Robertiello v Di Lione

[2003] QDC 24

DISTRICT COURT OF QUEENSLAND

CITATION:	Robertiello v Di Lione [2003] QDC 024
PARTIES:	VINCENZO ROBERTIELLO Appellant And LINO DI LIONE and FRANK DI LIONE Respondents
FILE NO:	3112/02
DIVISION:	Appellate Jurisdiction
PROCEEDING:	Appeal
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	27 March 2003
DELIVERED AT:	Brisbane
HEARING DATE:	19 & 20 March 2003
JUDGE:	Boulton DCJ
ORDER:	Appeal allowed.  Order of Tribunal Member set aside.
CATCHWORDS:	Application to Tribunal – mediation agreement – further order ordering rectification outside Contract
COUNSEL:	Mr H J Zillman for the Appellant; Mr N R Barbi, Solicitor, for the Respondents
SOLICITORS:	James Conomos, Lawyers for the Appellant; Mr N R Barbi for the Respondents

REASONS FOR JUDGMENT

1. This is an appeal against a decision of Ms J McVeigh, member of the Queensland Building Tribunal, dated 14 January 2002.  On that date it was ordered that the appellant rectify the leak at 68 Chester Street, Teneriffe, by waterproofing the top and back of the parapet wall in accordance with the original specification and all consequential damage.

1. On 12 June 2002 His Honour Judge Forde heard an application on the part of the appellant for an extension of time within which to appeal.  On 20 June 2002 Judge Forde allowed the application and reserved the costs.

Background Events

1. The appellant is a self-employed waterproofer.  The first respondent is the owner of a residential property at 68 Chester Street, Teneriffe.  The second respondent is his father who is a registered builder.  It was he who constructed the residence at that address in or about 1995.

1. Despite the fact that the first respondent executed a joint affidavit with the second respondent relating to the issues in this matter it emerged that he had little if any contact with the appellant and had little or no understanding of the issues in contention.  The appellant dealt with the second respondent.

1. In or about April of 1995 the second respondent contacted a Mr Stan Monteiro who was a sales manager of a company, Emery Coatings Pty Ltd, which manufactured waterproofing materials.  He asked Mr Monteiro to recommend a competent and experienced waterproofer and Mr Monteiro recommended the appellant.

1. The appellant attended at 68 Chester Street and inspected the area of the balcony which is the subject of the present dispute in company with Mr Frank Di Lioni.  He quoted the sum of $7,088 to waterproof the floor area of the balcony extending up the surrounding walls and parapets, a distance of 100 mm from the floor level.  His quote was accepted.  It is dated 22 May 1995 and is Ex DL1 to the joint affidavit of the respondents filed 28 May 2002.

1. The appellant then proceeded to perform the work.  He said and I accept that Mr Monteiro attended at the site on a daily basis to monitor the performance of the work.  He had been provided by Mr Monteiro with certain data sheets which detailed the manner of application of the waterproofing materials.  He followed these.  I accept that his performance of the work attracted no criticism from either Mr Monteiro or Mr Di Lioni.  In particular I accept that there was never any suggestion made to him that he continue the waterproofing up the inside face of the parapet and over the top of the parapet.

1. At the conclusion of the work Mr Monteiro’s company gave six year warranties of the materials used and the appellant gave a six year warranty as to workmanship.  The six year period had almost elapsed when the respondents brought a Domestic Building dispute application to the Tribunal dated and filed 17 August 2001.  The claim was for an award of damages of $14,563.63 or in the alternative rectification of defective work, plus interest and costs.  That application is Ex A to the affidavit of the appellant filed 9 May 2002.

1. Much of the confusion that has since arisen in this matter would seem to have derived from a letter of Mr Monteiro addressed to Mr Frank Di Lioni dated 9 April 1995 which is Ex C to the appellant’s affidavit.  While Mr Di Lioni’s evidence as to the receipt of this letter changed somewhat during his period in the witness box it seems likely that he did receive the letter at or about the date mentioned but because of his difficulty in reading English took no steps to investigate its contents.  Mr Monteiro says that he did discuss with Mr Di Lioni issues concerning waterproofing and I accept that this did in fact occur.  However, I do not accept that Mr Monteiro provided a copy of this letter to the appellant at the time nor do I accept that either Mr Monteiro or Mr Di Lioni raised the issue of extending the waterproof membrane up and over the parapet.  I note that the second last paragraph of the letter is as follows:

“N.B.     The EMER-CLAD waterproofing membrane must be applied over the parapet walls, then brought down the inside of the wall to tie into the roof waterproofing system.”

1. I am satisfied that this was not even considered at the time of the original work.  Mr Di Lioni in his evidence claimed that the parapets had not been rendered or tiled at the relevant time.  However, he was confronted with photographs that were taken by the appellant during the work which plainly indicated that the parapets were rendered and tiled at the relevant time.  He was forced to concede that the appellant was correct in his evidence on this issue.

1. The desirability of such a procedure was further brought home in an affidavit of Ray Griffiths, a licensed builder which was filed in support of the original application to the Tribunal.  That report appears to be part of Ex E to the affidavit of the appellant referred to above.  Mr Griffiths is critical of the fastening of the 100 mm raised portion of the waterproofing to the bottom of the parapet wall.  However he is plainly of the opinion that there was water penetration through the parapet itself which I hasten to observe was outside of the scope of the work required of the appellant originally.  In the concluding paragraphs to his opinion at p 5 of his report he says:

“ Accordingly I am of the opinion that once the waterproofing has been adequately installed at the parapet/floor junction, as well as to the back and top of the respective parapets, the problem will be eliminated.

Additionally and unfortunately, from what I have seen while on site, I believe the problem could extend to the other parts of the roof balcony and there is a very real chance of the same problem existing to the parapets to the other areas of the balcony not exposed by demolition.

These areas I believe need to be similarly considered.”

1. Mr Griffiths concludes at p 6 of his report:

“To correct the problem, I believe the parapets will have to be adequately waterproofed over the tops and down the back to extend over the upstanding floor membrane which should extend at least 100 mm above the finished level of the floor tiles in every location.

Using this as a basis, I have compiled a quick estimate of probable cost to perform such work and I believe an approximate expenditure of $14,563.63 would be expected.”

1. This is obviously where the quantification of the claim to the Tribunal came from in the first place.  It is plainly premised on remedial work which is well outside the scope of the work that was originally quoted for by the appellant.

1. It was at this stage that the parties entered into a mediation agreement on 18 September 2001.  That handwritten agreement is Ex B to the affidavit of the appellant filed 9 May 2002.  The relevant portions of the agreement would seem to be:

“The respondent to carry out all necessary work to test and rectify the leak.
All consequential damage resulting from the testing procedure to be rectified by the respondent.
The respondent to rectify all previous attempts to work undertaken to locate the leak.
The respondent to engage the services of the Queensland Master Builders Association.  If the respondent is unable to locate the leak and to use their services to assist in the location of the penetration a further two weeks from 8 October to 19 October to be allocated to the “outside consultant” who is to be provided by the respondent to carry out and repair the fault.
The respondent on completion of the rectification work to provide a guarantee of the completed works to the applicant.
If a leak cannot be located during the timeframe given the respondent is to notify the applicant’s solicitor, N R Barbi.”

1. The appellant returned to the site and extended the EMER-CLAD waterproofing membrane from 100 mm to 150 mm on to the surrounding walls of the roof deck of the property.  He conducted flood tests of the area which revealed that there was no leak coming from the work which he had performed.  He informed Mr Di Lioni of this fact and in effect refused to take further action.

1. It was at this stage that the matter was returned to the Tribunal before member McVeigh and on 14 January 2002 she issued her decision in favour of Mr Di Lioni to the effect that to rectify the leak Mr Robertiello had to undertake certain work including waterproofing to the top and back of the parapet wall.  It is against this order that the current appeal is made.  The submission of the appellant is that the order goes well beyond the scope of the original contract or of the mediation agreement and therefore beyond the powers of the Tribunal Member to order.

1. The case of the respondents to the appeal suffered a number of setbacks.  The evidence of Mr Di Lioni that the parapets have not been rendered or tiled at the time of the waterproofing to the balcony was discredited.  Confronted with the photographs he was compelled to admit that this was not so.  The suggestion that the appellant had failed in his task as a waterproofer because he did not waterproof the parapets became untenable when it was shown that the parapets were already in a finished state.

1. There was also the unchallenged affidavit of Andrew Golle filed 13 June 2002.  Mr Golle’s inspection occurred after the performance of the rectification work by the appellant.  Mr Golle conducted a flood test of the entire floor area of the deck over a five hour period which had the result that no leaks were detected through the main deck or other drainage pipes.  He makes some reference to a membrane leak but it is not clear what he is referring to.  It would be fair to say that the principal thrust of his report relates to penetration through the walls and capping tiles which were not waterproofed.

1. However, the most crushing blow came from Mr Monteiro who was called on behalf of the respondents.  While he asserted that his letter of 9 April 1995 to Mr Di Lioni was given to the appellant – something which I have rejected – he said on several occasions that the waterproofing of the parapet walls was a matter to be negotiated between the building owner and the applicator.  It is clear on the evidence that the owner made no such request.  Nor did Mr Monteiro during any of his on-site visits.

1. The result was that Mr Barbi in his submissions abandoned the contention saying at p 138 of the transcript:

“… my learned friend seemed to suggest that the whole thrust of the respondent’s case is that the membrane has, in fact, to be taken up the wall, over the wall and down the back, it is not.  That suggestion is not the case for the respondent.  Nor is it sought to expand in any way the ambit of the obligations under the contract.”

1. That was not what Mr Barbi said to Ms McVeigh in closing his submissions on 10 January 2002:

“… We simply rely on the question that there hasn’t been compliance with the specification.  The – the nut of it is, in the submission, this: that if in fact the water is entering through some other area other than the membrane, the difficulty that Mr Robertiello has is that he didn’t complete the specifications in the first instance, so that the probability of entry through there, as suggested by Mr Griffiths, is the more acceptable reason, and the submissions are that that should have been done on the first instance and its more likely the result of the water entry.”

1. This led the Tribunal member into making orders for the performance of work to remedy defects which lay outside the scope of the original contract and for which the appellant here could not be held responsible.  I adopt, with respect, what was said by Judge Forde in his unreported decision of 20 June 2002 in finding a prima facie error in the determination of the member:

“The mediation required the applicant to rectify the work done.  The order of the member set new parameters for the contract.  Although the member is entitled to make consequential orders under s 125(5), it seems to be a hybrid arrangement to hear new evidence and then to re-write the original contract and order rectification over and above what was agreed to at the mediation.”

1. There was an attempt made on behalf of the respondents to advance a different case based on some evidence given by Mr Monteiro.  This also was based upon the so-called “specifications” which I have found were not shown to the appellant at the time of the original work.  Mr Barbi in re-examination of Mr Monteiro referred to the letter of 9 April 1995:

“… where it says the sheeting membrane must be taken up 150 mm on to the surrounding parapet walls, later the top edge should be flashed over with EMER-CLAD and polyester bandage?-- that’s right.  Is that what you were talking about?-- that’s right sir.”

1. This procedure is not referred to in the mediation agreement.  The substantive provisions of that agreement were satisfied when the appellant returned to the site, extended the waterproof membrane to 150 mm above the deck surface and water tested the whole area to establish that there was no leak coming from the work that he had contracted to perform.

1. The appeal will be allowed and the decision of the Tribunal member dated 14 January 2002 set aside.  The respondents are to pay the appellant’s costs of and incidental to the appeal including reserved costs.