OWNERS OF STRATA PLAN NO 43417 and PINDAN PTY LTD
[2012] WASAT 243
•18 DECEMBER 2012
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: OWNERS OF STRATA PLAN NO 43417 and PINDAN PTY LTD [2012] WASAT 243
MEMBER: MS L WARD (MEMBER)
MR D MILLER (SESSIONAL MEMBER)
HEARD: 7 AND 8 JUNE 2012
DELIVERED : 18 DECEMBER 2012
FILE NO/S: CC 306 of 2012
CC 311 of 2012
BETWEEN: OWNERS OF STRATA PLAN NO 43417
Applicant
AND
PINDAN PTY LTD
Respondent
Catchwords:
32 unit residential strata complex Internal and external cracks in plaster Standards to apply HB 1612005 'Guide to plastering' AS 28701996 'Residential slabs and footings: Construction' Soil site classification Cornice cracking AS 25982007 'Gypsum linings: Application and finishing' Causes of plaster cracking Shower ponding Water ingress Mouldings Remedial work order - Reasonable costs of remedying
Legislation:
Builders Registration Act 1939 (WA), s 12A(1), s 12A(2), s 12A(3), s 12A(1aa)
Building Code of Australia Volume 2 1996
Building Code of Australia, s 3.8.1
Building Services (Complaint Resolution and Administration Act 2011 (WA), s 9, s 11(1), s 11(1)(d), s 36(1)(b), s 38(1), s 38(1)(a), s 38(1)(b), s 134
State Administrative Tribunal Act 2004 (WA), s 98
Strata Titles Act 1985 (WA)
Result:
Application successful in part
Summary of Tribunal's decision:
Plaster cracks or water ingress feature throughout 23 of the units in a 32 unit multilevel residential complex on the Mandurah Canals. The development was completed by Pindan Pty Ltd in mid2003.
Most of the outstanding complaints relate to cracks in the plaster in various internal and external locations throughout much of the complex. The cracking is widespread throughout the complex and is similar in kind and extent.
The owners submit that irrespective of the cause of the cracking complaints, whether it is settlement or deflection of the concrete slab, the builder should have taken extra care with the construction, especially given the site classification of the soil as Class S. The owners submit that the width and extent of the cracking in the plaster is beyond the accepted tolerances, and is therefore the builder's responsibility. There is no evidence that the defects arose from or were made worse due to a lack of owner maintenance.
The Tribunal found that as submitted by the owners, the accepted tolerances in relation to cracks in plaster were set out in HB 161-2005 'Guide to plastering', rather than the AS 2870-1996 'Residential slabs and footings: Construction'. Most of the cracking exceeded the tolerance allowed for in HB 161-2005 'Guide to plastering' and in those cases it was ultimately found to have been a builder generated defect.
In relation to the water ingress issues, the builder was found to be responsible in relation to the majority of the complaints where it had failed to comply with the relevant parts of the Building Code of Australia.
Ultimately, the owners' application was successful in part.
Category: B
Representation:
Counsel:
Applicant: Mr P Hassett
Respondent: Mr J Jacobson
Solicitors:
Applicant: Lavan Legal
Respondent: Hotchkin Hanly
Case(s) referred to in decision(s):
Metcalf and APG Homes Pty Ltd, Building Disputes Tribunal Complaint No 15148, 24 September 2004
Tangent Nominees Pty Ltd and Edwards and Anor [2006] WASAT 243
REASONS FOR DECISION OF THE TRIBUNAL:
Index
Background
List of alleged defects
Proceedings in the Building Disputes Tribunal
Change in legislative regime
Proceedings in this Tribunal
Final hearing 7 and 8 June 2012
Closing submissions
Consideration of the outstanding items in dispute
The witnesses:
•Inspector Greg Flowers
•Mr Peter Airey
•Mr Wes Gregory
•Mr Adrian Terace
Conflicts in the evidence:
i)AS 2870-1996 or HB 1612005 which is appropriate?
ii)Is the site classification for the building Class A or Class S?
iii)Does AS 2589:2007 'Gypsum linings Application and finishing' require both the cornice to be fixed to the wall and the ceiling or soffit?
iv)Does AS 2589:2007 require a flexible adhesive to be used on one edge of the cornices?
v)What caused the cornices to crack?
vi)Did Mr Terace say to Inspector Flowers on 5 August 2009 that there was no requirement to waterproof the balconies of Units 5 and 6?
Consideration of the evidence
Consideration of each of the 64 complaint items in dispute
General cracking
•Complaint items 5, 77, 101, 126, 127 and 142
Cornice cracking:
•Complaint items 1, 13, 15, 17, 21, 26, 34, 35, 38, 47, 48, 57, 59, 65, 70, 72, 98, 99, 102, 103, 106, 107, 138, 139, 157, 158, 161 and 163
Cracking around doors
•Complaint items 8, 23, 33 and 80
Shower ponding
•Complaint items 3, 16, 39, 88, 133 and 134
Balcony water leaks
•Complaint items 4, 29, 36, 49, 168, 169 and 178
Miscellaneous items Water ingress, mouldings, step riser, paint
•Complaint items 68, 114, 148 and 155
Sealing to shower enclosure
•Complaint item 2
Water ingress
•Complaint item 48(b) expert costs sought $910
•Complaint items 82 and 83 reasonable costs of remedying $3,390.53
External items
•Complaint items 164, 174, 177 and 185
Remedial work orders s 36(1)(a) of the BSCRA Act
Reasonable costs of remedying the building service orders s 36(1)(b) of the BSCRA Act
Orders
Background
Plaster cracks or water ingress feature throughout 23 of the units in a 32 unit multilevel residential complex on the Mandurah Canals. The building licence for the complex was granted to Pindan Constructions on 28 June 2002. The conditions of building licence approval include that '[a]ll work carried out shall be in accordance with the relevant Codes, Australian Standards, By-Laws and lawful requirements of other authorities'. The development was completed by Pindan Pty Ltd (builder) in mid2003.
Most of the outstanding complaints relate to cracks in the plaster in various internal and external locations throughout much of the complex. The cracking is widespread throughout the complex and is similar in kind and extent.
The strata company lodged the complaints on behalf of the owners of the lots (owners).
The builder's responses to the owners' claim are that:
•the cracks arise from normal settlement;
•the cracks which arise in plaster on the first floor are from the normal movement of roof trusses and are not its responsibility; or
•they are items of home maintenance which the owners ought to have attended to.
The owners submit that irrespective of the cause of the cracking complaints, whether it is settlement or deflection of the concrete slab, the builder should have taken extra care, especially given the site classification of the soil. The owners submit that the width and extent of the cracking in the plaster, is beyond the accepted tolerances, and is therefore the builder's responsibility.
No claim is made that the site was not properly compacted and prepared for the building. Nor is there any indication that the S classification footings have not been designed correctly or built correctly. Nor, with the exception of complaint item 33, is there any indication that the cracks have worsened since the Builders Registration Board's Inspector Greg Flowers' inspection on 5 August 2009.
List of alleged defects
The owners lodged the first application with the Building Disputes Tribunal (BDT) on 28 August 2008. A second complaint was lodged with the BDT on 2 February 2009. Aspects of both complaints are now before this Tribunal.
In broad terms, the two complaints lodged in the BDT relate to the owners claiming that some 183 items of work by the builder were unsatisfactory. Most of the 64 remaining complaint items can be grouped together as follows:
•cornice cracking throughout parts of the complex;
•cracks in plaster walls;
•cracks above door frames and windows;
•the fall to several shower floors;
•water ingress; and
•external mouldings.
Most of the items of complaint were first outlined in a report to the owners dated December 2008 from Mr John O'Connor, a registered builder.
A large number of the original complaints were resolved between the parties. At the conclusion of the final hearing in the Tribunal, only 64 items remained for determination by the Tribunal.
In relation to almost all of the 64 items which remain in dispute, the owners seek an order that the builder remedy the building service as specified in the order.
In relation to complaint item 82, the owners seek an order for the costs of remedying the building service in the amount of $3,390.53.
Proceedings in the BDT
At the time that the complaints were lodged in the BDT, s 12A(2) of the Builders Registration Act 1939 (WA) (BR Act) applied and the owners were required to have given a preliminary notice to the builder. Preliminary notices were issued in this case by the owners to the builder. The complaints were subject to several directions in the BDT.
Inspector Flowers inspected the works on 5 August 2009 and provided a report dated 3 September 2009 to the parties which addressed 183 items of complaint and six additional items of complaint.
The builder's response to Inspector Flowers' report was received by the BDT on 18 March 2010. The builder agreed to remedy the majority of the items in Inspector Flowers' report. The builder rejected Inspector Flowers' assessment in relation to the remaining items of complaint.
The items remaining in dispute included a number of cracking complaints. In relation to some of the cracking complaints, the builder submitted that these were maintenance items, or that they were fine masonry cracks. The builder submitted that cracks which were less than 1 millimetre in width do not require repair. The builder identified the cause of the cracks as arising from settlement in the years following practical completion.
No final hearing was ever commenced in the BDT in relation to the complaints.
Change in legislative regime
On 29 August 2011, the BR Act was repealed and the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) became operational on the same date.
As a result of the new legislative regime, on 29 August 2011, all matters except 'current proceedings' were transferred from the BDT to the Building Commission. A 'current proceeding' is defined in s 134 of the BSCRA Act to include, 'a proceeding in respect of which a hearing has commenced before the former Tribunal, but which has not been concluded before the former Tribunal'. As no hearing commenced in the BDT before 29 August 2011, the two complaints were not 'current proceedings'. Accordingly, the two complaints were transferred to the Building Commission.
The Building Commissioner caused an investigation of the complaints by an authorised officer, as is required by s 9 of the BSCRA Act. Then the Building Commissioner, after having regard to a report of the authorised officer, may determine which one of the options under s 11(1) of the BSCRA Act is to apply.
In this case, the Building Commissioner determined that s 11(1)(d) of the BSCRA Act applied and, accordingly, the complaints were referred to the Tribunal on 21 February 2012, 'to be dealt with under section 38 or 43 of the [BSCRA] Act as the case requires'.
Proceedings in this Tribunal
The matters were listed in the Tribunal for directions hearings on 13 March 2012 and 10 May 2012. Both parties were legally represented before the Tribunal at all times. The two complaints, CC 306 of 2012 and CC 311 of 2012, were consolidated, with CC 306 of 2012 being the lead matter. Various standard orders were made at the directions hearings programming the matter for final hearing on 7 and 8 June 2012.
Final hearing 7 and 8 June 2012
Both parties gave brief opening statements to the Tribunal. The Tribunal informed witnesses that while they would not be on oath in the Tribunal under s 98 of the SAT Act, it was an offence to give false or misleading information to the Tribunal. Each witness gave evidence in person before the Tribunal and was subject to crossexamination.
During the final hearing, the following witnesses were called by the owners, namely:
•Inspector Greg Flowers, a Building Commission inspector; and
•Mr Peter Airey, an engineer.
During the final hearing the following witnesses were called by the builder, namely:
•Mr Wes Gregory, an engineer; and
•Mr Adrian Terace, registered builder and maintenance manager for the builder.
Various documents and photographs were provided by the parties to the Tribunal prior to the hearing. These documents formed the hearing book (HB), which comprises of 661 pages. The HB relevantly includes the following documents which the Tribunal relied upon:
•Inspector Flowers' report dated 3 September 2009;
•builder's response to Inspector Flowers' report dated 16 March 2010;
•Mr Terace's statement dated 9 September 2011;
•Mr Gregory's report dated 13 September 2011;
•Mr Airey's report dated 17 April 2012;
•Scott Schedule prepared by the owners' solicitor; and
•970 colour photographs taken by Inspector Flowers at the time of inspection on 5 August 2009. Only photographs of those complaint items remaining in issue have been relied upon by the Tribunal.
Closing submissions
The Tribunal has had the benefit of written closing submissions from the parties in relation to the weight to be placed by the Tribunal on the evidence of the witnesses and, where there are conflicts in the evidence, whose evidence the Tribunal ought to prefer. In addition, each group of complaints remaining in dispute is referred to by the parties in their written submissions.
The owners' legal representatives provided the Tribunal with written closing submissions on 18 June 2012.
The owners, in effect, submitted that the Tribunal should prefer the evidence of Inspector Flowers and Mr Airey on the basis of their expertise and their independence. The owners submitted that Mr Airey's expert opinion was that the builder could have taken steps to prevent or minimise the plaster cracking in the development.
The owners do not question Mr Gregory's credentials. However, they submitted that Mr Gregory's evidence should not be preferred over the other experts for a number of reasons, including, in summary:
•The builder's briefing document to Mr Gregory has not been provided to the Tribunal. According to the owners, the Tribunal is therefore unable to know of the brief or assumptions contained in the document.
•His report contains a disclaimer.
•Mr Gregory made an assumption that the building site was classified as S, based on an engineering report dated 18 December 2000 (HB 327), whereas the report does not actually state it is an S classification.
The owners also make submissions to the effect that Mr Terace's statements about the waterproofing of the balconies of Units 5 and 6 (complaint items 19, 168, 36 and 169) should not be accepted by the Tribunal because it appeared that it was recently invented.
The builder's legal representatives provided the Tribunal with written closing submissions on 23 July 2012.
In summary, the builder submits that while Inspector Flowers' qualifications are not questioned, his evidence ought to be treated with caution due to his:
•overreliance on prescribed standards, noting that standards are guidelines unless there is a contractual requirement to comply with them;
•tendency to ascribe legal liability to the builder, when it was not his role to do so and, accordingly, the Tribunal should give weight to Inspector Flowers' observations only; and
•failure at times during crossexamination to conduct himself with objectivity, neutrality and impartiality.
In relation to the evidence given by Mr Airey, the builder submits, in summary, that the Tribunal ought not to rely on his evidence in relation to:
•his proposed method of fixing cornices as it is not a plain reading of the standard required; and
•the builder including control joints above doors where these details were not included in the design.
On 20 November 2012, the owners' legal representatives wrote to the Tribunal and confirmed that complaint item 166 had been addressed and was no longer in issue.
Consideration of the outstanding items in dispute
The Tribunal will now consider each of the items in dispute, by reference to the complaint item numbers given to each alleged defect and relied on throughout these proceedings. The numbering of the items corresponds with the complaint items listed in Inspector Flowers' report dated 3 September 2009.
For convenience, the complaint items are grouped as follows:
•General cracking items 5, 77,101,126,127 and 142;
•Cornice cracking items 1, 13, 15, 17, 21, 26, 34, 35, 38, 47, 48, 57, 59, 65, 70, 72, 98, 99, 102, 103, 106, 107, 138, 139, 157, 158, 161 and 163;
•Cracking around doors items 8, 23, 33 and 80;
•Shower ponding items 3, 16 , 39, 88, 133 and 134;
•Balcony water leaks items 4, 29, 36, 49, 168, 169 and 178;
•Miscellaneous (water ingress, mouldings, step riser, paint) items 68, 114, 148 and 155;
•Sealing to shower enclosure item 2;
•Water ingress item 48(b);
•Items 82 and 83; and
•External items items 164, 174, 177 and 185.
The witnesses
Inspector Flowers, Mr Airey, Mr Terace and Mr Gregory all gave opinion evidence in relation to some, or all, of the complaints relating to cracking of the plastered wall surfaces. Each of these witnesses' evidence is considered generally below.
Inspector Greg Flowers
Inspector Flowers gave evidence of his qualifications. He is a registered builder and is a building inspector on leave from the Building Commission. The Tribunal is satisfied that he is qualified as an expert to give opinion evidence relating to his observations and concerning the workmanship issues in this proceeding.
Inspector Flowers attended the strata complex on 5 August 2009 at the request of the BDT. Soon thereafter, on 3 September 2009, he wrote an extensive 105 page report. His inspection report included his observations and comments. His report did not propose or recommend any particular action to remedy any possible defects. Inspector Flowers has also provided 970 colour photographs which he took at the site on the day of his inspection. He gave oral evidence concerning his investigation of the matters complained of by the owners and which remain in issue before the Tribunal. While the site inspection took place almost three years ago, Inspector Flowers appeared to the Tribunal to have a clear recollection of what he had observed at the property on 5 August 2009. His recall was assisted by his written report and photographs of the outstanding complaint items.
Inspector Flowers gave evidence in relation to each and every complaint item in issue and he was very thorough. He was able to explain the basis on which he had formed his opinion; namely, from his own observations. Accordingly, the Tribunal does not accept that the builder's reliance on Metcalf and APG Homes Pty Ltd, Building Disputes Tribunal Complaint No 15148, 24 September 2004 is relevant to this application, given the factual and evidentiary differences between that case and this application.
In his evidence Inspector Flowers acknowledged that while the builder may not have complied with a prescriptive requirement, the work may still be satisfactory where the performance requirements are met. As such, the Tribunal is satisfied that he was not merely identifying whether the builder met the requisite standard or not. Also, he indicated when he was unable to identify the source of the problem on the day of his inspection. However, he noted that with additional time and resources, the source of the problem could be identified.
In this case, however, Inspector Flowers made observations on each complaint item and his opinion is based on those observations and his expertise.
In his report and evidence, Inspector Flowers refers to the Builders Registration Board plastering assessment, and he quotes it, at page 4 of his report, as stating:
For the purpose of this assessment, cornice cracking is considered faulty and unsatisfactory:
(a)[w]here the plastering system below the cornice becomes loose by more than 10 mm below the underside of the cornice.
…
A copy of the Builders Registration Board plastering assessment is not before the Tribunal. However, the builder has not challenged Inspector Flowers' reliance on the plastering assessment. In these circumstances, the Tribunal accepts Inspector Flowers' unchallenged reliance on the plastering assessment when assessing cornice cracking.
In the Tribunal's view, the number of photographs which Inspector Flowers took at the time of the inspection and his detailed written report both indicate that his investigation of the complaint items was very comprehensive. He gave his evidence before the Tribunal in a clear and forthright manner. The Tribunal rejects the builder's submission that Inspector Flowers failed at times during crossexamination to conduct himself with objectivity, neutrality and impartiality. He appeared to the Tribunal to be an independent and reliable witness. He acknowledged where matters were beyond his building expertise and required engineering expertise.
Accordingly, the Tribunal accepts the evidence of Inspector Flowers in all respects, apart from the issue of site classification, which is addressed further below.
Mr Peter Airey
Mr Airey is an engineer. At the request of the owners, he attended the site on 26 September 2011 and 30 March 2012. He provided a written report dated 17 April 2012. The report includes nine colour photographs. Mr Airey was accepted by the builder, and the Tribunal, as an expert witness.
Mr Airey's report relates to the general cracking, cornice cracking and cracking around door frames claims only. He had access to only 11 of the units in the complex, namely: Units 1, 4, 6, 7, 9, 14, 23, 27, 29, 31 and 32. His report is limited to 16 of the outstanding complaints.
Mr Airey states in his report that there was a 'comprehensive lack of damage which … could be attributed to foundation induced movement'. Therefore, he found that AS 2870 1996 Appendix C, which refers to foundation movements, is not relevant.
Rather, Mr Airey attributes the cracking around the doors to deflection of the concrete slab. He says that the cornice cracking is caused by the differential movement between different surfaces. Those surfaces differ between the ground floor and the first floor. On the ground floor, the differential movement is between the concrete slab and the brick walls. On the first floor, the differential movement is between the ceiling fixed to a framed construction and the brick walls.
Mr Airey also states that defects caused by slab deflection could have been avoided by a different design treatment. Such treatment could have included full height door openings or movement control joints.
Accordingly, the Tribunal accepts, with one exception, the evidence of Mr Airey in relation to his observations and his opinion in relation to the cause of those defects. The exception is the issue of whether the cornice is to be fixed to both the wall and the ceiling or soffit, and it is addressed further below.
Mr Wes Gregory
Mr Wes Gregory is an engineer. At the request of the builder, he inspected the premises on 20 January 2011. On 13 September 2011 he prepared a written report on his inspection. Seventeen black and white photographs are included in his report. His report is limited to 24 of the outstanding complaints. Mr Gregory had access to only six of the units in the complex, namely: Units 1, 4, 14, 20, 27 and 32.
Mr Gregory referred to the Table C1 'Classification of damage with reference to walls' in AS 28701996 'Residential slabs and footings Construction'. Applying AS 28701996, Mr Gregory's opinion was that cracks of less than 1 millimetre are fine cracks arising from natural settlement which do not require repair by the builder. However, for the reasons set out below, the Tribunal does not accept that AS 28701996 has any relevance to this application. Accordingly, it attaches no weight to Mr Gregory's opinion where he has relied on AS 28701996.
In relation to the cornice cracking complaint items in rooms on the first floor, Mr Gregory stated that they were caused by the movement of the roof truss cords under normal wind loads.
Further, Mr Gregory's report refers to a briefing document which is not before the Tribunal. Accordingly, the Tribunal accepts the owners' submission that it 'is therefore unable to know of the brief or assumptions contained in the document'. Mr Gregory's report also includes a twopage disclaimer and limitation clause which includes a statement that the report has been 'prepared for the benefit of the client and no other party'. As submitted by the owners, Mr Gregory did not resile from this written statement. Such a position is contrary to the 'Expert's obligations to the Tribunal' which are outlined in the Tribunal's pamphlet on expert witnesses. The expert's obligations include that 'an expert witness's paramount duty is to the Tribunal and not to the party engaging the expert'. Clearly, this obligation cannot be met where a report is prepared for the benefit of the party requesting it. Accordingly, for the reasons set out above, in general, the Tribunal prefers the expert evidence of Mr Airey to that of Mr Gregory.
Mr Adrian Terace
Mr Terace is a registered builder. He has worked for the builder since 2004 as a maintenance manager. Accordingly, he was not involved in the building of the complex. Mr Terace physically attended the complex on 5 August 2009 and 5 September 2011.
Mr Terace referred to AS 28701996 and formed the opinion that cracks of less than 1 millimetre are fine cracks arising from natural settlement which do not require repair by the builder. However, for the reasons set out below, the Tribunal does not accept that AS 28701996 has any relevance to this application. Accordingly, it attaches no weight to Mr Terace's opinion where he has relied on AS 28701996.
Mr Terace's evidence in relation to the waterproofing of the balconies of Units 5 and 6 (complaint items 29, 168, 36 and 169) is also dealt with below.
Mr Terace gave evidence of what he considered would be standard building practice in relation to a number of matters, including the manner in which he thought that the cornices were affixed. The Tribunal attaches less weight to Mr Terace's evidence where it is speculative and not based on his firsthand observations or express knowledge as to how the complex was built.
Overall, the Tribunal placed little weight on Mr Terace's evidence in relation to specific complaint items, as he is not an independent witness due to his employment with the builder. However, some weight was attached to Mr Terace's evidence, which was given based on his experience as a builder; for example, the class of footings matching the soil class.
Conflicts in evidence
There are several conflicts in the evidence which require resolution before considering each item of complaint. These conflicts are:
•Firstly, the acceptable tolerance for plaster cracks differs, depending on whether AS 28701996 or HB 1612005 is appropriate; accordingly, which applies?
•Secondly, is the site classification for the building Class A or Class S?
•Thirdly, in relation to the cornice cracking, does AS 2589:2007 'Gypsum linings - Application and finishing' require both back edges of the cornice to be fixed with adhesive, that is, adhesive fixed to the wall and ceiling/soffit? If so, does AS 2589:2007 require a flexible adhesive be used on one back edge of the cornices?
•Fourthly, what caused the cornices to crack?
•Fifthly, did Mr Terace say to Inspector Flowers on 5 August 2009 that there was no requirement to waterproof the balconies of Units 5 and 6?
Each of these conflicts in the evidence is considered below.
AS 28701996 or HB 1612005 which is appropriate?
Mr Gregory and Mr Terace both relied on AS 28701996 'Residential slabs and footings Construction' when they responded to the owners' complaints about plaster cracking. In particular, their evidence was that Table C1 'Classification of damage with reference to walls' of AS 28701996 is the relevant standard to be applied to the cracks in the internal plasterwork and the external render.
Under AS 28701996, cracks of 1 millimetre in width are classified as 'fine cracks which do not need repair'. Under AS 28701996, only cracks of 5 millimetres or greater in width require repair.
In contrast, Inspector Flowers referred to the cracks being greater than the tolerance allowed in Table 9 of the HB 1612005 'Guide to plastering' (HB 161-2005). The cracking complaints relate to the cracking of both internal and external rendered wall surfaces. In his evidence, Inspector Flowers explained that the plastering assessment was developed by the Builders Registration Board and was used to assess cracks in plaster.
Inspector Flowers stated in his evidence that Table C1 'Classification of damage with reference to walls' in AS 28701996 'Residential slabs and footings Construction' was not relevant to this matter, as the cracks that he observed were in the render on the wall and not the wall itself.
Mr Airey supported Inspector Flowers' view. Mr Airey noted in his report at 3.1 that any reference to AS 28701996 was inappropriate. In his view, there was no evidence of any damage in the development that could be attributed to foundation induced movement, which is what AS 28701996 refers to.
The Tribunal prefers and accepts Inspector Flowers' and Mr Airey's evidence over that of Mr Gregory and Mr Terace in this regard. The Tribunal accepts the evidence of Inspector Flowers and Mr Airey that, because AS 28701996 deals with cracks in walls and floor slabs due to foundation movements, and does not include rendered wall surfaces, it is inapplicable to this matter. The cracks in question in this matter are in the plaster. Further, there is no evidence of foundational movement in the building.
Accordingly, the Tribunal accepts that Inspector Flowers' reference to HB 1612005, rather than AS 28701996, is appropriate to the cases involving cracks in the plaster. Accordingly, the Tribunal will apply HB 1612005 where relevant.
Is the site classification for the building Class A or Class S?
The site classification is relevant to the application of HB 1612005. The more reactive the site classification, the greater the tolerance in HB 1612005 for wider cracks in a plastered surface.
Table 9 of HB 1612005 sets out 'recommended crack limits for site soil Classes A, S and M' and '[c]racking and distortions with reference to walls on Type A, S, M sites', with a Class A site being the least reactive site classification.
HB 1612005 states on page 29 under 'Limits for cracking within structural movement' that '[c]racking that occurs in a plastered surface as a consequence of structural movement or material shrinkage is considered to be unacceptable if the severity of the cracking exceeds that outlined in Table 9'.
For example, Table 9 of HB 1612005 describes stepped cracking above interior door openings cracks of 0.5 millimetres on a Class S site as being unacceptable, whereas on a Class A site, cracks exceeding 0.2 millimetres are unacceptable.
In this case, the report from Coffey Geosciences Pty Ltd (Coffey Geosciences) dated 18 December 2000 refers to '[t]he S classification footing'. Apart from the reference in the Coffey Geosciences report, there is no direct proof before the Tribunal as to what classification the site actually is. However, Mr Terace stated during crossexamination that a builder would not build a class of footings above what the site has been classified. Mr Terace was firmly of the view that if the site was an Class A site, then the builder would have built Class A footings and not Class S footings on it. Mr Airey's report also referred to the site being a Class S site, based on the Coffey Geosciences report.
In relation to complaint items 8, 23, 77 and 126, Inspector Flowers refers to the cracks being greater than the tolerance allowed in Table 9 of HB 1612005, based on the soil type being Class A. However, Inspector Flowers acknowledged in his evidence before the Tribunal that, although the Coffey Geosciences report dated 18 December 2000 refers to 'the Sclassification footing [being] designed to accommodate such differential movement', it does not actually state that it is a Class S classification site. Inspector Flowers said that while it was reasonable to assume, on the basis of the Coffey Geosciences report, that the site was classified Class S, without more information, he would prefer not to assume that it was.
The Tribunal is satisfied that for the purpose of the application of Table 9 of HB 1612005, the site is classified as S. This finding is based on the reference to S classification footing in the report from Coffey Geosciences and Mr Terace's evidence.
Inspector Flowers' evidence in relation to complaint items 8, 23, 77 and 126 will be considered below in light of the Tribunal's finding that the site is classified Class S.
Does AS 2589:2007 'Gypsum linings Application and finishing' require both the cornice to be fixed to the wall and the ceiling or soffit?
Whether or not AS 2589:2007 'Gypsum linings Application and finishing' requires the cornice to be fixed to the wall and the ceiling, or soffit, is relevant to whether the cornices have been affixed by the builder in accordance with the standard.
Paragraph 4.6 of the AS 2589:2007 'Gypsum linings Application and finishing' sets out the method of fixing cornices. AS 2589:2007 states that a '10 [millimetre] wide bead of adhesive shall be spread along the full length of each back edge and joint …' (Tribunal emphasis).
Inspector Flowers agreed, under crossexamination, that AS 2589:2007 requires cornices to be glued on both sides, and for one side to be fixed to the wall and the other side to be affixed to the soffit or to the ceiling. Mr Gregory also supported this view.
However, Mr Airey stated that AS 2589:2007 was vague with regard to whether the cornice had to be glued to both the wall and the ceiling.
The builder submits that this was because such a concession would be contrary to Mr Airey's report, in which he stated that only one side of the cornice ought to be fixed to one or other surface. For example, Mr Airey states, at page 12 of his report, that:
It is an unfortunate fact that the general industry practice is to fix cornices to both wall and slab so that the high probability of differential movement at this location can be expected to generate damage to the cornices and to the plaster to which they are glued. …
The damage could be avoided by fixing cornices to the slab and not to the walls, or alternatively, to the walls and not to the slab. As a general comment, fixing to the slab soffit with the cornice floating relative to the walls is to be preferred. It is apparent that the methodology used is unsatisfactory and … a [b]uilder generated defect.
Inspector Flowers agreed under crossexamination that, to his knowledge, he had not come across an instance where a cornice was affixed to only one side. Inspector Flowers was of the view that cornice cement should be used on only one side of the cornice and a flexible adhesive on the other. This is so some differential movement between the two surfaces could be accommodated.
Mr Terace's evidence was that he understood that the cornices had been installed in this strata complex in accordance with AS 2589:2007. Accordingly, they had been affixed to both the wall and the ceiling. The Tribunal notes that Mr Terace was not a builder on site at the time the complex was built. His understanding is based on industry standards and not his firsthand knowledge of how the cornices were actually affixed at the time of construction.
Having considered all of the evidence before it, the words 'each back edge' in AS 2589:2007 indicates to the Tribunal that each back edge of the cornice should have adhesive on them. It follows that each back edge is then affixed to a surface, that is, two surfaces in total. A plain reading of AS 2589:2007 is supported by the evidence of Inspector Flowers and Mr Gregory. Accordingly, Inspector Flowers' and Mr Gregory's consistent evidence in this respect is preferred over that of Mr Airey's evidence.
The Tribunal is satisfied that a plain reading of AS 2589:2007 'Gypsum linings Application and finishing' does require the cornice to be fixed to the wall and the ceiling or soffit.
Does AS 2589:2007 require a flexible adhesive to be used on one edge of the cornices?
The Tribunal notes that AS 2589:2007, at paragraph 4.6, refers to cornices being 'securely bonded at the wall/ceiling junction with a modified plaster-based adhesive …'. The notes in AS 2589:2007 at paragraph 4.6 refer to 'cornice cement'.
In contrast, Inspector Flowers indicated that the use of cornice cement on one of the cornice surfaces and a flexible adhesive on the other would minimise the damage to the wall surface when there is differential movement. Inspector Flowers acknowledged that the use of flexible adhesive on one edge of the cornice was not widely used in the building industry.
The Tribunal accepts Inspector Flowers' evidence that the use of a flexible adhesive on one edge of the cornice would minimise damage to the wall where there is differential movement. However, it notes that AS 2589:2007 does not prescribe the use of a flexible adhesive on one edge. Rather, AS 2589:2007 refers to a plasterbased adhesive and cornice cement, neither of which is flexible.
Accordingly, the Tribunal finds that compliance with AS 2589:2007 does not require a flexible adhesive to be used on one edge of the cornices.
What caused the cornices to crack?
The expert engineers, Mr Airey and Mr Gregory, have different views on why the cornices cracked.
Mr Airey states in his report that the causes of damage to the cornices vary. The variable is the difference between cornices on the ground level, which are attached to the soffit of the concrete slab and to a plastered wall, whereas, on the first floor, the cornices are attached to the ceiling and the plastered wall.
According to Mr Airey, the cause of the cornice cracking on the ground floor arises from the differential movement between the two surfaces to which the cornices are fixed, namely, the wall and the slab.
On the first floor, the shrinkage of the wall plates, on which the roof framing sits, is an additional factor which caused the cornices to crack upstairs. Mr Airey states that he observed wider movements in the corners of some rooms near the external walls, which supports his view.
In contrast, as set out above, Mr Gregory reported that the cornice cracking was due to the manner in which the roof is constructed and was the result of natural movement in the roof. According to Mr Gregory, the cracks would have been controlled or minimised if a regular maintenance programme was in place.
However, Mr Airey states at 3.3 of his report that if Mr Gregory was correct, then the 'separation of the cornice from the walls and the movement of the cornice relative to walls would confidently be expected to be greatest where the ceiling relates to internal walls. This correlation is not present'.
Accordingly, the Tribunal accepts the evidence of Mr Airey that the cornice cracking on both levels arises from the differential movement between the surfaces. Mr Airey's evidence in relation to the cause of the cornice cracking is preferred to that of Mr Gregory.
Did Mr Terace say to Inspector Flowers on 5 August 2009 that there was no requirement to waterproof the balconies of Units 5 and 6?
Under crossexamination, Inspector Flowers maintained that it was his very clear recollection that Mr Terace had told him at the site inspection on 5 August 2009 that there was no requirement to waterproof the balcony floor under the tiled surface and, accordingly, the balcony floor had not been waterproofed. He said that he recalled this statement by Mr Terace, and because it was such a significant statement, he included it in his report.
Mr Terace said at the final hearing that he did make the comment regarding waterproofing. However, he says that it was intended as a sarcastic remark at the end of a long day.
However, at no time between 3 September 2009, when Inspector Flowers' report was issued, and when Mr Terace gave evidence on 8 June 2012, did he ever assert that the comment was made sarcastically. Given that Mr Terace's claim has arisen almost three years after the event, as submitted by the owners, it smacks of being recently invented. Accordingly, the Tribunal attaches no weight to Mr Terace's recent claim that the comment was made to Inspector Flowers sarcastically. The Tribunal accepts Inspector Flowers' evidence in regard to what he says Mr Terace told him at the time of inspection, namely that Mr Terace did say to Inspector Flowers on 5 August 2009 that there was no requirement for the builder to waterproof the balconies of Units 5 and 6.
Consideration of the evidence
The Tribunal will now consider the evidence in relation to each of the individual items of complaints which require determination by it. The numbering of the complaint items corresponds to Inspector Flowers' report dated 3 September 2009.
Consideration of each of the 64 complaint items in dispute
Firstly, the Tribunal will consider the evidence from the witnesses which relates to the general cracking, cornice cracking and cracking around doors complaints.
Complaint items 5, 77, 101, 126, 127 and 142 general cracking
Each of the general cracking complaint items are considered below. Photographs support each complaint item.
Complaint item 5 general cracking external rendered wall Unit 1
The Tribunal accepts Inspector Flowers' assessment that, following a visual inspection, the size, location and associated deviation in the wall surface, the crack was in excess of normal building movement. Mr Airey measured the crack and stated that its width is of the order of 1.2 millimetres at maximum at the soffit of the slab and 1.6 millimetres maximum the same on the face of the east wall above the slab.
The builder submits that it was the unit owner's lack of maintenance which caused the excessive plaster displacement, or normal settlement cracks. However, Inspector Flowers' evidence, under crossexamination, was that there is no indication of moisture getting behind the crack and causing further deterioration through a lack of homeowner maintenance. Accordingly, the Tribunal does not accept the builder's response to the complaint that the crack is caused, or has worsened, due to a lack of home maintenance.
The Tribunal accepts Mr Airey's expert opinion that the cracks are caused by shrinkage of the concrete relative to the brickwork and bonding of the concrete to the brickwork. The Tribunal also accepts Inspector Flowers' evidence that the control V joint is incorrectly positioned and has failed to perform as required.
The Tribunal is satisfied, based on the evidence of Inspector Flowers and Mr Airey, that this is a buildergenerated defect. In addition, the Tribunal notes that the width of the cracks exceeds the acceptable standards set out in HB 1612005 Table 9 for Class S site soil.
Therefore, the Tribunal finds that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 77 cracking above the window and up the wall Unit 15
Inspector Flowers has assessed the cracking above the 'WC' window and up the wall in Unit 5 as 1.2 millimetres wide at its widest point. He states that a crack of that width in that location is outside the tolerance allowed in HB 1612005 where the building is a Class A site.
However, as discussed above, the Tribunal has found that it is a Class S site and, accordingly, the tolerance allowed under HB 161-2005 is 1.5 millimetres. Therefore, when HB 1612005 is applied, then the crack would be within the levels tolerated and would therefore not be the builder's responsibility.
Mr Terace was the only other witness to consider complaint item 77. In his statement, he stated that the cracking falls within the tolerance prescribed by AS 2870-1996. However, as set out above, the Tribunal has found that particular standard to be inapplicable where dealing with cracks in plaster.
As the width of the cracking in complaint item 77 does not exceed the tolerance allowed for in HB 1612005, the Tribunal is not satisfied that the regulated building service was unsatisfactory in relation to that complaint.
Accordingly, the Tribunal declines to make a building remedy order under s 38(1) of the BSCRA Act.
Complaint item 101 cracking to the wall in the entry Unit 20
In relation to complaint item 101, Inspector Flowers reported that he saw 'movement and vertical cracking approximately 30 [millimetres] in from the hinged side of the door frame consistent with the displacement of an external angle bead'. Inspector Flowers measured the crack to be approximately 0.3 millimetres wide and noted that it changed direction from vertical to horizontal.
Mr Terace and Mr Gregory both stated that the cracking falls within the tolerance prescribed by AS 28701996, namely, 5 millimetres. As set out above, the Tribunal has found AS 28701996 to be inapplicable when dealing with cracks in plaster. Accordingly, the Tribunal attaches no weight to the evidence of Mr Terace and Mr Gregory in relation to complaint item 101, insofar as they rely on AS 28701996.
The Tribunal notes that Inspector Flowers went beyond measuring the width of the crack. He also noted that the 'displacement of the vertical angle bead and the associated horizontal crack are the result of excessive movement or poor installation.' Accordingly, the Tribunal prefers the evidence of Inspector Flowers in relation to this complaint item. He is the only witness to give a detailed description of complaint item 101.
The Tribunal is satisfied that, even though the crack does not meet the tolerance listed in HB 1612005 for 'stepped cracking above interior door openings' on Class S sites, given the displacement of the external angle bead, the extent and direction of the crack, this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 126 - cracking to wall over both dining area and bedroom 2 windows Unit 24
In relation to complaint item 126, Inspector Flowers reported that he 'observed a 0.3 [millimetre] wide crack that extended vertically from the top right hand corner of the dining room window that reduced in size as it ran through the cornice and up across the ceiling'. Inspector Flowers applied HB 1612005, which deals with '[v]ertical cracks above window openings spaced no closer than 600 [millimetres] average over span'. He decided that the cracking in complaint item 126 was greater than the 0.2 millimetre tolerance allowed under HB 1612005 on a Class A site.
However, as set out above, the Tribunal has found that the building is on a Class S site. HB 1612005 states that a Class S site has a tolerance of 0.4 millimetres for '[v]ertical cracks above window openings spaced no closer than 600 [millimetres] average over span'.
Accordingly, the crack width in complaint item 126 is within the tolerance contemplated by HB 1612005.
Based on the evidence before it, the Tribunal is not satisfied that this regulated building service was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 127 cracking to the front balustrade wall Unit 24
In relation to complaint item 127, Inspector Flowers reported that he 'observed cracking through the rendered capping of the balustrade wall approximately 2.0 [millimetres] wide'. Inspector Flowers reported that the crack 'continued down the wall between the connection of the rendered end wall and the limestone return wall'.
Mr Terace was the only other witness to consider complaint item 127. In his statement, he stated that the width of the cracking falls within the tolerance prescribed by AS 28701996. However, as set out above, the Tribunal has found that particular standard to be inapplicable in relation to complaints of this nature.
The width of the crack, at 2.0 millimetres, exceeds the acceptable standards set out in HB 1612005, Table 9 for Class S soil item 6, vertical cracks at corners of intersecting walls.
Given the width and location of the crack as described by Inspector Flowers, and the findings above in relation to the great weight attached to Inspector Flowers' evidence, the Tribunal accepts his evidence on this complaint in its entirety.
The Tribunal finds that the regulated building service, in relation to complaint item 127, was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 142 on the landing at first floor level, cracking in the wall between the bedroom and bathroom Unit 27
In relation to complaint item 142, Inspector Flowers reported on two defects, namely, 'a near vertical crack approximately 0.3 [millimetre] wide … extending down the wall by 1,200 [millimetres]' and 'associated cracking below the cornice wall connection by greater than 10 [millimetres]'.
• Vertical crack
In relation to the vertical crack, Inspector Flowers stated that, in his view, 'the vertical crack is consistent with the location of the dividing wall between [bedroom] 2 and the bathroom and generally indicates a lack of bonding or satisfactory masonry construction'. Mr Airey also refers to the vertical cracking and states that it is of the order of 0.8 millimetres at its widest.
In response, Mr Terace and Mr Gregory both state that as the vertical crack is less than 1 millimetre in width, it is classified as a fine crack under AS 28701996 and it is within the tolerance prescribed by AS 28701996. However, as set out above, the Tribunal has found that AS 28701996 is inapplicable in relation to complaints of this nature. Accordingly, no weight is placed on Mr Terace and Mr Gregory's view in relation to complaint item 142.
Given the length, location and width of the crack, as described by Inspector Flowers, and the findings above in relation to the great weight attached to Inspector Flowers' evidence, the Tribunal accepts that the vertical crack down the wall was estimated by Inspector Flowers as approximately 0.3 millimetres wide and by Mr Airey as 0.8 millimetres at its widest. HB 1612005 at Table 9 item 9 'Cracks not covered by the above' allows for cracks of 0.05 millimetres.
The Tribunal finds that the regulated building service, in relation to the vertical crack component of complaint item 142, was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
• Cornice cracking
Inspector Flowers observed that there was 'an associated cracking below the cornice wall connection by greater than 10 [millimetres]'. Inspector Flowers relies on the Builders Registration Board plastering assessment.
In response, Mr Gregory's evidence was that the cornice cracking was due to the manner in which the roof is constructed. In particular, as the 'truss bottom cords are tied into the truss top cords[,] the ceiling can experience movement under normal wind loads ... [and] buildings of this nature require … regular maintenance'.
Mr Airey states at 3.3 of his report that if Mr Gregory was correct, then the 'separation of the cornice from the walls and the movement of the cornice relative to walls would confidently be expected to be greatest where the ceiling relates to internal walls. This correlation is not present'.
The Tribunal prefers the evidence of Mr Airey to that of Mr Gregory in this regard. The Tribunal notes that there is no evidence to support the builder's assertion that the cornice cracking in Unit 27 has been caused or worsened by a lack of home maintenance. Accordingly, the Tribunal does not accept the builder's response in this regard.
The Tribunal accepts Mr Airey's evidence that the cornice cracking has been caused by differential movement at the junction of wall and ceiling, and that the cornice detail is unsatisfactory.
The Tribunal accepts Mr Airey's and Inspector Flowers' evidence, and finds that the Tribunal is satisfied that this regulated building service, in relation to both the vertical cracking and the cornice cracking in complaint item 142, was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 1 general complaint of cornice cracking
Complaint item 1 is the general complaint regarding a claim of cornice cracking and is dealt with on a complaint by complaint basis below.
Accordingly, in relation to complaint item 1, the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCRA Act
Complaint items 13, 15, 17, 21, 26, 34, 35, 38, 47, 48, 57, 59, 65, 70, 72, 98, 99, 102, 103, 106, 107, 139, 157, 158, 161 and 163 cornice cracking
All of the cornice cracking complaints, apart from complaint items 34, 70, 72 and 99, will be considered together. This is because the majority of those complaints are very similar in nature. In particular, they are each described by Inspector Flowers as cracking to the bottom edge of the cornice and wall connection, which caused damage down the face of the wall. There is a horizontal crack along the cornice and there is damage to the surface of the wall below the bottom edge of the cornice. Inspector Flowers described the crack as a sheering crack because there had been movement between the cornice and the wall.
The distance between the cornice and the cracking on the wall in each of the above complaints, apart from complaint items 34, 70, 72 and 99, is greater than 10 millimetres, as per the Builders Registration Board plastering assessment.
The Tribunal accepts Inspector Flowers' evidence that there is no indication of moisture getting behind the cornice cracking and plaster delamination. Accordingly, the Tribunal does not accept the builder's response to this group of complaints that the crack and plaster delamination is caused, or has been worsened, due to a lack of home maintenance.
The builder also submits that the cracks are the owner's responsibility because they are settlement cracks. In response, Inspector Flowers states that the crack width and the extent of the cracking indicate that the cracks go beyond the expected level of settlement cracks.
As set out above, Mr Airey states in his report that the causes of damage to the cornices vary, the variable being the difference between cornices on the ground level and those on the first floor.
In contrast, Mr Gregory reported that the cornice cracking was due to the manner in which the roof is constructed and was the result of natural movement in the roof. According to Mr Gregory, the cracks would have been controlled or minimised if a regular maintenance programme was in place.
However, Mr Airey states at 3.3 of HB 354 that if Mr Gregory was correct, then the 'separation of the cornice from the walls and the movement of the cornice relative to walls would confidently be expected to be greatest where the ceiling relates to internal walls. This correlation is not present'.
Accordingly, the Tribunal is satisfied on the evidence of Mr Airey that the cornice cracking on both levels arises from the differential movement between the surfaces.
For the reasons set out above the Tribunal prefers the evidence of Mr Airey to that of Mr Gregory in relation to the cause of the cornice cracking. The Tribunal accepts Mr Airey's and Inspector Flowers' evidence, and finds that the cornice cracking goes beyond the tolerance for settlement cracks and that, as observed by Mr Airey, the cracks are not consistent with the natural movement in the ceiling, nor is there any evidence of the cracks arising from a lack of home maintenance.
Accordingly, the Tribunal is satisfied that this regulated building service, in relation to complaint items 13, 15, 17, 21, 26, 35, 38, 47, 48, 57, 59, 65, 98, 102, 103, 106, 107, 138, 139, 157, 158, 161 and 163, was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 34 bedroom 1 cornice cracking and plaster delamination Unit 6
Inspector Flowers observed cornice cracking and delamination of the plaster in both the southeast and northeast corner of the room. Complaint item 34 differs from the previous group of cornice cracking complaints because there is a sliding robe installed that has the top track fitted to the ceiling. Inspector Flowers observed a gap between the track and the ceiling at each end. Also, at the door end of the frame, Inspector Flowers noted that a crack extends from the door head up to the underside of the cornice.
Mr Airey estimated that the robe had separated from the ceiling in the order of 25 millimetres. He stated that '[t]hese cracks and associated movement are assessed as due to a continuation of slab deflection. This source of damage is time dependant [sic] and can be expected to continue but at a reducing rate'.
Subsequent to his report of 17 April 2012, Mr Airey added to the Scott Schedule his opinion that the damage was not builder generated; rather, it was a design fault arising from a lack of deflection control. In the Tribunal's view, the builder is required to exercise reasonable skill and care in performing its obligations. Accordingly, it is incumbent on the builder to raise construction and design issues with the designers. In this case, the builder did not provide any evidence that it sought a different design solution from the designers to accommodate such slab deflection.
Accordingly, the Tribunal rejects Mr Airey's opinion that complaint item 34 is not the builder's responsibility. The Tribunal prefers and accepts Inspector Flowers' evidence in relation to complaint item 34.
The Tribunal finds that, given the extent of the gap and cracking, it is satisfied that this regulated building service in relation to complaint item 34 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint items 70 and 72 dining area cornice cracking and plaster delamination Unit 14
Inspector Flowers observed 'cracking to the bottom edge of the cornice with associated angled cracking from the bottom edge of the cornice extending down the wall surface by approximately 260 [millimetres]'.
Mr Gregory reported that the cracking was fine cracking with a width of less than 1 millimetre. He said that it arose from the natural settlement of the building over time and had been exacerbated by the lack of owner maintenance.
Mr Airey observed the shear pattern cracking within the plaster in the upstairs lounge area and said it arose from the fixing of the cornices to both the wall and the slab. However, for the reasons set out above, the Tribunal does not accept that the builder ought to have fixed the cornices on one side only. Mr Airey also reported that the differential movement at the junction of the wall and the ceiling was another cause of the cornice cracking.
Mr Airey reported that 'differential movement … is widely known to be a construction and design parameter which must be addressed …'. There is no evidence before the Tribunal of the builder seeking to address these issues in advance.
The Tribunal accepts Inspector Flowers' opinion that the cracking exceeds the acceptable tolerances allowed in the Builders Registration Board plastering assessment. The Tribunal finds that, based on Mr Airey's evidence, the cracking has been caused by differential movement at the junction of the wall and the ceiling.
The Tribunal finds that, given the extent of the cracking and plaster delamination, it is satisfied that this regulated building service in relation to complaint items 70 and 72 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 99 in entry there is cracking through the cornice cove approximately 1 metre long on the west wall Unit 20
Inspector Flowers observed a number of angled cracks varying in width and closely spaced together through the body of the cove cornice.
The builder relies on AS 28701996, which classifies cracks of less than 1 millimetre in masonry as fine cracks. Mr Gregory reported that the cracking arose from the natural settlement of the building over time and had been exacerbated by the lack of maintenance. However, the Tribunal has already found that AS 28701996 does not apply to cracks in plaster. Therefore, the Tribunal places no weight on Mr Gregory's evidence in this regard.
The Tribunal accepts Inspector Flowers' opinion in relation to the complaint, and that the quantity and extent of the cracking exceeds the acceptable tolerances allowed in the industry standard set out in the Builders Registration Board plastering assessment. Based on Mr Airey's evidence, the Tribunal finds that the cracking has been caused by differential movement at the junction of the wall and the ceiling. These movements were foreseeable given the soil classification and industry practice and ought to have been taken into account by the builder at the time of building.
The Tribunal finds that, given the number of cracks and extent of the cracking, it is satisfied that this regulated building service in relation to complaint item 99 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint items 8, 23, 33 and 80 cracking around doors
Complaint items 8 and 23 cracking at the head of the door from bedroom 1 in both Unit 1 and Unit 4
Complaint items 8 and 23 will be considered together as they are both similar in nature. Both complaints relate to cracks which were measured by Inspector Flowers to be 0.5 millimetres in width.
The builder relies on AS 28701996 and submits that they are fine cracks of less than 1 millimetre which do not require repair. However, for the reasons set out above, the Tribunal considers that HB 1612005 is the appropriate guide in this case and that AS 28701996 is not relevant.
The Tribunal notes that Inspector Flowers incorrectly applied Item 3 of Table 9 of the HB 1612005 guide to a Class A site, rather than a Class S site. Accordingly, no weight is attached to Inspector Flowers' opinion in this regard. This is because the Tribunal has found the correct site classification to be Class S.
Item 3 of Table 9 of the HB 1612005 guide, relates to '[s]tepped cracks above interior door openings', and provides that on a Class S site, cracking that exceeds 0.5 millimetres is considered to be unacceptable. As the width of the cracking in complaint items 8 and 23 does not exceed the tolerance allowed for in HB 1612005, the Tribunal is not satisfied that the regulated building service was unsatisfactory in relation to those complaints.
Accordingly, the Tribunal declines to make a building remedy order under s 38(1) of the BSCRA Act in relation to complaint items 8 and 23.
Complaint items 33 and 80 cracking above door frame of bedroom 1 in both Unit 6 and Unit 15
Complaint items 33 and 80 will be considered together as they are both similar in nature. Both complaints relate to cracks which were measured by Inspector Flowers to be 0.6 millimetres, or greater, in width.
In relation to complaint item 33, Inspector Flowers observed a crack of about 0.6 millimetres wide that extended from the side of the door frame head to the internal corner. A 600 millimetre spirit level showed that the door frame was not level. Later, on 30 March 2012, Mr Airey measured the crack as being 1.2 millimetres at its widest. Inspector Flowers stated under crossexamination that the head of the frame was out of level and that it had moved so much that the door was difficult to operate.
In relation to complaint item 80, Inspector Flowers observed a crack of about 0.6 millimetres wide that extended from the head of the robe recess and across to the door. He noted that smaller cracks radiated off the main crack down the wall.
In response to both complaint items 33 and 80, the builder relies on AS 28701996 and submits that it is a fine crack of less than 1 millimetre which does not require repair. However, for the reasons set out above, the Tribunal considers that HB 1612005 is the appropriate guide in this case and that AS 28701996 does not apply.
Both Mr Airey and Inspector Flowers also gave evidence of different treatments around the door which could have avoided this defect. The suggested design treatment included full height doors or movement control joints. Mr Terace's evidence was that if the plans or drawings did not require such a design treatment, then the builder would not put them in.
Inspector Flowers and Mr Airey were of the view that while the insertion of these design solutions was a matter for the designer, it was reasonable to expect a builder building on a Class S site to at least raise the issue with the designer. In the Tribunal's view, the builder is required to exercise reasonable skill and care in performing its obligations. Accordingly, it is incumbent on the builder to raise construction and design issues with the designers. There is no evidence before the Tribunal that the builder sought a different design solution from the designers to accommodate such possible settlement at the door openings.
The Tribunal notes that Item 3 of Table 9 of HB 1612005 relates to '[s]tepped cracks above interior door openings' and provides that on a Class S site, cracking that exceeds 0.5 millimetres is considered to be unacceptable.
As the width of the crack in complaint items 33 and 80 exceeds the tolerance allowed for in HB 1612005, and given the evidence of Inspector Flowers and Mr Airey that a different design solution is something that should have been raised with the designers, and that there is no evidence of this happening, the Tribunal is satisfied that the regulated building service was unsatisfactory in relation to those complaints.
The Tribunal finds that, given the extent of the cracking, it is satisfied that this regulated building service in relation to complaint items 33 and 80 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint items 3, 16, 39, 88, 133 and 134 shower ponding general comments
Inspector Flowers and Mr Terace were the only witnesses to give evidence in relation the 'shower ponding' complaints.
In general terms, Inspector Flowers found that the showers in some of the units did not drain adequately. He formed this view after running each of the showers in question for a period of time, and then turning the shower off and observing the area on which water remained on the shower floor.
Inspector Flowers used a 600 millimetre spirit level to measure the fall and found that the five showers in question did not have the 1:60 to 1:80 falls as required under s 3.8.1 of the Building Code of Australia. Inspector Flowers' evidence in his report was that a fall of 1:60 was achievable with the tiles used in the various shower recesses.
Inspector Flowers refers to the following standards in his report in relation to the tiling of wet areas:
•The Building Code of Australia Volume Two 1996 Amendment 10(BCA). Part 3.8.1 Wet areas cl 3.8.1.0 states:
Performance Requirement P2.4.1 is satisfied for wet areas in Class 1 and 10 buildings if they are waterproofed in accordance with AS 3740 Waterproofing of wet areas within residential buildings.
•AS 3958.11991 Ceramic tiles: part 1 Guide to the installation of ceramic tiles. Section 4 'Preparation of backgrounds for tiling'. Clause 4.2 'General', 4.2.1 'Wet areas' states:
Construction in wet areas should be in accordance with (a) AS 3740.
•AS 3740 'Waterproofing of wet areas within Residential Buildings Appendix C falls in floor finishes' states:
C1 GENERAL
The primary consideration for falls in floor finishes is to ensure water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements.
Falls in floor finishes should ensure water exits the area at the floor waste or doorway if that is the designed exit point, [for example], laundry door to exterior. Water should not pond on the floor, with the exception of residual water remaining due to surface tension.
…
C3 FALL RATIOS
The recommended ratio of fall within a shower area is between 1:60 and 1:80.
The recommended ratio of fall in other wet areas is between 1:80 and 1:100.
In some circumstances, the fall in the floor finishes in the same area may vary.
Where falls steeper than 1:100 are not achievable, the effectiveness of the floor drainage should be confirmed to ensure it meets the primary consideration set down in Paragraph C1 above.
The builder's general response to the shower ponding complaints was that the ponding was minor. It denied that the falls were inadequate and claimed that the fall in the floor did meet the primary consideration set out in paragraph C1 of AS 3740, relating to health, amenity or deterioration of building elements. However, the Tribunal notes that the health of a person entering a shower with water ponding on the floor could be adversely affected by slipping on it. Proof of this actually occurring is not necessary. Accordingly, the Tribunal does not accept the builder's general response that the primary consideration set out in paragraph C1 of AS 3740 is met in relation to this group of complaints.
Each of the shower ponding complaint items 3, 16, 39, 88, 133 and 134 are considered below.
Complaint item 3 general complaint of inadequate falls to shower floors
Complaint item 3 is the general complaint regarding a claim of inadequate falls to shower floors and is dealt with on a complaint by complaint basis below.
Accordingly, in relation to complaint item 3, the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCRA Act.
Complaint item 16 tiling to the ensuite shower floor is not draining Unit 2
Inspector Flowers, at page 25 of his report, observed that when:
[t]he shower was run and turned off[,] [t]he floor was inspected after approximately 10 minutes and the following observations made: [a] large part of the shower floor drained rapidly[;] however[,] a section of the floor adjoining the grate retained approximately 2 [millimetres] of moisture on the floor surface.
Under crossexamination, Inspector Flowers was unable to recall the size of the 'section' of water which remained in the shower after 10 minutes.
It was common ground that the owner of Unit 2 had removed and replaced two tiles on each side of the grate and then replaced the grate in the ensuite shower. Also, it was not disputed by the builder that the retention of 2 millimetres of water on the shower floor went beyond 'residual water remaining due to surface tension' as per AS 3740.
At the time of his inspection, Inspector Flowers was aware of the work done by the unit owner, and that fact is referred to in Inspector Flowers' report. The Tribunal accepts Inspector Flowers' evidence on complaint item 16 in its entirety. Because of Inspector Flowers' state of knowledge at the time of the inspection, it is implicit that the lack of fall in the shower floor went beyond the tiles which the owner had replaced.
Based on the evidence of Inspector Flowers, the lack of fall in the shower floor is not attributed to the owner replacing some of the tiles. Rather, the lack of fall in the shower floor is the builder's responsibility as the entity which tiled the majority of the floor and determined its levels.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 16 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 39 tiling to the ensuite shower floor is not draining Unit 7
Inspector Flowers observed that '[i]n the ensuite the shower floor does not drain correctly with water ponding to a depth of 2-3 [millimetres] alongside the shower screen'. He measured the fall in the shower and based on his measurements he formed the view that the fall in the shower floor did not meet the ratio recommended in AS 3470. He stated that it was possible to meet the fall using the 200 millimetre by 200 millimetre tiles. The lack of fall has created the retention of water.
The builder denies that the fall in the shower is inadequate merely on the basis that there is some ponding on the floor after 15 minutes. However, the builder's response overlooks the fact that Inspector Flowers did, in fact, measure the fall and found it to be inadequate as against paragraph C3 of AS 3470.
Inspector Flowers' evidence supports the Tribunal's finding that the requirements prescribed in paragraph C1 of AS 3470 are not met. Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Pt 3.8.1 Wet areas' cl 3.8.1.0.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 39 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 88 Tiling to the ensuite shower floor is not draining Unit 17
Inspector Flowers observed that 'a section of the floor adjoining the grate retained moisture on the tiled surface. He measured the fall as being between 5 millimetres and 6 millimetres in 600 millimetres. In one location, he said that little fall was observed. He assessed the water sitting around the shower grate 10 minutes after the shower had been turned off as ponding. He agreed in crossexamination that he did not measure the depth of the ponding. However, he maintained that he was satisfied that the water remaining went beyond surface tension and was ponding, as recorded in his report.
The builder's response refers to the owner having replaced some tiles in the shower. However, there is no indication in Inspector Flowers' report or in his evidence that this was the case. The Tribunal does not accept that the owner of Unit 17 replaced some tiles in the shower, because there is no evidence of this having occurred.
The builder also denies that the fall in the shower is inadequate merely on the basis that there is some ponding on the floor after 15 minutes. However, the builder's response overlooks the fact that Inspector Flowers did, in fact, measure the fall and found it to be inadequate as against AS 3470 due to the lack of fall and the ponding of water on the floor.
The Tribunal accepts Inspector Flowers' evidence that, in his view, the shower was ponding due to the fall in the floor being insufficient.
In the Tribunal's view, Inspector Flowers' evidence supports the finding that the requirements prescribed in paragraph C1 of AS 3470 are not met. Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Part 3.8.1 Wet areas' cl 3.8.1.0.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 88 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 133 the ensuite the shower floor excessive length of time to drain Unit 25
Inspector Flowers observed that, after running the shower and then waiting 15 minutes, 'a section of the floor adjoining the grate between the grate and door to the shower retained moisture on the floor surface. The retained water depth was approximately 2 mm to 3 mm deep'.
Inspector flowers used a 600 millimetre spirit level and found that at the edges of the shower floor there appeared to be adequate fall. However, in front of the grate, Inspector Flowers noted that the 'level indicated a flat spot that appeared to be slightly hollow'.
Based on his measurements, Inspector Flowers formed the view that the 2 millimetres 3 millimetres of moisture sitting around the shower grate was ponding. The lack of fall in the shower floor near the grate caused the retention of water.
The builder denies that the fall in the shower is inadequate merely on the basis that there is some ponding on the floor after 15 minutes. However, the builder's response overlooks the fact that Inspector Flowers did, in fact, measure the fall and found it to be inadequate as against AS 3470.
The Tribunal accepts Inspector Flowers' evidence that, in his view, the shower was ponding due to the insufficient fall in the shower recess.
In the Tribunal's view, Inspector Flowers' evidence supports the finding that the requirements prescribed in paragraph C1 of AS 3470 are not met. Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Part 3.8.1 Wet areas' cl 3.8.1.0.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 133 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 134
Complaint item 134 is a repeat of complaint item 133. As the Tribunal has made an order in relation to complaint item 133, it declines to make a building remedy order under s 38(1)(b) of the BSCRA Act.
• Balcony water leaks
Complaint items 4, 29, 36, 49, 168, 169 and 178
Each of the balcony water leaks complaint items are considered below.
Complaint item 4 general complaint relating to the sealing of the balcony tiles
Complaint item 4 is the general complaint relating to the sealing of the balcony tiles, and it is dealt with on a complaint by complaint basis below.
Accordingly, in relation to complaint item 4, the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCR Act.
Complaint items 29 and 168 water is permeating through the masonry from the balcony to the underside of the alfresco area Unit 5
The builder accepts that water ingress is occurring. The only issues are how the water ingress is occurring and whether it is the builder's fault.
Inspector Flowers notes that '[a] concrete slab forms the floor of a balcony above and acts as the ceiling for the alfresco area below'. He noted that 'at the connection of the skirting tiles and the floor tiles to the balcony a crack has developed in the cementitious grout with sections of the grout missing'. He also noted that no flexible sealant was present, whereas other units had it in comparable areas.
Three drainage pipes have been installed at the balcony floor level to allow moisture to escape the tiled balcony floor area. Inspector Flowers noted gaps in the seal between the drainage pipes which would allow moisture to penetrate. The relevant photographs show deterioration in the painted surface of the underside of the slab and damage around the drainage pipes.
Mr Terace's evidence in chief was that all of the tiled balconies in the complex were waterproofed. This evidence was based on his personal knowledge that the balcony of Unit 23 had been waterproofed. He then assumed that all tiled balconies would have been treated the same and been waterproofed.
Mr Terace was unable to provide the Tribunal with any specific details of the waterproofing methods used in the units with tiled balconies. Mr Terace's evidence that all tiled balconies were waterproofed is also contrary to what he told Inspector Flowers at the time of the inspection on 5 August 2009.
Accordingly, given the findings made above in relation to Mr Terace on the issue of waterproofing, the Tribunal does not find Mr Terace to be a reliable witness in relation to whether or not the balcony of Unit 5 is waterproofed. The Tribunal does not accept Mr Terace's evidence that the balcony of Unit 5 is waterproofed, because his evidence was based on an assumption which he had made.
However, as Inspector Flowers indicated in general terms under crossexamination, irrespective of whether the balcony of Unit 5 is or is not waterproofed, the important factor is whether it is a 'performing barrier'. Accordingly, even if the balcony had been waterproofed by the builder, the waterproofing was not performing.
The builder submitted that the owner was required to identify the source of the water ingress. According to the builder, a possible source is through the terracotta tiles on the balcony, where the owner fails to reseal them at least once a year. The builder did not provide any evidence that it advised the owner that it was necessary to reseal the terracotta tiles to the floor of the balcony at least once every 12 months.
Inspector Flowers accepts that water will ingress through the masonry if there is no performing waterproof barrier.
Based on the above findings, the Tribunal is satisfied that water is penetrating the balcony due to there being no waterproof membrane, as admitted by Mr Terace at the site inspection on 5 August 2009.
Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Part 2.1 Part 2.1 Structure, P2.1 Structural Stability and resistance to actions', which requires:
The actions to be considered to satisfy the performance requirement of the Building Code of Australia … include but are not limited to viii) rainwater action.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint items 29 and 168 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint items 36 and 169 water ingress into the masonry and the applied surface of the patio soffit on the ground floor patio Unit 6
The builder accepts that water ingress is occurring. The only issues are how the water ingress is occurring and whether it is the builder's fault.
The damage caused by the moisture ingress is described by Inspector Flowers as including white staining to the underside of the balcony and bubbling to the painted surface along the connection of the rear of the masonry wall and underside of the slab. Three drainage pipes have been installed at the balcony floor level to allow moisture to escape the tiled balcony floor area. Inspector Flowers noted gaps in the seal between the drainage pipes which would allow moisture to penetrate.
Inspector Flowers noted that he did not observe any cracking in the underside of the suspended slab. In Inspector Flowers' opinion, the source of the moisture is caused by the lack of waterproof barrier and the poor sealing around the drainage holes.
In response, the builder claims that a possible source of water ingress is through the terracotta tiles on the balcony above. The builder claims that the owner of the unit above Unit 6 has failed to re-seal the tiles at least once a year. There is no evidence before the Tribunal of the builder instructing the owners of the need to seal the terracotta balcony tiles every 12 months.
The Tribunal finds that, consistent with Mr Terace's statement at the time of the inspection, no waterproof membrane has been applied to the balcony surfaces. Accordingly, water is penetrating the balcony and entering the masonry and the applied surface of the patio soffit on the ground floor patio due to the lack of waterproof membrane. This is consistent with Inspector Flowers' view that if there was cracking present and no waterproof membrane between the slab and the tiled surface, then moisture could permeate into the crack. The Tribunal is satisfied that the builder's unsatisfactory work has generated this defect.
Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Part 2.1 Part 2.1 Structure, P2.1 Structural Stability and resistance to actions', which are set out above.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint items 36 and 169 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 178 water permeating the joint between the brick balustrade and slab Unit 18
Inspector Flowers observed some minor efflorescence near the V joint in the exterior of the balcony, cracks in the flexible sealant on the landing, and ponding of water on one of the stair treads due to there being no floor waste on the balcony.
Inspector Flowers accepted under crossexamination that some kinds of efflorescence could be brushed off. Even so, the cause of the efflorescence has been identified by Inspector Flowers as being the failure of the flexible joint at the connection of the balcony floor and skirting.
In response, the builder claims that a possible source of water ingress is through the terracotta tiles on the upstairs entry balcony. The builder claims that the owner of the unit has failed to reseal the tiles at least once a year. The builder also submits that it is the owner's responsibility to maintain the flexible sealant. The Tribunal notes that there is no evidence before the Tribunal of the builder instructing the owners of the need to seal the terracotta balcony tiles every 12 months.
The Tribunal accepts Inspector Flowers' evidence, including the photographs, and accepts that the cracks in the flexible sealant and the lack of floor waste on the balconies are buildergenerated faults. The defective seal between the floor and the skirting is a result of the builder's poor workmanship.
Therefore, the builder has contravened the requirements of the Building Code of Australia Volume Two 1996, 'Amendment 10 Part 2.1 Part 2.1 Structure, P2.1 Structural Stability and resistance to actions', which are set out above.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 178 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
• Miscellaneous items water ingress, mouldings, step riser, paint
Complaint items 68, 114, 148 and 155
Each of the above miscellaneous complaint items will be addressed individually below.
Complaint item 68 moisture ingress through the ceiling soffit over the refrigerator recess Unit 12
Inspector Flowers observed bubbling and staining of the painted cornice above the refrigerator recess in Unit 12 consistent with moisture damage. Inspector Flowers could not, on the day of his inspection, identify the source of the moisture penetration. However, in his view, allowing moisture into a building was in direct contravention of the performance requirements, being the Building Code of Australia Volume One 1996 'Amendment 10 Part F1 Damp and weather proofing, Functional statement FF1.2', which states:
A building is to be constructed to provide resistance to moisture penetrating from the outside including rising from the ground.
The builder rejects Inspector Flowers' assessment on the basis that the source of the water ingress has not been identified. The builder submits that the more probable cause of the paint breakdown is a failure by the owners to reseal the tiled entry to the unit above every 12 months. The Tribunal notes that there is no evidence before the Tribunal of the builder instructing the owners of the need to seal the terracotta balcony tiles every 12 months.
The Tribunal accepts Inspector Flowers' assessment of the complaint. While he was unable to specify the source of the moisture ingress on the day of the inspection, his evidence was that, in general, given additional time and resources, the source would be identified. The Tribunal is satisfied that the builder has not ensured compliance with Building Code of Australia Volume One 1996 'Amendment 10 Part F1 Damp and weather proofing'. In addition, the builder's building licence requires it to meet the performance requirements in compliance with the Building Code of Australia.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 68 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 114 height of step risers Unit 21
Inspector Flowers measured each of the risers on the stairs in Unit 21. The risers vary in height by up to 59 millimetres. The Building Code of Australia Volume One 1996 'Amendment 10, D2.9 Access and Egress D2.9 D2.13 Goings and risers' sets out the maximum height for a riser on a private stairway as 190 millimetres. Four of the risers in question exceed the maximum height requirement.
However, it is not in dispute that at the time of completion the stairs were carpeted. Now, as shown in the photographs, the carpet has been removed and the stairs are tiled. Due to the change from carpet to tiles, the Tribunal cannot be satisfied that the variations in riser height are due to the builder's unsatisfactory building work. There is insufficient evidence before the Tribunal to satisfy it that the builder was responsible for the variations in riser height. There is no evidence before the Tribunal from the owner of Unit 21 or the owner's tiler to indicate one way or another if the risers had been modified during the tiling process.
Accordingly, in relation to complaint item 114, the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCRA Act.
Complaint item 148 peeling of paint on front door reveal Unit 30
Inspector Flowers observed a gap of up to 1.8 millimetres wide between the timber door frame and the quarter round finish moulding.
Mr Terace stated that the likely cause of the damage to the front door of Unit 30 was wear and tear over the six years between completion and the inspection. In contrast, Inspector Flowers' evidence was to the effect that two factors indicated that the defect did not arise from wear and tear, namely;
•the distance that the quad to quarterround finishing mould had moved out of position; and
•the loss of adhesion of sections of the whiteset plaster.
The Tribunal is satisfied that based on Inspector Flowers' evidence of his visual inspection of the complaint and the consistent photographic evidence, the width of the cracks exceeds the acceptable standards as set out in HB 1612005 and that the defect does not arise from normal wear and tear. Accordingly, the Tribunal is satisfied that item 148 is a builder generated defect.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 148 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 155 water ingress in the laundry Unit 31
Inspector Flowers observed staining and discoloration on the floor around the PVC pipe, and bubbling to part of the finished painted surface on the wall.
The builder rejects the inspector's assessment on the basis that the source of the water ingress has not been identified.
The Tribunal accepts that on the day of the inspection, Inspector Flowers was unable to identify the source of the water ingress. In reexamination, Inspector Flowers stated that if he had the time and resources, there would be a very good chance that he would be able to determine the source of moisture.
Inspector Flowers' evidence in relation to complaint item 68, another moisture ingress claim, was that allowing moisture into a building was in direct contravention of the performance requirements in the Building Code of Australia. In addition, the builder's building licence requires it to meet the performance requirements in compliance with the Building Code of Australia.
The Tribunal accepts Inspector Flowers' assessment of the complaint. While he was unable to specify the source of the moisture ingress on the day of the inspection, the Tribunal is satisfied that the builder has not ensured compliance with Building Code of Australia Volume One 1996 'Amendment 10 Part F1 Damp and weather proofing, Functional statement FF1.3 ', which states:
A building is to be constructed to avoid the likelihood of
(a)the creation of unhealthy or dangerous conditions; and
(b)damage to building elements, caused by dampness or water overflow from bathrooms, laundries and the like.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 155 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
• Sealing to shower enclosure
Complaint item 2
Complaint item 2 is a general complaint relating to the sealing of the shower enclosure. No evidence is before the Tribunal in relation to this complaint.
Accordingly, in relation to complaint item 2, the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCRA Act.
• Water ingress
Complaint item 48(b) expert costs sought $910
The owners seek the expert costs of $910 in relation to resolving the issue of water ingress in the entry of Unit 9 from the bathroom in Unit 10. In response, the builder submits that the Tribunal does not have jurisdiction because the additional item was beyond the six year limitation period.
The Tribunal notes the following sequence of events in relation to complaint item 48(b):
•On 20 June 2009, Mr John O'Connor provided the owners with an unsigned report which listed an additional item in relation to water ingress into Unit 9.
•On 24 June 2009, the owners' agent informed the BDT of the additional complaint items.
•On 27 June 2009, owners' agent advised the builder, by letter, of the additional complaint item.
•The item was included in Inspector Flowers' inspection on 5 August 2009.
•On 16 March 2010, the builder advised the owners that it considered that the claim was out of time.
The Tribunal accepts the builder's submission that the Tribunal does not have jurisdiction to deal with this claim, albeit for a different reason; namely, no preliminary notice was given to the builder before the complaint was made, which is contrary to s 12A(2) of the BR Act, which applied in June 2009. In relation to item 48(b), the BDT was advised of the additional item before the builder was given any notice of it.
Further, the letter on behalf of the owners to the builder dated 27 June 2009 does not, in any case, meet the substantive or formal requirements for a preliminary notice as set out in s 12A(3) of the BR Act. For example, the letter dated 27 June 2009 does not call on the builder to rectify the matters on which the owners intend lodging a complaint. As set out in Tangent Nominees Pty Ltd and Edwards and Anor [2006] WASAT 243 at [27]:
… the intent of the legislation is clearly to require a complainant to give the other party an opportunity to settle a dispute prior to a complaint being lodged with the BDT.
In this case, the builder has not been afforded the opportunity to remedy complaint item 48(b) before the complaint was lodged with the BDT.
The Tribunal does not have jurisdiction to deal with complaint item 48(b), as no preliminary notice was issued by the owners. Therefore, the Tribunal does not need to decide if complaint item 48(b) was lodged outside the sixyear time limit stated in s 12A(1aa) of the BR Act.
Accordingly, in relation to complaint item 48(b), the Tribunal declines to make a building remedy order under s 38(1)(b) of the BSCRA Act.
Complaint items 82 and 83
In bedroom 2 of Unit 16, Inspector Flowers observed 'bubbling paint, staining, deterioration of the whiteset surface all consistent with moisture damage to the section of wall above and below the electrical sub board'. Very high moisture readings were also gathered during the inspection. The ceiling of the room is formed by the suspended slab that continues to create the balcony slab that forms part of the stairwell and landing to the unit above. The tiled balcony above was examined and, despite the rain on the day of the inspection, no ponding on the balcony was observed.
Inspector Flowers could not, on the day of his inspection, identify the source of the leak. However, in Inspector Flowers' view, allowing moisture into a building was in direct contravention of the performance requirements, being the Building Code of Australia Volume One 1996 'Amendment 10 Part F1 Damp and weather proofing, Functional statement FF1.2', which states:
A building is to be constructed to provide resistance to moisture penetrating from the outside including rising from the ground.
The builder rejects Inspector Flowers' assessment on the basis that the source of the water ingress has not been identified. The builder submits that the more probable cause is a failure by the owners of the unit above to reseal the tiled balcony area every 12 months. The Tribunal notes that there is no evidence before the Tribunal of the builder instructing the owners of the need to seal the terracotta balcony tiles every 12 months. The Tribunal also notes that based on the findings above, Mr Terace's evidence was that the balcony floor of Unit 16 had not been waterproofed.
The Tribunal accepts Inspector Flowers' assessment of the complaint. While he was unable to specify the source of the leak, the Tribunal is satisfied that builder has not ensured compliance with Building Code of Australia Volume One 1996 'Amendment 10 Part F1 Damp and weather proofing', as set out above.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 82 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
• External items
Complaint items 164, 174, 177 and 185
Complaint item 164 mouldings curling away
Inspector Flowers observed, at page 95 of his report, that '[t]o a number of elevations and units the edges of the architectural mouldings are curling away from the wall at their outside edges …'. The 'curling away' of the mouldings was measured by Inspector Flowers to be approximately 3 4 millimetres. Photographs support Inspector Flowers' description of the mouldings in relation to several units. Inspector Flowers noted that 'this moulding has been fitted … and from the observations that could be made[,] appear[s] to have [been] fixed to the substrate via an adhesive rather than mechanical fixings'. He also stated under crossexamination that if the mouldings had been properly fixed, then they would last a lifetime. He added that the curling away from the edges indicated that the mouldings had not been properly affixed by the builder.
Mr Terace accepts that there is some minor curling of the mouldings. However, he says that, in his experience, the mouldings must have been mechanically fixed; otherwise, they would have detached prior to this time.
In the Tribunal's view, irrespective of whether or not the mouldings have been mechanically fixed or if the product was defective, it is clear that they have failed. The Tribunal finds that the 'curling away', or lifting of the mouldings, by 3 millimetres 4 millimetres is unacceptable and that the builder is responsible for this defect.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 164 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 174 water ingress around the rainwater downpipe on the underside of the stair landing Unit 16
Photographic evidence from the day of Inspector Flowers' inspection shows a band of discoloration around the rainwater downpipe on the underside of the balcony. Mr Terace provided the Tribunal with a more recent photograph of the same downpipe. He said in his statement that the more recent photograph shows 'a faint band of discoloration to the painted surface'. Mr Terace linked the discoloration to evidence of the area having been repaired.
In contrast, Inspector Flowers considered the discoloration and deterioration of the painted surface to be consistent with moisture damage. Inspector Flowers identified the cause of the water ingress to be from the lack of adequate seal in the space around the rainwater downpipe.
The photograph provided by Mr Terace does appear to show that the area has been repainted. However, there is no suggestion from Mr Terace that the seal in the space around the rainwater downpipe has also been repaired.
The builder also rejected Inspector Flowers' assessment on the basis that the more likely cause is a failure by the owners of the unit above to reseal the tiled balcony area every 12 months. The Tribunal notes that there is no evidence before the Tribunal of the builder instructing the owners of the need to seal the terracotta balcony tiles every 12 months.
The Tribunal accepts Inspector Flowers' assessment of the complaint. He has specified the source of the leak. The fact that the underside of the landing has been painted since the inspection does not detract from the fact that the evidence before the Tribunal is that the gap in the space around the rainwater downpipe still exists.
Accordingly, the Tribunal is satisfied that this regulated building service in relation to complaint item 174 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 177 minor water ingress into a section of wall between the two storeys Unit 18
Inspector Flowers identified two issues in relation to complaint item 177. The first issue related to the minor water ingress. On 16 March 2012, the builder accepted Inspector Flowers' assessment of the complaint.
The second issue identified by Inspector Flowers was a repeat of complaint item 64.
Accordingly, by consent of the parties, the Tribunal is satisfied that this regulated building service in relation to complaint item 177 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Complaint item 185 masonry cracking Unit 23
During the hearing on 8 June 2012, the builder agreed to remedy this complaint item. The Tribunal inadvertently omitted complaint item 185 from order 4 made by it on 8 June 2012.
Accordingly, by consent of the parties, the Tribunal is satisfied that this regulated building service in relation to complaint item 185 was unsatisfactory within the meaning of s 38(1)(a) of the BSCRA Act.
Remedial work orders s 36(1)(a) of the BSCRA Act
The owners seek remedial work orders to be made under s 36(1)(a) of the BSCRA Act in relation to those complaint items which the Tribunal is satisfied, under s 38(1)(a) of the BSCRA Act, that the regulated building service is unsatisfactory.
The terms of the orders made are set out below.
Reasonable costs of remedying the building service orders s 36(1)(b) of the BSCRA Act
The owners seek the costs of remedying the building service in the sum of $3,390.53 in relation to complaint items 82 and 83. The amount sought is the amount invoiced by Claysal Contracting (Claysal) on 11 November 2009. The Tribunal notes that the owners submit that the work done by Claysal in November 2009 has remedied complaint items 82 and 83.
The issue for the Tribunal is whether or not the amount in the Claysal invoice is reasonable. The builder submits that the 25 hours taken to find the source of the leaks was a remarkable amount of time, and it seeks a reduction of at least $1,000. The builder has not sought leave to tender a quote or any evidence in support of the reduction it claims.
Given that the unit owner told Inspector Flowers on 5 August 2009 that he had turned the power off and could not use his unit due to safety concerns, there was some urgency attached to the work. The work was then undertaken sometime in and around November 2009. Inspector Flowers stated in his evidence that finding the source of a leak is merely a question of time and resources. There is no reason to believe that the number of hours spent identifying successfully the source of the leak in this matter is excessive. Further, and more importantly, the leak has not returned since it was repaired.
Having considered the evidence available to the Tribunal, namely, the invoice and the evidence of Inspector Flowers in relation to finding the source of leaks, the Tribunal considers that the work done and the costs thereof as set out in the Claysal invoice are reasonable.
Accordingly, by 28 January 2013, the builder must pay the owners $3,390.53 by way of remedial costs.
Orders
1.By 1 March 2013 the respondent shall remedy the unsatisfactory work at No 19 San Marco Quays, Mandurah in a proper and proficient manner in relation to each of the complaint items set out below, the numbering of which corresponds with the numbering in Inspector Flowers' report dated 3 September 2009.
1.1General Cracking Items 5, 101, 127 and 142
1.1.1Complaint 5 cracking external rendered wall in the entry porch Unit 1
1.1.2Complaint 101 cracking to the wall in the entry Unit 20
1.1.3Complaint 127 cracking to the front balustrade wall Unit 24
1.1.4Complaint 142 cracking on the landing at first floor level in the wall between the bedroom and bathroom Unit 27
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.2Cornice cracking Items 1, 13, 15, 17, 21, 26, 34, 35, 38, 47, 48, 57, 59, 65, 70, 72, 98, 99, 102, 103, 106, 107, 138, 139, 157, 158, 161 and 163
1.2.1Complaint 13 cornice cracking together with plaster delamination in bedroom 3 Unit 2
1.2.2Complaint 15 cornice cracking and delamination of the plaster to the east wall Unit 2
1.2.3Complaint 17 cornice cracking and delamination of the hardwall plaster to the north wall Unit 2
1.2.4Complaint 21 cornice cracking through the cornice cove in the northwest corner in the living room Unit 4
1.2.5Complaint 26 cornice cracking in the southwest corner together with the dislodgement of the hardwall plaster in bedroom 2 Unit 4
1.2.6Complaint 34 cornice cracking and delamination of the plaster in two locations in bedroom 1 (southeast and northeast corners) Unit 6
1.2.7Complaint 35 cornice cracking and plaster delamination to the northwest corner in the living area Unit 6
1.2.8Complaint 38 cornice cove has cracked away from the wall in the meals area Unit 7
1.2.9Complaint 47 splitting to the cornice cove on the west wall in bedroom 1 Unit 9
1.2.10Complaint 48 splitting to the cornice cove on the north wall of bedroom 2 Unit 9
1.2.11Complaint 57 - severe plaster delamination under the cornice of the north wall of the walkinrobe Unit 9 and Unit 10
1.2.12Complaint 59 severe plaster delamination below the cornice line in the southwest corner Unit 9 and Unit 10
1.2.13Complaint 65 severe cracking with plaster delamination to the southeast corner of the living area Unit 12
1.2.14Complaint 70 cornice cove has delaminated from the suspended slab in the dining area Unit 14
1.2.15Complaint 72 cornice cracking with extensive plaster delamination on the north wall and on the east wall in the dining area Unit 17
1.2.16Complaint 98 delamination of the hardwall plaster from the underside of the slab together with the delamination of hardwall plaster below the cornice in the living area (southeast corner), and some cracking to the wall in the southeast corner of the living area Unit 20
1.2.17Complaint 99 cracking through the cornice cove in the entry on the west wall Unit 20
1.2.18Complaint 102 cracking away of the cornice (in the passage at first floor level) adjacent to the door to bedroom 1, a crack in the wall at door head height and also cracking away from the wall of the soffit in the robe Unit 20
1.2.19Complaint 103 extensive cornice cracking (in bedroom 2) in the southeast corner with plaster delamination and a crack through the cornice cove Unit 20
1.2.20Complaint 106 similar faults to complaint 103 in bedroom 3, with the exception of the cracking through the cornice cove Unit 20
1.2.21Complaint 107 cornice cracking and delamination of the plaster in the southeast corner in the bathroom Unit 20
1.2.22Complaint 138 plaster delamination to the northwest corner in the living area and from the underside of the slab in the same location Unit 27
1.2.23Complaint 139 minor cornice cracking and plaster delamination in the living area Unit 27
1.2.24Complaint 157 cracking through the cornice cove on the west wall and on the south wall Unit 32
1.2.25Complaint 158 cracking through the cornice cove in the northeast corner of the meals area Unit 32
1.2.26Complaint 161 cracking to the cornice in the office together with the cracking at door head height Unit 32
1.2.27Complaint 163 cornice cracking with delamination of plaster in bedroom 1 on the south and west sides Unit 32
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.3Cracking around doors Items 33 and 80
1.3.1Complaints 33 and 80 cracking above door frame of bedroom 1 in both Unit 6 and Unit 15
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.4Shower ponding Items 16, 29, 88 and 133
1.4.1Complaint 16 tiling to the ensuite shower floor is not draining Unit 2
1.4.2Complaint 29 water is permeating through the masonry from the balcony to the underside of the alfresco area Unit 5
1.4.3Complaint 88 tiling to the ensuite shower floor is not draining Unit 17
1.4.4Complaint 133 the ensuite shower floor excessive length of time to drain Unit 25
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.5Balcony water leaks Items 29, 36, 49, 168, 169 and 178
1.5.1Complaints 29 and 168 water is permeating through the masonry from the balcony to the underside of the alfresco area Unit 5
1.5.2Complaints 36 and 169 water ingress into the masonry and the applied surface of the patio soffit on the ground floor patio Unit 6
1.5.3Complaint 49 the joint between the balcony floor tiles and skirting tiles have cracked in the northeast corner resulting in water staining to the patio soffit of Unit 9
1.5.4Complaint 178 water permeating the joint between the brick balustrade and slab Unit 18
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.6Miscellaneous water ingress, mouldings, step riser, paint Items 68, 148 and 155
1.6.1Complaint 68 moisture ingress through the ceiling soffit over the refrigerator recess Unit 12
1.6.2Complaint 148 peeling of paint on front door reveal Unit 30
1.6.3Complaint 155 water ingress in the laundry Unit 31
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
1.7External items Items 164, 174, 177 and 185
1.7.1Complaint 164 mouldings curling away
1.7.2Complaint 174 water ingress around the rainwater downpipe on the underside of the stair landing Unit 16
1.7.3Complaint 177 minor water ingress into a section of wall between the two storeys Unit 18
1.7.4Complaint 185 masonry cracking Unit 23
Action Required:
The respondent to remedy the above defects in a proper and proficient manner.
2.By 1 March 2013, the respondent is to make good any damage occasioned by compliance with order 1.
3.The Tribunal declines to make a building remedy order on the applicant's complaint items 1, 2, 3, 4, 8, 23, 48(b), 77, 114, 126, 134 and 166.
4.By 28 January 2013, the respondent must pay the applicant $3,390.53.
I certify that this and the preceding [293] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS L WARD, MEMBER
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