Hicks v Queensland Building and Construction Commission & M & R Hudson Plumbing Pty Ltd [2022] QCAT 103

Australian Standard 3740-2010; Waterproofing of Domestic Wet Areas s 3.3, s 3.4 and Appendix B

Australian Standard 3958.1-2007; Ceramic Tiles - Guide to installation of Ceramic Tiles Appendix D, sections D1 and D3

• [1] Janine Hicks has applied to the Tribunal for review of the decision of the Queensland Building and Construction Commission (QBCC) on internal review made 16 September 2019 not to issue a direction to rectify to M&R Hudson Plumbing Pty Ltd (Hudson) in respect of asserted defective bathroom renovation works.

• [2] On about 19 October 2018 Hudson provided by email a bathroom renovation quotation for $17,275.00 inclusive of GST together with terms and conditions of engagement for the bathroom renovation at 44 Sherrington Street, Alexandra Hills. On 13 December 2018 Ms Hicks received a detailed estimate of cost, $17,275.00. She paid a deposit of $4336.00 on 17 December 2018 and the Queensland Home Warranty scheme cover of $292.15 on 18 December 2018.
• [3] Works were to commence on 25 March 2019. The bathroom renovation involved amongst other things floor tiling and tiling of four walls. Ms Hicks sourced from Discount Tile Warehouse and supplied to site tiles as follows

(a) Calacatta Natural Gloss Porcelain Tiles 300mm x 600mm

(b) Matang Charcoal Gloss Tiles 400mm x 400mm

(c) Wall White Tiles 300mm x 600mm

However, the Callacatta Natural Gloss Tiles were in fact 297mm x 600mm.

• [4] The bathroom renovation work commenced on 25 March 2019 with the strip out followed by rough in, electrical work, sheeting of walls, waterproofing then tiling which according to Hudson was completed in the period 2 April 2019 to 5 April 2019. That accords with Ms Hicks statement that 7 to 10 days after work commenced on 25 March 2019 she came home and immediately noticed that the grout lines of the wall tiles laid that day did not align with the grout line for the tiles on the side wall, i.e. the horizontal grout lines in each wall did not line up with each other.
• [5] Ms Hicks indicated in her affidavit filed 10 February 2020 she contacted Mr Hudson and he came over that same day or the next day. Mr Hudson indicated he could not attend immediately. He was not able to attend site until 9 April 2019. Either way a meeting took place. Versions differ.
• [6] Ms Hicks said she told Mr Hudson his tiler should have stopped work once he realised the tiles on each wall were of a different size. She said Mr Hudson told her the tiler should have stopped and phoned him adding however he could live with the tiles as installed. Ms Hicks said she asked if the tiles could be taken off and relaid on the side wall of the shower to achieve alignment but Mr Hudson said the tiles had already set and the whole wall and sheeting would need to be taken down and redone at Ms Hicks cost because Ms Hicks had supplied he tiles. She said Mr Hudson told her she had to make a decision quickly because other trades were lined up to complete the project.
• [7] Mr Hudson in his statement filed 8 December 2020 said by the time he attended site on 9 April 2019 the tiles had cured for over 48 hours explaining that tiles could not be removed without having to remove the whole wall and sheeting as well then put it back up and re-waterproof.
• [8] He said Ms Hicks wanted that to occur but that she would have to pay for work already done and additional work as she supplied the tiles that were the wrong dimensions than that stated on the box. He said he did not state that the tiler should have stopped. Shortly after the meeting Ms Hicks phone the QBCC and explained the situation. She said she was advised by the person at the QBCC that the builder should finish the renovation and she should pay the full amount to the builder because once that had happened the QBCC could then help her to get the problem resolved and have the defective work remedied.
• [9] Once the renovation was complete the QBCC could send out an inspector to determine whether rectification was required. Based on the advice from the QBCC Ms Hicks felt she had little choice but to continue with the renovation works. That occurred and Hudson was paid in full. Subsequently on 30 May 2019 Ms Hicks complained to the QBCC about what she considered were defective works in relation to the bathroom renovation.
• [10] There were 4 complaints 2 of which are relevant here, namely

(a) Feature tile wall does not line up with other walls in the grout line;

(b) Slope of shower floor - water pools towards the glass screen after shower and water goes over the strip in-front of shower when showering;

• [11] The QBCC dispatched building inspector Geoffrey Barrett to carry out a visual inspection and report. Mr Barrett attended site on 5 August 2019. In his report of 7 August 2019 he said he noticed misaligned grout lines but considered that to be a contractual matter between the parties and not defective building work.
• [12] With respect to the shower floor he used a digital level to identify an approximate 1:100 mm fall from the front of the shower opening to the strip drain. He conducted a water test by running the shower and noted that water drained away except for residual water tension.
• [13] He considered there was insufficient evidence to reveal any obvious defective construction practice by Hudson. An internal review was sought and an internal review decision notice dated 16 September 2019 was then issued by the QBCC.
• [14] With respect to the tile misalignment the decision notice referenced the Commissions Standards & Tolerance Guide which at part 11.3 states

Floor and wall tiling where the owner supplies the tiles for laying by contractor

Within 12 months from completion faulty installation of tiles is defective if caused by the contractor's workmanship. Any fault in the tiles is the responsibility of the owner - except where faults in the tiles should have been apparent to the contractor at the time of laying

I find that the fault in the tiles being misaligned and the size variance can be attributed as the responsibility of the applicant on the basis that they purchased the tiles... are not defective building works.

• [16] With respect to slope of shower floor the decision notice referenced the Building Code of Australia and Australian Standard 3740-2010 Waterproofing of Domestic Wet Areas (the standard) which at section 3.3 states that

Falls in floor finishes shall allow all surface water to drain without ponding except for residual water remaining due to surface tension. For general bathroom floor area the minimum fall to the waste shall be 1:100

• [17] Mr Barrett's use of digital level to determine 1:100 mm fall from the front of the shower opening to the strip drain was accepted as compliance with the standard it being noted there was no evidence to suggest otherwise. Additionally the decision notice referred to Appendix B of the standard which provides that the primary consideration for falls in floor finishes is to ensure water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements
• [18] The decision notice stated

The applicant has not provided any information or evidence to suggest that the water that remains on the finished floor is of a manner that adversely affects the health or amenity of the occupants or deteriorates building elements

• [19] That being so no direction to rectify was issued.

• [20] Ms Hicks confirmed her affidavit filed 10 February 2020. Two 10 by 15 cm photos were produced depicting a close up of the tile misalignment and a view of asserted water pooling in the shower recess taken from some few meters away and some 8 to 10 hours after showering. She stated there was never any discussion at the time with the tiler.

• [21] He confirmed his statement filed 27 November 2020. In it he said the Australian Standard relevant to the tile misalignment issue was AS3958.1-2007 Ceramic Tiles - Guide to the Installation of Ceramic Tiles. He was of the view that the tiling was installed in a tradesperson like manner and to the minimum requirements of AS3958.1 in that the grout lines were straight, parallel to the recommended grout width and with no lipping evident.
• [22] He considered the wording in the Commissions Standards & Tolerance Guide when referring to faults in the tiles that should have been apparent to the contractor at the time of laying related to visual effect within the tiles such as chipped edges, shrinkage cracks, twists in the tiles or irregular shaped tiles. The irregular tile size was a contractual matter. In his statement Mr Barrett referred to the Commissions Standards & Tolerance Guide part 11.7

11.7 Uneven Tiling

Within 12 months of completion of the works except where tiles have distortions inherent in the manufacture, tiling is defective if it has joints that are not uniform, of even width aligned or in the same plane

• [23] He found the tiles purchased by Ms Hicks although of irregular size, to be of good quality resulting in square and parallel grout lines throughout.
• [24] Mr Barrett went on to acknowledge Ms Hicks assertion that Hudson (its tiler) should have confirmed the irregular size of the feature tiles and the misaligned grout lines with her before or at the time the tiles were laid. But he said on multiple occasions he had noted misaligned grout lines associated with feature walls. At inspection he noted to Ms Hicks that the tiles did not form part of the Commissions complaint process as the tile installation had been accepted by her.
• [25] He went on to say in his experience misaligned grout tiles due to irregular size to be an acceptable industry practice and as such a contractual matter.
• [26] In cross-examination by Mr Wilkins for Ms Hicks it became apparent there was a contradiction in Mr Barrett's statement in that at paragraph 39 he stated at the time of inspection he noted to Ms Hicks that the tiles did not form part of the Commissions complaint process as the tiles installed had been accepted by her. However, at paragraph 30 Mr Barrett stated that following the inspection he contacted Mr Hudson about what discussions were had during the course of construction with Mr Hudson, advising him that Ms Hicks was not happy with the grout lines but had accepted them and agreed for him to proceed with the works. That was not so. Mr Barrett could not recall specifically putting it to Ms Hicks that she accepted the misaligned tiles at the time of his inspection.
• [27] With respect to the slope of the shower floor and water over the strip in front of the shower Mr Barrett considered Australian Standard 3740-2010 Waterproofing of Domestic Wet Areas sections 3.3 and 3.4 and Appendix B as applicable. Section 3.3 states:

Where required falls in floor finishes shall allow all surface water to drain without ponding except for residual water remaining due to surface tension. For general bathroom floor area the minimum fall to the waste shall be 1:100.

Falls in shower floors shall be sufficient to prevent

(a) surface water from being retained on the shower floor (except for residual water remaining due to surface tension); and

(b) water from discharging outside the shower area

The primary consideration for falls in floor finishes is to ensure water does not remain on the finished floor in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements. Falls in floor finishes should ensure water exits the area at the floor waste and ... water should not pond on the floor, with the exception of residual water remaining due to surface tension.

Where falls flatter than 1:100 are proposed, the effectiveness of the floor drainage should be confirmed to ensure the primary consideration given in B1 has been met

• [31] Mr Barrett also considered AS3958.1 Appendix D paragraph D3 which states:

Where falls steeper than 1:100 are not achieved the effectiveness of the floor drainage should be confirmed to ensure it meets the primary consideration set down in paragraph D1, which in turn states:

Water should not pond on the floor with the exception of residual water remaining due to surface tension

• [32] Mr Barrett reiterated that which was contained in his report namely that during his inspection he conducted a water test by way of running the shower and noted that water drained to the floor waste (strip drain) except for residual water remaining due to surface tension.
• [33] His statement attached 4 photos showing water on the shower floor at the time of his inspection. In addition he said he reviewed the photograph of the shower recess floor taken the night before his inspection as provided by Ms Hicks. He considered the water residue to be minor and consistent with surface tension
• [34] In particular he noted that the residual water or surface tension in Ms Hicks photo far exceeded the water he noted at the time of his inspection. Nor was there any lippage to speak of.
• [35] Mr Barrett reiterated that using his leveling device there was a 10 mm drop from the front of the shower to the front of the strip drain, a fall of 1:100 mm front to back.
• [36] Mr Barrett's statement annexed inspection photos taken to the left hand side and the right hand side of the strip drain. He further stated measurements at inspection

Found 3 mm of fall from the right side shower wall to the shower screen near the strip drain indicating a cross fall of 1:300 from right to left.

• [37] His statement annexed inspection photos of the cross fall noted near the strip drain. He stated the cross fall was not mentioned in his initial inspection report for the reason he considered it insignificant, the cross fall itself not affecting the operation of the shower floor from draining to the floor waste (strip drain).
• [38] In cross-examination Mr Barrett said when running the shower at inspection no water came over the strip at the front of the shower. He said Ms Hicks photo of asserted water pooling was surface tension and that

Its typical when you get to your waste point that waste point only has to be half a millimetre higher than the tile and you get really good surface tension there.

• [39] While he accepted water pooling could be caused by an absence of a fall from the shower screen to the strip drain, such was not the case here. When asked where he said there was any fall from the shower screen to the strip drain Mr Barrett said the water test proved it. Though he did not measure it (fall shower screen to strip drain) the water tells the truth. He did not agree there was water pooling, only surface tension

• [40] Mr Hudson said he did a water test running the shower for several minutes then turning it off. All water drained away. He confirmed he did not supply the tiles. In cross examination by Mr Ensbey for QBCC he indicated his tiler would only have realised that tiles were not going to line up was when he would have got close to the feature wall and the grout lines could not line up because of different sized tiles. Mr Hudson was asked what instructions if any where there by Ms Hicks in terms of grout line for the tiling work to be undertaken. He said none at all.

• [41] The issue here is whether the renovation work as referred to in Ms Hicks two complaints is defective or incomplete such as to warrant a direction to rectify

• [42] The wall tiling was said to be defective because grout lines misalign. That according to Ms Hicks was Hudson's (tilers) responsibility because the fault in the tiles should have been observable at the time of laying. Quite apart from the fact that a 3 mm discrepancy between actual size 297 mm and represented as sold size 300 mm is infinitesimal and clearly would not have been apparent to the naked eye until a number of tile courses were laid, there is also the use of the words "any fault in the tiles".
• [43] There was no evidence produced of any fault in the tiles. No evidence of chipped edges, shrinkage cracks, twists in the tiles or irregular shaped tiles. Rather it was a case of marginal misrepresentation of the tile size on the box or packaging apropos the actual tile size.
• [44] At best, all that has been established is a minimal loss of aesthetic appeal at close quarters. Nor can it be said the installation of tiles was defective. The tiler's workmanship according to Mr Barrett complied with AS3958.1-2007. Grout lines were straight, parallel to the recommended grout width and with no lipping evident. That assessment was not challenged with Mr Barrett stating misalignment due to irregular tile size was an acceptable industry practice and as such a contractual matter.
• [45] It was suggested that Ms Hicks relied on Mr Hudson telling her she was contractually bound and obliged to pay for work done; that if she had known she was not contractually bound (absence of written contract) she would not have instructed Mr Hudson to continue but demanded he redo the tiling work without further charge; that Mr Hudson's representation was misleading.
• [46] That may well have been so but as at 9 April 2019 the tiling work was complete and most likely cured. The same issue would have arisen namely did the misalignment amount to defective building work.
• [47] It was also suggested the Commission made a mistake in accepting incorrectly that Ms Hicks agreed to continuation of works and treating that as a relevant circumstance pursuant to section 72 (3) of the QBCC Act (consideration of the terms of the contract for carrying out the building work). But that mistake as such was only one element in the totality of the Commissions consideration of whether the misalignment amounted to defective building work.
• [48] Upon complaint the Commission was required to and did consider its own Standards and Tolerance guide which itself references compliance with AS3958.1 - Ceramic Tiles - Guide to the installation of ceramic tiles. Irrespective of what the Commission thought Ms Hicks had agreed to she, Ms Hicks, was still entitled to seek review.
• [49] The Commission's decision makes it clear that it considered there was no fault in the tiles nor was installation defective. The Tribunal can not see any basis here to disturb that decision.

• [50] Firstly there was an assertion that when showering water came over the strip in front of the shower. Mr Barrett in evidence stated that when he ran the shower no water came over the strip in front of the shower. Apart from Ms Hicks assertion there was no evidence for instance photographic evidence to support the assertion. There is no basis here to find the strip in front of the shower malfunctioned or was in any way defective.
• [51] Secondly water pooling towards the glass screen after showering. At inspection Mr Barrett utilizing a digital level measured a 1:100 fall front of the shower to the strip drain. He measured a 1:300 mm fall right to left, shower wall to shower screen near the strip drain (when looking into the shower recess). Both measurements were supported by clear photos before the Tribunal.
• [52] Mr Barrett did not measure shower screen to strip drain which it was contended would have measured no fall or fall to the shower screen resulting in pooling. Mr Barrett did not and could not comment on what fall if any there might have been shower screen to strip drain. Rather he said his water test (running the shower) proved it, that is, water did not pool and drained away; that any residual water was surface tension only.
• [53] That assessment was in effect confirmed by Mr Hudson who said when he ran the shower for several minutes all water drained away. The absence of a minor measurement does not render the measurements so taken and the testing of the shower (by running it) of less weight than otherwise to be afforded to them.
• [54] The running of the shower and discerning what water remained on the shower floor is the acid test here. Ms Hicks 10x15 cm small photo depicting asserted water pooling in the shower recess taken some few meters away and some 8 to 10 hours post showering is unconvincing. The asserted water pooling is depicted in a distorted light. If taken at close range the depiction may well have been different. Whether any water remained on the shower floor hours after showering could well be affected by the immediate environment for example ventilation and temperature.
• [55] There was a suggestion that if the photo was considered insufficient to support a finding that the tile fall was defective then the Commission's decision ought to be set aside and the matter returned for reconsideration. The Tribunal does not agree. After a considerable length of time, some 2 years this application finally came before the Tribunal. There was more than ample opportunity to produce clear detailed definitive photographic evidence. Failing to do so does not afford opportunity for reconsideration.
• [56] Finally, Appendix B paragraph B1 to AS3740-2010 states the primary consideration for falls in floor finishes is to ensure water does not remain on finished floors in a manner that can adversely affect the health or amenity of the occupants or deteriorate building elements. Floors in floor finishes should ensure water exits the area at the floor waste. There was no evidence that the health or amenity of Ms Hicks or others was adversely affected.
• [57] Then paragraph B3 states where falls flatter than 1:100 are proposed the effectiveness of the floor drainage should be confirmed to ensure the primary consideration given in B1 has been met. Confirmation here, even assuming the fall between the shower screen and the strip drain was flatter than 1:100 or even less, was achieved by running, testing the shower and discerning on the evidence of Mr Barrett and Mr Hudson there was no water pooling.
• [58] Additionally AS3958.1 Appendix D paragraph D3 states where falls steeper than 1:100 are not achieved the effectiveness of the floor drainage should be confirmed to ensure it meets the primary consideration set down in paragraph D1 which is that the water should not pond on the floor with the exception of residual water remaining due to surface tension. The tribunal is satisfied that here the only residual water remaining being due to surface tension the effectiveness of floor drainage shower screen to strip drain is confirmed. The Tribunal cannot see any basis here to disturb the Commission's decision

• [59] Section 87 of the QBCC Act provides that a person affected by a reviewable decision may apply to the Tribunal for a review of the decision. By section 86 (1) (e) a "reviewable decision" includes "a decision to give a direction to rectify or remedy or not to give the direction".
• [60] The Tribunals function on review is to

(a) Confirm or amend the Commissions decision;

(b) Set aside the Commissions decision and substitute its own decision;

(c) Set aside the Commissions decision and return the matter for reconsideration.

• [61] The decision of the Queensland Building and Construction Commission of 16 September 2019 to not issue a direction to rectify is confirmed.