Presser v Lowry
[2011] QCAT 630
•16 December 2011
| CITATION: | Presser and Anor v Lowry and Anor [2011] QCAT 630 | |
| PARTIES: | Mr Tim Presser Mrs Leanne Presser | |
| v | ||
| Mr Chris Lowry Lowry Projects Pty Ltd | ||
| APPLICATION NUMBER: | BDL148-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 27 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr J Allen, Member |
| DELIVERED ON: | 16 December 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal orders that Lowry Projects Pty Ltd pay Tim Presser and Leanne Presser the amount of $73,900.65 within 14 days. 2. Each party to bear their own costs. |
| CATCHWORDS: | Failure of strand woven bamboo floor – breach of statutory warranty – Company trading under business name Domestic Building Contract Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr and Mrs Presser were represented by Mr Tolley of Rudkin Hitchcock Lawyers |
| RESPONDENT: | Mr Lowry appeared for himself and Lowry Projects Pty Ltd |
REASONS FOR DECISION
Introduction
Mr and Mrs Presser own a home at Mt Tamborine which was extensively renovated in 2007. As part of the work they separately arranged for the installation of a strand woven bamboo floor in the house apart from the wet areas and also on the external deck areas. At the suggestion of their builder they contacted Mr Chris Lowry who provided quotes for the installation of the floors. These quotes were accepted by the Pressers and the floors were installed in January and February 2008. The quotes were headed with the name “Inside Out Timber Floors & Decks” with an ABN number. The name “Inside Out Timber Floors & Decks” was a business name which at the time was registered to Lowry Projects Pty Ltd. The Pressers did not become aware of Lowry Projects Pty Ltd until after the application had been filed listing Mr Lowry as the respondent. An order of the Tribunal joined Lowry Projects Pty Ltd as a respondent.
The Pressers’ house comprised of a ground and first floor with several different types of floor substrates. The ground floor had existing cypress pine in some areas, with an existing concrete sub-floor and a new concrete sub-floor for a bedroom extension. There were also areas where particle board was laid on joists sitting on top of an existing concrete floor in the foyer. There were five different sub-floors on the ground level. The first floor was new and that floor was particleboard.
The bamboo floor showed signs of peaking, raised edges, and in some parts tenting, lifting of boards, following its installation. The Pressers have made this application claiming breach of warranty against Mr Lowry and or Lowry Projects for the failure of the floor and damages for the replacement of the entire floor. The total amount of the claim is $75,410.35 for the rectification of the floor with an allowance for storage of the house contents and accommodation for the Presser family during the work. There were also additional amounts for legal and experts costs.
Mr Lowry and Lowry Projects Pty Ltd in their responses to the claim accepted that the flooring installed had failed and asserts that the failure of the floor is not as a result of the flooring material or the installation but of other factors such as leaking taps, under-ventilated sub-floors and leaking windows. Lowry Projects Pty Ltd also claimed that it was owed $1,501.70 in respect of the floor.
Both sides provided expert evidence and a joint report was prepared by the experts following an experts’ conclave. While the experts agreed that the floor had failed they disagreed as to the cause of the failure. It will be for the Tribunal to determine what is the cause of the failure on the balance of probabilities. The experts at the hearing appeared to indicate doubt as to whether or not the upstairs floor had failed. Directions were made by the Tribunal for submissions on an apportionment of the costs if the Tribunal found that the upstairs floor had not failed. The Pressers provided submissions that the joint expert report clearly indicated that the floor had failed and that they would argue against the Tribunal granting leave to change that evidence. There were no submissions from Mr Lowry or Lowry Projects Pty Ltd.
If the Tribunal determines that the respondents bear liability for the failure of the floor, then it needs to determine how that liability shall be borne between Mr Lowry and Lowry Projects Pty Ltd.
The Contract
Mr and Mrs Presser on the recommendation of their builder approached Mr Chris Lowry of “Inside Out Timber Floors & Decks” in regard to the installation of flooring for their newly renovated home. Mrs Presser attended at the business premises and discussed the provision of flooring with Mr Lowry. Following discussion about various options with Mr Lowry and a discussion with the builder Mr Lowry was asked to quote on the job and was provided with the house plans. According to Mr Presser’s statement and Mr Lowry’s oral evidence at the hearing Mr Lowry attended at the site before quoting on the job. Mrs Presser gave oral evidence that Mr Lowry based his quote on floor plans only and only came up to visit the site and do proper measurements after the quote.
The parties agree that the basis for the contract is the oral acceptance by Mr Presser on 10 January 2008 of a quote headed “Inside Out Timber Floors & Decks” and dated 13 December 2007 to supply and install carbonised strand woven bamboo flooring to all floor areas and stairs except wet areas by direct stick method in the amount of $28,229.30[1]. The quote makes it clear that the installer was aware that there were different sub-floors that the bamboo would be applied to and refers to particle board and existing flooring and existing concrete sub-floor. The quote contained a separate amount for the installation of decking which is not the subject of this application. The Tribunal notes though that the decking failed several times and was replaced ultimately with a different flooring material by “Inside Out Timber Floors & Decks”.
[1]Exhibit 1 (statement of Tim Presser) annexure TP2 and Exhibit 3 (statement of Chris Lowry) annexure CL 7.
There were no contract terms and conditions attached to the quote. It is submitted by the Pressers that the contract is a domestic building contract as it is a contract to carry out domestic building work[2] and as the amount of the contract is in excess of $3,300 the contract is a regulated contract for the purpose of the Act[3]. It was also submitted by the Pressers that as a result there are warranties implied into the contract[4]. These are in regard to the suitability of materials[5] and standard of work and exercise of care and skill[6].
[2] Sections 7 and 8 of the Domestic Building Contracts Act 2000.
[3] Section 9 of the Domestic Building Contracts Act 2000.
[4] Section 41 of the Domestic Building Contracts Act 2000.
[5] Section 42 of the Domestic Building Contracts Act 2000.
[6] Section 44 of the Domestic Building Contracts Act 2000.
[10] The Tribunal notes that Mr Lowry for himself nor on behalf of the company did not make any submissions that the implied warranties did not apply.
[11] Domestic building work includes the renovation, alteration, extension, improvement or repair of a home in accordance with section 8 of the Act. The Tribunal is satisfied that the supply and installation of the bamboo floor constituted an alteration and improvement to the home and that the contract is therefore a domestic building contract. As the contract amount is above the regulated amount of $3,300[7] the contract is a regulated contract[8] and the warranties mentioned above are implied in this contract.
[7]Definition of regulation amount in Schedule 2 Dictionary of the Domestic Building Contracts Act 2000.
[8] Section 9 of the Domestic Building Contracts Act 2000.
Floor installation at the Presser residence
[12] Mr Lowry in his statement provided details of the floor installation as follows:
On or around 21 December 2007 an order was sent to Krakatoa Pty Ltd for 255m2 of carbonised strand woven bamboo for delivery mid to end of January.
The flooring material was delivered to premises in two separate deliveries on 31 January 2008 and 1 February 2008.
Inside Out commenced undertaking preparation work for the installation of the floor on or around 21 January 2008.
The preparation work undertaken by Inside Out included the rough sanding of all timber substrates to improve adhesion together with the sealing of all concrete areas by coating with WPM 300 hydro-poxy waterproofing to prevent moisture ingress through the slab. Prior to undertaking work the moisture content in the slab was measured with a Marlin capacitance meter and the highest reading was found to be 3.08%. All expansion gaps were maintained and no excess glue was applied.
The flooring was then installed by Inside Out between on or around 1 February 2008 and 17 February 2008.
At that time no installation instructions were or had been provided to Inside Out by Krakatoa in relation to the installation of the bamboo flooring. I was advised by Krakatoa no installation instructions existed.
I was advised by my installer, Ben Lafferty, that the bamboo flooring was not acclimatised prior to installation.
Note that there is no consistency in instructions which have subsequently been produced and provided by suppliers of bamboo flooring as to the need (or otherwise) to acclimatise the product prior to installation. Current expert opinion is that acclimatisation has little or no effect upon the growth of bamboo flooring.
The adhesive used to affix the flooring was Mapai adhesive, which is compatible with the WPM 300 hydro-poxy waterproofing floor sealant and has been used successfully by me in past applications.
The adhesive was generally applied using an appropriate trowel. Where an installer needed to finish a row or rows without getting excess glue on the area yet to be installed, the adhesive is instead “snaked” onto the floor. However, great care is taken in such a case to ensure that the correct amount of adhesive is applied.
Moisture testing was part of the normal installation procedures followed by Inside Out and had occurred on this project.
[13] In oral evidence at the hearing Mr Lowry stated further that:
That the particle board was new while the cypress floor was twenty years old with a few lumps and bumps.
The cypress floor had a moisture reading of 13% and the concrete 3%.
We engaged a contractor to rough sand the cypress and remove the wax coating off the particle board.
That they had moisture tested the slab in the kitchen and bedrooms.
That they had gone over the whole of the concrete with the moisture barrier.
The adhesive used was MAIPA R900 single part polyurethane.
That boxes of boards had been laid on top of flooring once it was laid to stop it rising.
That they had maintained a full and clean expansion joint around the perimeter of the flooring.
He was not aware of the moisture content of the floor boards as supplied and there was no literature on moisture EMC.
He stated that he was at the job on and off and he had come twice daily.
[14] When questioned specifically in regard to the moisture content of the boards Mr Lowry said that:
He was aware of the 2009 ATFA (Australian Timber Flooring Association) standards and that it was essential to know moisture content but at the time 90% of installers would not have known this and that there was no non-destructive way of testing the moisture content of the boards.
The sub-floor moisture content had been appropriate to direct stick the floor.
He agreed that he had installed the floor in 2008 contrary to the latest practice in regard to moisture content.
With the same kind of knowledge he had then he would have done the same thing.
[15] Mr and Mrs Presser did not provide any evidence contrary to that of Mr Lowry in regard to the process of the laying of the floors.
Causes of the failure of the floor
[16] In accordance with the joint experts the experts, Mr Cause and Mr Hayward agreed that:
The strand woven bamboo floor has failed;
The floor has failed over all five (5) lower level sub-floors types in the job;
At the time of installation (Jan 2008) strand-woven bamboo was a relatively new product with limited technical data;
A prudent installer would consider the moisture status of the sub-floors and the material being laid;
The performance of bamboo flooring is affected by a change in moisture levels within the product;
Clearly there have been changes in product moisture levels in the various area of this building; and
There has been a progression in observed floor performance over time.
The experts disagreed with the sources of the changed internal moisture levels in the product:
Mr Hayward thinks the floor has “performance issues” because of excess moisture from a variety of sources; and
Mr Cause thinks the main reason the floor has failed is a combination of product issues and defective gluing.
[17] Mr Hayward produced several reports following his various inspections of the floors. In his first report, April 2008, he stated that its purpose was to assess the nature of the failure of the floor in the bedrooms (bedrooms 1 and 2) adjacent to the kitchen (following the replacement of a water damaged area in the kitchen) and also the cause of the uneven cupped appearance throughout the floor.
[18] In the report he noted that the owners took occupancy in April (at Easter) and within two weeks they observed buckling in the floors of the bedrooms adjacent to the kitchen. From occupancy there has been an uneven cupped appearance (raised board edges) throughout much of the lower storey floors. The installer stated that when the floor was lifted between the fridge and the kitchen bench, some two weeks after the leak was discovered, there was a pool of water still present on the slab. The flooring was taken up and replaced to where the slab was considered to be either dry or damp.
[19] Mr Hayward took measurements at the time of board width and capacitance moisture readings, it was noted that these measurements are not accurate can be used for comparative purposes to provide an indication of moisture levels. He described the boards in various rooms as follows:
Bedroom 1 (new slab) separated buckled;
Bedroom 2 (new slab) separated buckled 96.8 mm 13%;
Kitchen (existing slab) tenting 96.7 mm 11% tenting;
Entrance (raised section on particle board) 96.4 mm 12%;
Lounge (existing cypress) 96.3 mm 11% buckled;
Entertainment (existing cypress) 96.4mm 11%; and
Upper storey bedroom and lounge 96.3 mm and 10%.
[20] Mr Hayward illustrated the cupped appearance of the lower storey floor with photos of the entrance to dining/kitchen, entrance to lounge, lounge to entertainment room. In contrast to this the flooring in the upper storey lounge and bedroom were more even with minimal cupping appearance.
[21] Mr Hayward noted in regard to the area of replaced flooring in the kitchen that the cupped appearance is less pronounced. The floor was however under expansion pressure. The expansion joint at the doorway had closed significantly and in the kitchen itself, two boards had started to tent (adjacent board edges lifting). The owner indicated that in other areas this progressed to buckling (groups of boards lifting). In the bedroom adjacent to the kitchen behind the ridge recess where the leak occurred the uneven cupped appearance is evident on the floor. The floor has buckled in this area and separated from the slab.
[22] Mr Hayward concluded it was considered that the failure in these two rooms (bedroom 1 and 2) is more extensive than elsewhere in the house due to the water reported to be observed beneath the kitchen floor.
[23] In regard to the peaking present throughout most of the lower storey floors, he considered that the factors that contribute to this are manufacture of product with high levels of undercut, manufacture of flooring at low moisture content and site conditions that are conducive to moisture uptake, resulting in expansion after installation. He stated that in this instance the profile, manufactured moisture content and applicability of acclimatisation to this product should be checked.
[24] Mr Hayward provided a second report following an inspection on 11 June 2008. This report was said to address concerns that the floor has continued to swell in some areas with the closure of an expansion joint between the kitchen and bedrooms and ’tenting’ of the floor in the lounge. In addition to this it was requested that the sub-floor ventilation and the effects of leaking pipe work in the upstairs bedroom be assessed.
[25] It was noted in the report that moisture content readings were high in bedrooms 1 and 2, the kitchen and the lounge. Throughout the lower storey, peaking was reported throughout and was similar in appearance to when previously inspected. That investigation near the windows (in the lounge) indicated higher moisture readings 4%-6% higher than a short distance down the boards. Mr Hayward considered that while these readings are not sufficiently high to indicate liquid moisture beneath the boards at this time, they are consistent with some leaking of the window frames. As such the increased moisture could be expected to result in greater expansion pressure in the floor in this area.
[26] Mr Hayward then discussed the sub-floor ventilation. He noted that the ventilation to the sub-floor is also limited in this area (underneath the lounge) with only one vent. The sub-floor space was considered to be dry and there were no obvious signs of seepage even with recent rain. The air did however smell musty and the moisture content of the cypress, estimated with a resistance meter (Deltron) ranged from 16% to 18% with applicable corrections applied. He stated that it would not be unusual for timber in sub-floor spaces to be 14% to 15% with timber floors above, however this is higher and has the potential to transfer some moisture through to the floor above.
[27] The capacitance moisture meter was also used in the kitchen and the two adjacent bedrooms. In each of the rooms very high readings were obtained and indicative of moisture beneath the floor. Darker discolouration showing through the board surfaces was also generally present in the vicinity where readings were high. In both bedrooms and where the expansion joint had closed, the installer removed some boards. The backs of the boards were damp in each of these areas. Similarly in the upstairs bedroom the readings are also very high and indicative of the water present beneath the boards.
[28] Mr Hayward considered the factors influencing the floor are:
Moisture from plumbing leaks;
Moisture ingress through windows;
Moist conditions in the sub-floor space; and
Residual moisture form the previously leaking fridge.
He stated that as such it is important that the sources of moisture be positively identified and rectified to prevent recurrence in the future. In addition the ventilation beneath the floor needs addressing to bring about a lowering the moisture content of sub-floor timbers.
From the inspection it is now considered that both bedroom floors adjacent to the kitchen have been affected from moisture sources associated with either the leaking fridge or other sources. It would be considered unlikely that slab moisture is a contributing factor and that plumbing or appliance issues are most likely.
It should be noted that our views on the peaking have not changed from our previous report.
[29] Both Mr Cause and Mr Hayward in their reports made reference to a report which was prepared by Mr Ewan Brown from Timber Queensland dated 21 October 2008. This report was prepared for the Queensland Building Services Authority as part of the investigation of a complaint the Pressers made against Inside Out Timber Floors & Decks in respect of the floors. A Direction to Rectify was issued by the QBSA against Mr Lowry and he was successful in having it removed at the Tribunal.
[30] Mr Brown stated in his report that:
The floor displayed signs of expansion throughout the ground floor with all areas showing a concave distortion in the boards, which is likely to be peaking, and more severe areas showing buckling and tenting. The movement had occurred in all areas of the ground floor and was not restricted to any particular sub-floor type.
Board cover widths were measured over 10 boards in 2 separate locations, the lounge and bedroom,
Min. Cover width Max. Cover Width Average
Lounge 96 mm 96.4 96.2 mm
Bedroom 96.2 97.2 96.6 mm
It was noted that when boards were lifted in bedroom 1 there was a considerable amount of moisture on the underside of the boards, to the extent that they were damp to the touch. A strong acetic smell was also present; this can be associated with the curing process of some adhesives. Boards lifted in bedroom 2 were also noted to have moisture underneath with the addition of organic growth that was consistent with fungal mycelium. As organic growth, whether it is simple moulds or timber decay fungi, require elevated moisture content to grow this indicates that moisture must have been present for some time.
[31] Mr Brown also tested the moisture content of two samples by oven dry moisture testing. One sample was removed from bedroom 2 the other from the lounge area. Calculations were conducted on a whole section, and a section cut into three through the depth of the boards to provide the moisture content differential. The results were set out as follows:
Whole (%MC) Top (%MC) Middle (%MC) Bottom (%MC)
Lounge 8.8 8.1 8.4 8.9
Bedroom 9.3 9 10 10.6
Mr Brown noted that both samples show moisture content lower than would be expected for a rural elevated position in S.E. Queensland. Despite this, it is apparent from the fact that the boards have expanded after installation that they have absorbed moisture in situ. Mr Brown stated that this indicates that the boards were laid at an extremely low moisture content.
[32] Mr Brown also recorded the cover widths of the boards before and after oven drying as follows:
Original cover width (mm) Dry cover width (mm) Shrinkage (mm)
Lounge 96.5 95.2 1.3
Bedroom 97.0 95.2 1.8
Mr Brown stated that these figures again indicate that for the boards to have been installed at 96 mm cover width, the moisture content would have had to be extremely low.
[33] Mr Hayward provided a further report dated 24 June 2009 which dealt with gaps which were appearing in the floor in the kitchen and adjacent bedrooms. There was a dark discolouration across the kitchen floor which showed extremely high moisture readings while the readings were lower at a distance. Mr Hayward concluded that there is a moisture source beneath the floor in the area. He stated that after discussion on site it is indicated that due to incorrect location of pipe work at the time of building, the slab had been opened up to redirect the pipes. It was also indicated that in this area the slab could not be levelled to the desired degree, due to termimesh near the surface where it had been placed over the pipe work. He concluded that this would suggest the possibility that termites could venture from the round to this point and if this is the case so could water. As such it is considered that this area requires further investigation.
[34] Mr Hayward stated further that in the area of the extremely high moisture reading board edges were tight and further away as moisture meter readings were lower gaps were present at board edges. Measurements taken across the width of a board increased by about 1.2 mm over the discoloured region. Therefore in the kitchen area the differential expansion in the floor is one reason for the gapping that is now appearing at board edges. It was noted that in the adjacent bedrooms some high moisture contents and moisture affected boards were evident and in one location a very wide gap was present. The gaps that are appearing in these areas are considered to be indicative of differential movement in the flooring, contributed to by moisture uptake and loss from the boards and the ability of the boards to undergo greater movement due to the floor being patched where boards had previously been removed. Where the wide gap is present it is evident that a group of boards have moved to form a cumulative wide gap at this point.
[35] Mr Hayward concluded that the movement that is being experienced is indicative of expansion and contraction from times of moisture uptake and loss. When considering this and the floor in the kitchen, it would suggest that the moisture is not associated with a consistent pipe leak, but again more likely the ground where the amount of water present will be dependent on weather conditions.
[36] In his evidence at the hearing Mr Hayward stated that:
At the time the floor was laid it would have been considered ok to lay strand woven bamboo on a normal slab at 21/2% to 3% moisture content.
The laying of the bamboo on top of the cypress would build up the moisture content as cypress could not breathe as easily and there was also a lack of ventilation under the floor.
There were large areas of the house which were traps for moisture and the builder should be looking for leaks in those areas.
He agreed that the moisture content of the floor when installed was unknown and said that the Chinese have a standard certificate supplied with the lower end being 6%.
That at the time the Pressers floor was installed the amount of knowledge of bamboo flooring was limited.
That it was difficult to be conclusive about the glue failing and that it was a strong statement to say that if held down properly you would need a crowbar to lift it. He agreed though that if the glue failed the floor will lift.
He agreed that you need to know the moisture content of the bamboo flooring. Though if it was normal timber it could be acclimatised. But you could not acclimatise bamboo. Either you had to lay it or not lay it.
That no-one knew what was low or not low at the time no-one knew equilibrium moisture content of bamboo.
At the time it was said bamboo was as hard as hardwood and more stable on that basis appropriate.
[35] Mr Cause in his report of October 2010[9] made the following specific comments about the floor failure:
[9] Exhibit 3.
Bamboo over cypress-the severe tenting in bedroom 3 happened after the other major tenting events, so had not been previously repaired with removal of boards and plywood inserts.
Bamboo over battens on new slab-the entire Study floor was ‘floating’ underfoot as a unit. The floor was visibly moving up and down ‘ocean wave’ style as it was being traversed. There was obviously zero adhesion to battens, this floor level was above outside ground level, and was constructed with battens installed over a new slab poured over contained fill. There was no mould or musty smell under a freshly raised board sample in this vicinity, suggesting the slab had not been too wet at floor installation.
Bamboo over particleboard-the raised entrance foyer had previously suffered some of the worst tenting. This was now visible as plywood repairs. The particleboard was raised up on battens over the original slab so that the finished foyer was about 75mm above either side of living room and dining room respectively.
Bamboo over new slab-the tenting in bedroom 1 and bedroom 2 happened together in the outer walk-in robe areas. Both floors expanded evenly toward the opposite (kitchen) side as demonstrated by stretched glue and gapping in the leeway formed by the short central block of flooring at kitchen end of ensuite.
Bamboo over original slab-had also been subject to tenting in the Dining. Given the pattern of similar floor failures, it was not considered necessary to undertake additional sampling here at this time.
Bamboo over upstairs particleboard-this was a different environment and different bamboo batch, but similar substrate type as the Foyer sampling. Taking into account the homeowners were reasonably less inclined to visibly damage the master bedroom floor, it was considered additional sampling was not necessary here at this time.
[36] Mr Cause discussed the issues raised by Mr Hayward in his report and referred to them as localised issues which he regarded as anomalies and none of which he said are relevant to changing an opinion on the quality of overall fixing installation. In regard to the board which had mould beneath it in bedroom 1 he performed a moisture test on the slab and found that the slab was very dry at 2.3% moisture content. He said that the obvious explanation had not been investigated but it could be residual moisture from an earlier fridge leak. He stated that it did not alter the poor glue bonding present at the same location or his conclusions about the overall defective floor installation.
[37] He then considered the diagonal brown discolouration across some boards in the kitchen. He noted that he had tested the moisture content of the boards and the bamboo appeared to be wetter quite specifically over that line. He said that it was localised and the general zones either side of the line don’t provide an indication of a spreading issue. Mr Cause also noted an upstairs plumbing leak which had required replacement of some boards running alongside the ensuite.
[38] Mr Cause then discussed the window leaks which had been identified in an earlier report of Mr Hayward. He started that he had issues with the accuracy of the readings especially as the meter was placed next to a window. He also stated that the builder had confirmed to him that he had investigated the matter and was unable to verify any building envelope leaks at the windows.
[39] He also considered the issues about the cypress floor and the sub-floor ventilation. Mr Cause considered that the sub-floor ventilation was adequate based on his calculation though noting that it did not provide full cross flow ventilation. He also tested the moisture content of the cypress floor with similar results to those of Mr Hayward a range of 16% to 17% while Mr Hayward’s range was 16% to 18%. He said that he agreed that this is slightly higher than would be expected in Brisbane for flooring in a similar sub-floor situation. He stated that however in my experience timber floors in mountain sites like Mt Tamborine do have slightly higher ‘equilibrium moisture conditions” than other locations, and he regarded his readings as normal for the conditions. He stated that the homeowner was familiar with the old cypress floor prior to the new building extension work, and had observed that the old floor had been flat and stable (which means at the relevant local equilibrium moisture content (EMC)) for many years.
[40] Mr Cause stated that the slightly raised cypress EMC ‘conditions’ at North Tamborine does raise a further consideration that the bamboo installer Inside Out Timber Flooring should reasonably have taken into consideration prior to proceeding to install the bamboo over this existing floor. As the ATFA manual says “in these localities greater allowance for floor expansion is required at the time of installation”. The reasonable need to consider this is especially so as I understand Mr Lowry has been an Australian Timber Flooring Association ATFA member for some time, and may have been an ATFA accredited floor inspector at the time in 2008. As the Timber Flooring manual was authored by David Hayward when he was employed by TQ, originally published in 2005 (well before this 2008 job), and subsequently republished by ATFA, I would reasonably expect that Mr Lowry’s ATFA connections and training would have him well familiar with its contents.
[41] Samples of the floor were taken from various rooms in the house and subjected to oven dry moisture testing by Mr Cause with the following results:
Sample Location Substrate Moisture Content
X-sect; Top/Core/Underside
Bed3 in tent Cypress 10.5%; 9.8/10.7/10.6
Bed 3 in floor Cypress 11.5%; 10.8/11.4/11.8
Study Battens/new slab 9.4%; 9.0/9.5/9.9
Foyer Particleboard 8.8%; 8.4/8.8/9.2
Bed 1 New Slab 16.6%; 14.2/16.6/18.6
Sample 1 was in tent raised several cm above the floor without being in contact with the cypress substrate for the last two years. Having indoor air on both sides, it is unsurprisingly drier than sample 2.
Both sample 1 and 2 are over the cypress substrate and cross-sections (average 11%) are higher than sample 3 over battens/new slab (9.4%) while sample 4 over particle board is the lowest. These results are expected. Sample 5 is soaking wet by bamboo standards, and is already identified as a local anomaly and not useful in these comparisons. However it is worth noting (a) it is impossible for strand-woven bamboo to get this wet from atmospheric moisture (relative humidity) alone; and (b) the anomaly matters discussed earlier.
[39] Mr Cause considered that in every case gradient trends are wetter on the underside and driest on the topside, indicating (as expected) all material was primarily being wetted from their respective underside substrate. Air moisture (relative humidity) acting specifically on the top surface plays a minor role, but not sufficient to alter the gradient trends identifying the fundamental moisture pathway direction.
[40] A test was done by Mr Cause of the slab moisture content of the new slab under sample 5 and found that it was 2.5%, at 84.0 RD which is ‘dry’. A slab test was also performed in the study which found moisture content of 2.1% at 77.6 RH. It was noted that a direct fix installation effectively caps off future slab moisture drying loss, so measuring slab RH% now at 55mm depth still determines if the slab has excess retained moisture that may have been affecting the floor installation. Sample 5 wet bamboo but underlying dry slab readings translate to quite dry moisture in building terms, and slabs cannot be considered a problem moisture source for the bamboo floor.
[41] Mr Cause then considered what the likely moisture content of the floor was at the time of installation. He stated that in his experience with laboratory oven-dry assessment of unopened strand-woven bamboo flooring, it is usually found to be around 6.5% - 8% in sealed packets ex factory and in rare cases it may be around 9%. That these low figures may work well in ‘volume markets’ like Europe and North America. However, they are too low to be comfortable in non air-conditioned buildings in South-east Queensland, where the air equilibrium equates to about 11%-12% moisture in solid timber (and a little lower in bamboo). He considered the expanded West Road flooring may be close to stabilised now (2 years on). However the ‘pre-expansion’ bamboo moisture content back in January 2008 would clearly have to be significantly lower than the present ‘post-expansion’ cross-section moisture contents results above. Mr Cause agreed with the Timber Queensland report about a likely very dry installation. He also noted that the nature of the reconstituted strand woven bamboo product means its dimension movement is less than normal wood-but only for a given moisture shift. However on these Timber Queensland test figures the moisture content of this material at 96.0 mm cover width may well have been about 4.8% in this West Road case. This very low level of installed moisture content inevitably renders the bamboo product more expansion prone when used in the ‘normal’ built environment. In those circumstances, simplistically attempting to ‘blame’ the normal built environment for fundamental installation issues would be plain unreasonable.
[42] Mr Cause then discussed the relationship between the various substrates and the strand woven bamboo floor in terms of moisture content of the substrate and the floor. He noted that the direct stick installed bamboo at 5% moisture is drier than the local 2.5% dry slab. That it was inevitable that a local moisture gradient was set up, with the drier bamboo gaining some diffusion moisture from the ‘dry’ slab until the bamboo reaches a new equilibrium moisture content. This was not prevented by the installation of a moisture barrier as they will continue to allow moisture to be transmitted through them. Based on the lab oven-dry gradient moistures, it is clear that in every case bamboo in failed floors has been wetted from underside i.e. by the slab or other substrate. Definitive tests have shown the ‘new’ slabs were actually ‘dry’ (2.1% - 2.5%) by any standard building measure. Therefore the issue of the bamboo expansion occurrence is related to the bamboo product being too dry for satisfactory building slab installation-it is not related to the alternative scenario of the bamboo product being satisfactory, but the slab was to wet. If the strand-woven bamboo product had been somewhat wetter (either at manufacture or after acclimatisation) then it would not have been able to absorb moisture from the local built environment interface. If normal hygroscopic solid wood flooring seasoned to around 11%-12% moisture content been installed, the circumstances for peaking expansion would not have occurred, nor would they have been expected on a dry slab.
[43] In regard to the particleboard and MDF substrate Mr Cause noted that they were manufactured at a typical finished range of 7%-8% moisture content. That if generic direct-stick bamboo was about the same 7%-8% moisture content in these cases, then no practical moisture gradient is setup at the interface between the two hygroscopic product surfaces. The generic bamboo usually stays relatively flat when glued over particleboard/MDF in these particular circumstances, this is the main explanation why bamboo usually works well by staying flat in upstairs areas-which are routinely built with particleboard sheet sub-floors in Queensland. There is only a minor secondary influence from warmer upstairs areas potentially having slightly lower humidity versus downstairs. However, if the bamboo was a little drier than the particleboard at installation, as may have been the case for different batches upstairs and downstairs at West Road, then expansion peaking and other difficulties will still occur over time.
[44] Mr Cause stated that it was unsurprising that ‘overdry’ bamboo may be expected to display expansion behaviour over the cypress substrate. This will inevitably be because the ‘normal’ cypress substrate floor is able to provide a source of moisture to increase the underside bamboo from its factory installed low moisture evidently around 5% up to its new stable (expanded) position around 11%.
[45] The upstairs flooring at West Road is over particleboard substrate but the bamboo flooring came from a different batch to that used downstairs, which Mr Cause states could raise a possibility that they have slightly different moisture contents but this is unconfirmed. He notes that the upstairs bamboo performance with some peaking (but not yet tenting) is consistent with that bamboo batch being a little drier than the particleboard substrate at installation. Mr Cause also notes the ATFA observation that the upstairs of a home is typically warmer and therefore lower RH% and agrees this will reduce the expansion component provided by air moisture acting on the upper surface of the floor. However, air moisture from above has to enter the bamboo through the very thick top coating, which will happen slowly, but not nearly like the speed it can get through the thin underside coating from the substrate material. Further, upstairs particleboard flooring is still vented immediately beneath by external moist air entering through the cavities.
[46] Test moisture gradients results on this and several other investigative jobs lead him to believe that the built environment interface equilibriums being discussed are the principal factor at play. This is because laboratory tested moisture gradients in ‘peaked’ flooring is always found to be wetter on the under (substrate) side, not the upper (air) side. In his experience, it is simply not possible for air diffusion to cause the ‘reverse’ gradient results that are always found.
[47] Mr Cause then discussed the fixing of the strand woven-floor to the various substrates. He noted that sample 1 was taken from a raised ‘tent’, and obviously not in contact with the glue at substrate. However for it to get in a ‘tent’ it was clearly not well glued to the substrate in the first place. That after cutting the outlines of samples 2 to 5 (in glue contact), they were all rolled out by hand with no resistance whatsoever because in every case there was zero or poor bonding between the bamboo/substrate. Mr Cause contended that it was impossible to lift samples by hand in a properly glued floor. This is because an effective glue bond is stronger than the inherent strength of the interface materials. It is noted that Mr Cause did not have information about the type of glue and specific direct stick methodology used, including any moisture barrier MB or potential expansion joints proposed. It was stated that this information is required to permit a full assessment of what was done and if it was done to manufacturer and best practice specifications.
[48] Mr Cause was surprised that the glue install situation was not addressed at all by the two ATFA reports, and at a loss as to why that was so, given the obvious widespread floor failures across all substrates.
[49] The key issues to look for in assessing serviceability of a glued floor are said by Mr Cause to include the following:
Evidence of trowelled glue application-sausage beads ‘can’ work, but only at high application volumes to match the glue manufacturers spread specifications;
Evidence sufficient glue was applied (depending on glue manufacturer specifications typically 80% coverage at a finished (squeezed down) depth of 2 mm);
Evidence that glued boards were weighed down during the critical initial cure. It is common knowledge a hobby glued wood joint needs to be clamped during curing to achieve a strong bond. For the same reason (if no secondary mechanical fastening) glue manufacturers recommend weighing down freshly glued flooring during curing-time required falls dramatically as ambient temperatures rise in Queensland conditions;
Difficulty of raising glued boards off the substrate (good bonding achieved); and
Evidence of woody fibre or concrete/substrate transfer onto opposing faces as boards raised (glue bond itself stronger than interface material).
[50] Mr Cause provided photographs of areas where boards had lifted off in various rooms and noted that that they showed the poor quality glue installation. For example in bedroom 2 where boards tented off the new slab at robes. He noted clean dry slab and mix of gluing techniques with apparent ‘sausage’ beads and trowel. That there was nil bamboo fibre or concrete transfer indicates no effective glue bond achieved. In the corresponding robe zone in bedroom 1 where boards tented off there was also said to be no effective glue or bamboo/concrete transfers on clean underside of boards. It was suggested that this the glue bed may have ‘skinned off’. The same is said for the sample from bedroom 3 over cypress, while there is some glue on the underside of boards, nowhere enough, and no effective bonds between substrate and board. In the study where bamboo was glued over battens there was zero fibre transfer (no bonding) between the sample board and battens. The clean board underside with no key suggests glue may have skinned off (surface dried) or similar problems. The sample from the foyer over a particle board substrate showed an absence of suitable glue coverage and fibre transfer. There is evidence of pitting corresponding to inadequate glue transfer to underside of bamboo and flat glue zones. In his evidence Mr Cause was queried as to whether the glue bond could fail as a result of wetting.
[51] Mr Cause then considered whether the bamboo floor boards should have been acclimatised. He explained acclimatisation as a process where flooring boards are removed from packaging and ‘stripped out’ with good air circulation on all sides so that they may adjust their internal moisture contents to hopefully reach a more suitable local building EMC prior to being glued onto the substrate. He noted that the process of acclimatisation may be expected to introduce delays (possibly for days or longer) on the job, and its potential value is best justified when the manufactured boards moisture content is significantly different from its installation environment. When so justified, its adoption into the process becomes mandatory if a professional job is required. Clearly, pre-installation moisture content checks are fundamental to making an informed decision whether acclimatisation is appropriate, or indeed whether the job should even proceed. Mr Cause states that in his opinion no professional installer and few amateur ones would find the concept unknown. He notes the homeowner’s comments that the bamboo was taken direct from packaging and glued straight to the floor. Under those circumstances, no acclimatisation was being done. He also notes that earlier reports from Mr Hayward and Timber Queensland have also stated they believe this was the case.
[52] Given the moisture content result, Mr Cause states that this West Road job is an occasion when acclimatisation would have been extremely helpful to raise the boards to a higher moisture level before fixing to the various floor substrates. That said acclimatisation is less effective (i.e. slower acting) on a manufactured ‘finished’ product like strand-woven bamboo which is supplied with a factory coating on all sides and edges. However, in his view that is a further strong reason why initial moisture content testing of any imported flooring board products should be mandatory for a professional installer. Without such testing, an installer has no idea if acclimatisation or other steps are appropriate i.e the installer is simply guessing about his job security. Guessing about the job security is taking an unacceptable professional risk, and displays a disregard for both the future client outcomes and the installer’s own appropriate duty of care. In summary, failure to establish product moisture and a need for acclimatisation (in this case) was a direct contribution to the defective installation at West Road.
[53] Mr Cause then discussed the need to test the moisture content of the various substrates. In regard to the slab he said that the moisture of a slab is a much more critical issue if direct stick fixing of wood based flooring (including bamboo) is proposed, rather than normal floor coverings like carpet or ceramic tiles. This is because wood-based materials are much more sensitive to moisture, and can easily have significant consequences for any installer. In regard to the particleboard substrate Mr Cause said that normally ‘dry’ flooring materials would not be expected to provide moisture problems when being fixed over particleboard. He would not expect any installer to anticipate problems if he was confident his flooring product was ‘fit for purpose’. However, if strand woven bamboo is ‘overdry ‘ at 4.8% - 5% and has not been tested to establish its condition, then the whole ball game changes. In his experience, it would lack professional common sense and duty of care to a lay “direct stick floor” direct on top of an existing suspended T&G floor without carefully reviewing a number of potential implications. A further significant difficulty may be there is a pathway for moisture (via normal air RH%) in the Tamborine sub-floor to penetrate around the cypress T&G lines through direct into the underside of the very dry bamboo. In his specific investigative experience, other overlay floors have failed in similar fashion on Mr Tamborine. Apart from that ‘around the T&G’ possibility, the same potential moisture diffusion across the glued interface between the substrate and bamboo applies. Again, this is a critical topic that has the whole success or failure of the job riding on it.
[54] Failure to plan this one through is particularly inconceivable in terms of taking a professional risk with the job security and duty of care. In his view any concept of simplistically ‘blaming’ normal moisture cypress at Tamborine for inevitable moisture increases in ‘untested’ overlaid extra-dry bamboo is completely unreasonable. The moisture of normal cypress on Tamborine is what it is – a floor installer working on Tamborine has to deal with it as part of his normal professional duty of care. Dealing with it effectively requires that all of the above have to be factored in to determine likely performance. Given the very dry bamboo, it may be that an alternative method of installation would have been more suitable over the cypress.
[55] Mr Cause also considered the application of the Timber Utilisation and Marketing Act 1987 to this matter. That Act prescribed standards for the moisture content of timber products including bamboo and provided remedies where the moisture was outside of the acceptable range. The Tribunal notes that this Act has been repealed and that the range of moisture contents which would have applied do not reflect the moisture characteristics of bamboo as discussed by Mr Hayward in his reply to Mr Cause’s report[10].
[10] Exhibit 6.
[56] Mr Cause stated in his conclusion that a good timber or wood-based floor properly installed should provide a minimum of 25-30 years satisfactory service, and possibly 50 years. It was noted in this case that the full supply and installation of the flooring on two levels was directly contracted by the homeowners to a specialist business Inside Out Timber Flooring. Unfortunately there have been serious unsatisfactory issues with the preparation and techniques of installation, resulting in a defective floor. As detailed in this report he believed the floor has been fatally compromised from the start and was therefore never going to be serviceable. It is significant that all the widespread problems with the floor have been a direct result of avoidable construction issues that should never have occurred in the first place. There appears to have been a distressing lack of trade knowledge about materials performance, and an extraordinary inability to seek out and review product data sheets or fundamental installation instructions from manufacturer of industry sources.
[57] He states that his investigation has established the floor installation has clearly been defective. The key reasons for this have been:
A failure to check moisture content of the product prior to installation;
A failure to adequately acclimatise the product;
A failure to check substrate moistures as appropriate and take account of how they may potentially influence the bamboo performance; and
A failure to glue the floor to an acceptable manufactures specification.
[58] He goes on to say that it is difficult to understand how the installer might have hoped for a successful outcome, given he has evidently proceeded with the installation in the manner that has occurred. In particular this approach has been characterised by taking a series of professional risks with the job security, and disregarding the duty of care to the client and the installation itself.
[59] That Inside Out Timber Flooring obtained two professional reports from the Australian Timber Flooring Association ATFA. Unfortunately those reports were unhelpful as they somehow missed the key reason for the floor failure which was the obvious defective installation. In contrast the separate Timber Queensland report for the QBSA identified the obvious defective glue installation, and provided an initial opinion that the floor will need replacement.
[60] In Mr Cause’s opinion, the floor is obviously in an unserviceable condition, and may be considered dangerous in some places where it is still ‘tented’ up. This is due to ongoing expansion, failed gluing, and warping and buckling of the floor. For the reasons stated, effective remedial work in-situ is not possible for this defective floor. Additionally, he believes there is no reason to suppose the bamboo was better glued upstairs than downstairs, and measure data strongly supports the homeowner’s concerns about further movement issues being probable on the upper floor. Accordingly, in his opinion, the only acceptable solution available is full replacement of the entire flooring system on both levels. Apart from the removal and disposal of bamboo, all glue residues on substrates will need to be cleaned off as well, and the building made good for a fresh start. Additionally, other works will also obviously be required, such as repair of any damage from removal of the flooring, and plaster and painting repairs as needed. The work can be expected to be quite dusty, and professional cleaning of the house would also be required. It may be that limited professional assistance should be considered to oversee the new work procedures, particularly all appropriate testing of products for conformity with acceptable standards. Removal and replacement of flooring in both levels of this West Road residence will be a significant task. This work will require the homeowners to place virtually all furniture into storage, and relocate into alternative accommodation for possibly 4-6 weeks (presumably at expense) when repairs are effected.
[61] In his review of Mr Cause’s report Mr Hayward states that Cedarbiz (Mr Cause) has provided a lengthy report and many of the aspects drawn upon and the way they are portrayed are of particular concern to us from a technical perspective. In essence the Cedarbiz report attributes all the problems with this floor to be installation related discarding moisture and ventilation issues as simply anomalies. The report suggests that the product and sub-floors were not adequately tested for moisture content, that the product did not comply with the Timber Utilisation and Marketing Act and that the product was inappropriately adhered to the floors.
[62] A premise foundational to the Cedarbiz report is that strand woven bamboo is timber, behaves in the same manner as timber and therefore all aspects relating to timber can be equivalently applied. Mr Hayward states that this is a false assumption on which the Cedarbiz report is based. He then discusses differences in moisture of timber and strand woven bamboo in similar environments, and the manufacturing process for strand woven bamboo.
[63] Mr Hayward goes on to say that Cedarbiz stated that the product should have been moisture content tested and acclimatised prior to installation. To this he says, at the time that this floor was installed the product was being purchased by installers in good faith that the product was fit for purpose and at times minimal guidance was provided on how to install it. There was simply not the information about the product that we now know, including that developed by ATFA and Uroxsys provided in this report, which was dated 26 November 2010. Moisture meters were known to be not reliable in estimating actual moisture content although they had successfully demonstrated that they could be used to determine differences between the moisture levels in one area of a floor and another, oven dry moisture content testing would provide the only means of determining moisture content and this certainly was not covered by installation instructions as being necessary. Installers realised that there were some differences to hardwood flooring but the product was purported to be more stable than timber.
[64] According to Mr Hayward if it were to assumed that moisture content testing was undertaken prior to installation and the moisture contents were 7% to 9% as is now often found, how long would the product need to have been acclimatised (air humidity allowed to raise the moisture content of the flooring and pre-swell the flooring prior to installation) to bring it to say 13%, a common average moisture content for hardwood flooring on Mt Tamborine? The Cedarbiz report indicates that in the study and foyer, where it would be considered that there were less sub-floor moisture effects, the Cedarbiz oven dry moisture contents were 9.4% and 8.8%. This floor has been down for nearly three years, through extensive periods of rainfall over past summers and yet the flooring is still below the 10% lower limit figure in TUMA. Mr Hayward’s conclusion is that the product does not acclimatise and increase in moisture content like hardwood flooring.
[65] Regarding sub-floor moisture these matters are dismissed by Cedarbiz as being anomalies and they state that: “these matters are regarded as anomalies in local floor issues, and do not provide any reasonable explanation for the overall performance of the floor installation.” Similarly the Cedarbiz report dismisses sub-floor ventilation in a similar manner indicating that though there is not full cross flow ventilation the “gross ventilation was well above codes”. Mr Hayward refutes the claim by Mr Cause that there is adequate sub-floor ventilation under the cypress floor using the ATFA and Timber Queensland data sheets.
[66] He states that moisture meter readings at different times by the three parties who inspected the floor all had readings from 16% to 20% and again this is indicative of humidity in the sub-floor being higher than expected and is evidence of conditions that are too moist beneath the floor above. Mr Hayward notes that Cedarbiz negated to comment on the higher TQL (Mr Brown’s report) figures and TQL rightfully pointed out that at these moisture content levels for prolonged periods decay in timber is possible. He also notes that the BCA moisture ventilation levels were based on sub-floor moisture contents not exceeding 18%.
[67] Mr Hayward states that we are unable to comment in detail in the adhesive fixing of the floor as in areas where boards had or were lifted the floor had been subject to moisture and this can affect adhesion or contribute high forces causing the adhesive to let go. We must also not be confused between adhesion and adhesive application. Lack of adhesion does not necessarily mean insufficient adhesive.
[68] In his conclusion Mr Hayward states, strand woven bamboo flooring is not hardwood flooring and the implication of its close similarity by Cedarbiz is simply not right. Strand woven bamboo is a highly modified product, adhesive filled and manufactured under very high pressure and high temperature. Strand woven bamboo does not equilibrate to the same moisture content range as hardwood flooring and it is therefore nonsense to consider that the default moisture content range of TUMA was appropriate or that anyone should attempt to apply this product to the now repealed Act. Furthermore, to dismiss the sub-floor moisture issues as anomalies is incomprehensible, hardwood joists and the original cypress flooring were recorded as being high in moisture content by all parties and at the time of the TQL inspection readings were sufficiently high to raise possible concerns regarding timber decay. In addition to this the sub-floor ventilation in this area does not meet recommendations, contrary to what Cedarbiz suggests. Visible water was present beneath boards in the bedrooms adjacent to the kitchen and a likely ground water source was present in the kitchen. In addition to this other less severe moisture issues were also detected, sub-floor moisture is a definite problem with this floor and cannot be dismissed as anomalies.
[69] Mr Hayward acknowledges in his report that strand woven bamboo floors, laid over sub-floors where moisture or wet conditions can develop with time or when laid in locations where extended periods of high humidity can prevail, are now known to be more susceptible to cupping and peaking. He states its high sensitivity to such conditions was not known at the time that this floor was laid. Information on this was provided to the industry by ATFA in October 2009. The product was initially thought by many to act like hardwood but was portrayed to have much greater stability than hardwood flooring. As such the flooring was purchased and laid in good faith as being fit for purpose, its moisture characteristics were not well understood, it was difficult to determine moisture contents and even if determined there was no satisfactory interpretation of the results. However, in saying this there are now many bamboo floors performing well in South East Queensland although a proportion have also had performance issues particularly with sub-floor moisture being a contributor.
[70] In his oral evidence at the hearing Mr Cause considered the comments made by Mr Hayward in his review of Mr Cause’s report. He stated that
He was fully aware of the differences between hardwood and bamboo, that bamboo was a highly modified product and did not equalise to the same level as hardwood.
He was not suggesting bamboo would acclimatise to 10%-15% as it stabilised at between 9% and 10%.
If the bamboo had have been tested it would have been 6% and alarm bells would have gone off.
If a floor is to dry it will take up moisture ands that will cause problems.
A prudent installer would test for moisture.
The anomalies caused localised problems but the floor is peaking due to inherent issues and there has been a failure over five substrates.
He had calculated the sub-floor ventilation requirement one way and Mr Hayward another either way the cypress pine floor had been down for 20 years and was at equilibrium.
Discussion
[71] There is no disagreement that the floor at the Presser residence has failed. There is some disagreement between the experts as to the reason for the failure. Mr Cause for the Pressers is of the opinion that the floor failed because it was too dry and the glue failed. Mr Hayward for the respondents’ view is that there are sources of moisture at the Presser residence which have caused the failure.
[72] The Tribunal accepts Mr Cause’s evidence based on oven dry testing by him and by Mr Brown that the strand woven bamboo flooring material which was laid on the ground floor had a moisture content of between 4.8% and 5%. Mr Hayward has not disagreed with this. He stated though that at the time installers assumed that the product would be fit for purpose. The Tribunal notes that the only reliable method for testing moisture content in bamboo flooring is by the oven dry moisture method which is a process which takes up to 36 hours and accepts that installers were not doing this test at the time this floor was installed. The Tribunal also notes that Mr Lowry was not aware of the moisture content of the bamboo flooring at the time of its installation as that detail was not supplied by the manufacturer and the flooring did not come with installation instructions.
[73] The Tribunal finds that the bamboo flooring installed at the Presser residence was not fit for purpose as it was at a moisture content which was too low for installation of flooring of this type. This is clearly seen from the fact that the flooring cupped throughout the downstairs area over the five different substrates within a very short period of time. There was also evidence of cupping in the upstairs floor though not to the same extent as the ground floor. Mr Hayward in his initial report acknowledges that this cupping can be a consequence of flooring manufactured at low moisture content. The installer not being aware of the moisture content of the bamboo flooring had no way of knowing that it was not fit for purpose.
[74] The Tribunal is satisfied that due to the characteristics of bamboo in that it is slow to take up atmospheric moisture that acclimatising the floor would not have solved the problem. The slowness of bamboo to take up moisture is acknowledged by both experts and there is not the ability to easily measure moisture content to determine when it is acclimatised.
[75] The Tribunal accepts Mr Cause’s opinion that due to the very low moisture content of the bamboo there was always going to be a moisture gradient between the various substrates at the Presser residence and the bamboo and inevitably it would take up moisture and expand resulting in the cupping/peaking and in extreme cases tenting. The moisture sources noted by Mr Hayward in his reports may have effected the floor in those areas but they are not the cause of the floor failing. If the floor had have been at a higher moisture content it is clear that these moisture sources would not have had the effect they had in those areas.
[76] The defect in the floor is a latent defect and while it may have been laid in good faith it was not fit for purpose. The Tribunal is satisfied that the bamboo flooring with a moisture content between 4.8% and 5% constitutes a breach of the warranty that the material will be good and suitable for purpose under section 42 of the Domestic Building Contracts Act 2000.
[77] The Tribunal accepts that the installer took steps to ascertain the moisture contents of the substrates and made preparation by the application of a moisture barrier over the concrete slab. The experts agreed that it was prudent for the installer to know both the moisture content of the substrates as well as the bamboo though. As illustrated by Mr Cause this is because at low moisture content a moisture gradient will be created between the bamboo and what would otherwise be considered dry substrates such as particleboard. It is clear here that the moisture content of the bamboo was not known nor were steps taken to ascertain it.
[78] The Tribunal does not accept that any reliance can be placed on industry claims that bamboo was more stable than hardwood. Any product subject to changes in dimension such as this bamboo requires that its individual characteristics should be known before installation to ensure that any steps necessary to be taken to ensure that expansion does not occur can be taken.
[79] Mr Cause considered that the bamboo should have been acclimatised as mentioned above. Mr Lowry had no instructions in that regard at the time of installation and having regard to the fact that the flooring was not fit for purpose acclimatising it would not have solved the problem.
[80] In regard to the cypress floor the Tribunal notes that this floor was in place at the time of installation of the bamboo floor and any issues with its moisture content and the sub-floor ventilation should have been known to the floor installer and any action required to reduce the effects of these should have been brought to the attention of the homeowner and any necessary steps taken before the installation of the floor. Mr Hayward in one of his own reports noted that a subsoil barrier could have been put in place.
[81] The Tribunal is satisfied that by the installation of the bamboo floor without knowing the moisture content of the bamboo and without taking account of the moisture conditions of the cypress floor, the work was not carried out in an appropriate and skilful way and with reasonable care and skill and is in breach of section 44 of the Domestic Building Contracts Act 2000.
[82] Another area of failure was said by Mr Cause to be the gluing of the bamboo. This was not specifically investigated by Mr Hayward. It is clear that glue bonds have failed in various boards and as a result those boards have tented. The photos he provided clearly illustrated the failure of the glue bond and the lack of adhesion between the board and the substrates. If as suggested by Mr Lowry the glue bond has failed as a result of wetness this does not alter the fact that it has failed. It would be anticipated that the glue used to bond the floor should be able to withstand moisture. The failure of the glue bonds is clear and this has resulted in further damage to the floor. Mr Cause did not know the name of the glue used and he therefore did not make any comments on the appropriateness of the type of glue in his report. The question of whether or not glue of this type was considered appropriate at the time remains unanswered and the question of whether there has been a breach of warranty in this regard cannot be determined by the Tribunal.
Quantum of Damages
[83] The Pressers provided the following quotes to the Tribunal for the rectification work:
Tim’s floor stripping
Removal of existing bamboo $8,200.00
Qld Timber Flooring
Laying of new floor $43,661.20
Qld Timber flooring
Laying of new stairs $2,295.15
Status technology
Remove and install and audio visual equipment $4,320.00
Sanctuary 29
Removal of balustrade, doors, Skirting etc $5,232.00
Clearview Shutters and blinds
Remove and reinstall shutters $440.00
Ray Barrett & Sons
Patch & touch up internal walls $5,346.00
All Tamborine storage
3 storage sheds for 5 weeks $825.00
Rental property for 5 weeks
Allow $400 per week for a family of 6
With pets $2,000.00
Removalists
Removal of furniture to and from Storage sheds $3,000.00
Total $75,410.35
[84] The only issue Mr Lowry raised at the hearing about the costs of rectification were in regard to the costs of rectifying the stairs. As he stated no-one had had said that the staircase had failed. Both of the experts agreed that having regard to the characteristics of the Pressers’ property and the now known characteristics of bamboo flooring it would be appropriate to substitute another type of floor. In this case the new floor that has been quoted on will be ironbark. If the stairs are not replaced then there will be inconsistencies in the aesthetics of the flooring and it is appropriate that the floor be consistent throughout the house and the installer bear liability for the replacement of the whole of the floor.
[85] The Tribunal is satisfied that the proper amount of damages to replace the floor and enable the Pressers to vacate the premises during the works is $75,410.35. This amount must be discounted though for the unpaid portion of the original invoice in the amount of $1,501.70 which Mr Presser acknowledged in his statement of evidence was unpaid. The total amount of damages is then $73,900.65.
Costs
[86] Mr Lowry was given a direction to provide submissions in regard to costs in the strike out application which he has not availed himself. There were no other specific submissions made as to costs at the hearing though the Pressers provided some details of their legal and expert costs in their statements of evidence. In this matter there was clear divergence between the experts as to the cause of the failure of the floor and it was right for the respondents to resist the claim on that basis. The Tribunal will not exercise its discretion to award costs to the Pressers.
Who is liable?
[87] The original application was filed against Mr Lowry and Lowry Projects Pty Ltd was only joined following a strike out application by Mr Lowry. The Pressers argue that they only ever dealt with Mr Lowry and there was never any disclosure of Lowry Projects Pty Ltd. In particular they say that an ABN search was done and it disclosed the Lowry Trust but not Lowry Projects Pty Ltd. They argue that Mr Lowry was an agent for an undisclosed corporate principal. In which case the agent must make it clear that he is not personally liable to avoid liability. With the onus on the agent to displace liability[11].
[11] Aitken Transport Ltd v Voysey (1990) 1 QR 510.
[88] Mr Lowry and Lowry Projects Pty Ltd rely on the fact that “Inside Timber Floors & Decks” was a business name registered to Lowry Projects Pty Ltd in Queensland and the business name registration was displayed at the premises.
[89] All parties are agreed that the contract in this matter as mentioned above is constituted by the quote dated 13 December 2007 which according to the Pressers was received by fax from the respondent on 9 January 2008. That quote clearly sets out the name “Inside Out Timber Floors & Decks”. There is no mention of Mr Chris Lowry on the quote. The Pressers claim that they were unaware of the significance of a business name and that they relied on the ABN search to identify the respondent.
[90] Whether or not they were unaware of business names does not alter the fact that Lowry Projects Pty Ltd choose to trade under a business and registered that name under the Business Names Act 1962.
[91] When it came to making an application in this matter the Pressers’ legal representative should have, knowing that the only identifying name on the contract document was a business name made the appropriate search to identify the owner of the business name. That is not an ABN search it is business names search with the Office of Fair Trading. This is not the case of an undisclosed principal it is a case of a failure to search the appropriate register to ascertain the proper respondent.
[92] The Tribunal is satisfied that the proper respondent is Lowry Projects Pty Ltd and that company is liable for the damages.
Order
[93] The Tribunal orders that Lowry Projects Pty Ltd pay Tim Presser and Leanne Presser the amount of $73,900.65 within 14 days.
[94] Each party to bear their own costs.
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