Ronkko v T&T Corporation Pty Ltd t/as Townsend Building Services - [2015] QCAT 256

CITATION:

Ronkko v T&T Corporation Pty Ltd t/as Townsend Building Services [2015] QCAT 256

PARTIES:	Merja Kyllikki Ronkko and Tarmo Kalevi Ronkko
(Applicant)
v
T & T Corporation Pty Ltd t/as Townsend Building Services (Respondent)
APPLICATION NUMBER:	BDL122-14

MATTER TYPE:

Building matters

HEARING DATE:

10 March 2015

HEARD AT:

Cairns

DECISION OF:

Member Favell

DELIVERED ON:

29 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

Application dismissed.

CATCHWORDS:

Building matters – where builder contracted to replace a floating floor – where builder contracted to replace louvres – whether floor or louvres were defective – terms of contract

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Merja Ronkko and Tarmo Ronkko

RESPONDENT:

Brendon Taylor (General Manager) and Peter Pittard (Operations Manager)

REASONS FOR DECISION

In 2011 cyclone Yasi caused damage to the property owned by Mr and Mrs Ronkko at 17 Marine Parade Cardwell.
On or about 6 July 2011 the Ronkko’s and T &T Corporation Pty Ltd signed a schedule for major works contract for domestic building work.[1] The description of the works in the schedule referred to a scope of works.[2] The contract amount was $205,531.34. There were variations said to be to the value of $36,138.41.
[1] Exhibit 1.
[2] Exhibit 2.
The application made to the tribunal in Part B sets out the total payments made as $241,669.75. The Ronkko’s say that an insurance company covering the damage to their property because of the cyclone paid the respondent without them signing off on the work.
They are unhappy with work carried out on external louvres and a floating floor. They seek orders from the tribunal that the external louvres be replaced to the standard that they had been previously and that the floating floor be replaced to manufacturer’s specifications and with appropriate expansion gaps.
The scope of works as part of “external works” contained the following: “remove, dispose of and replace 2 aluminium louvre sunscreens to bedroom windows to the south side”.
As part of “internal works” the scope contained the following under the sub-heading lounge/dining room: “clean concrete floor and finish with prefinished floating timber floor to equal original (and as currently laid to first floor level)”.
The Ronkko’s had external adjustable horizontal louvres custom made to their specifications in 2006 by Spina Glass and Aluminium. Those louvres were designed in such a way that there was a closed top and the louvres were much wider than usual leaving only a 10mm gap between the louvres. They say that was done so that in normal rainfall they could keep the windows slightly open to aid the function of the CardiffAIR system. Their complaint about the current louvres is that they are not to the same design and are much shorter so that rain comes in from the sides and because there is a huge gap over the top, rain comes in from the top as well. They say that they are not able to keep the windows open in any rainfall as they did before because the rain now comes inside. They say that because they are unable to keep the louvres open the cardiffAIR is unable to do its job properly and therefore the louvres are of no use to them and therefore defective.
In so far as their complaint about the floating timber floor is concerned they complained that they were having excessive loud creaking/crackling with the floating timber floor when they returned home in June 2012. They contend that it is apparent after they removed the skirting that there is an insufficient gap supplied by the builder. They say the requirements of a gap for laying a floating floor is 10mm to 12mm.
The Ronkko’s complained to the Queensland Building and Construction Commission who provided an inspection report showing what the Ronkko contend are irregularities. QBCC initially saw the irregularities as a category 1 defect as there was no gap in some areas and some had less than what was required. QBCC then decided to overturn that decision an advise the Ronkko’s that the floor was good enough as it was.
The Ronkkos then applied to QCAT to review that decision. According to the Ronkko’s a compulsory conference was had and the QBCC stated that the floating timber floor was not considered to be building work and therefore they would not issue a decision to rectify to the respondent.
The Ronkko’s contend that they have a floor that was not supplied to the manufacturer’s requirements and because of that they say it is defective.
In a report from the QBCC the issue concerning the external blinds was said to be a contractual issue rather than a defect.
In so far as the louvres are concerned the respondent contends that the louvres were replaced pursuant to the scope of works and there is no evidence to substantiate the Ronkko claims that specialised dimensions were advised prior to the purchase and installation of the louvres.
In so far as the floating timber floor is concerned the respondents contend that the specification for it was agreed by the owners to be readyfloor 3strip kempas. That engineered hard wood flooring was ordered and supplied by Andersons having been sourced through Premium Floors Australia.
The respondent says that readyfloor is a floating timber floor where the edges of each board adjoin to each other using a glue-less join system and are not fixed to the sub floor. They say that it is not uncommon for some timber floors to have some degree of creaking or crackling which may due to unevenness in the substrate or movement in the subfloor. Inadequate perimeter expansion gaps do not contribute to that occurrence.
To address the allegation of insufficient perimeter expansion gaps the respondent points to an acknowledgement by QBCC that there are no defects in the floor caused by a lack of expansion gaps. They say there is no evidence of cupping, lifting or swelling approximately 18 months after installation. They say that the manufacturer of the floor Premium Floors Australia provided a comment that confirms that once the floor has achieved equilibrium the seasonal movement is quite incremental and only requires small gaps to accommodate expansion.
So far as any complaint about material thickness is concerned the respondent says that prior to the work being carried out the Ronkko’s advised John Diplock by email dated 27 July 2011 that a timber layer thickness of 3 to 4mm was acceptable. It points out that the literature relating to the readyfloor kempas 3strip flooring nominates a top layer thickness of 3.5mm. That was the flooring which was supplied and installed. It points to a statement by from the technical and product manager for Premium Floors Australia, Kendall Walker which indicates the top layer thickness is nominal only and that a thickness will vary between a 3mm and 4mm range with occasional boards falling outside that. He stated the natural variation does not impinge on the flooring quality or the stated warranties.
The respondents submit that there is no evidence that justifies an order that the floating floors throughout the residence be replaced.
Lucas Black was the director of Litton Constructions at the relevant time. They were carrying out some of the construction work until they elected not to continue with the building repairs because of constant intervention by the Ronkko’s. He has provided a statutory declaration[3] in which he acknowledged that after the new louvres were installed he received an email from Mr Ronkko complaining that the new louvres were too narrow. He says that there was nothing in the instructions or the scope of works which required anything other than what was provided.
[3] Exhibit 10.
John Diplock was a project supervisor in respect of the reconstruction of 17 Marine Parade Cardwell. He was present at an onsite meeting where the replacement of the awning was discussed with the Ronkkos and when they advised Luke Black of the manufacturer of the original awning and the colour. He says that at no time was there any indication of specific dimensions required.[4]
[4] Exhibit 11.
Drew Iverach the owner of DMI Flooring attended and installed the flooring at 17 Marine Parade, Cardwell. He says that at the time of the installation the required expansion gap around all surrounding walls was in accordance with the installation instructions and a 11mm spacer was used to control the gap between the Gyprock and floor edging. There is no evidence of any fault in the workmanship and if there have been then the floor would have lifted or popped due to the pressure of over expansion. He says that has not occurred and provides photographs of the flooring.[5]
[5] Exhibit 16.
The Ronkko’s say that they briefed Luke Black from Littons regarding the external louvres in detail and advised him of their purpose for the external louvres, the colour and the previous supplier was Spina Glass and Aluminium. There is no documentation provided to support that contention. They say that Littons had the relevant paperwork which they suspect has been lost.
I note the history of complaints made by the applicants including complaints to the Financial Ombudsman Service. Part of their complaints were that some items has not been replaced “like for like”. Much of their complaint was about HBA Insurance and the loss adjusters. They were concerned that they were not getting what they were insured for.
Part of the difficulty faced by the applicants is that their claim against the respondent is not based on what the insurance policy covered but rather the contractual arrangement with the builder. They want their external louvres the same as they had before the cyclone. That may well be so however, the question is whether that was provided for in the contractual arrangements.
The applicant’s contend that they requested the floating timber floor to be Kempas and for it to be 3 strip low sheen with a Kempas timber top layer of no less than 3.5mm. They say that on an occasion when Ben Cambell Building was rectifying some items including the removal of white paint on exposed rafters in the lounge/dining area workman scratched the floor by accident and needed to relay the floor just in front of the sliding door. They say that when the skirting was removed it showed that there was not enough expansion gap. They then worried over what was on their floor and why they hadn’t been given a manufacture’s guarantee/warranty. They started to investigate the actual sample they had and made measurements on the floor sample. Despite their investigations they say that there is no definite statement that the product used on the floor is readyfloor 3 strip. They question whether the manufacturer has made misleading statements. They say that the respondent has a responsibility to give them 3.5mm Kampas top layer as that was part of the brief. They complain that the floor has not been laid to manufacturer’s standards because it is “less than a 14mm gap” required in areas of higher relative humidity.
The Ronkko’s have provided a joint statutory declaration[6] in which they declare that when the brief for the replacement of the external adjustable louvre awnings on their 2 guest bedroom windows was taken the only person who asked them to give a brief and who they gave a brief to was Luke Black from Littons Constructions. They said that John Diplock was not standing with them when the briefing took place. They say that Luke Black had a note book in which he was taking details and he was told that the louvres were there for the cardiffAIR system so that they can have the windows slightly open and keep the rain away and not for shade reasons. Luke Black was briefed with the colour and the fact that the Spina Glass and Aluminium had previously done the louvres. They say he was also told that the previous louvres had a closed top section and that they were wider than usual leaving a small gap between 2 louvres and that they were almost touching.
[6] Exhibit 3.
The respondent contends that the external louvred blinds had not been custom made and replaced because they were not advised it was a specification that they were to be longer. Therefore they were custom made to a standard size.
In an email from Mr Ronkko to John Diplock of the 20 July 2011[7] Mr Ronkko identifies 3 sources of the Kampas 3 strip floating timber floor and notes that “the timber layer and the top surfaces floor 4mm thick and not laminate”.
[7] Exhibit 8.
In a reply email Mr Diplock advised Mr Ronkko that the order is not the same thickness as the old flooring because the old flooring was no longer made. Mr Ronkko replied on 27 July 2011 providing two suppliers and noting that he had been told that the 3 strip and the 1 strip had 3mm Kampas timber layer.
On 1 November 2014 Ross Pattin from Anrass Pty Ltd reported on the thickness of the timber floating floor at 2 locations at 17 Marine Parade Cardwell. The first location was at the entrance foyer and the second was upstairs third bedroom. The first measurement indicated a thickness of 2.6mm – 2.7mm and the second thickness of 2.7mm – 2.8mm. Both of measurements were found in both locations.[8]
[8] Exhibit 5.
I note in part of the quick step readyfloor multi fit installation instructions[9] the general note: “an expansion gap left to the entire perimeter of the floor to allow for initial and seasonal expansion. …an uneven sub floor may lead to movement of the flooring under foot and within the joining system resulting in excessive noise which often sounds like crackling or creaking.” Under the heading “focus points” there appears the following: “because room humidity can vary – for example between summer and winter – it is vital that the floor can expand and contract. That is why you must leave an expansion joint on all sides of the floor of a minimum 10-15mm…a 14mm is required in areas of higher relative humidity like Queensland or Darwin. Remember that readyfloor may expand up to 3mm per lineal meter in the width. As such the wider the floor and the higher the humidity the larger the permitter gap should be.”
[9] Exhibit 6.
In a report of 5 September 2013 Mr Vosper of the BSA[10] said: “the review determined that the floating timber installed in the dwelling is not defective for the following reasons:
·there is not visual defect evident to the flooring system caused by lack of expansion gap;
· the floor has been performing with no defects for the past 18 months;
·the 6mm expansion gap in lieu of 10 mm expansions gap has most likely resulted from floor growth which is a typical characteristic of this flooring system.”
[10] Exhibit 15.
I note from the 2014/2015 readyfloor brochure for quickstep timber the statement “our engineered planks have a nominal 4mm top layer making quickstep timber as re-sandable as most traditional solid wood floors. I also note the real warranties which is said to be provided as a lifetime warranty.
The evidence does not lead to a conclusion that either the floor or the louvres are defective. With respect to the floor I am satisfied that appropriate flooring was provided and laid with an appropriate expansion gap.
There is no proven defect in the floor. There is no buckling or popping as would be expected over the period since when the floor was laid. I accept that the floor was performed as it was designed, that is, it has expanded and in doing so decreased the observable gap. The application concerning the floor is dismissed.
With respect to the complaint about the louvre, I find that the respondent has provided what he contracted to provide. I find that it was not a term of the contract with respect to the louvre work that any custom louvre be provided. It may be that the Ronkkos thought they would get a custom design as they had previously, but I am not satisfied that it was a term of the contract with the builder that such a custom design would be installed.
It may be that the louvre does not assist the operation of the cardiffAIR system during rain but that does not mean the louvre installed by the builder was defective.
Because of the finding that the builder has supplied what he contracted to supply and because there is no evidence to suggest the louvre is defective instead of being of a different design to that the Ronkkos thought they were going to get, the application concerning the louvre is dismissed.
The order is, the application is dismissed.