Zemek v Whitsunday Roofing Pty Ltd - [2014] QCAT 217

CITATION:

Zemek v Whitsunday Roofing Pty Ltd
[2014] QCAT 217

PARTIES:	Alan Joseph Zemek (Applicant)
v
Whitsunday Roofing Pty Ltd (Respondent)

APPLICATION NUMBER:

BDL191-13

MATTER TYPE:

Building matters

HEARING DATE:

21 February 2014

HEARD AT:

Mackay

DECISION OF:

Member Browne

DELIVERED ON:

20 May 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS

Building dispute – where work performed by roofing contractor – whether work performed was defective

Queensland Building and Construction Commission Act 1991, s 77

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Zemek, self-represented

RESPONDENT:

Mr Ware, Director of Mackay Roofing Pty Ltd formerly known as Whitsunday Roofing Pty Ltd

REASONS FOR DECISION

Mr Zemek is a builder who has been working in the industry for approximately 40 years. He was engaged by homeowners in about 2004 to do some renovation work to a house at 34 Ian Wood Drive, Dolphin Heads, Queensland (the house) including the installation of a new roof.
Mr Ware is a plumber and director of Mackay Roofing Pty Ltd formerly known as Whitsundays Roofing Pty Ltd. Mr Ware has been working in the industry for approximately 40 years. Mr Zemek engaged Whitsunday Roofing to complete some of the roofing work to the house including the supply and installation of roof tiles, flashings, sarking and other roof materials.
The roofing work completed was done in 2 stages and included removal of some of the old or existing roof and replacing it with a new roof. In some parts a new roof was placed on top of the existing or old roof and Whitsunday Roofing installed the battens and roof tiling. The roofing work performed by Whitsunday Roofing at the house was completed in about December 2004.
After completion of the building work in about 2004 the house leaked. Attempts were made by Mr Zemek and Mr Ware at various times between the years 2005 to 2009 to determine the cause of the leaks.
Mr Zemek claims that he paid various sums of money in about 2009 and 2010 to Beerhalter Painters to repair damage to ceiling bulkheads and walls to various parts of the house as a result of water ingress.
The homeowners made a complaint about water ingress to the former Queensland Building Services Authority (BSA) in about 2010. Mr Zemek agreed to the BSA obtaining an independent report from a builder to determine the cause of water ingress. A scope of works was prepared and a quote obtained from a licensed builder in relation to the cost of rectification work to be undertaken. The rectification work was completed by a licensed builder through the home owners insurance scheme.
Mr Zemek claims that he paid the amount of $41,619.29 in about late 2011 to the former BSA for the costs of the rectification work that included works performed to the roof. Mr Zemek now seeks an order from the Tribunal requiring Whitsunday Roofing to pay the total amount of $27,107.29 in reimbursement. Mr Zemek contends that the amount claimed represents Whitsunday Roofing’s contribution to the costs paid by Mr Zemek for rectification work to the internal areas of the house in about 2009 and 2010 and a contribution towards the amount paid by Mr Zemek to the BSA to fix the leaking roof.
Mr Ware denies that Whitsunday Roofing is responsible for any rectification costs claimed as a result of any alleged defective building work and seeks an order from the Tribunal that Mr Zemek’s application be dismissed.
The matter proceeded to a hearing in Mackay and both Mr Zemek and Mr Ware gave sworn evidence and tendered documents to be relied upon including independent reports. No witnesses were made available at the hearing to give evidence in relation to the reports tendered by both Mr Zemek and Mr Ware.

Evidence of defective roofing works

Mr Zemek relies on the BSA inspection report dated 8 March 2011[1], the independent report of Icon Building Contractors dated 28 March 2011[2] and oral evidence given by himself at the hearing in relation to the amount claimed for refund of money paid to the BSA. In relation to the amount claimed by Mr Zemek to repair damage to ceiling bulkheads and walls in 2009 and 2010, Mr Zemek relies on a quotation and tax invoices from Beerhalter painters.[3]
[1]Exhibit marked “2”, attachment B1.
[2]Ibid, attachment B2.
[3]Exhibit marked “1”, quotation from Beerhalter Painters dated 30 July 2009 and tax invoices dated 3 September 2009, 3 April 2007, 19 December 2010, 3 December 2010; and invoice from Bernards Hire dated 22 March 2007.
The BSA inspection report dated 8 March 2011[4] identifies water ingress occurring in new locations in the lounge area below the box guttering and at the fuse box in the laundry. Water ingress is also reported to be occurring in the “T.V room” near the sliding door between the lounge room and T.V room. The BSA determined in the report that it was necessary to engage the services of one of the BSA’s panel builders to conduct ‘investigative works, including destructive investigation’ to identify the points of water ingress.[5]
[4]Exhibit marked “2”, attachment B1.
[5]Ibid.
Icon Building Contractors were engaged by the BSA and prepared a report dated 28 March 2011[6] to “determine several water leaks”. The report states:
The first leak was on the top roof leaking where the lead flashing meets the parapet wall (apron flashing). The second leak is the internal down pipe that is connected to the box gutter (substantial amount of moisture on the underside of the stainless box gutter and the internal block wall). The third leaks are caused by the roof tiles not being into the gutter enough [sic] they are flush with the box gutter and are possibly causing the water to run back under the tiles or sarking. The fourth leak is no flashing installed on top of a timber window that is leaking on the northern patio head. The fifth leak is possibly the drop in the box gutter leaking. The sixth defect is a hardiflex sheet on one of the parapet walls which has delaminated.
[6]Ibid, attachment B2.
The BSA prepared a scope of works (for rectification) for the defective building work dated 27 June 2011.[7] Mr Zemek states that he was advised by telephone by a representative of the BSA as to the breakup of figures for items numbered 1 to 6 in the scope of works (plus variation and insurance) representing the total cost of rectification paid by him in the amount of $41,619.29.
[7]Ibid, attachment B3.
Mr Zemek claims that Whitsunday Roofing is responsible for the total costs of rectification for items numbered 3 and 4 in the BSA scope of works as follows:
Item No. 3 – Remove and replace the roof flashings that abut the tiled roof area in the vicinity of the main bedroom roof area.
Item No. 4 – Remove sufficient roof tiles to carry out rectification work as required to ensure the roof tiles overhang into the box gutter approximately 50 mm in the vicinity of the main bedroom area and lounge area on the northern side. Replace roof tiles ensuring sarking has been installed to prevent water ingress and fix tiles to provide correct tie down for the wind classification of C4.[8]
[8]Exhibit marked “2”, attachment B3.
Mr Zemek also claims an amount that he says represents an apportionment (calculated at 55%) for scope of works items numbered 1 and 2 (plus the variation amount and BSA insurance premium) paid in full by him. The scope of works for items numbered 1 and 2 include rectification works to the main bedroom external light fitting, work to all down pipes and repainting areas in the lounge room ceiling, television room walls and kitchen ceiling where water ingress is alleged to have caused damage.
Mr Ware does not accept the evidence relied upon by Mr Zemek in particular the BSA inspection report as to the cause of water ingress and any alleged faulty work performed by Whitsunday Roofing. Mr Ware relies on his affidavit material and the affidavit of Darren Tsimpikas of Monier Roofing together with a report prepared by Mr Tsimpikas dated 3 December 2013 and the report of Ian Davis, Manager of Monier Roofing, dated 12 May 2010.[9]
[9]Exhibit marked “7”.
Mr Ware argues that there are other possible causes for water ingress that are not the responsibility of Whitsunday Roofing including damage to the roof caused by Cyclone Ului in 2010, the construction of the box gutters, the rafters in the roof having sagged, damage to roof tiles caused by other tradesmen walking on the roof; and water leaking under the sliding doors and the air conditioner.
In relation to the box gutters, Mr Ware argues that Mr Zemek was responsible for their completion and states that the box gutters were not high enough and therefore could not handle the volume of water and water has flowed back into the ceiling cavity causing water ingress.
In relation to the rafters, Mr Ware argues that water ingress is evident in certain areas where Mr Zemek built a new roof on top of the existing roof. Mr Zemek as the builder installed the framework and trusses for a new roof on top of some of the existing or old roof. Whitsunday Roofing was responsible for installation of battens and roof tiles on the existing gable. Mr Ware argues that the existing roof could have sagged at any time due to the weight of the roof installed.
Mr Ware also argues that a lot of tradesmen have walked on the roof since the roofing work was completed and this has caused tiles or the water locks to break and this may have contributed to the roof leaking water. This is not disputed by Mr Zemek who agrees that lots of tradesmen have walked on the roof and continue to do so.
The issue of the broken tiles is also related to the issue of the new roof being installed on the existing or old roof in the areas over the main bedroom and lounge where there is water ingress. Mr Ware argues that the tiles meet the Australian Standard but if placed on a “bending environment” the tiles will break. He contends that if the trusses (completed by the builder) are sagging and then there is traffic on the tiles this will cause the tiles or water locks to break.
Mr Ware also argues that notwithstanding the fact that Whitsunday Roofing’s work was not faulty the rectification work done through the home owners insurance scheme was not done properly and the amount paid by Mr Zemek to the BSA for the work done was not justified. Mr Ware relies on photographs tendered at the hearing that he says show sections of the roof not replaced as quoted in the BSA scope of works.

Tribunal Findings

The Tribunal did not have the benefit of hearing evidence from independent witnesses as to the possible cause of water ingress and the completion of roofing works by Whitsunday Roofing. The Tribunal must therefore make its findings based on the evidence given by Mr Zemek and Mr Ware and the untested evidence of the BSA and other independent contractors who have prepared reports in relation to the roofing and building work and damage caused to the house by water ingress.
The Tribunal cannot be satisfied based on the evidence before it that Whitsunday Roofing are responsible for any or all of the costs of rectification work as claimed by Mr Zemek for damage caused by water ingress resulting from defective roofing work alleged to have been completed by Whitsunday Roofing.
The BSA report dated 8 March 2011 refers to inspection of water ingress and possible water entry points but does not specify whether the water ingress or any damage is the result of defective roofing work performed by Whitsunday Roofing.
The report of Icon Building Contractors dated 28 March 2011 relied upon by Mr Zemek also refers to several water leaks but does not clearly specify the extent to which such leaks are the result of any defective roofing works alleged to have been performed by Whitsunday Roofing. The report also refers to several leaks including the “drop” in the box gutter as a possible cause of leaking. This, the box gutter issue, was also raised by Mr Ware as being another possible cause of water ingress.
I accept Mr Ware’s evidence that he has made attempts to determine the cause of water ingress and that there are other possible explanations for the cause of the leaking roof including damage to the roof as a result of Cyclone Ului in 2010 that is not the result of defective work performed by Whitsunday Roofing.
Mr Ware, in his sworn statement dated 2 October 20213, states that between 2005 and 2009 he and another roofer from Whitsunday Roofing attended the house on various occasions and assisted Mr Zemek to investigate the cause of the roof leaks. He states that no problems were identified in relation to the construction of the roof.[10]
[10]Exhibit marked “6”, [12].
Mr Ware’s evidence about his attempts to investigate the cause of the roof leaks is reflected in the BSA inspection report dated 8 March 2011.[11] The report refers to “Stumpy” known to be Mr Ware from Whitsunday Roofing to have carried out some work to the roof to ‘address the new leaks’.
[11]Exhibit marked “2”.
In relation to Cyclone Ului causing damage to the house and roof, Mr Ware refers the Tribunal to a letter sent by him to Mr Zemek dated 22 April 2010. Mr Ware states in the letter that he on inspection of the roof found the box gutters to be blocked and leaks associated with windows and main bedroom door. Mr Ware states in his letter:
When I inspected the roof [in 2010] I found the cyclonic winds had caused damage to lead flashings, some roof tiles had lifted and moved in the area, the skylight, an Austar antennae and vent pipe flashing – which I will take responsibility for. These are all above the current water damage to ceilings and walls as shown to me by [the home owners]. I also found the box gutters were blocked and unable to cope with the water during the cyclone. Any water ingress at this time should be the subject of an insurance claim…Also there are leaks that were associated with windows and main bedroom door that are now leaking again and cost my company a lot of money searching for these leaks. Ripping out ceilings to find that it was the door the whole time, which I was never compensated for.[12]
[12]Exhibit marked “6”, attachment 6.
Mr Zemek does not dispute that there was water ingress as a result of the sliding doors and windows. He does dispute the air conditioner as being a cause of water damage and argues that there were leaks while the homeowners were away and were not using the air-conditioner.
In relation to the issue of the roof trusses not being level, Mr Ware’s evidence is supported by the reports prepared by Monier Roofing. The report of Monier Roofing dated 3 December 2013 refers to the trusses not being level and this is not due to any fault of the roof tiles. The report states:
Whilst I have not inspected this roof personally, I refer you to correspondence from CSR Roofing Segment Manager Ian Davies sent to yourself on the 12 May 2010. In reading this correspondence and viewing the photo attached it appears to me that the trusses are not level, due to this issue any movement in the house or foot traffic across the roof will cause the water courses on the tiles to break. This is not due to any fault in the tile.[13]
[13]Exhibit marked “7”.
There is also evidence before the Tribunal in the report of Monier Roofing dated 12 May 2010 of dislodged tiles at the time of inspection. This is relevant to the issue of other possible causes of water ingress submitted by Mr Ware as being the result of cracked or broken tiles possibly caused by other tradesmen walking on the roof after the roofing works were completed. Mr Zemek conceded at the hearing that several tradesmen have walked on the roof and continue to do so.
The report prepared by Monier Roofing dated 12 May 2010 also refers to evidence of water sitting in the box gutters and some areas of the roof where rafters have sagged. The report states that the tiles have not contributed to the water penetration but the rafters have sagged and this contributes to roof leakage. The report states:
The issue of whether these [box gutters] have been installed correctly would need to be discussed with the builder and engineer. I also noted there are some areas of the roof where rafters have sagged dramatically which also contributes to roof leakage via seepage through gaps; and water from top roof needs to be channelled elsewhere and not onto the lower roof flooding tile water channels. This issue would need to be rectified by builder and/or plumber.[14]
[14]Ibid.
Mr Zemek argues that Mr Ware is responsible for defective roofing work as a result of the trusses sagging on the basis that Whitsunday Roofing installed battens and tiles on top of the existing gable (installed by Mr Zemek). Mr Zemek stated at the hearing that if there was a problem with the trusses Mr Ware should not have tiled on top of it. There is no evidence before the Tribunal as to the condition of the trusses at the time the roofing works were undertaken by Whitsunday Roofing. There is evidence in the reports of Monier Roofing of the trusses sagging and of broken water courses after the roofing works were completed. Mr Zemek does not dispute that he was responsible for installing the trusses and that several tradesmen have walked on the roof since the completion of roofing works.
The Tribunal has also considered Mr Ware’s contention in relation to the unsatisfactory completion of the rectification work as detailed in the BSA scope of works. Mr Zemek conceded at the hearing that the photographs tendered by Mr Ware did show that some of the existing tiles in areas where rectification work was to be undertaken had not been replaced. Mr Zemek did not, however, agree that all of the rectification work referred to in item number 4 (scope of works) in relation to removing roof tiles had not been completed. For example, Mr Zemek gave evidence that on the northern side of the house the tiles had been pulled up and re-laid stating that the tiles were ‘lifted up and valleys redone’.
There is no independent evidence before the Tribunal to support Mr Zemek’s evidence that all of the rectification work was completed as detailed in the BSA scope of works to support his claim made for reimbursement of money paid to the BSA.
In relation to Mr Zemek’s claim for reimbursement of the costs of painting paid by him to Beerhalter Painters in 2009 and 2010, the Tribunal cannot be satisfied that the costs paid by Mr Zemek for rectification work were costs resulting from defective roofing work completed by Whitsunday Roofing. There is also no evidence before the Tribunal that the rectification work as detailed in the various tax invoices (Beerhalter Painters) were completed and that the costs as claimed have been paid in full by Mr Zemek.
Mr Zemek states in his statement tendered at the hearing that he has already received a payment from Whitsunday Roofing ($2,400.00) towards the costs of the painting but is claiming a further amount of $4,983.00. It would not be fair to Whitsunday Roofing to order that a further payment be made to Mr Zemek for rectification costs without evidence to support the claim particularly in circumstances where Whitsunday Roofing have already paid some money for painting costs to Mr Zemek.
It is not disputed that there is water ingress and this has been an ongoing issue since the completion of the building work to the house. The Tribunal has made findings that there is evidence of other possible causes of water ingress and that it cannot be satisfied based on the evidence before it that the roofing work completed by Whitsunday Roofing was defective. I accept that Mr Zemek feels aggrieved by the fact that he as the builder has paid a considerable amount of money for the costs of rectification work to the house including the roof. Mr Zemek conceded at the hearing that notwithstanding the completion of the rectification work through the BSA there is still evidence of water ingress and further investigation will be warranted. It would not be fair to order Whitsunday Roofing to pay an amount of money as reimbursement to Mr Zemek in circumstances where there is insufficient evidence to support his claim and in circumstances where water ingress continues.

The order will be that the application is dismissed.