Scomparin v Sekisui House Services (Qld) Pty Ltd

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Scomparin v Sekisui House Services (Qld) Pty Ltd [2018] QCAT 426

PARTIES:

JOHN SCOMPARIN
and
CAROLYN SCOMPARIN
(applicants)

v

SEKISUI HOUSE SERVICES (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

BDL141-17

MATTER TYPE:

Building matters

DELIVERED ON:

24 October 2018

HEARING DATE:

17 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

Application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where contract contained extended 25 year warranty described as a guarantee – interpretation of term structural failure of structural timber - whether breach of warranty – where homeowner added additional load to roof – whether timber trusses failed – whether timber trusses were designed to support additional load

Building and Construction Legislation (Non-conforming Building Products-Chain of Responsibility and Other Matters) Amendment Act 2017 (Qld)
Queensland Building and Construction Commission Act 1991 (Qld)

Clarke v Mariotis [2009] VSC 279
Dunne v Dwyer Quality Homes [2017] QCAT 262

Hampson v Clyne (1967) 86 WN (NSW) 321

Oscar Chess Ltd v Williams [1957] 1 WLR 370

Sterling Estates Development Corporation Pty Limited v Malouf & Anor [2003] NSWCA 278

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S McCarthy, instructed by Mills Oakley Lawyers

REASONS FOR DECISION

1. The applicants, John and Carolyn Scomparin, who, for ease of reference, I will refer to hereafter as the ‘Scomparins’ engaged A V Jennings Ltd to build their home at
   6 Sittella Court, Noosa. The house constructed was of a single level brick veneer construction on a concrete raft slab. The roof structure consisted of concrete tiles supported by 12 metre timber roof trusses at 600mm centers. The ceilings and walls were plasterboard cladding.

2. In late 2014, the Scomparins noticed the deterioration in the plasterwork around the centre of the house including cornices which were cracking. They sought the advice of some builders about fixing the plaster and were advised that the cause of the cracking was that timber trusses supporting the roof were collapsing.

3. In 2010, the respondent, Sekisui House Services (Qld) Pty Ltd (’Sekisui’) assumed all relevant obligations of A V Jennings Ltd. On completion of the home A V Jennings Ltd provided the Scomparins with a 25 year Structural Guarantee (‘Guarantee’). Sekisui assumed A V Jennings Ltd’s obligations under that Guarantee.

4. The Scomparins now claim under the Guarantee as they allege that their ceiling problems arose from a structural failure of a number of the trusses that support the roof.

5. Sekisui assert that the cracked ceilings and cornice damage are not due to structural timber failure within the meaning of the Guarantee but are due to the natural downward deflection of the trusses due to the imposition of plant and equipment weighing 600 kg, which was installed on the roof during the period between 2011 and 2014. The equipment comprised a hot water system, air conditioner and solar panels.

6. There are two subsidiary issues. The first is a claim in negligence. The second is a claim under s 74AG…