Patterson v Richard Laird trading as CQ Terra Polish - [2014] QCAT 403

CITATION:

Patterson v Richard Laird trading as CQ Terra Polish [2014] QCAT 403

PARTIES:	David Patterson (Applicant)
v
Richard Laird trading as CQ Terra Polish (Respondent)

APPLICATION NUMBER:

BDL217-13

MATTER TYPE:

Other civil dispute matters

HEARING DATE:

29 January 2014

HEARD AT:

Mackay

DECISION OF:

Member Beckinsale

DELIVERED ON:

21 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Richard Laird pay to David Patterson the sum of $18,095.00 inclusive of GST within 21 days of the date of this decision.

2. The counter-application is dismissed.

3. No order as to costs.

CATCHWORDS:

Defective polished concrete floor – responsibility for defective finish – cost of rectification to be paid by contractor – home owners owner builders at time and Domestic Buildings Contract Act 2000 does not apply – implied warranty that floor fit for purpose

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

David Patterson

RESPONDENT:

Richard Laird trading as CQ Terra Polish

REASONS FOR DECISION

Background

David Patterson and his wife Jane built what they describe as their “dream home” at 253 Smith Cross Road, Devereux Creek which is in the hinterland of Mackay in Central Queensland. The Pattersons engaged Richard Laird who trades as CQ Terra Polish, to polish the concrete floor, which was to be a feature of the home.
The slab for the Patterson’s house was completed in May 2012. Mr Laird carried out grinding, polishing and sealing of the slab in July of that year, and after the construction of the house had been completed, returned to buff the floor in July 2013.
The Pattersons paid Mr Laird’s invoice of $18,095.00 in July 2012. After he completed buffing in August 2013 they sought, by application to the tribunal, the costs of rectifying what they allege is defective work, the finish having “mop marks” and a dull appearance.
Mr Laird agrees with the Pattersons that the floor, post buffing, was unsatisfactory but does not agree that is due to poor workmanship. He contends the floor has been improperly treated between the time when he left the site in July 2012 and when he returned a year later.
There was no written contract.
The Home Owners’ Position
Mr and Mrs Patterson’s evidence was that they met Mr Laird on site where they were proposing to build their home to discuss their requirements. Mr Laird was accompanied by his wife Tracey Laird and their children.
The Pattersons’ evidence is that Mrs Patterson had viewed a concrete floor polished by Mr Laird and wanted a glossy finish without aggregate being exposed. They said they had advised Mr Laird they were owner builders in the process of getting builders’ quotes and made it clear there would be a delay between completing the slab and commencing the house. They said they were assured by Mr Laird that would not be a concern as regards the floor; that he had done slabs that had sat out in the weather for years and they had come up fine.
The Pattersons said they contacted Mr Laird when the slab was done and he commenced work a few weeks later. The Pattersons recounted that Mr Laird had some difficulty with their slab from the start, finding the slab too soft in places resulting in gouging and too hard in other places for the grinding pads to work. The Pattersons said they were disappointed with the finish at that point. Mrs Patterson said Mr Laird assured her the floor would come up well with the application of the sealant.
The Pattersons were not present the day Mr Laird applied the sealant although Mr Patterson’s mother Lorraine Patterson was at her nearby residence from where she had a view of proceedings. Lorraine Patterson’s evidence was to the effect that Mr Laird and his offsider did not take enough time or care in cleaning the slab or applying sealant.
Mr and Mrs Patterson said when they saw the slab after the sealant had been applied they were concerned by the hazy or dull appearance and large swirly “mop marks”. Mrs Patterson’s evidence is that she sent a text that night to Mr Laird which mentioned such “mop marks” and that during a subsequent telephone discussion with Mr Laird he assured her such marks would “buff out easily”.
The Patterson’s evidence is that after the slab had been polished and sealed they covered it in black plastic as they had been advised to do by Mr Laird. Mrs Patterson says their builder was made very aware of the need to be careful with the floor given how much it had cost and she understood all contractors on site had taken care. The Pattersons thought the builder had removed the plastic sheeting once he took over the site.
The Pattersons said after the house was completed Mr Laird returned to buff the floor. They said Mr Laird made a number of attempts to carry out the buffing returning to the job with a bigger machine and using higher grade pads before offering to refund their money. Mr Patterson said he agreed to a refund but that Mr Laird replied he did not have the money to do so and instead arranged for another professional to assist him with the buffing. Mr Patterson said that was to be at Mr Laird’s cost.
The Pattersons’ evidence is that after this final attempt by Mr Laird the appearance of their concrete floor remained unimproved with large swirly mop marks on most of the surface and an overall dull appearance. The Pattersons’ said the concrete floor is completely unacceptable and not the finish they paid for. They said the polished concrete floor was to be a main feature of their home and the poor finish detracts from the home’s appearance and from its value.
The Pattersons produced three professional witnesses.
Russell Seymour built the Pattersons’ home. He had not seen the floor since he completed the building work. He said he had not a lot of experience with polished concrete. He remembered seeing mop-like marks but had not seen the floor after Mr Laird had attempted buffing. His evidence was that there may have been black plastic on part of the slab when he arrived on site, that some had blown off with maybe 30% covered. He said the slab was not kept covered in plastic during construction but they were very careful and mainly worked over the top.
Nathan Milburn, a building inspector for 12 years, said he had viewed around 15 to 20 polished concrete floors in the course of carrying out inspections over the past couple of years although this was the first occasion he had been specifically asked to consider the finish of a polished concrete floor. Mr Milburn’s evidence is that when he inspected the Pattersons’ floor mop markings were very evident throughout the polished concrete floor face. His written report continues:
The markings which are showing are consistent to the mopping of a floor with both dirty water and a dirty mop. It is my opinion during the application of the final finish sealer the floor wasn’t thoroughly cleaned and/or a dirty mop/bucket were used during this final process. Concrete aggregate visible to areas of the floor as a result of too much taken off during the grinding process of the floor. The standard of the finish is far from my expectations of sealed polished concrete floors…A licensed competent polished floor professional needs to be engaged in the removal of the present sealing product and carry out the necessary steps in resealing…
Shane Worbey gave evidence he has been the owner/manager of Razor Cut Concrete Cutting and Drilling for 18 years and that he had worked in the industry for 6 years prior to that. He said polishing concrete floors is a constant part of his business. He said the Pattersons’ floor did not appear to have been cleaned properly prior to sealant being applied. He had observed marks which appeared to be caused by something mop-like moving back and forwards. He said the floor had a matt look whereas it should be glossy. He said it would not be possible to merely buff the floor to improve the finish which in his opinion was unacceptable. He said it would not be possible to rectify the floor other than by going ‘back to square one’. He provided a written quote to Mr Patterson to rectify the floor: ‘Floor to be ground back to remove existing coating, then grouted and then acrylic sealer to be applied to give a clear gloss finish’.
Mr Worbey described his process of polishing concrete floors which differed from that used by Mr Laird. Mr Worbey explained that after a building was constructed and gyprock completed he would return to regrind the floor and only then applied sealant. He gave evidence that the sealant used on the Pattersons’ floor could not in his view be a penetrating sealant as it was over the top of the surface whereas a penetrating sealant won’t leave any evident coating. He did not think anything during the building process could have caused the appearance of the floor nor any cleaning process, including the application of acid, which was specifically asked of him by Mr Laird.
The contractor’s position
Mr Laird’s evidence is that he has been operating his business, which includes concrete polishing, for eleven years and has 24 years experience in the building industry. His practice as regards a new building is to grind and polish the slab soon after its construction but before walls, which would be an obstruction, are erected. He says that prior to commencing the job he advised the Pattersons that after he completed the polishing of the slab they should cover it with black plastic to protect the floor from the elements and during construction. He has reiterated in his evidence that the finished product he provides is the concrete he has ground and sealed and that buffing after construction is an extra service he offers at no charge and requested by few customers.
Mr Laird acknowledged he had difficulty with the grinding process on the Pattersons’ job due to the inconsistency of the slab. He said he had to order various different types of grinding segments for his machine. He said the sealing process was undertaken in the usual manner with the product he always uses. He outlined that he and Michael Chapman, who assisted him in the process, had washed the slab and allowed it to dry sufficiently before applying the sealant with an applicator he described as being flat, mop-like and with dimensions of about 60 x 270cm. Mr Laird said he applied one coat of Supershield WB, which he described as a penetrative sealer. A Product Technical Data Sheet obtained by Mr Patterson from the manufacturer’s website specified the application of a second coat for that product but Mr Laird said he had attended training courses run by the product’s suppliers and only ever applied a single coat.
Mr Chapman’s evidence supported that of Mr Laird that the slab had been cleaned before the application of the sealant.
Mr Laird acknowledged that Mrs Patterson referred to ‘mop marks on the floor’ in a text message after he left the site but said that he knew the marks she referred to ‘would disappear after the sealer was dry’. He said these marks were never mentioned again and he did not know there was an issue with the floor until he arrived on site to buff it. He denied telling the Pattersons such marks would ‘buff out’.
Mr Laird said when he returned to buff the floor on 29 July 2013 he was surprised at the state of the polished concrete; that it looked dirty and dull. He noticed the ‘mop marks on the floor along with several other stains, marks and damaged areas’. Realising his own equipment would not be adequate to carry out buffing he hired a larger machine and returned a few days later. That attempt was also unsuccessful and he tried again with different pads on 7 August but was unable to ‘return the floor to its polished state’.
By email sent that date to the Pattersons Mr Laird said
once I left the job, the work had been completed in a quality manner and ordinarily, the floor would be under roof within a reasonable amount of time therefore not exposed to the elements. Due to dust and sun exposure the final product I have applied appears to have hardened in the weather and therefore has had an effect on the sealer. In all my experience I have never seen the application do this.
Subsequently Mr Laird arranged for experienced colleague, Mark Johnson of Total Sealing Works, to attend at the property with another heavier duty machine but Mr Johnson was also unable to achieve the expected finish to the floor.
In the Response filed by Mr Laird he contends the marks on the slab referred to by the Pattersons ‘are the result of the exposure to the weather of the finished polished concrete over a lengthy period of time before the house was constructed and/or a chemical reaction between the sealer and what the slab may have been attempted to be cleaned with’. The dull finish ‘is a result of the damage that has occurred to the floor during the prolonged building process’.
Mr Laird has provided photographs and comments posted on Facebook by Jane Patterson which he says clearly show ‘the slab with no protection whilst construction was being undertaken with areas of rubbish, planks, trestles, stained water, framework and piles of timber on the finished polished concrete floor’. He has produced a further Facebook posting indicating the Pattersons had moved in prior to his returning on the arranged date to buff the floor and another where Mrs Patterson says, referring to the floor, ‘just been scrubbing it again for 2 hours god I hope it turns out’.
Mr Johnson provided a report outlining how he had cleaned and buffed the Pattersons’ floor at Mr Laird’s request. His reported opinion is that the floor had not been ‘protected and looked after during the building process, thus causing marks’. He reports there were several marks on the floor that looked to be acid affected. ‘My guess is that someone on the job during the building process has used acid and spilt this on the polished concrete floor, thus having several (acid etched) dots on the floor from this’. He also notes ‘there were also many areas around the edges of the floor to be rust dots (sic) caused from grinding steel and leaving burn dots’.
Mr Johnson said he had operated his business 8 or 9 years. He is a qualified applicator with many years’ experience in the flooring industry prior to that. He carries out a similar process to Mr Laird, in applying a single coat of sealer to the polished concrete slab at which stage the floor is a finished product.
Mr Johnson’s oral evidence about the “swirly mop marks” on the floor (which he did not address in his written report) was there was a possibility they could have been caused by cleaning the floor with a harsh product but described the marks as being deeply baked on. In his opinion the marks were most likely to have occurred at the stage of the sealer being applied. He said normally such marks are easily removed by buffing but if the floor was left exposed to direct sunlight for even a couple of days that is enough to bake the sealer on. Mr Johnson did not think the floor’s appearance was due to applying sealant to a dirty floor. He said if that occurred you would see a ‘concrete dust hazy sort of look’. He emphasised that when the slab is sealed it is a finished product that must be covered immediately and treated ‘with white gloves’ throughout the building process.
The evidence of Tracey Laird simply reiterates what her husband has said occurred. In oral evidence she said she has a general recollection of the advice given to the Pattersons as to the measures needed to protect the slab following polishing and said it is always the same advice that her husband gives, that is, that the sealed floor is a finished product which must be protected with something like Viscreen before construction commences. She said Mr Laird ‘doesn’t go into’ what protection should occur once construction starts because ‘that is the builder’s side’. She said she recalled Mr Laird had received a text from Mrs Patterson mentioning mop marks the day he sealed the floor and he told her they would come out because the sealer was still wet.
Mr Laird produced a number of testimonials from clients and colleagues as to his competence.
Tribunal’s Findings
Mr Laird agrees with the Pattersons’ that their polished concrete floor is not finished to an acceptable standard. He spent time and money attempting to rectify the finish but ultimately took the position, which he maintains, that he was ‘not responsible for what has occurred to the slab’.
I accept that after Mr Laird received a text from Mrs Patterson a telephone conversation took place between them when the issue of the “mop marks” was discussed. I accept that Mr Laird believed these marks to be evident in the freshly applied sealant and that his expectation was the marks would disappear as the sealant dried. However I find that whatever Mr Laird meant to convey to Mrs Patterson, she took him to mean that the marks would be removed by the final buffing process. It was not therefore unreasonable that the Pattersons did not raise the issue of the mop marks and dull appearance of the surface again so that Mr Laird was not aware there was any problem until he returned to carry out buffing.
There has been evidence given about how “acid etched dots” and “rust dots” may have occurred but those have not been the concern of the Pattersons nor the presence of an oil stain nor a gouged area in the lounge so I will not deal with those imperfections. The complaint has primarily been in relation to the swirly mop marks and a dull or hazy finish.
Mr Milburn and Mr Worbey who gave evidence for the Pattersons both identified a lack of cleaning or use of dirty water or a dirty mop in the process of applying the sealant as the most likely reason for the defective appearance of the floor. Mr Johnson for Mr Laird, did not think the appearance of the floor was caused by a lack of cleaning saying if that were the case he would expect to see a hazy look, which IS what other witnesses have described. Mr Johnson’s evidence was that he thought the mop marks had been produced in the process of applying sealant.
I don’t find Lorraine Patterson’s evidence as regards the application of sealant to be helpful given there was no evidence led as to her having any experience in that process and her distance from the slab at the time. If anything, her oral evidence as to the time spent on site by Mr Laird and his offsider tended to support their account.
Whilst Mr Johnson said there was a possibility that the mop marks were caused by use of an inappropriate cleaning product his evidence was that the mop marks most likely occurred when the sealant was applied and in his experience would buff out unless exposed too long to the sun which could result in the baking on of the marks. That was also Mr Laird’s initial suggestion to the Pattersons in his email and it was only subsequently in his Response that he has suggested some reaction with a cleaning product.
There is no evidence that acid or other damaging cleaning method has damaged this floor.
Three professionals experienced in polishing concrete floors gave evidence in this matter.
Mr Worbey does not apply sealant until the end of the construction and regrinds the floor just prior to doing so, so his floors, are not exposed to weather after the sealant is applied.
Mr Johnson emphasised the need for the sealed slab to be covered immediately and kept covered throughout the building process. He said he had experienced the occurrence of marks from the application of the sealant which did buff out as long as the floor wasn’t exposed to the weather. He considered even 2 days exposure could result in the marks “baking on” and being unable to be removed in the buffing process.
Mr Laird however had not had that experience. Whilst he said he had advised the Pattersons of the need to cover the slab with plastic until construction commenced he also assured them he had slabs sit out in the weather a couple of years without a problem.
I accept the evidence of Mark Johnson, who is the only witness to have had prior experience with this effect, and find that the most likely cause of what has been described by witnesses as baked in, swirly mop marks is that they occurred during the application of the sealant and became hardened or “baked on” through exposure to the elements.

I find the Pattersons did generally follow the advice given to them by Mr Laird. If the sealed slab did need the careful “white glove” treatment described by Mr Johnson, then that needed to be explained in very specific terms by Mr Laird to his clients if he is later to claim that the manner in which they have treated the slab has resulted in a defective surface.
I accept that Mr Laird was taken aback by the condition of the floor he thought he only had to buff. He made concerted efforts to rectify the finish but these efforts were unsuccessful.
Whether the dull or hazy appearance of the floor was caused by a lack of cleaning prior to the application of the sealer or a result of the “baking on” of the sealant I find Mr Laird responsible for the overall defective appearance of the floor.
I find that rectification of the floor by the method described by Shane Worbey is appropriate and that Richard Laird should pay the cost.
Mr Laird did not dispute the calculation of the cost of rectification proposed by Mr Patterson and it is the same amount he originally charged for carrying out the work. The cost is calculated at the rate of $70 per square metre plus GST which with an area of 235 square metres including GST is $18,095.00.
Orders
Richard Laird pay to David Patterson the sum of $18,095.00 inclusive of GST within 21 days of the date of this order.
That the counter application is dismissed.
No order as to costs.