Stringer v Millsons Pty Ltd
[2011] QCAT 571
•22 November 2011
| CITATION: | Stringer v Millsons Pty Ltd [2011] QCAT 571 |
| PARTIES: | Mrs Shiri Stringer |
| v | |
| Millsons Pty Ltd t/as Dixon Homes Rockhampton |
| APPLICATION NUMBER: | BDL338-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 15 July 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O'Callaghan, Senior Member |
| DELIVERED ON: | 22 November 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application is dismissed. 2. Each party bear their own costs. |
| CATCHWORDS: | Claim for damages – time limitations – negligence – where failure to establish breach of duty of care |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mrs Shiri Stringer appeared on her own behalf |
| RESPONDENT: | Millsons Pty Ltd t/as Dixon Homes Rockhampton represented by Mrs Mills |
REASONS FOR DECISION
Introduction
This was an application by Mrs Stringer against Millsons Pty Ltd for damages for alleged defective work on the part of the Millsons in constructing her house in Longreach. The house was completed in 2000.
Millsons resisted the claim on two bases:
The claim was time barred as it was not commenced within the 6 years of the work being completed; and
(ii)Any damage Mrs Stringer had suffered was a consequence of her failure to maintain the property.
Mrs Stringer’s claim as set out in the application was for damages for $200,000 and further compensation in the sum of $50,000.
The essence of the complaint was that there had been water ingress into the property and as a consequence rectification work was required. This work included replacement of the kitchen cupboards, warped rotting bathroom vanities, warped and rotting of internal doors, damaged carpets and other consequential damage.
Mrs Stringer had maintained that there were problems with cracking in walls as early as 2004 and she had made complaints to Millsons.
She said she was ill in August 2009 and spent some time in Brisbane in hospital. Her husband spent some time with her and the property was vacant for a number of weeks. She said that when her husband returned to the property he noticed odour throughout the home and had the carpets cleaned however the smell remained. She said that in 2010 they noticed a lot of water near the left hand side of the house. They also noticed that there were cracks on the driveway and it was corrugated while driving over it. They made an insurance claim in 2010 and a plumber was engaged by the insurance company. They found a burst pipe under the driveway and the pipe was relocated.
Investigations were then conducted by the insurance company to ascertain the cause of the moisture in the house.
During the course of the hearing Mrs Stringer disclosed that they had since the application had been commenced, received a $30,000 pay out from the insurers with respect to the water damage and had used the money to carry out some of the rectification work. She then reduced her claim to $87,500 being the amount of a quote received to carry out various repairs.
The hearing
Mrs Stringer appeared on her own behalf and gave evidence. She also relied on the evidence of Sonny Wong – an engineer engaged by the insurance assessor; Adam Stream, an insurance assessor; Paul Fawkner, the insurance company customer dispute resolution manager; and Paul Osbourne, a licensed plumber who carried out some work on the property. Millsons were represented by the Director’s wife, Mrs Mills. She relied on the evidence of Michael Nolan, a licensed plumber who had provided a written report in relation to the plumbing work on the property; John Cox, a licensed concreter who had poured the slab and footings on the property; Bruce Krenske, the principal building certifier from the Rockhampton building approvals; and Trevor McCubbin, a building consultant. Millsons had also filed a short statement from Mr Mills.
The issues
[10] Although not articulated in her application, it was apparent that Mrs Stringer’s claim for compensation for all of the water damage in her house was based on the argument that the engineer, Mr Wong, had found that water ingress had occurred in the property for two possible reasons:
1. Failure of Millsons to install a water proofing membrane which enabled moisture to travel in and out of the slab; and
Storm water drainage outlets had not been provided to divert roof water away from the property.
[11] There was no dispute that the property had suffered moisture damage. The issue in dispute was the cause of the damage.
[12] Millsons pointed out that as the house had been completed at the end of 2000 Mrs Stringer was out of time in commencing proceedings in October 2010. They said that the time for making the claim had expired 6 years after the work was completed.
[13] At the hearing I raised this issue as a preliminary point. I found, and explained to Mrs Stringer that if her claim was based on alleged breach of contract it was out of time. The Limitations of Actions Act 1974 provides in section 10 that an action in contract or tort must be brought within 6 years of the date the cause of action arose. If the claim was for breach of contract, the cause of action arose when the work was carried out and therefore any claim was out of time.
[14] However if the claim was based in negligence then the cause of action arose when the damage occurred. This may have been later than the work being carried out. Having explained this to Mrs Stringer she submitted that she was making a claim in negligence.
[15] As a consequence the following issues were required to be considered and determined.
1. When did the alleged damage occur?
2. If the damage occurred within six years were the elements of a claim in negligence maintained namely:
i. Did Millsons owe Mrs Stringer a duty of care;
ii. Did Millsons breach that duty of care;
iii. If so, did the breach of duty of care result in damage to Mrs Stringer; and
iv. If the claim of negligence was maintained the question of quantum damages to be awarded would then be determined.
1. When did the damage occur
[16] The damage is the moisture ingress and consequential damage.
[17] Mrs Stringer’s evidence was that there were problems with the house, namely cracking in the walls and ceilings soon after they took possession and certainly by 2004 but that there was no evidence of moisture ingress at this stage.
[18] She maintained that she had started writing to Millsons in July 2005 with concerns about the moisture coming in through the floor on to the tiles.
[19] Mrs Stringer produced a series of letters she said she had written to Millsons in July 2005, December 2005, 23 May 2007, 20 July 2009 and 16 August 2010 complaining about damage from moisture.
[20] Millsons deny receiving these letters other than in a bundle in support of this application.
[21] Mrs Stringer became ill in 2009 and spent a considerable amount of time in hospital. Her evidence was that following this illness her recollection of precisely when the moisture issues arose is not clear.
[22] On the evidence of the parties it is difficult to fix the time at which the moisture damage first occurred. In the absence of any independent evidence I will accept that it was around July 2005 when Mrs Stringer said she wrote the first letter to Millsons.
[23] On this basis the claim of negligence is within the six year time limit.
Did Millsons owe Mrs Stringer a duty to take reasonable care?
[24] The test is whether it was reasonably foreseeable that if Millsons were careless in carrying out the works then Mrs Stringer would suffer loss.
[25] I am satisfied that Millsons owed Mrs Stringer a duty to take reasonable care.
Did Millsons breach that duty?
[26] Mrs Stringer’s argument is that Millsons breached the duty in two ways:
By not installing a water proof membrane; and
Not installing adequate storm water drainage.
[27] As to the membrane, Mrs Stringer relies on the report of the engineer, Mr Wong who was engaged by the insurance company to inspect and establish the extent of the cause of the water damage. Mr Wong in his report makes the following points:
He could not confirm whether there was a water leak but assumed there was for the purposes of the report.
The leakage had saturated the soil around the property for a period of time.
He considered that it was possible that there was no water proofing membrane installed underneath the footing to prevent moisture travelling through the slab.
He considered that no provision had been made for the drainage stormwater which made a pond on the surface of the ground.
His report concluded that the water damage sustained to internal areas of the house “appeared to be a direct result of the leakage event and the damage is exacerbated by poor building practices with the potential absence of a water proofing membrane underneath the slab on ground and no provision of drainage surrounding the residence”.
Mr Wong’s oral evidence was that he could not be certain there was no water proofing membrane.
He explained he had dug one hole in the ground in a corner of the property adjacent to the slab and could not see any membrane (black plastic).
[28] Witnesses for Millsons also gave evidence in relation to this issue.
[29] John Cox was the concreter who poured the slab and footings. Mr Cox had 20 years experience as a concreter. He said he would never have poured the footings and slab without the foundations being certified and the Council would not have certified the foundations without water proofing being installed.
[30] Mr Krenske, a building certifier with the Rockhampton City Council gave evidence that it was not possible for any certifier to overlook a lack of installation of a vapour barrier.
[31] A document was produced by Millsons from the Longreach Shire Council signed by a certifier indicating that on 30 April 2000 “footings steel in place as per s/engineering details”.
[32] Mr McCubbin, the building consultant, gave evidence that it was not unusual that Mr Wong would not have found the membrane if he had only dug a hole down the side of the footing. He said that the black plastic would not have been visible.
[33] He relied on the applicable Australian Standard AS2870 fig 5.2 which shows that the vapour barrier/water proof membrane may terminate at the internal face of external beams. That being the case, the membrane would not have been visible.
[34] The only evidence from Mrs Stringer to establish that water proofing membrane was not installed is that from Mr Wong. Mr Wong conceded in cross examination that he could not be certain that there was no membrane particularly as according to AS2870 the barrier may have terminated before the outside of the footings.
[35] I accept the evidence from Mr Cox and Mr Krenske that it was virtually impossible that the slab and footings would have been poured without the membrane in place. In those circumstances I am unable to conclude that Millsons failed to install a water proofing membrane and therefore there was no breach of duty as alleged.
[36] The other breach alleged was a failure by Millsons to provide adequate storm water drainage. Again Mrs Stringer relies on the report of Mr Wong.
[37] Mr Wong noted in his report that “no provision had been made for the drainage of stormwater that may potentially pond on the surface of the ground surrounding the residence”. He said because of this, down pipes were dispersing water directly on to the ground. He considered that this may (combined with no water proofing membrane) have allowed water to evaporate through the slab.
[38] Paul Osbourne, a plumber who had done work on the property for Mrs Stringer also gave evidence that he thought the stormwater should have been taken to the gutter in a stormwater pit.
[39] Mr Nolan, the plumber engaged by Millsons agreed in his report that there is not an adequate storm water system within the property. Millsons’ submission on this issue was that at the time the house was built (2000) the stormwater drainage was installed in accordance with the Longreach Shire Council requirements, otherwise it would not have passed final building inspection and certification. Evidence of this certification was provided by Millsons.
[40] Mr Krenske, (although he did not certify this property), gave evidence about what he considered the likely scenario could have been. He said that when an inspection takes place the certifier must be satisfied that water will drain from the house. He said in 2000 the requirement was that there needed to have been a 50mm fall away from the house. He said it would have been sufficient if drain pipes were installed to drain on the ground provided there was sufficient fall. He said it would not have had to have gone to the curb.
[41] Mr Nolan’s evidence was that there was currently insufficient drainage because the grade was insufficient. He said however that he could not tell whether the property had been graded properly when the house was completed in 2000 as subsequently turf had been laid, garden beds installed and other landscaping works carried out.
[42] Mr McCubbin on behalf of Millsons gave evidence that in his view it would appear from the photographs that stormwater pipes had been disconnected which allowed the water to pool. He did produce photographs to show the disconnected pipes but he conceded he has not actually attended the property.
[43] Mrs Stringer disputed the pipes had been disconnected and said there was never adequate drainage.
[44] I accept that there is currently inadequate stormwater drainage however I am not convinced it was not provided at the time the property was completed some 10 or 11 years ago.
[45] I accept that the property having been certified by the Council would in all probability have complied with the stormwater requirements at the time.
[46] There was no evidence to suggest that inadequate stormwater provision was made at the time of completion. Ten years have intervened and the stormwater system originally provided could have been compromised by, for example, filling of the grading.
[47] I do not accept that Millsons breached the duty of care by failing to install appropriate storm water drainage. Therefore I find that Millsons did not breach their duty of care owed to the Stringers as claimed by Mrs Stringer.
Did the breach result in damage?
[48] I have found that there was no breach by Millsons of their duty of care, however, in the event that I am incorrect in that finding I will consider whether if there was a breach did it cause the damage and losses claimed by Mrs Stringer, namely the water damage to the internal of the property.
[49] There is no doubt that the house has been damaged by moisture ingress. However, there was no consistency amongst the witnesses as to what may have caused the damage. Evidence for Mrs Stringer:-
1. Mr Wong – his view was that it was inconclusive whether there had been water leakage from the burst pipe but that if there had been a leak it had saturated the soil and this was exacerbated by the lack of membrane and no provision for drainage which lead to the moisture damage inside the house.
Mr Adam Senior, the building consultant for the insurance assessor said that he was not convinced that the damage was caused by the leak because the internal damage was not in the vicinity where the leak had occurred. He said his initial thought was that the damage was caused by animal urine (which was in fact found in the carpet) and he still believed that was the case.
[50] Mr Nolan gave evidence on this issue on behalf of Millsons. He put forward a number of possible scenarios, he said:
1. There were a number of taps that consistently ran and dripped. Mrs Stringer disagreed with this and gave evidence she had the taps replaced. Mr Osbourne, her plumber, agreed that he had at times replaced taps on the property.
2. The irrigation system. Mr Nolan’s evidence was that there was unsatisfactory installation of an irrigation system on the property which may have contributed to moisture in the garden beds at the front of the house which were raised and the pathway did not grade away from the house.
He said there was also evidence that a sewer line had been damaged by the owner when excavating a post hole at the side of the house when carrying out installation by the owner of the patio slab. He said that this leak would lead to constant water draining into the ground. He also stated that tree roots had penetrated the soil system which could result in water backing up into the shower and other drainage points in the house.
[51] Mrs Stringer agreed that her husband and her nephew had dug the hole to put the post in when they constructed the concrete patio but she knew nothing of a broken sewer line.
[52] She also disagreed that the irrigation system could have caused the damage as it had not been used for some time.
[53] In oral evidence Mr Nolan raised another possible cause of the internal moisture. He said that during his inspection he had inspected the roof cavity of the property which showed an unusual amount of rust to the air conditioner fittings (it was an evaporated cooling system). He said he saw evidence of excessive build up of humidity in the roof cavity. He said that it was necessary with these systems to have the doors and windows open at all times when they were in use otherwise water droplets would form and fall which meant the carpet would soak up the moisture leading to mildew and damage.
[54] Mrs Stringer’s evidence was that she had maintained the air conditioning and the doors and windows were open when the air conditioner was in use.
[55] Mr McCubbin put forward another scenario. He produced photos of the patio which had been installed by the owner. He pointed out that there was no patio roof and that water from the slab could enter the house via the weepholes. He said that the BCA provided for weepholes to be 75mm above the surface level of the concrete patio. Millsons submitted that the concrete slab laid by the Stringers was not 75mm below the weep holes.
[56] Mrs Stringer denied this. Neither party produced sufficient evidence to establish either way whether the weepholes were 75mm above the patio slab or not.
[57] Witnesses who gave evidence on the issue of the cause of the damage were credible and each had plausible explanation.
[58] I am not satisfied that any one event or circumstances has caused the damage.
[59] Even if there was a breach of duty in a failure to lay water membrane or provide effective stormwater drainage, as there has been a 10 year lapse of time I consider that other causes have or may have contributed to internal water damage. In view of all the conflicting evidence I am unable to find that existing water damage is a result of any breach of duty by Millsons.
[60] I do accept on the evidence of Mr Nolan that there has been a failure by Mrs Stringer to reasonably maintain the property which has more than likely contributed to the damage.
[61] In view of my findings there is no need to consider the quantum claim. I do however note that Mrs Stringer’s quantum claim was not substantiated in any meaningful way. It was not until the end of the hearing that she formulated how much she was claiming in damages and it was based on a quote which included works that had already been carried out from the monies paid under the insurance claim.
[62] In the circumstances I dismiss the application.
Costs
[63] Millsons have claimed the costs of the reports from the plumber and their building consultant.
[64] The awarding of costs in QCAT is governed by section 100 of the QCAT Act. It provides:
“Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the parties own cost for the proceedings”.
[65] The Tribunal does have a discretion under section 102 of the Act to award costs if it considers that it is the interests of justice to make that order.
[66] As the Tribunal has pointed out in the Tribunal Appeal decision of Ralacom Pty Ltd v Body Corporate at Paradise Island Apartments (No. 2) [2010] QCAT 412:
“Under the QCAT the question that will usually arise in each case where costs are sought is whether the circumstances relevant to the discretion inherent in the phrase “the interests of justice” point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100.”
[67] I do not consider that the circumstances of this case warrant a costs order against the applicant.
[68] I make no order as to costs.
Orders
[69] The orders are:
The application is dismissed.
Each party bear their own costs.
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