Prenzler v Cost-U-Less Concreting Pty Ltd
[2017] QCAT 78
•15 March 2017
CITATION: | Prenzler & Anor v Cost-U-Less Concreting Pty Ltd [2017] QCAT 78 |
PARTIES: | William Prenzler |
| v | |
| Cost-U-Less Concreting Pty Ltd (Respondent) | |
APPLICATION NUMBER: | BDL110-16 |
| MATTER TYPE: | Building matters |
HEARING DATE: | 24 January 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
DELIVERED ON: | 15 March 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Cost-U-Less Concreting Pty Ltd pay to William Prenzler and Kimara Schulze-Prenzler the sum of $4,830.00 by 4:00pm on 21 April 2017. 2. The application is dismissed. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – Building dispute – domestic building contract – installation of concrete and decorative coating – lack of homeowner maintenance Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102 |
APPEARANCES: | |
APPLICANT: | William Prenzler |
RESPONDENT: | Les Kennedy |
REASONS FOR DECISION
In October 2013, William Prenzler and Kimara Schulze-Prenzler (the Prenzlers) contracted with Cost-U-Less Concreting Pty Ltd (CUL) to carry out concreting work including a driveway, paths and steps at their house at 6 Welge St, Bellbird Park, QLD.
The bulk of the works were undertaken in November 2013. The front paths and steps were completed in February 2014 and a decorative coating, described variously as permacolour, flocrete and covercrete was applied by CUL on 21 March 2014.
On 29 March 2014, the Prenzlers complained to CUL about the overall appearance of their driveway and it is their evidence that flaking and delamination of the concrete was evident about four months after its completion.
By the time the matter got to hearing they had particularised eight issues (which had been listed in the joint expert’s report filed in the Tribunal on 23 January 2016). The issues are:
a)Flaking and delaminating of the decorative coating to the driveway and path;
b)The decorative coating is of insufficient thickness;
c)The concrete surface has not been sufficiently or appropriately prepared for the application of the decorative coating;
d)Shrinkage cracks are evident in the concrete’s surface;
e)The decorative coating has been over sprayed onto the painted render at the front of the dwelling;
f)There has been a failure to install isolation joints between the concrete and external building walls in some areas;
g)The pattern on the driveway is not as agreed; and
h)An unacceptable crack has appeared in the concrete patio.
The remedy sought by the Prenzlers was rectification of the defects or the reimbursement of all monies, namely $13,200.00 paid to CUL by them for the works.
Prior to the hearing, the Prenzlers amended the remedy sought to the payment of the amount $20,900.00, being the cost of remedial works quoted by SDS Construction & Contracting Pty Ltd.
CUL, in its response, claims that it is owed $1,422.00 for extra work done, but no counter-claim for this amount has been made and it was not pressed at the hearing.
The experts
The Tribunal was assisted by the expert evidence of three witnesses, Wayne Dyer of BCA Group (Qld) for the Prenzlers, Martin Helisma of Building Investigations & Consultants Qld Pty Ltd for CUL, and Ken MacDonald of Perma Colour Australia Pty Ltd, also for CUL.
All three attended an Expert’s Conclave on 17 January 2017 and a joint expert’s report was filed in the Tribunal on 23 January 2017. All three gave evidence at the hearing.
While the joint report, individual reports and oral evidence were helpful in identifying the defects and the remedial works required, they were less helpful in identifying the cause of the defects, and accordingly who was responsible for the rectification costs.
Decorative coating
The issues relating to the decorative coating are those contained in items 1, 2, 3, 5 and 7 of the joint expert’s report (paragraph [4](a),(b),(c),(e) and (g) of these reasons).
In respect of items 1, 2, 3 and 7, the experts agree:
a)That some form of remedial work is required;
b)That further testing would be required to determine the cause of the defects; and
c)That the work necessary to rectify any of items 1, 2 or 3 will rectify all four.
No further testing has been carried out and so the cause is uncertain. The experts say in the joint expert’s report that the defects were caused by any one or more of the following:
a)Lack of maintenance and period application of sealant by the Prenzlers;
b)Contamination of the concrete substrate; or
c)Inadequate cleaning of acid wash residue before application of the coating.
Items 2 and 3 appear to be potential causes of the flaking and delamination in Item 1.
To those potential causes Mr Kennedy, in his evidence, added that poor site drainage at the rear of the property identified by Mr Helisma,[1] combined with the reactive clay on which the dwelling was constructed caused movement in the driveway and paths and this was the primary cause of the flaking and delamination.
[1]Report of Martin Helisma dated 8 December 2016, paras [1.37] – [1.50].
In his submissions Mr Kennedy said that any defect in the decorative coating was caused by the drainage problems identified by Mr Helisma and the Prenzlers’ failure to periodically apply sealant.
There is insufficient evidence before the Tribunal to find that poor drainage is responsible for those defects. Mr Helisma’s observations are of a general nature and he did not, either in his report or evidence, identify it as the cause of the flaking and delamination. His brief did not include comment on the decorative coating.
Ken MacDonald is the managing director of PermaColour Pty Ltd, the manufacturer of the decorative coating applied by CUL. He has operated Perma Colour for 29 years and has been a concreter for 43 years.
He gave evidence to the effect that two coats of sealant should be applied by the concreter on installation of the coating. One additional coat of sealant should be applied (by the homeowner) one year later, and again two years after that.
Mr MacDonald did not say that he had provided this information to Mr Prenzler. Mr Kennedy’s evidence was that he did not either. I accept Mr Prenzler’s evidence that they were unaware of any maintenance requirements.
While Mr MacDonald was adamant that the lack of sealant would result in deterioration of the product, he did not go so far as to say it was the cause of the flaking and delamination. In fact, he agreed in cross-examination that the application of sealant would not glue the coating down.
Further, it is not in dispute that the flaking and delamination were evidence some four months after installation, long before the manufacturer recommended resealing.
In those circumstances I am satisfied that the Prenzlers’ failure to reseal is not the cause of the flaking and delamination.
Mr Dyer suggests that the flaking and delamination is caused by the failure of CUL to adequately prepare and clean the concrete surface before installation of the decorative coating.
He opines that CUL ‘has not prepared the surface as recommended by the manufacturer by acid washing and water blasting the concrete’,[2] but this opinion appears to be based on the fact that delamination is occurring rather than any testing or observations by him.
[2]Dyer Building Inspection report, dated 22 September 2016 paragraph [2.0.1.3].
Ken MacDonald inspected the works twice, although his access to the property appears to have been restricted and his inspections unsatisfactorily brief. He says however, that ‘it was plain to see that the concrete substrate beneath these areas were abrasive and consistent with the substrate being acid washed before the spraying of the resurfacing product (flocrete)’.[3]
[3]MacDonald report, dated 21 December 2016, para [1].
Both opinions are based on visual inspections only. The evidence does not support a finding that the flaking and delamination are caused by any inadequacy in the concrete substrate or its preparation.
The thickness of the decorative coating is considered by the experts in their joint report as a defect in itself (item 2), but Mr Dyer at least is of the view that it is a contributing factor to the flaking and delamination of the coating itself.[4]
[4]Dyer Building Inspection report dated 22 September 2016, para [2.0.1.2].
PermaColour Pty Ltd, the manufacturer of the product, has drafted a document titled ‘Specifications and application manual for decorative flo crete topping’ (the specification), a copy of which was tendered by Mr Kennedy as Exhibit 2 in these proceedings.
The specification began as follows:
Introduction:
Permacolour Flocrete is a decorative thin set (3-5mm) resurfacing product…
Later in the specification under the heading ‘Application procedures’ it provides:
Plain spray texture:
Spray at 15-20 PSI at 90 degrees to the surface at a distance of approximately 60cm achieving a 100% coverage with a build thickness of 1.5mm.
That same section refers to a base coast and a top coat, so on the document alone it is at least reasonable to assume that after both coats are applied the thickness of the coating should be around 3mm.
Not so, says Mr MacDonald in oral evidence. One play spray texture coat of 1.5mm is adequate.
Following a visual inspection Mr MacDonald stated in a letter to Mr Kennedy dated 17 October 2016:[5]
The thickness of the resurfacing product (flocrete) looked to be of normal 3mm – 5mm (in accordance with our application specification as outline in our [Flo Crete resurfacing product manual])
[5]Filed in the Tribunal 1 November 2016.
Mr MacDonald made the same statement in a second letter dated 21 December 2016,[6] save that the reference to ‘1.5mm’ had been substituted for the reference to ‘3-5mm’ in his earlier letter.
[6]File in the Tribunal on same date.
At the time of his inspection, Mr Dyer measured the thickness of a sample of delaminated coating using a rule and determined the thickness to be approximately 1mm. At the hearing, he measured a further sample which was admitted into evidence as Exhibit 1 by the same method and found it to be approximately 0.5 – 0.75mm thick.
While Mr MacDonald was critical of the method of measurement, saying that a Vernier calibre or similar tool should have been used, he did not provide any evidence of the thickness of the coating. Mr Dyer’s measurements are accurate enough to establish to the Tribunal’s satisfaction that the thickness of the decorative coating is significantly less than the thickness recommended in the specification, whether that be 1.5mm or 3-5mm.
I find that the coating has not been installed to manufacturer specification and has failed. In those circumstances CUL is responsible for the cost of rectifying the defect.
I am also satisfied, and there appears to be no dispute on this point, that the diamond pattern which was to be installed was not properly installed. The cost of rectification is included in the cost of rectifying the coating itself.
The experts in the joint expert report provided two options for rectifying the coating:
Option 1: Strip and grind back flaking sections of coating, rectify cracks in the concrete substrate, apply new diamond decorative pattern, plus bring decorative coating back to comply with the manufacturer’s specified thickness.
The experts concur that the estimated cost of this option would cost approximately $4,000.00 inclusive of GST.
Option 2, proposed by Mr MacDonald involves a lesser amount of work, although it is not clear from the report precisely what is to be done.
Shane Sinclair of SDS Construction & Concreting Pty Ltd gave brief evidence and provided a quote for rectification of the defects including grinding and resurfacing the driving, front steps and paths. It appears from the quote that the whole of the existing coating is to be removed, rather than just the flaking sections, at a cost including GST of $4,400.00. I am satisfied that Mr Sinclair’s solution is consistent with expert’s recommendations and in those circumstances I allow to the Prenzler’s the sum off $4,400.00.
Isolation joints
Mr Dyer reported that while isolation joints had been installed at the front entry and around drainage pipes, none had been installed to the remainder off the paths and patio where they abut the building or where the driveway abuts the garage slab. The purpose of isolation joints is to allow for movement between the concrete and external building walls. He says that this is contrary to the current Concrete and Aggregates Australia Data Sheet for residential concrete driveways and paths.[7]
[7]Dyer Building Inspection Report, dated 22 September 2016, para [2.0.1.6].
Mr Helisma referred to Australian Standard AS37227 saying it was a recommendation or best practice to install isolation joints but that they were requirement mainly around drainage pits. He did not see them as critical at the house slab edge.[8]
[8]Martin Helisma Building Inspection Report, dated 8 December 2016, paras [1.51] – [1.67].
In oral evidence he said that he did not believe isolation joints would be beneficial. On his inspection he did not see any pavements being restricted from movement between the various elements. The concrete was, he said, performing as it was designed to do.
Mr Dyer did not point to any damage caused or imminent as a result of failure to install isolation joints. His objection appears to be simply that they should be installed but were not.
Mr Helisma gave evidence that if rectification was required, the only appropriate method would be to take up the existing concrete work and replace it. Mr Sinclair, impliedly at least, agreed. He provided a quotation to do just that for $16,500.00 inclusive of GST.
This issue can be contrasted with the flaking and delamination of the decorative coating where there has clearly been product failure. Here the only evidence of performance, or lack of it, of the concreting comes from Mr Helisma who says no damage has been caused. Due to the absence of some evidence of damage to the Prenzler’s this part of their claim fails.
Crack in patio, shrinkage cracks
Both Mr Dyer and Mr Helisma agree that the 4mm crack to the patio (Item 8) exceeds tolerance and is a defect easily remedied. I allow the Prenzler’s their estimate of the cost to repair the crack of $80.00.
The extent of cracking cannot be determined where the decorative coating has been installed but Mr Dyer and Mr Helisma agree that any obvious cracks are within tolerance and in those circumstances no compensation is payable.
Overspray
It is not contested that overspray from the installation of the decorative coating to the painted rendered dwelling is a defect. The experts agree an estimated cost of removal of $350.00 including GST and that amount is allowed to the Prenzler’s.
Costs
At the hearing each party made an application for costs.
In this Tribunal each party bears its own costs,[9] unless the Tribunal considers that the interests of justice require it to make a costs order.[10]
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.
[10]Ibid, s 102.
I am not satisfied that a costs order is justified in this case. Whilst the Prenzler’s have been partially successful there has been nothing inherently unreasonable about CUL’s response or behaviour in the conduct in these proceedings.
Orders
The Tribunal orders that:
1. Cost-U-Less Concreting Pty Ltd pay to William Prenzler and Kimara Schulze-Prenzler the sum of $4,830.00 by 4:00pm on 21 April 2017.
2. The application is dismissed.
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