Waters v Eco Cottages Pty Ltd - [2015] QCAT 261

CITATION:

Waters v Eco Cottages Pty Ltd [2015] QCAT 261

PARTIES:	Lee-Anne Waters (Applicant)
v
Eco Cottages Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL225-14

MATTER TYPE:

Building matters

HEARING DATE:

10 April 2015

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

DELIVERED ON:

8 July 2015

DELIVERED AT:

Hervey Bay

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

BUILDING DISPUTE – where the applicant homeowner alleges inadequate building practice – where the owner has failed to maintain the property after hand-over

APPEARANCES:

APPLICANT:

Lee-Anne Waters

RESPONDENT:

Eco Cottages Pty Ltd represented by Greg Phipps, director

REASONS FOR DECISION

Ms Waters decided to build a cottage with a natural cypress pine external finish.
She entered into a contract with Eco Cottages in January 2012 for the construction of a cottage for a total amount of $153,000. The builder completed the construction in May 2012. The house is a timber framed building on timber posts with cypress pine cladding. Off-site, the builder constructed two separate modules that were joined on site.
The evidence of Mr Phipps, representing the building company, was that he gave an opportunity to Ms Waters to attend the office of the company on the Sunshine Coast to see products in use before she signed the contract, but she declined to attend.
Issues arose which led to the homeowner making a complaint to the Queensland Building and Construction Commission on 24 April 2014. The complaint involved three aspects of the construction:
a) the first two aspects were resolved to the owner’s satisfaction, and
b) a third aspect relating to the state of external timber was not considered by the QBCC (because it was a category two defect, with the complaint made out of time).
The applicant requests the tribunal consider the third part her complaint. That is, in relation to the external timber. She alleges that due to defective work on its surface the timber has flaked, is mouldy, splitting and deteriorating. She says that the builder did not correctly apply the protective coating product (Spa-N-Deck) to the exposed timber, which has therefore resulted in the damage and the voiding of the warranty from the manufacturer of the product. She alleges breach of contract, breach of statutory warranties and negligence by the builder. In her application, she sought rectification by way of replacement or an order of money to enable a painter and builder to undertake repair work.
The builder urged the homeowner to paint the external timber, however, the client wanted to have a clear finish. Given this requirement, the builder’s director, Mr Phipps, suggested the use of Spa-N-Deck, but warned that the owner must recoat the timber regularly.
The owner does acknowledge that prior to the signing of the contract she did receive advice from Mr Phipps to the effect that she would be required to regularly maintain the timber. While she acknowledges that she did receive advice from Mr Phipps to paint the weatherboards, she received no such advice in relation to the timber decking.
The registered builder says he applied the product (Spa-N-Deck) correctly and the manufacturer's warranty has not become void because of his involvement.
Following the initial application of protective product, the builder did return to the site numerous times to reapply the product. Ms Waters says that was insufficient.
The local manufacturer of the product is the Flood Company Australia P/L. Neither litigant joined the Flood Company as a party to the proceedings. According to Ms Waters, the manager of the Flood Company, John Willis, was not prepared to look at the site as he was convinced it was not the product at fault but rather fault lay with the builder, through misapplication of the product. In coming to this determination, the manager looked at photographs. The manager indicated there are three steps to the proper application process: the first is to apply Flood Powerlift, the second is to apply Flood WoodPrep product and the third is to apply Flood Spa-N-Deck product to the wet timber. Powerlift is a deck stain and finish remover. WoodPrep is a product similar to detergent, containing oxalic acid.
The builder used a product not supplied by the Flood Company called Sap-Strip instead of Powerlift and WoodPrep (Flood Company products).
The builder replaced the preparatory products due to safety concerns. In this regard, in an e-mail dated 30 July 2013 to the owner, Mr Phipps said:
I do not allow the use of toxic products for the well-being of our workers. However we do we do use a similar product that’s not toxic called Sap strip which does a similar job to oxcalic (sic) acid i.e. remove mill glaze from the surface of the decking, though the manufacturer of Flood only guarantee their product if you use their woodprep which contains oxcalic acid?
Mr Phipps said that the preparatory product used by him did have similar attributes to the Flood's Powerlift product. He produced an e-mail dated 24 September 2014 from chemist Craig Ebb of Quantum Timber Finishes Pty Ltd, dealing with the issues. Mr Ebb said that, in relation to the alternative pre-treatment product used by Mr Phipps:
It is no less ideal as a pre-treatment prior to application of most coating types, in particular, those which may cause tannin bleed, or coatings which oxidatively cure. As a result, sap-strip has become somewhat of a stand-alone product in our range being used widely just for this purpose regardless of the brand of coating being subsequently applied.
In his evidence, Mr Phipps said the advice he gives to a customer depends on their individual circumstances but in general, he makes clear to his clients that the level of required maintenance is dependent upon a number of factors such as the level of exposure of the external timber to the elements. In this regard, he promotes a common-sense approach but generally suggests a customer should consider reapplying protective coating every six months.
Ms Waters did not do any maintenance after May 2013. She expected the builder would undertake further maintenance.
Ms Waters engaged Mark Haster, painter, who attended at the subject site in June 2014 and December 2014. He could not say whether the builder followed the manufacturer’s specifications; only that ‘he has not seen this result before’. He did state that a home which is exposed, such as the dwelling in question, requires more regular maintenance than would otherwise be the case. The evidence of Mr Hester was not supportive of the applicant’s initial position that all of the timber should be replaced. Instead, he considered a remedial approach. He provided a quote to remove the mould and sand back the surface, fill the cracks and apply a coat of protective coating for $13,200. He would use the Spa-N-Deck product once again. During the hearing, the applicant said the remedy she sought was for an order requiring the respondent pay to her the quoted sum for repairs, being $13,200.
In my view, the applicant has failed to establish that the builder applied an inadequate preparatory product to be timber. In this regard, the applicant has not established to my satisfaction that the product used by the builder, although not specifically included by way of manufacturer's recommendations, was any less adequate or incorrectly applied. In its report dated 3 June 2014, the QBCC does say that (the builder) has potentially voided the warranty of the product by not following the manufacturer’s installation procedures and this has contributed to the deterioration of the finish on the surface of the external timber. However, that conclusion is inconsistent with the evidence of Mr Ebb whose evidence is preferred. Mr Ebb specifically considered the suitability of the alternate product and was able to confirm its suitability as a replacement for the products offered by the Flood Company.
I am satisfied that the builder did apply the product appropriately.
I find that the respondent is not in breach of contract, is not in breach of statutory warranties and has not been negligent. I therefore dismiss the application. In my view, the primary issue of concern is one of ongoing maintenance.
I dismiss the application and make no award as to costs.