Plaintiff v Defendant

Plaintiff v Defendant - [2015] VSC 110 - VSC 2015 case summary — Zoe

[6]

Two sets of plans were prepared by the Engineer for a waffle pod slab for the House. The first of these ("the First Plan") was in existence at the time the Contract was signed and the other ("the Second Plan") was prepared shortly afterwards. They are detailed below. The Owner argues that it was the First Plan that the Builder was to follow but the Builder denies that and says that it was to follow the Second Plan.
When the slab was constructed, purportedly in accordance with the Second Plan, it was found to be much higher than the Second Plan had directed. The effect of that, which was immediately apparent, was that the edges of the slab were well above ground level and so would be unsightly. After the Owner complained about the excess height the slab was surveyed and it was found to have a datum level of 100.690 instead of 100.485 as required by both the architectural plans and also by the Second Plan. In other words, it was 205mm too high.
After some negotiations an agreement was reached that the Builder would deduct $7,500 off the price of the House and import soil onto the site following completion in order to bring the external landscape level up to that of the brick rebate on the sides of the slab. The construction of the House was then completed and an occupancy permit for the House was issued on 10 July 2007.
The Owner moved in on 10 October 2007. He said that within two months of moving in he noticed cracks. He said these became more severe during the following twelve months and the front bedroom window would not open. He complained to the Builder and some windows were re-fitted and a section of wall in the front bedroom was re-plastered.
The Owner moved interstate to work in 2009 and the House was tenanted. He said that the Tenants complained about cracking and the front door jamming. He said that the front door was adjusted once by the Builder and that he paid a carpenter himself to repair it on several other occasions. The problems became worse with windows not opening and large cracks opening up in the plasterwork.
Following further complaints by the Owner, the Builder had the drainage system inspected to see if there were any plumbing leaks. There were none detected. It then wrote to the Owner stating that the problems were due to "edge heave". The letter claimed that this was no fault of the Builder but due to the landscaping undertaken by the Owner and to excessive garden watering.
The Owner engaged a building and engineering expert, Mr Cross, who inspected the House in October 2011. After obtaining a survey of internal levels in the House and an investigation of the soil upon which it had been constructed, Mr Cross concluded that:

[258]

6.4 CONSTRUCTION OF SLABS

6.4.1 General The construction of slab footing systems including slab-on-ground, footing slab, stiffened slab with deep edge beam, stiffened raft and waffle raft shall comply with the requirements of Section 5 and of this Clause. For Class H and E sites additional requirements are given in Clause 6.6.

The methods given for sloping sites assume that landslip is not a design consideration. Where landslip is possible the design shall be given individual consideration.

6.4.2 Filling Filling used in the construction of a slab, except where the slab is suspended, shall consist of controlled fill or rolled fill as follows:

(a) Controlled fill is material that has been placed and compacted in layers by compaction equipment within a defined moisture range to a defined density requirement. Except as provided below, controlled fill shall be placed in accordance with AS 3798.

Sand fill up to 0.8 m deep, well compacted in not more than 0.3 m thick layers by a vibrating plate or vibrating roller, shall be deemed to comply with this requirement. A satisfactory test for sand fill not containing gravel sized material is the achievement of a blow count of 7 or more per 0.3 m using the penetrometer test described in AS 1289.F3.3.

Non-sand fill up to 0.4 m deep, well compacted in not more than 0.15 m layers by a mechanical roller, shall be deemed to comply with this requirement. Clay fill shall be moist during compaction.

(b) Rolled fill consists of material compacted in layers by repeated rolling with an excavator. Rolled fill shall not exceed 0.6 m compacted in layers not more than 0.3 m thick for sand material or 0.3 m compacted in layers not more than 0.15 m thick for other material.

NOTE: The depths of fill given in this Clause are the depths measured after compaction.

6.4.3 Foundation for Slabs The foundation shall satisfy the following:

(a) Topsoil containing grass roots or other organic material shall be removed from the area on which the slab is to rest.

(b) On sites subject to wind or water erosion, the foundation of the edge beam or footing shall be protected.

(c) The slab, including edge and internal beams, shall be founded as follows:

(i) Slab panels, edge beams, internal beams and load support thickenings are to be supported on natural soil with an allowable bearing pressure not less than 50 kPa.

(ii) Slab panels, internal beams and load support thickenings are to be founded on controlled or rolled fill compacted in accordance with Clause 6.4.2.

(iii) Edge beams shall not be founded on rolled fill. Edge beams may be founded on controlled fill compacted in accordance with Clause 6.4.2(a). This fill shall continue past the edge of the building by at least 1 m and shall be retained or battered beyond this point by a slope not steeper than two horizontal to one vertical.

(iv) Edge footings not tied to a footing slab (see Figures 3.2 and 3.3(b)) shall be founded in natural soil with an allowable bearing pressure of 100 kPa or may be founded on controlled sand fill on a Class A or S site.

(d) The base of edge beams and footings may be stepped or sloped not more than 1 in 10.

(e) A blinding layer of sand is not required but where used shall comply with Clause 6.4.2 if deeper than 100 mm.

6.4.4 Treatment of sloping sites The treatment of slabs on cut-and-fill sloping sites shall comply with one of the following methods:

(a) The site shall be cut and filled and the fill (see Figures 6.1(a) and 6.1(b)) shall continue past the edge of the house by at least 1 m and shall be retained or battered beyond this point by a slope protected from erosion and not steeper than two horizontal to one vertical. The interior of the slab shall be founded on compacted material, satisfying Clause 6.4.3(c). The edge beams shall be founded on natural soil or on controlled fill or may be supported by piers designed in accordance with engineering principles.

(b) The site shall be cut and filled with fill material that satisfies Clause 6.4.3(c) and the fill shall be retained at the edge in accordance with Clause 6.4.5 as shown in Figure 6.1(c).

(c) The slab and beams may be stepped in combination with methods in Items (a) or (b) above to reduce the extent of excavation or fill. At the change in elevation, the step shall comply with the following:

(i) The ground behind the step shall be properly drained and the slab shall be waterproofed.

(ii) Care shall be taken that Clause 5.3.4 is satisfied.

(iii) Steps in stiffened rafts shall be designed to preserve the structural continuity of the system.

(iv) Steps in slabs for Class A and Class S sites shall comply with Figure 6.2 where the height of the step is less than 1.2 m. The masonry retaining wall shown in Figure 6.2 shall comply with Clause 6.4.5(b). Steps in beams shall comply with the principles of Clause 5.4.3.

[306]

What we think at the end of the day in this case is that the level of damage that was sustained by this house was very modest. The work that was done to repair it, when it was repaired by Metricon, ran into only a few thousand dollars. When inspections were done as to the state of the premises at a time shortly prior to the VCAT hearing, there was some evidence of minor cracking, internal and external, and some debate about some sticking doors and windows.

There was debate about it, our version was in fact windows weren't opening simply because there was a lot of sand and grit in the carriages of the windows. There was also evidence that this property had, for a period prior to the VCAT case where it was vacant, been let and that there was a condition report prepared. The tenants had not complained about anything except the stuck front door and that this was property was absolutely liveable. There was no suggestion whatsoever that it was unsafe or likely to become unsafe.

So the level of damage we say was absolutely modest and what happened was that the tribunal said, because I don't accept that there's been a stabilisation of the situation and because there is a prospect of, to use the tribunal's words - perhaps I will go to the reasons, Your Honour, and that's the easiest way to do this, in short compass. Reasonableness was dealt with at page 45, paragraph 221 and following.

In 225, you will see about six lines down the tribunal says: "The house requires constant maintenance... problem with assessing damages in some other way. How do I know what the Owner will have to pay to maintain this building over and above the normal maintenance as a result of its defective foundation for the period of its expected life", but in 223 the tribunal says: "This is not a situation where one can say that although work is not in conformity with the contract, it is nonetheless serviceable. The house will require constant and ongoing repair." Perhaps one last reference, at 238, Your Honour, having gone through a series of factors put by the Owner: "There is some substance to all of these matters but I do not believe that the house was in a dangerous condition. I am satisfied that despite its defects, it could have been rented by the Owner, albeit at a reduced rate."

There was some debate about that rate and I think it was $290 to $310, a loss of $10 or $20 a week. So there's some conflicting material in the reasons about the state of repair of the house but fundamentally what Mr Walker did was he said, I don't know when the house is going to stop moving. I believe that it will require constant maintenance over and above normal maintenance. It will continue for the life of the building and this is likely because of the defective foundation.

It's very difficult to challenge any of these findings, in fact it's not possible to challenge these findings of fact before Your Honour. That was the case put by our learned friends and it was accepted by the tribunal. The fact that a house that's only losing a little bit of rent and it's got a few cracks, et cetera, needs to be pulled down at the massive cost that was ultimately awarded, we would say is quite simply disproportionate but there was the issue that there was uncertainty about the resolution of the movement and so again, we say if the position is, peeling all of this back, that the tribunal had found that there was no fill introduced, that there was no failure to compact, it would have then had to look pretty carefully at this issue of what caused the movement in the soils and what caused the slab to heave. Was the return of the slab heave recovery and is it now likely that in the absence of some other drought or other type event, that we have reached the point of effective equilibrium here, and therefore that it was not likely that there be any substantial movement into the future, perhaps that minor risk of movement could not be attributable to the builder but was really something attributable just to the natural soils, therefore a proper award is to make some allowance for some maintenance in the future but otherwise, it is fit for purpose. Fit for purpose was a ground argued by our learned friends as one of their points of claim, but not found by the tribunal. So it's not suggested the house wasn't fit for purpose and yet it had to be demolished.[131]

[340]

(i) The plaintiff and the defendant signed the Building Contract on 1 November 2006;

(ii) The Building Contract referred to the Building Works, namely the construction of a dwelling house as set out in the Specifications and Plans, and referred to eight sheets of engineering design prepared by Structural Works Engineering for the Builder [AB 160];

(iii) There were eight pages prepared by the Engineer, Structural Works Engineering, which were appended to the Contract, but those eight pages were not in the nature of engineering designs, but were entitled, Geotechnical Site Investigation and Footing Recommendations dated 26 September 2006, in the nature of soil tests and recommendations as to the construction of footings [AB 206-213]. Each of these eight pages was initialled by the parties. The Geotechnical Site Investigation and Footing Recommendations, recommended alternative footing systems, depending on site conditions and related matters. The alternative footing design solutions were a rigid waffle footing system or a waffle footing system suspended on piers/piles;

(iv) Prior to the Building Contract being executed, the Engineer, Structural Works prepared a set of plans for a waffle pod slab supported by 38 boxed concrete piers [the First Plan]. The date of the First Plan is 19 October 2006, about two days before the signing of the Contract. The First Plan was not initialled by the parties nor attached to the Building Contract;

(v) The Engineer, Structural Works also prepared a different set of plans for a rigid waffle slab, which did not have 38 boxed concrete piers [the Second Plan] which was certified on 8 November 2006 (under the supervision of Structural Engineer Mr Yap) and which was endorsed by the Relevant Building Surveyor on 13 November 2006;

(vi) The slab at the new dwelling was constructed, purportedly in accordance with the Second Plan;

(vii) By reference to the signed Building Contract, and attached documents initialled by the parties, it appeared that the parties intended that the signed and initialled documents were the only documents which the parties intended to record their agreement;

(viii) The signed and initialled contract documents, contained the Geotechnical Investigation and Footing Recommendations which contemplated alternative footing designs and page one of the contract specification provided that the concrete slab of the dwelling was to be constructed in accordance with AS 2870.1-1996 and in accordance with Engineer's Design;

(ix) There was no specific design for the dwelling slab in the contract documentation, and indeed the contract documentation contained the Geotechnical Investigation and Footing Recommendation which mentioned two alternative design solutions for the required concrete slab;

(x) The signed and initialled contract documents did not reflect the intent of the parties to incorporate the First Plan which included 38 boxed concrete piers, which was a design that in fact Mr Hooper had never seen nor considered;

(xi) Because the Building Contract did not include an engineering design of the contemplated concrete slab and because the construction of the planned dwelling necessitated an engineering design in that regard, and it was common ground that the Builder was obliged to provide the design, the Tribunal discovered an implied term of the Building Contract that the Builder would obtain engineering designs suitable for the construction that were consistent with the contract documents;

(xii) The Tribunal emphasised that the Building Contract provided some flexibility concerning the engineering design to be adopted for the required concrete slab. The Tribunal referred to the alternative designs contemplated in the Geotechnical Site Investigation and Footings Recommendations provided by the Engineer, Structural Works which referred to alternative waffle slab designs, and the provisions of clauses 2.1 and 2.2 of the Specification, which referred to either a raft or a waffle slab;

(xiii) The Tribunal also made reference to the following background and context, which appeared to explain why the First Plan was not ultimately adopted.

(xiv) A note on the First Plan states:

At a glance

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Judgment (429 paragraphs)

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