Scott v Maycock
[2010] QCAT 499
•11 October 2010
CITATION: Scott v Maycock [2010] QCAT 499
PARTIES: Graham Scott v Mark Maycock trading as M & S Maycock
APPLICATION NUMBER: BD321-06
MATTER TYPE: Building matters
HEARING DATE: 1, 2 and 3 February 2010 and 8, 9 and 15 April 2010
HEARD AT: Brisbane
DECISION OF: M Howard Member
DELIVERED ON: 11 October 2010
DELIVERED AT:
ORDERS MADE:
1. That the respondent pay to the applicant the sum of $33,357 by 19 November 2010.
2. That the applicant file and serve submissions in relation to costs by 8 November 2010.
3. That the respondent file and serve submissions in relation to costs by 29 November 2010.
4. That the issue of costs be determined on the papers.
CATCHWORDS : Building contract dispute- where Homeowner had excavated and extended house - where inadequate pole embedment APPEARANCES and REPRESENTATION (if any):
APPLICANT: Mr M Pope of Counsel for the Applicant
RESPONDENT: Mr A Collins of Counsel for the Respondent
REASONS FOR DECISION
Part A: The Background
The Application
1.This is an unusual and factually complex case involving many allegations of breaches of a building contract which are said to warrant demolition of the house and rebuilding of the house some ten years after construction and handover.
2.In late 1999, the applicant, Mr Scott, (referred to as the applicant, the Homeowner or Mr Scott) approached the respondent about constructing a pole home. Mr Maycock (referred to as the respondent, the Builder or Mr Maycock) showed him concept plans and prepared some specifications embodying a quote. The parties entered into a fixed price contract dated 21 December 1999. The Builder was to construct a pole home for Mr Scott for the consideration of $102,045. Working Drawings dated 27 January 2000 were obtained from Building and Design Services (BDS). Rymark Engineers prepared the soil test report and certain specifications, and subsequently, certified engineering requirements. Construction took place between about March and June 2000. Handover occurred in late June 2000 with all local authority certificates. Since that time, Mr Scott and his family have resided in the home.
3.Over the next few years, Mr Scott made various complaints to Mr Maycock about the house. Some early complaints included separation of the shower tray and ensuite wall and cracked tiles and walls. Other complaints were made about the extent of movement of the house during strong winds; the degree of vibration of the house caused by normal household activities; the verandah swaying; movement of the main pole in the centre of the home which passes through the main living area timber floor causing an uneven gap around it; and the need for repair of bracing under the house. He attributed most of the problems to what he considered was significant movement of the house. He says that the respondent was generally dismissive of his complaints, although he acknowledges that Mr Maycock or his employees attended to some of them. At this stage, Mr Maycock referred the matter to the Queensland Building Services Authority (QBSA), he says he was concerned that the Homeowner was not satisfied irrespective of his actions to address issues. At this stage, Mr Maycock did some rectification works to strengthen a number of bearers and stiffen a number of joists.
4.In 2002, a Taylex Biocycle wastewater system installed by the Builder had to be relocated as it was leaking and appeared to have subsided. The manufacturer, Mr Maycock and Mr Scott contributed to the costs. Although he maintained it was correctly installed, Mr Maycock contributed in order to resolve the issue. He was unaware at the time he agreed, that regular quarterly maintenance to keep the system working may not have been done.
5.Mr Scott subsequently did an owner-builder course. Since 2004, he has made extensions to the house. He built in the sub-floor area, and enclosed a section under the house, which included constructing an open living area, a laundry and bedrooms. In that area, he erected several walls and ‘acropproped.’ He did an amount of excavation to construct the sub-floor. He says that the excavation done was minor. Mr Scott says that in the course of doing the excavation, he discovered that some of the poles supporting the pole home were not embedded to depth in the ground, but were sitting on or close to the surface of the ground. He says that he also discovered at this stage that most of the timber used in the house was undersized.
6.The Homeowner made a complaint to the QBSA. He says that he suspended his extensions on the advice of experts that the house may need to be demolished. To the date of suspending the works, he asserts that he spent about $60,000 for materials and this will be lost if the house is demolished.
7.The QBSA investigated the complaint. Various engineers provided reports at the request of the Builder, the Homeowner and the QBSA. The Builder was advised by QBSA to install bracing as indicated by engineer’s recommendations. Some floor joists displaying excessive bounce were also to be rectified. Mr Maycock agreed to attend to these issues and did attend to some of them, but the Homeowner then refused to allow the Builder back to his premises or undertake further work.
8.In 2006, these proceedings were filed by Mr Scott in the Commercial and Consumer Tribunal (CCT) alleging many breaches of contract for a grossly defective and unstable house and seeking in essence relief by way of demolition and reconstruction of the house, or in the alternative, damages.
9.On 1 December 2009, the CCT ceased to exist and this Tribunal became responsible for dealing with the proceeding.
The Dispute and the Issues for the Tribunal
10.In essence, Mr Scott argues that work was not carried out by Mr Maycock in accordance with the contract and that the house is consequently unstable. Although the application framed alternative remedies, at the hearing, damages were sought to cover the costs of demolition and reconstruction of the house. A small claim was made for damages relating to the amount paid by Mr Scott to relocate and fix the Biocycle. It appeared from the statement of claim that a tortious claim was made in the alternative to breach of contract. However, at hearing the Homeowner’s case was made on the basis of breach of contract.
11.The respondent’s position seems to be that the house was built in accordance with the contract; however, even if the work was in some respects not carried out strictly in accordance with the contract, causation cannot be established, or there are no damages consequent upon the breach/s and /or it is not necessary or reasonable to undertake remedial work of the nature for which damages are sought. The respondent contends that the house is not unstable. In the alternative, the respondent argues that as a result of the intervening events over the last 10 years, including inattention to maintenance issues and especially the excavation and other work done by the applicant, that Mr Scott cannot establish that any internal difficulties are referable to his building work.
The Builder raised an issue of deemed compliance. In essence, the argument seems to be that if contract specifications were not complied with, it was sufficient if recognised building standards or engineer’s specifications were complied with. This, it was argued, respected commercial realities and common building practice. The Homeowner argued that the concept of deemed compliance was unknown in contract law. I accept the applicant’s submission. However, if a breach of contract is established, but the construction is structurally adequate, it may be difficult to establish that damage has been caused by the breach.
12.Regarding the assessment of damages, both parties rely upon the seminal case of Bellgrove v Eldridge[1] (Bellgrove). In Bellgrove, the High Court of Australia held that the prima facie measure of damages in circumstances of breach of contract as a result of substantial departure from building specifications for a house construction, is the amount required to rectify the defects complained of and thereby give the applicant the equivalent of a building on his land which is substantially in accordance with the contract. This general position was qualified, to the effect that the work must not only be required to produce conformity with the contract, it must also be a reasonable course to adopt. The qualifications don’t apply where defective foundations threaten the stability of the house and the threat can only be removed by this course.
[1] [1954] HCA 36; (1954) 90 CLR 613.
13.The course proposed may be unreasonable where, for example, the contract specified second hand bricks but new bricks were used[2] or where cost of the proposed rectification is out of all proportion to the benefit to be obtained.[3] The High Court of Australia has held that the ‘unreasonableness’ is likely to be satisfied only in ‘fairly exceptional circumstances’, and a diminution of value assessment of damages will apply when a party seeks to make an uncovenanted profit.[4] The threat to the stability of the building where footings have not failed may be real without it being grave in the obvious and immediate sense.[5]
[2] Bellgrove v Eldridge [1954] HCA 36 [6]; (1954) 90 CLR 613.
[3] Wheeler v Ecroplot Pty Ltd [2010] NSWCA 61 [81].
[4] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8
[5] Kirkby v Coote [2006] QCA 61 [50] (Keane JA).
14.Counsel did not locate, and nor did I find, authorities in which premises the subject of a building dispute had subsequently been significantly altered by the owner-builder applicant since completion of a contract.
15.In essence, having regard to general contract principles as applied in construction law and the principles set out in Bellgrove, to determine the proceeding the tribunal must consider the following issues:
1. What the contract between the parties required;
2. Whether there were any breaches of the contract in relation to the myriad of issues raised;
3. Whether damage was caused by any breach established;
4. Assessment of any damages, including consideration of
a.whether any breach resulted in instability requiring remedial work for which damages are sought;
b.If a breach did not result in instability, whether it is reasonable or necessary for the remedial work for which damages are sought to be undertaken.
The Evidence
16.Evidence was given for the Homeowner by Mr Scott; his wife, Sarah Jayne Scott; Ken Tregeagle (Tregeagle); and Phillip Hawksley (Hawksley). Mr Scott relied upon expert evidence of Frank Engwirda (Engwirda) and Rod Steley (Steley).
17.Evidence was given for the respondent by Mr Maycock. Expert evidence of James Tayler (Tayler) was relied upon by Mr Maycock.
18.The various engineering reports prepared at the time of the 2004 Queensland Building Services Authority (QBSA) complaint were tendered, although the engineers who authored the reports were not called in the proceedings, namely from Rymark Engineers (requested by the Builder), JC Engineers (requested by the Homeowner), and Jeffrey Hills & Associates Pty Ltd (Jeffrey Hills) (requested by the QBSA). Various other documents from the QBSA file were also tendered.
19.Many photographs and a DVD were tendered. Other documents tendered included documentation from Taylex and correspondence relating to the issues regarding the Taylex system.
20.Evidence is discussed and findings made under broad subject headings. The history as asserted by the parties and findings on key factual issues arising from it are followed by a consideration of the defect issues raised in the expert reports.
21.I did not find the applicant and Sarah Scott, convincing witnesses. The evidence given by the Homeowner was in some respects contradictory on important issues, including the extent of his excavation. Also, he blamed others for issues that had occurred connected with the house, despite his own inattention to maintenance issues. Sarah Scott’s evidence contradicted again the Homeowner’s varied evidence about the extent of his excavations, and in some respects was unhelpful. For example, she referred on numerous occasions to what she would have done, rather than what she actually recalled doing, despite requests from Counsel for her recollections.
22.Credibility of the Applicant was further compromised by inconsistencies in his evidence arising from the late involvement of Tregeagle as a witness. Although Tregeagle had recently been located and asked to give evidence, Mr Scott initially gave evidence that he did not think he had seen Mr Tregeagle when he came to the home to look around before giving his evidence. Later after witnesses were interposed, the Applicant said that he had walked around with Tregeagle.
23.Tregeagle, a builder, plumber and earthmover, was engaged to relocate the biocycle. He was also consulted for advice by Mr Scott over the years regarding his planned extensions, and following the applicant’s discovery that some poles were not embedded to depth.
24.Hawksley, a builder, gave evidence regarding demolition and replacement costs for the house.
25.Mr Maycock made some concessions against his interests. Regarding the issue of embedment of the poles, he steadfastly maintained they had been embedded in accordance with the specifications. However, his explanation of what the specifications required was contrary to the instructions provided to him and expert evidence.
26.Engwirda was deceased at the time of the hearing and so was not able to be cross-examined. However, the tribunal had his report dated 21 August 2006 as part of the evidence. The Engwirda report attaches copies of a substantial volume of documents and photographs. Engwirda’s report numbered the posts and bearers and other components of the construction and this numbering was adopted by the other report writers in their responses and generally in these proceedings.
27.Steley’s report used the Engwirda report as a benchmark and reference to review the issues in dispute adopting the headings and references in the Engwirda report. His report dated 18 March 2008 could not be read without referring to the Engwirda Report. Steley also provided evidence in chief at the hearing.
28.Tayler, an engineer, provided two reports. He also adopted Engwirda’s referencing system to comment upon the findings of Engwirda and Steley. The first report dated 22 May 2008 responds to the Engwirda Report and the second report dated 7 August 2008 responds to the Steley Report, although it also makes some further comments on the Engwirda report. The second appears to have been written without reference to the first and sometimes the response is approached differently. Tayler also provided evidence in chief at the hearing.
29.The engineering reports from Rymark Engineers, JC Engineering and Jeffrey Hills are referred to extensively throughout the expert reports.
30.Overall, Engwirda expresses the opinion that the builder has substantially departed from ‘the contract documents’ and that as a result the site excavation, the footings and timber frame components are defective and the required bracing and tie-downs are either defective or do not exist. He considered a number of the major defects incapable of rectification so that the building complies with the contract specifications unless the building is demolished and reconstructed. To do this, the Homeowners extensions would also require removal and reconstruction. Steley considers the building departs substantially from the contract documents resulting in many building elements failing to comply with good building practice, provisions of the BCA (Building Code of Australia) and relevant standards; BDS design and Rymark Engineers design. He considered that in the circumstances, including the steeply sloping site, the defects, and the form of construction that it is more economical to demolish the building and reconstruct.
31.In summary, Tayler notes the difficulties associated with construction of pole homes. He also refers to the previous involvement of the QBSA and the certification regarding joist, bracing and tie-down by Jeffrey Hills and acceptance of this by QBSA. He understands the major complaint to be with the sub-floor area and suggests that he understands that if necessary restumping could be done. He does not consider re-engineering or reconstructing would be required.
32.During the hearing, Steley was recalled to give evidence about the costs of restumping the house.
33.The Engwirda Report was challenged by the respondent on the basis that Engwirda acted contrary to his duties as an expert and was an advocate for the applicant. On the applicant’s evidence, Engwirda did take on the role of advocate for the applicant in the running of the applicant’s cause, from the time of his involvement, in the QBSA complaint and in these proceedings. Also, as will be seen Engwirda raises a number of unhelpful matters in his report which suggest a loss of objectivity as an expert. For example, he contends that building standards which did not apply should be applied to supplement the applicable standards. Further, he speculates about some issues, such as plumbing and drainage, which he did not inspect. In those circumstances and as Engwirda was unable to be cross-examined, I have placed little weight on his report. I have used it as a reference against which to read and understand the responses in the Steley and Tayler Reports.
34.Both Steley and Tayler were cross-examined at length. I was urged by the applicant to prefer the evidence of the builders Engwirda and Steley about ‘building’ matters and performance of the building contract. I was urged by the respondent to prefer the evidence of Tayler since builders look to engineers for solutions and as a matter of building practice, builders need not apply the usual standards where engineers have certified that something may be done in another way.
35.Although he did his own inspection and calculations to consider whether Engwirda was correct, Steley’s report did not fully explain the basis for his responses at times, especially when he concurred with Engwirda. He agrees with Engwirda’s findings without elaboration on some issues. For example, it is not apparent why the established Tradac standard would be supplemented as suggested on the basis of the opinion’s expressed by Engwirda with which he agrees. He made the concession numerous times in his oral evidence that regarding structural questions, builders defer to engineers regarding what is appropriate.
36.Tayler’s qualifications are in civil engineering. He conceded that he was asked to provide a response on the Engwirda and Steley reports, not a report on the structure. He did provide different answers in his two reports about some issues. His second report was more detailed and his credibility was questioned on this basis. He said that in his second report, he gave more consideration to what he wrote. He gave evidence that he was experienced in pole home construction, having been engaged for some five years by a large pole home construction company in Queensland and giving structural advice. His evidence was that Tradac and other standards could be overruled by an engineer on the basis of engineering principles. This was consistent with Steley’s deferral to an engineering view on structural issues.
37.On the basis of qualifications and experience, Tayler’s evidence on matters of structural requirements and adequacy was preferred over Steley’s. However, he did not provide an opinion in relation to some issues of structural adequacy, relying instead on reports provided by other engineers in the QBSA complaint process, which were based on particular assumptions which are not in all respects consistent with the findings ultimately made by me in the proceeding. Steley was an experienced, thoughtful and helpful witness generally. His evidence was preferred to Tayler’s regarding some building issues. Also, he provided some evidence regarding structural adequacy on issues about which Tayler did not.
Part B: Consideration of the Issues
Issue 1: What did the contract require?
The Evidence
38.When Mr Scott approached the respondent to build a pole home he specified a construction budget of $101,000. The respondent showed the applicant a variety of concept house plans for which the least expensive construction cost was $109, 000. It was agreed that if certain exclusions applied, including painting and floor sanding and sealing, and other changes were made to steel baluster materials that the price would be reduced by $7000.
39.Specifications dated 2 December 1999 were prepared by Mr Maycock which set out some construction details, including limited information about the materials to be used in stairs and architraves. However, the document did not accurately reflect the works because it still contained stainless steel balusters, the timber floor sealing and the painting which the parties had verbally agreed would be done by the applicant, although it reflected the price agreed. It contained a notation ‘All prices to be confirmed by 10/12/99’. The respondent says that he quoted the job on Tradac specifications.
40.A fixed price contract dated 21 December 1999 was subsequently entered into for $102,045. The contract itself did not contain or refer to the concept plan or specifications provided to the applicant, and did not contain or refer to any other documents, plans or specifications regarding the construction materials or design. The only particulars it contains are ‘Hi-set timber home’ and the address at which it was to be constructed. It contains standard clauses including:
2. Performance and Payment
The Builder shall carry out and complete the Works in accordance with the contract documents and with all Acts of Parliament, Regulations and By-laws which apply to the works.
The Builder warrants that all plans and specifications provided to the Proprietor by the Builder have been or will be prepared with all reasonable skill and care….
The Builder shall complete the works:
· In the manner and to the standard to be expected of a reasonably competent Builder;
· Using materials which comply with this contract and which are of good quality, fit for the purpose for which they are used and which are new unless this contract expressly provides otherwise;….
13. Contract Sum
The Builder shall carry out and complete the Works in accordance with the drawings and specifications nominated in the Schedule in a workmanlike manner for the consideration set out in the Schedule….
19. Variations
….Variations by Agreement
….No variation to the works shall be made unless agreed in writing and signed by the Proprietor and the Builder. The cost of any such variation together with reasonable allowance for overheads and profit shall be adjusted against the Contract Sum…Also, section 59 of the Queensland Building Services Authority Act 1991 as in force at that time precluded a builder or a homeowner from relying on variations that were not in writing.
41.Subsequently, the Working Drawings (WDs) dated 27 January 2000 prepared by BDS were signed by both parties on an unspecified date. These WDs contained greater detail regarding specifications. Some component sizes of timber are specified, for example, a Framing Schedule sets out some details; it also states ‘All other framing to Tradac W41N Manual’. A ‘Floor Framing Plan’ and ‘Roof Framing Plan’ are set out, as are a ‘Sub-floor Bracing Plan’ and ‘Tie Down Schedule’ and a ‘Typical Pole Frame Detail’.
42.In addition to the specifications, each of the WDs contains notations that ‘Timber Construction to comply with Tradac Timber Framing Manuals’ and ‘Design and all Construction to comply with Standard Building By-Laws1975-1991, Building Act Amendment Act, Building Code of Australia, Current Australian Standards and All Contract Documentation’.
43.Working Drawing (WD) 10 contains a diagram with notations entitled ‘Typical Pole Frame Detail’. The Typical Pole Frame Detail includes ‘Engineers Requirements may exceed this. Refer to the Footing Report by Engineer’.
44.The WDs contain a notation ‘Do not scale. Use figured dimensions only. All levels and dimensions must be verified onsite prior to commencing construction, fabrication or shop drawings’.
45.There were no written variations to the fixed price sum or substituting different timbers for those specified in the WDs. It is agreed that the Homeowner ultimately paid a total of $106,000 for the construction. This included an amount for some additional concrete for the under house slab which was larger than had been anticipated.
46.Mr Maycock considers that the agreement reached was that construction would be in accordance with his original quote which he costed in accordance with Tradac.
47.Tayler considers the contract in the nature of a design/construct contract which allows the builder to make changes as long as the homeowner’s intent is satisfied. He acknowledges that the WDs did not match the specifications used to price the house. His view is that in a design/construct contract situation, it is common not to pass on all structural and geotechnical information. He suggests that Mr Maycock was at liberty to reasonably change building components under this type of contract and that it could be argued that the architectural design did not meet the concept design, but that it would be unusual for approval to be sought to change the draftsman’s specifications if the Builder wasn’t using them. He suggests that builders are entitled to do this provided the specification complies with relevant manuals. This approach was said to acknowledge commercial realities.
Discussion and Findings
48.The applicant submits that the contract documents consisted of the contract signed on 21 December 1999 and the WDs dated 27 January 2000. He contends that the signed WDs represent a variation of the contract.
49.The respondent refers to the contract of 21 December 1999 being in accordance with the concept plan and specifications prepared by him dated 2 December 1999. He submits that the contract was based on how the pole home would look once completed rather than detail regarding its materials and construction. The WDs were prepared later. The Builder did not dispute that the WDs also formed part of the contract documents. However, despite the specifications, he considered that he was entitled to ignore those and comply with Tradac.
50.The specifications were limited at the time the contract was signed. Unless the concept plan and specifications form part of the contract, the bargain struck between the parties on 21 December 1999 was absent any detail at the time of execution of the contract. The applicant and respondent entered into a contract by which the applicant was contracting for a concept pole home for which he had seen concept plans and some basic specifications, and which My Maycock was to design and construct for him.
51.I am satisfied that the contract was a design and construct contract as contained in the contract dated 21 December 1999, the concept plan and specifications. However, I am satisfied that the contract was later varied by the WDs signed by both parties. In instances where the WDs required adherence with engineer’s specifications, these specifications then form part of the contract documents.
52.Although the earlier contract documents were in general terms, leaving the details to the Builder and it may have been his original intent to build in accordance with Tradac specifications, the signed architectural plans represented a variation to the contract in accordance with clause 19 of the contract. They defined many aspects of the work, specifying materials and construction components and other requirements. Once the contract was varied to provide this detail, the Builder was obliged to construct the house in accordance with them, in the absence of any further agreed variation in writing. The WDs do refer to compliance with the Tradac tables. Where there is inconsistency in the contract documents, namely the requirement for particular component parts in the WDs as opposed to the requirement to comply with Tradac generally, compliance with the contract as varied required that the particular specifications be followed. Tradac would in essence ‘fill in the gaps’ where specifications were not provided.
Issues 2 and 3: Were there any breaches of the contract? Was damage caused by any breach of contract established?
It is convenient to address these issues together.
Consideration of them is complex. It involves considering the construction; the maintenance of the property by the Homeowner; the Homeowner’s extensions; and the QBSA involvement and the defect issues raised in the expert reports.
The Construction
53.It is uncontroversial that the house was supported by 3 types of columns, namely 90x90mm CCA treated pine posts under the front and side porches; timber columns which Engwirda had numbered 1-14, 20, 23, 26 and 30; and 75x75 mm steel section columns for the balance. Engwirda nominated an alphabetical reference for each row of poles, A to H[6] as well as numbering other building components.[7]
[6] Exhibit E Attachment D.
[7] Exhibit E.
54.Further it is not controversial that Tradac is a building industry standard embodying a National Timber Framing Code (AS1684-1992) which governed residential timber-framed construction until 1 January 2000 although it was able to be used until 30 June 2000. It was superseded by the AS1684-1999. If Tradac was followed by a builder, it was expected that at a minimum construction has appropriate dimensions and is built to a proper standard. The Building Code of Australia (the BCA) refers the user to other standards.
The Builder’s Excavation of the Embankment and Placement of the Spoon Drain
55.The parties agree that the house was to sit on a pad, which had already been cut, and extend down the slope. Mr Maycock was to cut a further section of slope to suit the split level design and pour the under-house slab.
56.The parties also agree that the embankment was not, when cut, at the angle indicated on the WDs. The spoon drain to be built at the bottom of the embankment as indicated on WD 08 was relocated from immediately to the left of the Row of poles identified in the proceedings as Row E poles 14-18. It was built instead, the Builder says about 700 millimetres downhill of Row D poles 8-13. The Homeowner’s evidence was that it was some 1.5-2 feet downhill from Row D. Rows D and E were, on the Builder’s evidence about 2 to 3 metres apart. The evidence of both place the spoon drain in roughly the same position and closer to Row D than Row E. This is generally consistent with the Rymark’s Engineer’s Interim Inspection Report[8] on which the certifying engineer has drawn a line with certain symbols on it closer to Row D, which Mr Maycock explained was the manner in which engineers generally represent the bottom of an embankment.
[8] Exhibit M.
57.According to Mr Scott, the respondent had to cut more of the slope than anticipated because of trees or logs resulting in a deeper excavation than intended. Consequently the spoon drain had to be relocated and the under-house slab was widened. The Builder says that there was a larger area underneath than was shown on the WDs which meant he was able to make the slab bigger. He says that there were no trees or logs which would have resulted in a need for removing the pad and relayering and compacting.
58.Steley did not locate the spoon drain at the time he inspected the property to prepare his report. However, at hearing he confirmed that the spoon drain is one row of poles closer to the front of the house than is depicted on the WDs.
59.The tribunal was provided with photographs[9] taken of the embankment over the years since construction. On the day of commencement of the hearing, the applicant disclosed and tendered a DVD[10] which showed the embankment after the cut and after the poles had been embedded and concrete collars placed around the base of the timber poles, but before any further construction was done. Mr Maycock’s evidence was that the DVD showed the embankment as it was at handover, except for the placement of a hot water system on a small slab downhill of Row D. His evidence was that the concrete spoon drain had been constructed at the bottom of the bank when the slab was poured to pick up water as it came down the bank. The embankment ended at that time at the top of the spoon drain, or otherwise, he said a final certificate may not have been obtained. The bottom of the embankment in the DVD, consistently with the oral evidence, was a small distance downhill from the Row D poles.
[9] See Exhibit E, Exhibit G, Exhibit P and Exhibit Q.
[10] Exhibit F.
60.I am satisfied that embankment was cut at an angle which is different from the angle indicated in the WDs, such that the spoon drain located about 700ml downhill from Row D was the bottom of the embankment and accordingly was not cut in accordance with WDs. Whether this constituted a breach of contract will be considered in light of the issues raised in the expert reports.
Pole Embedment
61.WD 10[11] specifies ‘Typical Pole Embedment’. It specifies CCA treated Perma-pine poles a minimum of 200mm at top. Below the pole is a ‘Min 150 thick concrete punching pad or bearing on rock’. It provides ‘Pole embedment minimum 1200 nominal 1500 For poles greater than 2100 ground to floor and 3300 spacing, increase embedment to 1800 Engineers requirements may exceed this Refer footing report by Engineer’.
[11] Exhibit E, Attachment A.
62.The Soil Test Investigation Report[12] from Rymark Engineering dated 9 February 2000 indicates that weathered shale was encountered at various depths when bore holes were drilled ranging from 1.3-2.5 m, 1.2-2.0m and .9-2.0m. The Footings Layout and Pole Embedment Detail note that footings for timber columns are to be drilled 300mm into weathered rock. ‘Minimum 200 treated poles’ are specified and a diagrammatic representation of pole embedment indicating embedment of a treated pole minimum of 200mm diameter into a hole and which is placed so as to reach the bottom of the hole which extends ‘300mm into weathered rock’. No concrete pad was demonstrated in this diagram. The report includes the following:
FOOTINGS
The 200mm diameter treated poles are to be placed into 450mm diameter bored holes taken down to weathered rock and backfilled with concrete.[12] Exhibit E, Attachment B.
63.A copy of Rymark Engineer’s Interim Certificate Report dated 3 April 2000[13] which confirms the concrete pour may proceed, shows the depth to which holes for the poles were dug prior to embedment of the poles. The depths of the holes vary from 650mm to 2800 mm.
[13] Exhibit M.
64.The respondent asserted that the poles had been embedded in accordance with specifications of the engineer. Under cross-examination, the Builder’s evidence was to the effect that it was sufficient for poles to sit on a plug of concrete even if not embedded as long as the hole was bored 300 millimetres into weathered rock. He considered that the engineer’s detail required only that the concrete plug had to be 300 mm into weathered rock not the pole. When it was suggested to him that a photograph showing the bottom of a pole, identified by the applicant as pole 4 in Row C[14] sitting close to or on top of the ground level on top of a concrete plug did not demonstrate pole embedment as specified by the engineer, he denied that it did not. He said that the hole was required to go 300 mm into weathered rock, not the pole and asserted that the engineer had certified it. However, I am not satisfied that the Engineer’s Interim Inspection Report is indicative of embedment depths: rather it is evidence of the depth of the holes before the concrete pour was done and poles were put in place.
[14] Exhibit G, Photograph 3.
65.The applicant’s evidence was that when undertaking his extensions, he discovered initially that one pole in Row D was not embedded when the base of the pole was exposed when the concrete cap came away. Subsequently, he discovered that several other poles in that row were not embedded and complaint was made by him to the QBSA. Photographs show some poles sitting on or just below the surface of the ground.[15]
[15] Including Exhibit G, Photograph 3; Exhibit G Photograph 9; Exhibit G Photograph 4.
66.Findings regarding pole embedment are made when the issues raised by the experts are considered.
The Building Materials, Clearance Height and Set-Out Issues
67.The respondent’s evidence acknowledges that some of the timber used is different in size from the WDs but considers the construction complied with the Tradac Timber Framing Manual. He gave some examples including:
§ Poles on the plans referred to as 200mm diameter CCA Perma-Pine were replaced by 200mm CCA Hardwood Class 1 Building Poles as the Pine poles were not available in the long lengths required.
§ 150mm x 50mm diameter floor joists were used instead of 200mm diameter x 50 mm F14 green timber as they complied with Tradac;
§ One row of 150 x 50 F14 was doubled up with 140 x 35 F27 to take excessive bounce out of the floor at the applicant’s request following complaints although he considered the work Tradac compliant.
68.He states that several footing poles were relocated to receive, in one case a bearer, and in another a laminated pole, in accordance with the drawings.
69.He says that clearance height has been provided in accordance with the contract requirements namely, 2400mm from top of the concrete to the underside of the floor joists.
70.I am satisfied that in some instances during construction, the Builder did not use the timber specified in the WDs. Particular instances and the consequences of this are later addressed together with clearance height and set-out issues after considering the expert evidence.
The Homeowner’s Maintenance and Extensions
Maintenance Issues
71.The Homeowner was cross-examined about his maintenance of the property. A major focus of this questioning related to the onsite sewerage system Taylex Biocycle which had been installed by the respondent. The orders sought by the applicant included $2500 for repairs he had paid towards relocating the Biocycle after the Council discovered it was leaking.
The Taylex Biocycle System.
72.The local authority wrote to the applicant in July 2002 notifying him that the plant had subsided, causing the biocycle to break and leak wastewater.[16] The applicant was required to contact the manufacturer, stabilise the tank and fix it. The tank was leaning and the pipe had split. Mr Scott asserted that the Builder did not want to fix it. He contacted Tregeagle who said it was sitting on fill. Tregeagle removed and relocated it.
[16] Exhibit V.
73.The applicant was unable to recall whether he and his wife had arranged for servicing after the 12 month warranty period expired. Documents on Taylex letterhead dated 12 June 2001[17] and 30 June 2001[18] showed that the last service was 30 March 2001 and the system was overdue for a service, and a payment of $220 was due for a 12 month service contract. When asked if he had understood he had to maintain the system, he said he understood it now, but not then, ‘we were first home buyers.’ At one stage, he blamed Taylex for the lack of servicing, saying that it was not his fault, Taylex should have come out. Sarah Scott gave evidence that she would have paid for the servicing agreement but did not recollect whether she had done so. Neither could explain why the agreement[19] ultimately reached with the Builder and Taylex to fix the problems noted that the system had not been serviced for approximately 12 months.
[17] Exhibit X.
[18] Exhibit W.
[19] Exhibit S.
74.Tregeagle gave evidence that that the Biocycle had been set on some loose material, was out of level and was leaking. He explained that maintenance was required each three months to keep a biocycle system working. He said that over a prolonged period, leaking would cause damage to the integrity of the ground and that he was unaware that when he was asked to dig the hole to relocate the system that it may not have been serviced for 12 months. However, he said that when he removed the tank there was 200-300 ml of loose fill under the bottom edge of the tank. He conceded that he could not say why it became loose and whether the leaking tank had been responsible.
75.Maycock said that the system was installed correctly on crusher dust. He saw the tank in July 2002 at a meeting with the owner, a Taylex representative and himself, after the local authority had contacted the applicant. He considered that water was running down the back of the tank which had ‘heaved,’ that is expanded through moisture, tipped and the pipe had broken. He was unaware that the tank had not been serviced for 12 months at that stage. He was asked to pay for the necessary repair. Although he considered he was not responsible, he wanted to resolve the issue and agreed to contribute with the Homeowner and Taylex to the costs. A copy of the agreement reached and signed by the three parties provides for the Homeowner was to bear the costs of the sewer piping and electrical costs. Taylex agreed to provide supervision for the relocation.
76.Maycock says the system was correctly installed. The applicant conceded that he and his wife had not known what they needed to do at that stage in respect of servicing the biocycle despite documentation advising them of this. He does not assert that it was serviced. Sarah Scott’s evidence was unhelpful as she did not give evidence recollecting what she had actually done. Tregeagle, once he was asked to consider whether the material on which it had been set was loose as a consequence of water leaking for an extended period because of lack of servicing for 12 months, could not say. The agreement reached acknowledges that the system had not been serviced for some twelve months. It is reasonable to infer that the Homeowner had not serviced the Biocycle system as required and that this led to the problems encountered with it. I draw this inference.
Tensioning of Bracing
77.The applicant acknowledges that the respondent advised him of the need to tension the bracing each six months to minimise movement. Steley gave evidence that in all timber constructions there was a need to monitor tensioning of bolts and was likely that the building would move if the bolts were not tight. Jeffrey Hills report of 7 May 2005 also recommended tightening of cross-bracing to minimise vibration.
78.The applicant did not suggest that he did tension the bracing. His evidence suggested that he considered the Builder’s advice to do it, was an attempt by the Builder to avoid responsibility for his work.
79.It is reasonable to infer, and I draw the inference that the applicant did not attend to the required maintenance involved in tensioning of the bracing and that this contributed to the movement of the house.
The Homeowner’s Extensions
80.It is not disputed that the applicant made significant extensions to the house as an owner-builder. The applicant built in the sub-floor area, and extensions include an open living area, a laundry and bedrooms under the house and a deck extending from the sub-floor. In the sub-floor area, he erected several walls. He said that downstairs he had put some beams and a floor down. He said he had put up a couple of walls to stop the floor bounce. He contends that he increased the stability of the house through installation of acroprops in about 2004. In 2009, despite his apparent concerns that the house may need to be demolished, he extended upstairs, building a lounge room and a deck extending from the lounge room.
81.At the hearing, the applicant conceded through his lawyers that the work he had undertaken was of a poor standard.
The Extent of the Applicant’s Excavation
82.The applicant’s evidence on the first day of the hearing was to the effect that he had excavated only a very small amount, about half of a shovelful of dirt, in order to keep the spoon drain clear and attach a beam to the poles. He said that he had also removed a bit of the concrete collars in order to achieve 2.4 m clearance and put a beam against the poles in Row D. He stated that he has not altered the slope or angle of the embankment. He agreed that on a copy of plans which he said his wife had made handwritten alterations, it seems for submission to Council, that the embankment was altered. He said this was to show the embankment correctly. Several other witnesses were interposed. When his cross-examination resumed, his evidence seemed to be that he had excavated about 6 inches or 100ml or multiple half shovelfuls all the way across the embankment above the spoon drain. He asserted that he had intended to use the area only for storage but that Tregeagle had given him the idea of a sub-floor.
83.Sarah Scott confirmed that she had made a hand-written adjustment to plans produced by the original draftsperson.[20] She indicated that she had drawn them up with Tregeagle, stating that was what he said would need to be done, as well as to put in a retaining wall. She said, in effect, that was how the embankment was supposed to be to do the extensions, but that was how it was anyway. She seemed to suggest that it was just a matter of happy coincidence that the embankment had been over-excavated by the respondent, so that it was precisely as the applicant required it in order to undertake the planned extensions in the sub-floor area. She said that the applicant had not excavated at all. She also asserted that all necessary building approvals had been obtained for the work done by the applicant. Approvals were not produced. Mr Scott’s evidence on this point was confusing, variously asserting that he had it, and that he did not require it.
[20] Exhibit U.
84.Tregeagle was asked to look underneath the house in 2004 and give some advice regarding Mr Scott’s planned extensions. He did this and made some suggestions, but he says he advised the applicant against doing any work. He considered there was not sufficient headroom for habitable rooms. Also, he suggested the applicant needed to sort out problems, namely the vibrations and springy floor. He considered that the applicant seemed quite determined to proceed. While conceding he had not turned his mind to it and that if excavation had been done before he went there, he would not know, he said that he had a good eye and he did not recall noticing any particular evidence of excavation. He did not refer to involvement in drawing up an amended plan as was later asserted by the Sarah Scott. He acknowledged making suggestions that to get bearers off the ground and construct a timber sub-floor that along Row D concrete collars could be taken off the front of poles to ground level.
85.Tregeagle explained that the Homeowner asked him to come back a short time later. On this next occasion, Mr Scott was quite upset and showed him that when he knocked the concrete collar off on the downhill side, he had found the bottom of a pole. Tregeagle estimated that some 75-100 ml of the concrete collar had been chiselled off around the bottom of the pole. To the best of his recollection, this was pole 11. On a subsequent visit, Mr Scott showed him that he had taken off a couple of other collars on the downhill side from poles in the centre of the house in the same Row, Row D, exposing the bottom of those poles. Tregeagle said the collars appeared to be about 100 ml in depth.
86.When Tregeagle saw the embankment in 2004, he considered it a reasonable job. It was nicely battered down in his view, whereas photographs taken in 2005 show that it had deteriorated markedly. He was not prepared to speculate whether excavation by Mr Scott shortly before he saw it may have been responsible. He accepted that insufficient drainage and, water flow over the embankment from a bitumen area could be possible causes. He also accepted that the steeper the embankment, the greater the risk of erosion.
87.Steley expressed the view in his report that he saw little opportunity for excavation by the Homeowner. However, his evidence is somewhat unreliable in this regard, as he did not locate the spoon during inspection of the property and use it as a reference point for the bottom of the embankment. He conceded that the embankment is now at a different angle than it was in the DVD and that the poles in Row D were then in the sloping part of the embankment, not at the toe of the embankment as they are now. However, he still did not see significant excavation comparing the DVD with photographs although he conceded that a concrete collar may have been broken away to put the floor in the sub-floor area. He expressed the view that any material taken away had come down the embankment. He conceded that the bitumen pad built at the top of the embankment would facilitate run-off water flowing down the embankment.
88.Tayler considered that having regard to the DVD and the more recent photographs, that the embankment slope was greater at the bottom of the photographs indicating that someone had excavated in the meantime. He also considered that concrete collars had been chipped off. He conceded that, assuming the spoon drain was the bottom of the embankment, that excavation by Mr Scott could only be to the level of concrete collars, the remains of which are still intact on the uphill side of the poles in Row D. Further, he seemed to accept that assuming properly embedded poles this would have minimum effect on the effectiveness of the poles.
89.It is apparent from the photographs and comments made by the expert report writers that the embankment was in 2005, and in subsequent photographs, in a poor state, heavily rilled and uneven. This is in contrast to the neat appearance of the embankment in the DVD, and apparently in 2004 when Tregeagle saw it.
90.The respondent admitted that the embankment had to be cut more deeply than the pad that had been cut by the previous owner, to suit the split level design. He said that the embankment had slumped as a result of the applicant’s excavation resulting in part in its current appearance. There was also evidence that the driveway built by the applicant may have resulted in water flowing down the embankment and that this may have made a contribution.
91.The amended plan or WD said to have been altered by Sarah Scott and Tregeagle shows a very steep slope from the poles in Row C to Row D with the bottom of the embankment uphill of Row D and the spoon drain on the other side of the poles in Row D than as constructed by the Builder. That is, in the amended WD, the spoon drain is uphill of the Row of poles from where it was constructed by the Builder. Given that as constructed it is about 700mm downhill from Row D, it appears from the amended WD, that it the Homeowner anticipated moving the bottom of the embankment more than 900 millimetres (being the distance between the spoon drain and Row D poles of 700 mm, and 200 mm being the width of the poles), uphill of where it was constructed by the Respondent.
92.Photographic evidence confirms that there is a flat section of dirt extending uphill from the spoon drain to the row of poles closest to it, and timber construction has been placed hard up against the poles and timber joists extend over the spoon drain.[21] Photographs show discoloration on posts where concrete had been removed. [22]
[21] Exhibit G, Photograph 5.
[22] Exhibit G Photographs 5 and 7; Exhibit Q Photograph s D2, E2 and F2; Exhibit Q Photograph 2.
93.The applicant and his wife were unconvincing witnesses regarding the excavation. The applicant’s evidence changed significantly and was contradictory. Sarah Scott’s evidence was confusing. Her assertion that Tregeagle had assisted her to draw the amended WD stating that was what would be required in order to do the planned extension, and that a retaining wall would then also be required, is at odds with her evidence that the embankment at the conclusion of the Builder’s work was as depicted in the WD amended by her and Tregeagle. A retaining wall is likely to have been suggested if the embankment was to be made steeper. She also denied that her husband had done any excavation, contrary to his own evidence. Tregeagle conceded he did not turn his mind to whether there had been further excavation and so I do not consider his evidence helpful on this point. Steley confirmed that the embankment has changed since the DVD was recorded, when the Row D poles were in the sloping part of the embankment. They are no longer in the sloping part of the embankment. This is consistent with the amended WD which was prepared by Sarah Scott, which I find was prepared to reflect the embankment after the Homeowner’s intended excavation. However, he did not complete the planned excavation fully. The extension work constructed by the applicant extends over the spoon drain which was constructed by the Respondent and abuts the Row D poles. However, the earth between the Row D poles, and dirt uphill of those poles was not subsequently excavated to accommodate another spoon drain.
94.On the balance of probabilities, I find that the applicant has excavated significantly more earth than he admits in the area immediately adjacent to the spoon drain in order to construct his extensions. The spoon drain, which is 700 millimetres left of Row D, was at the time of construction the bottom of the embankment. The bottom of the embankment is now Row D and accordingly has moved uphill some 700 mm.
Removal of Concrete Collars
95.The applicant’s evidence is that he discovered that some poles were not embedded when chipping away at the concrete collars to put the sub-floor beam in. He put a shovel in a crack and the collar fell off. He then saw the bottom of several poles, in Row D. It appears from the available photographs that varying amounts of concrete have been removed from several concrete collars. The applicant conceded that areas which are different in colour above the remaining collar had been removed.
96.The Builder gave evidence that collars are at least 100 millimetres above ground all the way around, and more like 200 millimetres. Tregeagle’s evidence was consistent with this. In one photograph,[23] the base of pole 4 in Row C sitting on a concrete plug is seen. It is not apparent that any of the collar has been chipped away from this particular pole, but a piece of concrete has fallen away and exposed the base of the pole. The concrete collar appears, consistent with the Builder’s evidence, to be at its maximum several hundred millimetres in depth from the base of the pole. The concrete collars in some other photographs are consistent with this.[24]
[23] Exhibit G, Photograph 3.
[24] Exhibit G, Photographs 4 and 11.
97.It remains to be determined whether the applicant’s excavation and removal of the concrete collars has affected the embedment of the poles. This will be further considered in context of the issues raised in the expert reports.
The QBSA Involvement
98.A variety of documents from the QBSA file,[25] including the reports prepared by Rymark Engineers,[26] Jeffrey Hills[27] and JC Engineering[28] were tendered.
[25] Exhibit BB.
[26] Exhibit BB.
[27] Exhibits J, K and L.
[28] Exhibit I.
Rymark Report
99.A Rymark Engineering report dated 24 July 2004 was requested by the Builder. It refers to concerns raised by the Homeowner that two poles had been exposed during the owner’s extensions to have embedment depths of approximately 350mm into concrete and that there were air voids under the poles. The report notes the architectural drawings specifications regarding embedment depths from 1.2 to 1.8m; and the soil test indicating weathered rock at varying depths of .9-2.0m; and the engineering drawings recommending embedment depths ‘taken 300mm into weathered rock’. Also, the interim engineer’s inspection report was noted as showing hole depths of .65- 2.8m.
100.The report concludes that the builder complied with AS1684.2-1999 and the engineer’s details and that the poles did not have to be embedded 1.8m into concrete as long as the overall sub-floor bracing requirement was adequately fulfilled. The report writer states ‘It would appear that the sub-floor extension have (sic) weakened the sub-floor bracing as three of the poles have been exposed and cross-rods removed.’ He suggests that the Builder should grout fill under the exposed poles, but was not obliged to embed the poles deeper as he was not required to foresee the extent of future extensions.
JC Engineers Report
101.JC Engineers Report dated 30 July 2004 was requested by the Homeowner. The report writer considered that the sub-floor vibrates excessively. It states that the floor joists on the plans for the living, dining and kitchen were adequate at 200x50 HWD F14 continuous, but that onsite were 150x50 HWD single. Similarly the floor joists in the bedrooms hall and laundry were found to vary from the plans. In addition, the bearers onsite were considered to differ from the plans. Regarding the poles, the report states that the poles on the plans and onsite are adequate in size. However, a ‘pit exploration’ conducted beside one post, and it was found to be embedded 200mm into the ground. Bracing on the plans was considered adequate. The engineers were unable to verify the existing bracing in the upper level, but considered ground floor level adequate on plans and on-site. They recommended doubling up of floor joists to minimise vibrations as they considered the joists the main issue, and bearers to be addressed later. Regarding the posts, they recommended verification for each post and if embedment was not adequate (1200mm in the ground), then each post to be rectified.
Jeffrey Hills Reports
102.Jeffrey Hills Engineer prepared three reports dated 20 October 2004, 26 November 2004 and 7 May 2005 at the request of the QBSA.
103.The report of 20 October 2004, refers to a laser level survey being undertaken. The survey found that the level of the bearers in the underfloor along a straight line of poles was different between each set by about 10mm. This was considered within tolerance for this type of construction. Flex and bounce in the flooring was attributed to the size of the joists which were considered too small in two of the three spans in the house, and recommendations were made for plating the existing joists as specified. The report notes some cracking of bathroom tiles which may be attributable to the undersize timber in the floor. Once strengthening is done, the report recommends rectification of the damaged areas.
104.Regarding the support poles, the report notes that 4 poles in one line had not been installed into the ground, but were sitting on concrete pads just below ground level and that it was ‘reasonably assumed’ that the other 2 poles in the line were also not installed according to the engineering plans. From the report, it appears that the row of poles referred to is the last row of timber poles before the metal poles start or poles generally identified in these proceedings as Row D poles 8-13. Comment is made that the site survey suggests that the Builder anticipated excavation would be less and the poles ordered were too short to embed into the ground. It suggests that the holes may have been excavated to depth for viewing by the certifying by the engineer and then filled with concrete. The laser level survey found that the bearer height on top of the line of poles was level and differential movement between the poles had not occurred. Excavation to determine the depth of concrete was not done or considered necessary.
105.Structural support provided by the poles was considered adequate and no strengthening required. However, it was reported that embedment of the poles would have been relied upon to provide bracing support for the building, but as the poles were not embedded this had not been achieved. Reinstatement of bracing capacity across the poles in the line was recommended. Installation of two additional bracing sets between the panels without bracing sets to provide 4 bracing panels in a row. At the base of each pole a duragal, connected as specified, was suggested be installed. To provide lateral restraint for the pole set, at either end of the 4 panel set, a C section was recommended, driven into the ground 1500mm and embedded in concrete with the base of the pole.
106.It was reported that bracing had not been installed in a sound engineering manner and repairs were recommended to all bracing sets.
107.In the report dated 26 November 2004, [29] the recommendations about bracing were reconsidered at the request of the QBSA, as a previous rectification order of the QBSA had been given about bracing requirements and there was a duplication of bracing in light of the previous order. The recommendations made in the report of 20 October 2004 were withdrawn. Recommendation was ultimately made for the installation of a box section at the base of each of two bracing sets. The commentary in the report notes that the original engineer’s sub-floor bracing calculations relied on a bracing component from various poles, which are the poles referred to in these proceedings as the poles in Rows B, C and D. Reference is made to five of the poles in these Rows having been excavated to check depth of the pole, although the five poles which were excavated are not identified. Four excavations were in Row D as referred to in the report of 20 October 2004. A statement is made that poles in Rows B and C were around 300 mm in depth. It is indicated that depth of the concrete pads filling the poles is considered too high, minimising the depth of the timber poles used and hence their effective bracing resistance.
[29] Exhibit K.
108.The report dated 7 May 2005 was requested to consider the adequacy of the construction to resist uplift forces. It was found that the weight of the house and minimal anchorage of the support poles was sufficient to withstand uplift forces and no further work was required. Continuing owner complaint of vibration was noted. However, comment was made that vibration transmission is characteristic of the nature of the construction and not necessarily related to depth of pole insertion. Tightening of cross-bracing was recommended to minimise vibration transmission.
QBSA correspondence and other documents
109.The QBSA file documents refer to some rectification work recommended by QBSA and done by the Builder in 2002, including strengthening bearers and cracking in plasterboard.
110.In correspondence dated 3 November 2004, the QBSA advised the Homeowner that it had evaluated his concerns and required the Builder to install bracing to the support poles as indicated in Jeffrey Hills Report. It was noted that other items of concern to the Homeowner were not required to be rectified. In particular, he was advised that the joists installed were in accordance with Tradac tables and certified by an engineer. As the Builder had been deemed to comply in accordance with engineering approvals, BSA could not intervene further regarding concerns that the joists were not installed in accordance with the original contractual specifications. The builder was advised to rectify floor joists displaying excessive bounce and the inadequacy of sub-floor bracing.
111.The Builder agreed to carry out any further work recommended by Jeffrey Hills regarding tie down following the Homeowner’s concerns regarding this issue. The Homeowner indicated that he was unwilling to allow the Builder to attend on his premises to undertake work in accordance with Jeffrey Hills Report. Several items of correspondence of the QBSA note the ongoing preparedness of the builder to address issues.
Consideration of Defect Issues Raised by the Expert Evidence in the Proceeding
Diminution of Value
112.Engwirda considers that because of the ‘very poor appearance of the structure’ as a result of its ‘many defects and unappealing rectification’ work, the home would be ‘difficult or impossible to sell or saleable only at a greatly reduced price’. Steley concurs that that purchasers who usually seek a pre-purchase building report would identify quite serious defects which would dissuade completion of a sale. He considers the rectification attempts further compromise saleability. He recognises that he does not have the expertise to comment on diminution of value but as the defects are evident to ‘even a lay person’ he contemplates that purchasers and real estate agents would identify the problems. The latter comment is contrary to statements he made in cross-examination that generally lay people would not notice the issues.
113.Tayler’s reports suggest that the comments should be supported by a registered valuer. He makes the observation that since construction value is likely to have increased substantially.
114.Engwirda ventured here into an area outside of his expertise when he raised this issue. Steley appears to recognise that it is outside the area of his expertise, but says that he is not commenting about value but essentially about saleability. However, saleability is relevant to value. This is not within his expertise. His evidence was contradictory about how lay people would view the construction. Tayler recognises that this is not an issue upon which he or the other report writers can comment, but also then ventures some comments.
115.The extensions have merged in with the original work which would make valuation of the loss of value attributable to the original work difficult. Comments about value are not supported by evidence from a registered valuer. There was no evidence of diminution of value as a result of breaches of the contract from an appropriately qualified person, and it was not argued at hearing. Accordingly, it is not considered further.
Terrain Category and Wind Rating of the House
116.Engwirda contends that although the site is classified W41N by the local authority, because the site is located close to the crest of a hill and likely to be exposed to stronger winds than if at a lower level, that it would have been prudent to classify the site W50N. Steley agrees that it may have been prudent but acknowledges the building complies with W41N. Tayler considers that Steley and Engwirda not qualified to rate wind speed and that it is illogical to state that a higher classification was appropriate. He considers that once wind category has been determined by Council, the house should be constructed to that standard.
117.WD 01 specifies W41N.
118.It is unhelpful to suggest a different rating should apply than the standard determined by Council. I accept Tayler’s comments. The wind class category was as specified on the WDs and that the house complies with local authority requirements regarding wind rating.
Site Excavation and Subsequent Land Slip
119.Engwirda considers that excavation has not been done in accordance with WD08. As a result, he states that the slope is steeper than permitted by the BCA for unprotected embankment slopes; he considers the embankment is crumbling and soft when wet. He averages the slope at 54 degrees. The timber posts in Row D project approximately 2.5 m above ground level, instead of the 1 metre contemplated by the plans. Steley concurs but says that he measured the slope at mid-embankment at 58 degrees. At the hearing, Steley conceded that the embankment as it now appears is different from the DVD and that the poles 8-13 are in the DVD within the sloping part of the embankment rather than in a flat area of ground as they now appear.
120.Tayler points out that the soil line was not dimensioned and was therefore diagrammatic only. He suggests that the bank is not unprotected, it is protected by a house and water should not be allowed to flow over the bank. If the bank requires retaining he points out that this cost was, according to the specifications dated 2 December 1999, to be met by Mr Scott. He disagrees that the clay is soft, stating that proper testing has not been carried out. He asserts that if the foundation material is stable rock, then the slope may be up to 82 degrees. He refers to the soil investigation report as suggesting it was likely stable rock would be encountered. He states that the draftsperson’s section depends upon where it is taken and is usually fairly nominal, so heights can vary and it may not reflect the exact site conditions. Also, he considered that Mr Scott has excavated the bank to make it steeper than it was at close of construction. Tayler says levels should be taken by a licensed surveyor.
121.The Jeffrey Hills Report dated 20 October 2004 hypothesises that the site survey suggests that the Builder anticipated that the excavation would be less than completed and the ordered poles were too short to embed.
122.The witnesses agree that the embankment was cut more deeply than the WDs reflect and I have accepted that it was cut by the Builder at an angle such that the spoon drain was the bottom of the embankment. Accordingly, it was cut at a steeper angle than WD08. However, I accept Tayler’s evidence that the soil line was diagrammatic, as it was not dimensioned. Further, I have found that the Homeowner has subsequently further excavated the embankment. None of the report writers saw the embankment before the Homeowner began his extensions and related work to the premises. Steley conceded the embankment is now different to how it appeared in the DVD. Accordingly, I do not accept that measurements of the embankment taken by the report writers, even if they were qualified to take them, indicate the angle of the embankment as constructed by the Builder. I am not satisfied that there has been a breach of contract in respect of the angle of the embankment as constructed by the Builder.
123.Engwirda notes that following heavy rain in June 2005 a landslip occurred. Some 6 to 8 barrel loads of soil collapsed and were stopped by the timber structure at the bottom of the excavation. He suggests that if a larger slip occurs it may damage the building if one of columns 8 to 13, which he says are not embedded in the footings as specified was pushed from it’s concrete footings. He says that as a result of erosion, the footings below columns 4 and 5 are exposed. Steley agrees.
124.Tayler doesn’t share their concerns and doesn’t consider them qualified to make the comments. He notes that the rainfall on the particular day of the land slip was extreme. He considers that having regard to Rymark’s interim inspection report compared to the current position of the cut, it is evident that the bank has been undermined by Scott who has undercut the embankment. He considers that as the footings were installed into rock that they should be stable.
125.I am satisfied that there was a land slip in 2005 and this again altered the appearance of the embankment after excavations by the Homeowner. This issue is further considered in relation to the next item.
Need for a retaining wall or stabilisation of embankment
126.Engwirda recommends either a retaining wall or spraying a layer of reinforced concrete may retain the embankment, but expresses little faith that either will completely remedy the problem. Steley suggests that some form of soil retention was required, and he considers neither would have been necessary if the embankment slope and position had been in accordance with the original WDs.
127.Tayler suggests that it is clear that the Homeowner was to bear the cost of retaining walls and that in the absence of a level survey plan the arguments Engwirda and Steley make are not convincing. He repeats that the drawings are not an exact representation.
128.The specifications dated 2 December 1999 give the Homeowner responsibility for any retaining wall required. The later contract documents do not alter this position. However, if the Builder overcut the embankment to an extent which made an otherwise unnecessary retaining wall necessary, there may be a claim for damages in this respect. Sarah Scott asserted that Tregeagle had suggested a retaining wall would be required when the embankment resembled the slope drawn in the amended WD[30] prepared by them. Given the findings I have made about the excavation by the applicant which changed the embankment and the subsequent landslip, I am not satisfied on the balance of probabilities that any need for retaining of the embankment arises from the excavation undertaken by the Builder.
[30] Exhibit U.
Concrete Spoon Drain at the Bottom of the Slope
129.Engwirda and Steley report that a spoon drain has not been provided at the bottom of the slope in accordance with the WD08. Tayler disputed this and states that he observed the spoon drain. He variously across his two reports says it was built over and covered in dust and dirt probably resulting from Scott’s excavations. He suggests that this illustrates the casualness of the Engwirda and Steley inspections and their bias. By the time of the hearing, Steley was aware of the spoon drain.
130.I have found that the spoon drain was constructed some 700 millimetres downhill from Row D at the base of the embankment instead of immediately uphill of Row E as indicated in the WDs.
131.Given that the spoon drain was not constructed in the place specified in the WDs, consideration must be given to whether this represented a breach of contract. I have accepted that the WDs were diagrammatic of the slope of the embankment. It follows that the WDs could only be diagrammatic of the placement of the spoon drain. The spoon drain was to be constructed at the base of the embankment. That was done. Accordingly, I am not satisfied that there has been a breach of contract in relation to the placement of the spoon drain.
Column Excavation Depths
132.Engwirda asserts that the column depths were inadequate having regard to Rymark’s interim inspection report dated 3 April 2000. He prepared a schedule in which he states that the actual depths were inadequate when compared to minimum depths required in the case of 15 of 29 poles between 200 and 1050 mm and that one pole was not constructed at all. This includes poles 2 to 14, and poles 20 and 26. Steley states that he inspected each column and had regard to the schedule prepared by Engwirda and the Rymark report. He found only minor variations in the actual depth of a few millimetres to those in Engwirda’s schedule.
133.In his first report Taylor simply stated ‘accepted’. In his second report, he considers the depths quoted by Rymark Engineers to be satisfactory with consideration to the site conditions. He surmises that Engwirda’s calculations are based on the BDS drawings, opining that design draftsmen do not have authority regarding footings which are required to be designed and certified by engineers based on soil testing information. He considers that Engwirda and Steley should have requested engineering opinion.
134.Tayler’s point in this regard is reasonable. The WDs were prepared before the Rymark Soil Test Report was available. The WD 10 provides ‘Typical Pole Frame Detail’ only and provides for engineers to specify pole embedment detail. The Rymark report of 9 February 2000[31] specifies further detail. Rymark Engineers have in their interim certificate dated 3 April 2000[32] certified that the concrete pour may proceed. As noted earlier, these depths were in many instances considerably less than the 1200-1800 millimetres contemplated in the WDs. However, the engineers, who according to the contract had the final say, considered them adequate.
[31] Exhibit E Attachment B.
[32] Exhibit M.
135.On the basis of Rymark Engineer’s certification, I am not satisfied that a breach of contract is demonstrated as a result of column excavation depths.
Timber Columns Supporting Upper Level Floor
136.Engwirda refers to various Tradac requirements including that timber columns exceeding 1800mm must be 225mm in diameter, and minimum footing depth of 900mm. He states that column 8 in Row D is non-compliant in that it is 200mm in diameter. He also includes a diagrammatic representation of what may happen by way of racking, overturning and uplift to a building that is inadequately braced or tied down. Engwirda refers to the specification in WD 10 of CCA treated Perma-pine poles. He was unable to ascertain if the poles used were CCA treated as required by the contract, but hardwood poles had been used. He contended that treatment of hardwood poles is less effective as the solution penetrates only a few millimetres, whereas pine poles are treated completely throughout. Treated pine poles, he suggests, generally have a much longer lifespan than hardwood poles. Lifespan may be further reduced if the area is not properly drained. Also, he asserts that the hardwood poles were cut, and that the shorter ones may have been cut at both ends, leaving untreated ends subject to attack by termites.
137.Steley acknowledges Engwirda’s findings that column 8 is undersized, without indicating whether he agrees with it. Steley identifies some potential racking, but not in columns constructed by the respondent. Steley agrees that CCA treatment of hardwood has limited success. His report includes photographs on site to demonstrate depth of impregnation of the poles which he considers leaves the untreated hardwood susceptible to termite attack and decay.
138.Tayler in his first report comments that column 8 complies with the WDs. He further comments that a 200mm diameter hardwood pole may be used under the AS1684.2-2006 up to 3 m in height unless structurally designed. In his second report, he explains that Tradac does not refer to the strength of the particular timber. He states that a 200 mm hardwood pole is more than 500% stronger than a 225mm pine pole. He also considers some of the Tradac requirements as being erroneously quoted by Engwirda and Steley as regards footing depth which was quoted for soil type of low or medium plasticity clay, rather than the weathered rock of this site. Also, he points out that Rymark, not Tradac are responsible for the footings. He reports that hardwood is stronger and more expensive and was used to achieve the height as pine poles are not available in long lengths. Drainage is a maintenance issue for the owner. In his second report, he adds that apart from sapwood, hardwood poles are generally not susceptible to termites.
139.I do not consider the expert comments helpful on this issue. WD 10 in ‘Typical Pole Frame Embedment’ specifies ‘CCA treated Perma-pine poles min 200 mm at tip’. However, the Rymark Report of 9 February 2000, which effectively overrode the generic specifications set out in the WDs, specified ‘Minimum 200 mm treated poles’. It follows that I find that these specifications, not Tradac, or the WDs were applicable under the contract. The poles were treated according to Steley. Accordingly the contract has been complied with by the Builder.
Footing Depths, Sub-floor bracing and Tie-Down and Structural Adequacy or Stability
Footing Depth
140.Engwirda again asserts that only some of the timber column footings were excavated to the minimum depth as referred to in the WDs. He states that the sub-floor bracing plan relies significantly upon the bracing effect and tie-down values of the timber columns intended to be embedded in concrete footings. He states that columns 8 to 13 in Row D and 4 and 5 in Row C are not embedded and that each of those poles is located on top of the concrete footings without any restraint or tie-down. He asserts that the respondent has filled the footing excavations with concrete to ground level and placed the columns on top of the concrete, and then encased the bottoms of the poles in concrete collars, several of which have not adhered properly to the footings. Column 13 is only partially located on the concrete footing. He hypothesises that the 5 columns in Rows B and C which he has been unable to inspect because of concrete collars are also not constructed as specified. Additionally, he says that column 25 which was not constructed has resulted in deflection of a bearer supported only by columns 24 and 26 downwards by 7 mm.
Roof and Ceiling Structure
216.Engwirda states that the rafters to be supplied were 190x 35 F8 at 900mm centres. Instead 140x35 F27 rafters at 900mm centres with a single span of about 3200mm were provided. He concedes that the tables indicate that both suffice. He suggests that the specified rafters would have been more rigid and that the ceiling space is reduced by 50mm which will marginally affect temperature within the building. He states that according to Tradac, the joists used are unsuitable for spans exceeding 3000mm. He concedes that he did not observe deflection in the ceiling. Steley concedes that although the rafter dimension or depth has been reduced, with an upgrade to stress grade F27 they will satisfy the load table requirements. He agrees as specified rafters would have provided a more rigid structure. He states that without a benchmark he cannot comment upon whether there would be any temperature effect. He conceded that he considered the temperature difference would be immeasurable and insignificant. Further he reported that he did not observe any deflection or distress within the ceiling diaphragm of the home and first floor level.
217.Tayler reports that the rafters were in accordance with the Tradac Tables. He suggests that F27 timber is much more high quality than F8 and that the criticism is ‘totally unreasonable’.
218.I am satisfied that a breach of contract has been raised as the rafters were not supplied in accordance with the contract. However, structural integrity has not been compromised and no damage has resulted to the Homeowner.
Eaves Soffits
219.Engwirda reports that the WDs provide for the soffit sheets to be fitted on the rake underneath the rafters, but that the Builder has provided level, box-type soffits. He states that the Homeowner is prepared to accept box soffits. However, it possible for soffit sheets to be dislodged during high winds, and if one goes others are likely to follow when the wind gains entry to the roof space. One soffit sheet was observed to have fallen out of the metal fascia recess, another he says has not been fitted into the recess. He considers that compliance with BCA requires the removal of all soffit sheeting, providing additional supports and providing new soffit sheets.
220.Steley agrees with Engwirda except that regarding the soffit which has not been fitted into the fascia recess, he does not know if it is as installed or has been disturbed.
221.Tayler’s first report expresses surprise regarding the comments given that the Homeowner accepts the soffits and it is not understood to be sagging. He comments that maintenance is always required. His second report notes that many draftsmen would not show soffits on a pole home, and that the item is unreasonable. He notes that the soffits have not blown off despite high winds.
222.I find that the soffits were not constructed in accordance with the contract specifications. However, they have been in place for some 10 years, apparently without any difficulties for the Homeowner. I am unable to identify any damage suffered by the Homeowner.
Living Room Window
223.Engwirda states that because the living room window on WD06 is more than 3000m above ground level, the BCA requires an additional transom to be provided 1000mm above internal floor level, for safety reasons. Steley concurs, stating that ‘This would be to certain windows of the north south and west elevations to ensure compliance with the BCA and relevant standards.’ Tayler reports that BCA performance clause P252 indicates that Engwirda is in error. The window is as specified and it is the owner’s responsibility to install a security screen.
224.WD06 specifies an additional transom for windows over 3000 and fixed glass or a security screen. Tayler points to a particular clause which he considers justifies the opinion he expresses that the Building Code is not contravened and says that a security screen should be installed by the owner. The latter is one option contemplated on the WDs. On this basis, I accept Tayler’s evidence on this point. Accordingly, I am not satisfied that a breach of contract has been established in respect of this issue.
Construction Set-out Errors
225.Engwirda lists as set-out errors a number of items. His comments and those of the other experts are as follows:
226.Location of column 23 Engwirda considers this is responsible for floor bearers G1 and G2 not being in line. It is his opinion that neither the pole nor the floor bearers can be moved to their correct positions. Steley concurs. Tayler states that as poles vary in size, this is common with pole homes and that post holes are installed to a tolerance of 50mm. He considers that the main requirement is to achieve the correct overall set-out dimensions. In his view, this has been done. Steley conceded that it was more usual with pole homes because of pole variation. On the basis of Tayler’s evidence and Steley’s concessions, I am not satisfied that a breach of contract has been raised by the issue.
227.Laminated beam supporting the roof structure Engwirda states that the beam is inadequately checked into column 23 and does not comply with the AS1684-1992 code as a result of the incorrect position of column 23. His concerns regarding the beam as I understand them are that to comply with the Code the beam must be fully supported by column 23; he calculates that the beam is supported by only 30% of the minimum required bearing area and considers this inadequate construction; and one bolt retains each half of the laminated beam to the pole laterally and the bolt retaining the right half of the beam is located 2 laminations from the top of the beam making it a poor connection. He considers this a hazardous situation and suggests two additional bolts as a temporary measure. The load bearing of the left side of the laminated beam is slightly large than the right, but he states also inadequate. Steley concurs without more with the observations and comments. Tayler considers the criticism is unreasonable and notes the criticism was not raised in the QBSA complaint process. In cross-examination he noted that having regard to the photographs attached to the Engwirda report, he didn’t see a problem. Steley conceded that he would have to defer to an engineer’s view. Having regard to Tayler’s evidence and Steley’s concession, although I am satisfied that a breach of contract has been established, the Homeowner has not established damage as a result.
228.Column 20 The Engwirda report, as I understand it, states that column 20 supports the rear corner of Bedroom 2; however, it contends that the external corner of the building and the bearer are not in line and that the outside member of the bearer attached to that column is not properly supported. He contends that the AS1684 -1992 has not been complied with as the left half of the bearer does not bear on column 20 and 2 bolts intended to secure the bearer laterally have not been tightened. Also, a timber block which has been inserted between the top of the left bearer and the bottom plate of the timber framed wall that supports the upper floor level is inadequately secured and may slip out, which would result in damage to the building. The block is supported partially by the outer half of the bearer and has caused it to sag because it is not properly supported by the timber pole. Also, the bearer is not directly below the load bearing wall of bedroom 3 as required by AS1684-1992. For both bearers to be fully supported by column 20 and located directly below the load bearing wall, columns 19 and 20 need to be moved towards the rear of the building by about 125mm: they are embedded in concrete and cannot be moved. Steley concurs with the observations, research and conclusions without further comment. Steley conceded that he would have to defer to an engineer.
Tayler’s first report states that in his opinion the bearers do not have to be in a line, and often are not in pole homes because post hole excavations are sometimes not in line, posts themselves varying by large amounts of up to 150mm. He considers that the requirement is that the house frame is adequately supported, noting that he has not witnessed any conspicuous sagging. Tayler’s second report notes that the house has been inspected by 2 engineers, a certifier and others and none have raised this as an issue. At hearing, when asked whether he disagreed with what Engwirda and Steley found, he conceded that Mr Engwirda may have a point, but he considered the house is adequately supported.
I am satisfied that there has been a breach of contract as regards this issue as the relevant standard has not been complied with: however, on Tayler’s I am satisfied that the breach has not compromised the structural integrity of the home. The Homeowner has not established damage as a result.
Sub-floor Structure Engwirda considers there is a set out error where the low timber wall, which supports the upper level floor joists is located on top of the lower floor joists, stating that WD08 indicates how the building should have been constructed. Further, he considers that a timber post which supports part of the roof is unsatisfactorily constructed and should be fully supported by a solid block fitted between the two floor joists. Also, although he states that the offset of the timber post from column 16 is not detrimental, he states that a solid block of timber should be provided underneath the column. Steley concurs with the observations and remarks. Tayler’s first report notes that the sub-frame has been certified by engineers and the issue has not been raised by anyone else. In his second report, he notes that the house has been inspected by 2 engineers and other persons and none have raised the issue. In cross-examination, when asked whether he disagreed with what Engwirda and Steley found, again he conceded that Mr Engwirda may have a point, but he considered the house is adequately supported. Again, I am satisfied that there has been a breach of contract as regards this issue as the WD has not been complied with: however, I am satisfied that the breach has not compromised the structural integrity of the home. Damage to the Homeowner has not been established.
229.The Timber Deck Engwirda contends that the WDs indicate that the timber deck was intended to be constructed at a lower level than the internal floor and that this would facilitate water-proofing at the juncture of the internal floor and the external deck. However, he says that the Builder did not follow the design and the deck and the internal floor were constructed on the same level. Consequently, he foresees insurmountable waterproofing problems when the area underneath the house is sheeted. Steley agrees that the deck should have been constructed at a lower level than the internal floor. He notes that the Homeowner informed him that the Builder spoke to the Homeowner about amending the design in this manner, but that he had no understanding of the significance of the change which compromises water proofness, in particular the lower level if the home is enclosed as a habitable area at ground floor level. He conceded that there were no immediate concerns upon construction as downstairs was not a habitable area, and that now that upstairs extensions had been done, he was not sure it was an issue.
Tayler reports that decks are not always at a lower level. He considers that it is forecasting a problem which has not occurred to suggest that there will be insurmountable problems when under the house is sheeted. Further, he noted that QBSA inspected flashings and made no comment. He does not consider there is a problem with the manner of construction.
The applicant did not initially contract for a particular style of decking. However, the WDs represented a variation and I find that the deck was required to be constructed in accordance with the WDs. However, on the evidence, I am not satisfied that it was built in a manner which does not comply with the relevant building standards, nor that it is structurally unsound, nor consequently that the Homeowner has suffered damage as a result.
Non-complying Modification Work Carried Out by the Builder
230.Engwirda states while inspecting this building he noted an extraordinary number of significant building defects, and states that some of the ad hoc modifications made by the Builder are ‘extremely ugly.’ He considers the Homeowner is not obliged to accept them, even if the cost of rectification is significant. He considers the work done to provide an alternative to the contract specifications should be regarded as non-complying modification rather than rectification. Steley agrees with the observations.
231.Tayler’s first report notes that in pole homes the workmanship under the floor is always exposed. Linings may cover structural work. His second report suggests that the item is too non-specific for him to respond.
232.I accept that sub-floor connections are generally exposed. I am not satisfied that an additional issue regarding compliance with the contract is raised.
Steel Angle Reinforcement of Floor Bearers
233.Engwirda states that ‘to stiffen the inadequate timber bearers G1-G2,’ the Builder has added an additional timber beam which is bolted to the existing beam. He contends that this adds little or nothing to their bearing capacity. He states that when this did not assist, steel beams were bolted alongside the bearers. He considers these ‘extremely poor attempts’ to find solutions for major building defects. He considers the steel beams ‘visually unacceptable’ and preventing the acceptable completion of the lower floor level. He opines that bearers G and H should be replaced. Steley agrees.
234.Tayler’s first report suggests that adding an extra beam is common and not usually problematic. He states that any unsightly structural work can be lined by the owner, noting that the Builder was not responsible for ‘finishing and or adding under floor’. He notes that the work was considered satisfactory by QBSA and the engineers. His second report responds only that the sub-floor has been approved by Rymark, Hill, QBSA and the building certifier. At hearing, Steley conceded that he considered it was ‘not pretty’ but that if Jeffrey Hills accepted it he could not challenge it...
235.This issue seems to be an aspect or the immediately preceding issue raised. I am satisfied that no additional issue regarding compliance with the contract is raised by this issue.
Plumbing and Drainage
236.Engwirda notes that his examination did not include examination of the plumbing and drainage work, except as specifically referred to. He asserts that one gutter has not been provided with a rainwater downpipe and a spreader above the lower roof and that one rainwater downpipe is not supported where it is joined. He notes that the Rymark engineer’s report requires that certain underground services should be flexibly jointed. He states that the Homeowner informed him that some time after occupation of the premises, it was found that the septic tank had subsided and effluent had leaked from the tank. He states that he considers it most unlikely, ‘on the basis of the other items referred to under this heading,’ that the underground services have been provided with flexible couplings.
237.Steley states that he did not examine the subsurface drainage work and could not comment upon it. He refers to discussion with the Homeowner regarding his discovery shortly after occupying the premises that raw effluent had leaked from the drainage system. Steley anticipates that ‘inadequate articulation and construction/ installation of the waste pipes have been made to accommodate movement in the building and founding soils.’
238.Tayler’s first report states that that Council approval was given for plumbing and notes that the septic tank has been relocated. His second report additionally comments that leaks happen at times, but this does not mean plumbing is defective.
239.Neither Engwirda nor Steley examined the plumbing and drainage work. I consider their comments in this regard accordingly unsupported and unhelpful. The comments made by Steley are speculative only. As discussed earlier, I am satisfied that the Homeowner’s inattention to maintenance of the Biocycle resulted in its failure. I am not satisfied that a breach of contract is disclosed.
Miscellaneous Minor Matters
240.Engwirda appears to suggest that a step stringer has not been fitted in a tradesman-like manner; that the step down from the landing to ground level exceeds the maximum size step permitted in the BCA; and that a concrete column’s appearance is unsatisfactory indicating that it was not vibrated. Steley agrees with these comments. He further suggests in relation to the stairs that timber elements are in close contact with the ground promoting the possibility of termite infestation.
241.Tayler’s first report opines that the house has been passed by Council and that there is no requirement to vibrate concrete. His second report notes that from the photograph the step appears satisfactory.
242.The suggestion seems to be that this particular step is not constructed in a tradesman like manner. Tayler has not inspected the step, but disagrees having regard to a photograph. The house was certified. On the balance of probabilities, I am not satisfied that there has been any breach of contract established regarding this step or the failure to vibrate the concrete column.
Subsidence
243.Engwirda expresses the view that there has been some subsidence of the fill below the concrete floor slab, and further expresses the view that subsidence may be ongoing. He bases this view on various ‘observations over a period of time’ made including that a concrete floor slab at lower floor level slopes towards the rear of the building; all steel columns at lower floor level (except one) lean towards the rear of the allotment by up to 20mm; column 23 is no longer in the centre of the timber floor at upper floor level but column 23 has remained plumb, suggesting to him that the floor surrounding the column has moved towards the rear of the allotment; three timber posts supporting the side porch lean downhill by 35, 63 and 42 mm respectively.
244.He suggests that fill below the concrete slab was not properly compacted and the floor slab has subsided more so at the rear of the building where fill below the slab is deepest. In his opinion, as a result, there have been several consequences including the movement of the upper floor towards the rear of the house, causing the floor around column 23 to be pulled towards that column, and all steel columns in rows E, F and G leaned to the rear of the house. He expects that if all columns had been initially plumb, they would now lean by the same margin, but he concedes that is not the case and that he has no logical explanation for this except ‘indifferent workmanship’ during construction of the frame. He considers whether the floor slab may have been constructed out of level, but states that would leave him without an explanation as to why the floor at the upper level has moved towards column 23. He considers movement of the fill below the slab ‘is likely to have been exacerbated due to lack of drainage around the house’ allowing rainwater to run underneath the floor slab.
245.In his view, subsidence could have been avoided by ‘adopting proper construction methods’ and close attention to the engineer’s report. In this regard, he notes comments in the engineer’s soil investigation report indicating that the soil has a high shrink/swell potential; that the fill is poorly compacted; that piers are required under the slab and footing; and to the effect that unless drainage and site maintenance are observed, a stiffer design is required. He considers that in light of the soil test results, the Builder should have been instructed to remove the fill and reposition and compact it. He observes that the Rymark interim report indicates that holes were dug below the steel columns for piers, but that no holes are indicated for the support of the floor slab. He suggests testing for Z-bars and beam reinforcement in accordance with engineer’s design. He comments that no site drainage or surface drains were provided.
246.Steley concurs with many of Engwirda’s comments. He acknowledges a number of variations in the level of the slab at ground level and refers to making his own observations and measurements. Regarding column 23, although he concurs that it is not in the centre of the aperture at upper floor level, he states cannot comment on how that situation occurred. He states that he considers the appearance and finish unacceptable, and assuming that column 23 when constructed was in the centre of the opening, then the sideways movement which has occurred would be an unacceptable amount, likely indicating substantial movement in either the column or the floor diaphragm. If it was the latter, it would be the consequence of movement in the framing structure supporting the floor diaphragm indicative of the various defects which he considers have been identified in the subfloor area. He adopts a view that subsidence of the fill beneath the concrete floor slab is due to a lack of ‘initial compaction’ and may have been exacerbated by undiverted rainwater runoff from the embankment and beneath the home. Of course, he did not locate the spoon drain which was constructed. He states that he can make no comment about the possibility that the slab was constructed out of level initially.
247.Tayler’s first report primarily responds that Engwirda is not qualified to comment on subsidence or take levels, and that a licensed surveyor would need to take levels. He refers to there being some tolerances and notes that Engwirda admits that not all columns lean and that some are plumb. He notes that the house was passed by Council. He comments that drainage is an ongoing maintenance issue for the owner of any home and specifically that Engwirda failed to observe the spoon drain. He notes that there is no cracking upstairs. Regarding column 23, he comments that some movement within tolerances is acceptable.
248.In his second report, Tayler again comments that Engwirda is not qualified to comment on subsidence. Further, he considers that there is no mention of tolerances and that in accordance with AS2870 house slabs are commonly built to accommodate settlement and distortion, but are required to perform within certain limits. He considers that he does not know how much the walls are out of plumb. He notes also that he does not consider Engwirda qualified to comment on site classification issues.
249.Tayler held firm to the view that Engwirda was not qualified to take levels and as they hadn’t been checked, he couldn’t verify them. He stated that builders are not trained or qualified to take levels. They should be taken by a surveyor.
250.The Homeowner’s evidence was to the effect that Column 23 is hard up against one side of the hole which accommodates it. There is a small amount of clearance around the pole and the Homeowner suggested it was about 40mm evenly around the pole at handover. Therefore, the amount of movement of the pole is a number of millimetres.
251.Regarding column 23, it is the case that the column is no longer in the centre of the aperture. Steley says the movement is ‘substantial’ but does not acknowledge acceptable tolerances for a pole home construction. Unhelpfully, Tayler fails to indicate whether it is within tolerances. It is clear that the movement could only be millimetres. Ultimately, I consider that the Homeowner has not adduced evidence which establishes a breach of contract in respect of this item. I accept Tayler’s evidence that builders do not have the relevant expertise to comment on subsidence or take the levels. Accordingly, I am not satisfied that any breach of contract has been established in respect of the other items raised.
Termite Protection
252.Engwirda makes the observation that he has not examined possible sources of termite infestation by subterranean termites. Steley states that although he is not licensed as a pest or termite inspector, through his knowledge of building procedures he sees opportunities in the construction that could cause infestation and states that the majority of these could not be corrected without demolition and reconstruction.
253.Tayler’s second report states that the Builder advises that prior to handover ‘part B’ spray was installed and it is the Homeowners responsibility to have annual inspections. He considers Steley’s comments about demolition are ‘absurd’ and ‘alarmist’. He observes that Steley does not provide any examples of the issues he apparently identified and observes that even in the case of termite infestation, usually demolition would not be necessary, as termites ‘usually infest a small part of the house’.
254.Steley does not particularise and substantiate his statements. Nor does he allege any termite infestation. In any event he concedes that he is not licensed and accordingly he does not have the requisite expertise regarding pest and termite issues to express opinion. A breach of the contract specifications is not alleged and I am not satisfied that a breach is established.
Insurance
255.Engwirda postulates that if the house blew over in a storm and the insurance company refused to pay out on the basis that the building was not braced and tied down in accordance with the BCA and AS1684-1999 and the owner knew of the defect when he insured the building, it would be ‘cold comfort’ that ‘a timber yard and an engineer had stated that it was not necessary to adhere to those regulations and/or the approved contract drawings and specification’.
256.Steley who is a loss adjustor considers that this would not have been the case before the owner became aware of the defects. He considers, presumably on the basis that the owner is now aware of the ‘defects’ that the home is uninsurable (except it seems as to theft, hail damage and fire) and potentially unable to be financed.
257.In his first report, Tayler considers Engwirda to be forecasting, noting that the house has been approved and certified except for extension work of the owner. In his second report, he states that the comments made should be verified with insurance professional and observes that the building stands despite high winds. He refers to the rectification work undertaken as directed by Rymark Engineers and Jeffrey Hill.
258.The item does not raise any new issues relevant to whether there has been a breach of the building contract.
Issue 4: Assessment of Damages
a. Did any breach of contract result in instability requiring remedial work for which damages are sought?
b. If a breach did not result in instability, is it reasonable or necessary for the remedial work for which damages are sought to be undertaken?
259.A number of breaches of contract have been established. However, in respect of most of them, I have found that as the structural integrity of the construction was maintained. Accordingly, the Homeowner has not suffered damage as a result. Damages must be assessed in relation to the inadequate embedment of poles and consequent inadequacy of bracing and tie-down that has resulted.
The Evidence
260.Steley’s primary argument was that the house should be demolished and rebuilt. Hawksley, a builder, gave evidence regarding costs to demolish and rebuild the house. He did not calculate a specific dollar sum, relying on his earlier quotation dated January 2007[35] of $271,260 and an annual percentage increase of 6.8% over 3 years since the quote.The Homeowner also claimed costs of removal and storage of contents during demolition and reconstruction of $13,490; loss of building materials and work performed by him of $60,000; and costs of rental accommodation during demolition and reconstruction of $650 per week for 26 weeks.
[35] Exhibit C.
261.Tayler expressed the view that if necessary, the house could be restumped and Steley conceded this was so. Further, Steley provided an Estimate[36] to correct the lack of pole embedment totalling $33,357.
[36] Exhibit R.
262.Mr Maycock gave oral evidence about the Steley Estimate. He considered that the costs of labour as quoted at $60 per hour as high, given that he expects to pay a licensed carpenter with his own tools about $40 per hour and an unqualified labourer about $15-20 per hour plus their 9% superannuation. Steley quoted $500 each for 3 engineer’s inspections. Maycock suggested that $200 per inspection was a reasonable allowance.
Discussion and Findings
263.On the evidence of Steley and Tayler, demolition and rebuilding is not required to rectify the damage which I have accepted as resulting from a breach of the contract, and give the Homeowner the equivalent of a building which is substantially in accordance with the contract. This can be achieved through restumping of the house. Indeed, the Homeowner conceded through submissions made by his Counsel, that if the tribunal concluded that the only work requiring rectification for noncompliance with the specifications was the pole embedment, damages for the costs of restumping would be the appropriate remedy.
264.In terms of the Bellgrove principles, I have accepted that pole embedment goes to the stability or structural adequacy of the house. This being so, the reasonableness qualification does not apply. The house has been standing and lived in for 10 years. In this case the threat to stability is not immediate, but that does not make it less real. However, even if the stability of the house was not threatened by the lack of pole embedment, in the face of a failure to comply with the contract in this fundamental aspect of construction of a pole home, I consider that restumping would be a reasonable course to adopt. The Homeowner should not be obliged to accept ad hoc rectification measures in respect of this issue.
265.It is reasonable to infer from the different views expressed by Steley and Mr Maycock about appropriate wages to be paid to labourers and carpenters that there is a range of wages paid within the building. The Builder did not provide an alternative quotation for restumping. The Builder will not be undertaking the restumping work. I am not persuaded by the Builder’s evidence that the amount estimated by Steley for restumping should be adjusted. I accept Steley’s estimate for the costs of restumping.
Part C: The Orders
Accordingly, I will make orders for the payment of the costs of restumping by the respondent to the applicant in the sum of $33,357. The applicant seeks interest and costs of the application. In respect of interest, as the applicant has been successful in relation to costs for damages not yet incurred, I do not intend to make orders for the payment of interest.
Unless the parties are able to resolve this issue of costs, the applicant will be required to file and serve submissions in relation to the issue of costs within 21 days, and the respondent file and serve submissions on costs within a further 21 days. The issue of costs will then be determined on the papers.
Orders:
1.That the respondent pay to the applicant the sum of $33,357 by 19 November 2010.
2.That the applicant file and serve submissions in relation to costs by 8 November 2010.
3.That the respondent file and serve submissions in relation to costs by 29 November 2010.
4.That the issue of costs be determined on the papers.
4
0