Tyler v Queensland Building Services Authority
[2010] QCAT 588
•17 November 2010
| CITATION: | Tyler v Queensland Building Services Authority [2010] QCAT 588 | |
| PARTIES: | Stuart Tyler | |
| v | ||
| Queensland Building Services Authority | ||
| APPLICATION NUMBER: | GAR151-10 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 17 November 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | a) Paragraph 1 of the Scope is set aside and the following is substituted: “Apply 2 coats of alkyd gloss or 1 coat of solvent based primer and 1 coat of alkyd gloss to match existing to all unfinished surfaces. Apply 1 coat of alkyd gloss to match existing to all areas that have one coat of alkyd gloss.” b) Paragraph 2 of the Scope is set aside and the following is substituted: Rectify any areas of ponding that exist in the flashing around the rear patio columns c) Paragraph 3 of the Scope is set aside. d) Unless Mr Tyler can, within 14 days of receipt of this decision, provide an engineer’s report that demonstrates that he can provide framing anchors that comply with the location and wind loads, Paragraph 4 of the Scope remains. If Mr Tyler does provide an engineer’s report for an alternative solution, then that solution will be the new scope of works. e) The parties will re-inspect the welding at a date and time suitable to all parties, but no later than 28 days after receipt of this decision. Mr Crabb should attend that re-inspection. If Mr Tyler does not attend a re-inspection within that time, Paragraph 5 of the Scope will stand. Paragraph 5 of the Scope will also stand unless the re-inspection demonstrates that Mr Tyler has complied with the Direction and the welding is satisfactory. f) Paragraph 6 of the Scope is set aside and the following is substituted: Secure existing vermin proofing to ensure it is tightly fit around the rafters |
| CATCHWORDS : | BUILDING WORK – DIRECTION TO RECTIFY – SCOPE OF WORKS – where Authority issued scope of works – whether works inspected after rectification – whether scope of works reasonable |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
Proceedings between the Authority and Mr Tyler do not have a happy history. It is not necessary to revisit all of the events that have occurred between them but simply to take up the story on 2 March 2010, when the Authority issued a direction to rectify (“the Direction”) as follows:
a)Rectify the defective protective coating to the exposed steelwork by painting to the appropriate Australian Standard.
b)Rectify the defective corrosion protection to the columns to both patios by providing concrete upstands.
c)Rectify the defective rear patio columns’ waterproofing by providing collar flashings.
d)Rectify the continuous under batten that was cut during construction.
e)Rectify the defective number 13 rafters not fixed with framing anchors no supported over existing top plate.
f)Rectify the defective welding to the front and rear patios that require a continuous 6mm fillet weld.
g)Rectify the defective vermin proofing to the front and rear patio.
By letter of 6 April 2010, the Authority advised that the attempted rectification work did not address the requirements of the Direction. By letter of 16 April 2010, the Authority sent Mr Tyler a copy of a scope of works (“Scope”) which listed the work to be undertaken as a claim under the Home Warranty Scheme. That letter also foreshadowed that the Authority would be seeking to recover the cost of work undertaken pursuant to the Scope from Mr Tyler.
Mr Tyler, through Builders Advocacy, has applied to review the Authority’s decision of 16 April 2010.
The question for determination is whether the work identified in the Direction has been completed or whether further rectification work is required.
Painting the defective protective coating
Mr Cameron, an inspector licensed by the Authority, notes in a report dated 31 March 2010 (“Mr Cameron’s report”) that paint had been applied to the metal work but it had not been applied all the way to the bottom of the posts where they intersected with the domed collars. Mr Cameron also observed that the metal posts had not been painted behind the timber joists, under the timber joists or under the rafters of the front deck.
Mr Cameron says that the appropriate standard is for two coats to be applied. He estimates that approximately 75% of the steel had been painted with only one coat and 25% had not been painted at all.[1] Mr Cameron is of the view that, because he cannot be certain what paint was applied, it will be necessary to remove the existing paint and reapply two coats.
[1] Affidavit 8 October 2010, paragraph 16.3
Mr Tyler says that the painting already complies with the Direction and with the requirements of the Authority. He says that the Australian Building Code does not support a need for the application of primer, undercoat and finish coat.
An examination of the relevant Code shows that two coats are required for steelwork in severe environments but, if the steelwork has been hot dip galvanised, only one coat is required in moderate environments.
“Severe” is defined as “Within 1 km from breaking surf or within 100m of salt water not subject to breaking surf or heavy industrial areas.” An internet search of the site address indicates that the conditions experienced at the site do not fall within this definition.
10. I therefore find that Mr Tyler is only required to comply with the Code for “Moderate” conditions. In that case, if the steelwork has been hot dip galvanised, one coat of alkyd paint is sufficient. Mr Tyler states that the steel work was galvanised and that he used alkyd paint. He says that he applied two coats to those areas that were not galvanised – the welds and cleats – and one coat to the balance.
11. Mr Cameron assumes that the steelwork is not galvanised because the plans required welding on site and steel cannot be hot dipped on site. He also relies on the Commercial and Consumer Tribunal’s (“CCT”) finding that steel cannot be hot dipped on site[2] so it could not have been galvanised.
[2] Tyler v Queensland Building Services Authority [2009] CCT QR107-08 at paragraph 49
12. Mr Tyler says that the steel was galvanised prior to it arrival on site. It is for Mr Tyler to prove to the Authority that. Despite a number of opportunities to do so, he has provided no evidence to that effect.
13. Therefore, Mr Tyler was required to apply 2 coats of alkyd paint. It is not enough for Mr Cameron to require removal of the paint and its reapplication simply because he is not certain what paint Mr Tyler applied. Mr Tyler says that it was suitable paint, therefore it is a matter for the Authority to demonstrate that he is wrong.
14. The photographs in Mr Cameron’s report do show that the painting does not extend all the way to the collars. It also appears, although I cannot be sure, that Mr Tyler did not paint the steel that is behind the joists and decking. As the steel was not galvanised, the Scope should require a second coat to those areas that received only one coat and two coats o all areas of bare metal.
Providing concrete upstands
15. This item is not included in the Scope as Mr Tyler’s work has complied with the Direction.
Rectify the defective rear patio columns’ waterproofing by providing collar flashings
16. Mr Tyler has provided collar flashings. Mr Cameron says these the flashings contribute to the water ponding on the roof. He says that:
a)A water stain on the flashing indicates water ponding;
b)Splitting or cutting the flashing to get it around the beam could allow for potential failure;
c)The Code requires that the collar flashing only be installed over one rib to allow free passage of water.
17. Mr Cameron says that the rectification requires the removal of those flashings and the steel beam above, installation of a dry pann flashing from the gutter to the underside of the ridge capping before reinstalling a purpose-made Dektite over the metal columns and then reinstallation of the beam.
18. Mr Tyler says that:
a)he installed the flashing in compliance with the Code;
b)Mr Cameron’s insistence on Dektite is in breach of the Trade Practices Act as Dektite is a proprietary product name and the Authority cannot insist on a particular brand;
c)The Dektite guide for retrofitting flashing contemplates a split in the flashing. His method of flashing installation is superior to that recommended by Mr Cameron.
19. Mr Tyler also accuses the Authority of tampering with the flashing so as to create an area of ponding. There is no evidence that this is so and I do not propose to consider that allegation further.
20. I accept Mr Cameron’s comment that dektite (uncapitalised) is a reference to a trade term and not a brand. I expect it is similar to the public’s use of “Gyproc” to refer generically to internal wall sheeting.
21. I do not accept Mr Cameron’s assertion that the flashing should only be installed over one rib of the roof sheet; although diagram a. in Figure 3.5.1.8 of the Code shows this, diagram c., which deals with a larger penetration, shows the flashing extending over multiple ribs. The notation to diagram c states “Apron flashing turned down between ribs”. Logically, it seems to me, that if the flashing follows the contours of the ribs and is sufficiently sealed, that will comply with the Code.
22. Further, I do not accept Mr Cameron’s assertion that the beam must be removed to allow a flashing to be installed in one piece. As Mr Tyler has pointed out, if Dektite flashing is retrofitted, it is not installed in one piece. The method of installation specifically contemplates a split in the flashing being crimped closed and sealed. If Mr Tyler has achieved the same level of waterproofing, the difference between a one piece flashing and a split flashing is immaterial.
23. Mr Cameron asserts that, as the roof is custom orb, it is necessary to install a dry pann flashing from the gutter to the underside of the ridge capping. He does not point to any Code or industry literature to support that contention. He may consider it a superior method of installing a collar flashing but that is not the test; it is simply enough that the flashing that has been installed is adequate for the purpose.
24. Mr Cameron has provided photos of one of the flashings installed by Mr Tyler. It is not pretty and there is an obvious depression in the sealant upstream of the photographed penetration. If there is evidence that this ponding is likely to result in a roof leak, and I note that Mr Cameron puts it no higher than “it could allow for a potential failure”, then Mr Tyler should attend to that. I can see no justification for the extensive works recommended by Mr Cameron and provided for in the Scope.
The continuous under batten that was cut during construction
25. Mr Cameron says that the underbatten at the left hand side of the house is loose, no batten screw fixes the underbatten to the floor joists because the deck does not extend to this corner of the house, and the tie down is loose and unacceptable. He says that the appropriate method of rectification is to replace the cut underbatten with one piece that is long enough to join where the cut was made and to allow the fixing of cyclone rods through the new underbatten.
26. Mr Tyler says that he has replaced the cut underbatten. The new underbatten is over 6 metres in length, all cyclone rods have been reinstalled and batten screws installed, even though there were none existing originally. Mr Tyler says that the blocking piece, about which Mr Cameron complains, is merely cosmetic, as the batten is fully supported.
27. The photographs in Mr Cameron’s report have a note that indicates a concession that a new underbatten has been installed. The complaint now appears to be that the left hand end is loosely packed with timber and not tied to the structure. It is difficult to see clearly, but the top photo on page 6 of the report does show a bolt hole close to, or at, the point where the underbatten meets the joist. It also appears that the is a triple grip behind the underbatten. The bottom photo shows some protrusion about 300 mm from the end of the underbatten. It may be a cyclone rod.
28. Mr Cameron does not respond to Mr Tyler’s assertion that he has replaced the cut underbatten, even though there is a concession to that effect in the captions to the photos. Mr Tyler says he has complied with the Direction and the photographic evidence seems to support this contention.
13 rafters not fixed with framing anchors
29. Mr Cameron says that all 13 rafters should have been replaced and fixed with framing anchors over the existing top plate. He says that Mr Tyler simply batten screwed the rafters to the side of the existing rafters. The rafters are not supported over, or attached to, the existing top plate because they are too short. Mr Cameron provided a copy of part of the Tradec timber framing manual in support of his argument.
30. Mr Tyler says that the rafters do not intersect with the plane of the original top plate so they are properly fitted to a top plate extension. He says that this meets engineering requirements for wind load and location as was accepted in the CCT hearing. In fact, the Member preferred the evidence of the Authority that framing anchors should be installed.[3]
[3] Supra at paragraph 56
31. The Scope should reflect the requirement for framing anchors. If that requires replacement of the rafters, then that should be done but if an alternative, and cheaper, solution produces the same result then that will be sufficient. It is for Mr Tyler to produce a solution that is satisfactory to the Authority. He has been given a number of opportunities to do so and has failed to provide any evidence. The Scope must stand.
Rectify the defective welding to the front and rear patios
32. The Authority relies on the report of Ian Crabb, who has over 25r years experience as a boilermaker. In a report dated 1 April 2010, Mr Crabb found that the welds were unsatisfactory in that:
a)They lacked adhesion;
b)There was evidence of porosity and large slag inclusions;
c)Other substances (e.g. No More Gaps) had been used to make the welds appear satisfactory;
d)Most of the welds do not have a 6mm fillet.
33. Mr Tyler says that all welds have been ground back, re-welded to at least 8mm, photographed, finished with an exterior filler and repainted. Mr Tyler has provided the tribunal with copies of photos showing work on the welds but he does not say when this work was carried out.
34. Mr Tyler also says that, at the CCT hearing, the Authority’s expert commented on the good quality of the welds. This assertion is not supported by the Member’s decision[4].
[4] Supra at paragraph 58
35. I accept Mr Tyler’s complaint about the re-inspection. It is unfortunate that Mr Tyler was not present at the re-inspection. Whatever may have been the Authority’s practice, it must have suspected that Mr Tyler would not be amenable to a further direction; the dispute had already been through a tribunal hearing and an appeal to the District Court. The prudent course of action was to engage with Mr Tyler and seek his cooperation.
36. The parties should arrange a mutually acceptable time for a further reinspection. If the welds are defective as asserted, the Scope should stand.
Defective vermin proofing
37. Mr Cameron notes that the vermin proofing to the front patio has buckled so that it is still defective.
38. Mr Tyler states that the vermin proofing was adequate when installed and that there is evidence someone has tampered with it.
39. The Scope requires the removal and re-fitting of vermin proofing. That seems excessive if a few well-placed fixings could achieve the same result.
Conclusion
40. It is obvious to me that the parties’ enmity, resulting from years of dispute, has escalated the matters of difference between them. The Authority has, in some respects, magnified it perception of the defects whereas Mr Tyler has magnified the perceived insult to his workmanship. In the meantime, the homeowner’s interests have been marginalised. It is time for the this dispute to be finalised once and for all. If that requires a degree of cooperation between the parties, I urge them to behave accordingly.
41. As to the Scope:
Paragraph 1
a)Paragraph 1 of the Scope is set aside and the following is substituted:
“Apply 2 coats of alkyd gloss or 1 coat of solvent based primer and 1 coat of alkyd gloss to match existing to all unfinished surfaces. Apply 1 coat of alkyd gloss to match existing to all areas that have one coat of alkyd gloss.”
Paragraph 2
b)Paragraph 2 of the Scope is set aside and the following is substituted:
Rectify any areas of ponding that exist in the flashing around the rear patio columns
Paragraph 3
c)This paragraph of the Scope is set aside.
Paragraph 4
d)Unless Mr Tyler can, within 14 days of receipt of this decision, provide an engineer’s report that demonstrates that he can provide framing anchors that comply with the location and wind loads, this paragraph of the Scope remains. If Mr Tyler does provide an engineer’s report for an alternative solution, then that solution will be the new scope of works.
Paragraph 5
e)The parties will re-inspect the welding at a date and time suitable to all parties, but no later than 28 days after receipt of this decision. Mr Crabb should attend that re-inspection. If Mr Tyler does not attend a re-inspection within that time, Paragraph 5 of the Scope will stand. Paragraph 5 of the Scope will also stand unless the re-inspection demonstrates that Mr Tyler has complied with the Direction and the welding is satisfactory.
Paragraph 6
f)Paragraph 6 of the Scope is set aside and the following is substituted:
Secure existing vermin proofing to ensure it is tightly fit around the rafters.
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