M and P Russo Holdings Pty Ltd and Gray
[2012] WASAT 205
•24 AUGUST 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: M & P RUSSO HOLDINGS PTY LTD and GRAY [2012] WASAT 205
MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
HEARD: 23 AND 24 AUGUST 2012
DELIVERED : 24 AUGUST 2012
PUBLISHED : 12 OCTOBER 2012
FILE NO/S: CC 842 of 2012
BETWEEN: M & P RUSSO HOLDINGS PTY LTD
Applicant
AND
ROMA GRAY
Respondent
Catchwords:
Application for review of Building Commissioner of Western Australia's building remedy order Nature of application Leave not required No evidence of alleged cause by applicant (builder) Proper and proficient and faulty and unsatisfactory ceiling fixing Compliance with Australian Standard Necessity of compliance with product manufacturer's standard of fixing where greater standard of fixing required by product manufacturer Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2004 (WA), s 5, s 5(1), s 11(1)(a), s 11(1)(c), s 11(1)(d), s 37, s 38, s 43, s 57(1), s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 9(c), s 9(1)(a), s 9(1)(b), s 17, s 18(1), s 27, s 27, s 29, s 29(3), s 29(3)(c)(ii)
Result:
Decision affirmed
Category: B
Representation:
Counsel:
Applicant: Mr Searle
Respondent: Self-represented
Solicitors:
Applicant: Doyles Construction Lawyers
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
Mrs Gray, the respondent, complained to the Building Commissioner of Western Australia about the construction of her unit. She complained that M & P Russo Holdings Pty Ltd, the applicant, had not constructed her ceilings adequately. The ceiling in one room had begun to collapse. She also complained about a crack in the wall adjacent to her front door. M & P Russo Holdings Pty Ltd responded that the ceilings were constructed adequately, and that the cause of the collapsed ceiling was the earthworks that occurred on a neighbouring property. Various allegations were made about the degree of movement caused by the neighbouring earthworks, but M & P Russo Holdings Pty Ltd failed to lead any evidence at all about the nature of the earthworks and the impact of the same on Mrs Gray's home.
The Building Commissioner of Western Australia made a building remedy order directing M & P Russo Pty Ltd to remedy the faulty ceiling construction and the faulty hanging of the front door in Mrs Gray's home. M & P Russo Holdings Pty Ltd sought a review of that order by the Tribunal.
The Tribunal heard oral evidence of the relevant witnesses and affirmed the Building Commissioner of Western Australia's order, but varied the order to allow an extension of time for the remedial work to be undertaken. M & P Russo Holdings Pty Ltd relied on a repeated assertion of structural movement being the cause of the ceiling collapse and the crack in the wall adjacent to the front door, but failed to adduce any evidence to establish that cause.
The application for review
On 29 May 2012, M & P Russo Holdings Pty Ltd (applicant) made application to review the decision of the Building Commissioner of Western Australia (Commissioner) to issue the building remedy order made on 1 May 2012 to 'provide ceilings to the entire dwelling that are installed so as to comply with the manufacturer's recommendations', make good as necessary and remedy an inconsistent margin to the front door at the home of Mrs Gray (respondent), being unit 4, No 9 Railway Road, Kalamunda. That order was made pursuant to s 37 of the Building Services (Complaint Resolution and Administration) Act 2004 (WA) (BSCRA Act).
The ground for review
The ground for the review appears at page 5 of the application (Exhibit 2) as follows:
(1)The builders [sic] work was not faulty and unsatisfactory and did not cause the damages complained of[;] rather they were the result of construction work undertaken by another builder at an adjoining site. Accordingly[,] the delegate's decision failed to take into account, or ignored[,] the relevant evidence before him[,] with the effect that his decision was not reasonably based on fact or law and failed to afford the builder procedural fairness in the circumstances.
The issue
The issue is whether the ceilings in the respondent's home were not constructed in a proper or proficient manner, were faulty and unsatisfactory and whether the collapsed ceiling and the crack in the wall adjacent to the front door was caused by faulty or unsatisfactory construction by the applicant, or whether it was caused by neighbouring earthworks.
The Tribunal's jurisdiction
The review jurisdiction is conferred on this Tribunal by s 57(1)(c) of the BSCRA Act in this proceeding, and not by the combination of s 5 and s 11(1)(d) of the BSCRA Act. The Tribunal, in this proceeding, is exercising its review jurisdiction, as referred to in s 17 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Section 18(1) and s 27 of the SAT Act empowers the Tribunal to review the Commissioner's building remedy order de novo, and the Tribunal may receive fresh evidence when reviewing the Commissioner's order. The Tribunal stands in the shoes of the original decisionmaker, but with the benefit of hearing fresh evidence and having the evidence tested in the course of a hearing. The Tribunal therefore has all the powers conferred upon the Commissioner by the provision of the BSCRA Act and by s 29 of the SAT Act, including, but not limited to, s 29(3) of the SAT Act.
The statutory framework
Section 5(1) of the BSCRA Act entitles a person to make a complaint to the Commissioner about a regulated building service 'not being carried out in a proper and proficient manner or being faulty or unsatisfactory'. There was no dispute that the work (construction of the respondent's home) was a regulated building service (pursuant to a building licence granted by the local municipal council) and undertaken by the applicant as a registered building service provider. Upon investigation of the respondent's complaint, the Commissioner had a discretion to dismiss the complaint (s 11(1)(a) of the BSCRA Act), make a building remedy order pursuant to s 37 of the BSCRA Act (s 11(1)(c) of the BRSCA Act), or refer the complaint to this Tribunal so that the Tribunal could consider whether to make a building remedy order pursuant to s 38 of the BSCRA Act (s 11(1)(d) of the BSCRA Act).
If the Commissioner elects to make a building remedy order pursuant to s 38 of the BSCRA Act, the person aggrieved by that order (in this case, the applicant) may make an application for a review of the Commissioner's decision to make the building remedy order (s 57(1) of the BSCRA Act). Leave for review is not required. The Tribunal is satisfied that the applicant has standing and is entitled to seek a review of the Commissioner's order.
The application to the Commissioner and the background
The ceiling
The respondent, with the assistance of Mr Vecchio of Real Estate Masters, strata manager, made a complaint to the Commissioner, pursuant to s 5(1) of the BSCRA Act on 22 February 2012, concerning the construction of her home by the respondent. The respondent is the first occupier of Unit 4, No 9 Railway Road, Kalamunda, and the home was constructed by the applicant for the original owner and developer of the strata complex.
After approximately 18 months in occupation, the respondent noticed that the ceiling in her lounge/kitchen area appeared to have cracked at the cornice and then the ceiling began to sag. The lounge/kitchen is an open plan area and probably comprises the largest room in the respondent's home. The Tribunal notes that the complaint was later expanded to include the ceilings throughout the respondent's home.
The respondent originally alleged that the ceiling to the lounge/kitchen area had bowed and was collapsing. In support of her allegation, she relied upon the report of Mr Stewart Blackie (page 6 of Exhibit 1). In that report, Mr Blackie made the statement that there was 'not enough' glue and screws used to install the ceiling in the respondent's home. Further, the respondent relied on a statement made to her by her home insurer's expert builder/assessor (page 15 of Exhibit 1) that the sagging ceiling was caused by insufficient fixing of the ceiling sheets, was faulty or unsatisfactory workmanship by the builder of the respondent's home and was not covered by her policy of insurance for that reason.
The applicant was made aware of the complaint and, through its solicitor, denied liability. The applicant's denial of liability to the Commissioner appeared in an email dated 9 March 2012 (page 38 of Exhibit 1) from the respondent's solicitor to the Commissioner:
My client disputes that it is liable for the complaint and encloses correspondence between the parties which sets out the basis of this assertion[,] and specifically that damage to the complainant's ceilings was caused by vibration from excavations which occurred next door[,] rather than faulty or unsatisfactory building work on the part of my client.
This statement was substantially the same as one that was made by letter from the applicant's solicitors to the respondent's agent dated 16 November 2011 (page 39 of Exhibit 1) which states:
Our client instructs that the damage to the ceilings was caused by excessive vibration associated with the construction of a carpark immediately next door and the drilling and excavation of coffee rock in the same vicinity.
Accordingly, our client disputes that it is liable …
The Commissioner's inspector undertook a view of the property on 19 March 2012. His report, together with photographs, can be found at pages 41 72 of Exhibit 1. He concluded that the ceilings were not fixed in accordance with the manufacturer's standards (page 41 of Exhibit 1).
On 30 March 2012, the applicant's solicitor again wrote to the Commissioner and denied liability (page 73 of Exhibit 1). At page 74 of Exhibit 1, the letter states:
In contrast, the builder notes that during the inspection, it was revealed by the owner of the house, to the builder's representative and the inspector[,] that unrelated building works occurred next door and adjacent to the property which involved drilling, breaking up and extraction of rock over a sustained period of 6 weeks, which caused violent vibration to the owner's home …
…
… Furthermore[,] the builder does not understand the Inspector's conclusions which are contrary to his observations, that is: the sheets are required to be fixed at 300 centimetres and have been by way of a combination of adhesive and screws.
On 1 May 2012, the Building Commissioner's delegate made the building remedy order that is the subject of this review, and he ordered that the respondent was to provide ceilings to the entire dwelling so as to comply with the manufacturer's recommendations, including making good as necessary.
The front door
This complaint was amended on 30 April 2012 to refer to the unacceptable inconsistency in the margin clearances of the front door, on the basis of the report by Inspector O'Dea. The Commissioner's delegate made an order requiring the applicant to provide the main entry door with acceptably consistent margin clearances so as to be easily operated, and also to provide the south wall of the lounge room to be free of recurring cracking, including making good as necessary. That order is also the subject of the review. The applicant's case is that that crack was caused by the neighbouring earthworks as well.
The Commissioner's delegate's reasons
The Commissioner's delegate, Mr Verrall, provided reasons for his decision (page 87 of Exhibit 1). Put shortly, he considered the respondent's notice of complaint, the report by Mr Blackie, the respondent's insurer's letter, Inspector O'Dea's report and the respondent's letter of 30 March 2012, and was satisfied, on the evidence provided at that stage, that the installation of the ceilings was not carried out in accordance with the ceiling sheeting manufacturer's specifications. On behalf of the Commissioner, he concluded that the regulated building service, the subject of the complaint, was not carried out in a proper and proficient manner, and was faulty and unsatisfactory, in that the manufacturer's specifications for installation of the sheeting had not been complied with, and made the building remedy order pursuant to s 37 of the BSCRA Act. He also concluded that the front door margin was faulty and ordered it to be remedied.
The documentation which was provided by the Commissioner to the Tribunal also indicated that the delegate did consider the submissions by the applicant, but concluded that there was no evidence led by the applicant that the collapsed ceiling and the crack in the wall adjacent to the front door was caused by neighbouring earthworks.
The Commissioner could have referred the complaint to the Tribunal for a hearing of this issue, pursuant to s 11(1)(d) of the BSCRA Act, but it appears that he did not because, as stated in the investigation report at page 3 (page 92 of Exhibit 1), 'time was of the essence and the matter is of an urgent nature and needs to be resolved as soon as possible'. For that reason, the Commissioner's delegate exercised the Commissioner's discretion to make an order pursuant to s 37 of the BSCRA Act. The Tribunal notes that when the complaint was before the Commissioner, the applicant had not provided any evidence at all as to workmanship, and merely asserted the degree of the earthworks on the neighbouring property as the cause of the lounge/dining ceiling failure and the crack in the wall adjacent to the front door.
Section 29(3) of the SAT Act State Administrative Tribunal's powers and the disposition and resolution of the complaint
In this proceeding, the Tribunal has been asked by the applicant to dismiss the order made by the Commissioner. The Tribunal has interpreted that to mean 'set aside' the Commissioner's order, pursuant to s 29(3) of the SAT Act, and substitute that order with an order by the Tribunal that the complaint is dismissed, presumably pursuant to s 11(1)(a) of the BSCRA Act. The Tribunal is charged with a statutory objective to achieve the resolution of questions, complaints or disputes, and to review decisions fairly and according to the substantial merits of the case: see s 9(1)(a) of the SAT Act. Under s 9(1)(b) of the SAT Act, the Tribunal must also act as speedily and with as little formality and technicality as is practicable, and minimise the cost to the parties. In this proceeding, the Tribunal shall make an order disposing of the dispute, rather than returning the complaint to the Commissioner, pursuant to s 29(3)(c)(ii) of the SAT Act, as the repair of the respondent's ceiling is urgent as it poses a risk of harm to her and her property. Further, the Tribunal considers that it is in a better position than the Commissioner, having heard all of the evidence and having had it tested by the respective parties, to make a decision that disposes not just of the review application, but of the dispute that underlines it, which is the subject of the original complaint to the Commissioner.
It is common cause that the lounge/dining ceiling of respondent's home is in danger of falling down; the ceiling is insulated with loose material which sits on the ceiling sheeting between the joists and the joists accommodate considerable electrical wiring and light fittings. The applicant's counsel confirmed that the ceiling sheets are back blocked, meaning that they are fixed to one another and the sheets, having been joined, now operate as one large ceiling sheet per room. The whole ceiling in that room may collapse (rather than just one sheet) and distribute the insulation material with it.
The lounge/dining ceiling was braced by the insurer in July 2012, without which the Tribunal finds that the lounge/dining ceiling would likely have collapsed. A collapse of the lounge/dining ceiling would no doubt cause considerable property damage to the respondent's home and to her chattels, and possible physical harm to her. All the witnesses expressed alarm, concern and regret that the respondent was residing in her home with the ceilings needing remedial work.
The evidence generally
The documents
The documentary evidence is largely comprised of the documents compiled by the Tribunal in the hearing book (Exhibit 1). At the directions hearing on 14 June 2012, the Tribunal made an order that the Executive Officer of the Tribunal was to prepare six hearing books and that they should contain all of the relevant documents filed in the Tribunal by the parties in this proceeding. The Commissioner has provided the Tribunal with a file that had been compiled by the Commissioner from the date of the complaint, and his delegate's short reasons and a copy of the documents he relied on. The documents have been included in Exhibit 1.
Exhibit 1 contains, amongst other documents:
•the Commissioner's delegate's reasons;
•the documents relied upon by the Commissioner's delegate in making the building remedy order;
•the respondent's original complaint to the Commissioner along with the supporting documents;
•correspondence between the Commissioner's delegate and the parties;
•the report by the Commissioner's inspector, Inspector O'Dea, dated 19 March 2012, and his photographs (pages 41 72);
•the building remedy order made by the Commissioner's delegate, dated 1 May 2012, (pages 82 83);
•correspondence from the applicant's solicitors and the respondent's agent;
•a report by Mr Stork of Perth Plasterboard Centre dated 22 May 2012, filed by the applicant in the Tribunal (page 111);
•a report by Mr Ian Moore of the Association of Wall and Ceiling Industries of WA, dated 23 July 2012, filed by the applicant in the Tribunal (pages 169 171);
•the relevant Boral installation manual, filed by the applicant in the Tribunal (pages 116 176); and
•the relevant Australian and New Zealand Standard for gypsum lining applications and finishings (AS/NZ 2589:2007), filed by the applicant in the Tribunal (page 172).
The respondent relies upon Inspector O'Dea's report, his photographs and his oral evidence to the Tribunal, and Mr Blackie's report and his oral evidence to the Tribunal. The applicant relies upon Mr Stork's report and Mr Moore's report and his oral evidence to the Tribunal, the Boral installation manual, and the Australian Standard.
The following additional documents were produced to the Tribunal during the final hearing:
•the applicant's application (Exhibit 2);
•the senior sessional member's drawings, which are an agreed aid (Exhibit 3);
•the Boral Plasterboard ceiling system document, identified by the senior sessional member (Exhibit 4);
•invoices from an electrician to the applicant (Exhibit 5);
•invoices to the original developer (Exhibit 6);
•the addenda to the contract between the applicant and the developer (Exhibit 7); and
•the plan (Exhibit 8).
Testimony
Oral evidence was taken from:
•Inspector O'Dea (in person);
•Mr Moore (by telephone);
•Mrs Russo (in person);
•Mrs Grey (in person); and
•Mr Blackie (by telephone).
Mr Stork was unavailable to give his evidence by telephone on either 23 August 2012, when he was called several times, or on 24 August 2012, when he was called again several times.
The applicant's counsel made submissions that he sought to rely on Mr Stork's report, but recognised that Mr Stork's report's statements could not be the subject of further questioning or challenge, and, therefore, the weight might be diminished. The Tribunal agrees with that statement generally, particularly where the issue as in this case, how the ceiling sheets were fixed to the joists was a hotly contested issue.
The Australian Standard
Table 4.4.3.2.5 of the Australian Standard (page 208 of Exhibit 1) and the detail provided at paragraph 4.4.3.2 (Combination adhesive and fastener fixing) provides that, where the gypsum plasterboard is used to create a ceiling (as in this case), and the sheet is 1200 millimetres wide (as in this case), and screws are used as a mechanical fixing (instead of nails, as in this case), then the plasterboard sheet should be fixed as follows:
1)one screw fixing at the edge of the width of the sheet into the joist;
2)one screw fixing in the centre of the width of the sheet into the joist;
3)one screw fixing into the opposite edge of the width of the sheet; and
4)between 1 and 2 above and 2 and 3 above, two evenly spaced daubs of adhesive;
(Conventional spacing).
So, in one joist, there should be three screw fixings and four evenly spaced daubs of adhesive.
Alternatively, the following is compliant with the Australian Standard:
1)one screw fixing at the edge of the width of the sheet into the joist;
2)one daub of adhesive;
3)one screw fixing at onethird of the width of the sheet into the joist;
4)one daub of adhesive;
5)one screw fixing at twothirds of the width of the sheet into the joist;
6)one daub of adhesive; and
7)one screw fixing into the opposite edge of the width of the sheet into the joist;
(Onethird spacing).
In one joist, there should be four screw fixings and three evenly spaced daubs of adhesive.
The Boral standard
As will be seen, the Tribunal finds that the product used is Unispan gypsum plaster board sheeting manufactured by a company within the Boral group of companies. Table 6 of the Boral installation guide (Boral standard) provides the following:
1)one screw fixing at the edge of the width of the sheet into the joist;
2)two screw fixings in the centre of the width of the sheet into the joist;
3)one screw fixing into the opposite edge of the width of the sheet; and
4)between 1 and 2 above and 2 and 3 above, two evenly spaced daubs of adhesive;
(Conventional Boral spacing).
In one joist there should be four screw fixings and four evenly spaced daubs of adhesive.
Alternatively, the following fixing complies with the Boral directive:
1)one screw fixing at the edge of the width of the sheet into the joist;
2)one daub of adhesive;
3)one screw fixing at onethird of the width of the sheet into the joist;
4)one daub of adhesive;
5)one screw fixing at twothirds of the width of the sheet into the joist;
6)one daub of adhesive; and
7)one screw fixing into the opposite edge of the width of the sheet into the joist;
(Onethird Boral spacing).
So, in one joist there should be four screw fixings and three evenly spaced daubs of adhesive.
Table 3 (page 130 of Exhibit 1) provides that 600 millimetres is the maximum distance between mechanical fixing centres so that, as the ceiling joists are at 600 millimetre centres, the aforesaid fixing should occur in every joist along the length of the Unispan sheet.
The applicant contended that the ceiling complied with the Australian Standard conventional spacing method of fixing, which means that, in every joist, there should be three screw fixings evenly spaced across the width of the sheet, and between the screw fixings, two evenly spaced daubs of adhesive. The respondent relied on Mr O'Dea's report that the Boral standard was not complied with and the ceiling construction was therefore faulty and unsatisfactory.
The various standards are set out in the senior sessional member's sketch (Exhibit 3).
Consideration of the evidence
Mr Blackie
The Tribunal considered the oral and written evidence of Mr Blackie concerning the construction of the ceilings to the respondent's home to be unsatisfactory. He stated in his report (page 9 of Exhibit 1) that on 'inspection' of the respondent's ceiling, he found:
… not enough glue and screws have been used. All other ceilings in the house are starting to sag. Recommend rescrewing.
Mr Blackie gave oral evidence, however, that, although he spent 30 minutes in the roof space, he did not take any steps to count or quantify the mechanical fixings (screws) or chemical fixings (glue/adhesive) to any particular area or areas that he inspected in the roof space. Mr Blackie stated that the purpose of his report was to give his opinion as a registered builder, and that is what he did. He was asked by the Tribunal to state what facts he relied on to form his opinion. He restated it was his opinion as a registered builder, and that was the basis of his opinion. It was put to him by the Tribunal that he was being asked to identify how he arrived at his opinion and, to that extent, the Tribunal asked whether he counted the number of each type of fixing to a width of sheeting along a joist. Mr Blackie stated he did not, and could not count the fixings (mechanical or chemical) as it was too difficult. The Tribunal heard evidence from Inspector O'Dea who had done precisely that, and finds that Mr Blackie could have counted the fixings, but failed to do so. Mr Blackie did not refer to the Australian Standards or to the Boral standards; he did not recognise the product as a Boral product and he had no ability to equate the product with the Boral standards.
Mr Blackie reported that he had observed that a relatively new ceiling in the respondent's home had sagged to the extent of 120 millimetres over the main trafficable area (lounge/kitchen). The Tribunal concluded that Mr Blackie simply assumed that the ceiling had not been sufficiently fixed.
The Tribunal places no weight upon Mr Blackie's report or his evidence of opinion as to the cause in the drop of the lounge/dining ceiling or as to the ceilings generally, as he had no basis for his opinion.
The Tribunal does accept Mr Blackie's evidence that there were no structural cracks to the external brickwork of the respondent's home, and that he observed only some settlement cracks, being fine cracks that had appeared because the footings had possibly lowered fractionally. Mr Blackie's observations about the external brickwork were consistent with the other witnesses who gave evidence. As to the other more minor issues, the Tribunal acknowledges that Mr Blackie observed minor cracking to the inside leaf of an external wall (around one window head). He agreed his observations were not consistent with any structural movement of the home being the cause of the lounge/dining room ceiling failure.
Mr Moore
Mr Moore was called by the applicant. Mr Moore is a representative of the Boral group of companies, but he did not give his evidence in that capacity. He gave his evidence as an expert in the area of fixing Boral plasterboard sheeting.
It was conceded by counsel for the applicant that Mr Moore's assertion in his report and in his oral evidence that Boral plasterboard known as 'Unispan', when properly fixed to Boral standards, was able to withstand weight of up to 3 kilograms per square metre, (as stated by Exhibit 4 which was produced for consideration by the parties during the course of the hearing by the senior sessional member). The Tribunal finds that Mr Moore's statement that Boral Unispan could only withstand 2 kilograms of weight was simply incorrect, and the applicant's counsel so conceded.
Mr Moore also stated that the insurer's temporary timber bracing, seen in Inspector O'Dea's photographs at pages 50 and 54 of Exhibit 1, was not screwed into the joists but was screwed only to the ceiling sheeting. Mr Moore reasoned that this added to the weight taken or loaded onto the ceiling sheets, and this was a cause of the lounge/dining room ceiling sag, or exacerbation thereof. Mr Moore complained that the temporary timber bracing was not fixed into the joists, and that therefore the ceiling was taking the weight of the bracing as well as the light fittings and insulation, which compounded the problem. With this belief firmly in mind, he said he was amazed that the lounge/dining room ceiling had not fallen. This evidence contradicts the clear evidence of fact given by Inspector O'Dea, who stated that he observed and took photographs of the bracing screws passing through the timber bracing, the Unispan sheets, and then directly into the joists. Inspector O'Dea specifically gave evidence that these photographs were the temporary bracing screws. They were clearly observed by the Tribunal in the photographs taken by Inspector O'Dea at pages 67 and 70 of Exhibit 1.
The Tribunal does not accept Mr Moore's statement as to how the bracing was fixed. The Tribunal finds, on the evidence of the photographs taken by Inspector O'Dea and his oral evidence, that, in fact, the temporary bracing was fixed firmly into the joists and the ceiling was not taking the weight of the timber bracing. The timber bracing, therefore, did not contribute to the sagging of the lounge/dining room ceiling. The Tribunal again finds that Mr Moore was incorrect, and his credibility was damaged.
Further, Mr Moore's evidence was that he spent 30 minutes in the roof space and yet he did not move the insulation and did not take samples of adhesive from any particular areas, but rather, he simply ran his fingers along some (very few) joists to feel the number of screws fixing the Unispan sheets to the joists. His inspection was not as thorough as Inspector O'Dea's, and the Tribunal does not accept his opinion that there were three screws per width of sheet in every joist. Mr Moore stated, as a representative of Boral, that the joists were in good order, and that several joists had minimal twist, caused, he thought, by natural drying or warping of the timber (pine) frame and/or the way in which the tradesmen laid it in the first place, but that none of the joists showed any structural twist or movement which could not be withstood by the Unispan sheeting.
The Tribunal acknowledged that the Boral plasterboard installation manual (page 122 of Exhibit 1) states:
Boral plasterboard is not designed to withstand stress due to structural movement or excessive changes in temperature or humidity.
The applicant relied heavily on this statement. However, the Tribunal finds that this statement is irrelevant in this matter. Mr Moore discounted the value of that statement in these proceedings. He explained that if the screw heads of the Unispan sheets had pulled through the sheets because of structural movement, the ceiling joists would have been noticeably and significantly twisted away from the sheets. He stated in evidence that he did not observe that to have occurred in this case, and concluded that the sag to the ceiling was not caused by that kind of structural movement of the joists. During his oral evidence, Mr Moore agreed with the senior sessional member that the brickwork would crack before the wood in the ceiling twisted, and that the plasterboard would crack before the wood twisted but after the brickwork had cracked that is, that the wood and plasterboard had a greater tolerance to structural movement than the brickwork. As has been said by the insurer, Inspector O'Dea, Mr Blackie and Mr Moore, there was no structural cracking, or any cracking, to the external leaf of the external walls. The cracking to the house was minor settlement cracking.
The Tribunal considers that this objective fact, identified by all of the experts who were called and gave evidence, belies the allegation that there was significant structural movement in this home at all, or such that would likely cause the lounge/dining room ceiling to fail. This fact alone tends to support a conclusion that the ceilings had not been affected by structural movement caused by earthworks on the neighbouring property, or at all.
Mr Moore did, however, state in his reexamination that five and a half weeks of some vibration, in his opinion, would cause the ceiling to sag if properly fixed. The applicant relied heavily on that one statement, but the Tribunal does not accept the statement as true or accurate. The Tribunal notes that that statement did not form part of Mr Moore's report; he did not give that evidence orally in chief; he did not give that evidence in crossexamination, and he did not give that evidence in answer to any of the Tribunal's questions. Further, the degree of vibration was not clear in the question. Mr Moore stated he was informed by Mrs Russo (on behalf of the applicant) about the alleged vibrations caused by the neighbouring earthworks. For the reasons referred to below, the Tribunal finds that Mrs Russo's instruction to Mr Moore concerning the degree of movement to the respondent's home from the neighbouring earthworks was inaccurate and exaggerated. Mrs Russo was not present during the neighbouring earthworks, and the respondent's description of the movement was the most accurate. Given his concessions in answer to the Tribunal's questions concerning the instructions he received from Mrs Russo about the vibrations compared to the description given by the respondent, Mr Moore's statement in reexamination is not plausible. Nor is he qualified to make this statement, not having any engineering qualifications, and further, such an opinion remains inconsistent with the absence of any cracking to the external leaf of the external walls of the home. The Tribunal also finds that Mr Moore's oral evidence that the ceiling had sagged 250 300 millimetres was an exaggeration - the bracing screws into the joists simply were not that long.
The Tribunal did not find Mr Moore to be a compelling witness at all and finds that his inspection was less thorough than Inspector O'Dea's.
Mr Stork
As to Mr Stephen Stork, he did not give any oral evidence to the Tribunal, although he provided a short statement of report dated 22 May 2012 (page 115 of Exhibit 1). In his report, he stated his opinion that the vibration through the house had been a major contributing factor to the failure of the ceiling. The Tribunal does not know what description he was given of the vibration or what information he took into account in forming that opinion. If it was the same as Mr Moore had received from Mrs Russo, the Tribunal finds that it was inaccurate.
Mr Stork stated that, as far as he was concerned, the ceiling complied with the Australian Standard. He provided no factual basis for this statement. Mr Stork did not give any oral evidence, as he was not available on either of the hearing days, notwithstanding the Tribunal's attempts to contact him on his mobile telephone. Mr Stork therefore did not supplement his written opinion evidence. The Tribunal gave Mr Stork's opinion no weight.
Inspector O'Dea ceiling fixing
Inspector O'Dea gave oral evidence of his qualifications (as did Mr Moore and Mr Blackie), and the Tribunal is satisfied that he is sufficiently expert to give opinion evidence concerning the workmanship of the ceiling construction in this proceeding. Inspector O'Dea wrote a report on behalf of the Commissioner in this matter. He also gave oral evidence concerning his investigation in the roof space and around the respondent's home, and he produced his photographs (pages 45 72 of Exhibit 1). Inspector O'Dea stated that he entered the respondent's roof space, cleared an area of the ceiling, and photographed it to show the manufacturer's stamp to identify the manufacturer of the ceiling sheets. The name of the manufacturer is a Boral company (probably Boral Australian Gypsum Limited: see page 167 of Exhibit 1). Inspector O'Dea identified the product as Unispan (10 millimetres thick). The sheets are 1.2 metres wide and approximately 6 metres in length, as purchased. The sheets are fixed to the underside of and transverse to the ceiling joists. Inspector O'Dea inspected approximately 10 to 12 areas of the respondent's roof space. He stated in his oral evidence to the Tribunal that he observed that in up to 50% of the 10 to 12 areas inspected, the sheets were fixed with the correct screws, but were fixed in the following fashion:
1)In respect of one ceiling joist:
•One screw at the outer edge of the width of the sheet, through the sheet and into the underside of the joist.
•One screw 600 millimetres away (that is, the middle of the sheet) from the first screw fixed in a similar way.
•Another screw at the opposite edge of the width of the sheet; that is, 1.2 metres away from the first screw and 600 millimetres away from the second screw.
2)In the next ceiling joist (600 millimetres away from the first joist), one screw at each edge of the width of the sheet; that is, 1.2 metres away from one another.
3)The screws were interspersed with unevenly spaced daubs of adhesive, and some of the adhesive was positioned within 100 millimetres of a screw.
The Tribunal interprets this to mean that in a relevant sample over two joists (that is, 600 millimetres apart down the length of a Unispan sheet), there was one screw into the first joist at the edge; one screw into the first joist in the middle of the sheet; and one screw in the opposite width edge of the sheet into the first joist. In a second joist, there were screws at each outer edge, but no screw or screws in the middle (that is, 1 2 metres apart). This amounts to five screw fixings over two joists. The daubs of adhesive were not evenly placed between the screw fixings. Whilst the adhesive positioned close to any screw fixing may have made the screw closest to that daub of adhesive less stressed and more successful in keeping that part of the sheeting fixed into position, the stresses of keeping the whole sheet fixed into position were not distributed evenly by the chemical fixings (as required by the Australian Standard and Boral standard).
In the other 50% of the samples observed by Inspector O'Dea, the position was worse, and he said he observed:
1)one screw in one edge of the width of the sheet into the joist;
2)the other screw 1.2 metres away in the other edge of the width of the sheet into the joist;
3)in the next joist (600 millimeters away from the first joist), one screw in one edge of the width of the sheet into the joist and one screw 1.2 metres away in the other edge of the width of the sheet into the joist; and
4)unevenly distributed daubs of adhesive.
This totals four screw fixings over two joists (going down the length of the sheet) and only two screw fixings across the width of the sheet.
Inspector O'Dea's photographs show that the timber bracing installed by the respondent's insurer was installed into the joists and not merely into the ceiling sheets, as Mr Moore had assumed. Inspector O'Dea was the only witness who gave his evidence consistently with his report.
The applicant's counsel contended that Inspector O'Dea did not take a photograph that established the lack of a centre screw in any joists. Inspector O'Dea stated that his photographs were depictions of what he actually saw, which he had described in his evidence, and he did not take photographs of absolutely everything. Counsel for the applicant asked why Inspector O'Dea had not taken photographs of what he described as the most marked departure from the Australian Standards and the Boral standards. Counsel for the applicant relied on the alleged absence of photographs of the relevant samples to suggest that Inspector O'Dea's evidence was untrue.
In fact, the Tribunal finds that Inspector O'Dea did take the photographs (pages 61 and 62 of Exhibit 1), but the detail of the mechanical fixings cannot be seen in those photographs because of the distance required to take a photograph of the area. The Tribunal finds that the applicant's counsel's contention is incorrect.
Further, the Tribunal notes that not one of the applicant's witnesses took any photographs and all attended to inspect the roof space. There is no reason why Mr Stork or Mr Moore could not have taken photographs.
The Tribunal considers the applicant's theory, that Inspector O'Dea did not take the relevant photographs because he did not actually see what he said he saw, to be without foundation. If that was the thrust of the applicant's case, the applicant could have engaged someone to take the relevant photographs; it did not. Inspector O'Dea impressed the Tribunal with his evidence and his recall. The number of photographs which he took evidenced his thorough examination and investigation to ascertain the cause of the lounge/dining room ceiling collapse and the construction of all of the ceilings. He presented as an independent inspector engaged by the Commissioner, and his evidence was, by far, the most complete and reliable, and for that reason, the Tribunal accepts his evidence.
Inspector O'Dea Front door
Although this complaint was originally described as a hard wall crack, on inspection, Inspector O'Dea noticed that there was a lack of consistency in the margin from top to bottom on the hinged side of the door. In short, the door was hinged incorrectly and was crooked. Inspector O'Dea did not assert that the crack was related to, or caused by, any movement of the house, but more likely to a hard shutting. The respondent gave evidence that the door was sometimes hard to close, but it had not been slammed.
Inspector O'Dea stated that the crack was not in the masonry, but was a crack between the door frame and the plastered edge of the wall into which the frame had been tied. Inspector O'Dea said that, for whatever reason, it had moved away. His concern was as to the margin, which he said was poor workmanship and unsatisfactory.
Mrs Russo
Mrs Russo, a director of the applicant, gave evidence that she instructed Mr Moore as to the degree of vibration of the respondent's house caused by the neighbouring earthworks. Mrs Russo's evidence is entirely hearsay, and when compared to that of the respondent and Mrs Howe, the Tribunal rejects her description of the vibration to which the house was subjected. Mrs Russo also gave evidence that a number of light fittings installed to the home were not the applicant's responsibility, and that the original owner (the developer) installed these light fittings. The applicant's counsel began to develop an argument that the weight of the light fittings, together with loose insulation material sitting on the ceiling sheets between the joists, was greater than 2 kilograms per square metre, allegedly being the weight Boral instructed that Unispan sheets could be expected to tolerate. However, it was conceded during the hearing that Boral represented that Unispan sheets could withstand a load of 3 kilograms per square metre and that the light fittings and loose insulation did not amount to that weight. Exhibits 4, 5, 6 and 7 went to this issue.
The respondent
The respondent gave evidence that the neighbouring earthworks continued for about five weeks and caused a lot of noise. She said that while she was in the house, she could not feel any vibration through the pad on the floor and she did not hear any items in her house moving - such as glasses rattling. She did not observe the glass panes of the windows moving. She did say that she could feel a vibration if she put her hands on the kitchen bench, but no items on her bench or in the kitchen were rattling or moving. She said she observed some books on a bookshelf move forward an inch, but none fell off the shelf. She denied that her home was in the direct path of the neighbouring earthworks.
Mrs Howe
Mrs Howe lives at Unit 3 and is the respondent's neighbour. She gave oral evidence by telephone that her unit was closer to the neighbouring earthworks than the respondent's home. She gave evidence that the noise was very intrusive and she had to leave her home after about 9 am until about 4 pm, largely for the whole of the period of the earthworks, which she estimated to be about five weeks. Mrs Howe said the work began at about 7 am each day, so she did experience the full impact of the earthworks for several hours each day.
The applicant's submissions
The applicant submitted that the fixing of the ceilings was in accordance with the Australian Standard and it was not necessary to comply with the Boral standard. The applicant relied on Mr Moore's evidence to support this submission. The Tribunal has indicated below that it does not agree with that submission, and it further finds that the fixings do not meet the Australian Standard in any event for the reasons explained above.
The applicant's counsel contended that even if the ceiling had not been adequately fixed, the degree to which the lounge/dining room ceiling has collapsed now required the whole ceiling to be removed and replaced, which is a far greater task than merely refixing. The Tribunal rejects that submission as well, as there is no evidence at all before the Tribunal that the respondent's home was affected by the neighbouring earthworks.
The Tribunal's conclusions
The ceiling
All of the witnesses who inspected the home found there to be no cracking in the external brickwork which would be consistent with structural movement in the home likely to cause a ceiling to fail. The only crack was consistent with minor settlement of the pad and footings, which is common in all newly constructed homes (internal leaf of the external wall above the window head).
The Tribunal finds that the neighbouring earthworks were not as severe as described by Mrs Russo. There was no evidence of rock breaking or 'coffee rock' breaking, as described by the applicant's solicitor's letter dated 16 November 2011 (page 39 of Exhibit 1), or drilling, breaking up and excavation of rock for any period at all, as described in the applicant's solicitor's letter dated 30 March 2012 (page 74 of Exhibit 1). The Tribunal also finds that, on the evidence, the respondent's home was not the closest unit to the neighbouring earthworks (Mrs Howe's unit is the closest), but appears to be the only unit in the development to have suffered a ceiling collapse.
The Tribunal finds that in up to 50% of the ceiling sheeting, there were two screw fixings per width per joist four screw fixings over the area of two joists. In other areas, the better fixed areas, there were three screw fixings in one joist, and in the next joist there were two screw fixings - five screw fixings over the area of two joists. The Tribunal also finds that the adhesive was not placed evenly between the screw fixings as the Australian Standard and the Boral standard both required. The Tribunal finds that the ceiling fixing is not in accordance with the Australian Standards and it falls well short of the Boral standard. This failure is the likely cause of the lounge/dining room ceiling collapse and is the cause of the ceiling now needing replacement and/or repair.
The Tribunal finds that the neighbouring excavations had little or no impact on the ceiling. Mr Moore gave evidence that all ceilings sag over time, even if correctly fixed. He did not provide any factual basis for this opinion and, in any event, the time period which he referred to was several decades. There is no evidence at all that any extraneous factors have brought forward the collapse of the ceiling by several decades, or at all.
Even if, contrary to the Tribunal's finding, the neighbouring earthworks had an impact, the Tribunal finds that the impact was to reveal the inadequate fixing of the ceiling sooner than several decades on so far as the lounge/dining room is concerned. The investigation and evidence in the hearing has established that all the ceilings in the respondent's home failed to comply with the Australian Standard and the Boral standard. At best, the Tribunal considers that if the neighbouring earthworks had any impact at all, it accelerated the inevitable insofar as the lounge/dining room ceiling is concerned. The applicant's counsel complained that as the ceiling had now collapsed, a full replacement was required, as opposed to simply refixing. That is irrelevant, as the cause of the collapse is the failure to fix in accordance with the Boral standard, or at the very least, the Australian standard.
It was conceded by the applicant's counsel in closing that the appropriate standard is the Australian Standard, and the applicant submitted that it had fixed the ceilings to that standard (based on Mr Moore's evidence). The Tribunal does not agree that the Australian Standard was met for the reason referred to above. The Tribunal considers that if a builder elects to apply a product and the product's manufacturer calls for a particular standard or method of fixing, that is the relevant standard for the purpose of assessing proficiency, sufficiency and faultless application of the product. The fact that the Australian Standard provides for a lower standard of application is not to the point. The manufacturer knows its product best and has produced a product that will only be proficient and satisfactory if it is applied in the manner in which the manufacturer has directed consumers to apply the product.
The front door
The Tribunal accepts the evidence of Inspector O'Dea on this issue, and finds that the inconsistent margin between the front door and the frame on the hinged side is faulty and unsatisfactory. The Tribunal finds that the crack in the plaster is not a crack to the wall, but rather, a crack across the joint of the door frame and the brickwork.
The Tribunal has outlined in some detail the consideration given to each individual witness and the consideration given to the evidence of the lay witnesses (Mrs Russo, Mrs Howe and the respondent). The Tribunal finds the workmanship in constructing the ceiling and hanging the front door was faulty, unsatisfactory and lacking in proficiency and was not caused by anything else.
Conclusion
The Tribunal concludes that the building remedy order made by the Commissioner, in substance, is the correct and preferable order, notwithstanding the receipt of substantial additional evidence, the challenge to the evidence and submissions. The Tribunal, however, shall vary the Commissioner's building remedy order so as to extend the time within which the applicant is to undertake the remedial work. At the conclusion of the hearing, the applicant's counsel informed the Tribunal that the replacement of the ceiling and the rectification of the faulty hanging of the front door could be undertaken by the applicant by 24 September 2012.
Orders
For the above reasons the Tribunal makes the following orders:
1.The building remedy order made by the Building Commissioner's delegate dated 1 May 2012 is affirmed.
2.The building remedy order made by the Building Commissioner's delegate is varied to extend the time for compliance with the order to and including 24 September 2012.
I certify that this and the preceding [80] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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