Sills v Banks & Ors

Issues

1. I am satisfied that the respondents carried out residential building work and that the Tribunal has jurisdiction to hear and determine the issues between the parties.

The owner's case

1. The owner claims damages for breach of an implied term of the contract in the sum of $48,000. The owner says that the pool is defective and that the defects are major defects.
2. The parties refer to the definition of Major Defects as set out in the Home Building Act 1989 (the Act). Section 18E(4) provides a definition of a "major defect". What constitutes a major defect was considered in Ashton v Stevenson [2019] NSWCATAP 67. The Appeal Panel considered that the "definition refers to serious problems which impact upon habitability and use of the building and to its potential destruction" at [60]. To constitute a "major defect" under the Act, the following needs to be established: 1. The defect must comprise of a "major element" of a building. The major elements of a building is listed in s 18E(4) and includes. An internal or external load-bearing component that is essential to stability of the building or any part of it; a fire safety system; water proofing; any other element prescribed by regulations. 2. The defect must be caused by the defective design, faulty workmanship, defective material, or failure to comply with the National Construction Code (or a combination of these). 3. It is not enough that the defect is caused to a "major element" of a building. The defect must have one or more of the following consequences: 4. An inability to inhabit or use the building for its intended purpose. 5. The destruction of the whole building or destruction to part of the building; 6. A threat of collapse to the whole or part of the building; 7. A defect prescribed by regulations - only external cladding has been prescribed as major defects in the regulations.
3. The parties agree that there are three minor defects present in the contract works: 1. the cross fall of the coping tiles surrounding the pool towards the pool is defective (see table 7.1 of the owner's report, paragraph 3.1.1 of the builder's report.) 2. The variation in the distance between the pool water level in the coping tiles surrounding the pool is a defect (see Table 7.1 of the owner's report; paragraph 3.1.1 of the builder's report). 3. The step down from the stencilcrete paving surrounding the pool to the coping tiles is defective. The size of the stepdown varies between 7mm to 24mm (table 7.1 of the owner's report; paragraph 3.1.1 of the builder's report).
4. It was explained in opening that the owner acknowledges that these three defects appear visually "minor" in nature and that the claim for damages in respect of minor defects is brought out of time or more than two years after the completion of the works (s18E and s48K of the Act).
5. However, the existence of these minor defects is nevertheless indicative and may be taken into account in support of the contention that the pool suffers from major structural defects and needs to be replaced.
6. It is not in dispute that the relevant works were completed on or around 2 March 2018 and that the Tribunal only has jurisdiction to determine the proceedings if it is concluded that there has been a breach of a statutory warranty resulting in a major defect as defined under the Act.

The owner's case

1. I have had regard to the evidence, the owner's oral submissions during the hearing and the written submissions filed on 17 June 2022 under the hand of Everingham Solomon's solicitors, the applicant's legal representative.
2. The owner relies on the expert report of Justin Cant of Kelly Covey Group Pty Ltd (the owner's report). The builder relies on the expert report of Stephen Branch of Expert Engineering Services Australia (the builder's report). The central dispute in these proceedings is whether the visual defects arise from an underlying major defect within the pool.
3. The applicant relies on the statement of Philippa Sills dated 8 March 2022. The third respondent relies on the affidavit of Mark Banks affirmed 16 May 2022. Ms Sills gives evidence that the exposed edge of the concrete slab is very jaggered and sharp. The exposed edge is cut the feet of people using the pool or squat people to trip into themselves on the coping tiles. Ms Sill's is concerned that a more serious injury may occur in the future. In respect of the evidence of Mr Banks, the applicant is highly critical of the manner in which Mr Banks gave evidence. Mr Banks is criticised for being invasive. Mr Banks nevertheless conceded that there was no written contract with the applicant; conceded that he was not licensed to install calls; conceded that there was nobody on site that was licensed to install the pool that there was no insurance in respect of the works despite a requirement under the Act. Throughout the course of the proceedings Mr Banks was in a pains to stress that the installed bond beam was 750mm x 150mm with no evidence to support his contention. He sent an unsolicited email to Justin Cant, the owner's expert, claiming that the bond beam was of those dimensions.
4. The owner's experts opinion is that the visual defects are caused by an underlining major defect in the pool bond beam, namely that the bond beam is too small, not installed in accordance with the plans and specifications ultimately causing the pool to move inward. The owners expert's position can be summarised as follows: 1. the bond beam is a major structural component of the pool. The bond beam is a load bearing component of the pool that is essential to the pool stability. 2. The visual defects are caused by a downward pull on the internal edge of the pool bond beam due to settlement (i.e. subsiding) of the pool. The rotation of the bond beam has caused the visual defects namely: 1. the lifting of the internal edge (i.e. the poolside edge) of the concrete slab: 2. the displacement between the concrete slab and the coping tiles; and 3. the sloping of the coping tiles towards the pool. 1. The rotation of the bond beam is due to settlement of the pool, which is pulling on the internal edge of the beam. Settlement is likely due to an inadequate bedding layer below the pool, inadequate compaction of the bedding layer or the presence of soft/poor patches of soil below the pool. 2. The rotation of the bond beam is likely to cause the pool shell to crack and leak if settlement continues. Settlement is likely to continue to occur for a period of 7 to 10 years after construction. Construction of the pool concluded just over 4 years ago in March 2018 and, therefore, settlement is likely to occur for another 3 to 6 years. 3. Furthermore, the risk of horizontal displacement of the pool wall is increased due to the installation of an insufficient bond beam for the soil properties. The bond beam has not been constructed in accordance with the pool engineering specifications and is insufficient for the soil properties of the pool site. Horizontal displacement of the pool wall will put additional pressure on the pool shell and increase the likelihood of the pool shell cracking. 4. The owner's expert opines that the scope of works and cost for pool replacement as outlined by North West Pool is typical and reasonable in the sum of $48,000.
5. It is noted that in the absence of destructive testing, the precise dimensions of the bond beam could not be measured. During cross-examination Mr Cant was asked whether he can be certain of the dimensions of the bond beam, which he answered in the negative.
6. The applicant alleges a breach of statutory warranty.
7. It is the applicant's case that: 1. The internal rotation of the bond beam is due to settlement resulting from the failure to properly investigate and prepare the site. Mr Banks failed to conduct site investigations and if proper investigations had been conducted and appropriate measures implemented, settlement of the pool and the resulting internal rotation of the bond beam would not have occurred. The prudent builder would have obtained advice from an engineer and therefore the Tribunal should find that the statutory warranty implied by section 18B(1)(a) of the Act that the work will be done with due care and skill and in accordance with the plans and specifications has been breached. Further, the builder breached the statutory warranty implied by section 18B(1)(b) of the Act that the work will result in the construction of a swimming pool that is reasonably fit for the use as a swimming pool. 2. Mr Banks installed a bond beam that is at most 600 mm x 100 mm and possibly smaller. The insufficient size of the bond beam is due to Mr Banks' failure to adhere to the engineering specifications which required the installation of a bond beam of 750 mm x 150 mm. Mr Banks' failure to install the correct bond beam is a breach of statutory warranty implied by section 18B(1)(a) of the Act that the work will be done with due care and skill and in accordance with the plans and specifications.

Consideration - the experts' concurrent evidence

1. The owner's expert made significant concessions during cross-examination which was conducted concurrently.
2. The owner's expert conceded that settlement under the pool sediment is likely due to poor site conditions and that this has nothing to do with poor performed compaction by the contractor.
3. The owner's expert also conceded that poor soil condition rather than poor workmanship can be responsible for uneven settlement of the pool.
4. The owner's expert conceded that the pool construction generally complies with the engineering specifications.
5. Mr Cant further conceded that he would have designed the pool differently, given the locale's soil conditions, and in accordance with design pressure (see 4.1.7) but the calculations for his opinion that the pool should have been built to 10.kPa (pressure) were not provided in his expert opinion.
6. The owner's expert conceded, under cross examination, that the construction of the pool is "generally compliant" with the plans and specifications but notes that there is soil pressure exerted on the pool wall.
7. The owner's expert stated in cross-examination that the bond beam should have the dimensions of 750 mm x 150 mm. He was asked how he can be certain that the bond beam's dimensions are insufficient and stated that he can only draw an inference that the bond beam's dimensions are only 600 x 100 mm but as invasive testing was not carried out, he could not come to a firm view of the actual dimensions of the bond beam installed.

Cross examination of Mr Banks - an unreliable witness

1. The owner submits that the builder is an unreliable witness and that his evidence should not be given any weight. The builder's affidavit only generally asserts that "all the works were done in accordance with the engineering plans and specifications" but no specific evidence was produced that could establish the dimensions of the bond beam.
2. First, in regard to the site investigations and settlement, the builder conceded that he did not undertake any site investigations. Secondly, in regard to the size of the bond beam the builder had no recollection of the size of the bond beam he installed, and the builder professed to have no recollection of the size of the bond beam he was required to install as per the plans and specifications. The builder did however send an unsolicited email to the expert Mr Cant in which she professed to have installed a bond beam 750 mm x 150 mm. During his evidence the builder remained on all critical issues vague and non-committal.
3. It is submitted that the builder's evasive answers in cross examination about the width of the bond beam sit in stark contrast to this position throughout the proceedings that the bond beam was installed in accordance with the plans and specifications. Throughout the course of these proceedings the builder was at pains to stress that the installed bond beam was 750 mm wide by 150 mm deep. However the invoice provided by the builder on his invoice stipulates that a 600mm x 150mm bond beam was installed.

The builder's case

1. The builder's expert's opinion is that the visual defects are the responsibility of the contractors that installed the concrete and the coping tiles. In summary, Mr Branch opines that the concrete slab has lifted due to water ingress under the slab which has then pushed the coping tiles inwards to the pool.
2. I have had regard to the builder's written submissions dated 17 June 2022. The builder's expert does not agree with the owners' proposition that the bond beam has rotated or that settlement has occurred. The owner contends that certain "visual defects" are "caused by an underlying major defect in the bond beam". These visual defects are those which were conceded by the owner at the commencement of the hearing. It is submitted that the owner's interpretation of Mr Cant's opinion is not entirely accurate. Mr Cant's opinion is expressed as follows: 8.3.1.3 The observed variation in height between the coping tiles and concrete slab as outlined in Table 7.1 is likely due to the settlement of the pool. The coping tiles are installed on the bond beam which is a structural element of the pool. Settlement of the pool would pull downwards on the internal edge of the bond beam. This would cause the bond beam to rotate about the edge of the stiff natural soil. The rotated bond beam would lift the inner edge concrete slab causing the observed displacement between the slab and the coping tiles. This also explains the coping tiles sloping towards the pool.
3. Having regard to the entirety of the above paragraph, the builder submits that Mr Cant's opinion is more accurately summarised as follows: the cause of the 'visual defects' stem from a chain reaction triggered by settlement of the pool. This, the builder contends, has no bearing on the determination of whether the bond beam is of adequate dimensions or whether the alleged rotation of the bond beam is in fact occurring or whether this constitutes a 'major defect'.
4. There is no dispute that the bond beam is a 'major element' of a building (in this case the pool). It is submitted that the owner's expert fails to provide an opinion on whether the alleged internal rotation of the bond beam constitutes a major defect. The extent of Mr Cant's opinion on this issue is that settlement could cause (emphasis added) the bond beam to rotate. It is submitted that if the alleged rotation of the bond beam constitutes a major defect, then this critical finding should have been explicitly included in Mr Cant's report. In the absence of such evidence, the Tribunal cannot find that alleged rotation of the bond beam is likely to cause the pool shell to crack or leak.
5. In cross-examination, Mr Cant's opinion on the alleged settlement of the pool was tested. Mr Cant told the Tribunal that he agreed with the assumption at paragraph 5.3.3. of the builder's report that the backfill was constructed in accordance with 3.2 of the Pool Engineering Specifications. When later questioned about why at paragraph 8.3.14 of his report he stated, "the observed settlement is likely due to an inadequate bedding layer below the pool, inadequate compaction of the bedding layer or the presence of soft/poor patches of soil below the pool", Mr Cant answered by clarifying that any settlement was most likely due to soft/poor patches of soil below the pool which had occurred naturally and were not (emphasis added) the result of poor workmanship.
6. In the builder's Report, Mr Branch opines that based on survey levels taken during his site inspection, there is no evidence of settlement of the pool. On this front, it should be noted that Mr Branch relies upon survey levels provided by a qualified and licensed surveyor who attended site the same day Mr Branch undertook his inspection. This may be contrasted against Mr Cant's use of a laser level operated by Mr Cant himself and/or his colleague, which may arguably explain the difference in findings.
7. Mr Branch further opines that he did not observe any sign of the bond beam rotating and therefore concludes that the bond beam is not defective.
8. It is submitted on behalf of the builder that while the bond beam is a major element of the pool, the experts both give opposing evidence about whether the bond beam has, in fact, rotated. Given the difference in opinions, it is submitted that Mr Branch's method of testing is more reliable and therefore his results should be preferred. Although should the Tribunal find that the bond beam has rotated, it is further submitted that: (a) any such rotation has been caused by settlement of the pool; (b) settlement of the pool has occurred naturally and is not the result of poor workmanship; and (c) settlement of the pool is not a defect with the bond beam (the major element) and thus there is no defect in a major element of the pool.
9. It is further submitted that the rotation of the bond beam, even if established is not a major defect as defined by the Act. A defect causing, or likely to cause you to inhabit or use the building or part of the building for its intended purpose, the destruction of the building or any part of the building or a threat of collapse of the building or any part of the building.
10. At paragraph 8.4.1.9 of the owner's report Mr Cant states that the bond beam is insufficient for the soil conditions: The Pool Engineering Specifications specifies: "Expansive soils: the pool is suitable for installation on sites defined in a as two eight seven zero as 'A' - 'H2' on 'The' sites, the concrete coping minimum 600 wide shall be installed around the pool." My interpretation of this statement is that a 600 wide concrete coping is required on sites with expansive soils. The site classification 'H2' is an expansive soil and thereby requires a 600 wide coping in addition to the 150 the pool wall. I believe the bond beam should have been constructed 750 mm wide and 150 mm D as per the details provided in Drawing Number 10 - Be 9187.00 contained in the Pool Engineering Specifications."
11. Mr Branch responds that Mr Cant's interpretation of the relevant pool specifications and engineering drawings for the bond beam is incorrect. The relevant engineering drawings provide three separate options and Mr Branch states that the most appropriate bond beam configuration is 550 mm x 150 mm. Based on his measurements obtained through minor invasive testing, Mr Branch concludes that the bond beam as constructed is most likely 600 mm x 100 mm. This conforms with Mr Cant's opinion who also concludes that the bond beam as constructed is likely 600 mm x 100 mm. It is therefore submitted that the most probable size of the bond beam as built is 600 mm x 100 mm. When assessing whether the size of the bond beam as built is defective, Mr Branch concludes that a 600 mm x 100 mm bond beam does not mean it is defective. This conclusion is made based on miscalculations at annexure B of the report and Mr Branch concludes based on his measurements and calculations that the bond beam as constructed is not defective.

The owner's submissions in reply

1. The owner submits that Mr Branch's opinion is that the alleged settlement of the pool has occurred naturally and is not attributable to defective design, defective or faulty workmanship, defective materials of a failure to comply with the structural performance requirements of the National Construction Code. Mr Branch opines that the visual defects have been caused by water ingress under the concrete slab and are not attributable to defective workmanship.
2. At the written submissions of the owner at [77] I consider the owner to give a reply to the Branch opinion.
3. The owner submits that the problem with Mr Branch's opinion is that there is nothing to suggest that water ingress under the slab could have or has occurred. In particular, the concrete was poured directly onto the outside of the bond beam. Accordingly there was never a gap between the concrete slab and the bond beam for water ingress to occur.
4. Given that the concrete slab was poured directly onto the bond beam, the only possible explanation for water ingress is for it to have occurred at the perimeter of the pool. However, if water ingress occurred at the perimeter, this would have caused the perimeter of the slab to raise towards the pool, when in fact the slab slopes away from the pool.
5. There are no visual indications of moisture between the concrete slab for example: there is no structural cracking and the concrete slab, which would have been caused by differential soil movement underneath the concrete slab; and there is no evidence of horizontal displacement of the pool wall which would have occurred if there were water ingress and the soil surrounding the pool. Given the difficulties with Mr Branch's opinion it is submitted that the Tribunal should prefer the evidence of Mr Cant.

Consideration of the expert opinion of Mr Cant

1. I am of the view that the owner's expert's opinion is poorly expressed and uncertain as to the cause and effect of the minor visual defects. The expert expresses inferences and hypotheses which are presented as certain conclusions. I was persuaded after cross examination that Mr Cant was unable to sustain his opinion particularly after he was questioned about the owner's proposed method and cost of rectification.
2. The North West Pool quote for rectification relied upon by the owner is found at page 30 of the court book. It relevantly describes the work to rectify the pool as follows: … Tiles on the inner edge - purchase new - then replace. Diamond cut the bondbeam concrete as close as possible to the pool shell to remove the concrete without damaging the pool shell. Hand jackhammer all the concrete (both the bond beam and extra surrounding concrete) from the pool. Remove the concrete from the property with tipping fees. Prepare the site to have the replacement concrete laid. Pour the concrete bondbeam as to the existing width so the newly supplied 400 mm x 400 mm tiles can be relayed - we use stainless steel ties to tie the steel reinforcing to the pool shell at 500 mm centres - we will install dowel inserts to the concrete - to insert galvanised bars at 500 centres - so the surrounding stampcrete can be layed (sic)as to the existing. Pour the surrounding stampcrete outside the bond beam as to the existing.
3. Mr Cant conceded that he adopted the quote as a reasonable method of rectification on an "if found basis". The North West quote states that the existing bond beam should be replaced with one as to "the existing width". The expert, having expressed an opinion that the existing bond beam is likely only of a dimension of 600 mm x 100 mm and having expressed an opinion that the proper bond beam for these soil conditions should be 750 x 150 mm, nevertheless adopted a quote for replacement of the pool that recommends the installation the concrete bond beam "as to the existing width".
4. When this was brought to the expert's attention, he resiled from the quote. Mr Cant was further cross-examined on the North West Pool recommendation 'we will install dowel inserts to the concrete'. Even though the owner's expert had previously adopted the North-West quote as a reasonable method of rectification to adopt (the quote recommends dowel inserts) in his report he clearly states that the installation of "dowel inserts" to the concrete is not an appropriate rectification method for this site and soil conditions. When this inconsistency was brought to the expert's attention, he stated that he was no longer able to support the North West method as a reasonable course to adopt.
5. For these reasons I am not of the view that the owner's expert's opinion is persuasive and on balance the owner has not discharged her onus of proof. First, based on the uncertain opinions as expressed by Mr Cant, I am not persuaded that the owner has established, on the balance of probabilities that the bond beam is only 600mm x 150mm in diameter as only unsatisfactory circumstantial evidence has been adduced to support these dimensions.
6. Secondly, given the pool remediation builder himself suggests that a new bond beam can be poured as to the existing width, and as this quote was adopted by the owners' expert as a reasonable course to adopt, I find this is further indicative of the fact that the bond beam, as installed, is not "defective" within the meaning of the Act.
7. I accept and prefer Mr Branch's opinion that Mr Cant's interpretation of the relevant pool specifications and engineering drawings for the bond beam (Drawing No N-B9187) is incorrect and that the relevant engineering drawings provide three separate options for bond beam configuration. Mr Branch opines that the most appropriate bond beam configuration is 550 mm x 150 mm. While Mr Cant's interpretation of the relevant pool specifications and engineering drawings is different to Mr Branch's interpretation even if it is found that the engineering drawings call for a bond beam 750 mm wide and 150 mm and even if the bond beam were only 600mm x 100mm, this still does not constitute a defect. Mr Branch opines at page 20 of this report that his calculations show that the bond beam has adequate bending moment capacity to support the top edge of the pool shell with an average full depth of 1.42 m and the geometry shown on the survey drawings. As I am not persuaded that Mr Cant's opinion should be given much weight, I adopt and prefer Mr Branch's opinion that the bond beam design and installation does not constitute non-compliance with the relevant standards, is not a defect and has not contributed to other defects. The expert has supported this contention with the requisite calculations and this calculation was not impugned under cross examination.
8. I am satisfied that Mr Cant's report does not express an opinion that the rotation of the bond beam will cause the pool shell to crack and leak. Instead, Mr Cant's opinion throughout paragraphs 8.4.4.7 and 8.4.8.1 of his report states that if (emphasis added) settlement continues the pool shell is likely to (emphasis added) crack and leak. Mr Cant does not express an opinion with any degree of certainty that the pool shell or the waterproofing elements of the pool wall crack and leak. I am therefore not satisfied that Mr Cant's opinion supports the proposition that the builder has carried out defective work, or that the bond beam constitutes a major defect and a breach of the statutory warranties is not established.
9. In summary, at paragraph 85(b) of her written submissions the owner contends that there are two defects in the bond beam of the pool. First, it is rotating internally. Second, its dimensions are not in accordance with the engineering specifications and insufficient for the soil properties at the poolside.
10. The reasons set out above, the applicant's expert report does not establish, on the balance of probabilities, that the bond beam has been installed contrary to specifications. The expert opinion does not establish that the bond beam that has been installed is contrary to the engineering plans and specifications. The expert report has failed to establish the dimensions of the bond beam on the balance of probabilities or that they are insufficient for the soil conditions. I am therefore not satisfied that pool shell is moving inward by reason of a rotating bond beam or that cause of any movement inward is by reason of the builder's failure to install a bond beam with suitable dimensions, or dimensions contrary to plans and specifications.
11. The expert further conceded that he would have designed the pool differently, given the locale's soil conditions, and in accordance with design pressure (see 4.1.7) but the calculations for his opinion that the pool should have been built to 10.kPa (pressure) were not provided. The owner's has provided an opinion without proving, by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. There is no other admissible evidence that establishes that the pool is not built to prevailing soil conditions, and in my view at least as far as the inadequacy of the design by reference to soil conditions is concerned, the expert's opinion is not an opinion on which I can place much weight Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.
12. On balance, I am not persuaded that the applicant's report has established a major defect in the works as constructed. The applicant has failed to discharge her onus of proof and the application is dismissed.
13. As I am not satisfied that the builder carried out defective work, it is not necessary for me to determine the issue whether the first, second and third respondents carried out the work and whether or not they should be jointly and or severally liable.

COSTS

1. Costs ordinarily follow the event. The respondent was wholly successful and accordingly I order that: 1. The applicant is to pay the respondent's costs of and incidental to the proceedings in the ordinary basis as agreed or assessed. 2. If the parties apply for a cost order other than the one in order (1) above within 7 days of the orders being published, order (1) above ceases to have effect and is set aside. 3. Any application for costs is to be made in writing to the Tribunal (with a copy sent to the other party) within 7 days of the date of publication of these reasons for decision and is to include submissions. 4. Any submission in response to the costs application is to be provided to the Tribunal and the other party within 14 days of receipt of the costs application. 5. Any submission in reply is to be provided to the Tribunal within seven days thereafter. 6. In their submissions on costs, the parties are to address whether the issue of costs can be determined without a hearing, on the basis of the written submissions. 7. In the event that all parties apply for costs, an indexed and paginated bundle of all costs submissions is to be provided to the Tribunal at the end of the submission period, to be collated and filed by the costs applicant.

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

Amendments 25 September 2023 - Formatting amendments. 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: 25 September 2023