Prince v J M Kelly (Project Builders) Pty Ltd
[2012] QCAT 334
•27 July 2012
| CITATION: | Prince and Anor v J M Kelly (Project Builders) Pty Ltd [2012] QCAT 334 |
| PARTIES: | Michael Prince Lynette Prince |
| v | |
| J M Kelly (Project Builders) Pty Ltd |
| APPLICATION NUMBER: | BDL081-11 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 17 February 2012 |
| HEARD AT: | Mackay |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 27 July 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | J M Kelly (Project Builders) Pty Ltd are to perform all work necessary to ensure that the tiles on the balcony area of unit 4 are laid in a good and workmanlike manner having regard to AS 3958.1-1991 and the Building Code of Australia 2004 in particular that any peaked tiles are replaced including all those identified in the report of Mr Hulme, that all appropriate movement joints are inserted and that water does not pond on the tiled surface so as to cause a safety hazard with all such work to be performed within 28 days. |
| CATCHWORDS: | Defective tiling of outdoor area of residential high-rise unit – Australian Standards and Building Code of Australia Downer Construction (NZ) Ltd v Silverfield Developments Ltd (2007) 1 NZLR 785 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr and Mrs Prince appeared at the hearing |
| RESPONDENT: | Mr John Murphy appeared for J M Kelly (Project Builders) Pty Ltd |
REASONS FOR DECISION
Mr and Mrs Prince are the owners of unit 4 ”Captains Corner” 1-7 Breakwater Access Road, Mackay. J M Kelly (Project Builders) Pty Ltd were the builders of the block of units compromising Captains Corner. The application is for the rectification of alleged defective building work.
The alleged defective work is set out in a direction to rectify No 35746 issued by the Queensland Building Services Authority to J M Kelly on 28 January 2010. The direction to rectify was based on a report prepared by Mr Michael Hulme, an inspector of the Authority following a site inspection on 20 January 2011. The direction to rectify required J M Kelly to rectify the following defects:
(1) The licensee has failed to take into consideration the expansion of the terracotta tiles and to install sufficient number of intermediate expansion joints to the tiled balcony area of unit 4. This has resulted in peaking of the tiles occurring in several locations creating a safety issue for the occupants of the unit, has compromised the integrity of the waterproofing and has resulted in a significant percentage of tiles debonding (pertaining to item 1 of the owners complaint letter to the licensee).
(2) Ponding of water is occurring to the tiled balcony area along various sections of the south boundary side block wall. The ponding is considered to be a safety issue for occupants of the unit. Rectification works carried out by the licensee by removal of the grout lines to allow for drainage to areas adjacent to the side and rear of the unit is not considered to be an appropriate rectification method (pertaining to item 2 on the owner’s complaint letter to the licensee).
The Authority, following a re-inspection by Mr Hulme on 28 February 2011, advised the Princes in a letter dated 1 March 2011 that the directions to rectify had not been satisfactorily attended to by the licensee. Having considered the complaint under the Authority’s insurance scheme the Authority advised that the direction items were not “residential construction work” under policy edition number (7).
As a result the Authority was unable to compel the contractor to carry out the work, or provide assistance under the scheme. The Authority was though able to take action against the contractor for failure to comply with the direction.
J M Kelly in their response to the application noted that the Princes were relying solely on the direction to rectify in support of their application. That prior to the issue of the direction to rectify J M Kelly had inspected the alleged defects during the inspection of various defects alleged by the Body Corporate for Captains Corner which were identified in a letter received from the Authority dated 25 June 2010, which enclosed a letter from the Body Corporate dated 19 August 2009.
The inspection occurred around September 2010 and access was arranged to the property to inspect items 1, 3 and 10 on the Body Corporate complaint list. In October 2010 subsequent to the inspection J M Kelly carried out rectification work at unit 4 to address items 1, 3 and 10. J M Kelly confirms that it carried out the relevant rectification prior to the issue of any direction to rectify by the Authority.
J M Kelly notes that the report of Mr Hulme following the inspection of the Body Corporate issues mentions “a brief inspection of the tiled area of balcony 4 which identifies the alleged defect and goes on to say that as this location of the defects is not related to body corporate issues, the owner of unit no. 4 will be required to notify the licensee in writing and if not rectified to lodge a separate complaint form with the Authority”.
A complaint was received by J M Kelly from the owners on or about 14 October 2010 and an attempt had been made by J M Kelly to obtain access on 8 November 2010 to inspect the property but it was unable to be obtained.
A letter from J M Kelly to the Princes of 19 October 2010 acknowledges the complaint of 14 October 2010 asking for them to re-confirm that there are defective works which have not been rectified and provide photographic evidence. The Princes confirmed by letter of 22 October 2010 that the works had not been completed and requested that they be rectified in order to prevent further due process resulting in a BSA claim.
[10] Mr and Mrs Prince filed a complaint on 2 December 2010 and they were advised by the Authority on 11 January 2011 that an inspection would take place on 20 January 2011.
[11] The Authority sent J M Kelly a letter about the alleged defects on 11 January 2010. J M Kelly advised the Authority of their attempt to gain access on 8 November by letter dated 19 January 2011. An inspection was undertaken by Mr Michael Hulme on 20 January 2011 and from this the Authority had issued the direction to rectify.
Mr Hulme’s Report
[12] Mr Michael Hulme’s report following his inspection of unit 4 on 20 January 2011 notes that the complex is divided into two buildings, the north and south towers. The north tower certificate of classification (form 11) was issued on 14 December 2006 with practical completion achieved on 23 February 2007. The south tower certificate of classification (form 11) was issued on 24 May 2007 and practical completion achieved on 7 June 2007 with the final certificate on 2 April 2009. At the hearing Mr Hulme noted that the two towers were connected at the podium level and construction joint was in the courtyard of unit 4.
[13] Mr Murphy in his affidavit[1] stated that the defects liability period expired due to the effluxion of time on 30 January 2009.
[1] Exhibit 10 affidavit of John Murphy dated 23 January 2012.
[14] The report confirms that J M Kelly was made aware of the defects during an inspection of Body Corporate issues on 20 September 2010. That J M Kelly has failed to carry out any rectification work since that time even though in the report relating to the Body Corporate issues the inspector clearly identified this as a category 1 defect that J M Kelly is responsible to rectify.
[15] The report from the Body Corporate inspection noted a brief inspection had occurred of the unit 4 tiled balcony and this was identified as category 1 defect as tiles have peaked approximately 20 mm, there was a lack of intermediate expansion joints and grout had been removed in one area to allow for drainage.
[16] The report of Mr Hulme notes that Mr Murphy claimed in an email dated 19 January 2011 that the rectification work was completed in early October 2010 and that access to unit 4 was not provided. The owner when questioned advised they had never denied access and that a request had been made by J M Kelly to the on-site manager for access to the unit when they were carrying out other rectification work. The owner was away at the time. The Authority is said not to consider a licensee just turning up and requesting access as an owner denying access.
[17] Mr Hulme states in his report that since the inspection on 20 September was carried out further lifting of tiles have occurred at the front left hand corner of the balcony, (east facing) affecting approximately 6 tiles that have debonded and peaked to a height of approximately 40 mm when checked with a 2 metre straight edge creating a safety hazard for the occupants of the unit. Further peaking of tiles has occurred since the previous inspection on the side balcony in the vicinity of the rear external corner affecting approximately 6 tiles that have debonded and peaked to height of approximately 20 mm when checked with a 2 metre straightedge creating a safety hazard for the occupants of the unit. Peaking of tiles has occurred along a 12 metre length of the construction joint in the concrete slab that runs from the rear to the front of the side balcony in varying heights from 10 to 27 mm when checked with a 2 metre straightedge.
[18] Mr Hulme quotes from AS 3958.1 1991-Ceramic Tiles part 1: Guide to the installation of ceramic tiles that
The finished tiled surface for flatness and true is to be within a tolerance of +/- 4 mm in 2 metre as noted in Part 5.4.6 of the standard. Structural movement joints are required to be installed directly over structural joints. Intermediate movement joints are required to be installed in external floors where any dimension exceeds 4.5 m as noted in clause 5.4.5.2.
In Mr Hulme’s opinion the defect has also occurred as a result of movement in the construction joints in the suspended slab. Mr Hulme notes that he is aware that the tiles used are not ceramic tiles but are terracotta tiles which as J M Kelly is aware has larger expansion properties to ceramic tiles. In the absence of a standard for terracotta tiles, AS 3958.1 is said to be an appropriate standard to use. Reliance on this standard was supported by Mr Edwin Helmond whose report was relied on by J M Kelly.
[19] J M Kelly was said to have failed to install sufficient number of intermediate expansion joints as required for ceramic tiles, with some distance between joints up to 24 m. At the hearing Mr Hulme acknowledged that the maximum distance was 22 metres. It is said by Mr Hulme to be critical that the joint continues through the tile and bedding as any tile adhesive in the joint renders the joint ineffective. It is said that J M Kelly’s failure to allow for sufficient expansion joints has resulted in peaking of tiles and a significant percentage of tiles debonding over the tiled area.
[20] Two tiles were lifted where peaking of tiles had occurred at the rear corner of the building. It was noted by Mr Hulme that the waterproofing membrane has been compromised as some has stayed on the concrete slab and has stuck to the base of the tile. It was also noted that adhesion failed to occur to approximately a quarter of the tile. AS 3958.1 figure 5.6 shows, examples of adhesive contact, the tile moved showed unsatisfactory adhesive contact to tile.
[21] Mr Hulme also inspected the outside area of unit 4 in regard to the ponding of water. He states that the inspection occurred at 8.30 am and Mackay had received rain the previous afternoon. He found that at the front right hand corner ponding was occurring over approximately 8 tiles to a depth of approximately 1.2 mm. Along the boundary block rendered wall in approximately the middle section ponding over approximately 14 tiles is occurring to a depth of approximately 2.2 mm. Approximately a further 10 tiles were said to have surface tension water only of the tiles. Along the boundary block retaining wall in the rear section in the vicinity of the slot in the boundary wall ponding over approximately 24 tiles is occurring to a depth varying between 1.2 to 2.2 mm. Ponding of water in the areas mentioned is said to create a safety issue for the occupants of the unit.
[22] Work carried out by J M Kelly to drain surface water from the tiled area is noted by Mr Hulme to include removal of the grout line 2 tiles from the side of the building along an 8 metre section to a grated drain at the front and a section 5.5 m at the rear to another grated drain. This is not considered to be acceptable rectification method. This view was also accepted by Mr Edwin Helmond J M Kelly’s expert.
J M Kelly’s evidence
[23] J M Kelly claims that the head contract for the project in question had contemplated the laying of ceramic tiles to the unit balcony areas (among other areas). However, the principal for the project supplied terracotta tiles and directed that J M Kelly install them as supplied rather than the specified ceramic tiles. Accordingly, the design did not contemplate terracotta tiles. J M Kelly submits that if there any defects which are deemed to still exist at the property, which is denied, they relate to a design fault for which it is not responsible.
[24] Mr Murphy elaborates on this in his affidavit[2] stating the contract specification “Schedule of Prices” a copy of which is annexed to the affidavit, nominate a PC sum of 35/m2 for the “Supply to site only ceramic tiles to floor and wall”. Accordingly the design never contemplated terracotta tiles and the properties of terracotta tiles differ considerably to that of ceramic tiles with terracotta being a fired clay-based product and ceramic being an inorganic, non-metallic solid prepared by he action of heat and subsequent cooling. That as a consequence of the differing properties, this results in differing expansion and contraction between the products. The principal supplied the terracotta tiles and directed J M Kelly to install the terracotta tiles as supplied to the balcony areas in lieu of ceramic tiles.
[2] Exhibit 2.
[25] Mr Murphy states that the terracotta tiles were sealed by J M Kelly with a proprietary branded sealant at the time of handover of the project and that it is incumbent upon the owners to ensure that the terracotta tiles are similarly cleaned and sealed on an annual basis. In his opinion if those maintenance steps had been taken, the likelihood of these defects arising would have been minimised. Mr Prince gave evidence at the hearing that there was no information provided to him in regard to the sealing of the tiles when he and his wife purchased unit 4.
[26] If J M Kelly is directed to re-install the terracotta tiles or replace the whole of the balcony area with new terracotta and install additional expansion joints Mr Murphy believes that this will not stop the defects from arising even if a fastidious maintenance regime for the tiles is adhered to.
[27] The location and setting of the development are said by Mr Murphy not to be conducive to the use of terracotta tiles. The only reason terracotta tiles were used was at the insistence of the developer as a cost saving measure.
[28] Mr Murphy believes it is not a workmanship issue. If ceramic tiles had been used, these defects would most likely not have arisen.
[29] Mr Murphy did not agree that the tiles along the construction joint are peaking. Mr Hulme stated at the hearing that if the tiles in question are drummy that is the amount of glue which is not adhering is greater than 20% and therefore the tiles are considered to be peaking as they are debonding.
[30] J M Kelly notes that there is no particularisation of how the (alleged) defects are said to constitute safety/issues hazards. The property in question is a unit on the ground floor of the unit complex. The alleged defects to the property are on the outside balcony. J M Kelly submits that the alleged defects do not present any safety/issue hazard as there is not any defect which exists for which J M Kelly is responsible.
[31] The Princes rely on Mr Hulme[3] in regard to characterisation of the defects. Mr Hulme states that the peaking of tiles to 40 mm at the front balcony and 20 mm on the side balcony is clearly a category 1 defect as per the Authority’s Board Policy for categorisation of defects as it adversely affects the health and safety of persons residing in or occupying the building and it adversely affects the functional use of the building. The ponding of surface water that remained after rainfall had stopped is said to be clearly a category 1 defect for the same reasons. The height of the peaked floor tiles is said to create a real safety concern for differing tenants of the units that would not be aware of the defects and are likely to trip on the peaked floor tiles. Mr Hulme states he has been advised by Mr and Mrs Prince that the unit is tenanted.
[3] Exhibit 2 – Statement of Michael Hulme dated 4 February 2011.
Sliptest Australia Pty Ltd Report
[32] J M Kelly engaged an expert, Sliptest Australia Pty Ltd, to inspect the area alleged to be a safety hazard/issue and prepare a report. The Slip test report[4] states that the terracotta tiles in unit 4 we were sent to test returned an average BPN result of 54 this places this tiles area into a VERY LOW Notional contribution to the risk of slipping when water wet, the standards AS/NZS 4586: 2004 “New Surfaces” and AS/NZS 4663: 2004 “Existing Surfaces” recommend a minimum BPN result of 45 for an external colonnade area such as this. There is however an issue with fungus build up on the low lying areas. This fungus build up can, and has reduced the BPN results down to 25 on the pictured area. This low BPN result is only apparent on the first swing of the pendulum machine, as soon as the rubber slider hits this surface a second time it removes the fungus build-up and subsequently records a higher BPN result, then when the test area is scrubbed clean with water and a scrubbing brush, the BPN results obtained in an adjoining area, referenced on Sliptest report 2904111 were an average of 55 as is expected with type of surface.
[4] Exhibit 4 Sliptest Australia Pty Ltd report dated 13 May 2011.
[33] Photos of the tested area were included with the report. It was suggested that the fungus coverage was much more prevalent in this area as pressure washing has not been carried out recently.
[34] Mr Hulme in his evidence at the hearing commented on the Sliptest report saying that it was unreasonable to expect the unit occupiers to pressure clean the tiled areas every two weeks to ensure that there was not a fungal build-up.
Mr Helmold’s Report
[35] J M Kelly engaged Mr Edwin Helmold, architect and builder to provide a report[5] in respect of the direction to rectify issued by the Queensland Building Services Authority in respect of unit 4. It is noted that Mr Helmold was unable to get access to unit 4 and his report is based on a review of the photos which accompanied the direction to rectify and the reports of Mr Hulme. In regard to alleged defect 1 Mr Helmold states there is insufficient information to form a firm conclusion as to the cause of the peaking and debonding and therefore whether the tiling problems are defects by the licensee or due to other causes.
[5] Exhibit 8 report of Edwin Helmold 3 August 2011.
[36] That the principal under the contract changed the specified tiles from ceramic to terracotta, which are prone to a greater likelihood of expansion than ceramic tiles. He considered that this may have relieved the licensee from responsibility under the contract for the problems associated with the change.
[37] That peaking of tiles of 20 to 40 mm in his view could constitute a trip hazard depending on their location. A trip hazard would in his view be category 1 if found to be a defect for which the licensee is liable.
[38] Mr Helmold accepted that in assessing the proper and tradesmanlike workmanship required by clause 29.1 of the general contract conditions it is reasonable to have regard to AS 3958.1 as Mr Hulme has done. He went on to say that the peaking reported by Mr Hulme would not comply with the standard.
[39] In regard to the need for movement joints Mr Helmold noted Drawings 03250/S9E and S15C section G, which shows a slip joint along the wall to Bed 1. Also attached at Appendix 2 is a copy he was given of unit 4 plan showing the alignment dotted in red of the tile expansion joints constructed to the tiled terrace. The slip joint is not shown but there is a longitudinal expansion joint shown about a metre from the slip joint location. The precise location of all the joints was said to need clarification.
[40] There was also a discussion of intermediate joints which under AS3598.1 should be provided in evenly spaced positions approximately 4.5 m centres, or where stress may be expected such as in external floors where any dimensions exceeds 4.5 ms. Mr Helmold noted that it is common to space expansion joints at about 6 ms and that the unit 4 plan of the eastern terrace shows a length of about 8.8 ms between the wall and the expansion joint.
[41] The plan of the southern terrace shows intervals from the western end between expansion joints of about 3.2 m, 6.1 m, 8.99 and 4.2 m. The precise location of the peaking and debonding are not shown on the plan. He noted that three of the intervals between expansion joints are in excess of 4.5 m in the standard. This appears to conflict with the distances between the expansion joints on the plan given to Mr Helmold and that it may be that the peaking does not occur in areas of distances greater than the standard. Mr Hulme’s photos are said not to show the location either. The precise location of peaking and debonding are said again to require clarification.
[42] In regard to the adhesive contact coverage Mr Helmold notes that Mr Hulme reported that of two tiles which he lifted where peaking had occurred at the rear corner of the building and adhesion failed to occur to approximately ¼ of the tile, this is less than the satisfactory coverage. That this may not be necessarily be the cause of the peaking and debonding and the compromise of the waterproofing may have been caused by the lifting of the tiles during the inspection.
[43] Overall it is stated that there is insufficient information to form a firm conclusion as to the cause of the peaking and debonding and therefore whether the tiling problems are defects by the licensee or are due to other causes.
[44] Mr Helmold notes that the certificate of classification for the north tower was issued on 14 December 2006 and the date the owner is said to have become aware of the alleged defect was 2 January 2010, over 3 years later. This is said to be an inordinate amount of time for alleged defects such as those to become apparent. Further that the owners’ complaint was lodged 11 months after the problem became apparent.
[45] Waterproofing problems, if any would be likely to allow water to seep through the slab into the driveway of the ground floor carpark, which is not a habitable area and in his view would be unlikely to cause significant problems.
[46] If the problems are found to be legitimate defects or a health and safety issue for which the licensee is liable, in Mr Helmold’s view the method of rectification, assuming matching tiles are available , would involve:
Removal of any peaked or debonded tiles;
Repair of any damage to waterproofing;
Relaying matching tiles;
As a precaution insertion of additional expansion joints at maximum 4.5 m centres and against any restraining structure;
Ensuring that all expansion joints are taken to the top of the concrete slab.
[47] In respect of alleged defect 2 Mr Helmold was of the view that the supporting evidence lead him to conclude that the ponding is not a defect in terms of the Building Code of Australia. He noted the details of Mr Hulme’s inspection in respect of observing ponding after rain the previous afternoon. He states that the photos in the report show some ponding but no specific relationship is shown, especially in relation to water outlets. It is not clear as to the extent J M Kelly’s rectification methods have been successful in removing the ponding.
[48] Mr Helmold references the Building Code of Australia 2004 in regard to surface water. In particular that the objective of the part is to safeguard occupants from illness or injury and protect the building from injury caused by surface water and external moisture entering the building and that a drainage system for the disposal of surface water must convey surface water to an appropriate outfall. That the code does not refer specifically to ponding, but is aimed to avoid illness or injury to persons and damage to buildings. The reported depth of the ponding is shallow and relatively minor. The inspection was done at 8.30 am and since the balcony faces east the ponding would be likely to evaporate quickly with the rising sun.
[49] Although Mr Hulme comments that the ponding creates a safety hazard to his knowledge there has been no illness or injury to occupants or visitors to the unit over the approximately 4 years it has been occupied, the areas of ponding appear to be in low traffic areas. The ponding has not caused any damage to the building. Mr Helmold concludes that in his view the supporting evidence leads him to conclude that the ponding is not a safety hazard.
[50] The Tribunal notes that in the joint expert report prepared by Mr Hulme and Mr Helmold in respect of the body corporate issues[6] that it was agreed that the rectification work by J M Kelly in grinding out the grout joints has not rectified the ponding as ponding was evident about 4 hours after the rainfall in the morning.
[6] Exhibit 5 Joint expert report Mr Helmold and Mr Hulme dated 10 January 2012.
[51] At the hearing Mr Murphy agreed that in some areas tiles had peaked and that J M Kelly should replace those tiles. He was concerned that J M Kelly was being asked to replace all of the tiles not just the ones that had peaked. He disagreed that tiles along the construction joint had peaked stating that they were sitting as they were laid. Whereas Mr Hulme considered that they had peaked due to their druminess, lack of adhesion, and the fact that they did not pass the straightedge test. Mr Murphy also was of the view that there had not been any further peaking of tiles since January 2011. This was denied by Mr Prince and Mr Hulme who stated that further tiles had peaked in areas where peaking was already occurring.
[52] Mr Murphy accepted that there was a safety concern in regard to one of the areas of ponding thought that it was a result of lack of maintenance on the part of the occupiers of the unit.
Discussion
[53] The Tribunal notes that although this application has been based on the Authority’s directions to rectify and the report of one of its inspectors it is a negligence matter between the parties as the Authority indicated that it could not pursue the matter any further. The Tribunal’s jurisdiction in respect of the application is in accordance with section 77 of the Queensland Building Services Authority Act 1991. This is a building dispute being a dispute in negligence related to the performance of reviewable commercial work as defined in that Act. In performing its work J M Kelly was under a duty to perform it in a good and workmanlike manner in accordance with standard building practice and any applicable Australian standards. Mr Hulme and Mr Helmold have both agreed that the applicable standard here is Australian Standard 3958.1. In particular in relation to the placement of movement joints as identified in the report of Mr Hulme. While the Princes are not the original owners of unit 4, that being the developer, the Tribunal considers in accordance with the decision in Bryan v Moloney (1995) 182 CLR 609 that the same duties are owed to Mr and Mrs Prince as subsequent owners of a residential unit.
[54] J M Kelly raised the issue about delay of the Princes in bringing the defect to their attention and not being able to gain access to the unit to effect repairs when they were available to. The delay which may have had some consequent in regard to the Authority’s direction to rectify in terms of timeliness under their policy does not comply in a negligence matter such as this unless the statute of limitation is pleaded or there has been failure to mitigate loss which was not argued.
[55] The Tribunal notes that the tiles which were originally specified in the contract were ceramic and that the tiles supplied by the principal were terracotta and that terracotta has different characteristics to ceramic tiles in terms of the potential for tile growth which was acknowledged by Mr Murphy and Mr Hulme. Mr Helmold and Mr Murphy advanced the view that the substitution of the tiles may result in the defect being considered a design defect and therefore not one that the builder was responsible for.
[56] Knowing that the characteristics of the tiles were different and that terracotta tiles may have needed to be laid in a different way it was therefore incumbent upon J M Kelly to ensure that the tiles were laid in such a way to ensure that the different characteristics were taken into account and the tiles were laid with the appropriately number of movement joints having regard to them being terracotta tiles.
[57] The Tribunal accepts the evidence of Mr Hulme in regard to which tiles require replacement and this includes all tiles which have physically separated from the tile bed and any tiles which do not pass the standard test and are considered drummy should be replaced. Mr Helmold agreed that the peaking reported by Mr Hulme would not meet the standard. This is taken to include the tiles along the construction joint referred to in Mr Hulme's report. The Tribunal considers that any issue in regard to waterproofing is secondary to the relaying of the tiles and that by replacing and relaying all peaked tiles the waterproofing issue will be dealt with.
[58] J M Kelly must ensure that movements joints complying with AS 3958.1 are installed having regard to the characteristics of the terracotta tiles requiring such movement joints to be at more frequent intervals.
[59] In regard to the ponding of water on the tiles Mr Hulme considered it a safety hazard as it could lead to occupiers tripping. The Tribunal notes that the Sliptest report shows that the particular tiles in question when washed and scrubbed have a very low risk of slipping but the tiles in the area where ponding occurs show a high risk of slippage due to the presence of fungus. Mr Helmold referenced the Building Code of Australia in relation to surface water with the objective of safeguarding occupants from illness or injury. The Tribunal is satisfied that the prevention of an occupant slipping is safeguarding them from injury. That in this case the ponding of water in certain areas of the tiled area creates a risk of slipping and this is required to be rectified. The Tribunal confirms as noted by Mr Hulme and Mr Helmold that the removal of grout to create a channel to redirect ponding water is not an appropriate way to rectify the problem.
[60] The tiles which have been laid in the outdoor area at unit 4 are defective in regard to peaking, a lack of adequate control joints and the ponding of water. Mr and Mrs Prince are entitled to have had those tiles laid in a good and workmanlike manner and the appropriate remedy is to order that J M Kelly perform the work in accordance with their duty of care that is a form of specific performance in accordance with the decision in Downer Construction (NZ) Ltd v Silverfield Developments Ltd (2007) 1 NZLR 785.
[61] J M Kelly are required to ensure that the outdoor tiles at unit 4 are laid in a good and workmanlike manner and in accordance with the applicable Australian Standard and the Building Code of Australia. This will necessitate the replacement of all peaked tiles as set out above, the insertion of appropriate movement joints and the channelling of water to ensure that ponding does not occur.
[62] If J M Kelly are not able to source tiles which match those of the current tiles on the outdoor area of unit 4 then they will be required to replace all of the tiles. This is due to the fact that the work in question was done at the time of building the premises and the work should have been performed in a good and workmanlike manner in accordance with the applicable standards at the time.
Order
[63] J M Kelly are to perform all work necessary to ensure that the tiles on the balcony area of unit 4 are laid in a good and workmanlike manner having regard to AS 3958.1-1991 and the Building Code of Australia 2004 in particular that any peaked tiles are replaced including all those identified in the report of Mr Hulme, that all appropriate movement joints are inserted and that water does not pond on the tiled surface so as to cause a safety hazard with all such work to be performed within 28 days.
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