Scuderi v Corfu Pools Pty Limited

APPLICANTS' CLAIM

1. The applicants claim that the respondent has breached section 18B(1)(a) of the Home Building Act NSW 1989 (the Home Building Act), which provides a statutory warranty that work will be done in a proper and workmanlike manner and in accordance with the plans and specifications of the contract. The applicants claim the Contract Works were defective in part and the applicants' expert (Mr Radovancevic in his report at Tab 8 of the applicants' documents) identifies the following defects: 1. 90% of the tiles in the pool coping and surrounds are drummy; 2. Efflorescence on the tiles of the pool water line; 3. There are hairline cracks in the surface of some of the granite tiles; 4. There are deviations in thickness of grout between the granite tiles.
2. In their written submissions at tab 1 of their folder of documents dated 15 April 2019 the applicants confirm that they seek a money order in the amount of $36,665.15 being the costs to have a tiler rectify the claimed defective work.
3. The applicants have also sought costs associated with the proceedings and confirmed those costs at the hearing and in their written submissions dated 3 July 2019 as being: 1. Skip bin $415 2. Structerre site visit $660 3. Structerre report $660 4. Structerre further report for NCAT $440 5. Techtile report $2090 6. Officeworks printing costs, photos etc $361.84 7. Structerre expert NCAT attendance of 3.5 hours $770 8. Structerre travel time to hearing of 1.5 hours $330 9. Structerre additional report of video evidence $330
4. The applicants rely on an expert report of Structerre Consulting Engineers at Tab 8 dated 25 February 2019 (the Structerre Report). The authors of that report are Mr Cai and Mr Radovancevic who inspected the site on 5 December 2018 and have provided the following opinions based on their observations and expertise: 1. Cracks in the surface of the granite tiles were due to a long term drying shrinkage of the concrete slab and lack of movement joints at locations where stress raisers would be expected; 2. The delamination of the granite tiles from the substrate of the pool coping and surrounding area has been caused by possible water ingress into the bedding material which has weakened the bond over time, causing the tiles to de-bond; also the colder months have caused concrete and cementitious substrates to contract, whilst tiles do not contract - the opposite occurs in the warmer months, but the difference in movements between the materials can stress the adhesion which then causes the tiles to break free or delaminate; 3. Defective grouting and joints in the pool coping and surrounding tiles is due to the grout and joints not being installed according to the relevant Australian standard; 4. Efflorescence in the pool tiles has arisen from possible insufficient or missing waterproofing which has allowed water ingress through the tiles and grout; also inappropriate materials might have been used for tiling in a wet environment.
5. The conclusion of the Stucterre Report (at page 45) states that the tiles to the whole area have been installed in a defective way. The authors state: "We are of the opinion that the installation of the tile areas were found to be in a below average condition for the age of the structure and in need of maintenance, consisting of tap testing all tiles to determine whether greater than 20% of tiles sound hollow as per AS 3958.1 "Clause 5.4.7 Bonding". Where more than 20% of tiles are found to be hollow-sounding and/or loose, de-bonded or cracked/damaged, these tiles are to be carefully removed and reinstated using an appropriate bonding agent as per Australian Standards by a licenced contractor."
6. The applicants also rely on a report from Techtile Consulting dated 27 March 2019 who was engaged to inspect the external granite paving installed as the pool coping and pool surrounds and to determine if the installation was done in accordance with relevant standards. The author of that report (Mr Repeti) was also asked to comment on any recommendations for rectification of the defects he identified. Following a "tap test" Mr Repeti estimated that approximately 19 of the 21 pool coping pieces were drummy and that about 60% of the pool surrounds were drummy. Mr Repeti notes: 1. That that there were areas where the adhesive had been spot fixed, which can result in poor adhesive coverage leading to drumminess; 2. At least some areas of tiling had not been "back buttered" being a technique that achieves an increased level of adhesiveness, coverage should be at least 90%; 3. The actual coverage is estimated at between 40-50%; 4. There was some efflorescence occurring at the waterline of the pool tiling and also in some of the grout joints - this is a result of water that penetrates the grout joints/stone during cleaning or during rainfall; the water then has to evaporate and the evaporated water contains elements of calcium hydroxide which are present in the sand and cement bedding and tile adhesive; the calcium hydroxide gets left behind as a white powder residue when the moisture evaporates; it then reacts with carbon dioxide in the atmosphere and turns into calcium carbonate which is difficult to remove; 5. He observed expansion joints installed to 3 sides between the pool coping and the surrounding tiling; 6. He says he did not observe any intermittent expansion joints installed within the pool coping; such joints are constructed to accommodate thermal and dynamic movements which occur within a tiling system; 7. As the pool coping was constructed using black granite tiles it would undergo a high level of thermal activity; 8. Good practice would have been to install intermittent expansion joints at intervals of 3m-4.5m to assist in accommodating thermal expansion; 9. He observed grout separation to some of the grouting between the pool coping which indicated movement within the coping stone that had not been accommodated.
7. Mr Rideti provides the following opinions at the end of his report: 1. The stone to the pool coping and surrounds have not been installed using due care and skill in breach of section 18B of the Home Building Act; 2. The pool coping is 90% drummy which is well outside an acceptable level of drumminess; the reason for it is probably due to insufficient surface preparation having been undertaken prior to installation which has caused a separation between the coping and the concrete substrate; 3. The efflorescence is a result of moisture build up in the drummy pool coping which will worsen over time; 4. The coping has been installed with insufficient movement joints throughout; 5. The tiles have not been back buttered and the coverage of adhesive is less than the recommended 90% of AS 3958; 6. 60% of the pool surrounds are drummy; 7. The paving areas which have been rectified have substantially failed; 8. Removal and replacement of the pool coping and surrounding area is required to rectify the issues properly; localised repair work will not be sufficient; 9. There were areas where little to no adhesive transfer had occurred to the tiles during installation.
8. Mr Rideti attaches a Scott Schedule to his report which sets out his estimated costs to rectify the defects set out in his report: 1. Removal of pool coping and surrounds, prepare and re-install pool coping and surrounds - $23,760 plus GST (Mr Rideti states he is qualified to quote for this part of the works); this amount is amended in the applicants' submissions dated 3 July 2019 to $23,166 inclusive of GST; 2. Supply of new stone materials to tiling and pool coping $4710.15 (the quote is at page 5 of tab 9); 3. Removal and replacement of glass balustrade - $5500 (quote is at tab 9 page 4) 4. Supply of extra tiles that were used during rectification effort $1716 GST (quote is at tab 9 page 6).
9. In paragraph 20 of the applicants' written submissions, the applicants amend the total amount for the Scott Schedule to $35,092.31.
10. The applicants also have a quote in evidence at tab 9 for $26,449.50 which sets out the proposed rectification work by Quality Surface Solutions Pty Limited.
11. The applicants also rely on a short report of W Pappalardo from Aussietecture at tab 10 of their documents in which the author states: "Many of the recently laid tiles are drummy which means that they are not adhered properly to the substrate and the grout lines have cracks and pitting."
12. He also states: 1. There was no sign that the sub base had been prepared correctly by way of water-proofing; 2. There was no was sign that the tiles had been pre-sealed; 3. The tiles which have been supplied (Raven Black) appear to be free from flaws and defects; 4. The only way to rectify the problem is to pull the tiles up and start again.

RESPONDENT'S RESPONSE

1. The respondent disputes the Contract Works were defective. The statutory declaration of Mr Trifonas of the respondent (at tab 8 of the respondent's documents) sets out the respondent's defence to the claims, which I summarise as follows: 1. The respondent was engaged to construct a concrete swimming pool; construction commenced on 12 May 2016; the coping was completed in June 2016; 2. The respondent's paving contracting (Mr Digiorgio) had completed all silicone expansion joints around the swimming pool coping by the time of Mr Trifonas' inspection in late June 2016; 3. The interior of the pool was completed on about 1 August 2016; 4. The respondent then had to wait for the applicants to install their permanent pool fencing before filling the pool with water; 5. During this time the applicants engaged another contractor to construct the surrounding concrete slab around the pool; they then engaged the paving contractor Mr Digiorgio directly to install the pavers on top of that slab; 6. The respondent was not a party to or engaged or involved in the concrete slab nor installation of the pavers over that slab; 7. The respondent handed over the swimming pool to the applicants on about 17 October 2016 with all works completed in accordance with the Contract, plans, specifications and in accordance with Australasian Standards, BCA and the Home Building Act; 8. The respondent has built 1000s of swimming pools, and complete all work in compliance with all legislative requirements, the Home Building Act, the Australasian Standards and the BCA; 9. In April 2018 Mr Scuderi rang Mr Trifonas to say he was going to engage the paving contractor to attend the site and install some pavers; at no time during this conversation was there a mention of any issues with the work that had been done by the respondent under the Contract; 10. On 29 April 2018 Mr Digiorgio telephoned Mr Trifonas to inform him that he had attended the site to remove and replace a number of pavers which had been damaged by Mr Scuderi from using an acid wash; 11. In late November 2018 Mr Trifonas attended at the site at the request of the applicants and was shown some drummy pavers; 12. Mr Trifonas asked Mr Scuderi for a proper site meeting to be conducted so that the issues could be assessed, but the applicants did not agree to such a meeting; 13. The claimed defects are outside the warranty period of section 18E of the Home Building Act.
2. The respondent engaged M Wiesemes of Australian Pool Spa Consulting to prepare an expert report dated 24 May 2019 (at tab 6 of its documents) to respond to the applicants' claims, to investigate the site conditions and the standard of workmanship and completeness of the respondent's work under the Contract.
3. In paragraph 3.2 of the report Mr Wiesemes states as follows: 1. That he found almost all the tiles of the pool coping and deck to be drummy, except for the black granite tiles on the wall at the back of the pool; 2. No starter bars or expansion joints were installed when the concrete slab was laid next to the pool; he says it is imperative to install dowels and approximately 10mm wide rubber or similar joining material to the pool coping, retaining wall, area between the house and pool when adding an additional deck area to the pool; 3. Mr Wiesemes relies on image 3 at page 6-12 of the respondent's bundle which he states is a photo showing the pool coping with the pool deck area hard up against the coping without the correct expansion jointing; 4. The deck area which abuts the pool coping has been constructed with a black granite tile, with a minimal 2-3 mm joint where the deck area meets the pool coping, which he states is not wide enough due to the massive temperature movement of the black granite; 5. The pool coping is totally locked in and the tiles have nowhere to move other than in towards the pool interior which is why the tiles have become drummy and some grout joints have cracked.
4. Mr Wiesemes recommends that all tiles are removed, the correct expansion joints are installed to the deck area, as it has not been dowelled and the tiles should then be reinstalled providing a wider joint.
5. Based on information provided to him that the applicants had used an acid wash, Mr Wiesemes is of the opinion that:
6. the acid wash, which is not recommended by the manufacturer of the tiles uesed, has penetrated the tile joints and had a detrimental effect on the adhesion of the tiles; and
7. because the tiles on the coping and surrounding area are loose, water has penetrated through to the pool water line and caused efflorescence.
8. Mr Wiesemes relies on Image 6 at 6-12 to state his opinion that the reason why the only tiles which were not drummy, being on the top of the wall at the back of the pool, was because they were not locked in and therefore not affected by any outside pressure. He notes that this area was within the Contract.
9. The respondent also relies on the statutory declaration of Mr Digiorgio (at Tab 10 of the respondent's documents), who installed the Pool Paving and the Surrounding Paving. Mr Digiorgio states: 1. He has 30 years' experience installing stone pavers; 2. The respondent engaged him to install the pavers for the coping around the swimming pool - totalling a linear length of 22m; 3. Mr Digiorgio states that he installed silicone expansion joints every 2.4 lineal meters around the coping of the pool in accordance with the plan attached to his statutory declaration (which is at page 6-19 of the respondent's documents) and completed the Pool Paving for the respondent in June 2016; 4. In late August 2016 Mr Scuderi engaged Mr Digiorgio to install the Surrounding Pavers on top of a large concrete area which had been arranged by Mr Scuderi; 5. For the Surrounding Paving, Mr Digiorgio worked under the instruction of Mr Scuderi; 6. Before he started the Surrounding Paving, Mr Digiorgio saw that the concrete slab was butted up against the swimming pool structure and there were no control joints present; 7. Mr Digiorgio installed the pavers in this area and placed silicone expansion joints around the back of bullnose of the pool and in front of the concrete slab areas surrounding the pool coping; he says his work complied with Australian Standards; 8. Mr Scuderi asked Mr Digiorgio to return to the site in late April 2018 because he wanted some pavers re-done; at that meeting Mr Digiorgio noticed that a large number of pavers were burnt and damaged, when he asked Mr Scuderi what had happened to the pavers, Mr Scuderi said "I tried to clean the pavers with acid and burnt them"; 9. Mr Digiorgio returned to the site in May 2018 as arranged with Mr Scuderi to do the work of removing the damaged pavers and installing the replacement pavers which Mr Scuderi supplied; 10. On that same day, Mr Scuderi also asked Mr Digiorgio if he could remove and reinstall the damaged pavers under the right hand side boundary fence which were also burnt by acid; Mr Digiorgio told Mr Scuderi unless the fence could be removed, the pavers could not be replaced as the boundary fence was on top of the pavers; Mr Scuderi said not to worry about them and to leave them, which Mr Digiorgio did; 11. Mr Digiorgio was contacted again in November 2018 by Mr Scuderi to return to the site to re-install some pavers. When Mr Digiorgio attended the site he saw that Mr Scuderi had already removed the pavers in question, and which were part of the area that Mr Digiorgio had already done for Mr Scuderi directly; 12. Mr Digiorgio asked Mr Scuderi why he had removed these pavers; he answered that he had wanted to waterproof the area himself; Mr Digiorgio then installed the pavers as requested, but was asked by Mr Scuderi to not do the grouting as Mr Scuderi wanted to do that himself; 13. Mr Digiorgio said that depending on when the grouting would have been completed by Mr Scuderi, if it had not been done as required, water would enter the joints which could have led to a calcium build up.
10. The respondent also relies on a report of Mr Bennett from Civil & Structural Engineering Design Services Pty Limited dated 17 May 2018 at tab 7 of the respondent's documents. Mr Bennet was the pool engineer for this particular pool. He has read Mr Digiorgio's statement and states that he believes that the ongoing work of Mr Scuderi which is referred to in Mr Digiorgio's statement was a contributing factor to the problems with the tiles. Mr Bennett provides the following opinions in his report: 1. Expansion joints between concrete slabs are usually as wide as 10mm. Mr Bennett is of the opinion that if no expansion joints between the pool coping and the surrounding concrete were installed, then there is every chance that the pool coping tiles would be affected by those joints not being provided at the time Mr Scuderi did the concrete works; 2. The concrete surrounds and the Surrounding Paving that adjoin the pool were not the responsibility of the respondent and the applicants' consultant Structerre does not address this fact in their report of 25 February 2019; 3. The efflorescence has been caused by the pavers being drummy, which was caused by the owners' on-going work and grouting becoming pitted from excessive use of acid washing which allowed water to penetrate through the weakened joints, entering beneath the cementitious substrate and bleeding out to the pool tiling; 4. The issues with the pool are due to the concrete surrounds which was added by the applicants without proper expansion joints and not due to the workmanship of the respondent.
11. The respondent also relies on the statutory declaration of Ms Derra a director of the respondent who states in her response to the applicants' report by Mr Ripeti of Techtile Consulting (at tab 11) as follows : 1. The respondent did not construct the concrete slab; 2. The respondent did not do the Surrounding Paving work; 3. The applicants' expert was not aware that the respondent did not construct the concrete slab which surrounded the pool; 4. The respondent has not attended to do any repairs to the tiling as suggested in the Techtile Report; 5. The respondent installed and completed all required expansion joints in accordance with AS3958.1; 6. The respondent completed their scope of works in accordance with AS3958.1.
12. The respondent also relies on the statutory declaration of Ms Derra who provides a response to the applicants' report from Structerre Consulting (at tab 12): 1. References to the respondent returning to site in the Inspections/Observations section are incorrect, the paving contractor (Mr Digiorgio) returned to site as the paving contractor engaged by the applicants directly to do the Surrounding Paving and not in the capacity as the respondent's paver; 2. All silicone expansion joints around the swimming pool coping have been installed as per AS3958.1; 3. Grout and joints on the pool coping paving were completed according to the relevant Australian Standard; 4. The majority of the Structerre Consulting report refers to areas which were not completed by the respondent under the Contract and therefore are not the responsibility of the respondent; 5. The Structerre Consulting refers to the concrete slab areas having no movement joints; these were the responsibility of the applicants who were responsible for the concrete slab.
13. The respondent relies on a maintenance guide at tab 15 which provides that acidic cleaners must not be used on natural stones (especially Raven Black) as it may affect the colour and texture of the stone.
14. The respondent relies on a report of Newtech Stone & Marble which has been prepared according to photos and not actual inspection. The author of that report states that he believes the disintegration of the grout has been caused by a high concentration of acid wash.
15. The respondent relies on clause 11.4 of the Contract (page 2-21) which states that the Customer (being the applicants) loses the benefit of the warranty against defects in the workmanship and materials if work independent of the respondent's work is carried out by or for the Customer and that work directly, indirectly or consequently causes damage to the respondent's work.
16. The respondent claims costs associated with the proceedings in the total sum of $5013 set out in a table at tab 18-1.

CONSIDERATION

1. The respondent submits that the claim which is brought as a breach of a statutory warranty under section 18(1)B of the Home Building Act is out of time and the Tribunal does not have jurisdiction to hear it because statutory warranty claims for non-major defects must be brought within 2 years of the work being completed - section 18E of the Home Building Act. Section 18E provides as follows: 18E Proceedings for breach of warranty (1) Proceedings for a breach of a statutory warranty must be commenced in accordance with the following provisions: (a) proceedings must be commenced before the end of the warranty period for the breach, (b) the warranty period is 6 years for a breach that results in a major defect in residential building work or 2 years in any other case, (c) the warranty period starts on completion of the work to which it relates (but this does not prevent proceedings from being commenced before completion of the work), (d) if the work is not completed, the warranty period starts on: (i) the date the contract is terminated, or (ii) if the contract is not terminated--the date on which work under the contract ceased, or (iii) if the contract is not terminated and work under the contract was not commenced--the date of the contract, (e) if the breach of warranty becomes apparent within the last 6 months of the warranty period, proceedings may be commenced within a further 6 months after the end of the warranty period, (f) a breach of warranty "becomes apparent" when any person entitled to the benefit of the warranty first becomes aware (or ought reasonably to have become aware) of the breach.
2. The respondent's work was completed on about 18 October 2016. On the applicants' case they first made telephone contact with the respondent on about 9 April 2018 about the issues, but Mr Trifonas says in his statement (paragraph 12 at page 8-1 of the respondent's documents) that Mr Scuderi did not mention any complaints regarding the respondent's work in that telephone call, he just said that he was having the paving contractor return to site to install some pavers. Mr Digiorgio says in his statement (page 11-4 of the respondent's documents) that he was contacted by Mr Scuderi in late April 2018. On the evidence I am satisfied that by late April 2018 when Mr Scuderi contacted Mr Digiorgio that the claimed breach of warranty was apparent to Mr Scuderi for the purposes of section 18E of the Home Building Act. I am satisfied that the 2 year warranty period was from 18 October 2016 to 17 October 2018. I find that that the applicants became aware of the claimed breach within the last 6 months of the warranty period and therefore they had an extra 6 months to file the application at any time up to 17 April 2019 - section 18E(1)(e) of the Home Building Act. The application was filed on 18 February 2019 which was within that extended 6 month period and accordingly I find that the claim is brought within time and the Tribunal has jurisdiction to determine the dispute as a breach of statutory warranty claim.
3. If I have erred in determining that the application for breach of statutory warranty under section 18B of the Home Building Act is brought within time, it is open to the Tribunal to determine the application as a consumer claim within its jurisdiction under Part 6A of the Fair Trading Act NSW 1987. There was no issue that the applicants have purchased services from the respondent in the course of the respondent's business as a supplier and installer of pools. The claim is within the monetary jurisdiction ($40,000) and time limits (3 years) set out in Part 6A of the Fair Trading Act. The applicants' relevant cause of action is the statutory consumer guarantee set out in section 60 of the Australian Consumer Law, which is law in NSW pursuant to section 28 of the Fair Trading Act. Section 60 of the Australian Consumer Law is in similar terms to section 18B(1)(a) of the Home Building Act and provides as follows: "Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill. "
4. The applicants bear the burden of proof with respect to liability and quantum. This means that the applicants must establish at the requisite civil standard of proof being the balance of probabilities, the facts which underpin their claims against the applicants.
5. There was no issue between the parties that a large number of the pavers in the pool coping and surrounding area (on top of the concrete slab installed by the applicants) had become loose and drummy since the Contract was completed by the respondent in October 2016. Unfortunately there was not a clear diagram in the evidence of the actual tiles affected. However, I accept that as a general proposition a large part of the Pool Paving and the Surrounding Paving has lost sufficient adhesion.
6. Across the experts, there were a number of main reasons put forward explain in their opinions, why the Pool Paving and the Surrounding Paving had lost its adhesiveness. I summarise the main reasons as follows: 1. The pavers had not been properly installed as they lacked sufficient bonding and had not been installed according to the relevant Australian standard; Mr Repeti for the applicants contends that there was no back buttering and insufficient adhesive was used; the respondent disputes this as a cause and Mr Digiorgio says in his statutory declaration he installed all pavers in accordance with the Australian Standard. 2. No intermittent expansion joints were installed within the pool coping, which are installed to accommodate thermal and dynamic movement that occurs within a tiling system; Mr Repeti (for the applicants) says AS 3958.1 recommends for pool coping that movement joints are recommended at intervals of 3m with a maximum of 4.5m; the respondent denies this relying on Mr Digiorgio's statutory declaration where he states that he installed silicone expansion joints as shown on the approved building plan at page 10-3 of the respondent's documents; 3. The Pool Paving and the Surrounding Paving have been installed with a black granite tile with a minimal 2-3mm joint where the deck area meets the pool coping, which is not wide enough to allow for movement of the black granite pavers; 4. When the applicants installed the concrete slab next to the pool there were no control joints installed between the pool shell and the surrounding concrete slab.
7. One issue that experts for both parties agree with, is that both concrete and black paving tiles expand and contract and such movements require expansion joints to accommodate that movement without affecting the pavers. I accept the evidence of Mr Bennett for the respondent (at page 7-5), who was the engineer of the pool who states that expansion joints between concrete slabs are usually 10mm wide. I accept Mr Digiorgio's evidence in his statutory declaration at tab 10 of the respondent's documents, who states that the concrete slab which was installed by the applicants was butted up against the pool coping without any expansion joints. This evidence is reliable because it is what Mr Digiorgio saw before he commencing installation of the Surrounding Paving on top of the concrete slab and there is no evidence before the Tribunal to contradict it.
8. A reliability issue with the applicants' expert evidence (in particular the Structerre Report and the Techtile Report) is that both reports treat the whole area of the pool and the surrounds as one construction as if it was done by the respondent. This is not correct. There was no issue that the applicants had arranged the concrete surrounding slab. Perhaps there was an issue about whether Mr Digiorgio did the paving work on the slab as a contractor for the respondent, or as a contractor for the applicants. I am satisfied on the evidence that this work was done by Mr Digiorgio for the applicants, because the Contract did not cover the Surrounding Paving, and Mr Digirogio states he did the work under Mr Scuderi's instructions. Nor was there evidence of any other written agreement, quote or document which could establish a separate agreement between the applicants and the respondent for the respondent to be responsible for the Surrounding Paving. Accordingly I find that the respondent was not responsible for the workmanship of the Surrounding Paving.
9. The major issue is the extent of the drummy pavers in the Pool Paving (being the paving area under the Contract) and also the Surrounding Paving. Experts for both the applicants and the respondent support the proposition that movement joints are necessary to allow expansion without damage. The Structerre Report provided by the applicants (at tab 8) notes as follows: 1. In paragraph 5(1)(b) - the cracks in the surface of the granite tiles could have been caused by a lack of movement joints; 2. In paragraph 5(2) - that there are 2 possible reasons why the granite tiles have debonded from the substrate of the pool coping and the surrounding area: 1. Possible water ingress into the bedding material, weakening the bond over time; 2. Expansion of concrete and the cementitious substrate which causes stresses in the adhesion of the pavers and might cause the tiles to break free or delaminate.
10. Mr Ripeti, the author of the Techtile Report for the applicants said in paragraph 39 that as the pool coping has been constructed using black granite tiles, it would undergo a high level of thermal activity and in paragraph 41 he says good practice would be to install intermittent expansion joints at intervals of 3m-4.5m as per AS 3958.1 recommendations in order to accommodate thermal expansion. In the note to Image 7 on page 10 of his report, Mr Ripeti states that the perimeter between the pool coping and surrounding tile does not have an expansion joint in order to accommodate differential movement between the pool shell and the surrounding substrate.
11. Mr Wiesemes for the respondent states that it is imperative to install dowels and approximately 10mm wide rubber or similar jointing material to the pool coping, retaining wall, area between the house and pool when adding additional deck area to the pool. Mr Wiesemes states in his report he did not observe correct expansion jointing between the pool coping and the pool decking area which was hard up against the coping.
12. Mr Bennett (expert for the respondent, whose report is at tab 7) relying on Mr Digiorgio's statutory declaration, states at page 7-7 that if there are no expansion joints placed between the pool coping and the surrounding concrete there is "every chance that the pool coping tiles would be affected by the owner/builder not providing those joints, when he cast that concrete so that this type of damage would be the fault of the owner/builder".
13. Mr Ripeti states in paragraph 49 of his report that the coping has been installed with insufficient movement joints throughout. He states in paragraph 50 that he observed some grout loss/separation to some sections of coping and in paragraph 52 he states that the lack of expansion joints in the pool coping may have contributed to the level of drumminess he observed. However, Mr Digiorgio states in his statutory declaration that he has installed silicone expansion joints within the coping as set out in the drawing attached to his statutory declaration at page 10-3 of the respondent's documents he completed all works for the respondent under the Contract in June 2016 in accordance with the Australian Standards. Mr Digiorgio also states in his statutory declaration at page 10-1 that in late August 2016 when he was engaged by Mr Scuderi to install pavers to the large concrete area that Mr Scuderi had completed himself, he noticed that the concrete slab was butted up against the swimming pool structure and there were no control joints present. When Mr Digiorgio completed the installation of pavers to this area he placed silicon expansion joints around the back of the bullnose of the pool and in front of the concrete slab areas to the surrounding pool coping.
14. None of the experts clearly delineated which tiles are drummy and which are not. Broad descriptions such as 90% drummy are used. Because of its specificity I accept Mr Wiesemes' evidence on page 6-15 of the respondent's documents that none of the tiles were drummy on the section at the back of the pool because this area was not locked in and therefore had no pressure from external forces. This evidence establishes to me that there is a real possibility that the design of the surrounding concrete slab, or the laying of the pavers on that slab without sufficient joints, has not accommodated expansion of the slab or the pavers, which pavers have been forced against each other and this pressure is what has caused large parts of the Pool Paving and the Surrounding Paving to crack and to lose its adhesion.
15. The applicants' expert Mr Ripeti states in paragraph 52 of his report, that a lack of expansion joints in the pool coping itself may have contributed to the level of drumminess he observed. However, given the competing theory that the underlying concrete slab has not been properly designed, Mr Ripeti's opinion does not adequately explain why large amounts of both the Pool Paving and the Surrounding Paving have become loose due to this issue. In any event, Mr Digiorgio's evidence was that he has installed these expansion joints as per the diagram attached to his statutory declaration.
16. There was no evidence lead by the applicants to establish the design of the concrete slab. The applicants' expert said in cross examination he did not know if the concrete slab had been designed by an engineer. I find that there is insufficient evidence from the applicants to establish on the balance of probabilities that the concrete slab had been properly engineered, designed and installed to accommodate expansion or that the concrete slab had been designed and constructed so that it would act as one structure with the pool. It follows that the applicants have not established on the balance of probabilities that it was the workmanship of the respondent or the failing to comply with the plans and specifications of the pool design which has caused the tiles to crack or become loose and drummy, and not the concrete slab which was installed by the applicants.
17. I note that there was also an issue raised in Mr Radovancevic's report that there were deviations in the thickness of the grout lines between the granite tiles. As the report does not delineate between the pavers that were part of the Pool Paving and those were part of the Surrounding Paving, it is unclear which pavers did not have sufficient grout (if that is correct) and therefore whether those pavers were part of the Contract Works or not.
18. The burden of proof lies with the applicants to establish that the respondent has breached the statutory warranty under section 18B(1)(a) of the Home Building Act when it carried out its work under the Contract by failing to perform its work in a proper and workmanlike manner or that it was not done in accordance with the plans and specifications. As the Tribunal's Appeal Panel held in the case of Donoghoe v Compass Housing Services [2015] NSWCATAP 97 (22 May 2015) where there are two versions of a situation, and neither is or can be preferred to the other, then the party with the onus has failed to discharge that onus. As much as I have analysed the expert evidence to try and be satisfied as to the probable reason why the paving has become drummy, there is insufficient evidence regarding the design and construction of the concrete slab for me to be persuaded on the balance of probabilities that the common issue over both the Pool Paving and Surrounding Paving areas has been caused by the workmanship of the respondent in carrying out the Contract Works, particularly in circumstances where the Surrounding Paving was not part of the Contract Works.
19. A second issue was the efflorescence at the waterline on the pool tiling. There was no issue that efflorescence is a result of water that penetrates the grout joints/stone during cleaning or during rainfall, which when it evaporates facilitates the migration of calcium salts which are present in the sand and cement bedding and tile adhesive. The applicants rely on the Structerre Report which states that efflorescence might have been caused by possible missing or insufficient waterproofing allowing water ingress through the tiles and grout or inappropriate material components for tiling in a wet environment. The respondent relied on evidence from Mr Digiorgio that Mr Scuderi admitted to Mr Digiorgio that he had used an acid wash, which Mr Scuderi has denied. In any event, whether an acid wash was used or not, I accept the evidence Mr Wiesemes of Australian Pool Spa Consulting who states in his report at tab 6 that because the tiles on the pool coping and deck are loose, water can penetrate and bleed through to the pool water line tiles causing efflorescence. He is of the opinion that efflorescence will cease when the tiles are re-done. I am satisfied on the balance of probabilities that the efflorescence issue is probably related to the issue of the loose tiles.
20. As the applicants have not been able to discharge the burden of proof with respect to liability, the application is dismissed on this basis. There is no need for me to determine the issue of quantum.
21. The respondent sought costs as set out in tab 18-1 of its documents in the sum of $5013. Little was said by either party at the hearing in relation to the respondent's claim for costs and accordingly I do not consider it appropriate to determine the question as part of these orders and reasons. The parties are referred to section 60 of the Civil and Administrative Act NSW 2013 and clause 38 of the Civil and Administrative Rules 2014 in relation to costs.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 15 June 2021