Building Act 2011 (WA), s 3

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5(1), s 38, s 38(1)(b)

Building Services (Complaint Resolution and Administration) Regulations 2011 (WA)

Home Building Contracts Act 1991 (WA), s 3, s 3(1), s 3(2)

Home Building Contracts Regulations 1992 (WA), reg 2A(a)

East and Emerson [2022] WASAT 105

Lilley v Lindsay-Smith [2001] WASCA 168

Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [2018] WASAT 2

The Owners of 38-40 Onslow Road, Shenton Park and C&I Constructions Pty Ltd [2014] WASAT 123

1. Angela Davis contracted with Sovereign Building Company Pty Ltd (Sovereign) for the construction of a new house. She engaged Eco Grout Clean Pty Ltd (Eco) to pressure clean and seal the new outdoor paving shortly after construction was completed.
2. Ms Davis alleged that Eco damaged the paving bricks during the cleaning process. Eco suggested Sovereign supplied and installed defective paving bricks, or had damaged them. Sovereign denied liability and claimed Eco was at fault.
3. For the reasons which follow, our decision is to dismiss the application.

1. The issues which we had to determine in this matter were:

(b) Did Eco and Sovereign perform a regulated building service relevant to the complaint?

(c) If so, did either Eco or Sovereign carry out that building service in a manner that was not proper and proficient manner, or was faulty or unsatisfactory?

(d) If so, what was the appropriate building remedy order?

1. Section 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) provides that a person may lodge with the Building Commissioner a complaint that a regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory.
2. Where the Building Commissioner refers a complaint to the Tribunal, s 38 of the BSCRA Act provides the Tribunal may:

(a) make a building remedy order if it is satisfied that the regulated building service which is the subject of the complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory; or

1. A 'building remedy order' is an order for a person to remedy the building works, pay the cost of remedying the building works or pay compensation for the failure to carry out the building works in the required manner.[1]

1. Our findings as to the relevant factual circumstances or 'background' are as follows. Unless indicated otherwise, they were uncontentious.
2. Ms Davis is the registered proprietor of the relevant property (the site). Mark Lamb is her fiancé and lives with her at the site.
3. Romeo De Maria is the director of Eco and David Savietto is the director of Sovereign. Sovereign is a registered building contractor.
4. By a contract dated 24 January 2023, Ms Davis engaged Sovereign to construct a dwelling at the site (the house). Included in those works was the supply and installation of paving around the house, including crossover, driveway, porch and patio.
5. Sovereign purchased from Midland Brick paving bricks called 'Masterpave Classic 60 Charcoal'. The paving bricks were made from concrete and aggregate and had the dimensions 200 mm x 200 mm x 60 mm.
6. Sovereign engaged Fernzes Pty Ltd (FPL) to install the paving bricks. Jamie Ferns (director of FPL) and others laid the paving bricks in or about November 2023. The works included preparing a level base of compacted yellow sand, placing the paving bricks upon the yellow sand and sweeping white sand into the gaps between the paving bricks after they had been laid. At completion, white sand was left upon the surface of the paving bricks.
7. On 9 December 2023 Eco provided to Ms Davis a quotation for cleaning and sealing the new paving at the price of $5,000 including GST. Ms Davis accepted their quotation on the same day. The quotation stated the works to be performed by Eco included:

(a) applying a 'dirt release solution' to remove mould, dirt and stains;

(b) 27,579 kPa (4,000 psi) high pressure wash and low pressure rinse;[2]

(c) application of a sealer which would provide a matte finish.

1. Sovereign and Ms Davis conducted the practical completion inspection of the house on 13 December 2023.
2. On 4 and 5 January 2023 Eco used water pressure equipment to clean the paving bricks and then a sealant was applied. Ms Davis and Mr Lamb were present, though they largely kept inside the house. Fencing and landscaping had not been completed and the areas surrounding the paving at the front of the house (including driveway and crossover) comprised yellow builder's sand and the yellow/brown local sand.
3. The cleaning of the paving bricks was performed by Eugene Swartz on behalf of Eco using the following:

(a) a petrol powered Honda GX690 high pressure water pump mounted on the tray of a utility vehicle;

(c) a long flexible hose stored in a hose reel mounted on the tray of the utility vehicle;

(d) a two-nozzle rotary surface cleaner attached to the hose;

(f) a plastic watering can containing a mixture of water and detergent.

1. Mr Swartz sprinkled the detergent mixture on the paving bricks before passing the rotary cleaner over the paving bricks. When the trigger on the handle of the rotary cleaner was engaged, water and detergent foam emerged from the sides and behind. In the wake of the cleaner, streaks of wet sand were left on either side of the path of the rotary cleaner.
2. Mr Swartz removed the remnants of detergent and sand from the cleaned pavers by using the turbo lance.
3. Cleaning of the paving bricks took place on 4 January 2024. After the cleaning had been completed, Mr De Maria applied a sealant to the paving bricks, assisted by Mr Swartz. Application of the sealant commenced on 4 January 2024 and concluded on 5 January 2024.
4. After the paving bricks had been laid by FPL but before Eco cleaned and sealed the brick paving, an outdoor spa had been craned onto the paved patio area. The section of paving bricks underneath the spa was not subject to cleaning or sealing by Eco.
5. On or about 18 January 2024 Mr Ferns attended the site to repair unrelated damage to the crossover and to extend the width of the crossover.
6. The total area paved was approximately 524 square metres.
7. On 19 January 2024 Sovereign cleaned portions of the external brick walls of the house by using an acid wash.
8. Ms Davies lodged a complaint with the Building Commissioner on 23 February 2024 and that complaint was referred by the Building Commissioner to the Tribunal on 4 July 2024.

1. The BSCRA Act provides the Tribunal the authority to make a building remedy order when the Building Commissioner refers a building service complaint to the Tribunal. This means the Tribunal only has jurisdiction to determine the building service complaint which has been referred, and cannot determine issues which lie outside of that complaint.[3]
2. The referral from the Building Commission in this matter contains 12 items of complaint. The first item describes the location as all of the paving surrounding the house and describes the complaint as:

Primary damage sustained to the entire surface of brand-new pavers (presenting as erosion and pitting) due to excessive high-pressure cleaning.

1. The second and subsequent complaints refer to discrete locations of the paving around the house and each describe the complaint in the following manner:

Primary damages presenting as erosion and pitting, due to ECO Pressure Clean & Seals cleaning preparation method.

1. The BSCRA Act is intended to provide a consumer-friendly means of raising complaints regarding building work. Accordingly it is the substance of the complaint which is key, rather than any technicalities of form.[4]
2. In our view the substance of the complaint is the allegation the paving bricks are damaged so as to have an eroded and pitted appearance. We do not consider the Tribunal should be limited by the allegation Eco caused the damage. Ultimately causation is a matter for the Tribunal to determine on the evidence.
3. The parties' evidence and submissions included allegations regarding discolouration of the paving bricks caused by an acid wash. Such allegations were outside the ambit of the complaint, because discolouration is fundamentally different to pitting and erosion. Therefore allegations regarding discolouration cannot be determined by the Tribunal as a part of this proceeding.

1. In order for the Tribunal to have jurisdiction to determine this matter pursuant to the BSCRA Act, the complaint must relate to the performance of a regulated building service.
2. A regulated building service is defined by s 3 of the BSCRA Act to mean any of the following:

(a) a building service carried out by a registered building service provider or an approved owner-builder;

(b) home building work that is -

(i) carried out by a person for another person under a home building work contract or other contract or arrangement for gain or reward; and

(ii) not carried out for a person who is in turn obliged to perform the work under another contract;

(c) any other service or work prescribed for the purposes of this definition

1. Paragraph (c) is not relevant here, because nothing applicable has been prescribed in the regulations.[5] The remaining parts of the definition are considered below.

Building service carried out by a builder - paragraph (a)

1. In order for there to have been a regulated building service as defined in paragraph (a), there must have been a 'building service' performed by a registered builder.[6]
2. A 'building service' relevantly means building work as defined by the Building Act 2011 (WA). Section 3 of that Act provides that 'building work' includes the construction of a building.
3. There was no dispute, and we are satisfied, Sovereign provided a regulated building service to Ms Davis because it was a registered building contractor and it constructed a building. Furthermore, we consider the regulated building service provided by Sovereign included the brick paving because the paving was installed pursuant to its contract with Ms Davis.[7]
4. It was uncontentious and we are satisfied that Eco was not a registered building contractor. Therefore, Eco did not provide a regulated building service as defined in paragraph (a).

1. In order for Eco to have provided a regulated building service as defined in paragraph (b), there must have been 'home building work' performed pursuant to:

(b) another contract or arrangement for gain or reward

1. The BSCRA Act defines 'home building work contract' by reference to the Home Building Contracts Act 1991 (WA) (HBC Act).
2. The definition of 'home building work contract' in s 3 of the HBC Act excludes contracts where the amount payable under the contract is $7,500 or less.[8]
3. The amount Ms Davis and Eco agreed for the performance of the cleaning and sealing of the paving bricks was $5,000 and therefore those works were not carried out pursuant to a home building works contract.
4. We are however satisfied Eco carried out the work pursuant to another 'contract or arrangement for gain or reward' because they had an agreement (comprised in the quote and email accepting the quote) for work to be performed and Eco was to be paid for doing that work.

1. The BSCRA Act defines 'home building work' by reference to the HBC Act. The definition of home building work in s 3(1) of the HBC Act reads as follows:

home building work means the whole or part of the work of -

(a) constructing or re-constructing a dwelling including an existing dwelling and/or strata/community title dwelling; or

(b) placing a dwelling on land; or

(c) altering, improving or repairing a dwelling, including a strata/community title dwelling; or

(d) constructing or carrying out any associated work in connection with -

(i) any work referred to in paragraph (a) or (b); or

(ii) an existing dwelling, including a strata/community title dwelling

1. Associated work is defined in s 3(1) of the HBC Act as follows:

associated work includes site works, swimming pools, spas, pergolas, carports, garages, sheds, fencing, retaining walls, paving, driveways, landscaping and other like works

(original emphasis)

1. A leading decision regarding the definition of 'home building work' is Lilley v Lindsay-Smith [2001] WASCA 168, which related to the installation of flooring during the construction of a house by a contractor other than the registered builder. That decision does not have direct application to the current proceedings because Ms Davis' paving was installed and washed outside the house and after construction had been completed and the owner commenced residence.
2. The decision of East and Emerson [2022] WASAT 105 (East) is relevant to the question of whether Eco performed 'associated works'.
3. The proceedings in East concerned the pressure cleaning and sealing of brick paving and limestone walls and the application of pave­set between the paving bricks. The complaints included the presence of a white chemical residue on the paving, damage caused by sealant hardening on three doors and in drains and paint being 'blasted off' a gate, entry door and verandah posts.[9]
4. In East the Tribunal stated the contractor had performed home building works because they were 'improvements to a dwelling, or works to paving, retaining walls and driveways in connection with an existing dwelling'.[10]

(a) The decision of the Tribunal in East was correct and should be followed.

(b) There was no basis in the legislation to constrain 'paving' in the definition of associated work to mean only the supply and laying of paving bricks. A broader construction which included works such as cleaning and sealing the paving should be preferred as promoting the consumer protection purpose of the legislation.

(a) The decision in East was not correct and should not be followed.

(b) Both the BSCRA and HBC Acts include in their names the word 'building' and the relevant definition is that of home building work. Therefore the meaning of 'building' cannot be divorced from the construction of the meaning of 'home building work'. The works performed by Eco were not building. They were cleaning.

(c) The relevant parts of the definition state, 'home building work means the whole or part of the work of ... constructing or carrying out any associated work in connection with ... an existing dwelling'. If one were to substitute 'paving' for 'associated work' it was clear that Eco did not construct or carry out paving.

1. Sovereign indicated it agreed with Ms Davis on this issue.

1. Clearly the works performed by Eco do not come within paragraphs (a) or (b) of the definition of 'home building work'. The question then becomes whether paragraphs (c) or (d) may fit the situation.
2. In statutory construction, it is said all words should be given some meaning or effect.[11] However it is also recognised that it may not be possible to give full effect to every word. Further, some repetition may be included out of a sense of caution.
3. The definition of 'home building work' refers to three broad categories of work - creating a dwelling (paragraphs (a) and (b)), doing works to a dwelling (paragraph (c)) and performing associated works which are in connection with a dwelling (paragraph (d)).
4. The definition of 'associated work' refers to works (such as swimming pools and landscaping) which are external, and may not be physically attached, to a dwelling. Nevertheless those works have a clear connection with a person's ownership or use of a dwelling.
5. In our view, home building work upon or within a dwelling constitutes 'altering, improving or repairing a dwelling' (paragraph (c)) whilst home building work external to the dwelling is within the ambit of 'associated work in connection with' construction of a dwelling or 'an existing dwelling' (paragraph (d)).

1. We are not satisfied the works performed by Eco were in the nature of 'altering, improving or repairing a dwelling' as contained in paragraph (c) of the definition of home building work.
2. Firstly Eco did not carry out the work upon or within the dwelling. Secondly, the laying of paving is clearly defined as associated work. Therefore, if it were to be characterised as home building work, it is logical work in relation to the paving would in turn be associated work rather than becoming work altering, improving or repairing a dwelling.

1. We agree that, as legislation intended for consumer protection, the HBC and BSCRA Acts should not be interpreted in an overly restrictive manner.
2. However, the clear words of the HBC Act provide for the construction or carrying out of associated works, but no provision was made for the performance of works in relation to associated works. In other words, the definition of 'home building work' does not include the alteration, improvement or repair of associated works.

1. For these reasons we are satisfied water pressure cleaning and sealing of paving does not constitute 'home building work' as defined by the HBC Act. In turn this means Eco did not perform a regulated building service as defined by the BSCRA Act.
2. Therefore, the Tribunal does not have jurisdiction to make a building remedy order in relation to the complaint of Ms Davis, insofar as that complaint relates to Eco.
3. However, that conclusion does not dispose of the complaint as it relates to Sovereign. For that reason, and in accordance with the request of Eco, we have considered the performance of the works by both Eco and Sovereign.

Were the works proper and proficient, or faulty or unsatisfactory?

1. The parties' positions at the final hearing were as follows:

(a) Ms Davis - the paving bricks clearly appeared damaged and either Sovereign had supplied faulty bricks or Eco had damaged them when pressure cleaning.

(b) Sovereign - it agreed the paving bricks appeared damaged and believed the damage had been caused by Eco.

(c) Eco - the cleaning of Ms Davis' paving was no different to the cleaning performed for other clients. The existence of damage was disputed and even if the bricks were damaged, it must have been caused by a manufacturing fault.

1. On the morning of the first day of the final hearing, before opening statements, the parties and Tribunal attended the site and inspected the paving bricks in question.
2. During the site inspection we observed three areas of lighter coloured paving bricks, on the right-hand side of the crossover (facing the house from the street) and two smaller sections.[12]
3. The Tribunal also had the opportunity to consider physical examples of paving bricks during the hearing.
4. Ms Davis tendered in evidence:

(a) two square 'Masterpave Classic 60 Charcoal' paving bricks obtained from a Midland Brick display centre;[13] and

(b) two paving bricks which had been located under the spa at the time of the activities of Eco at the site.[14]

1. Eco also tendered examples of paving bricks:[15]

(a) two square 'Masterpave Classic 60 Charcoal' paving bricks which had been supplied by Eco to Dr Armand Zurhaar for testing purposes;[16]

(b) two rectangular charcoal coloured paving bricks said to be made by Midland Brick as part of the 'Masterpave' range, also supplied by Eco to Dr Zurhaar for testing;[17]

(c) two light grey square paving bricks said to also be made by Midland Brick as part of the 'Masterpave' range.[18]

1. We note Mr Sutton expressed the view the rectangular paving bricks tendered by Eco were in fact part of a different range of paving bricks produced by Midland Brick, which were intended for commercial rather than residential purposes and had a different composition.
2. On this basis Ms Davis submitted the testing performed by Dr Zurhaar on the rectangular bricks was irrelevant or invalid because the bricks were composed differently to those present at the site.
3. This point was raised for the first time on the last day of the hearing without notice to Eco. Questions regarding whether those bricks came from the Masterpave range or otherwise were not asked of Mr De Maria during cross-examination. The evidence of Mr Sutton regarding the differences in composition was little more than a statement of alleged fact, without exploring the basis for his belief.
4. The late raising of this issue was unfair to Eco, which did not have an adequate opportunity to respond. In any event, the evidence was insufficient for us to reach a conclusion regarding the submission of Ms Davis. Accordingly, the allegation regarding the composition of the rectangular paving bricks (and the implications to be drawn from it) has been disregarded.

1. Ms Davis tendered in evidence two video recordings, taken from her home security system on 4 January 2024 (the video recordings):[19]

(a) Video of the crossover and that portion of the driveway extending from the crossover towards the house, from 7.14 am to 1.58 pm but containing several skips in the recording so that the total duration was 5.59 minutes.

(b) Video of the driveway taken from the front half or one third of the house, facing back along the driveway to the street, from 7.42 am to 8.01 am with several skips so that the total duration was 6.05 minutes.

1. No objection was made in relation to the video recordings. We accept they were an accurate record of events to the extent they were depicted.

1. The following summaries of witness evidence are drawn from written statements (or summaries) contained in Exhibit 1 and oral evidence provided during the final hearing. If there was a discrepancy between the written and oral witness evidence, we have preferred the oral evidence. Unless specifically addressed, we considered any such discrepancy as not having significance.
2. For ease of reading, some of the evidence in relation to which factual findings were made above,[20] has been included again in this section.

1. Ms Davis and her family selected Sovereign to construct a house at the site at the end of 2022.[21] The contract was signed on 24 January 2023.[22] The concrete slab was laid in February 2023 and practical completion was achieved in 10 months.
2. As the paving was being laid, someone recommended to her that the paving be sealed. She engaged Eco to perform the work on 4 and 5 January 2024. The quotation which she accepted included statements that they would use an 'Aqua Force Turbo 4000 psi High Pressure Wash' and 'Low Pressure Rinse Off'.[23]
3. On the morning of 4 January 2024, Mr Swartz arrived on site on behalf of Eco. In the course of a conversation with Ms Davis, Mr Swartz said he was using a commercial, 27,579 kPa (4,000 psi) machine. Whilst Mr Swartz attended to his work, Ms Davis and Mr Lamb were inside the house.
4. On the afternoon of 4 January 2024, Mr De Maria arrived and started sealing the paving. The sealing continued the next day and at about 2 pm Mr De Maria and Mr Swartz finished the cleaning and sealing. Mr Lamb was invited outside by Mr De Maria to observe how the sealant caused water to bead on the surface of the paving bricks. Ms Davis stated:[24]

So he showed Mark that. And we said 'Yes. Cool'. And off we went back inside continuing with moving house and - and setting things up, unpacking boxes ...

1. They were told to stay off the pavers as much as possible over the weekend. They complied as best they could, consistent with continuing to move into and set up the house. Ms Davis said it was over that weekend she noticed white spots and holes in the paving which did not seem right to her.
2. Over the following week, Ms Davis attempted to have someone inspect the paving because she was not sure if there had been a problem with the sealant, if they had not allowed it enough time to dry or if the paving bricks were meant to have that appearance. However, most offices were still closed and no one was available.
3. Mr Ferns returned to the site on 18 January. He said to Ms Davis, 'where's all the white sand?'. She asked him if it was normal for the pavers to have holes and 'white stuff' and he told her it was not.
4. The next day Sovereign sent someone called Paul to acid wash two areas of the house bricks. After Paul had finished, the pavers were even worse. She contacted Sovereign to say they had a new problem.
5. Ms Davis said all the paving bricks were a single batch which had been delivered by Midland Brick at the same time. After the paving had been laid, there were a lot of spare paving bricks which had been stored in the garage. She told Mr De Maria they were going to have the driveway extended and asked if he could also 'do' the unlaid paving bricks. She said Mr Swartz told her that he had run the surface rotary cleaner over the paving bricks in the garage using the lowest possible pressure to avoid any issues with water ingress in the garage.
6. In cross-examination, Ms Davis said on the day the paving bricks were washed by Eco, she did not observe chunks of broken brick to the sides of the pavers or black dust washed to the sides. But she was very busy and did not have time to go looking.
7. Ms Davis rejected the suggestion the paving bricks were serviceable for use and her concerns were 'merely' aesthetic. She said:[25]

[I]t cost me a lot of money to put that in. It's meant to be brand new, lovely, shiny brick paving. It looks horrific. It looks terrible. I'm like embarrassed by it. ... I liken it to ... having a Picasso painting of my beautiful new home, and then someone just put the crappiest, crappiest border around it and just left it. It doesn't matter. They've scratched it, and it doesn't matter. It's still a painting. You can still look at it. Yes. You can, but it affects the visual of it. It also affects the value of it ... my resale value ...

1. At the time Eco attended the site, Mr Lamb and Ms Davis were extremely busy moving into and setting up the house.[26] His recollection was that Mr De Maria and Mr Swartz both arrived on site on the first day, Mr De Maria instructed Mr Swartz on the scope of work and then left him to do the work.
2. After the work was done, there was a knock on the patio door and Mr De Maria asked Mr Lamb to go and inspect the result. He went out to the driveway and the water beading was demonstrated, as a sign the sealant was working. Mr Lamb did not at that time inspect the rest of the paving bricks.
3. On 24 April 2024 an inspector from the Building Commission attended the site with Mr Lamb and Mr De Maria. Mr Lamb showed the inspector the clear difference in the paving bricks on the driveway. He told the inspector the difference was because some of the bricks had been in the garage and had been cleaned with low pressure, as compared to the rest of the bricks which had been cleaned with high pressure.
4. Mr De Maria told Mr Lamb and the inspector that the bricks in the garage had been cleaned with 6,895 kPa (1,000 psi) whilst the rest of the bricks had been cleaned with 17,237 kPa (2,500 psi).
5. In response to our question regarding his email to Eco dated 25 September 2024,[27] Mr Lamb explained that the staining left by the acid wash 'stood out' and was obvious as soon as he opened the door. However, the chips and other damage to the paving was not as blatant a problem.

1. Mr De Maria has been the director of Eco for 17 or 18 years.[28] The company specialises in cleaning and sealing all types of tiles and grout inside homes and all types of tiles and paving bricks outside homes. Mr De Maria did both pressure cleaning and sealing for the first five or six years. Since then, he only performs sealing works. The cleaning is done for Eco by one employee or by independent contractors.
2. Mr Swartz is an independent contractor who had worked for Eco every week for the previous three years. Mr De Maria said he considered the quality of Mr Swartz's cleaning to be above average.
3. Mr De Maria inspected the site before providing a quote to Ms Davis. He observed new Midland Brick paving bricks, which he had seen 'hundreds of times' previously. He also observed silica dust, white sand and yellow sand scattered across the whole area. The paving bricks were quite rough, which he considered to be normal for Midland Brick paving bricks.
4. He considered the paving bricks at the site were common. Eco cleaned and sealed similar paving bricks on almost a weekly basis.
5. The reference to the pressure used in the quote was a generic reference, sent only to prospective customers. He and the persons performing water pressure cleaning for Eco (the cleaners) understood the difference between old and new paving bricks. Common sense and experience dictated that when pressure was being used on a paving brick, much less pressure would be used on a new brick as compared to an old brick coated with thick mould and dirt. He said the email did not represent the pressure used on the day.
6. Mr De Maria described the usual processes of Eco as commencing with the sprinkling of a water and detergent mixture on the paving bricks, following which, water pressure cleaning would be applied. The cleaners were instructed to call Mr De Maria half an hour prior to completion. After checking the cleaning had been performed appropriately, Mr De Maria applied sealant with a sprayer, with assistance from the relevant cleaner.
7. Mr De Maria did not recall when he arrived at the site on 4 January 2024, but said it would have been after lunch. Due to the size of the paved area, he had to return the following day to complete the sealing. After completion, he demonstrated how water beaded on the surface of the paving bricks before slowly being absorbed. There was no complaint made, and he did not observe any difference in the texture of the paving bricks as compared to when he had quoted for the work.
8. The first occasion he heard there was a problem with the paving bricks was in an email on 25 January 2024, by which Mr Lamb sent him photos of damage caused by acid and claimed the sealant had failed to perform to expectations. Mr De Maria's response was that no sealer could prevent the effects of strong hydrochloric acid. In his view the dilution stated by Mr Lamb (1:8 or 12.5%) was 'way way over the top' and in his experience no more than a 3% concentration of hydrochloric acid should have been used.
9. Regarding the on-site meeting with the Building Commission inspector, he heard allegations of 20,684 or 27,579 kPa (3,000 or 4,000 psi) having been used. He did not argue, but expressed the view that if he had been performing the cleaning, he would have reduced the machine pressure to 13,790 - 17,237 kPa (2,000 - 2,500 psi). Mr De Maria explained a certain amount of pressure would have been required to go over 100 m, and in his experience, the pressure coming out of the end of the hose would have been half the pressure showing at the machine.
10. During cross-examination, Mr De Maria agreed that he did not know what pressure was used by Mr Swartz and it was possible a higher pressure had been used. He disagreed with the suggestion his contractors were using pressures much higher than recommended by the Concrete Masonry Association of Australia (CMAA),[29] stating that the pressure at the end of a 100 m hose was much lower than the pressure at the machine gauge. He disagreed with the opinion of Ms Sheth regarding water pressures, on the basis it did not represent his experience over some 17 years.

1. Mr Swartz is a high pressure water cleaning contractor with 8 years' experience. who often carries out work for Eco.[30] He owns the equipment he uses, including a Jetwave pressure washing machine powered by a Honda GX 690 engine mounted on the back of his utility vehicle, surface cleaner, scrubber and lances.
2. The surface cleaner has two nozzles which spin during cleaning, which allow him to clean a larger area in a shorter time. The nozzles are set at a slight angle, almost flat, and produce a fan-type spray.
3. Mr Swartz said newly laid paving bricks could be challenging due to the volumes of sand to be removed from the surface. A certain flow rate (as opposed to pressure) is required. He observed sand on the paving bricks at the site, including sand inside the surface irregularities.
4. In accordance with his usual practice, he sprinkled the detergent mixture on the paving bricks before engaging the surface cleaner. He performed most of the cleaning with the surface cleaner and used the lance for rinsing.
5. He recalled Mr De Maria asked him to clean some paving bricks in the garage. He thought he would have used a lance and not the surface cleaner. He could not recall which lance he had used.
6. He did not observe any particles of the paving bricks being removed during the process of cleaning and rinsing. He also did not observe any black dust or dark coloured water. He observed the water was the grey colour he would expect from the removal of silica dust.
7. When he had finished, he did not observe the paving bricks were in any different condition as from when he started. He did not recall any issues with white spots on the paving bricks, he only recalled there had been an 'excessive' amount of sand on the bricks.
8. Mr Swartz stated one of the reasons he used the surface cleaner was that it would not remove as much sand from the gaps between bricks than if the cleaning were performed with a lance. He rejected the suggestion the surface cleaner had or could remove sand from underneath the paving bricks.
9. He stated that in his experience, pressure dropped 'considerably' when using a long hose. He had also observed a loss of water pressure over time as nozzles became worn. He estimated he replaced nozzles every three to four months but did not recall the age of the nozzles used at the site.
10. He did not have the pressure gauge calibrated and had not measured the pressure of water coming out of the rotary surface cleaner or lances.

1. Mr Savietto is a registered builder and the director of Sovereign.[31]
2. The usual process of Sovereign is to issue purchase orders to Midland Brick for the supply of bricks and to a transport company to deliver the bricks. Usually the transport company is instructed on where to place the bricks and that will often be in protected areas, such as a garage.
3. Pursuant to the building contract with Ms Davis, Sovereign purchased new paving bricks from Midland Brick and engaged FPL to install them. Mr Savietto saw the paving bricks when they were delivered and after they were laid and he was happy with the work. He inspected the paving bricks again as part of the practical completion inspection, and there was no issue with them.
4. In late January or early February 2024 he attended the site and observed the paving bricks were of a markedly different finish. There were more stones visible and they appeared more porous or pitted. In his opinion, the paving bricks had been damaged by the pressure cleaning.
5. Mr Savietto stated it was not unusual for walls to require some cleaning, and Sovereign always used acid. In his recollection it had not previously occurred that paving bricks were affected by the acid cleaning process. He attributed the effects of acid in this instance to surface damage caused by the pressure cleaning.

1. Mr Savietto's evidence regarding the ordering of Ms Davis' paving bricks requires more detailed attention.
2. At the site inspection, Mr Savietto was asked about the difference in the colour of the paving bricks in the crossover. Mr Savietto stated the crossover had been widened and the lighter coloured bricks were from a different batch than the bulk of the bricks comprising the paving at the site.
3. During the final hearing there was an exchange, which we feel is necessary to reproduce at length:[32]

SAVIETTO, MR :...Once he has done his levelling, then he will start to lay his pavers in a jointing position at one end and start coming through, and then move around the house, generally coming through to the start to the front of the house.

LANG, MR: Have you had any discussions with Midland Brick about whether these pavers were all obtained from one batch of pavers?

SAVIETTO, MR: I have, and they are from the same batch.

LANG, MR: and this may be a question for Mr (indistinct) I don't know to what extent you know the process of the manufacturer and the size of batches and so on, but can you comment on that to assist the Tribunal?

SAVIETTO, MR: No. Look, because, again, we - we just issue the purchase order but, on every job, we request that the batch is the same because if you don't have the same batch you will see a different colour in the pavers. So they always will put them aside, and they will say, 'Right, we've got however many thousands of pavers available for this job,' so that we get the same batch from those jobs.

LANG, MR: So when we were at the site inspection yesterday, we observed - this is uncontroversial - there's a colour difference on the driveway between pavers that were not originally part of the original lay and - - -

SAVIETTO, MR: Correct.

LANG, MR: - - - pressure clean.

SAVIETTO, MR: Yes.

LANG, MR: Can you explain your recollection of those pavers?

SAVIETTO, MR: I - I remember we had to order extra pavers to - to finish off the crossover, but they were from a different batch. They weren't the same on those little pieces through there. They were slightly different.

So - - -?---But I - at the crossover, not in the driveway.

No, I'm not talking about the crossover - - -?---Sorry.

- - - where there was some (indistinct) there's this section along the side of the driveway if you're facing the house on the right-hand side?---Yes.

There was the pavers that were originally stored loose in the - - -

WARD, MR: No. No. Sorry. You can't go there.

WARD, MR: You're leading way too much. He has given his evidence - - -

SAVIETTO, MR: All the ones regarding - - -

LANG, MR: I'm cross-examining.

WARD, MR: He has given his evidence.

LANG, MR: I'm cross-examining him.

SAVIETTO, MR: All the - - -

LANG, MR: I'm entitled to cross-examine him as I like.

SAVIETTO, MR: No, that's okay.

SAVIETTO, MR: All the ones - all the ones regarding the house driveway were all the same batch. Correct.

LANG, MR: No. Yes. So those pavers were in the garage at the time? They were later laid on the right-hand side of the driveway?---I can't remember exactly where they were. I know that we put a lot of pavers inside the garage.

The pavers that - I asked a simple question - the pavers on the right-hand side that had that difference colour appearance?---Yes. Did they all arrive on site with the original - - -?---Yes.

- - - supply of paving?---Correct.

Yes. So you understand them to be from the same batch?---Correct.

1. We take Mr Savietto's evidence to be as follows:

(a) The original supply of paving bricks from Midland Brick was from a single batch (original supply).

(b) The driveway consisted entirely of the original supply.

(c) Additional bricks were required to widen the crossover (the additional bricks). They were from a different batch of 'Masterpave Classic 60 Charcoal' paving bricks obtained from Midland Brick.

(d) The additional bricks were located on the right side of the crossover, from the perspective of facing the house from the street (as well as in a couple of other relatively small sections).

1. Although Mr Savietto can be taken to say there was one batch in the final lines of the above exchange, we do not prefer that evidence because:

(a) It contradicts the clear meaning of Mr Savietto's initial answers.

(b) It also contradicts Mr Savietto's statements during the site visit.

(c) It was possible Mr Savietto had become confused by the process of cross-examination and by Mr Lang's earlier statement that he was not asking about the crossover. He was unlikely to have been confused during the site visit.

(d) It appears on the evidence more likely different orders would come from separate batches. Mr Savietto stated even when making a single order, Sovereign specifies that the bricks must come from a single batch so that they do not receive bricks from different batches.

1. Mr Ferns has performed paving works for Sovereign for approximately 15 years.[33] In the course of his work for Sovereign and other builders, Mr Ferns has used paving bricks supplied by Midland Brick many times.
2. Mr Ferns had not noticed any issues with the paving bricks initially. If he had had any concerns, he would have notified Sovereign before laying the paving bricks.
3. Mr Ferns attended the site after the cleaning and sealing of the paving bricks, and the paving bricks were not in the same condition as when they were laid. He estimated 60% to 70% of the paving bricks had an eroded appearance.
4. He extended the crossover after the cleaning and sealing by Eco. He was not sure, but thought a further order of bricks may have been required.

1. Mr Sutton is a trade sales manager employed by Midland Brick. He has been employed by Midland Brick for approximately 36 years.
2. Midland Brick supplied paving bricks to Sovereign in relation to the site. They were new 'Masterpave Classic 60 Charcoal' and did not come from a batch with any known defects or complaints. As a sales manager, he would have been made aware had there been any complaints.
3. The Masterpave range of paving bricks could be pressure cleaned. He would recommend to first perform a test clean and to use pressures of between 6,895 to 13,790 kPa (1,000 to 2,000 psi).
4. He considered a rotary surface cleaner could be used, depending on the pressure. If paving was new, he expected a light wand would be sufficient.
5. He had inspected the paving bricks at the site. He considered they appeared worn or damaged and this had occurred subsequent to manufacture by reason of the pressure cleaning. Midland Brick would not have supplied paving bricks with that appearance as part of the Masterpave range.
6. In his experience, once the surface of a paving brick had been degraded, it would deteriorate more quickly.
7. During cross-examination Mr Sutton was invited to consider photographs of the paving bricks. He considered some to have a finish well below what was acceptable as part of the Masterpave Classic range, some were closer to acceptable and some might have been acceptable.
8. He agreed there had been an additional order of paving bricks for the site and that variation between batches could occur.
9. Mr Sutton was invited to consider the paving bricks displayed in the hearing room. He said some did not have an acceptable finish, which he described as 'too bony' or 'a bit coarse'. Those he identified in this manner included both bricks which had been under Ms Davis' spa.[34]
10. Mr Sutton was also invited to comment on acid cleaning. He thought that acid could be used a 'pre-cleaner' on paving bricks, at a concentration of no more than 1:20. This would not typically be done on a new paving brick.
11. He believed cement was an essential component in the manufacture of paving bricks.
12. In the course of the final hearing, a letter dated 20 June 2025 was lodged with the Tribunal, authored by Mr Sutton and Amelia Richardson on behalf of Midland Brick. The letter purported to report on the testing of paving bricks taken from the site and new paving bricks. Ms Richardson was described as an engineer and technical and innovation manager for Midland Brick. We have disregarded this document for the following reasons:

(a) If this was to be taken as an expert report, the expertise of the authors to undertake the testing was not identified and there was no indication the authors had read or agreed to abide by the Tribunal's guide to giving expert evidence.

(b) Midland Brick may have had an interest in the result of the proceedings and therefore the authors may not have made an independent assessment.

(d) The breaking load of the paving bricks was not relevant to the issues in dispute.

(e) A visual comparison of paving bricks from the site with new paving bricks from the Midland Brick plant was not relevant.

1. The following summaries of the experts' evidence is drawn from written expert reports contained in Exhibits 1 and 1A and oral evidence provided during the final hearing.

1. Neville Harrison, having some 40 years' experience as a registered building practitioner, gave evidence on behalf of Ms Davis as follows.[35]

1. Mr Harrison attended the site on 18 October 2024. He was instructed by Ms Davis to look only at the condition of the surface of the paving. He informed Ms Davis he would need to see an original paving brick to compare to the laid paving bricks. Accordingly, Ms Davis provided him a sample paving brick from a small stack in the garage.
2. He was informed by Ms Davis the light grey paving bricks in the garage and forming part of the crossover had been subjected to a low pressure wash, whilst the remainder of the laid paving bricks (which were darker in colour) had been washed with high pressure by Eco.
3. He observed there was a variance in the visual appearance of paving bricks on the crossover, in that the darker bricks had more pitting and chipping than the lighter coloured. He stated this had been caused by the difference in the cleaning of the bricks.
4. He observed the majority of the darker paving bricks exhibited greater exposure of quartz sand, greater pitting to the surface and damage to the arris as compared to the sample brick.
5. He was told by Ms Davis to ignore those sections of the paving which had been subject to run off from the acid wash of the brick wall.

1. Mr Harrison attended the site again on 17 April 2025. He selected the three easiest locations to uplift paving bricks which were not acid damaged. Grey coloured material (as distinct from the white jointing sand and yellow bedding sand) was removed. At each location, sand and the grey material was placed into a sample bag and sealed.
2. Mr Harrison also removed grey coloured material from the strip drain between the driveway and garage. The material removed from the drain was placed into a sample bag and sealed.
3. Ms Davis gave him another bag which also appeared to contain the grey coloured material. Mr Harrison delivered all five bags to Microanalysis Australia (Microanalysis).
4. Mr Harrison was cross-examined in relation to the apparent disparity between his map of the sample sites in his report, and the map which appeared in photographs of the filled sample bags. Mr Harrison said the images of maps in the photographs had no relevance and paper had simply been placed under the bags so they were more visible in the photographs, without any consideration of what the paper might depict.

1. As a builder, when installing or cleaning a product, he would always refer to the manufacturer's recommendations. His review of information published by Midland Brick recommended against the use of high pressure cleaners and recommended low pressure cleaning of about 10,342 kPa (1,500 psi). In his view, a prudent contractor would follow those recommendations.
2. He understood Eco was engaged to seal the paving bricks, not to high pressure clean them. The paving bricks were new, did not require cleaning and the surface covering of sand could have been removed with a garden hose. Even if using a pressure cleaner, it should have been wound back so that it was sufficient to simply remove the sand.
3. The videos demonstrated the pressure being applied by the rotary surface cleaner was sufficient to bring up not only the white jointing sand, but the yellow sand which lay underneath the brick paving. In his view, if someone were to lift a paving brick, the bedding sand would be disturbed. Further, he considered the video of the turbo lance showed that it was being used between 200 - 300 mm above the surface of the paving bricks.
4. He stated he had seen inexperienced people attempt to clean masonry walls and paving with an acid wash. He would never use acid on a masonry paving brick because 'you know straight away you're going to have trouble with ... discolouration'.
5. During the final hearing, Mr Harrison was invited to compare his observations of the paving bricks at the site to the exhibits. He considered the appearance of the top surfaces of the paving bricks obtained from Midland Brick[36] and from underneath the spa[37] to be very similar to that of the paving brick he used as a sample during his site inspection.
6. In cross-examination Mr Harrison said he could not comment on the pressure which was applied to the paving bricks during the cleaning performed by Eco, because he was not on site at the time. However, the sample paver had minimal surface disturbance compared to the pavers on site and the only thing that had happened was the water pressure cleaning. He thought it possible the damage to the surface might shorten the life of the paving bricks, but considered the aesthetic damage sufficient to justify replacement.

1. Jack Gill is a civil engineer, who since graduation in 2021 had held various roles with the CMAA. He is currently general manager of the CMAA and Think Brick Australia. He gave evidence for Ms Davis as follows:[38]

(a) His report was based upon limited photography of paving bricks alleged to have been damaged by pressure cleaning, a report of Microanalysis dated 16 September 2024 and a video of a few seconds' duration which appeared to show pressure cleaning the front of a driveway.

(b) The appearance of the paving bricks in the photographs was consistent with damage caused by pressure cleaning, including pitting of the surface and damage which appeared more concentrated around the arrises.[39]

(c) Part 3.3 of the CM03 manual produced by the CMAA (CM03) stated, in relation to concrete masonry blocks, water pressures should be kept below 6,895 kPa (1,000 psi), using a fan jet no closer than 500mm on a 15° angle.[40]

1. Mr Gill was not able to inspect the paving bricks in the hearing room because he gave his evidence via video link.
2. Under cross-examination Mr Gill conceded the following:

(a) Part 3.3 of CM03 could be interpreted as applying predominantly to concrete masonry walls and that mortar joints may be more vulnerable to high water pressures than the concrete units.

(b) He did not know when the warning not to exceed 6,895 kPa (1,000 psi) had been added to Part 3.3 and it had not been in that part of CM03 referenced by Mr Harrison in his report.

(c) CMAA manual PA04 (PA04) specifically addresses the maintenance of concrete paving and at Part 6.2 it suggests pressures of up to 14,000 kPa (2,030 psi) can be used on concrete paving bricks. However, Mr Gill qualified that statement by observing it was not clear if it was intended that pressure be used for standard cleaning or only for stain removal.

(d) The application of acid at a concentration of 1:12.5 was acceptable for cleaning clay bricks manufactured by Midland Brick which were coloured red, but was likely to alter the colour of black concrete paving bricks.

1. Omar Abu-Zidan is an architectural engineer, who was accredited as a structural engineer in Australia in 2024, and has 4 years' experience as a structural and civil engineer. His evidence for Ms Davis was as follows:[41]

(a) He had no specific experience regarding paving or masonry blocks. He had experience in forensic engineering, specifically in relation to picking apart standards, manuals and guidelines and assessing where they may not have been followed.

(b) He had not inspected the brick paving. His report was based upon documents including the reports of Microanalysis, Mr Gill and Dr Zurhaar, photographs and CCTV video.

(c) The most likely cause of the damage to the paving bricks was the pressure cleaning work. The CCTV video indicated that the distance between the water jets and bricks recommended in CM03 may not have been followed. That video also depicted sand being removed during the cleaning process, which may have indicated a lack of care in following the recommendations in CM03 and PA04.

(d) He had nothing to add to the Microanalysis report and considered it showed that the jet stream had potentially damaged the paving bricks.

1. Mr Abu-Zidan was not able to inspect the paving bricks in the hearing room because he gave his evidence via video link.
2. Under cross-examination Mr Abu-Zidan stated:

(a) He was not an expert in relation to concrete masonry and relied upon the manuals. He had not conducted pressure cleaning tests on concrete masonry, nor inspected paving bricks manufactured by Midland Brick.

(b) He agreed the Microanalysis report referred to the 'presence of tabulate clasts of glass/clays' as a possible manufacturing defect'. He said that would be a manufacturing imperfection, but to be a manufacturing defect would mean the bricks had not met the specification required by Midland Brick and he would not expect such a high standard in relation to paving bricks.

1. Zeal Sheth is a mechanical engineer, with over 5 years' experience as a drilling engineer in the oil and gas industry. Her evidence for Ms Davis was as follows.[42]
2. The application of Pascal's Law meant that the use of a dual nozzle would not alter the fluid pressure. She agreed with Dr Zurhaar there would be minor losses in pressure due to friction along the hose.
3. The testing conducted by Dr Zurhaar was flawed because:

(a) Erosion-like damage caused by high pressure fluids varied with geometry. The report did not address the differences in erosion of a rectangular brick as compared to a square brick.

(b) The testing did not replicate the use of the round surface cleaner followed by the lance and there was an erroneous assumption as to the water pressure used by the surface cleaner.

(c) There was insufficient description of the testing process (including the movement of the lance and the length of time each brick was subject to the pressure) and therefore the testing could not be replicated.

(d) The report appeared to contain preconceived notions without supporting evidence. To reduce the effect of preconceptions, experiments commonly include more than one expert to conduct experiments or review results, but that had not been done.

(e) The interpretation of the report of Microanalysis was incorrect.

1. In response to a question from the Tribunal, Ms Sheth stated that if the effect of the pressure washing was to create very fine dust or sand (as opposed to larger pieces), then it would have been hard to see. This could be tested by obtaining samples of the sand at the edge of the paving bricks and sifting through to see whether that material was present.

1. Dr Armand Zurhaar, forensic and materials scientist with some 38 years' field experience, gave evidence on behalf of Eco as follows.[43]

1. He was provided with two paving bricks said to be identical to those on the site and another two paving bricks said to also be identical save for being rectangular instead of square.[44] He decided to use one of each and keep the other untouched as a control.
2. The purpose of his testing was to use the same equipment that was used on the day to observe the maximum pressure which the equipment could generate and to attempt to replicate the damage to the paving bricks. Mr Swartz brought his vehicle and Dr Zurhaar was guided by Mr Swartz as to the equipment he had used at the site.
3. Dr Zurhaar determined that the machine was not capable of generating 27,579 kPa (4,000 psi) unless mechanical adjustments were made. Using a standard lance at the normal settings, the maximum pressure was 22,063 kPa (3,200 psi). However, the turbo lance head was able to create a pressure of between 26,200 and 27,579 kPa (3,800 and 4,000 psi) in the line.
4. The results of the testing are summarised in the below table:

1. In each test the water was sprayed upon the bricks for approximately 30 seconds. The nozzle was not stationary but was moved in a backwards and forwards motion over the bricks' surfaces.
2. The turbo lance nozzle was included as an 'afterthought' because Mr Swartz had informed him the standard lance was used at the site. In cross-examination he conceded that had known the turbo lance had been used at the site, he would have further tested the effect of the turbo lance.
3. Dr Zurhaar did not observe the displacement of any particles from the surface of the bricks and found no visual differences when comparing the unwashed control bricks.
4. He had attended hundreds of cases where the surface of pavers had been damaged and created pitting and spalling. If small pieces of dark coloured pavers were being blown out over a large area, there should have been debris in the water wash which should have been visible in the sand at the side. Over 525 m2, considering the damage alleged, there should have been a kilogram or more of debris. He had not seen evidence of the material alleged to have been removed and did not observe the removal of material in the CCTV recording of part of the cleaning process.
5. In cross-examination Dr Zurhaar rejected the suggestion the results of his testing were undermined by not testing the effect of the two-nozzle rotary surface cleaner because he tested the effect of a jet of water applied close to the surface of the paving bricks.
6. Dr Zurhaar's report stated the water pressure would be halved when connected to the dual nozzle cleaner. Ms Sheth disagreed. In his evidence at the final hearing, Dr Zurhaar expressed reservations regarding the application of Pascal's Law to this system, and stated nothing turned on the issue in any event because even at the maximum pressure he had been unable to replicate the damage.

1. Dr Zurhaar reviewed the reports of Mr Harrison dated 19 May 2025 and Microanalysis dated 5 May 2025, and the letters commenting upon the Microanalysis report.
2. In relation to Mr Harrison, Dr Zurhaar observed that in the map in the report, the locations of sample sites 1, 2 and 4 appeared to be adjacent to the areas marked as being affected by acid. In addition, the map which was photographed with the filled sample bags, appeared to show a different location for sample site 1.
3. In relation to Microanalysis, Dr Zurhaar stated that brownmillerite, C2S, C3A and hatrurite were major components of Portland GP cement and are readily detected by x-ray diffraction spectrometry. There was no evidence of any of the characteristic cement phases in the test results.
4. He proposed three possible explanations for absence of cement phases in the Microanalysis testing of the grey material:

(a) the presence of fines which were not bound to the bricks during manufacture;

(b) in accordance with his interpretation of the earlier Microanalysis report, there was a manufacturing defect which caused some particles to not form a part of the normal brick matrix;

(c) the particles had been exposed to the acid wash, which had dissolved the cement.

1. In relation to the letters which commented upon the Microanalysis report dated 5 May 2025, Dr Zurhaar's observations included:

(a) There was no comment on the absence of cement phases in the data relating to the 2023 control brick.

(b) It was unclear how material underneath paving bricks would be subject to weathering sufficient to degrade concrete.

(a) He was prepared to accept, and had never denied, the material collected in the five sample bags were particles of the paving bricks. In his view, however, there was no evidence the material had been removed by the water pressure cleaning.

(b) There was no evidence that water pressure cleaning would change the colour of paving bricks.

1. Microanalysis was engaged by Ms Davis to investigate her concerns regarding damage to the paving bricks.[45] They collected five bricks of their choice from the site on 4 September 2024 and were supplied a further brick as a reference. The bricks were described as:

(b) 'Driveway low pressure washed and sealed paver';

(c) 'Side deck high pressure washed and sealed paver';

(d) 'Driveway high pressure washed and sealed paver';

1. Three were chosen for detailed analysis - that from the driveway said to be low pressure washed, that from the decking said to be high pressure washed and the control. These bricks were analysed through a combination of optical imaging, x-ray diffraction of a sample of the interior of each and scanning electron microscopy and energy dispersive spectroscopy of a portion of the surface of each brick.
2. The experts disagreed as to the conclusions reached by Microanalysis.
3. The report appeared to identify Dr Robert Madden as the author, though other persons were identified as having been involved in the processes undertaken by Microanalysis. Dr Madden was not called as a witness. No other person from Microanalysis was called as a witness. Therefore the Tribunal was unable to clarify the meaning the report was intended to convey.
4. Accordingly, we have treated the report with caution.
5. In our view the report can be taken to state:

(a) Pitting generally less than 2 mm in depth was observed in the surface of the control and 'low pressure' brick whereas pitting of up to 39 mm across and up to 15 mm deep was observed in the 'high pressure' brick.

(b) There was consistency in the mineralogical and elemental composition of the three bricks.

(c) None of the bricks showed elevated chlorine or sulphur (the presence of which may have indicated chemical attack).

(d) A potential cause of the pitting was the presence of 'platy clasts'. These were observed at the base of pitting in the 'high pressure' brick. In other locations, the material directly above the 'platy clasts' appeared to contain 'a paucity of coarse aggregate, increased porosity, and poor binder/matrix cohesion'.

1. Microanalysis was engaged by Ms Davis to examine the material described by Mr Harrison in his report following his second site inspection.[46] Their report of that examination dated 5 May 2025 (the May report) was clarified or supplemented by a further report dated 29 June 2025 (the June report).[47]
2. The author of the May report appeared to be Matthew Rowles and the author of the June report appeared to be Dr Madden. Therefore, it appeared that Dr Madden purported to provide further information regarding a report authored by Mr Rowles. Neither were called as witnesses.
3. In relation to the fifth bag provided by Ms Davis, there was no evidence regarding the location or locations from where the material was drawn, the selection of the location or locations or how the material was collected.
4. By reason of the above concerns, we have treated these reports with caution.
5. In our view both reports can together be taken to state:

(a) Microanalysis took delivery of five sample bags. In the photographs provided, the bags numbered 1 to 3 appear to contain grey sand and dark particles. The particles were small, but generally larger than the grains of sand. Bag numbered 4 contained dark particles larger than those in the bags numbered 1 to 3. The particles in the bag numbered 5 were substantially larger than those in bag 4.

(b) In relation to bags 1 to 3, 'brick paver material' was removed by hand and using a stereoscope. Due to the 'limited volume', the material was combined into one sample for testing (the 'combined sample').

(c) The combined sample as well as the material obtained from bags 4 and 5 were ground and analysed using x-ray diffraction. The results were compared to the results of the x-ray diffraction testing contained in the report dated 16 September 2024.

(d) The results for potassium feldspar, quartz and sodium plagioclase were reported with a high degree of confidence and are reproduced in the table below.

(e) The results for ettringite and portlandite were reported with a low degree of confidence and are reproduced in the table below.