Stephen William Penders and Lisa Penders v Jevessa Pty Ltd - [2002] WADC 197

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: STEPHEN WILLIAM PENDERS AND LISA PENDERS -v- JEVESSA PTY LTD [2002] WADC 197

CORAM: FRENCH DCJ

HEARD: 20-21 JUNE 2002

DELIVERED : 21 JUNE 2002

PUBLISHED : 16 SEPTEMBER 2002

FILE NO/S: CIV 1725 of 2001

BETWEEN: STEPHEN WILLIAM PENDERS AND LISA PENDERS
Plaintiffs
AND
JEVESSA PTY LTD (ACN 075 521 881)
Defendant

Catchwords:

Contract - Breach of implied term for installation of timber floor in a proper and workmanlike manner - Turns on own facts

Legislation:

Nil

Result:

Plaintiffs awarded damages in the sum of $40,049.70

Representation:

Counsel:

Plaintiffs: Mr P A Monaco
Defendant: Mr K E Win

Solicitors:

Plaintiffs: Godfrey Virtue & Co
Defendant: Michael Whyte & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

FRENCH DCJ: The plaintiffs seek damages from the defendant for breach of a contract for the supply and installation of timber flooring in their newly constructed residence in Yunderup.
The plaintiffs obtained a written quotation from the defendant on 14 January 2000. On or about 16 February 2000 the plaintiffs and the defendant entered into an oral agreement that the defendant would supply and install approximately 204 m² of Karri timber flooring for the sum of $22,000. The timber flooring was to be installed throughout the home with the exception of the bathrooms and wet areas.
It was an implied term of the agreement that the defendant would carry out the works in a proper and workmanlike manner. The terms of the contract are not in dispute between the parties and the issues for determination by the Court are:
Whether any defects in the flooring were caused by faulty installation or workmanship on the part of the defendant.
The extent of the defects and whether these can be rectified by partial replacement and repair or whether all of the flooring is required to be removed and replaced.
On or about 24 February 2000 the timber boards to be installed by the defendant were delivered to the property and left in the garage wrapped in plastic. Between 28 February and 13 March 2000 the timber flooring was installed by tradesmen employed by or contracted by the defendant. The defendant rendered three invoices to the plaintiffs during the course of the installation and these were paid by the plaintiffs subject to some minor variations to compensate for damage to paintwork on the walls caused during the installation of the timber floor. After the installation was complete the plaintiff, Lisa Penders, advised Amanda Watson, a director of the defendant, that she had observed glue seeping through some of the joins. On 22 March 2000 Amanda Watson attended at the property to inspect this complaint. She cut out some of the glue that had seeped through the timber joins between the boards and covered some white marks at these joins on the floor with a brown marking pen. On this occasion Lisa Penders advised Ms Watson that she had noticed areas of "drumminess" or hollow sounds in the timber flooring in the family room and the main bedroom.
By April 2000 the plaintiffs began to notice areas of slight "cupping" in the floor in the family meals area. The terms "cupping" and "peaking" were used to describe the appearance of defects in the timber flooring during the course of the evidence. The term "cupping" was used to describe a concave or banana shaped appearance to a single board in which the outer edges of the board moved up vertically to a level higher than the horizontal plane of the middle of the board. "Peaking" was used to describe the lifting up of more than one board from the horizontal plane creating an impression of peaks in the timber flooring as opposed to a smooth flat surface.
By June 2000 the plaintiffs were also concerned regarding a loss of gloss in the varnished finish to the floor in the kitchen area. On 2 June 2000 Lisa Penders rang Amanda Watson to advise of these complaints. Ms Watson told her that she was very busy at that time because of the pending introduction of the GST and said that she would arrange to come and inspect the flooring in July. On 28 July 2000 Lisa Penders again rang Ms Watson to arrange for an inspection and to further complain of peaking of floorboards in her daughter's bedroom preventing a wardrobe door opening.
On 7 August 2000 Sean Light, a timber floor installer, attended at the property at Ms Watson's request. Ms Watson had instructed him to inspect the floor and to try to rectify the "cupping" of some of the boards. Mr Light noticed what he described as bubbled boards in the family room and cupped boards in the front bedrooms. In the kitchen area he said that there was a board that had peaked up off the floor and cupped near the doorway. Sean Light started to remove the defective boards and estimated that he removed 15‑17 lineal meters of board. He stated that apart from the boards that he removed he noticed "cupping" across the majority of the floorboards and also stated that he thought that further boards needed to be removed. He described the floor as being "fairly cuppy". Mr Light stated that he advised Mrs Penders that he would return to finish the repairs. In cross‑examination Sean Light stated that during the course of his inspection of the floor on 7 August he spoke to Ms Watson by telephone on a number of occasions. As a result of that phone call he advised Mrs Penders that one proposal was that the boards that had been removed would be replaced by pre‑varnished boards. He expressed some reservations to Mrs Penders about the use of that method. He agreed that in addition to removing boards from drummy areas he also cut out excess glue from some of the joins by using a Stanley knife. He agreed that this meant that the polyurethane finish had been broken.
Shortly after Mr Light inspected the property Amanda Watson advised Mrs Penders by phone that the defendant would replace the removed boards with pre‑varnished timber. Mrs Penders advised Amanda Watson that at that stage they did not wish to proceed with any repairs until they had obtained a report on the condition of the floor from a building inspection company.
On 21 August 2000 the plaintiffs wrote to the defendant enclosing that report and formally requesting a proposal for acceptable rectification work. The report recommends that the floor be made the subject of an assessment and adjudication by a suitable person with expertise within the timber industry. A number of problems were however highlighted in the report including the importance of the local environment of the site and the moisture content of the site prior to installation. There is reference to the fact that the boards may need to be acclimatised to local conditions prior to installation to ensure that there is no movement from winter to summer conditions that could cause cupping of the boards. The report also indicates that there appears to be difficulty in relation to the uniform application of glue as there are areas where the glue has not adhered evenly between the floor and boards as was apparent from viewing the condition of the floor and the boards that had to be removed. In response to that letter the defendant replied on 9 September 2000 with a proposal for rectification. The letter was written by Amanda Watson who stated that after discussions with Sean Light and other enquiries she was of the opinion that the cupping and swelling forcing boards to lift from the concrete (peaking) has been caused by moisture that has been taken on by the timber after installation that has caused swelling and eventually the lifting of the timber boards. She was of the opinion on the information available to her that the most likely cause of the increased moisture arose from the re‑painting of the house after the installation of the floor. The proposal was that defective boards or areas of boards be removed and replaced with timber that has been allowed to acclimatise at the house for approximately 2 weeks. She stated that this was so that the replacement timber would have the same moisture content as the remaining floor. Once that floor had been repaired the proposal was that the whole floor be sanded and polished to address the cupping and the plaintiff's concerns about the gloss level. The sanding and polishing would be carried out in two stages to reduce disruption to the plaintiffs' household if they were not planning to be away from the house at an appropriate period. The letter stated that although the defendant did not accept that the problem had been caused by negligence during the installation it advised that it was prepared to carry out all repair works at no cost to the plaintiffs.
Although Ms Watson was initially of the opinion that the moisture causing cupping and peaking of the boards arose from repainting, as a result of subsequent inspections of the property and reports from the defendant's expert witness Mr Martin Beel, it is the defendant's position that moisture has been taken up by the floor as a result of ingress of moisture from garden beds surrounding the floor and from an unusually high moisture content or humidity level in the house environment generally.
The plaintiffs did not accept and have not accepted the defendant's offer to replace some sections of the timber boards and then to re‑sand and re‑varnish the floor. The plaintiffs subsequently arranged for further inspections of the floor and then commenced proceedings against the defendant to recover damages calculated on the estimated cost of complete replacement of the floors and associated expenses.

Expert evidence

Dr Armand Zurhaar was called as a witness for the plaintiffs. Dr Zurhaar holds a bachelors and masters degree in applied science and a PhD in science. He has been acting as a consultant in the building industry with particular expertise in adhesive products and timber flooring for a number of years. He stated that he is recognised as an independent expert by the timber advisory council and works as a consultant in relation to problems and failures that occur in timber flooring.
On instructions from the plaintiffs he carried out an inspection of the floor on 10 October 2000. At that time he observed areas of drumminess or delamination affecting over 50 per cent of the total area of timber floor in the property. He concluded that the delamination was caused as a result of adhesive failure because of insufficient quantity of adhesive applied to the surfaces at the time of installation together with failure to ensure that the timber flooring was properly bedded into the adhesive applied to the concrete substratum. On inspection he noted that when boards in delaminated areas were removed there was insufficient amount of adhesive stuck to the board itself. In his opinion the areas where there is insufficient adhesive are widespread throughout the timber floor and are clearly the result of poor workmanship. In his report dated October 13 2000 Dr Zurhaar did not accept that the plaintiff's proposal to drill holes and inject adhesive under the pre‑existing floor was an appropriate method of rectification. He stated that this procedure should only be used on very localised areas and if applied to large areas would be unsightly and would still leave many areas of drumminess. In his opinion there was no alternative but to remove the timber floor and replace it with an adequate application of adhesive.
Dr Zurhaar viewed the problem of cupping and peaking as quite a different problem. He was of the opinion that that was caused by the installation of timber in a very dry state that has expanded with the onset of winter and an increase of moisture in the environment. He considered that the cupping was not an irreparable problem requiring replacement of the floor and stated that if it were not for the delamination problem it could have been readily removed with sanding. Although Dr Zurhaar noted that on his inspection that the polyurethane finish was particularly soft and appeared to scratch easily, he stated that that would depend on the level of hardness and scratch resistance that had been requested by the plaintiffs at the time of installation. On his inspection he did not detect any evidence of defect in the polyurethane product that had been used.
Dr Zurhaar conducted a further inspection on 17 May 2001. In a report dated 25 May Dr Zurhaar notes that the main purpose of the inspection was to assess allegations by the defendant that the problems associated with the floor are the result of unusually high moisture ingress at the property through the concrete sub floor and consequently into the timber. Dr Zurhaar advised that on that inspection the timber flooring appeared to be in a similar state as on his first inspection in October 2000. Moisture content of the timber floor was measured and found to be in a range from 11‑12 per cent which was not considered to be unusual at the beginning of winter. In the living areas Dr Zurhaar also measured moisture content of exterior walls finding that the plaster was hard and dry and therefore concluded that there were no adverse site conditions affecting the timber flooring in the living areas. He confirmed his previous advice that the delaminations were an occurrence that is not caused by moisture but is a consequence of poor installation. He noted that in the three front bedrooms the timber boards in contact with the exterior wall exhibit excessive cupping and peaking that is inconsistent with the flooring in the rest of the house. He estimated that less than 1m² of flooring was affected in each room. Moisture measurements of those areas found the timber to be at 16 per cent and the plaster to be very wet. He concluded that there was moisture ingress from the exterior and was of the opinion that that was likely to have been caused because of the level of garden beds abutting the exterior walls. He considered that that problem would have to be rectified and those areas of timber boards replaced. However, Dr Zurhaar pointed out that this was a localised problem and was not related to the cupping and delaminations in the balance of the house.
During the course of his evidence in court Dr Zurhaar summed up what he considered to be the main issue in this case, namely that if the only problem with the timber floor was the peaking and excessive cupping in the three front bedrooms and the mild cupping seen throughout the balance of the property then "we wouldn't be here today because it would be a relatively simple exercise to go in and to sand the cupping off". Dr Zurhaar was also of the opinion that the peaking in the front bedrooms was a localised problem and the boards could be replaced. However, because of the extensive delamination throughout the property the only way to rectify the problem was to completely replace the timber floor. In response to questions during the course of his evidence Dr Zurhaar also stated that the generalised cupping seen throughout the property may be as a result of a failing on the part of the installers to acclimatise the timber to its environment by distributing the boards throughout the property for approximately 2 weeks prior to installation. He stated that this was a usual practice in the industry when timber was being installed directly onto a new concrete slab. Dr Zurhaar measured the moisture content of the slab and was of the opinion that it had dried to a sufficient degree to allow for the timber floor to be installed. Acclimatising the timber in the manner he suggested would have reduced the widespread cupping caused by the timber boards taking up moisture and expanding underneath the polyurethane finish causing the outer edges of the board to curl up. Dr Zurhaar was also of the opinion that if there was delamination or insufficient bonding between the concrete pad and the timber boards then the boards would be more likely to cup if there was an expansion of the timber as a result of an increase in moisture levels.
Mr Robert Gould is the construction manager for the building firm that built the plaintiffs' home. He is an experienced builder who is familiar with the usual methods of installing timber floors. He conducted a site inspection of the property on 28 June 2001. In his opinion the problem of the timber floor has arisen as a result of failure to acclimatise the timber by storing it on site prior to installation and the timber boards being laid too tightly with insufficient gaps at the edges of the rooms to allow for expansion as a result of variations in moisture content. He stated that the method of construction employed in the building of the house was unlikely to have caused ingress of water from the exterior walls through the waterproof membrane and into the timber work on the flooring of the house.
Mr Martin Beel holds a bachelor of applied science in architectural science with a post graduate diploma in material science. In addition he has a masters degree in physics. He has particular expertise in timber technology and has worked for a number of years in the timber industry and is a research scientist at the Forrest Products Commission at the Timber Technology Centre. He inspected the timber floor at the property on 15 March 2001. He noted that the floor exhibited slight to severe peaking, slight cupping and moderate drumminess. Mr Beel stated that the severe peaking in the front bedrooms was caused by moisture entering the floor through the south west wall of the building. He was of the opinion that that was probably caused by a build‑up of garden beds over ventilation openings in the bottom course of brickwork allowing water to enter the wall cavity. He stated that that moisture would cause swelling in the timber boards resulting in the peaking. Mr Beel's conclusions as to the cause of the balance of the problems in the timber floor was less clear. However, it appears that he is of the opinion that the general environmental conditions in the property are abnormally humid and this together with the ingress from water through the exterior walls could be contributing to the overall moisture problem. During his inspection on 15 March 2001 Mr Beel carried out moisture tests at various sites on the timber floor. In the area close to the external walls in the front bedrooms the moisture content in some of the floorboards was as high as 23 per cent. In other areas the moisture content was generally between 11 and 12 per cent. He considered that that was higher than was to be expected for that time of the year and moisture may have migrated from the concrete slab to the timber floor causing the back face of the boards to swell and the boards to cup. In his report he stated that that implied that the concrete slab contained free water and was too damp for timber flooring. He also considered that the boards were over cramped during installation and this would have exacerbated the swelling problem caused by the damp slab.
Mr Beel did not agree with Dr Zurhaar that the drumminess or delamination was the result of insufficient application of adhesive at the time of installation. Mr Beel is of the opinion that the moisture content of the slab caused by the ingress of moisture from the exterior or from some high humidity environment within the house has caused the delamination as well as the generalised cupping and in the areas close to the ingress of moisture in the front bedrooms the severe cupping and peaking. Although he agreed that in some circumstances it is appropriate to acclimatise timber before it is installed he said that this would depend upon the time at which the installation took place and the extent of the difference between the moisture content of the timber at the time of delivery and the moisture content of the slab and the environment at the time of installation. Mr Beel did not agree with Dr Zurhaar that the delamination evident in the timber floor was as extensive as Dr Zurhaar's estimate of 50 per cent. During his inspection on 15 March he measured the area of drumminess by means of a 900 mm grid and from that information calculated the percentage of the floor area that was drummy and provided a table in his written report dated 24 April. That table assessed that the percentage of drumminess was less than 20 per cent over the whole of the timber floor in the property. Mr Beel considered that this could be repaired by means of injecting adhesive into the drummy areas. However he also indicated that because of the size of the area of the timber floor expansion joints should be installed at the threshold between the living rooms to accommodate any future movement.

Findings

I am satisfied that the defects apparent in the timber floor are so extensive that the only solution is to remove the entire floor and replace it. I accept the evidence of the plaintiffs that the areas of drumminess or delamination are present throughout the flooring and to an extent of more than 50 per cent of the total area. Although Dr Zurhaar estimated the area to be 50 per cent the plaintiffs have been living with the floor on a day to day basis and just prior to the trial conducted a scrupulous "hands on" scrutiny of the floor. Although it is difficult to be precise about a percentage figure I am satisfied on the basis of the evidence of the plaintiffs and Dr Zurhaar that the area of delaminated boards extends to more than 50 per cent of the total floor. I am also satisfied that the delamination cannot be rectified by means of injecting further adhesive under the boards while they remain in situ. Not only would that create a problem of holes spread throughout the floor that would have to be filled to blend in with the colour of the timber but I am also not satisfied that it would effectively rectify the problem. As was pointed out by Dr Zurhaar the presence of dried adhesive under the board would physically block an even spread of injected adhesive.
I am also satisfied that the areas of delamination were caused at least partly by the inadequate application of adhesive. Although the generalised cupping seen throughout the timber floor may also have contributed to the delamination the primary cause is the lack of sufficient adhesive. The more obvious cupping and peaking in the front bedrooms appears to be related to the high moisture content of the timber boards adjacent to the exterior walls in those rooms. While Mr Gould and Mr Raeburn gave evidence that there was nothing in the construction of the house or in the position of the weep holes that would cause any ingress of moisture from the exterior of the house through the exterior walls and through to the timber floor, there is no doubt that the moisture problem was more extreme in those areas. However, even if that has been caused as a result of some faulty construction or some ingress of water from the exterior I am satisfied that this is a localised problem that has not contributed to the widespread delamination and generalised cupping evident throughout the floor. Mr Beel's evidence that moisture had come into contact with the timber boards close to the exterior walls in the front bedroom and somehow migrated through to the balance of the concrete slab and then to the floor throughout the house is speculative and ignores the evidence of insufficient application of adhesive.
My findings in relation to the insufficient application of adhesive are sufficient to dispose of this matter. I am satisfied that it establishes faulty installation and poor workmanship. It is the delamination that requires the replacement of the floor. If the only defects were the marked cupping and peaking in the front bedrooms and generalised mild cupping throughout the floor this could be rectified by replacement of some boards and re‑sanding and varnishing of the whole floor. While this determination means that it is not necessary for a determination to be made in relation to the problems caused by the moisture content of the timber the evidence establishes that there was failure on the part of the defendant to ensure the appropriate equilibrium between the moisture content of the concrete slab and the timber boards. Although Dr Zurhaar considered that the slab was sufficiently dry for the installation of timber flooring his inspection took place some time after the installation in March 2000. Dr Zurhaar was also of the opinion that the timber should have been acclimatised prior to installation. While Mr Beel did not agree that this was always an appropriate measure to take he did agree in cross‑examination that if there was any issue about the moisture content of a slab it would be appropriate to acclimatise the timber before installation. Amanda Watson gave evidence that she conducted moisture tests on the concrete slab prior to installation commencing. To confirm this she referred to a diary in which the moisture reading of 5.2 was noted. However, she could not explain why she had entered that moisture reading on a different date in her diary, nor why there were no similar entries made for installations of other floors. It is hard to avoid the conclusion that the entry was made at a later date and to confirm that the appropriate moisture readings had been conducted. While it is not possible to form a firm conclusion it is possible that when the timber floor was initially installed the concrete slab or at least some parts of the concrete slab had a moisture content that was too high for the installation of the dry timber that had not been acclimatised.
Although there was no admission in the pleadings in relation to the quantum of damages sought by the plaintiffs it became clear during the course of the hearing that the defendant did not dispute any of the items or the cost estimates of damages claimed. The plaintiffs will therefore be awarded damages in the sum of $40,049.70.