Wilson v M Wiedermann t/as Guardian Industries - [2001] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILSON & ANOR -v- M WIEDERMANN t/as GUARDIAN INDUSTRIES [2001] WADC 121

CORAM: COMMISSIONER GREAVES

HEARD: 14 MAY 2001

DELIVERED : 22 MAY 2001

FILE NO/S: CIVO 178 of 2000

BETWEEN: DAVID WILSON
SANDRA MANN
Appellants
AND
M WIEDERMANN t/as GUARDIAN INDUSTRIES
Respondent

Catchwords:

Building dispute - Appeal against decision of Building Disputes Committee - Home building work - Installation of swimming pool not carried out in proper and workmanlike manner - Order of committee to repair not reasonably open on evidence - Appeal allowed - Respondent ordered to pay reasonable compensation to be assessed

Legislation:

Builders Registration Act 1939 s 12A, s 41

Home Building Contracts Act 1991 s 3

Result:

Appeal allowed

Representation:

Counsel:

Appellants: Mr J C Hammond
Respondent: Mr A E Lynn

Solicitors:

Appellants: Hammond Worthington
Respondent: Andrew Lynn & Associates

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

Nil

Case(s) also cited:

Argentieri & Anor v Tudorshine Pty Ltd [2000] WADC 157
Cardinal Constructions Pty Ltd v Reed & Anor [1999] WADC 99
Goldfield Homes Pty Ltd v Blacker & Anor, unreported; DCt of WA; Library No D970379; 2 December 1997
Watson & Anor v Wallington & Anor [1999] WADC 84

COMMISSIONER GREAVES: This is an appeal pursuant to s 41(1) of the Builders' Registration Act 1939 against the decision of the Building Disputes Committee. The reasons for decision of the Deputy Chairperson are dated 30 October 2000, but it is common ground that following a hearing on 20 July 2000, the Committee ordered the respondent to carry out remedial work to the appellants' swimming pool to repair cracks and holes and re-coat the entire gel-coat surface to obtain a uniform finish and colour. The Committee so ordered on 27 July 2000.
By their amended notice of appeal, the appellants seek to have the order of the Committee set aside and in lieu thereof orders that the respondent replace the swimming pool or pay the cost of replacing the pool.
The reasons for decision recite the fact that the parties entered into an agreement for the supply and installation of a fibreglass swimming pool at the appellants' property in Warnbro in April 1999. In reaching its decision to order repair of the appellants' swimming pool, the committee referred to the report of the building inspector dated 24 May 2000 where the inspector observed, inter alia:
"There is a crack in the gel-coat on the coping on the western side of the pool. The crack is 500ml long (nominal) and is best described as hairline in width. The crack is possibly the result of settlement of the pool shell and is not considered to be a structural failure. The repair of this cracking is considered to be the owners maintenance… there are holes in the gel-coat on the rolled edge between the wall of the pool and coping in two locations. The holes appear to be the result of a manufacturing fault where an air bubble has formed between the gel-coat and the fibre-glass backing… there is clear evidence of black spot on the floor of the pool concentrated in two areas with approximately 40 – 50 blisters in each area. … The formation of osmotic blisters are the result of incorrect or insufficient curing of the gel-coat… there is a slight yellowing in the gel-coat in several locations around the coping of the pool."
At p 5 of its reasons for decision, the Deputy Chairman recites the appellants' claim that a large percentage of the gel-coat surface has faults and cannot be satisfactorily repaired. The Deputy Chairman continued:
"At the hearing on 20 July, Ms Mann, who appeared for the owners, told the committee that the problems identified in Inspector O'Connor's report of 24 May had become worse. Ms Mann tendered a report of one "James D Ruggles B. Ed., Composites Consultant". Mr Ruggles was not present at the hearing to give oral evidence or to be cross-examined by the builder. Mr Ruggles' report does not detail his qualifications or his experience to qualify him as an expert in the area of fibreglass swimming pools. For these reasons, committee placed little weight on Mr Ruggles' report. In any event, Mr Ruggles does not say the pool cannot be repaired.
"The builder was represented at the hearing by Mr David Wiedermann, the manager of Guardian Industries. Mr Wiedermann acknowledged the faults identified by Inspector O'Connor and the additional faults identified in Mr Ruggles' report. Mr Wiederman advised the committee that the problems could be repaired by removing approximately half a millimetre of the pool's surface and re-coating it. Mr Wiedermann opposed an Order to Pay and advised that he would consent to an Order to Remedy.
"Having considered all of the evidence presented to the Committee, the Committee is satisfied that the problems with the pool can be repaired. The builder has previously carried out repairs which in the opinion of Inspector O'Connor were satisfactory."
The report of Mr Ruggles before the Committee is dated 30 June 2000. He observed "numerous manufacturing flaws" in the pool shell which he detailed. He then continued:
"Closer observation revealed that the pool was not installed level (30mm difference). The matter of most concern is the longitudinal cracks in the transition between the pool floor and wall at the deep end of the pool. In my considered opinion these cracks indicate severe stress in the laminate in this area. … In my considered opinion the long list of above mentioned manufacturing faults indicate that the manufacturer has failed to supply a satisfactory product. In addition the faults are numerous, obvious and unlikely to be satisfactorily repaired in situ. I advise that total replacement of the pool is appropriate."
In addition to the evidence of Mr Ruggles on behalf of the appellants, the Committee heard evidence on behalf of the respondent from Mr Graham Leggett who said that he had been a registered builder for 20 years and engaged in the installation of swimming pools for 15 years. He was employed by the respondent as a sub-contractor. He gave evidence about the installation of the appellants' swimming pool. He said:
"… the shallow end of the pool was elevated about a metre. The block of land actually sloped from one end to the other quite a bit and when we installed the pool, to put the pool in level, the shallow end was elevated quite a bit. So a lot of the soil around the outside of the shallow end of the pool was built up soil, so it needed to be compacted in stages and they also needed to build the retaining wall, which they've done, and then backfill it behind the retaining wall. Being that the case, then it does take a fair bit of consolidation. We can't put any added pressure against the side of the pool. We can't use a mechanical vibrator or anything like that with fibreglass pools. You can only just wash it in in a period of time. The longer you leave it generally the better. The less chance you have of any settling later on next winter or something. It's just a matter of pressure. If you put too much pressure on the other side, the sand side of the pool, the pool will bow in and it'll just have little ripples between the ribs on the pool. So it just has to be done in stages with water around the outside and you just can't rush that process at all… The bit that confuses me is the cavities because the only way you can get a cavity, I believe, is if it's bridged or you have a piece of metal underneath it. I mean, sand just falls into an area. It just falls into an area and then it just needs compacting and I can't understand how it can have a big gap underneath it unless there's something stopping it, you know, like a bit of tin or something making a bridge underneath it or something. You know, as far we know, nothing like that was even found so I'm just a little bit confused about that."
On 20 July 2000, Mr Wiedermann gave evidence before the Committee, in part, as follows:
"The surface of a pool, basically you've got to look at it as a paint work finish, I mean, it's only a polyester-based resin paint that goes on, and the crazes have occurred after the pool has put in. It's been installed and then at some period after they have actually crazed, which means that the pool has been subjected to some form of stress or movement after the actual pool's in place. I can't say why that has occurred… Things like stress crazes, I mean, they can be resurfaced. In actual fact the whole pool could be resurfaced, although I don't think that's necessary from what I've seen of the pool there."
The evidence for the appellants and the respondent to which I have referred establish on the balance of probabilities, inter alia, that the installation of the swimming pool was not carried out in a proper and workman like manner. The installation of a swimming pool was "home building work" within the definition of that term in s 3 of the Home Building Contracts Act 1991 in that it involved "constructing or carrying out any associated work in connection with … an existing dwelling …". The first and second grounds of appeal both allege that the Committee erred in its approach to the evidence of Mr Ruggles. Before the Committee rejected his opinion, the Committee should have allowed the appellants the opportunity to call Mr Ruggles to give evidence of his qualifications and experience. This was all the more so in circumstances where neither the appellants nor the respondent were legally represented before the Committee, and where the Committee itself disavowed any specialist knowledge about the installation of swimming pools. In such circumstances, in my opinion, it was not reasonably open to the Committee to conclude that the appellants' swimming pool was capable of adequate repair to rectify any faults which the evidence disclosed had developed.
The third ground of appeal is that the Committee erred in law in hearing the matter when it advised the appellants it knew less about swimming pools than the appellants did. The Chairperson said:
"You see, we three sit here and we know as much about swimming pools, well less about swimming pools, than you do. Less about swimming pools than you do. We can't make a decision or a determination ordering someone to replace a swimming pool with all the associated costs that go with that, as you've highlighted in the quotes that you've provided to us, on the basis of you saying to us, 'Well, it can't be repaired'."
A little later, the Chairperson observed:
"I mean, there is an element of buyer beware in all of this."
These remarks also reflect an underlying error on the part of the Committee in its approach to the issue raised by the appellant whether the failure of the respondent to install the swimming pool in a proper and workman like manner could be remedied by repair or only by replacement.
In an appeal under s 41(1) of the Builders' Registration Act 1939, pursuant to s 41(5) where this Court varies a decision of the Disputes Committee or substitutes a decision for that of the Disputes Committee, the decision of the Court has effect for the purposes of the Act or the Home Building Contracts Act 1991 as if it were a decision of the Disputes Committee.
For the reasons which have been given, the only conclusion open on the evidence before the Committee and the Court is that, pursuant to s 12A(1a)(b)(ii) of the Builders' Registration Act 1939, the Court should order the respondent to pay the appellants such sum of money the Court considers reasonable to compensate the appellants for the failure to carry out the building work in a proper and workman like manner. In the light of its decision, the Committee did not find it necessary to assess the amount of reasonable compensation which the respondent should be required to pay to the appellants, the measure of which is the cost of replacing the swimming pool. I have considered whether the Court should return this matter to the Committee for the assessment of such compensation. In all circumstances, however, it seems to me an assessment which the Court can make more expeditiously and I will hear Counsel on the issue of the assessment of reasonable compensation, including the evidence upon which it is to be made.
Accordingly, the appeal will be allowed, the decision of the Building Disputes Committee quashed, and in lieu thereof it will be ordered that the respondent pay to the appellants reasonable compensation in accordance with these reasons to be assessed by the Court after the parties have had the opportunity to be heard on that issue.