Scuderi v Corfu Pools Pty Ltd

The decision of the Tribunal at first instance.

1. The Tribunal rejected the builder's contention that the homeowners' claims were out of time. That conclusion was not challenged by the builder on the appeal.
2. However, the Tribunal dismissed the homeowners' claim on the ground that the homeowners had not discharged their burden of proof. The key conclusions of the Tribunal in this regard were as follows: [46] There was no evidence lead by the applicants to establish the design of the concrete slab [the one not laid for the builder]. 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 and become drummy, and not the concrete slab which was installed by the applicants. [47] I note there was also an issue raised by 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 that 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. [48] The burden of proof lies with the applicants to establish that the respondent has breached the statutory warranty under section 18B (1) (a) … 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 …where there are two versions of a situation, and neither is 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 [builder] in carrying out the Contract Works, particularly in circumstances where the Surrounding Paving was not part of the Contract Works. [49] A second issue was the efflorescence at the waterline on the pool tiling. …I accept the evidence of Mr Wiesemes of Australian Pool Spa Consulting who states in his report that …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 is probably related to the issue of the loose [drummy] tiles.
3. Leading up to these conclusions, the Tribunal: 1. Summarised the written expert opinions of Structerre Consulting Engineers (Mr Radovancevic) and Techtile Consulting (Mr Repeti) presented by the homeowners and of Australian Pool and Spa Consulting (Mr Wiesemes) and Civil & Structural Engineering Design Services Pty Ltd (Mr Bennett), subsequently presented by the builder. 2. Set out the evidence given by Mr Digiorgio, by Statutory Declaration, adduced by the builder in response to the homeowners' evidence. No oral evidence was given by Mr Digiorgio. 3. Accepted that a large part of the Pool Paving and the Surrounding Paving had lost sufficient adhesion (paragraph 35). 4. Set out the main reasons put forward by the experts for such loss of adhesion as follows (paragraph 36): 1. according to Mr Repeti, the pavers had not been properly installed because there was no back buttering and insufficient adhesive was used. The Tribunal commented that, on the other hand, Mr Digiorgio's evidence tended to refute this because he said he installed the pavers in accordance with Australian Standards. 2. no intermittent expansion joints were installed within the pool coping to accommodate thermal and dynamic movement. Mr Repeti referred to AS 3958.1 as recommending that such movement joints be installed at particular intervals. The Tribunal commented that, on the other hand, Mr Digiorgio gave evidence that he installed silicone expansion joints as shown on the approved building plan. 3. all the paving consisted of black granite tiles with a minimum 2-3mm joint where the deck area met the pool coping which was not wide enough to allow for the movement of such 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. 1. Accepted that expansion and contraction of both concrete and black paving tiles required expansion joints to be installed (paragraph 37). 2. Accepted the evidence of Mr Bennett, who was the engineer of the pool, that such joints between concrete slabs are usually a minimum of 10mm wide but these had not been installed in this case given the evidence of Mr Digiorgio that there were none, and found that Mr Digiorgio's evidence about this was reliable evidence because he had observed this and his evidence was not contradicted (paragraph 37). 3. Concluded that it was a weakness with the expert reports presented by the homeowners that they treated the whole of the area of the pool and the surrounds as one construction done by the builder, which was not correct (paragraph 38). 4. Indicated that the major issue was the extent of the drummy pavers in both the Pool Paving and Surrounding Paving and that all experts point to movement of pavers as, at least, a possible reason for the drummy tiles. Both Mr Radovancevic for the homeowners and Mr Bennett refer to movement of the underlying concrete as a potential reason for lack of adhesion of the pavers (paragraph 39 - 43). 5. Accepted Mr Wiesemes' specific and uncontradicted evidence that none of the tiles were drummy on the section at the back of the pool because the area was not locked in and therefore had no pressure from external forces (paragraph 44). 6. Concluded that this evidence about the tiles at the back of the pool persuaded the Tribunal that there was a real possibility that the design of the surrounding concrete slab or the laying of pavers on that slab without sufficient joints had not accommodated expansion of the slab or the pavers which pavers have been forced against each other and this pressure was what had caused large parts of the Pool Paving and the Surrounding Paving to crack and lose adhesion (paragraph 44). 7. Concluded that Mr Repeti's evidence that a lack of expansion joints in the pool coping itself may have contributed to the level of drummy tiles he observed did not adequately explain why large amounts of the Pool Paving and the Surrounding Paving had become loose given the competing theory that the concrete slab had not been properly designed (paragraph 45). In any event, Mr Digiorgio said he had installed such expansion joints.

The limited appeal right

1. Under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), a party may appeal as of right in an internal appeal on any question of law. We have not identified any ground of appeal that raises a question of law.
2. In respect of any other grounds, in the case of an appeal from the Consumer and Commercial Division of the Tribunal (as this is), the appellant must satisfy the Appeal Panel that leave to appeal should be granted under cl 12 sch 4 of the NCAT Act on the basis that: …..the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with)
3. The condition that the decision was against the weight of the evidence will be satisfied where the evidence in its totality preponderates so strongly against the conclusion found by the Tribunal that it can be said that the conclusion was not one that a reasonable Tribunal member could reach: Collins v Urban [2014] NSWCATAP 17 at 77(2).
4. The principles regarding the discretion whether or not grant leave to appeal should be granted under cl 12 sch 4 of the NCAT Act were set out by the Appeal Panel in Collins v Urban [80]-[84].
5. In this regard, the Appeal Panel in Collins said (at [84]): The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (3) In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.

Grounds of appeal

1. In the Notice of Appeal the homeowners relied upon sub-paragraphs (b) and (c) of cl 12 (the decision was against the weight of the evidence and new evidence).
2. The Notice of Appeal stated that the evidence that should have been given more weight to was: 1. The expert reports of Mr Repeti and Mr Radovancevic as they both addressed the lack of expansion joints in the pool coping, there was no back buttering on tiles, insufficient adhesive was used and there were deviations in the thickness of grout lines that were part of the pool paving. 2. A photograph of the construction of the new concrete slab that was said to show it was correctly constructed.
3. The points that emerge from the "Grounds of Appeal" document attached to the Notice of Appeal were that the Tribunal erred: 1. In failing to find that the builder breached the warranty in s 18B (1) (a) by not installing the required expansion joints in the pool coping based upon the expert evidence of Mr Repeti and Mr Radovancevic and also some evidence from Mr Wiesemes, despite the evidence to the contrary from Mr Digiorgio 2. In failing to find that the new concrete slab the homeowners installed was properly constructed based upon photographic evidence and some oral evidence given by Mr Radovancevic. 3. In failing to find that there was defective grouting in areas of paving for which the builder was responsible.

New Evidence

1. In their written submissions the homeowners began by requesting permission to rely upon new evidence. They submitted that it would prove that the new concrete slab they installed was constructed correctly and that the builder's tiler did not install the expansion joints as he stated he did in his Statutory Declaration. Accordingly, we begin with the new evidence ground.
2. At the hearing of the appeal, at the request of the Appeal Panel, Ms Scuderi, specifically, identified what was sought to be relied upon by way of new evidence, namely: 1. A short Statutory Declaration by Mr Brizi, declared on 2 December 2019, in which he said that he did the formwork and poured the concrete for the new concrete slab beside the left side of the pool. He said that the slab was constructed in accordance with the Australian Standards and that an expansion joint was used between the slab and the pool. 2. Photographs at pages 9,10,11, 12 and 13 of Tab 19 of their bundle for the appeal. Each showed aspects of the pool under construction, except for those at page 13 which were photographs of other pools described as examples of correctly placed expansion joints.
3. The homeowners did not press as new evidence a new report from Structerre Consulting Engineers dated 19 December 2019. Included in this report were some new issues with the construction that had not been raised at the hearing at first instance.
4. The homeowners have not met the requirement in cl 12 that the new evidence be shown to be evidence that was not reasonably available at the time the proceedings below were being dealt with. At the hearing of the appeal, the homeowners accepted that this was the case with the evidence from Mr Brizi and the photograph at page 13 of Tab 19.
5. As to the remaining photographs, the homeowners said that they had only recently retrieved these from their computer (subsequent to the decision at first instance). They said that, previously, a hard drive had crashed and they had lost these photographs from their computer. However, this account does not explain why they could not have retrieved the photographs before the hearing, despite the hard drive crash, as they had managed to do after the hearing.
6. Furthermore, we do not accept that these photographs of the pool under construction consist of "significant" new evidence. It is not possible to discern from them that there was any error of fact by the Tribunal, let alone a material error of fact.

Alleged error of fact - no expansion joints in the coping

1. The homeowners refer to the evidence from which they say the Tribunal ought to have found a breach of warranty in failing to install expansion points in the pool coping, including some oral evidence given by Mr Radovancevic in cross-examination to which the Tribunal did not refer (transcript, 11 June 2019, page 7).
2. However, the short answer to this point is that such a finding would not have affected the outcome.
3. The Tribunal did not reject the claim that there had been a breach of warranty in failing to install intermittent expansion joints in the pool coping. It did not need to make a finding one way or the other about such a claim given the key conclusion on the subject of drummy tiles (set out in paragraph 16 above above) that the competing theory about the deficiency with the installation of the new concrete slab had not been displaced by evidence that the slab was, in fact, properly designed and installed or that any design problem had been overcome by evidence that there were expansion joints throughout all the tiling.
4. In other words, given the significance that the Tribunal attributed to evidence about a deficiency with the new concrete slab being the cause of drummy tiles it did not matter that there might also have been a breach of warranty in the lack of expansion joints in the pool coping.
5. Significantly, whilst the competing theory was raised in the evidence from Mr Bennett, no evidence was put forward on behalf of the homeowners, in response to such evidence, along the lines that even if there was a deficiency with the installation of the concrete slab such a deficiency would not have had any affect on the tiles installed by the builder if proper expansion joints had been placed in the pool coping or that both deficiencies together were causes of the drummy tiles.

Alleged error of fact - the new concrete slab was properly designed and installed

1. The homeowners contend that, contrary to the findings of the Tribunal, the evidence showed that they had correctly constructed the new concrete slab because they had dowelled and installed an expansion joint.
2. The Tribunal made no finding about dowelling. Rather, it accepted the evidence of Mr Digiorgio about the lack of expansion joints and the expert evidence from Mr Bennett referring to that evidence and expressing the opinion that expansion joints between concrete slabs are usually 10mm wide.
3. Ultimately, the Tribunal concluded there was a real possibility that the design of the new concrete slab, or the laying of the pavers on that slab, had caused large parts of the paving to crack and lose adhesion (paragraph 44).
4. We are satisfied that these findings and conclusions were reasonably open to the Tribunal on the evidence presented to it and that it did not err in failing to find that the new concrete slab had been correctly constructed.
5. Our reasons are as follows: 1. The Tribunal did not find that inadequate design of the new slab was the cause of the drummy tiles. Rather, it found that the weight of the evidence in support of that conclusion was such that it was unable to conclude that the cause of the drummy tile problem was not the responsibility of the homeowners. 2. Against this, the homeowners, in the first place, sought to rely on the new evidence from Mr Brizi. However, we have already rejected reliance on such evidence. 3. No evidence was presented by the homeowners at the hearing at first instance to contradict Mr Digiorgio and Mr Bennett's evidence about the lack of expansion joint(s) between the slabs. It was within the power of the homeowners to have presented such evidence if it was the case that there was an expansion joint, or joints, between the slabs. 4. In oral evidence, Mr Radovancevic gave evidence that the builder's structure and the homeowners new slab amounted to one monolithic structure that was "locked in". He also said that the Code did not state that there needed to be a joint in the concrete slab underneath (transcript, 11 June 2019, pages 6 and 7). It was also his evidence that he was not aware of any design of the new slab (transcript, 11 June 2019, pages 2 and 7). 5. We do not attribute much weight to this evidence from Mr Radovancevic He did not substantiate how he was able to say that the slabs were "locked in". Unlike Mr Digiorgio, he did not say that he had seen the slabs before the paving was laid and he had not seen any drawing. It is apparent from his report that he had seen the condition of the pool area surface only at the time of that report. As to his evidence about the Code, this did not directly answer the expert opinions from Mr Bennett and Mr Wiesemes (see at 7.3) that joint(s) should be installed. It was also not clear that what he was referring to was directed at the laying of a new slab alongside an existing slab. Given the clear written opinions of both Mr Bennett and Mr Wiesemes, any competing expert opinion needed to be detailed and well substantiated. This was not the case with the oral evidence from Mr Radovancevic. 6. In any event, this evidence from Mr Radovancevic falls well short of establishing that the new concrete slab had been correctly constructed and installed.

Alleged error of fact - varying thickness of grouting

1. In the Structerre report two photographs are referenced as showing deviations in the thickness of tile grouting. The Tribunal rejected the case based upon this defect because it had not been demonstrated that these were pavers for which the builder was responsible.
2. On the appeal, we were shown competing designations from the parties about the respective paving areas for which the parties were responsible. Regardless, the homeowners did not demonstrate how the evidence before the Tribunal at first instance established that these two areas of grouting were part of the Pool Paving.
3. In any event, the homeowners did not demonstrate how this defect was material in circumstances where the expert evidence from Mr Wiesemes was that in order to correct the drummy tile problem all of the tiling needed to be removed.

Decision said to be against the weight of the evidence

1. For the same reasons that we have already given in respect of each of the above alleged errors of fact, we reject the contention that the decision was against the weight of the evidence
2. We would only add that in both their written and oral submissions the homeowners pointed to the evidence from Mr Repeti about the lack of back buttering for the paving. However, this was an explanation for the adhesion issue (the drummy tiles), a subject that we have already addressed. Hence, this issue about back buttering does not take matters any further for the homeowners, given our conclusion that there was no appellable error by the Tribunal in deciding that the homeowners had not overcome the weight of the evidence that the cause of the adhesion issue was a deficiency with the installation of the new concrete slab.

Leave to appeal - discretion

1. From what we have already said, it is apparent that we do not agree that any of the conditions for leave to appeal in (a), (b) or (c) of cl 12 of Schedule 4 have been satisfied.
2. In any event, we would refuse leave to appeal because we are not persuaded that there was any error of the kind that would warrant the grant of leave, as referred to in Collins v Urban set out in paragraph 22 above.

Other matters

1. On appeal, the homeowners raised new allegations in relation to the builder's construction work that had not been raised before the Tribunal at first instance. The first concerned construction of a larger area towards the house that had not been engineered. The second concerned the alleged modification of certificate documentation.
2. Neither of these matters are capable of satisfying the requirements of leave to appeal, to which we have already referred.

Orders

1. For the above reasons, 1. Leave to appeal is refused and the appeal is dismissed.

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: 17 April 2020