Stay a Little Longer v Bryson
[2013] QCAT 266
| CITATION: | Stay A Little Longer v Bryson [2013] QCAT 266 |
| PARTIES: | Stay A Little Longer (Applicant) |
| v | |
| Julie Bryson (Respondent) |
| APPLICATION NUMBER: | BDL033-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 25 October 2012 |
| HEARD AT: | Rockhampton |
| DECISION OF: | Philippa Beckinsale, Member |
| DELIVERED ON: | 18 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The applicant rectify the verandah at 18 Gardenia Street Kinka Beach to allow the area to drain freely and ensure gapping between boards does not exceed 3mm. 2. The applicant then hand sand and apply timber stain product to the deck. 3. The applicant replace damaged screw seals and roof sheeting which has been damaged by swarf corrosion or the application of rust converter or by inappropriate walking. 4. The applicant rectify the shower grates so the grates can be removed for cleaning. 5. The applicant obtain for the respondent, a sample box of the tiles the applicant proposes as the closest possible match for the tiles in the bathroom, and the respondent either elect to accept the sum of $500 compensation or alternatively elect that the defect be rectified by the nib wall beneath the bath being correctly aligned and retiled with the new tiles shown to the respondent. 6. The applicant replace the flange on the bath spout with a larger Dorf brand flange to match the tapware. 7. The respondent elect to accept $1000 compensation for the defective section of path on the western side of the house or alternatively elect that the applicant rectify the defect by replacing that section of path to prevent moisture affecting the house and that the applicant achieve the best possible match of new concrete to the existing path. 8. The respondent elect to leave the front garage panel door as is or alternatively elect that the applicant touch up the area of damaged paintwork. 9. The applicant replace the rear garage roller door curtain. 10. The applicant replace the area of fibre cement sheeting above the roof on the side of the house with weather board cladding. 11. That once other defects or contractual requirements to the roof area have been completed by the applicant that the applicant rectify any damage to the paint on the gutter with touch up paint. 12. The applicant provide to the respondent certification that the exterior garage wall has been sealed to prevent water penetrating through the bricks. 13. The applicant install locks and provide keys to the respondent for the verandah stacker door; verandah screen door; media room sliding door; and garage internal sliding door so that these doors are able to be locked from the outside. 14. Once the applicant has complied with the orders above the respondent pay to the applicant within seven days the sum of $8000 less any amounts of compensation in lieu of rectification which she elects to accept according to these orders. |
| CATCHWORDS: | Building matter-claim for unpaid monies-alleged defective work, breach of contract- Queensland Building Services Authority Act 1991 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Applicant represented by Anthony Pianta |
| RESPONDENT: | Respondent appeared in person assisted by her husband, Mark Bryson |
REASONS FOR DECISION
In July 2010 the applicant contracted to build a house for the respondent, Mrs Bryson, at 18 Gardenia Street Kinka Beach Queensland. The house was completed in January 2011.
Mr Pianta, the director of the applicant company, filed an application for a domestic building dispute in January 2012 alleging an amount of $8000 was owing to the applicant by Mrs Bryson under the building contract.
The response filed by Mrs Bryson disputes the allegations that monies are owed on the basis that rectifications had not been completed by the applicant.
QCAT is empowered by the Building Services Authority Act 1991[1] to decide a building dispute[2]. The contract in dispute is also reviewable domestic building work under the Domestic Contracts Act 2000. This Act contains a number of implied warranties in every regulated contract[3].
[1] Building Services Authority Act 1991, ss 76, 77.
[2] Defined under schedule 2 of this Act to include a domestic building dispute.
[3] See Part 4 of that Act.
The parties have made attempts to reach agreement. Three inspections have been carried out by three different building inspectors and reports provided. The parties have taken part in three Tribunal compulsory conferences, including one on site, as well as continuing discussions between themselves with a number of matters being resolved by agreement. Neither party filed a statement of evidence as directed. Neither party called any witnesses although Mr Bryson gave evidence, and with Mr Pianta’s agreement conducted the respondent’s case. The contract was between Mr Pianta’s company and Mrs Bryson because she was registered owner of the land but the house built was the residence of Mr and Mrs Bryson and the parties agreed Mr Bryson had taken the more active role in dealings with Mr Pianta. By the hearing the parties had narrowed the list of issues in contention and the hearing proceeded on an issue by issue basis with the Brysons alleging defects or breaches of the building contract. These reasons deal with the issues in the order they were raised by the parties at the hearing.
The Verandah
The most recent building report, dated 28 June 2012, was ordered by the Tribunal from the Queensland Building Services Authority. The verandah is dealt with as Item Number 13 of the QBSA report. The report concludes the perimeter of the verandah has not been constructed in accordance with the approved engineering detail and prevents moisture from escaping from beneath the verandah deck area. The report also states spacing is excessive between the boards, up to 6 millimetres whilst the recommended gap for external strip flooring is 3 millimetres. The report notes that the mitres to the junction between the side and front verandahs do not meet but that that is not possible due to the different widths of the verandahs.
Mr Pianta acknowledges the verandah requires rectification. His proposed solution is depicted in the drawing provided by him stamped number 924\2012 by Rockhampton Building Approvals. He says the alterations he proposes will allow the area to drain correctly. He gave evidence he would remove and replace the six outer boards to enable the extension of the joist with a new nose board to cover where the top brick under the verandah is removed to allow the release of water. After replacing the boards he proposes to hand sand the deck and apply a suitable coating. The gapping between the boards as well as around the posts will be rectified and he says the flooring will then meet Australian Standards.
The Brysons disagree that Mr Pianta’s proposal for rectification is adequate. Mr Bryson contends that the timber used for the decking was not “merbau” as specified in the attachments to the contract but “balau” which Mr Bryson describes as a softer, less expensive and inferior timber. Mr Bryson said that merbau is the decking timber which is standard in the industry whereas balau is difficult to mill resulting in excessive lipping between the verandah boards.
Mr Bryson disagreed with the QBSA Report that gapping between the boards is only up to 6mm. He said he had carried out his own measurements which revealed gaps up to 14mm in two places with gapping varying elsewhere from 1 to 11mm. Mr and Mrs Bryson also contended Mr Pianta’s proposal to extend the existing joist was unacceptable in a new construction, Mrs Bryson contending that an extended joist would be weaker and they sought that the joist be replaced with a longer joist. They also described the lipping occurring between boards as unacceptable, displaying poor workmanship and presenting a tripping hazard as well as being unaesthetic. Mr and Mrs Bryson submitted that the only satisfactory method of rectifying the verandah was for the decking to be removed, the joist replaced with a longer joist and the decking reinstalled using new merbau boards.
Mr Pianta’s evidence was that his proposed method of rectification would comply with Australian Standards, joining joists to extend the length is an acceptable building practice and appropriate in this situation where the join is not visible beneath a floor. He stated that the replacement of the outer boards will rectify the unacceptable gapping which is around the posts and between the boards which meet at the verandah corner. Mr Pianta gave evidence that the QBSA building inspector knew the Brysons were unhappy with the degree of lipping but found lipping to be within an acceptable range of 2-4mm and therefore did not include that issue in the report. Mrs Bryson recollected that lipping was raised with the inspector but did not recall his response.
Mr Pianta gave evidence that balau was used for decking as regularly as merbau, that these timbers were of equivalent quality and that balau is not softer, merbau being more likely to dent. He agreed that currently balau is the cheaper of the two but said that cost varies according to supply and is not due to one timber being inferior to the other. He said that difference in colour is often the reason for one being selected over the other.
Mr Bryson stated that his knowledge of building practice has been gained from thirty years renovating houses and from research. This is the first new house the Brysons have had built. Mr Pianta is a self employed builder employing six employees and over fifty subcontractors. He has been self employed for the last three years and has constructed around eighteen new homes over that time mainly in the Capricorn Coast region. Prior to that he worked for five years as a carpenter for a construction company and prior to that as a builder’s labourer. Neither party called the authors of the building reports or any other witnesses. Where the parties differ in their opinion as to building practices I prefer that of Mr Pianta to Mr or Mrs Bryson.
I rely on the QBSA report and find that the verandah requires rectification to allow the area to drain freely and that the gapping of boards is to be rectified so as to comply with the recommended maximum gap of 3mm. I accept Mr Pianta’s evidence and find the lipping complained of by Mr and Mrs Bryson does not require rectification. Relying on Mr Pianta’s evidence that balau timber is an equivalent product to merbau and on Mr Bryson’s evidence that colour was not a consideration in choice of timber I do not find that there is a breach of contract and do not order the decking timber be replaced. I accept Mr Pianta’s evidence that lengthening the joist by extending it complies with building standards. I find the proposed solution as depicted in the drawing stamped by Rockhampton Building Approvals is satisfactory.
Roof
Mr Bryson contends that Colorbond steel sheeting has been used on the roof whereas given the proximity of the building to the ocean Colorbond Ultra steel was required. He has provided a copy of an email from the supplier which says Ultra is the product recommended in that location and a copy of a technical bulletin of the supplier which indicates that Ultra is the product recommended for roofing in a severe marine environment which is identified as being a distance of 101-200m from breaking surf or exposed marine or 0-100m from calm marine. Mr Bryson said he measured the distance of his residence as 155m from the high tide mark and showed a short video recording on his phone which he said depicted breaking surf at Kinka Beach where his home is located. He contends that the roof sheeting should be replaced with Colorbond Ultra which would also address the issue that a number of sheets have been damaged since installation of the roof.
Mr Pianta said that the he had relied on the supplier to ascertain the material required at that location. He disagreed that the beach at that location would be considered breaking surf. He contended that the roof sheeting used complies with Australian Standards as is evidenced in the QBSA report at item number 3.
I accept the evidence in the QBSA report and will not order the replacement of the roof.
The QBSA report at item 6 comments that roof sheeting has been damaged where swarf staining has been treated with rust converter and further that roof screw fixings have been over tightened damaging screw seals. At item 8 of the report there is comment that roof sheeting has been damaged due to inappropriate walking on the sheeting. The QBSA report describes these matters as defects requiring rectification and Mr Pianta agrees.
I order that the applicant replace damaged screw seals and roof sheeting which has been damaged by swarf corrosion or the application of rust converter or by inappropriate walking.
Grate in Shower Tray
This issue was not dealt with in the QBSA report. Mr Pianta said the grates in the shower trays which should be removable to allow cleaning have been grouted in and need to be altered so they are removable. Mr Bryson agreed that needed to be done but had further concerns with the construction of the showers and possible problems with water proofing. Initially he advised that no order was sought by Mrs Bryson concerning the showers but at the end of the hearing proposed that Mr Pianta, in addition to making the grate removable, also ensure that the shower trays comply with Australian Standards. I am not satisfied there was sufficient evidence that the shower trays do not comply with Australian Standards and will not make that order but I will order Mr Pianta rectify the shower tray grates so the grates can be removed for cleaning.
Nib Wall Beneath Bath
The Brysons and Mr Pianta agree with item number 50 of the QBSA report that the nib wall beneath the bath has been installed out of alignment and that rectification is required. The Brysons contend that as it will not be possible to satisfactorily match the tiles on a new nib wall, all the tiles in the bathroom should be replaced. Alternatively Mr Bryson stated they would be prepared to accept monetary compensation for the defect.
Mr Pianta acknowledged it would not be possible to exactly match tiles when the tiles are not produced as part of the same batch. Mr Pianta gave evidence that when repairing tiled areas it is acceptable practice to achieve the closest match possible. He estimated the cost to him of rectifying the nib wall and retiling using the closest possible match would be $200 and the cost of retiling the entire bathroom $3000-$4000. In response to the Bryson’s suggestion of monetary compensation rather than rectification he proposed $500.
Mr and Mrs Bryson rejected that amount and submitted that appropriate rectification required the retiling of the bathroom as they would be unhappy having unmatched tiles on the nib wall given the look they sought to achieve in the bathroom.
I consider the appropriate rectification of the defective nib wall does not require retiling the entire bathroom. However I order that Mr Pianta obtain for Mr and Mrs Bryson, a sample box of the tiles he proposes as the closest possible match, and Mrs Bryson can elect to accept the sum of $500, which I find to be reasonable compensation or require the defect to be rectified by the nib wall being correctly aligned and retiled with the new tiles she has been shown.
Flange on Bath Spout
The Brysons and Mr Pianta agree with item number 51 of the QBSA report that the flange of the bath spout does not cover the hole cut in the tile and is a defect requiring rectification. Mr Pianta says he will replace the existing flange with a larger flange. Mr Bryson says the replacement needs to be Dorf brand to match the tapware. I agree and order that Mr Pianta replace the flange with a larger Dorf brand flange to match the tapware.
Concrete Path
Mr Pianta and Mr and Mrs Bryson agree with item number 14 of the QBSA report that a section of the concrete path at the western end of the side verandah slopes towards the house and is a defect requiring rectification by replacing that section of path to prevent moisture affecting the building.
The Brysons have concerns about the new section of path adequately matching the existing path and Mr Pianta agrees an exact match will not be possible and that he is only required to achieve the closest match able to be made. The parties agreed that monetary compensation is appropriate to deal with this issue but were unable to agree on a figure. Mr Pianta estimated the cost of rectification to be $500 and initially proposed $750 compensation which he increased to $1000. Mr Bryson said they required payment of $1500 or rectification.
I order that Mrs Bryson may elect to accept $1000 compensation for the defective path or alternately she elect that Mr Pianta rectify the defect by replacing the section of path to prevent moisture affecting the house and that he achieves the best possible match of new concrete to the existing path.
Carpet
Mr Pianta and the Brysons agree as outlined in item 31 of the QBSA report that in the process of replacing tiles in the entry hallway extensive dust was caused and settled throughout the house as shown in photographs in the report. The Brysons agree that Mr Pianta arranged for the house to be cleaned with the carpets vacuumed and that Mr Pianta offered to have the carpet professionally shampooed or steam cleaned. Mr Bryson gave evidence that he has the lung disease emphysema and is particularly sensitive to dust. He said although Mrs Bryson was able to tolerate the carpet in the main bedroom he remains unable to sleep in that room. Mr Bryson said he had refused to permit the shampooing or steam cleaning of the carpet as he was of the view that such a process shortens the life of carpet and in this case water would mix with the grout dust from the tiles and be very bad for the carpet. Mr Bryson said that with vacuuming the very fine dust will just keep working its way up and that the only solution was for Mr Pianta to have the carpet in the main bedroom replaced. Mr Bryson said he had nearly five years professional experience shampooing carpets some years ago.
As noted in the QBSA report cleaning is a contractual matter between the parties. I consider Mr Pianta has met his obligation to clean the house where necessary to a reasonable standard and I make no order regarding the carpet.
Front Panel Garage Door
Item number 9-1 of the QBSA report notes there is minor damage to the paint on the front panel lift door and that due to the very minor nature of this defect, point touch up of the paint would be acceptable. Mr Pianta agrees but Mr Bryson said that at the time the report writer inspected the front panel door it was in shade and the defect can only be seen in sunlight. He added that touch up paint would stand out more than the existing defect and said the only satisfactory method of rectification was for the door to be replaced.
I accept the evidence of the QBSA report and order that Mr Pianta touch up the area of damaged paintwork. Alternatively Mrs Bryson may elect to leave the front garage panel door as is.
Rear Garage Roller Door
Both Mr Pianta and the Brysons agree with item 9-2 of the QBSA report that due to the large area of damage replacement of the door curtain is the only satisfactory method of rectification. I order that the defect to the rear garage roller door be rectified by Mr Pianta replacing the door curtain.
Sheeting of Walls Above Roof
Mr Pianta agreed with Mr Bryson that flat fibre cement sheeting had been used above the roof whereas the plan showed a weather board profile in that area which is a contractual breach. Mr Pianta said when he attended at the property and replaced the fibre cement sheeting with weather board cladding at the front of the house Mr Bryson had advised he did not require the sheeting to be replaced on the side so he had not done so and should not be required to do so now.
On the basis of the contractual breach I order that Mr Pianta replace the area of fibre cement sheeting above the roof on the side of the house with weather board cladding.
Paint Damage to Guttering
Item 7 of the QBSA report comments on minor damage to guttering above the laundry door where ladders may have been placed against the guttering to gain access to the roof and is a defect requiring rectification by touch up. Mr Bryson said this still needed doing. Mr Pianta said it had been done but may need redoing with additional occasions of the roof being accessed and he agreed to attend to this. I order that once other defects or contractual requirements to the roof area have been completed by Mr Pianta that he rectify any damage to the paint on the gutter by touch up.
Timber Scotia Cornice
Mr Pianta and Mr and Mrs. Bryson agree with item 12 of the QBSA report that the issue between them regarding the timber scotia cornice on the ceiling to the verandah is contractual.
Mr Pianta’s evidence was that whilst 3 step cornice was an inclusion in the interior of the house, 3 step is not usually used externally and if required on external ceilings he would quote it as an extra. Mr Bryson however gave evidence that he understood that 3 step cornice was to be installed to the verandah ceilings of his house. The “Other Items” schedule to the contract does not refer to internal and exterior ceiling cornice but Mr Bryson relied on conversations and email exchanges he said he had with Mr Pianta. In particular he gave evidence he recalled talking to Mr Pianta on the verandah of a house built by Mr Pianta. Mr Bryson gave evidence that he asked Mr Pianta “can you do this?” referring to the 3 step cornice which was installed on the verandah ceilings and that he understood Mr Pianta to advise that 3 step cornice throughout the ceilings of the house was included other than in wardrobes and the garage. Mr Pianta gave evidence that he also recalled having a conversation with Mr Bryson about 3 step cornice although he thought the conversation may have occurred in the kitchen of the house he was showing Mr Bryson. He agreed he told Mr Bryson 3 step cornice was included throughout the house referring to the interior. Mr Pianta was clear that 3 step cornice on external ceilings is an extra cost and that in the case of the house he was showing Mr Bryson it was installed on the verandah at an extra cost of $1500. During the construction of the Bryson’s house Mr Pianta and Mr Bryson agreed that Mr Bryson questioned Mr Pianta about 3 step cornice not being installed on the verandah ceiling and Mr Pianta responded that would cost an extra $1000. They both agreed Mr Bryson objected to paying extra saying he thought it was included and Mr Pianta disagreed so did not install 3 step cornice on the verandah ceiling.
I found Mr Pianta and Mr Bryson both to be credible witnesses as to what occurred in relation to the 3 step cornice but that they were at cross purposes. Mr Bryson believed 3 step cornice was to be installed on the verandah but Mr Pianta had not understood that was what Mr Bryson had been referring to so he had therefore not calculated a price for what was an extra. If this misunderstanding had been realised at the outset I believe a price for the exterior 3 step would have been agreed to or the Brysons may have decided they didn’t want the extra expense. At the time the misunderstanding was uncovered by the parties the house was under construction and there was still the possibility for the addition of 3 step cornice to the verandah ceilings but Mr Bryson was unwilling to pay extra for what he considered he already had. I find that there has been no loss to Mrs Bryson as a result of the 3 step cornice not being installed and I make no order regarding this issue.
Timber Staining of Deck
Mr Pianta and the Brysons agreed with item 23 of the QBSA report that the finish of the timber stain product used on the decking is patchy and is a defect which requires rectification. Mr Pianta said once he has rectified the other defects to the verandah he will hand sand all the boards and apply stain. I order that Mr Pianta hand sand and apply timber stain product to the deck after he has otherwise rectified defects to the verandah.
Certification of Exterior Garage Walls
Mr Pianta and Mr Bryson asked that an order be made as follows:
Mr Pianta provide to Mrs Bryson certification that the exterior garage wall has been sealed to prevent water penetrating through the bricks as the height of the weepholes to the side of the garage is not to Australian Standard.
Verandah Ceiling
Mr Bryson said the presence of mould has been an ongoing problem on the Gyprock sheeting of the verandah ceiling. At the time of the QBSA inspection Mr Pianta had had the ceiling repainted so it was not raised as an issue in the report but since then the mould has reappeared.
It was not in contention that the ceiling remained unpainted for a period of time after it was installed and became mouldy. Mr Pianta said the painter treated the ceiling with chlorine before applying three coats of paint and that was not disputed by Mr Bryson.
Mr Bryson showed Mr Pianta photos on his phone at the hearing which Mr Bryson described as showing mould currently on three or four spots on the joins of the ceiling. Mr Bryson contended that the ceiling had been left exposed too long and the mould problem would not have occurred if the sheeting had been sealed immediately. Mr Bryson said that the mould will get worse and every time it rains, come back. Mr Bryson made further submissions that the Gyprock and compound used on the joins is unsuitable in an external area. He said he had been advised by the supplier CSR that the recommended product to use externally was Aquachek and that an antimould compound for the joins was also available. He submitted that Mr Pianta should be ordered to resheet the verandah ceiling with Aquachek.
Mr Pianta said the building code does not differentiate between Gyprock used internally or externally. He says he mostly builds houses in coastal areas and has never installed a different Gyprock externally.
I am not satisfied on the evidence provided by Mrs Bryson that the ceiling installed on the verandah is defective or not suitable for the purpose and that the mould currently present on the ceiling is anything more than that requiring removal as part of ongoing cleaning and maintenance, especially on the open verandah of a house situated near the coast. I therefore make no order.
Keys
Mr Pianta and Mr Bryson agreed to an order that Mr Pianta install locks and provide keys to the Brysons for the verandah stacker door, verandah screen door, the media room sliding door and the garage internal door so that these doors are able to be locked from the outside.
Outstanding Monies
Mrs Bryson does not disagree with Mr Pianta’s contention that $8000 remains owing under the contract but objected to paying this sum until Mr Pianta attended to the matters raised as being defective or not in accordance with the contract. I accordingly order that once Mr Pianta has complied with the orders made in this decision that Mrs Bryson pay to Stay A Little Longer Pty Ltd within seven days the sum of $8000 less any amounts of compensation in lieu of rectification which she elects to accept according to these orders.
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