTD
[2017] WASAT 62
•31 MARCH 2017
LOWKE and BGC RESIDENTIAL PTY LTD [2017] WASAT 62
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 62 | |
| 20/04/2017 | |||
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:214/2016 | 11 AUGUST AND 17 NOVEMBER 2016 | |
| Coram: | MS H LESLIE (MEMBER) MR P MITTONETTE (SESSIONAL MEMBER) | 31/03/17 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Applicants' claim dismissed | ||
| B | |||
| PDF Version |
| Parties: | SHANNON DOUGLAS LOWKE TARRYN KAY HANCEY BGC RESIDENTIAL PTY LTD |
Catchwords: | Building complaint Workmanship Plastering Painting Painting preparation obligations Efflorescence |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1) |
Case References: | Fletcher and Leonard Willis trading as Willis Painting Service (unreported, WASAT, CC 873 of 2014, 12 February 2015) |
Orders | 1. The application is dismissed.,2. The Reasons delivered orally on 31 March 2017 will be published in written form forthwith.,3. By close of business on 14 April 2017, the respondent file with the Tribunal and copy to the applicants any application for costs and any submissions relied upon in support of such application.,4. By close of business on 28 April 2017, the applicants file with the Tribunal and copy to the respondent any submission they wish to make in response to any such application by the respondent for costs.,5. Thereafter, any costs application will be determined on the papers. |
Summary | The applicants' complaints were that the issues they were having with the peeling paint surface and the soft plaster surface under the paint layer on the internal walls of their home were due to defective workmanship on the part of the respondent's plasterer. The respondent disputed this, put the applicants to the proof of their allegations and provided an answer in hypothesis that the issues to do with the integrity of the surfaces came down to defective workmanship on the part of the applicants' painter, in particular that he had taken inadequate steps to ensure that the plaster surface was ready for painting and, if not, had applied paint prematurely or had failed to take adequate steps to apply a hardener to the surface prior to commencing paintwork. The applicants failed to establish to the Tribunal's satisfaction that the problems and issues were due to defective or deficient or unsatisfactory workmanship on the part of the respondent's plasterer. Their claim was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : LOWKE and BGC RESIDENTIAL PTY LTD [2017] WASAT 62 MEMBER : MS H LESLIE (MEMBER)
- MR P MITTONETTE (SESSIONAL MEMBER)
- First Applicant
TARRYN KAY HANCEY
Second Applicant
AND
BGC RESIDENTIAL PTY LTD
Respondent
Catchwords:
Building complaint Workmanship Plastering Painting Painting preparation obligations Efflorescence
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1)
Result:
Applicants' claim dismissed
Summary of Tribunal's decision:
The applicants' complaints were that the issues they were having with the peeling paint surface and the soft plaster surface under the paint layer on the internal walls of their home were due to defective workmanship on the part of the respondent's plasterer. The respondent disputed this, put the applicants to the proof of their allegations and provided an answer in hypothesis that the issues to do with the integrity of the surfaces came down to defective workmanship on the part of the applicants' painter, in particular that he had taken inadequate steps to ensure that the plaster surface was ready for painting and, if not, had applied paint prematurely or had failed to take adequate steps to apply a hardener to the surface prior to commencing paintwork. The applicants failed to establish to the Tribunal's satisfaction that the problems and issues were due to defective or deficient or unsatisfactory workmanship on the part of the respondent's plasterer. Their claim was dismissed.
Category: B
Representation:
Counsel:
First Applicant : Mr S Tribble
Second Applicant : Mr S Tribble
Respondent : Mr HM Reynoldson
Solicitors:
First Applicant : Arns & Associates
Second Applicant : Arns & Associates
Respondent : Hotchkin Hanly
Case(s) referred to in decision(s):
Fletcher and Leonard Willis trading as Willis Painting Service (unreported, WASAT, CC 873 of 2014, 12 February 2015)
Introduction
1 The dispute between the parties is a workmanship claim made pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Act), initially to the Building Commission (Commission) on 1 April 2015 and thereafter referred by the Commission to the Tribunal on 19 February 2016. The complaint essentially boils down to a dispute on the expert evidence as to the cause of the alleged defects. In a nutshell, the issue has been summarised as to whether the failures which the applicants are experiencing in their home are a result of a deficiency in the work of their painter, or whether they are as a result of a deficiency in the work of the plasterer engaged by the respondent builder, as alleged by the applicants.
2 It is common ground that the parties entered into a contract for building works in September 2013. There is no issue about the performance of the works, the dates upon which things were done, such as the float (render) coat in March 2014, the set (plaster) coat in April 2014 and the practical completion date (signed off across two meetings on 2 and 15 July 2014). It is common ground that the applicants arranged for the painting of the property through a separate contractor independent of the respondent, who was given access to the property and started work on 7 July 2014. It appears to be common ground that subsequent to the completion of the painting on 23 July 2014, the applicants noticed problems with the painted surface on the internal walls. The first applicant claims that he first noticed this prior to moving in; that he endeavoured to get the painter and/or the respondent to sort out the problem and indeed offered not to move in whilst the matter was resolved. The matter was not resolved and the applicants moved into the property on 31 July 2014, a week after the painting was completed.
3 The applicants have lodged evidence as to what they claim to be their losses from the alleged defective work. This includes quotations on rectification works, plus what are said to be the necessary outofpocket costs in moving out of the property to allow for rectification and removing and storing their goods (move out costs), for their proper protection during that time.
Onus of proof
4 The applicants have the onus of proving their case and satisfying the Tribunal on the balance of probabilities that the plasterwork is defective.
Allegations
5 The applicants' claim is that the difficulties arise from a plaster cohesion failure. Although it is common ground that, with the possible exception of one area, the surface to be painted was either not sealed at all or inadequately sealed prior to painting, the applicants say that the lack of sealer is not the cause of the problem. Relying on the analytical testing conducted by their expert, Mr Peter Wrobel, the applicants claim that the plaster was applied in two layers; they concede that the underneath layer, 'the bulk layer', was satisfactory in terms of mix proportions gypsum to lime and in application, but claim that onto the top of this layer, in a separate 'pass', the plasterers applied a very thin second 'surface layer' which was deficient in that it had too high a lime content. The applicants say that this caused the surface of the plaster to be 'soft' and insufficiently durable to cope with normal wear and tear within the household. The applicants allege that this softness in the plaster has also compromised the paint surface integrity in some way. It is not alleged that the paint is spontaneously disadhering and falling off the wall but rather that, with very little stress applied, such as the mere application and then removal of an adhesive stationary dot sticker, the paint comes away from the wall. They claim this is an indication of inadequate durability in the plaster because they claim that where the paint comes away from the wall in this manner, plaster residue can be found adhering to the underside surface of the paint indicating that the plaster itself has cohesively failed, rather than the paint film simply disadhering from the plaster surface and coming away on its own.
6 No direct evidence from the plasterers who did the work was called as to what was done or why, what 'mix' was used, what sections were plastered at the same time from the same batch of 'mix' or, importantly, how many 'passes' or layers of plaster were applied to all or any parts of the job.
7 No direct evidence was called from the painters who did the painting work as to their observations at the start of the job, any testing done by them, the preparation done by them, or the paintwork itself.
8 The only evidence as to what may have been done is to be gleaned from the analytical work done by the chemists, Mr Wrobel (called by the applicants) and Dr Armand Zurhaar (called by the respondent) who gave expert evidence. The applicants surmised that the presence of a thin surface coat of limerich plaster posited by Mr Wrobel can be explained in this way. It is common ground that a greater proportion of lime in plaster makes it easier to work with in the period of time that the plasterer has to get the plaster up on the wall before it sets. By increasing the lime content, the plasterer has more time to work with the plaster surface to achieve an aesthetically pleasing surface finish. What is sacrificed by adding lime is hardness or durability in the surface.
The respondent's position
9 The respondent does not accept that the plasterer's work was defective. The respondent claims that any remediation required is as a result of the acts or omissions of the painting contractor. It claims that the evidence does not warrant the conclusion that there were separate layers of plaster applied; it claims that current industry standard practice would make this highly improbable and that there are other ways of explaining higher lime measures at the surface of the plaster.
10 The respondent says that the painter's responsibility comes about in two ways. Firstly, the respondent says that there is no defect in the plastering and that the applicants' difficulties arise from a paint adhesion problem (that is, that the paint has not properly adhered to the substrate) by reason of incorrect preparatory work and/or incorrect painting technique. Secondly, the respondent says that, even if there is found to be a defect with the plastering (which is not admitted), the painter should have performed certain tests before he performed any painting work, which tests would have revealed any defect in the plaster (in particular, if it was 'soft') at that early stage. The respondent maintains that, even if it was ultimately found to be liable for a defect in the plaster, it ought not be found liable for any repainting costs, or for the move out costs, because if the painting contractor had conducted appropriate tests at the appropriate time, any plaster defect would have become apparent and the respondent would have had an opportunity to remedy it prior to the incurring of those other costs. In particular, the respondent says that any 'softness' defect could have been readily remedied by the application over the surface of the plaster of a hardening agent, which would have rectified the defect and resolved the problem before the applicants moved into the property.
11 The additional area of dispute is that the applicants claim that the relationship between the parties has deteriorated to a point where they seek an order to pay, rather than an order for the performance of remedial works by the respondent. The respondent disputes the deteriorated relationship and says there is no reason why a building remedy order requiring the respondent builder to remedy the works should not be made in the usual way, if it is found liable.
The hearing
12 Evidence was given at the hearing by the two expert witnesses. Both the first and second applicants gave evidence, although the main witness on their behalf was the first applicant. Limited evidence was given by a representative of the respondent.
13 The hearing took place over two days, initially 11 August 2016 and subsequently 17 November 2016, after which time the decision was reserved.
14 The Tribunal had the benefit of a number of documents contained in hearing books which became Exhibits 1 and 2 (HB1 and HB2). Exhibit 1 contained essentially the file of documents from the Commission. Exhibit 2 contained:
1) the expert information relied on by the applicants, being two reports by Mr Wrobel dated 18 February 2015 and 26 June 2016 respectively; an inspection report by a registered painter from Master Painters and Decorators Australia, Mr David Anderson; an affidavit sworn by the first applicant, attaching copies of those reports plus various other documents; a statement from the first and second applicants, justifying the rectification costs claimed by them and attaching various documents; a report dated July 2016 entitled 'White Set Plaster Report' produced by Master Painters and Decorators Australia, and
2) the expert information relied on by the respondent's, being a report by Dr Zurhaar; a witness statement by Mr Stephen Hay, the respondent's Group After Sales Service Maintenance Manager (concerning the taking of samples from the internal walls of the applicant's house and the delivery of those samples to Dr Zurhaar for testing); and a witness statement by Mr Ian Nichol, the respondent's General Manager Operations (mostly concerning the contractual arrangements between the parties which were ultimately not in dispute).
15 Other documents were lodged as the matter progressed. Exhibit 3 was a remediation quotation from Mark B Building which was in error, omitted from HB1. Exhibit 4 was a Solver Paints Information Sheet which was omitted from Dr Zurhaar's report. Exhibits 5 and 6 were copies of the Record of Practical Completion Inspection (RoPCI) evidencing the two dates each of the parties signed the RoPCI. Exhibit 7 was an extract from the HB 1612005 Guide to Plastering (being the standard relied on by the applicants). Exhibit 8 was the percentage calculations as utilised by Mr Wrobel. Exhibit 9 was an extract from the AS/NZS 2311:2009 - Guide to the painting of buildings (being the standard relied on by the respondents). Exhibit 10 was a June 2015 Solver Paints Information Sheet (SS108, an update of Exhibit 4 relied on by the applicants). Exhibit 11 was a copy search of ASIC records regarding the painting contractor, Paintwest. Exhibits 12 and 13 were extracts from the Stayz website showing temporary accommodation cost quotations obtained by the applicants.
Detection of the issue
16 The evidence from the first applicant was that on the day that the applicants were to move in, he inspected the inside of the empty house to identify any visible defects with small 'dot' adhesive stationary stickers. He observed a portion of plasterwork near the kitchen, on the wall where the opening goes through to the dining room that he was not happy with. He put the dot sticker on to the wall but says in evidence, 'it was just slightly in the wrong spot. [I] went to pull it off. I still had a hold of it and then the paint came off … the paint came straight off and I wondered what was going on … So, at that moment, I got another sticker and I put it in another spot on the same wall' (T:29; 11.08.16) (Tribunal emphasis) . He went on to say that the same thing occurred in three or four places in the same area on the same wall. A photograph that is in evidence (at HB1 page 77) shows what will neutrally be referred to as the disturbances to the surface of the wall as the consequence of the sticker removals. It is noted that exactly what has occurred at the surface with the removal of the sticker is disputed and is the subject of different interpretation by the two experts, to which reference will be made.
17 The first applicant's evidence is that he then got on the phone initially to the painter, subsequently to the builder to try and resolve the matter. His evidence is that at about the same time as the above described sticker tests, he had noticed what he describes as peeling paint at the base of the same wall (also shown on HB1 page 77). He gave evidence that there was peeling paint elsewhere and other blemishes in the plasterwork (shown in pictures at HB1 pages 5579). He said he rang a friend to ask for advice and was told to see whether the plaster came off when he rubbed it. His evidence was:
… [s]o I started rubbing [on one of the spots where the sticker had removed the surface] with my thumb. Initially it took a bit to penetrate, I guess. And then, once I started rubbing a bit further and further, it just powder just came out. I could rub back to where it started going grey … I was just asked to see if I can put my finger into the plaster. So basically what I did I mean, I don't have fingernails but I tried my best to put it through and literally just pressed and peeled my finger off, and [referring to a photograph that is in evidence in HB2 page 270] that's what's come off to my finger. (T:3132; 11.08.16)
18 In relation to the application of stickers to test the surface, he said that the experience (mentioned above) was 'consistent throughout most - pretty much all the house. Eventually, I have been around the whole area, the whole house' (T:32; 11.08.16). The first applicant's evidence was that as time had gone by, the plaster surface had shown itself to be very susceptible to damage when things knock up against it. The Tribunal has no reason to disbelieve this evidence, though only very few illustrations of problems were provided to the Tribunal (in photographic form).
Expert evidence
David Anderson
19 The Tribunal had the benefit of a report prepared by an inspector, Mr Anderson, a registered painter from Master Painters and Decorators Australia. His report appears at pages 9 and 10 of HB1. Mr Anderson was not called to give evidence. His report is inconclusive as to whether or not the plaster is defective. He notes that '[o]n close examination of the plaster it appeared to be soft and powdery, therefore it is the Inspectors opinion that the plasterwork may be questionable in various areas throughout the house' (Tribunal emphasis). He also comments about apparent poor plastering technique in places.
20 In relation to painting, he says:
The painting work to the interior white set plastered walls were [showing] areas of poor preparation, poor application and poor coverage, resulting in picture framing, poor cutting in between cornice and wall, lack of filling, sanding down, resulting in grit and foreign matter, dents and runs throughout various areas of the walls in the house.
Considering the above, it is the Inspectors opinion that the painting work on the walls would require remedial preparation on the affected areas, and then repainted to a satisfactory and acceptable standard of finish.
21 In his conclusion the inspector states he is:
… unable to establish who the responsible person is in this instance.
It would appear that there may be a combination of faults resulting from work carried out by the builder's plasterer, which has been exacerbated when the painter carried out his work resulting in the issues that have arisen, therefore both parties may be culpable in this instance.
However the painting work that has been carried out is improper and unworkmanlike, and the painter would have to accept the responsibility to have the work rectified by a Registered Painter and completed to a satisfactory and tradesman like finish. (Tribunal emphasis)
22 There was no apparent challenge to this opinion.
Nimue Pendragon
23 In addition, the Tribunal had the benefit of a report prepared Ms Nimue Pendragon an analytical scientist, from Microanalysis Australia, who appears to have provided a report to the Commission on behalf of the painting contractor originally involved in this dispute, PaintWest. Her report appears at page 148 of HB1. Ms Pendragon was not called to give evidence. Ms Pendragon appears to have been provided with a single sample. There was no evidence as to where the sample was taken from. Ms Pendragon refers to 'the' sample (implying a single sample) as a 'painted plaster sample'. Ms Pendragon examined the sample using scanning electron microscopy techniques which she describes in her report. She reports that several subsamples were removed from the main sample, being a crosssection, a paint flake and plaster surface sample. In her report she says '[t]he sample examined in cross section appeared to have 3 distinct layers. The base layer … (possible cement). The next layer … (possible gypsum plaster) [and the] paint layer'. The paint layer thickness was measured by Ms Pendragon and appears to have been within what she describes as the ideal paint thickness. Ms Pendragon described the back of the paint flake as containing 'major calcium with varying major to minor sulphur, minor magnesium and trace silicon, sodium, aluminium, titanium and potassium'. She concludes '[a]s the back of the paint flake showed an elemental composition similar to that of the surface of the plaster, it is possible that the paint had adhered to the plaster and the plaster is flaking off rather than the paint, or that loose plaster particulates were present indicating insufficient surface preparation prior to painting' (Tribunal emphasis).
24 Two further experts, who were both called to give evidence concurrently, conducted tests on the plaster and provided reports. The difficulty for the Tribunal is that they have approached the matter in different ways.
Peter Wrobel
25 According to his first report, Mr Wrobel was requested by the Master Painters and Decorators Australia (WA) to test composite samples of paint and plaster for the presence of a sealer/binder, the number of paint coats, the associated micron thickness of the paint and the composition of the plaster. In his evidence he confirmed that the first samples were submitted to his office having been actually taken by the first applicant. They were samples from the three rooms being a walkin linen room, a theatre and an office. He appeared to describe two testing processes.
26 In relation to the surface layer, Mr Wrobel gave evidence; 'I sample the paint flake and I look at it vertically under an electron microscope and then I do an xray analysis of … the layers' (T:57; 11.08.16). He examines the samples using scanning electron microscopy techniques which he described in his report. They appear to be similar to the techniques used by Ms Pendragon. To test the composition of the plaster, he described the process of crushing it with a pestle and mortar, such that it becomes homogeneous and then analysing the crushed mix, much the same process, it appears, as was adopted by Dr Zurhaar in relation to composition.
27 He described his testing as 'one point analysis'. In relation to the surface testing he said the following; 'I would just like to state … that obviously I'm looking at very small areas a single paint flake' (T:59; 11.08.16).
28 He tabulates the results of what appear to be analyses of the samples taken from the 'Linen WIL', 'Theatre' and 'Office'. Those results appear at page 241 of HB2. In his interpretation in relation to painting processes with respect to sealer, he comments that '[t]he sealer is thin in Linen WIL, too thick in the theatre and absent in the office'. With respect to paint, he comments that 'Linen WIL is thin, theatre is too thick and the office is just short of two coats'.
29 In relation to plaster, he observes in relation to the samples that '[p]laster powder residues were evident under all of the paint samples viewed'. In relation to the analysis of the alleged powder residue on the underside of the paint layer, it is however to be noted that test measurements are shown only for the office.
30 In relation to the office, Mr Wrobel states that:
Compositional analysis of the underside of the office paint indicates that the powder residue has a very low plaster to lime ratio, suggesting that the thin final application (finish coat) has a low peel strength and that it has cohesively failed. The compositional analysis clearly shows that the residual powder is a mix of lime and plaster only, with an absence of any titanium which is present in the paint. This is evidence of a discrete low peel strength fracture or cleave within the final application coat. (Tribunal emphasis)
31 Mr Wrobel goes on to opine that:
The final application coat throughout the rooms is likely to have been set as a lime rich finish. This lime rich coating, which has cohesively failed, and which has not been set according to the manufacturer's specifications is likely to have been the cause of the composite failure. [The manufacturer's] clear note on the rear of the plaster bag that, the addition of too much lime will not only decrease the setting time of the mix, but will result in a weak and soft finish coat to the walls. (Tribunal emphasis)
32 It appears that he has based the two assumptions (that there is a second surface layer and that it has been applied throughout all of the rooms of the house) on his compositional analysis of only one of the powder residue from one only of the three samples and, at best, his observations only of the underside of the paint layers in the other two samples.
33 According to his second report, he was subsequently asked by the respondent to take further random paint and white set (plaster) samples from the home to determine 'the number of coats of paint, the presence of a primer, the soundness of the white set plaster and the reason for the apparent paint failure'. He attended at the house himself on 16 June 2016. He says that he took representative samples from the centre of three walls. He says that it is reasonable to assume that these samples are representative of the plastering as a whole.
34 He notes that he took samples from areas where there was no specific complaint in order to endeavour to 'capture the issue'. On this occasion he took samples from the main bedroom, (clarified late in the hearing by the first applicant as in fact being from the walkin robe of the main bedroom), the entry and the family room. He took his samples by using a sampling technique developed by him. He described his sampling technique as follows:
I make an incision. I apply a high strength packaging tape [to the surface of the wall] it's a sampling method I retain the tape after it has been ripped off, put it into a locked bag for analysis and then I move on to scraping the white set that's left [after the tape has been removed to remove particulate material down] to the render [layer] which I then add into another sample bag. (T:65; 11.08.16)
35 He accepted that the method was to allow him 'to take … the surface off the plaster' and then to separately sample from the top of what is left down to the render. This is not to be confused with a paint adhesion test to which reference will be made later in these reasons.
36 At HB2 pages 176, 179 and 182, the photographs of the taking of samples 1 3 are shown together with a dot sticker part removed. Both show unidentified material attaching to the underside of the tape and sticker respectively. Mr Wrobel's evidence is that what attaches to the tape is the paint layer with plaster adhered to it, the separation point being within the plaster set coat rather than at the paintplaster interface.
37 He says that his analysis technique allows him to see distinct layers in the samples which, upon analysis, reveal (as set out in his report appearing at HB2 pages 175 and 259), firstly, in relation to paint, '[t]he topcoat has been applied as two successive wet coats, which have consequently coalesced into one thick coat … The painter has not applied a primer to the white set walls. Fortunately, the thick topcoat has adhered to the plaster as evidenced by the removal of thick sections of white set by the tape tests (refer to the photos of appendix 1)' (Tribunal emphasis).
38 Secondly, in relation to plaster his report states:
At the site the plasterer has thinly applied the white set as two distinct layers with varying ratios of plaster and lime …
… the bulk composition of the white set plaster [which is the underneath layer] is to manufacturer's specifications [approximately 2:3 plaster to lime]. However, the surface composition [top layer] results of the white set plaster taken from the underside of the tape tests demonstrate that a lime rich gauge [or mix] was used to set a 'soft wall' final coatthroughout the site.
… the results demonstrate that … the finish coat throughout the rooms has been set as a lime rich finish [measured by him in the three samples as, respectively, 0.35:3, 0.71:3 and 0.29:3 plaster to lime rather than the recommended 2:3]. This lime rich finish coat, which cohesively fails under low shear stress, and which has not been set in accordance with any manufacturer's specification, is the cause of the 'apparent' peeling of the paint from the walls and the residence.
… the apparent paint failure on the soft wall finish … is due [to] the observable fact that the multiple coats of white set were not all applied from one standard manufacturer specified 'gauge' (or mix ratio). (Tribunal emphasis (bold)) (Original emphasis (underlined))
39 It is to be noted that Mr Wrobel stated that 'I'm not implying that the plasterer has cut .6 of a bag. The implication there is that what was left of the material on the table on the working table was diluted to that level' (Tribunal emphasis) (T:63; 11.08.16). A little later he stated: 'this is just a … way of categorising this result. And on site, it practically represents a dilution of the materials that were left over' (T:63; 11.08.16) (Tribunal emphasis).
40 He refers to the Australian standard HB 1612005 Guide to Plastering (HB 161) which recommends 'three coats of white set be applied as a scratch (suction coat), build (double up or levelling coat) and final (application or 'laying down')'. He refers to this standard as clearly stating that the three coats should be applied from one 'gauge' (or mix ratio).
41 In summary, therefore, Mr Wrobel expresses the opinion that the plastering is defective in two respects, firstly that HB 161 sets the industry standard and that in failing to apply the plaster in three layers from one gauge or mix, the standard has not been complied with; secondly, in particular, that in applying a second thin layer of a different (lime rich) mix, that standard has been breached.
Armand Zurhaar
42 Dr Zurhaar did not take the samples he analysed. They were delivered to him by Mr Hay from the respondent, in labelled ziplock bags. Mr Hay's evidence is that he took the plaster and render samples 'using a core drill to remove a number of cylindrical cores of the plaster applied to the internal walls of the House' and '[t]he cores were about 15mm in diameter'. He cannot recall how many samples he took, but says that it was 'more than 5 samples', 'from most, if not all, of the rooms of the House' and 'from a different place in each room'.
43 Dr Zurhaar, whose three reports appear at HB1 (pages 13 and 33) and HB2 (page 311) was asked by the respondent to analyse the plaster 'mix ratio' of initially four of the eight 'samples of hardened float coats and set coats … submitted'. (He was subsequently asked to analyse the remaining four of the samples).
44 This is what he did. He confirmed receiving the core samples described by Mr Hay. Dr Zurhaar described them as being 'more like a centimetre by a centimetre. They were actually round'. Although he described the core samples as being smaller than the samples he himself would usually have taken, he expressed no concern about size having an effect on his analysis. He says that he used 'standard analytical methods' and 'standard instrumental techniques' to measure the sulphate levels and hence the gypsum content of the plaster mix. All samples 'were [also] examined for evidence of organic additives or airentraining admixtures'.
45 He describes his method as 'wet chemistry and instrumental tests' where a sample of set coat is taken off the wall, scraped off the render and then it is put through 'a wet chemical dissolution process prior to being analysed for its sulphur content, which is the marker for the calcium sulphate component which identifies the gypsum component because there's no sulphur in the lime component' (T:110; 11.08.16).
46 He concluded that the composition of both the float coat (render) and the set coat (plaster) represented normal and typical mixes. He further concluded that neither the plaster samples nor the cement render samples showed any evidence of organic additives or any 'airentraining admixtures' which might have created difficulties. He concluded that 'the … data indicates that the mixes are close to and within the accuracy tolerance to which a plasterer would gauge his mixes. The plaster represented by all of the samples may be deemed to be typical and acceptable in terms of composition'.
47 He did not conduct the same xray analysis of his samples as was conducted by Mr Wrobel on his samples. However, Dr Zurhaar states in his report '[a]n examination of the plaster set coats under microscopic examination found the set plaster to be present as a single layer with no evidence of multiple layer applications'.
48 He measured the thickness of the plaster set coat using vernia calipers and determined that the thickness in all eight samples were 'typical and within the recommended maximum thickness specified in Australian Standard HB 161 Table 4'.
49 The tests conducted by Dr Zurhaar did not reveal any lime rich layer at the surface of the plaster. He rejected the notion that the presence of high lime concentrations at the surface was necessarily an indicator that two different layers of plaster had been applied. He provided in his evidence possible explanations for a higher presence of lime close to the surface to which reference will be made.
50 He rejected the notion of a deliberate application of a second layer of plaster with the levels of lime said to have been detected by Mr Wrobel, stating that it would be 'highly improbably' and elsewhere that 'it would be suicide for [a plasterer] to use a mix that was so grossly away from manufacturer's recommendations … There's no reason for it. There's no advantage to it. Sure, extra lime makes the set coat more workable, but it also has the trade off in that it makes it softer' (T:138; 11.08.16).
51 Dr Zurhaar also rejected the suggestion that a proper workmanship standard of plastering required plastering be completed in multiple layers. His evidence was that '[b]ack in 2005, you would do three coats. For the last five to 10 years in the industry, plasterers have not applied three coats of plaster. I've been seeing one millimetre coats for as long as I can remember. It doesn't make them deficient. It just makes them different' (T:142; 11.08.16). He stated that, in his experience in the industry, 'I'm very comfortable that, particularly within the large building home industry, or project home industry as it's sometimes called, it is … common and standard for all these houses to be done the same way' (T:145; 11.08.16). He acknowledged that HB 161 referred to three layers, however, he gave evidence that the 2005 standard is now 'a decade out of date'. He also described it as a guideline for the industry only and expressed the opinion that '[i]t is not a mandatory'. He stated that at the time that the standard was prepared 'in the old days, 15 years ago' three coats would have been used, but his evidence was that nowadays plasterers '… apart from not getting paid to go over it twice, they simply don't. There is no need … [t]he industry runs on "I make [up] two bags plus three bags, I set the walls, and off I go"' (T:139; 11.08.16). He confirmed that there was nothing in plaster manufacturers' instructions as to the number of layers to be applied.
52 It is to be noted that Mr Wrobel, although advancing the opinion that the three coat method is critical to workmanlike plastering, conceded in relation to the industry standards in practice that 'there is a broad range of activities happening' by which he agreed he meant 'many different practices'.
53 In summary, therefore, Dr Zurhaar expresses the opinion that the industry standard is no longer that three layers of plaster from the same gauge must be applied before a plastering job can be regarded as having been done to a proper workmanlike standard; rather, that one layer properly mixed and applied meets the current industry standard and that the work on this job cannot be regarded as defective on that basis. Dr Zurhaar disputes the existence of a second layer of plaster having been applied.
54 In answer to Mr Wrobel's alleged detection of a separate thin lime rich layer, Dr Zurhaar's evidence raises the prospect of there being a number of possible explanations for the presence of a high proportion of lime near the surface of the plaster, in particular a process referred to as efflorescence whereby, as confirmed by Mr Wrobel in his evidence, during the carbonation process of the plaster, the pH measure drops and 'then the residual water within the render moves out to the surface [of the plaster], bringing with it lime and thereby raising the pH again to around 10, around which it settles for probably the life of the home'. Mr Wrobel sought to retreat from this statement subsequently in his evidence and to say that such movement of lime 'would be minimal'.
The responsibility of the painter
55 Despite the areas of difference in their evidence, there appears to be agreement between the experts that there is a problem with the plaster. Although he had not visited the site, Dr Zurhaar conceded in his evidence that their appeared to be a problem. He said in evidence:
I agree from the photos, I haven't been to site, I agree from the photos there's a paint adhesion problem there. Right? So that's clear. Some the paint should not come off as easy as it's coming off, and so there is something wrong … the plaster is not as hard as it should be, although I haven't personally been there myself and tested it. (T:126; 11.08.16)
56 He went on to say 'the most probable cause for the plaster not being hard is either of [two things]. It's either a physical trowelling effect or it is the premature painting that has prevented the completion of the… drying and the chemical reactions that should have occurred to make the plaster hard'.
57 He described in his evidence the way in which a bad trowelling technique can result in a plaster that is soft, friable and will never get any better no matter how much time elapses. The Tribunal understood his view to be that it is more likely than not that the problem is the premature painting rather than a technique problem. He said in his evidence that bad trowelling tends to occur in patches, particularly up near the cornices and down near the skirting boards. He said that:
… a person can be bad on the trowel, but he's not going to be bad on the trowel for every square metre of the wall for every wall for every room of the house, particularly given that it's unlikely that a single plasterer would have done the whole house.
… I find [bad] trowelling to be a cause more localised and more random through a house than an overall effect. I'm basing my balance of probability [view that] it's early painting [that is the problem] on the applicant's position that every room in the house and every wall is affected. (T:129130; 11.08.16)
58 No industry approved paint adhesion test has been done (as described by Dr Zurhaar in his evidence). The Tribunal accepts that what Mr Wrobel did on his second visit was not such a test. Rather, he used a sampling method developed by him to take samples from the surface of walls using what he described as a high strength packaging tape. The Tribunal accepts Dr Zurhaar's evidence that the application of such tape to a wall surface 'will always tear the plaster'. Dr Zurhaar gave evidence that the quality of the attack and adhesion of a post-it note is commensurate with the Australian standard tape test. He said that packaging tape has a high strength of adhesion well beyond any standard test. Dr Zurhaar stated in his evidence that small round stationary dots with permanent adhesion will certainly take paint off a wall. The evidence as to the adequacy of the adhesion of the paint to the plaster surface is unsatisfactory. However, it does appear that the respondent's expert accepts that there is a problem. As Dr Zurhaar put it in his evidence, 'the paint should not come off as easy as it's coming off, and so there is something wrong'. He appeared to describe two testing processes.
59 There was considerable debate between the experts during the evidence as to whether, from their analyses, it is possible to say in what state the plaster was at the time that the painting contractor commenced his work. They debated relative levels of moisture, alkalinity, carbonation and whether the plaster was 'fresh' or 'aged' at the time the painting commenced.
60 The fact of the matter is we simply do not know any of these things. There is no evidence before the Tribunal regarding these matters, not at the time the painter started, nor indeed at any subsequent time. No moisture or alkalinity tests have been conducted by the experts. If such tests were conducted by the painter, evidence of them has not been put before the Tribunal. There was evidence to indicate that the applicants withheld payment due to the painter. They also took action against the painter in the Building Commission and then in the Tribunal but that those proceedings were withdrawn after his company went into administration. This may explain the lack of available evidence.
61 The experts debated whether a 12 week period for the plaster to dry was sufficient. Mr Wrobel said it was and assumptions should be made on that basis. Dr Zurhaar said that a 12 week period should have been sufficient, other than perhaps in winter, but that the 12 week period is not an industry standard that would justify a painter not conducting the tests recommended by the manufacturers just because that time had elapsed; that there was still an obligation to test to ensure that the plaster is in a proper condition to commence painting. Mr Wrobel appeared to concede that it was not proper painting practice to paint plaster that had not dried or cured properly.
62 Exhibit 4 describes a series of simple tests recommended by the paint manufacturer, Solver, for a painter to undertake to ensure that plaster is in proper condition to paint. Dr Zurhaar's evidence is that similar recommendations are made by all paint manufacturers and indeed that proper workmanship practices would demand that a painter satisfy himself of these matters prior to proceeding. The Tribunal accepts that these simple tests close examination of the surface, a tape test to check adhesion and the condition of the substrate, the 'scratch' tests to check hardness, ensuring the surface is dry (and conducting a moisture test with a moisture metre if in doubt), treating any efflorescence and testing the pH of the plaster with litmus paper should be conducted by a painter if he is meeting trade and industry standards. It is clear from Exhibit 4 and from the evidence of both experts that if problems are identified in the areas referred to in Exhibit 4, there are commonly used practices that can readily be adopted to resolve those issues prior to the paint work proceeding. Dr Zurhaar's evidence is that such practices are not more invasive that painting work.
63 It appears that the sorts of observations of the plaster surface that concerned the first applicant when he first examined the internal walls (using fingernail pressure and rubbing with his finger), prior to moving in, are precisely the sort of things that are identified in the fifth paragraph of Exhibit 4 and that should have rung alarm bells for the painter.
64 Although these proceedings do not require the Tribunal to make formal findings against the painter, it appears that the company, Paintwest Roofing Contractors, contracted by the applicants to do the paintwork was not a registered painting contractor. The first applicant says that the owner of the company is a plasterer who specialises in roof restorations. It appears that two different painters attended at the site, independently of each other. The first applicant says that he 'assumes' that the two painters were registered.
65 The first applicant says that the first painter was removed from the site after a complaint about him washing his brushes in the applicants' brand new sink. It appears from the evidence of the experts, including the report of Mr Anderson, that the paintwork is in many respects deficient and defective. These matters demonstrate a carelessness in approach which may well bring into question the care taken by the painter in his assessment of the condition of the plaster walls and his preparation of them prior to painting.
66 It appears consistent with the evidence of the experts that the paint may have been applied over plaster that was not in a fit state of readiness to be painted. It is common ground that a high pH level and/or a high moisture level in the plaster will adversely affect paint adhesion.
67 There is authority in the Tribunal that the ultimate responsibility rests with a painter to ensure that any surface to be painted is of a satisfactory standard and condition before commencing painting work (refer to Fletcher and Leonard Willis trading as Willis Painting Service (unreported, WASAT, CC 873 of 2014, 12 February 2015), in which the Tribunal said (referring to the document that is Exhibit 4) 'Painters are required by Solver Paints SS108 to test the condition of the substrate with clear tape and the softness of the plaster with a thumbnail. A painter must not accept a soft or chalky surface for painting without treatment'.
68 In terms of industry standards, Exhibit 9 is the Australian Standard entitled 'Guide to the painting of buildings' (referred to as AS/NZS 2311:2009). The note under paragraph 3.10.4 dealing with efflorescence, at the foot of page 40 of the document highlights problems caused by the premature painting of plaster set walls. It reads:
… Premature painting of plaster may cause major and extended problems. If paint is applied to new set plaster that has not had sufficient time to reach stable equilibrium with regard to hardening, moisture, alkalinity and efflorescence, there will be a lack of hardening and the residual moisture and alkalinity will affect the integrity and adhesion of the coating through blistering, efflorescence and other defects. In addition, the presence of any coating will reduce the rate of moisture loss from the plaster and the rate of ingress of carbon dioxide into the plaster, thus lengthening the time required to achieve equilibrium and full curing. …
- It flags the possibility of 'incompletely cured plaster causing some form of paint failure' and encourages painters to 'resist any form of pressure to paint plaster prematurely' (Tribunal emphasis).
Conclusion
69 The question for the Tribunal to determine is whether the plasterer engaged by the respondent carried out work in respect of the plaster set coat which was in some way deficient or faulty and is unsatisfactory.
70 It is for the applicants to satisfy the Tribunal to the civil standard, that is, on the balance of probabilities, whether this is so.
71 There being no evidence from the painter, the plasterer or the building contractor as to precisely what was done in the different rooms of the house when the plaster set coat was applied to the walls, all that can be said with any degree of certainty is that:
1) The paintwork is not done to a proper workmanlike standard.
2) Although no industry recognised test for paint adhesion has been done, there appears to be a problem with paint surface in a number of locations throughout the house the paint is coming off more easily than it should.
3) The surface of the white set appears to be 'soft' in a number of locations throughout the house, likely because it is lime rich. This is likely to be the cause of the paint problem.
4) How the lime enrichment has been caused is a matter of conjecture.
Findings
1) The Tribunal is not satisfied on the balance of probabilities as to the cause of this lime enrichment. There is evidence from two experts, neither of whose qualifications are challenged. Both appeared to be well qualified and experienced in their fields and reliable expert witnesses. The Tribunal did, however, find Mr Wrobel to be somewhat partisan in his advocacy for the applicants and perhaps not demonstrating the impartiality that is required of an expert witness in the Tribunal. On balance, where there are differences in opinion, the Tribunal prefers the evidence of Dr Zurhaar which appeared to the Tribunal to be measured and balanced.
2) The evidence of Mr Wrobel is that the white set has been put up in two separate layers, the second or surface layer being one comprised of a lime rich mix of plaster. The evidence of Dr Zurhaar is that the plaster has been put up in one layer only and that the cause of any lime rich surface content could be explained by the movement of water in the carbonation/drying process carrying lime to the surface.
3) Mr Wrobel's evidence is limited to microscopic single samples, one from each of four separate rooms (family, entry, main bedroom and office) in what is a large house. Two other rooms sampled were not recorded as having a lime rich layer. The Tribunal is not satisfied as to the practicalities of the method alleged by Mr Wrobel. Despite alleging two deliberate and separate layers, he refused to go so far as alleging a deliberate separate mix at a 0.6:3 ratio deliberately trowelled over the first white set layer as a second layer throughout the house (described by Dr Zurhaar as 'suicide' for a plasterer). Rather, his evidence was that 'materials that were left over' on the work table would have been mixed up in a diluted layer and trowelled up onto the wall. It is unclear whether he meant materials left over as each room was done, at the end of each 'shift' of plastering or at the end of each day or at the completion of the plastering of the whole house. The lack of clarity in exactly how the separate lime rich layer would have been applied raises considerable doubt in the mind of the Tribunal as to how what is alleged by Mr Wrobel could have been achieved so as to justify an assumption by him that '[t]he final application coat throughout the rooms is likely to have been set as a lime rich finish'. The Tribunal also notes that Ms Pendragon, who used similar testing methods as Mr Wrobel, detected only one plaster layer. She was not crossexamined by the applicant on this opinion.
4) On balance, the Tribunal is not persuaded by Mr Wrobel's evidence and is not satisfied to the requisite standard of proof that a separate second lime rich layer of plaster was deliberately applied by the respondent's plasterers through the whole of the house.
5) The Tribunal takes the view that the more likely explanation on the information before it is that some other process such as migration of the lime in the plaster mix during the drying/curing process, as that suggested by Dr Zurhaar, is the explanation for the lime richness at the surface of what the Tribunal finds to be a single layer of plaster mixed by the respondent's plasterers in correct proportions of gypsum to lime.
6) It is common ground between the experts that the bulk layer of plaster was mixed in the correct proportions.
7) There was no indication of plaster deficiencies on the Record of Practical Completion, dated July 2014.
8) There is nothing else about the workmanship of the plasterer that can be labelled as deficient. The migration of lime is part of the drying/curing of plaster in the ordinary course. It is not something that occurs as a result of faulty or unsatisfactory work on the part of the plasterer. If the lime enriched surface occurred by migration of the lime in the plaster mix during the drying process, as suggested by Dr Zurhaar, then this should have been detected by the painter prior to painting.
9) The Tribunal accepts Dr Zurhaar's evidence that plaster drying/curing time varies, and may be many months more than the 13 weeks allowed in this case. Had appropriate tests been conducted by the painter and had 'softness' been detected in the plaster, the options available to the applicants would have been to have the painter use artificial drying techniques (such as heaters or ventilation as discussed by Dr Zurhaar in his evidence) or to wait a further period until the plaster curing was complete, or, if they wished to proceed with the painting at that time, to have the painter apply a hardening product prior to painting. The use of such products was acknowledged by both experts. The applicants' own expert said: 'My recommendations to the builders that I work with is to use the treatment because that ameliorates all issues' (T:85; 11.08.16).
10) Even if the Tribunal were to have accepted Mr Wrobel's evidence and opinion that the lime enrichment occurred as a result of the plasterer applying a second coat of lime enriched material as a 'skim coat' of plaster, in the view of the Tribunal, this should have been detected by the painting contractor when conducting the five recommended tests referred to in the relevant standard, prior to painting, in particular the pH test for alkalinity, in which event the issue could have been treated by him prior to painting commencing.
11) If the migration of the lime occurred after the application of the paint which in some way affected the natural drying process; then this is a phenomenon arising from the early application of the paint coat, and is the responsibility of the painter and is not a result of faulty or unsatisfactory work on the part of the plasterer.
12) For these reasons the claim by the applicants against the respondent builder must fail.
Orders
1. The application is dismissed.
2. The Reasons delivered orally on 31 March 2017 will be published in written form forthwith.
3. By close of business on 14 April 2017, the respondent file with the Tribunal and copy to the applicants any application for costs and any submissions relied upon in support of such application.
4. By close of business on 28 April 2017, the applicants file with the Tribunal and copy to the respondent any submission they wish to make in response to any such application by the respondent for costs.
5. Thereafter, any costs application will be determined on the papers.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS H LESLIE, MEMBER
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