Sambrooks v Kammerlocher - [2012] QCAT 624

CITATION:

Sambrooks v Kammerlocher [2012] QCAT 624

PARTIES:	Ricki Shane Sambrooks
v
Alexander Kammerlocher t/as Render Meister

APPLICATION NUMBER:

BDL312-11

MATTER TYPE:

Building matters

HEARING DATE:

26 June 2012

HEARD AT:

Brisbane

DECISION OF:

Roxanne Clifford, Member

DELIVERED ON:

10 July 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Alexander Kammerlocher t/as Render Meister[1] pay Ricki Shane Sambrooks the sum of $1,041.80 by 31 July 2012.

[1]The name of the respondent amended from RenderMeister Pty Ltd to Alexander Kammerlocher t/as Render Meister by order of the Tribunal on 28 November 2012.

CATCHWORDS:

BUILDING DISPUTE – whether discolouration and scratches damage to clay pavers caused by contractor during clean-up following render work

Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Self
RESPONDENT:	Alexander Kammerlocher (Director) on behalf of Company

REASONS FOR DECISION

Background

Ricki Sambrooks owns a property in Macadamia Street, Victoria Point that is for sale.
Prior to sale Mr Sambrooks sought to undertake various renovations to prepare the property for sale, including having the property rendered.
In May 2010 Alexander Kammerlocher t/as Render Meister commenced the work for an agreed quotation price of $19,800.00.[2]
[2] Exhibit 2 attachment 14 Quotation dated 21 November 2009.
Mr Sambrooks states despite being advised the work would take around four to five weeks to complete the work was not completed until around October 2010.
Mr Sambrooks also states the job was very messy and render material was spread everywhere and in particular on the back patio pavers.
Mr Sambrooks claims following the clean-up process he immediately noticed that some of the pavers had been scratched and a month later noticed discolouration of the pavers.
Mr Sambrooks claims he was unable to achieve resolution with Alexander Kammerlocher t/as Render Meister about these issues so he withheld payment of monies owing totalling ($14,800.00).
Alexander Kammerlocher t/as Render Meister sought adjudication under the Building and Construction Industry Payments Act 2004 for payment and was successful in that claim.[3]
[3] Exhibit 2 attachment – Adjudication Application No 1057877_1891.
On 14 October 2011 Mr Sambrooks made an application to the Tribunal seeking an award for damages of $7,418.00 for the cost of removing and replacing the discoloured and scratched pavers and $300.00 for the cost to repaint damage to paint work on the stairs and handrail, downpipes and cornice.
Alexander Kammerlocher t/as Render Meister responded to the application on 28 November 2011 denying the claim and seeking an order that the matter be dismissed.

Legislation

The Tribunal is satisfied that the matter is properly characterised as a domestic building dispute and the Tribunal has the authority to hear and determine the matter pursuant to section 77 of the Queensland Building Services Authority Act 1991.

Evidence – applicant

Mr Sambrooks states[4] the pavers along the back of the house were damaged beyond repair after clean-up. Mr Sambrooks opined that cleaning with a high concentrate of acid cleaner caused the discolouration and the scratches was caused by heavy machinery.
[4] Exhibit 2 Statement of Ricki Sambrooks dated 28 March 2012.
Mr Sambrooks states his opinion is in keeping with the opinion of Raymond King of King Pavers[5] and Tony Jones, Distributor Representative for Claypave Pty Ltd[6].
[5] Exhibit 3 – Letter of Raymond King undated.
[6] Exhibit 5 – Email letter of Tony Jones 25 March 2012.
At hearing Mr Sambrooks testified he did not see Mr Kammerlocher use hydrochloric acid and that there was a strong citrus smell when he returned after the clean-up.
Mr Sambrooks conceded that the discolouration appears spasmodic and that pavers look okay at the moment.
Mr Sambrooks testified he did not believe the photograph of the cleaning machine provided by Mr Kammerlocher was the one used for the clean-up and stated the one he used was a steel blue one.
Mr King, who laid the original pavers, opined it appeared that a hydrochloric acid solution of a high concentrate had been exposed to the surface of the pavers and as a consequence a permanent rust-like appearance exists on the pavers. Mr King also opined that after the acid was applied it appears there has been an attempt to clean the pavers with an excessively high-pressure water cleaner causing abrasive marks.
At hearing Mr King confirmed he had only ever seen discolouration when hydrochloric acid had been used and he confirmed his view that the scratches appeared to be from water coming out of the cleaner held too close to the pavers.
Tony Jones of Claypave, the company that produces the pavers, stated he visited the property and on inspection found that the pavers were showing signs of “Acid Burn”. Mr Jones explained this happens when clay pavers have been washed with a too strong acid solution or the correct process hasn’t been followed (pre-wetting and the application of neutraliser, bicarbonate or soda solution left on the pavers) that causes a reaction to the ferric iron in the pavers and leads to discolouration.
Mr Jones opined the steel skids of the cleaning machine might have caused the scratches.
At hearing Mr Jones confirmed he had only seen discolouration when acid was used. Mr Jones advised the discolouration could be treated with a product called Rid-Rust followed by the application of a neutraliser, but it was best if used early. Mr Jones advised if the Rid-Rust treatment was successful discolouration should not reappear.
Mr Jones also confirmed he wasn’t sure what caused the scratches but opined they could be caused from either the cleaning machine being dragged over the pavers or a high-pressure cleaner held too close to the surface of the paver.
Mr Sambrooks states the pavers were relatively new, installed in September 2008, and he provides a photograph[7] of the pool surrounds to demonstrate the condition of the pavers and photographs depicting the scratches and discolouration[8].
[7] Exhibit 2 attachment 11 (undated photograph of pool surrounds).
[8] Exhibit 2 – attachments 1, 2 and 5. Photographs undated.
Ms Rikki Sambrooks[9] and Adam Metcalfe[10] provided statements that they lived in the house at the beginning of the rendering process in May-June 2010 and that it was a very messy and unprofessional job. Both stated the pavers were perfect prior to the work commencing. Both stated they moved interstate to Victoria around July 2010 and when they returned in July 2011 the pavers were scratched and discoloured.
[9] Exhibit 6 – Statement from Rikki Sambrooks dated 28 March 2012.
[10] Exhibit 4 – Statement of Adam Metcalfe dated 27 March 2012.
At hearing Mr Metcalfe stated he last visited the property in February 2012 and opined that pavers looked worse than in July 2011.
At hearing Ms Sambrooks stated she last visited the property in February 2012 and opined the pavers did not look any different from July 2011.
Mr Sambrooks also claims that there was damage to the paint on the stairs, handrail, cornice and downpipes[11] and he seeks $300.00 compensation for repainting work.

Evidence – respondent

[11] Exhibit 2 – attachments 7, 8, 9 and 10 photographs undated.

Alexander Kammerlocher t/as Render Meister denies it caused damage to the pavers and submits it undertook the work in a workman like manner.[12]
[12] Exhibit 7 – response received 28 November 2011.
Alexander Kammerlocher t/as Render Meister states all allegations raised by Mr Sambrooks and his family have only surfaced since he sought to claim the money owing for the work.
Alexander Kammerlocher t/as Render Meister stated and testified that at no time did he use hydrochloric acid and that it is not his practice to ever use acid.[13] Mr Kammerlocher states Mr Sambrooks was in attendance when he commenced the clean-up.
[13] Exhibit 8 – Statement of Alexander Kammerlocher dated 25 April 2012.
Mr Kammerlocher states he did use Orange Peel cleaner[14] to clean the window frames.
[14]Exhibit 10 – Rapid Clean Orange Squeeze product information sheet. Mr Kammerlocher obtained this information sheet on the day of the hearing and stated it is not the exact product he uses but the ingredients look very similar.
Mr Kammerlocher confirmed he used a high-pressure cleaner filled with tap water. Mr Kammerlocher testified that the only high-pressure water cleaner he owns has rubber wheels and rubber stoppers on the metal rests. Mr Kammerlocher provided a photograph of the cleaning machine to support this claim.[15]
[15] Exhibit 9 – Statement of Roger Shearer undated received 15 May 2012 attachment 1.
Mr Kammerlocher also provided recent photographs[16] of the pool area to demonstrate that the colour of the pavers never had a uniform appearance as suggested by Mr Sambrooks’ photograph of the pool area.
[16] Exhibit 8 attachment photographs 11.1 and 11.2 cf 11.
Furthermore Mr Kammerlocher opined that the photographs provided by Mr Sambrooks looked like they were taken prior to the clean-up because they still had remnants of render material on the pavers.
Mr Kammerlocher claims that the pavers are no longer discoloured and provides further photographs[17] to demonstrate the pavers look similar to current pool area photographs[18] an area that is not subject to the dispute.
[17] Exhibit 8 attachment photographs 5.1, 5.2, 5.3 and 5.4.
[18] Exhibit 8 attachment photographs 11.1 and 11.2.
Roger Shearer, a marketing consultant of Quickwall Render, provided a statement[19] and noted he inspected the property on 24 April 2012. Mr Shearer opined that the 8-10 small scratches on the pavers, covering around a 2 square metre area, could have been caused by a portable BBQ with metal legs, or a scraper and not the action of water under high-pressure.

Conclusion

[19] Exhibit 9.

There is in essence no dispute that there was rendering material splattered over various parts of the property following the work undertaken by Alexander Kammerlocher t/as Render Meister. The question for the Tribunal is whether Alexander Kammerlocher t/as Render Meister damaged the property, in particular the pavers, during the clean-up following the work.
Based on the photographs provided by the parties it appears there was some discolouration to the tiles at some stage, however, the more recent photographs show the patio area looks to be similar in colour and condition to the recent photographs of the pool area, an area unaffected by discolouration. Mr Sambrooks conceded the pavers currently look okay.
The cause of the earlier discolouration, which appeared around a month after the clean-up, is unclear. The Tribunal has heard discolouration of pavers can occur if clay pavers are cleaned with too strong a concentrate of hydrochloric acid. Mr Kammerlocher denied he used acid during the clean-up but advised he used Orange Peel cleaner to clean the windows. Mr King and Mr Jones stated they have only experienced discolouration of pavers when acid is used. Mr Sambrooks stated he did not see Mr Kammerlocher use acid and he described a citrus smell on return to the property following the clean-up. Mr King opined the discolouration was permanent whereas Mr Jones opined it could be treated.
The Tribunal found no reason to doubt Mr Kammerlocher’s testimony that he did not use acid for the clean-up, and that apart from Orange Peel cleaner for the windows, he only used tap water in a high-pressure cleaner. Mr Sambrooks described only citrus smell on his return to the property. There was no claim or evidence that the Orange Peel cleaner, which could potentially have been washed off onto the pavers, caused any of the discolouration.
Whilst the Tribunal accepts that some discolouration of the pavers occurred sometime after the clean-up the Tribunal has not been persuaded that Alexander Kammerlocher t/as Render Meister caused the discolouration of the pavers, a discolouration that has apparently resolved without any treatment.
Accordingly the Tribunal is satisfied that this part of Mr Sambrooks’ claim for damages must fail.
Mr Sambrooks stated he noticed the scratches on his return to the property after the clean-up. Mr Sambrooks stated he contacted Mr Kammerlocher who attended the property shortly after but the issue was not resolved.
The Tribunal heard from both Mr Jones and Mr King that the scratches could have occurred because a high-pressure cleaner was held too close to the pavers causing abrasion. Alternatively Mr Jones opined, the metal skids of the cleaning machine could have caused the scratches. Mr Kammerlocher provided a photograph of his only high-pressure cleaning machine to demonstrate it hast rubber stoppers on the rests and not metal skids. Whilst Mr Sambrooks disputed the machine in the photograph was not the same one used in the clean-up, which he as steel blue in colour, the Tribunal is satisfied the machine in the photograph although somewhat worn is steel blue in colour and is satisfied as testified by Mr Kammerlocher his only high-pressure cleaner.
Mr Kammerlocher claims he did not scratch the pavers and suggested as they were in the same line and adjacent to each other something was dragged over them. Mr Shearer opined the scratches looked as if they had been caused by something mechanical and not from a high-pressure cleaner.
The Tribunal is satisfied based on the evidence of Mr Jones, Mr King and Mr Shearer that the scratch-like appearances could have been caused either by mechanical means or by high-pressure cleaning.
Given Alexander Kammerlocher's t/as Render Meister cleaning machine had rubber stops on its rests the Tribunal is not persuaded this machine caused the scratches. However, the Tribunal is not persuaded that something else mechanical caused the scratches.
The pavers were relatively new. Ms Sambrooks and Mr Metcalfe described them as perfect prior to the rendering process. Importantly, Mr Sambrooks claims he noticed the scratches as soon as he returned to the property after the clean-up and contacted Mr Kammerlocher about them. Mr Kammerlocher did not specifically dispute this claim. This issue was part of the reason Mr Sambrooks, albeit erroneously, withheld payment for the works. Although Mr Shearer, a marketing consultant for a render company, opined the scratches likely to have been caused by something mechanical rather a high-pressure water cleaner, the Tribunal prefers the evidence of Mr Jones and Mr King, both who have worked in the paving industry for a number of years, and both testified that holding a high-pressure cleaner too close to the pavers could damage the pavers. In all the circumstances the Tribunal is satisfied it is more likely than not that the scratch-like appearances occurred during the high-pressure water cleaning process.
The Tribunal notes the scratches are described to be contained to a small area out the back. Although Mr Shearer suggests the scratches cover a 2 square metre area. At hearing Mr Sambrooks suggested the scratches cover a greater area. Mr Sambrooks’ quotation for supply, removal and installation of new pavers was for an area of 56 square metres at a cost of $7,418.00. Without further evidence to determine the size of the area affected by the scratches the Tribunal considers it reasonable to allow 10% of quoted costs, representing around 5.6 square metres, as this would provide an allowance for any continuity or uniformity issues that could arise with a partial repair.
Accordingly, the Tribunal Orders that Alexander Kammerlocher t/as Render Meister pays Ricki Sambrooks the sum of $741.80 (seven hundred and forty one dollars and eighty cents) for the scratch-like damage to the pavers.
Mr Sambrooks claims $300.00 for the costs of repainting the damage to the paintwork on the stairs, handrail, downpipes and cornice although did not supply any receipts for in relation to the claim for costs. However, Mr Sambrooks provided photographs indicating that repainting work was required. Mr Kammerlocher claims he was not given the opportunity to rectify these small defects. The Tribunal is satisfied given the passage of time and that Mr Sambrooks states he has undertaken the repainting the Tribunal is satisfied the costs of $300.00 is reasonable in all the circumstances.
Accordingly, the Tribunal Orders that Alexander Kammerlocher t/as Render Meister pays Ricki Sambrooks the sum of $300.00 (three hundred dollars) for paintwork damage to the stairs, handrail, downpipes and cornice.
Mr Sambrooks sought an order that interest be paid on the award for damages. Although the Tribunal may award damages along with interest, the Tribunal notes the work was undertaken pursuant to a quotation. There was no contract or agreement. Alexander Kammerlocher t/as Render Meister did not receive its payment for the work until nearly 12 months after it completed the work. In the circumstances the Tribunal is not convinced the addition of interest on the award damages is appropriate and therefore dismisses this part of the claim.