Scuderi v Corfu Pools Pty Limited

CONSIDERATION

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.
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.
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. "
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.
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.
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.
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.
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.
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.
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.
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.
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".
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.
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.
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.
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.
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.
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.
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.
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.
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.

At a glance

Court

Decision date

Source

Judgment (7 paragraphs)

Parties

Cases Cited (1)