Trump Floor Coverings Qld Pty Ltd v Welsh - [2020] QCAT 440

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Trump Floor Coverings Qld Pty Ltd v Welsh [2020] QCAT 440

PARTIES: TRUMP FLOOR COVERINGS QLD PTY LTD

(applicant)

v

DARRYL STUART WELSH

(respondent)

APPLICATION NO:

BDL215-18

MATTER TYPE:

Building matters

DELIVERED ON:

16 November 2020

HEARING DATE:

8 and 9 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDER:

The Applicant’s claim is dismissed.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS - major commercial building dispute – labour only contract - whether work was completed in a workmanlike manner – whether work was fit for intended purpose

Queensland Building and Construction Commission Act 1991 (Qld), s 77

APPEARANCES & REPRESENTATION:

Applicant:

C Ray of Construct Law Group

Respondent:

J Eylander of counsel instructed by Crouch and Lyndon Lawyers

REASONS FOR DECISION

Introduction

This is a major commercial building dispute. The parties have consented to this tribunal hearing the dispute.
Trump Floor Coverings Qld Pty Ltd (Trump or Applicant) is a commercial floor covering company. It was engaged by Uniqlo to install screed, preparatory to laying a vinyl floor, at the Uniqlo store at Chermside.
Darryl Welsh (Welsh or Respondent) is a tiler. He holds Queensland Building and Construction Commission (QBCC) licence number 744845 in the class of wall and floor tiling.
In May 2017 Trump engaged Welsh to mix and lay the screed. It was a labour only contract.
One week after the screed was laid, Trump decided that the vinyl floor could not be laid on the screed. Trump had the screed removed and replaced. Trump claims the costs of removal, replacement, interest and costs.

Issues

The key issues for determination are:
(a)whether Welsh failed to complete his works in a workmanlike manner;
(b)whether the works performed by Welsh were fit for their intended purpose;
(c)if the works performed by Welsh were not fit for their intended purpose, whether Trump failed to mitigate its loss by denying Welsh the opportunity to rectify; and
(d)if Welsh is liable, the reasonable cost of rectification.

Agreed facts and matters

The parties filed an agreed list of facts and matters on 28 October 2019. It was agreed:
1.      The Respondent is the holder of licence Number 744845 in the class of Wall and Floor Tiling with the Queensland Building and Construction Commission, and trades as Productive Tiling System.
2.      In or about May 2017, the Applicant and Respondent entered into an agreement (Agreement) whereby the Respondent agreed to provide services for the Applicant, namely the installation of a 40mm thick screed comprised of a mixture of sand and a proprietary product known as Mapecem on black plastic (Works) to a new Uniqlo retail tenancy at the Westfield Chermside Shopping Centre, Chermside in the State of Queensland (Site).
3.      The Agreement is partly written, partly oral, and partly implied.
4.      Insofar as the Agreement is in writing, it is contained in Purchase Order MGU013133 issued by the Applicant to the Respondent dated 26 May 2017, which was for labour only in relation to laying the floor, and the material was to be purchased and supplied by the Applicant.
5.      Insofar as the terms of the Agreement are oral, it comprised of the following terms as discussed at a meeting between the Respondent, Dean Connors (Connors), Barry Schlig (Schlig) (sic) and Mark Gunn (Gunn) of the Applicant and Troy Bartlett (Bartlett) of Mapei Australia Pty Ltd (Mapei), the manufacturer of Mapecem, on 12 May 2017 (12 May 2017 Meeting):
a. the Respondent was required to mix sand and the Mapecem supplied by Trump in the ratio of 4 parts sand to 1 part Mapecem;
b. the Respondent was required to mix the sand and Mapecem with 6% water (6 litres per 100kg);
c. the mixed product (screed) was required to “ball” in the hand and be compacted to achieve the specified strength;
d. the Respondent was required to score or cut the set down product to approximately one third (15mm) of the screed thickness.
6.      It was an implied term of the Agreement that:
a. the Respondent would execute and complete the Works with due skill, care and diligence and in a proper and workmanlike manner;
b. the Respondent and his personnel would be suitably qualified and experienced to execute and complete the Works with due skill, care and diligence;
c. the Respondent would control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed would be fit for its intended purpose in all respects.
7.      The Respondent owed the Applicant a duty of care to carry out the Works with the care and skill of a reasonably competent building contractor.
8.      The Respondent was instructed by Bartlett on behalf of the Applicant to lay the screed on top of a black plastic sheeting, Viscreen (sic).
9.      On 15 May 2017, the Respondent commenced carrying out the Works at the Site.
10.     The Applicant arranged for the delivery of 81,000 bags (sic)[1] of medium river sand supplied by Neilsen’s Quality Gravel Pty Ltd.
[1]The Applicant claimed that 81,000 kgs of sand were delivered, not 81,000 bags of sand.
11.     On 16 May 2017 and on 17 May 2017, Gunn and Schlig (sic) of the Applicant, and Bartlett of Mapei attended the Site to inspect the installation procedures (May Inspections).
12.     During the May Inspections, Gunn of the Applicant directed the Respondent to:
(a) reduce the amount of water being used in the mixture;
(b) properly compact the screed mixture; and
(c) score the bedding with saw cuts. (Direction)
13.     On 22 May 2017 the Works were completed (with the exception of the alleged defective Work the subject of this dispute).
14.     Following completion of the Works, the finished screed:
a. had not properly dried out within 24 hours as it was expected to; and
b. did not have the required tensile strength; and
c. was not suitable for resilient products application.
15.     Marco De Santis of Mapei carried out an inspection of the Works on 30 May 2017 and prepared a report documenting the findings (Mapei Report).
16.     On 31 May 2017, at the request of the Applicant, the Respondent attended a meeting with Gunn and Schlig (sic) of the Applicant at the Site to discuss the alleged defects in the Works as set out in the Mapei Report. (31 May Meeting)
17.     At the 31 May Meeting, the parties could not agree on the method or rectification of the Works.
18.     Following the 31 May Meeting, the Applicant engaged third parties to carry out rectification works at the Site.

Disputed facts and matters

The parties provided the following list of disputed facts and matters:
19.     Whether it was an oral term discussed on the 12 May 2017 Meeting that:
a. the water content should be adjusted to suit each individual mix;
b. the Respondent was required to lay the mixed screed in accordance with the Mapei Mapecem Technical Data Sheet 201-02-2017 (AUS);
c. the Respondent would use a saw when the screed was dry to score the surface as required.
20.     Whether the Mapei Mapecem Technical Data Sheet was provided to the Respondent prior [to] completion of the Works.
21.     Whether Schlig (sic) of the Applicant gave further direction to the Respondent to comply with the Direction via telephone conversation on or about 17 May 2017 because the Respondent cannot recall this conversation.
22.     Whether the Respondent failed to control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed were fit for their intended purpose in all respects, namely:
a. The Respondent failed to mix the sand and Mapecem in accordance with the required ratio of 4 parts sand to 1 part Mapecem but instead used a mix ratio of approximately 6.5 parts sand to 1 part Mapecem.
b. The Respondent used an excessive amount of water in producing the screed mix and failed or refused to reduce the water content of the screed mixture despite the Direction.
c. The Respondent failed to “ball” the mixture and/or properly compact the mixture before levelling.
d. The Respondent failed to score or cut the set down product to approximately one third (15mm) of the screed thickness.
e. The Works failed to achieve a compressive strength of 36.8 Mpa after curing for 7 days.
f. The Works failed to achieve a flexural strength of 6.7 Mpa after curing for 7 days.
g. The Works failed to achieve a tensile strength of 1.5 Mpa after curing for 7 days.
h. The Works contained residual moisture in excess of 2 percent after curing for 7 days.
23.     Whether it was reasonable or necessary for the Applicant to incur cost totalling $174,876.82 to remove [and] reinstall the screed using an Ardex A38 product, rather than the Mapei product.
24.     Whether the Respondent:
a. had executed and completed the Works with due skill, care and diligence and in a proper workmanlike manner;
b. used 4 parts sand to 1 part Mapecem as instructed;
c. and his personnel added water carefully and minimally;
d. properly mixed and compact (sic) the screed mixture; and
e. was unable to score the screed following it being properly cured as the Applicant prevented him from returning to the site to undertake these works.
25.     Whether the 81,000 bags of sand[2] referred to in paragraph 10 above had a high moisture content, and whether the moisture content affected the Respondent achieving the water to sand ratio as required by the Applicant in the 12 May 2017 Meeting in referred to in paragraph 5 above.
[2]The Applicant claimed that 81,000 kgs of sand were delivered, not 81,000 bags of sand.
26.     Whether:
a. the problem with the screed was that it should never have been laid on top of the Viscreen (sic) as it did not allow the floor to bond with the base slab and meant that any extra moisture in the curing process could only come to the top of the screed and would have to evaporate;
b. the Respondent was provided with the incorrect mix ratio by the Applicant, and had the Respondent been provided with the Mapei Technical Data Sheet prior to the Works, the ratio of the mix should have been between 2.2:1 to 2.5:1;
c. the issue with the MPa of the screed could have been rectified with the application of a product called Cemcrete (or Mapei equivalent) which allegedly reacts with the substrate and hardens the floor and whether this method of rectification would have cost approximately $5,000 for the product and the labour;
d. the actual cost of rectification incurred by the Applicant, which the Respondent denies as being necessary, should have only been $96,387.68;
e. the Applicant should have used the Mapei product when replacing the floor instead of the Ardex A38 product.
27.     Whether the Respondent could have rectified the Works.
28.     Whether the Respondent was ready, willing and able to rectify the Works, but was prevented from doing so by the Applicant.
The parties provided the following list of issues to be determined:
29.     Whether the Respondent failed to control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed were fit for their intended purpose in all respects.
30.     Whether the Respondent was expected to account for the additional moisture in the sand, when the Respondent was mixing the sand and Mapecem with 6% water.
31.     Whether the Applicant directed the Respondent use a sand to Mapei product ratio which was an incorrect and inconsistent with the Mapei Mapecem Technical Data Sheet.
32.     Whether the black plastic sheeting upon which the screed was laid on by the Respondent as required by the Applicant:
a. prevented the screed from binding with the substrate; or
b. allowed any excess water to properly drain, resulting in the moisture remaining in the screed mixture.
33.     Whether the Applicant failed to mitigate its loss by “…applying a Mapei product to address the issues” ….
34.     Whether Cemcrete (or Mapei equivalent) could have been used by the Applicant [to] improve the MPa of the screed installed by the Respondent.
35.     Whether the $174,876.82 allegedly incurred by the Applicant …, was a reasonable and necessary cost to rectify.

Witnesses

Schilg

Mr Schilg was an estimator/ project manager employed by Trump at the relevant time. He made two statements almost two years after the events the subject of these proceedings.[3] His first statement was obviously drawn from documents. It also contained hearsay about significant conversations with Mr Gunn. Mr Gunn did not give evidence.
[3]Exhibit 1 and Exhibit 2.
Although it was an agreed fact that Mr Schilg was present on site on 16 and 17 May 2017[4] his statement of evidence is silent about those days. If he was on site on 16 and 17 May 2017, then he cannot have had sufficient recollection of what he saw to include it in his statement.
[4]Exhibit 11, [11].
During his cross-examination there were many matters of which he had no recollection, although he claimed to recall matters that were significant and of benefit to the Applicant’s case. There is no doubt that people’s memories fade over time. Perhaps Mr Schilg has come to believe ‘the facts’ as he dealt with them in his evidence. Overall, my impression is that Mr Schilg’s evidence was coloured by the outcome he hopes for, rather than being an accurate recollection of events as they occurred.

Ryan

Mr Ryan is currently the operations manager for Trump. He had no involvement in the Uniqlo project. He conducted a desktop review of the costs of rectification and made some adjustments, both positive and negative, to the claim.

Bartlett

Mr Bartlett is a sales representative employed by Mapei, the supplier of the Mapecem product supplied to Trump for use by Welsh. He has no technical qualifications. He has a vested interest in advancing the interests of his employer.

Tessarolo

Mr Tessarolo is employed by Mapei Australia. He attended the site on 30 May 2017 to assist with conducting testing and collecting data.[5] I accept his unchallenged evidence.
[5]Exhibit 6, [4].

de Santis

Mr de Santis is the research and development manager for Mapei Australia. He was the only witness with formal qualifications – the Italian equivalent of a masters degree in chemistry. He has worked for Mapei as a chemist for 15 years. It is his role to go on site and inspect whenever there are concerns about a Mapei product.[6]
[6]Exhibit 4, [5].
He attended the site on 30 May 2017. He prepared a report based on information he had been given about the volume of sand and Mapecem delivered to site and on his observations and tests. He recommended that the screed be removed and reapplied in strict accordance with the Mapei Mapecem Technical Data Sheet (TDS).[7]
[7]Exhibit 4, [MDS-2].
He was an impressive witness. He readily conceded that his opinion that the mix ratio of Mapecem to sand was 1:6.5, was based on being told by Trump that 81 tonnes of sand and 10 pallets of Mapecem had been delivered to site. He accepted that if the bags contained sand and water, ie. if less than 81 tonnes of sand had been delivered to site, his opinion about the mix ratio of 1:6.5 would change.

Considine

Mr Considine prepared a desktop review into the likely cause of the alleged failure of the screed.[8] His qualifications are based on his practical experience. He has over 40 years’ experience in laying all types of flooring. He is a qualified trainer. He is a member of the Australian Standards committee that is responsible for AS 1884 Floor coverings—Resilient sheet and tiles—Installation practices.
[8]Exhibit 9, DC-1.
He provided an opinion regarding:
(a)the likely causes of the failure; and
(b)the appropriate method of rectification.
I accept Mr Considine’s expert evidence but note it can only carry weight if the ‘facts’ on which it is based are proved. Quite properly, Mr Considine noted that it was impossible for him to know which of a list of factors, or combination of factors, was responsible for the failure of the screed given the screed had been removed. [9]
[9]Exhibit 9, DC-1 [13].

Welsh

Mr Welsh is the respondent. He is a licensed tiler and has decades of experience laying screed beds. He had worked with Trump over many years and had not experienced problems with any previous jobs.[10] This job was the first he had done for Trump laying such a considerable area of screed using the Mapei system.
[10]Exhibit 10, [4].
Mr Welsh gave Mr Schilg a verbal quote for the labour component of mixing material that would be provided by Trump and installing a floor screed.[11] In a subsequent telephone conversation the quoted hourly rate was reduced and the revised quote was accepted.[12]
[11]Exhibit 10, [6] and [7].
[12]Exhibit 10, [8].
He struck me as an honest man, genuinely puzzled by the failure of the screed. Of course, he too has a vested interest in the outcome, but he was not the person responsible for the decision to remove and replace the screed without conducting a thorough investigation into the reasons that the finished screed had not dried out within 24 hours as expected.

The intended purpose of the works

The purpose of the work under Trump’s contract with Uniqlo

The purpose of Trump’s work, for its client Uniqlo, was to produce a screed on which vinyl floor covering could be laid.
Trump was engaged by Uniqlo[13] to install 1,200m² of an approved sand and Mapecem rapid cement render mix on black plastic, ready for application of self-levelling Ardit to make a smooth surface ready for new vinyl ‘plank’.[14]
[13]Exhibit 1, [BS-2].
[14]Exhibit 1, [BS-1].
In order to achieve that purpose Trump had to:
(a)buy sand approved by Mapei;
(b)buy Mapecem;
(c)install black plastic;
(d)have the sand and Mapecem mixed in accordance with the Mapecem Technical Data Sheet; and
(e)have the mixed screed laid over the plastic.
There is nothing in Trump’s contract with Uniqlo that expressly required the screed to be ready for laying the vinyl planks within a designated time frame.

The purpose of the work under Trump’s contract with Welsh

Trump engaged Welsh to supply labour to install 1,200m² of 40 mm bedding at a rate of $49 per hour at Uniqlo Chermside.[15]
[15]Exhibit 1, [BS-7].
In order to achieve that purpose Welsh had to:
(a)mix the sand and Mapecem supplied by Trump; and
(b)install the mixed screed over the plastic.
There is nothing in Trump’s contract with Welsh that required the screed to be ready for laying another layer of flooring within a designated time frame.

The 12 May Meeting

It is common ground that a pre-start meeting on 12 May 2017 was attended by Messrs Schilg, Bartlett, Dean Connors, Mark Gunn and Welsh. [16]
[16]Exhibit 11, [5].
It was agreed between the parties[17] that the outcome of the 12 May Meeting was that:
(a)the Respondent was required to mix sand and the Mapecem supplied by Trump in the ratio of 4 parts sand to 1 part Mapecem;
(b)the Respondent was required to mix the sand and Mapecem with 6% water (6 litres per 100 kg);
(c)the mixed product (screed) was required to ‘ball’ in the hand and be compacted to achieve the specified strength; and
(d)the Respondent was required to score or cut the set down product to approximately one third (15mm) of the screed thickness.
[17]Exhibit 11, [5].

It is not clear whether the agreed ratio was by volume or by weight. This difference is a significant factor in this dispute. The Applicant frames its case, retrospectively, using weight, but the Respondent undertook his work by volume.
There is a dispute regarding whether or not there were oral terms of the agreement between the parties, discussed at the 12 May Meeting, that:
the water content should be adjusted to suit each individual mix;
the Respondent was required to lay the mixed screed in accordance with the Mapei Mapecem Technical Data Sheet 201-02-2017 (AUS);
the Respondent would use a saw when the screed was dry to score the surface as required.[18]
[18]Exhibit 11, [19].
Messrs Schilg, Bartlett and Welsh gave evidence about this critical meeting. Although Mr Connors had provided a statement, it was not tendered and he was not called to give evidence. Mr Gunn did not give evidence. Counsel for the Respondent submitted that I should draw an adverse inference from the unexplained failure to call Messrs Connors and Gunn. I accept that submission.
Mr Schilg’s statement about what occurred at the 12 May 2017 meeting[19] was identical to that of Mr Bartlett.[20] Each of them stated that at the meeting it was explained that:
The mix for the floor screed was 4 parts sand to 1 part Mapecem. The 4 parts sand to 1 part Mapecem mix ratio equates to one 80kg bag of sand to one 20kg bag of Mapecem product.
It was important that the screed be compacted in and not just levelled off.
The mixed product (screed) was required to “ball” in the hand and be compacted to achieve the required strength.
The mixed screed was to be laid in accordance with the Mapei Mapecem Technical Data Sheet 201-02-2017.
The compacted screed was to be scored to approximately one third (15mm) of the screed thickness.
That the sand supplied may have moisture in it.
That it was Welsh’s responsibility to adjust the mix on site to compensate for the moisture in the sand.
[19]Exhibit 1, [15].
[20]Exhibit 7, [8].
In cross-examination Mr Schilg said that prior to the 12 May meeting, during the course of his discussions with Mapei, he had printed out and read the Mapecem data sheet, but had no recollection of providing it to Welsh before the meeting. Given how many times he answered ‘I don’t recall’ during his cross-examination, I doubt that he has any independent recollection of what occurred to the level of detail contained in his statement. I suspect that his statement has been prepared relying on documents and with the benefit of hindsight. I attach little weight to his description of the meeting.
In cross-examination Mr Bartlett did not appear to have a clear recollection of the meeting. He said he ‘would have’ explained the system, the use of the black plastic, and the mixing ratio of 80:20. He was adamant that he would not have said to mix in the ratio of 4:1 because he always referred to the weight of sand and Mapecem to be used. He recalled taking one information pack to the meeting which he handed over or left on site. He did not recall giving it to Mr Welsh.
Mr Welsh’s statement contains a different version of the discussions. He stated that he was told to mix the products in a ratio of 1:4, ie. one part Mapecem to 4 parts sand. [21] He stated that he expressed concern about laying the screed on Viscreen (sic) (a black plastic product) because he didn’t think it would work.[22]
[21]Exbibit 10, [18].
[22]Exbibit 10, [14].
In his statement Mr Welsh responded to paragraph 16 of a statement from Mr Connors.[23] That paragraph is in identical terms to the evidence in the statements of Messrs Schilg and Bartlett set out above. I cannot believe that all three men had an identical recollection of the meeting. In any case, Mr Welsh stated that he agreed the mixed product was required to “ball” in the hand. He denied being told that screed was to be laid in accordance with the Mapei Mapecem Technical Data Sheet, noting that it was never referred to and never supplied to him. He recalled being told to score the screed, that he said it would be better to wait until the screed was cured and then score it with a diamond saw and stated they agreed. He denied being told that the sand might have moisture in it.
[23]Exbibit 10, [25].
Given that in cross-examination Mr Welsh agreed that he was responsible to mix the product to compensate for moisture in the sand, it matters little whether or not this was discussed at the 12 May meeting.
Given that the screed was removed before any scoring was done it is irrelevant whether or not it was a term of the agreement that the Respondent would use a saw when the screed was dry enough to score the surface as required. Accordingly, I make no finding in that regard.
The remaining significant difference between the parties is whether or not the Respondent was given the Mapecem TDS at the 12 May meeting.
Mr Welsh denies being given the TDS at the meeting, or at any time. There is no direct evidence that he was given it. Although Mr Bartlett recalls taking one pack of material to the 12 May meeting, he cannot recall giving it to Mr Welsh. Given that Trump was Mapei’s client and that Mr Bartlett was clearly conscious of the contractual lines of authority, I find it more likely than not that he gave the pack, which presumably contained a TDS, to one of the employees of Trump.
Mr Welsh’s evidence was that he first saw the data sheet when he downloaded it from the internet about three months after the floor had been ripped up. His evidence was convincing: he was having a drink with his wife who was very worried about a potential debt of over $170,000, he was thinking about what had gone wrong and he decided to do some research on the internet. That’s when he found the TDS.
There was no evidence that the Respondent was told that the screed must reach any particular mechanical strength. Nor was there any evidence that Welsh was told that he had to perform moisture tests using any kind of meter,[24] or was required to monitor or test compressive strength of the screed.[25]
[24]Re-examination.
[25]Schilg cross-examination.
On the evidence before me I find that the Mapei Mapecem Technical Data Sheet was not provided to the Respondent prior to completion of the Works.[26] I further find that it was not an oral term of the agreement between the parties that the Respondent was required to lay the mixed screed in accordance with the Mapei Mapecem Technical Data Sheet 201-02-2017 (AUS) and hence had no obligation to ensure the requirements of the Technical Data Sheet were met.
[26]Exhibit 11, [20].

Was the Mapei Mapecem Technical Data Sheet followed?

Mapei is the manufacturer of Mapecem. Mapecem is described as a ‘special fast setting and drying (24 hours) hydraulic binder for shrinkage compensated screeds.’[27]
[27]Exhibit 4, [MDS-1].
The Mapei Technical Data Sheet relevantly provides:[28]
[28]Exhibit 4, [MDS-2].
Where to use
Preparation of both floating and bonded screeds on existing or new slabs for the installation of …any other flooring where fast-drying is required for minimum down time.
…
Technical characteristics
Mapecem is a special hydraulic binder, which, when mixed with dry, clean graded aggregates and water, has the extraordinary capacity to harden in just a few hours and to dry perfectly regardless of thickness within 24 hours (residual moisture less than 2% by weight).
…
use aggregates graded from 0 to 8mm…
…
Do not mix Mapecem with an excessive quantity of water…
…
Spreading the mix
…A polyethylene sheet must be laid…in order to create an easily flowing layer between the Mapecem screed and the already existing substrate…
…
Recommended proportions

Mapecem:

350-450 kg

Graded aggregates from 0 to 8mm

Gravel 0 -8

1 m³

Water:

From 80 to 160kg depending on the moisture in the aggregates

equal to:

Mapecem:

One 20 kg bag

Graded aggregates from 0 to 8mm

Gravel 0 -8

80 -100 kg or 13 – 15 shovelfuls

Water:

From 4 – 8 kg depending on the moisture in the aggregates

The TDS has a photograph showing the correct consistency of the mix - a ball held in the right hand - contrasted to an incorrectly mixed loose mass of material in the left hand.
The TDS has a number of graphs depicting:
(a)compressive strength gained over time;
(b)flexural strength gained over time; and
(c)residual moisture over time.
The Y axes of the graph titled ‘Compressive Strength of Mapecem with Different Mixes’ and of the graph titled ‘Flexural strength of Mapecem with Different Mixes’ refer to ‘N/mm²’, not MPa. One MPa equals one N/mm². Throughout the hearing, in all the laypersons’ evidence, the only unit of measurement used for strength of the screed was MPa. Perhaps this difference in terminology is one of the reasons that Mr Considine thought that Mapei should re-do its TDS for use in Australia.
In Australia, N/mm² is used much less frequently than MPa as a unit of measurement, typically by design engineers. Hence the information to be derived from the graphs is unlikely to have been of assistance to either the Applicant or the Respondent (had he been given a copy of the TDS), other than as a representation of the fact that the correct mix of dry clean graded aggregate and Mapecem would gain strength over time: quickly at first and then more and more slowly as time passed.
Common tests for compressive strength and flexural strength are destructive. The TDS makes no requirement that such tests be carried out.
The TDS describes how residual moisture of a screed might be measured. It provides:
Electronic hygrometers supply only indicative values for measuring moisture. The residual moisture level of Mapecem screeds must absolutely be measured with a carbide hygrometer, which provides absolute values of moisture by weight.[29]
[29]Exhibit 4, [MDS-1].
The Applicant relies on alleged failures by the Respondent to follow the TDS to establish its allegation that the Respondent failed to control, execute and complete the works in a proper and workmanlike manner so that the works, when completed, were fit for their intended purpose in all respects.
In its contract with Uniqlo, Trump was obliged to control the work to ensure that Uniqlo received the screed for which it contracted. There is no question that Trump had the TDS. Pursuant to its contract with Uniqlo, Trump was responsible to ensure that the TDS was followed in order to provide Uniqlo with work fit for its intended purpose.
No doubt Trump’s knowledge of the TDS was part of the reason that Trump:
(a)engaged with Mapei to ensure that the sand proposed to be used would be compatible with the Mapecem;
(b)arranged a pre-start meeting attended by representatives of Trump, Mapei and Welsh to explain the process required to mix and lay the screed;
(c)had Mr Gunn on site every day to monitor the work; and
(d)turned to Mapei for advice when the screed did not cure in the time expected.
If the TDS requirements were not met, the fault lies with the Applicant.

The aggregate/sand

In the TDS, Mapei recommends use of graded aggregates from 0 to 8 mm.
Mapei does not have a specified sand supplier.[30] In cross-examination Mr Schilg explained how he worked with Mapei to ensure that the sand selected would be compatible with Mapecem. He said there were numerous discussions between Trump and Mapei regarding whether the selected sand would suit their system. Four types of sand were considered.
[30]Exhibit 1, [8].
Trump proposed to use medium river sand from Neilsen’s Quality Gravels Pty Ltd (Neilsen’s).[31] In his statement, Mr Bartlett said that he collected a 20 kg bag of Neilson’s sand for testing in the Mapei laboratory.[32] Mapei tested the suitability of the sand. Mr de Santis stated that the sample was finer than the graded aggregates

0-8 mm recommended by Mapei.[33] He also stated that the sand appeared wet.[34]
[31]Exhibit 1, [10].
[32]Exhibit 7, [6].
[33]Exhibit 4, [9].
[34]Exhibit 4, [9].
Mr de Santis described the typical testing regime performed in the laboratory. A 3kg batch of aggregate and Mapecem is mixed and placed in horizontal steel moulds measuring 40mm x 40mm x 160mm. No black plastic is used in the mould. The sample remains in the mould for 24 hours. Thereafter it is removed from the mould and stored vertically. In cross-examination Mr de Santis confirmed that moisture would evaporate more quickly from the samples, particularly after they were removed from the mould and placed vertically, than from a large horizontal floor area.
Tests are performed at intervals of 24 hours, 7 days and 28 days. After 24 hours the samples should be perfectly dry and hard enough to lay flooring. Some samples are crushed in order to ascertain compressive strength (to address a requirement of AS 1884 regarding laying of resilient flooring) while others are the subject of tensile strength testing.
There is no contemporaneous evidence of the test results. The only evidence about the test results was provided in a report prepared by Mr de Santis on 30 May 2017 (after the screed had been laid). He reported that at 24 hours, 32 MPa of mechanical strength was achieved. [35]
[35]Exhibit 4, [MDS-2].
Mr Bartlett stated that the test ‘found that mixing Mapecem with Neilsen’s medium river sand resulted in a screed that complied with the standards set in AS 1884 – 2012 [which] was verbally communicated by Mapei to Trump’.[36] I suspect that Mr Bartlett’s statement is not based on an independent recollection of that conversation. I doubt he actually referred to the Australian Standard. In cross-examination he explained the demarcation between the roles of salespeople and technical staff within the Mapei business which leads me to conclude that it is likely that the people in the lab told him that the sand was acceptable as it had performed as per the requirements of the TDS and he conveyed something along those lines to Mr Schilg.
[36]Exhibit 7, [6].
In cross-examination Mr de Santis explained that the finer the sand used, the lower the mechanical strength would be expected to be. In his report of 30 May 2017, he stated that the quality of the sand could be one of the main reasons for the performance observed on site. He observed that ‘the particle size and the moisture content of the sand are paramount for getting Mapecem to perform as per our TDS’.[37]
[37]Exhibit 4, [MDS-2].
In cross-examination Mr de Santis explained that although the sand in the sample was finer than recommended in the TDS for getting the best performance, he believed it was satisfactory as the mix had been tested and got an acceptable result. He agreed that if the sample tested was not as wet as the sand delivered to site, the test would have had a different outcome.

Mixing ratios

The parties agree that it was a term of the agreement that the Respondent was required to mix sand and the Mapecem supplied by Trump in the ratio of 4 parts sand to 1 part Mapecem.[38]
[38]Exhibit 11, [5(a)].
The Applicant alleges that the Respondent failed to mix the sand and Mapecem in accordance with the required ratio of 4 parts sand to 1 part Mapecem but instead used a mix ratio of approximately 6.5 parts sand to 1 part Mapecem.[39]
[39]Exhibit 11, [22(a)].
The ratio 6.5 parts sand to 1 part Mapecem is first found in the report prepared by Mr de Santis on 30 May 2017. [40] It is a ratio that had been calculated based on information provided to Mr de Santis by Trump. Mr Schilg stated that ‘the use of all 81,000 kgs of sand and 2,800kgs of Mapecem [means] the sand to Mapecem ratio would be 6.33:1’.[41] His calculation by weight is based on the assumption that each 1 tonne bag contained 1,000kgs of sand. It makes no allowance for the weight of the water in each bag.
[40]Exhibit 4, [MDS-2].
[41]Exhibit 1, [26].
In his statement Mr Welsh says that he ‘mixed the material in accordance with the instructions [he] was given. If…[he] had complied with what [the TDS] required the ratio of the mix should have been between 2.2:1 to 2.5:1.’[42]
[42]Exhibit 10, [31].
Welsh engaged 10 men to do the work. [43] As is industry practice,[44] each worker used a shovel to put sand and Mapecem into the mixer. In cross-examination Mr Welsh said that in 36 years of plying his trade, using shovels as the basis of the mixing ratio, he had never seen a floor fail.
[43]Cross-examination of Mr Welsh.
[44]Cross-examination of Mr Welsh.
In his oral evidence, but not in his statement, Mr Bartlett was critical of the use of shovels as a mixing method. Although Mr Bartlett and Trump’s personnel on site must have seen men using shovels there was no evidence that anyone told Mr Welsh that shovels could not, or should not, be used, or that the sand and Mapecem had to be weighed and could not be shovelled.
Mr Considine was critical of the use of shovels instead of weighing the sand and Mapecem. Although best practice might have been to weigh the sand and Mapecem, I note that the TDS refers to proportions both by weight and by shovelfuls.
In order for the mixing ratio of 6.33:1 calculated by Mr Schilg, or the mixing ratio of approximately 6.5:1 assumed by Mr de Santis, to be correct a worker would have had to shovel six and a third, or six and a half, shovels of sand for every shovel of Mapecem. I cannot believe that happened.
Mr Welsh’s retrospective calculation of mixing ratios is equally fanciful. I cannot believe that a worker would have shovelled two and a fifth or two and a half shovels of sand for every shovel of Mapecem.
While I accept Mr Considine’s evidence that different workers would have different amounts on the shovel and might tire and have less weight on the shovel towards the end of the day, given that the worker would use the same shovel and would mix 4:1 in a short space of time it seems unlikely that the ratio would be varied to the extent calculated by Mr Schilg.
I find that the workers mixed using the ratio of 1 shovel of Mapecem for every 4 shovels of sand. I find that use of a shovel to put sand and Mapecem into the mixer was not in breach of Welsh’s obligation to execute the work in a proper and workmanlike manner.

The sand was not dry

The Mapei TDS calls for dry sand. [45]
[45]Exhibit 4, [MDS-1].
The TDS does not require the moisture content of the sand to be checked before it is used. There was no contemporaneous written evidence of the moisture content of the bags of sand. Neither party provided any evidence about what might be considered a ‘high moisture content’.
Mr Schilg stated that by the time the work started on 15 May 2017 Trump had supplied 40,000 kgs of river sand.[46] That was not all the sand that would be needed for the job, but it was all that could be stockpiled, due to issues with the weight allowed on the section of the shopping centre carpark being used as a laydown area.[47]
[46]Exhibit 1, [21].
[47]Cross-examination.
Mr Welsh calculated that 48m³ of sand by volume would be needed for the job. He stated that 48m³ is equivalent to about 74,880kgs of sand. [48]
[48]Exhibit 10, [26].
Mr Schilg stated that during the course of the work Welsh requested more sand on three separate occasions. He stated that he organised delivery of a further 41,000kgs of sand, giving a total of 81,000kgs of sand supplied.[49] The extra sand was delivered progressively on 16, 19 and 22 May 2017.[50]
[49]Exhibit 1, [23].
[50]Exhibit 1, [BS-4].
Mr Schilg stated that the sand was partially wet.[51] In cross-examination Mr Schilg conceded that he did not know how much water was in the bags of sand. He stated that Welsh should have allowed for the moisture already in the sand in the ratio of the mix of sand, water and Mapecem.[52]
[51]Exhibit 1, [21].
[52]Exhibit 1, [22].

Mr Welsh used a forklift to move each of the bags of sand from the laydown area in the carpark to the work site. He noticed each bag was wet.[53] Mr Welsh noted that none of the sand bags delivered to site were the same, ie. the sand was packaged in one cubic metre bags and was wet. Because the bags were plastic, whatever water content was in the sand when it was packaged was unable to escape so each bag had a different ratio of sand and water in it.[54]
[53]Re-examination.
[54]Exhibit 10, [19].
In cross-examination Mr Schilg accepted that, depending on how much water was in each bag, there would have been less than one tonne of sand in each bag. He thought that each bag contained ¾m³ of sand. This difference in approach, Mr Welsh using volume and Mr Schilg using weight, is significant.
Mr Welsh gave evidence that Mr Gunn (an employee of Trump) was on site all day every day. Mr Welsh said that on the first day he told Mr Gunn that he was concerned about the amount of water in the bags of sand. Mr Welsh told Mr Gunn that Neilsen’s were ripping Trump off because they were charging for the bags by weight and there was a significant weight of water in each bag. He said the bags might have weighed 81 tonnes but there was a lot of water in each bag.[55]
[55]Re-examination.
I find that the sand supplied by the Applicant was not dry, as required by the TDS. I cannot make any finding about how wet the sand was, but suspect the fact the sand was not dry played a significant role in the slow strength gain and drying of the screed.

Mixing water

The parties have agreed that the Respondent was required to mix the sand and Mapecem with 6% water (6 litres per 100kg).[56]
[56]Exhibit 11, [5(b)].
The Applicant alleges that the Respondent used an excessive amount of water in producing the screed mix and failed or refused to reduce the water content of the screed mixture despite being directed to do so.[57]
[57]Exhibit 11, [22(b)].
The TDS provides: ‘Do not mix Mapecem with an excessive quantity of water’. For each 20 kg bag of Mapecem it recommends ‘from 4 – 8 kg depending on the moisture in the aggregates’. When the mix of Mapecem with Neilsen’s sand was tested ‘the mixing water was cut back from 8 to 6 litres per 100 kg of screed’.[58]
[58]Exhibit 4, [MDS-2].
Mr Bartlett states that when he was on site on 16 and 17 May 2017 he told Mr Welsh that the mixture was too wet.[59] He stated that the person mixing the screed told him that he was using eight litres of water per one shovel of Mapecem and four shovels of sand.[60] When pressed in cross-examination regarding whether he might be mistaken about his recollection of what was said and whether he might be jumping to a conclusion about the use of eight litres of water with the benefit of hindsight he observed that the product didn’t look like it should have and he saw that the guys weren’t measuring, they were using shovels.
[59]Exhibit 7, [13].
[60]Exhibit 7, [12].
Mr Welsh has no recollection of seeing Mr Bartlett on site other than at the first meeting.[61]
[61]Exhibit 10, [49].
Mr Schilg stated that he rang Welsh on several occasions and instructed him to back off the water in the mix and compact the screed more.[62] Mr Welsh disputes receiving these calls.[63]
[62]Exhibit 1, [32].
[63]Exhibit 10, [46].
However, Mr Welsh also stated that he was told to reduce the water in the mixture and he did that as and when required.[64] He did not accept that it might have been possible that one or more of his employees might have mixed the product incorrectly.
[64]Exhibit 10, [27].
There is no persuasive evidence that the Respondent used an excessive amount of water in producing the screed mix and failed or refused to reduce the water content of the screed mixture despite being directed to do so. Accordingly, I find that the Respondent was not in breach of his obligations.

The moisture content in the sand impacted on the mix

Welsh mixed the sand supplied by Trump. In the words of Mr Schilg: ‘he was just mixing what was delivered’.
Mr Welsh said that no water was added to some mixes because the sand was so wet.[65] Plainly, in doing so he made the maximum allowance that could have been made for the moisture in the sand. The only other thing he could have done, which was impractical, was dry the sand.
[65]Cross-examination.
Mr de Santis’ statement that the Mapecem to sand ratio was equal to 1:6.5[66] is based on the assumption that the bags of sand were dry. In cross-examination he indicated that if less than 81 tonnes of sand had been used, his opinion regarding the ratio would change.
[66]Exhibit 4, [MDS-2].
Mr Considine explained that the moisture level in the mix could not be checked as the screed was being laid, but it could be checked by using a moisture meter 24 hours after laying. Any problems could be addressed by making adjustments to the mix going forward.[67]
[67]Cross-examination.
Despite raising concerns about the wet mix with Trump, there is no evidence that Mr Bartlett either carried out any testing or recommended that Trump carry out tests 24 hours after sections of the screed had been laid. There was certainly no reference to testing using a carbide hygrometer as recommended in the TDS.
I find that the Respondent did what he practically could to control the moisture content of the mix.

‘Balling’ the mixture

The parties agree that it was a term of the agreement that the mixed product (screed) was required to ‘ball’ in the hand and be compacted to achieve the specified strength.[68]
[68]Exhibit 11, [5(c)].
The Applicant alleges that the Respondent failed to ‘ball’ the mixture and/or properly compact the mixture before levelling.[69]
[69]Exhibit 11, [22(c)].
Balling is an heuristic test used to obtain an indication of the water content in the mix. As the word suggests, the moisture content should be such that the mixture is malleable, ie. it sticks together in the hand.
Mr Considine explained that ‘balling’ is not an accurate way of measuring moisture content in a mix, but nonetheless that is the way it is done in practice.[70] In cross-examination Mr de Santis noted that ‘balling’ is a practical way to observe consistency, but the moisture content of a ball in the hand can vary.
[70]Cross-examination.
Mr Welsh stated that the product was balling in the hand as required.[71]
[71]Exhibit 10, [25(b)].
Mr Bartlett’s statement includes an observation he made on 16 May 2017, that the screed was not being compacted prior to levelling.[72] In cross-examination he said that he was concerned when he saw the Respondent’s men ‘just pulling the product back, not tamping it in, because they couldn’t because it was too wet’. He said that he spoke to Mike Gunn and told him that the job needed to be stopped.
[72]Exhibit 7, [11].
In cross-examination Mr Schilg said that Mr Bartlett told him that there was water running out of his hand when he picked up the mix, that there was no clumping.
If the mixed product was as wet as has been described by Mr Bartlett, the only witness who described the mix that way, and if Mr Bartlett reported his concerns to Trump, as he said he did,[73] I cannot understand why Trump did not stop the job as Mr Bartlett recommended. If Mr Bartlett is to be believed, his level of concern warranted much more than a phone call by Mr Schilg to ‘back off the water’.
[73]In cross-examination.
I note that Mr Gunn, the Trump employee on site most days, did not give evidence. I can only assume that any evidence he might have given did not support Trump’s case.
While there may have been batches of the mix that were less than ideal in terms of balling, I find this was due to the high moisture content in the sand supplied by Trump.

Role of the Visqueen

Mr Welsh did not believe that the screed should be laid over Visqueen[74] but did as he was instructed.[75]
[74]Exhibit 10, [14].
[75]Exhibit 10, [15].
The Respondent pleaded that the problem with the screed was that it should never have been laid on top of the Visqueen as it did not allow the floor to bond with the base slab and meant that any extra moisture in the curing process could only come to the top of the screed and would have to evaporate.[76]
[76]Exhibit 11, [26(a)].
However, in his evidence in chief Mr Welsh conceded that use of Visqueen did not mean that the screed was bound to fail.
In cross-examination Mr de Santis noted that unbonded screed was common in the industry, but confirmed that there would be less evaporation from the screed with the plastic underneath than from bonded screed.

The state of the screed on 22 May 2017

By 22 May 2017 the screed had been laid. The parties agree that the finished screed had not properly dried out within 24 hours as expected. [77]
[77]Exhibit 11, [14].
In cross-examination Mr de Santis said that when he arrived on site (on 30 May 2017) the screed had a good visual appearance. In his written report he observed ‘the screed appears smooth and flat and neither crumbling nor powdery at the surface. Scissor lifts have also been driving on the screed over the last weeks without apparently compromising the surface…’[78]
[78]Exhibit 4, [MDS-2].
Mr Schilg stated that there were obvious signs of overwatering as the product would not dry out as quickly as it ought to have.[79] However, he failed to identify what signs he observed. He has no scientific training and his statement appears to have been prepared with the benefit of hindsight.
[79]Exhibit 1, [37].
On 30 May Mr de Santis used a moisture meter and recorded values varying between 2.8% and 6.8%. The lower readings were in areas that had been laid longer. He selected two areas to perform pull out tests. Three of the tests (in the area with moisture content of 6.8%) had a tensile value of 0.5MPa and the other three (in the area with moisture content of 3.2%) had a tensile value of 0.2MPa. Mechanical strength testing was performed on two samples. The strengths recorded were ‘well below the specification, around 10 MPa.’[80]
[80]Exhibit 4, [MDS-2].
Mr de Santis concluded that the screed was ‘not suitable for resilient products application.’[81] His conclusion that the screed was not suitable was based on the fact that he was informed, wrongly, that the incorrect mixing ratio had been used.
[81]Exhibit 4, [MDS-2].
In cross-examination Mr de Santis said that if he had been told on 30 May 2017 that the volume of sand delivered was less than 81 tonnes (because the bags contained sand and water) he would have explored other parameters to explain his site observations.
The result of Mr de Santis reaching the conclusion that the screed would have to be replaced was that no-one explored other reasons for the failure. Nor was there any consideration given to the possibility that the screed would gain strength over time.
Mr Considine listed the following factors which might, individually, or in combination, have been responsible for the failure of the screed:
Too much water in the mix…
Too much sand in the mix
[the Respondent] not allowing for the fact the sand was already wet in their (sic) calculations of how much water to add to the mix…
Too much air in the mix
Using the wrong type of mixer … or mixing either too fast, too slow, too long or not long enough
Late placement of the [screed] after it had started to set
Failure to compact and tamp the [screed] sufficiently.[82]
[82]Exhibit 9, DC-1 [13].
The author of the Cement Australia report, having tested four core samples and four sections of failed floor mortar , observed:
While the aggregate:product ratio may have been a little on the high side, 4.5 – 5.7:1 [uncertainty ± 0.2] higher compressive strengths would probably have been expected. However the density of the dry core samples submitted was lower than expected…This could be due to excessive air in the mix or excess water. The author is unable to determine with any certainty which if either of these is the cause. [83]
[83]Exhibit 1, [BS-10].
In cross-examination Mr de Santis accepted that the author of the report raised a valid point.
In running its case the Applicant pressed some of the factors identified by Mr Considine (also identified as possible causes by Cement Australia) as the reasons for the failure. However, as those possibilities were not considered at the time, no-one knows the reason the screed was not suitable for application of resilient flooring on 22 May 2017.
It is worth noting that Trump did not use Mapecem for the rectification. One can only speculate that Trump may not have been confident that the Mapecem could not be ruled out as a contributing factor.

Liability

Whether expressed as an implied term, or as a duty of care co-existent with contractual obligations, there is no doubt that the Respondent had an obligation to execute and complete his work in a proper and workmanlike manner.
The Applicant alleged that the Respondent failed to control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed were fit for their intended purpose in all respects, namely:
(a)the Respondent failed to mix the sand and Mapecem in accordance with the required ratio of 4 parts sand to 1 part Mapecem but instead used a mix ratio of approximately 6.5 parts sand to 1 part Mapecem;
(b)the Respondent used an excessive amount of water in producing the screed mix and failed or refused to reduce the water content of the screed mixture despite being directed to do so;
(c)the Respondent failed to “ball” the mixture and/or properly compact the mixture before levelling;
(d)…
(e)the Works failed to achieve a compressive strength of 36.8 MPa after curing for 7 days;
(f)the Works failed to achieve a flexural strength of 6.7 MPa after curing for 7 days;
(g)the Works failed to achieve a tensile strength of 1.5 MPa after curing for 7 days; and
(h)the Works contained residual moisture in excess of 2 percent after curing for 7 days. [84]
[84]Exhibit 11, [22].
This rolled up allegation conflates the purpose of the work under the Applicant’s contract with the Respondent and the Applicant’s contract with Uniqlo. The purpose of the Respondent’s work was to mix the sand and Mapecem supplied by Trump, and to install the mixed screed over the Visqueen. There was no requirement that the Respondent’s work have any of the specified strength requirements after curing for 7 days.
Above, I have found that the Respondent mixed the sand and Mapecem in accordance with the ratio of 4 parts sand to 1 part Mapecem by volume.
I find that the Respondent did not use an excessive amount of water in producing the screed mix. I find that the amount of water in the mix was as a result of the water in the sand supplied by the Applicant. The Applicant did not provide dry sand, which is one of the bases on which Mapei’s promise of 24 hour drying is based.
The Applicant has produced no persuasive evidence that the Respondent failed to ‘ball’ the mixture or to properly compact the mixture before levelling. There are two possibilities on the evidence before me, either:
(a)the mix was ‘like slop’ as Mr Bartlett said; or
(b)Mr Bartlett’s memory is faulty and coloured by hindsight and the Respondent’s workers were properly compacting the mixture before levelling.
There was no corroboration of Mr Bartlett’s evidence. Trump did not call Mr Gunn so I have drawn an adverse inference that his recollection did not accord with that of Mr Bartlett. Mr Schilg’s statement is silent regarding any observation he might have made on 16 or 17 May despite it being an agreed fact that he was present on site those days.
The first possibility is unlikely. If Trump had been advised to stop the work because the workmanship was as poor as described by Mr Bartlett there is no reason it would not have done so as recommended by Mr Bartlett. The consequences of proceeding were obvious. There would be no reason to proceed with a job doomed to failure. At the least one would expect that a monitoring regime might have been put in place, but it wasn’t.
Therefore, I find that the second possibility is the more likely in the circumstances.
Accordingly, I find that the Respondent is not in breach of his obligation to execute and complete the work in a proper and workmanlike manner.
The allegations regarding specified strength requirements after curing for seven days are largely derived from the TDS. They are relevant to the purpose of Trump’s work, for its client Uniqlo, to produce a screed on which vinyl floor covering could be laid. However, if I am wrong in my findings that the TDS was not supplied to the Respondent and that he is not liable, I turn to those alleged requirements.
The Applicant submitted that the requirement that the screed achieve a compressive strength of 36.8 MPa after curing for seven days is found in:
(a)the pre-work test conducted by Mapei; and
(b)the Mapei TDS on page 5 in the graph titled ‘Compressive Strength of Mapecem with Different Mixes’ which states that the ‘compressive strength should exceed 43 after 7 days’. [85]
[85]Further Submissions of the Applicant dated 15 October 2020, [2(a)].
The pre-work test conducted by Mapei was not in evidence. None of the witnesses suggested that was given to Welsh at any stage. Consequently, I find that there cannot have been any requirement for the Respondent to perform the work to achieve a compressive strength of 36.8 MPa after curing for seven days, based on a document not provided to him (or in evidence before me).
Compressive strength testing is commonly destructive testing performed in a laboratory, not in situ. The TDS does not contemplate that a screed will be the subject of compressive strength testing to demonstrate fitness for purpose. It indicates that if the correct ingredients are mixed in the correct ratio the finished product will achieve certain compressive strength parameters.
As the screed had not dried out as expected, samples were tested. Mapei tested two samples and found mechanical strength around 10MPa.[86] Cement Australia tested four samples and found mechanical strength ranging from 3.4 to 11.5MPa.[87]
[86]Exhibit 4, [MDS-2].
[87]Exhibit 4, [BS-10].
The fact that the test results were lower than expected indicates there is a problem but does not explain the reason for the problem.
The Applicant submitted that the requirement that the screed achieve flexural strength of 6.7 MPa after curing for seven days is found in the Mapei TDS:
(a)in the table titled ‘Mechanical strength of Mapecem with 0-8mm sand’ on page 3; and
(b)on page 5 in the graph titled ‘Flexural strength of Mapecem with Different Mixes’.[88]
[88]Further Submissions of the Applicant dated 15 October 2020, [3].
Flexural strength testing is also destructive testing. The TDS does not contemplate that a screed will be the subject of flexural strength testing to demonstrate fitness for purpose. It indicates that if the correct ingredients are mixed in the correct ratio the finished product will achieve certain flexural strength parameters.
Trump arranged for concrete adhesion testing which occurred on 2 and 3 June 2017. NuSpec Consulting performed eight tests for concrete strength at locations nominated by Trump. Six results recorded an MPa reading below the required 3 MPa and two results recorded an MPa reading above the required 3 MPa.[89]
[89]Exhibit 1, [BS-9].
Again, the fact that some test results were lower than expected indicates there is a problem but does not explain the reason for the problem.
The Applicant submitted that the requirement that the screed achieve a tensile strength of 1.5 MPa after curing for seven days is found in:
(a)AS1884; and
(b)in test results provided in Mr de Santis’ report of 30 May 2017.[90]
[90]Further Submissions of the Applicant dated 15 October 2020, [4].

The TDS makes no mention of AS 1884 – 2012. This is hardly surprising as AS1884 is a standard for installation practices for resilient floor coverings. Laying the screed bed is a precursor activity to laying the flooring. AS1884 provides:
Sand-cement screed subfloors with polymer additives that achieve … a tensile strength of 1.5MPa are considered acceptable [for the installation for resilient flooring].[91]
[91]Exhibit 9, DC-1.
The extract from AS1884 that was in evidence is silent as to the time that might be taken to achieve a tensile strength of 1.5MPa.
Mr de Santis’ report of 30 May 2017 provides average tensile values for tests in two areas. After one week of curing the tensile value was 0.5MPa and after two weeks of curing the tensile value was 2.0 MPa.
Given that AS1884 is silent as to the time that might be taken to achieve a tensile strength of 1.5MPa and given that average tensile values of 2.0MPa were reported in an area that had been cured for two weeks, I cannot find that the Respondent failed to control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed were fit for their intended purpose, on the basis of a test in one area that failed to achieve a tensile strength of 1.5 MPa after curing for seven days.
The Applicant submitted that the requirement that the screed not contain residual moisture in excess of two percent after curing for seven days is found:
(a)in the Mapei TDS:
(i)      which states that the product has the ‘capacity to harden … and to dry perfectly regardless of thickness within 24 hours (residual moisture less than 2% by weight)’;
(ii)      in the table titled ‘Mechanical strength of Mapecem with 0-8mm sand’ on page 3; and
(iii)     in the graph titled ‘Residual Moisture in Mapecem Screed’ on page 5; and
(b)in Mr de Santis’ report of 30 May 2017.[92]
[92]Further Submissions of the Applicant dated 15 October 2020, [5].
The quote relied on must be read as a whole. The TDS brochure states that ‘when mixed with dry, clean graded aggregates and water’ the product has the ‘capacity to harden … and to dry perfectly regardless of thickness within 24 hours (residual moisture less than 2% by weight)’.
The table titled ‘Mechanical strength of Mapecem with 0-8mm sand’ on page 3 says nothing about residual moisture content after seven days.
The graph titled ‘Residual Moisture in Mapecem Screed’ on page 5 depicts residual moisture decreasing over time, more rapidly in the first three days but continuing over 28 days.
Mr de Santis’ report of 30 May 2017 provides residual values measured by moisture meter ranging from 2.8% to 6.8%. The 6.8% reading was taken in an area one week old and a 3.2% reading was recorded in an area two weeks old.
There is no doubt that Trump did not provide dry aggregate. As there is nothing in Trump’s contract with Welsh that expressly required the screed to be ready for laying the vinyl planks within a designated time frame and as the testing showed residual moisture decreasing over time as expected, I cannot conclude that the fact the screed contained residual moisture over 2% in the areas tested on 30 May 2017 proves that the Respondent failed to control, execute and complete the Works in a proper and workmanlike manner so that the Works when completed were fit for their intended purpose.

Was there a solution other than re-doing the work?

Although I have found that the Respondent was not in breach of his obligation to perform his work in a proper and workmanlike manner, for completeness I turn to the question of whether there might have been a more cost-effective solution to make Trump’s work, for its client Uniqlo, suitable for laying vinyl floor planks.
Trump asked Welsh to attend a meeting on site on 31 May 2017. Mr Schilg stated that at the meeting he told Mr Welsh what Mapei had recommended in its report, that Mr Welsh refused to look at, or take a copy of, the report. Mr Schilg stated that Mr Welsh refused to accept responsibility for the defective work or to agree to rectify.[93]
[93]Exhibit 1, [42].
In cross-examination Mr Welsh agreed that he was angry at the meeting. In re-examination he explained that when the Trump representatives told him that the screed had failed, he thought they were attempting to avoid payment. Mr Welsh disagreed with Trump’s decision, based on Mapei’s recommendation, that the screed had failed and had to come up. He did not offer to replace the screed at the meeting because he thought there was an easier, more cost-effective remedy, which was to apply a chemical hardener over the screed. In cross-examination Mr Welsh conceded that vinyl could not be laid on a screed with low mechanical strength, but said that application of the hardener could fix the problem.
I find that the Respondent did not refuse to rectify, he refused to agree that the only solution was to remove the screed and replace it.
There was no evidence that the Applicant made any attempt to explore the possibility of rectification by use of a chemical hardening agent.
On 3 June 2017 Trump wrote to Welsh and advised that ‘the recommendations of the manufacturer is (sic) that the screed needs to be removed and re-installed.’[94]
[94]Exhibit 1, [BS-12].
The Respondent provided no expert evidence regarding whether or not his proposal of application of a hardener would be efficacious. The Applicant relied on the evidence of Mr Considine. He dismissed the possibility of using a concrete hardener because Mapei does not have a product that could reactivate and harden the entire screed and use of another product (if one were available) over the Mapei product would mean the loss of the warranty from Mapei. [95] In his opinion the only rectification option was to remove the screed.
[95]Exhibit 9, DC-1 [13].
As Mapei does not have a concrete hardening product it would not have been commercially sensible for Trump to use any other product. In the circumstances, as neither Trump, nor its client, was prepared to wait to see if the screed continued to gain strength over time, I find that there was no practical solution other than for the screed to be removed and replaced.

Cost of rectification

In the event that I am wrong in my finding on liability I turn to address quantum.
Trump claimed $174,876.82 as rectification costs.[96] That amount was increased slightly to $174,959.11 following the review conducted by Mr Ryan.[97]
[96]Exhibit 1, [BS-13].
[97]Exhibit 3, FR-2.
The amount claimed is broken into four categories:

Category

Amount

Testing

4,045.64

Removal of material

29,018.46

Re-installation expansion joints

17,870.40

Re-installation screed

124,024.61

Testing

Trump claims for NuSpec testing on 2 and 3 June 2017 and 20 June 2017 ($709.50). I assume that the second test relates to the second installation. The results were not in evidence. The cost of the second test ($709.50) is not properly claimable.
Trump claims $180 for cutting three holes on 7 July 2017. I assume this relates to the second installation. The cost of work done on 7 July 2017 is not properly claimable.
Trump claims $150 for patching the three holes. As the cost of cutting the holes has not been allowed the cost of patching the holes is also not properly claimable.

Removal of material

Trump claims $3,200 for Mr Schlig’s time. He was an employee of Trump therefore he was paid a salary and not any additional amount. This is not properly claimable.

Re-installation expansion joints

Trump claims $17,870.40 for ‘reinstallation’ of expansion joints. Trump paid Welsh $70,507.55 for the work performed.[98] By the time Welsh ceased work he had not cut any expansion joints. Having paid nothing to Welsh to install expansion joints it follows that Trump did not reinstall expansion joints. Accordingly, it is not entitled to claim $17,870.40, or any amount, for ‘reinstallation’ of expansion joints.
[98]Exhibit 3, [11].

Re-installation screed

Trump claims $1,440 for work performed on 8 June 2017, yet it appears that the reinstallation work did not commence until weeks later. In the absence of any explanation of what work was done this is not properly claimable.
Trump claims $338 for electrical work. In cross-examination Mr Schilg did not know what this might have had to do with the re-installation work. This is not properly claimable.
Trump claims $1,556 and $848 for saw cuts. Mr Schilg said they were saw cuts in the new screed. For the reasons set out above, Trump is not entitled to claim for ‘re-doing’ this work. This is not properly claimable.
Trump claims $132.54, $500.48 and $98.43 paid to Kings. Mr Schilg did not know what this might have been for. These unexplained items are not properly claimable.
Trump claims $183.17 paid to Randstad, a labour hire company. Mr Schilg did not know what role, if any, Michael Pussell played in the re-installation. This is not properly claimable.
Trump claimed $800 for Mr Schlig’s time and $1,600 for Mr Gunn’s time. These men were employees of Trump therefore they were paid a salary and not any additional amount. This is not properly claimable.
Trump claimed $13.09 and $13.91 for meals consumed by Mr Schilg. These are not costs of re-installation. This is not properly claimable.

Claims not properly made

If the claims made are adjusted by deducting amounts not properly claimable, the amounts properly claimed are:

Category

Amount

Testing

3,006.14

Removal of material

25,818.46

Re-installation expansion joints

nil

Re-installation screed

116,500.99

Total

145,325.59

Costs

As this is a major commercial building dispute, the general rule in QCAT that each party must bear its own costs is displaced by section 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld).
Subject to any further submissions that might be made regarding offers of settlement, if any, the usual rule in commercial disputes, ie. that the unsuccessful party should pay the costs of the successful party, should apply. Subject to any submissions that might be made regarding costs, the Applicant should pay the Respondent’s costs.

Category	Amount
Testing	4,045.64
Removal of material	29,018.46
Re-installation expansion joints	17,870.40
Re-installation screed	124,024.61