Dodd v Balmain Projects Group Pty Ltd

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said that the consequence of the roofing system not being in conformity with the drawings is that water would get into the soffit of the balcony. Once this happened it could affect the timber holding up the soffit.
2. In cross-examination, Mr Capaldi accepted that he did not have hydraulic qualifications and did not know what effect the missing downpipes would have.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "I agree the roof of the building falls to the rear eaves gutter. I further agree that two 90mm PVC downpipes service the one length of gutter over the two duplex developments. This effectively means one downpipes services each duplex. I also noted and agree no leaf guard has been provided to the eaves gutter. The peeling section of paintwork below the gutter shown in the photograph in the Tyrrells Report is approximately 250mm long and in my opinion does not in any way establish any evidence of an overflowing gutter. In addition it is located near the common dividing wall of the two duplexes which would be the highest section of the guttering assuming it has been set to fall as required to the downpipes installed at the NW and SW corners of the two duplexes. This being the case the gutter would overflow at this location last being the highest point of the gutter length. On the day of my inspection there was no evidence of significant ponding in the gutter or any other visible damage that could reasonably be attributed to the reported overflow of the eaves gutter to the property or that the drainage system installed was not performing satisfactorily. The Tyrrells Report claims these reported issues constitute a major defect which in my opinion cannot be supported as no evidence has been provided to demonstrate an inability to inhabit or use the building, the destruction of the building or any threat of collapse of the building. In addition the alleged issue does not relate to a major building element such as internal or external load bearing components or stability of the building, waterproofing, or fire safety systems."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts substantially repeated the evidence in the Roberts report.
2. In cross-examination, Mr Roberts accepted that the consequence of the roofing system not being in conformity with the drawings is that water could overflow the gutters. He disagreed that water would overflow into the balcony.

The submissions of the parties

1. In their oral submissions the applicants said there was a probability that water would enter the building and cause damage. It could be inferred that a failure to conform with the hydraulic drawings would be likely to cause damage.
2. In its oral submissions the respondent submitted that the consequence of the failure of roofing system was speculative because neither Mr Capaldi nor Mr Roberts is a hydraulic engineer.

Consideration

1. I am satisfied that the failure of roofing system to conform with the hydraulic drawings by incorrectly sized and missing downpipes and missing leafguard is a defect. I am also satisfied that the roofing system is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. There was no evidence that this defect had caused any damage to the building. In particular, I am not satisfied that this defect has led to any water ingress, and that the peeling paint is the result of water overflowing the gutter. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.
3. While I am satisfied that this defect constitutes a breach of the statutory warranty in s 18B(1)(a) of the HB Act, it has not resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were not commenced before the end of the warranty period of 2 years for the breach and accordingly the Tribunal has no jurisdiction to hear and determine the claim for this defect.

Items 2 and 1a: Corrosion to fittings and clamps missing

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations: "1. I was able to physically access the roof sheeting via the first floor balcony and found the following: 2. The hex head fixings to the roof sheeting are prematurely corroding. The fixings, in my opinion, should not be corroding within 2 years of the completion of the building. Corrosion will continue unless the fixings are removed and replaced. [photograph omitted] 3. The rubber seals (boots) provided to the sewer vent pipe surrounds are reliant on sealant only and have not been provided with screw clamps to ensure the boot does not detach from the pipe surface. If the sealant fails to adhere, then water ingress is to be expected. The clamp will reduce the chance of detachment. [photograph omitted]"
2. In the supplementary Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations: "4. The water ingress has been identified in the first floor bedroom adjoining the main bedroom ensuite. I have named this room as "Bedroom 2". 5. The floor plan provided below is of the first floor and the red shaded room is the room where water staining has not been identified. [plan omitted] 6. The image below has been provided by the Applicant/Owner and shows the water staining to the plasterboard ceiling. [photograph omitted] 7. There is a sewer vent pipe that adjoins Bedroom 2 which services the main bedroom ensuite. 8. The sewer vent pipe is shown in the image below taken during my site inspection. The vent pipe has been circled in red. [photograph omitted] 9. My earlier report on page 15 paragraph 3 has identified the defects with the weatherproofing of the sewer vent pipe rubber seals and has also stated that water ingress is to be expected. … 10. The image below was taken on the roof during my site inspection which shows the poor attempt at weatherproofing of the sewer vent pipe surrounds. [photograph omitted] 11. The water ingress has now occurred as a direct result of the failure to adequately weatherproof the roof penetration being the sewer vent pipe. 12. It then follows that the water ingress contravenes NCC 2016 P2.2.2 "Weatherproofing" which states the following: P2.2.2 Weatherproofing A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause - (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. 13. The consequence of not rectifying the defect is that further water ingress will occur resulting in extensive damage to linings and floor coverings. Further, the water ingress will result in the bedroom becoming unsafe to occupy."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said that he saw corrosion on a hex head. Once corrosion starts he would expect it to continue, the rubber seals would fail, water would enter and have contact with timber causing damage. He observed evidence of leaking in bedroom 2 adjacent to the ensuite.
2. In cross-examination, Mr Capaldi accepted that he observed one instance of corrosion and that no standard required the use of clamps to the decktites. He expressed the opinion that the use of clamps was good building practice.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings as to item 2: "Corrosion to fittings … During my inspection of the roof of the subject property I was unable to identify any significant corrosion in the roof fixings or the coating finish to them that would necessitate their replacement. (See Photograph 1 in Annexure C of this Report) The Tyrrells Report claims this reported item constitutes a major defect which in my opinion cannot be supported as no evidence has been provided to demonstrate an inability to inhabit or use the building, the destruction of the building or any threat of collapse of the building. In addition the alleged issue does not relate to a major building element such as internal or external load bearing components or stability of the building, waterproofing, or fire safety systems. If the reported issue was found to exist, which was not the case at the time of my inspection, the reported issue would therefore be categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act. Clamps missing I concede that no clamps have been fitted to the decktites (rubber seals) at the junctions with the two PVC vent pipes and one TV antenna cable nor has the Tyrrells Report detailed any requirement of such clamps at these junctions or non-compliance with the NCC or relevant Australian Standards. At the time of my inspection the decktite junctions were sealed with silicone joint. At present the omission of clamps on the decktites has not been established as defective work or the source of water ingress to the building. As this is the case the claim in the Tyrrells Report that this item is a major defect cannot be supported as no evidence has been provided to demonstrate an inability to inhabit or use the building, the destruction of the building or any threat of collapse of the building. In addition the alleged issue does not relate to a major building element such as internal or external load bearing components or stability of the building, waterproofing, or fire safety systems. Based on the current information provided this item is not considered to be defective work."
2. In the Roberts report, Mr Roberts sets out the following findings as to item 1a: "I was not provided this Report at the time of my inspection of the property. At the time of my inspection I was not shown any water staining to the ceiling within this room by the Owners. My responses to this item are therefore based on the information and photographs provided in the Tyrrells Report only. Item 10 of the Tyrrells Report depicts a pipe penetration through the roof and states that the photograph shows a poor attempt at weatherproofing the vent pipe. The photograph shows a visible sealant joint between the vent pipe and decktite and there is also visible sealant at the base of the decktite at the junction with the roof sheeting. The Tyrrells Report details no visible gaps, delamination or failure of any sealant joints of the roof penetration nor has any water testing been undertaken to confirm the source of the leak. Item 6 depicts a photograph of reported water staining to the ceiling of the room. While the photograph is not clear I concede the circled area in the photograph has the appearance of a water stain. As I was not able to inspect the damage at the time of my inspection I have assumed the reported vent penetration is the most likely source of the reported leak to the Bedroom. Assuming the reported water damage is from the penetration in the roof this issue would be categorised as a major defect as it has the potential to effect the weatherproofing and use of the building using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts substantially repeated the evidence in the Roberts report.
2. In cross-examination, Mr Roberts accepted that if the silicon sealant failed water could enter. He did not see any evidence of water damage.

The submissions of the parties

1. The applicants made no oral submissions on this item.
2. In its oral submissions the respondent accepted that the one corroded hex head is a defect, and submitted that the absence of clamps is not a defect.

Consideration

1. I am satisfied that the corrosion of a hex head and the failure to fit clamps to the decktites is each a defect. I am also satisfied that a hex head and a clamp fitted to the decktites is each a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. There is no evidence that the corroded hex head has caused any damage to the building. However, there is evidence the failure to fit clamps to the decktites has led to water ingress in bedroom 2 near the ensuite. I am satisfied that this defect is likely to cause the consequence in paragraph (a)(i) of the definition in s 18E(4) of the HB Act.
3. I am satisfied that this item so far as the absence of clamps constitutes a breach of the statutory warranty in s 18B(1)(a) of the HB Act and has resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were commenced before the end of the warranty period of 6 years for the breach and accordingly the Tribunal has jurisdiction to hear and determine the claim for this defect.
4. While I am satisfied that this item so far as the corroded hex head constitutes a breach of the statutory warranty in s 18B(1)(a) of the HB Act, it has not resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were not commenced before the end of the warranty period of 2 years for the breach and accordingly the Tribunal has no jurisdiction to hear and determine the claim for this defect.

Item 4: Masonry not properly cleaned and areas to be re-pointed, and articulation joint sealant is incomplete

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a minor defect, and relevantly makes the following observations: "1. I observed that the areas of the face masonry to the external walls still requires spot cleaning of mortar debris. [photograph omitted] 2. IN FGT 17 page 30 clause 3.11 states that mortar smears not cleaned from face masonry is a defect. The clause has been provided below [text omitted] 3. There are localised areas of the face masonry that requires re-pointing to the south elevation adjoining the render and to the balconies. 4. The articulation joints installed to the external walls are incomplete by way of sealant installation. The area of incomplete works is to the east elevation first floor."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said that there is a possibility that water could enter through the cracks in the mortar. Once this happened it could come into contact with timber and cause deterioration.
2. In cross-examination, Mr Capaldi accepted that this was an aesthetic issue. He took three photographs of this defect. He said that the internal walls showed no evidence of water ingress.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "The Tyrrells Report does not define the locations where masonry has not been cleaned or brick joints needed repointing. At the time of my inspection I noted the external brickwork was generally cleaned and pointed to a reasonable standard. The minor exceptions to this was: • Minor mortar splatter on the bottom two courses of bricks on the eastern wall and adjacent to the main entry door. • Minor voids in several brick joints above the electrical box on the northern wall near the eastern corner of the building. The vertical joint at the junction between the rendered masonry wall and face brickwork on the southern wall of the first floor balcony was also found to not be fill with a uniform sealant joint. I assume this was the incomplete articulation joint referred to in the Tyrrells Report. The Tyrrells Report lists the above items as minor defects. I agree the reported issues would be categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts substantially repeated the evidence in the Roberts report.
2. In cross-examination, Mr Roberts did not accept that this item was a likely cause of water ingress.

The submissions of the parties

1. In their oral submissions the applicants said there was an incomplete articulation joint.
2. In its oral submissions the respondent submitted that Mr Capaldi acknowledged that this issue was aesthetic. There is no defect.

Consideration

1. I am satisfied that the failure to properly clean masonry, re-point some areas, completely seal the articulation joint sealant is a defect. I am not satisfied that these elements are a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing. It can be inferred that both Messrs Capaldi and Roberts have this opinion.
2. If, contrary to my finding, this item constitutes a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing, then there was no evidence that this defect has caused any damage to the building. In particular, I am not satisfied that this defect has led to any water ingress. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.
3. While I am satisfied that this defect constitutes a breach of the statutory warranty in s 18B(1)(a) of the HB Act, it has not resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were not commenced before the end of the warranty period of 2 years for the breach and accordingly the Tribunal has no jurisdiction to hear and determine the claim for this defect.

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations: "1. There was cracking to the rendered external walls of thebuilding. 2. Some of the cracking is due to shrinkage resulting in "spider-web" type cracking. The spider web cracking is due to rapid shrinkage of the render from the drying and curing process. [photograph omitted] 3. In other areas the cracking is due to settlement of the building. This is evidenced by way of diagonal and horizontal cracking from openings within the walls. [photograph omitted] 4. In some instances, the cracking is due to improper installation of the control joints installed in the render. 5. The cracking due to improper construction of the control joint has resulted in drummy and render becoming detached from the sub-strate surface. This is evidenced to the south east corner of the building to the ground floor. 6. The FGT 17 on page 48 clause 10.6 states the following: [text omitted] 7. The combination of settlement of the building and inadequate control joints in the render has resulted in the cracking as shown in the image above."

The oral evidence of Mr Capaldi

1. Mr Capaldi gave no evidence in chief on this item.
2. Mr Capaldi was not cross-examined on this item.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "The Tyrrells Report does not define any specific locations where the render is defective where it has cracked. I noted several instances of cracking in the external walls of the building which were measured with a crack indicator gauge and found to vary between hairline and .3mm in width. (See Photograph 1 in Annexure C of this Report) The Tyrrells Report detailed alleged improper construction of a control joint and detached render at the south east corner of the building. I was unable to identify any detached or delaminated render in this location. There was a minor hairline horizontal crack in the wall approximately one course above ground level at this location which was not deemed a defect for the following reason. It appears the Tyrrells Report is suggesting the hairline cracking I identified at the south eastern corner is the result of a lack of a control joint at this location and relies on Section 10.6 of the Guide to Standards and Tolerances 2017 to support the claim of a building defect. The Tyrrells Report does not however establish why a control joint is required at the location of the cracking in the rendered wall nor was I able to find any requirement for the same where the cracking was identified. Based on the above information the cracks in the rendered surfaces should be assessed in accordance with AS 2870 Table C1 which is included in Section 3.2 of the Guide to Standards and Tolerances noted in the Tyrrells Report. Table C1 categorises cracking less than 1mm in width as very slight that do not need repair. In the light of the above information the Tyrrells Report fails to establish that the cracking identified is a building defect. In addition the Tyrrells Report claims the cracking constitutes a major defect which in my opinion cannot be supported as no evidence has been provided to demonstrate an inability to inhabit or use the building, the destruction of the building or any threat of collapse of the building. In addition the alleged issue does not relate to a major building element such as internal or external load bearing components or stability of the building, waterproofing, or fire safety systems. If the reported cracking was found to be a defect, which was not the case at the time of my inspection, the reported issue would therefore be categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts said that this item did not relate to waterproofing.
2. In cross-examination, Mr Roberts did not accept that paint and render keep water from the building.

The submissions of the parties

1. In their oral submissions the applicants said there is an incomplete articulation joint.
2. In its oral submissions the respondent submitted that Mr Capaldi acknowledged that this issue was aesthetic. There is no defect.

Consideration

1. I prefer the opinion of Mr Roberts to that of Mr Capaldi because it is supported by detailed reasons, and so am not satisfied that this item is a defect. I am also not satisfied that this item is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. If, contrary to my finding, this item constitutes a defect and is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing, then there was no evidence that this defect has caused any damage to the building. In particular, I am not satisfied that this defect has led to any water ingress. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations as to each of items 8 and 9: "11. Skirting tiles have not been installed 12. The waterproof membrane upturn is clearly visible to the perimeter walls of the balcony to the face masonry panel. [photograph omitted] 13. As the balcony is a trafficable area, the exposed membrane is subject to damage. 14. Further, I have not been provided with the materials used by the Builder to waterproof the balconies. If the material is not UV stable, then the membrane is subject to deterioration and failure. 15. To avoid damage from traffic and general usage and deterioration from exposure, a prudent Builder would install a skirting tile to mitigate the chance of damage and deterioration."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi described the damage that could occur if there is no skirting tile protecting the upturn of a membrane.
2. In cross-examination, Mr Capaldi accepted that there is no damage to the upturn of the membrane.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings as to each of items 8 and 9: "No Skirting Tiles At the time of my inspection the upturn of the waterproof membrane was visible over a length of approximately 200mm on the southern wall of the balcony between the A/C unit and the hob at the front of the balcony. The remainder of the length of this upturn (approximately 1m) was cover by the A/C unit. (See Photograph 4 in Annexure C of this Report) The Tyrrells Report has not detailed or established any defect or failure in the membrane installed or any requirement for a skirting tile to be installed. This item is therefore in my opinion an issue of finish and not defective work. In addition the Tyrrells Report claims this item to constitute a major defect which in my opinion cannot be supported as no evidence has been provided to demonstrate an inability to inhabit or use the building, the destruction of the building or any threat of collapse of the building. In addition the alleged issue does not relate to a major building element such as internal or external load bearing components or stability of the building, waterproofing, or fire safety systems. If the reported exposed membrane was found to be a defect, which was not the case at the time of my inspection, the reported issue would therefore be categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts said that there is no requirement for skirting tiles for the upturn of a membrane. He saw no evidence of water damage.
2. In cross-examination, Mr Roberts said a skirting tile was the best way to protect the upturn of a membrane. He agreed if the membrane failed there is the possibility of water damage.

The submissions of the parties

1. The applicants made no oral submissions on this item.
2. The respondent made no oral submissions on this item.

Consideration

1. I prefer the opinion of Mr Roberts to that of Mr Capaldi because it is supported by detailed reasons, and so am not satisfied that this item is a defect. I am also not satisfied that this item is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. If, contrary to my finding, this item constitutes a defect and is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing, then there was no evidence that this defect has caused any damage to the building. In particular, I am not satisfied that this defect has led to any water ingress. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations: "1. This defect refers to moisture and lateral damp ingress to the family room north east corner to the base of the wall. 2. I have been advised that the Owner has had to clean mould from this area on numerous occasions. 3. The area of the defect is located to the step down within the ground floor from the entry to the living areas. 4. The image below was taken during my site inspection. [photograph omitted] 5. Using a Tramex Moisture Encounter, I was able to undertake dry datum readings and then relative readings to ascertain if elevated moisture was present in the wall. 6. Tramex Moisture Encounter set on level 1 (timber) established a dry datum on the hallway skirting of 6% and then when placed on the affected area, the moisture reading was found to be 18%. 7. Tramex Moisture Encounter set on level 2 (drywall) established a dry datum on the hallway wall of 10/100 and then when placed on the affected area, the moisture reading was found to be 38/100. 8. He (sic) moisture readings that have been undertaken show elevated moisture to the affected area when compared to areas that do not exhibit water ingress. This is consistent with current water ingress. 9. I was able to inspect the external walls of this area and found that the concrete paving levels are set above the damp proof course up to 100mm. [photograph omitted] 10. The obstruction of weepholes resist the drainage of the cavities of water. The image below is a magnification of the image above to show the level of the concrete paving to the weepholes. The level of the base of the weepholes which cannot be seen, is also the level of the damp proof course. The red arrow shows the weephole that has been obstructed at the base. [photograph omitted] 11. Considering the step down is the location of the issue, extra attention and consideration should have been made by the Builder prior to installing the concrete paving. 12. I was able to undertake levels and found that the external concrete paving level is 100mm higher than the internal floor level. 13. The obstruction of the weepholes and the level of the concrete is the reason why there is internal moisture. 14. The ingress of damp and moisture contravenes the NCC 2016 P2.2.2 "Weatherproofing" which states: P2.2.2 Weatherproofing A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause - (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. 15. The ingress of damp and moisture contravenes the NCC 2016 P2.2.3 "Dampness" which states: P2.2.3 Dampness Moisture from the ground must be prevented from causing - (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. 16. The consequence of not rectifying the defect is that moisture and dampness will continue to enter the building resulting in damage to finishes and mould growth which creates an unhealthy environment."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said that the consequence of no weepholes is that water cannot escape.
2. In cross-examination, Mr Capaldi said that he saw an instance of mould. He agreed that he did not undertake any water testing, but relied on a Tramex Moisture Encounter.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "At the time of my inspection I found the lower section of the northern external wall displayed minor mould staining and/or paint discolouration near the eastern corner of the room. I tested the wall with a moisture meter which provided normal relative moisture readings of 106 in both the areas tested. A normal reading in this instance should not exceed approximately 240 while a fully wet reading would be 1000. Based on the results of this moisture testing I was unable to confirm any current moisture/water ingress through the wall. (See Photographs 8 and 9 in Annexure C of this Report) I also viewed the external face of the same wall and for the most part found it to be finished with render and a paint finish. As this was the case minimal, if any, water would be expected to soak through the external skin of brickwork, then run down the back of the external skin to the cavity flashing at the base of the wall and drain through the weepholes to the outside of the building as intended. While no water ingress was confirmed on the day of inspection I concede that the minor extent of visible damage internally may indicate moisture/water ingress only occurs during extended and or heavy rain events. The Tyrrells Report has not detailed any form of water testing or destructive investigation undertaken to establish the cavity flashing as the source of this issue. I would therefore propose further water testing and destructive investigation at a future time, in an effort to confirm the source of any water/moisture ingress that may exist after which a more definitive Scope of Works can be finalised to address the same. Should water ingress be confirmed through the external wall this issue would be categorised as a major defect as it has the potential to effect the weatherproofing and use of the building using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts said that there was no evidence of any significant ongoing issue.
2. In cross-examination, Mr Roberts said that there was no significant effect because there is a cavity between the external and internal skins.

The submissions of the parties

1. In their oral submissions the applicants said there is evidence of water ingress.
2. In its oral submissions the respondent submitted that there is no satisfactory evidence of a defect because Mr Capaldi did not undertake any testing, and referred to Ashton at [195]-[210].

Consideration

1. I am satisfied that obstruction of the weepholes is a defect. I am also satisfied that properly functioning weepholes are a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. There is insufficient evidence that this defect has caused any damage to the building. In particular, while I accept that there is evidence of moisture in the building, in the absence of testing the opinion of Mr Capaldi that obstruction of the weepholes and the level of the concrete is the cause of the moisture is speculative and the Tramex Moisture Encounter reading does not provide a sufficient basis for establishing the cause of the moisture. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.
3. While I am satisfied that this defect constitutes a breach of the statutory warranty in s 18B(1)(a) of the HB Act, it has not resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were not commenced before the end of the warranty period of 2 years for the breach and accordingly the Tribunal has no jurisdiction to hear and determine the claim for this defect.

Item 15: Loose styles and storm moulds not installed

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a minor defect, and relevantly makes the following observations: "1. The first floor balcony sliding door unit to the west elevation (rear) shows loose and poorly fixed side styles specifically to the handle and catch side. [photograph omitted] 2. The external window to the ground floor bathroom shows gaps of 13mm between the masonry and the frame. [two photographs omitted] 3. This allows for water ingress into the cavities of the building as well as ingress of insects and the like. 4. Typical building practice is to supply and fix storm moulds to cover the gaps."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said that whether water ingress in gap between the stile of the bathroom window and adjoining face brick wall would cause damage would depend on the flashings.
2. In cross-examination, Mr Capaldi said that he did not know the configuration of the flashings for this window.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "Loose Stile to West Elevation Sliding Doors At the time of my inspection I was unable to identify the reported loose stile referred to in the Tyrrells Report. The Tyrrells Report details this item as a minor defect. Should this item be found to exist I would agree this issue is categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act. External Face of Ground Floor Bathroom Window I agree there was an excessive gap between the stile of the bathroom window and adjoining face brick wall. There was no visible water ingress reported or found to the building as a result of the gaps identified. The Tyrrells Report details this item as a minor defect. I would agree this issue is categorised as a general defects using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts said that this item did not relate to waterproofing.
2. In cross-examination, Mr Roberts while conceding it is possible that water could enter adjacent to the bathroom window, he was of the opinion it is unlikely to do so.

The submissions of the parties

1. In their oral submissions the applicants pointed to the lack of storm moulds.
2. In its oral submissions the respondent submitted that there was no satisfactory evidence of a defect because Mr Capaldi did not undertake any testing, and the likelihood of damage would depend upon the configuration of the flashings for bathroom window.

Consideration

1. I am satisfied that this item so far as the gap between the masonry and the frame of the bathroom window is a defect. I am satisfied that this item is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. There is no evidence that this defect has caused any damage to the building. In particular, without information as to the configuration of the flashings for this window there is no basis for a finding that this defect is likely to cause any damage. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.
3. While I am satisfied that this defect constituted a breach of the statutory warranty in s 18B(1)(a) of the HB Act, it has not resulted in a major defect within s 18E(1)(b) when read with s 18E(4) of the HB Act. The consequence is the proceedings were not commenced before the end of the warranty period of 2 years for the breach and accordingly the Tribunal has no jurisdiction to hear and determine the claim for this defect.
4. This item so far as the first floor balcony sliding door unit to the west elevation was not the subject of any oral evidence or submissions. I am not satisfied that it constitutes a defect. I am also not satisfied that it is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
5. If, contrary to my finding, this item constitutes a defect and is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing, then there was no evidence that this defect has caused any damage to the building. In particular, I am not satisfied that this defect has led to any water ingress. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.

The Capaldi report

1. In the Capaldi report, Mr Capaldi without any supporting reasons expresses the opinion this item is a major defect, and relevantly makes the following observations: "1. I have been advised by the Owner that water ingress occurred during rain events from the east facing window to the stairwell walls adjoining and below. 2. The images below have been provided by the Owners. [four photographs omitted] 3. The ingress of water contravenes the NCC 2016 P2.2.2 "Weatherproofing" which states the following: P2.2.2 Weatherproofing A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause - (a) unhealthy or dangerous conditions, or loss of amenity for occupants; and (b) undue dampness or deterioration of building elements. 4. I am of the opinion that the water ingress will continue and the consequence is further damage and deterioration to building finishes."

The oral evidence of Mr Capaldi

1. In examination in chief, Mr Capaldi said he did not see deterioration.
2. Mr Capaldi was not cross-examined on this item.

The Roberts report

1. In the Roberts report, Mr Roberts sets out the following findings: "At the time of my inspection I found the lower section of the eastern on the ground floor of the stairwell displayed some minor mould staining above the level of the skirting. (See Photograph 12 in Annexure C of this Report). There was no visible water staining or damage to the paint finishes or wall lining consistent with water ingress through the window or wall at the time of my inspection. I tested the eastern wall at the sill of the window and at two locations above the skirting line which in each location provided normal relative moisture readings up to 125. A normal reading in this instance should not exceed approximately 240 while a fully wet reading would be 1000. (See Photograph 13 in Annexure C of this Report). I also tested the base the base of the wall with a moisture meter in the vicinity of the mould staining which also returned normal moisture readings of 122. (See Photograph 14 in Annexure C of this Report) Based on the results of this moisture testing I was unable to confirm any current moisture/water ingress through the wall or window opening. As a sideboard had been moved from along this way to provide access to view the area it is possible the minor mould identified was the result of a lack of movement of air between the sideboard and wall. The Tyrrells Report appears to have relied entirely on the advice of the Owners in relation to the alleged leak from the window. The Report has not detailed any form of water testing or destructive investigation undertaken to establish whether the window and/or the wall is leaking. Based on my inspection and the information currently available to me it is my opinion no building defect has currently been established in relation to this item. Should water ingress be confirmed through the external wall this issue would be categorised as a major defect as it has the potential to effect the weatherproofing and use of the building using the definitions outlined in Section 18E of the Home Building Act."

The oral evidence of Mr Roberts

1. In examination in chief, Mr Roberts substantially repeated the evidence in the Roberts report.
2. In cross-examination, Mr Roberts said that he did not see any evidence of water damage.

The submissions of the parties

1. In their oral submissions the applicants said there was evidence of water ingress.
2. In its oral submissions the respondent submitted that there was insuffifient evidence of water ingress.

Consideration

1. I prefer the opinion of Mr Roberts to that of Mr Capaldi because it is supported by detailed reasons, and so I am not satisfied that this item is a defect. The opinion of Mr Capaldi has no satisfactory basis because it was based on hearsay information and photographs provided by the applicants which were not proved. I am also not satisfied that this item is a major element of a building within paragraph (c) of the definition in s 18E(4) of the HB Act by being part of the waterproofing.
2. If, contrary to my finding, this item constitutes a defect, then there was no evidence that this defect has caused any damage to the building. I am not satisfied that this defect is likely to cause any of the consequences in paragraph (a)(i), (ii) or (iii) of the definition in s 18E(4) of the HB Act.

Whether a money or work order should be made in respect of the items agreed, and any items found, to be a major defect

1. The applicants seeks a money order under s 48O(1)(a) of the HB Act and oppose a work order under s 48O(1)(c)(i) of the HB Act in respect of the major defects as agreed or found on the basis that the respondent has failed to rectify the defects after Barclay received the defects notice on 12 February 2020.
2. The respondent seeks a work order under s 48O(1)(c)(i) of the HB Act in respect of the major defects as agreed or found and relies on s 48MA of the HB Act.
3. I am satisfied that the respondent is the responsible party for the major defects within the meaning of s 48MA of the HB Act. Having regard to the principles relating to the application of s 48MA of the HB Act in Leung at [139]-[140], I am satisfied that I should exercise the discretion under s 48O(1)(c)(i) of the HB Act to make a work order in respect of the major defects as agreed or found on the basis that the respondent undertakes their rectification on the following conditions: 1. the rectification works are undertaken in accordance with the scope of works in the Capaldi report; 2. the rectification works are completed by 18 October 2021.

The costs of the proceedings

1. I will deal with the costs of the proceedings by way of written submissions as follows: 1. if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, within 14 days of the date of the orders in these reasons for decision; 2. any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply within 14 days thereafter; 3. the costs applicant is to file any submissions limited to three pages in reply within 14 days after receipt of the submissions and any evidence of the respondent to the costs application.

Orders

1. I make the following orders: 1. the respondent is to rectify the major defects to the property identified as items 2 so far as the defect identified as "Clamps missing", 9 so far as the defect headed "No Overflow Provision", 17 and 18 in the Capaldi report on the following conditions: 1. the rectification works are undertaken in accordance with the scope of works in the Capaldi report; 2. the rectification works are completed by 18 October 2021; 1. the proceedings are otherwise dismissed; 2. if any party seeks a costs order, the applicant for costs (the costs applicant) must file and serve a costs application, including submissions limited to five pages and any evidence in support, within 14 days of the date of the orders in these reasons for decision; 3. any respondent to the costs application is to file and serve any submissions limited to five pages and any evidence in reply within 14 days thereafter; 4. the costs applicant is to file any submissions limited to three pages in reply within 14 days after receipt of the submissions and any evidence of the respondent to the costs application.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2021