Cousins v Barber [2018] QCAT 34

CITATION: Cousins & Anor v Barber [2018] QCAT 34 PARTIES: Darren Cousins Nicole Cousins (Applicants) v Daniel Barber t/as Impact Asphalt (Respondent) APPLICATION NUMBER: BDL025-16 MATTER TYPE: Building matters HEARING DATE: 13 April 2017 HEARD AT: Maroochydore DECISION OF: Member McLean Williams DELIVERED ON: 16 February 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The Respondent is required to pay to the Applicants the sum of $23,593.10 within 28 days of the date of these orders. CATCHWORDS: Construction of an asphalt driveway – questions regarding adequacy of workmanship APPEARANCES: APPLICANT: Mr Darren Cousins, in person for both Applicants RESPONDENT: Respondent, in person REASONS FOR DECISION [1] On 24 June 2014 the Applicants Mr Darren Cousins and Mrs Nicole Cousins retained Mr Daniel Barber (who trades as ‘Impact Asphalt’) to construct an asphalt driveway with brick edging at their home at Doonan, on the Sunshine Coast. The driveway is a relatively large one, approximately 90 metres in length, with a total area of approximately 462 square metres. Impact Asphalt laid about 45 tonnes of asphalt (to a depth of 40 millimetres) during construction. The cost for same, including all -- 1 of 7 -- 2 necessary site works, the brick edging, and drainage works was quoted by Impact Asphalt at $32,780. Ultimately, Impact Asphalt was paid $32,160 by Mr and Mr Cousins. [2] One week after the driveway was finished a very heavy rainfall washed away approximately 3-4 metres of the road base, out from under the lower right side of the driveway. Mr Barber came back at that time and effectuated some repairs. Mr Barber took the view that these problems were not attributable to any of the works that he had performed, as he had departed from the site instructing Mr and Mrs Cousins that a depression adjacent to the driveway at that location needed filling. This was to be done as part of on-going landscaping works that were being performed next to the driveway, by a landscape contractor. [3] Within a few further weeks the Applicants noticed other problems with the driveway, this time referable to subsidence and cracking. Mr Barber again returned, yet expressed the view that the cracking and subsidence was nothing to worry about. The Applicants did not agree with that assessment. [4] Much of the mortar between the brick edging on the sides of the driveway also started to degrade and fall apart, also within only a few weeks of initial installation. Although Mr Barber again returned to site to inspect the mortar joints, Mr and Mrs Cousins say that he insisted to them that these looked completely normal. Mr Barber, on the other hand, says that he agreed to fix at least a portion of the brick edging, yet says that Mr and Mrs Cousins refused to let him do this work. [5] Investigations by engineers and other tradesmen commissioned by Mr and Mrs Cousins now lead them to contend that the works undertaken by Impact Asphalt was so defective that the driveway needs to be completely redone, primarily by reason that the road base beneath the asphalt was not adequately compacted, before the final asphalt surface was laid upon it. The Applicant’s say that further significant damage has been caused to the driveway by the inadequate drainage installed by Mr Barber, and that the brick edging failed because the mortar mix used to bed the bricks was much too sandy. [6] On 19 February 2016 Mr and Mrs Cousins commenced these proceedings by way of an Application for domestic building disputes seeking an award of damages in the amount of $25,000 from Daniel Barber. In Part C of that Application, Mr and Mrs Cousins indicate that they are actually seeking $27,816 by way of refund from Daniel Barber, comprising: $2,440: for the cost of having all the mortar between the bricks on the edges of the driveway removed, the pavers cleaned, and then re-laid correctly; $20,526: for the cost of removing the existing asphalt, properly compacting the road base beneath it, and then laying new asphalt. -- 2 of 7 -- 3 $4,850: as the cost for installing proper drainage, to replace the allegedly inadequate and defective drainage installed by Impact Asphalt. [7] By the time this matter was heard before me at Maroochydore, the Applicants had refined their claim, and were now seeking $32,304, comprised by: $2,440: repairs to brick edging $20,526: quoted costs to repair the driveway $4,850 Quoted costs to repair the drainage; $599.60: QCAT filing fee $643.50 Compaction testing $1,045: cost of Cardno Engineering Report $2,200.00 Engineer’s fees for the QCAT Expert’s conclave (only an estimate). Respondent’s Case [8] Mr Barber does acknowledge that one section of the brick edging required some remedial work (which he had agreed to undertake at no cost to the Applicants) yet that they refused to let him come back and do this work. Mr Barber otherwise denies that the driveway was improperly constructed, although he does indicate that he did offer to repair two further sections of it (despite those defects not being attributable to any of his work), but that Mr and Mrs Cousins again refused his offer. [9] Mr Barber now claims $2,281 that he says is outstanding from Mr and Mrs Cousins, referable to (a) $1,661 for repair works performed by him after part of the driveway was washed away in the heavy rain event, and (b) the GST component ($620) on the bricks used in the brick edging which he says Mr and Mrs Cousins never paid. [10] Mr Barber says that a vibrating roller was used in an appropriate manner during construction to compact the road base, and that adequate drainage for the driveway was installed. Mr Barber agrees that repair works had to be undertaken by him after torrential rain damaged part of the driveway, yet says that this damage arose only because Mr and Mrs Cousins failed to back-fill an area adjacent to the driveway after it had been completed, in the manner that he had advised them, and they had agreed that they would do. [11] Mr Barber says that the workmanship guarantee given by Impact Asphalt is limited by specified terms and does not include damage to the driveway that is caused by: … -- 3 of 7 -- 4 (4) Any act or omission by the owners, or any employee, servant guest and or agent of the owners; or (5) Cracking or shrinkage due to the existence of tree roots and/or sub- surface earth movement due to changing weather conditions including earthquakes, flood, burst pipes easements; or (6) Damage caused by the use of heavy earthmoving machinery and/or heavy vehicles prior to obtaining advice or consent from Impact Asphalt. You must inform Impact Asphalt at the time of your initial measure and quote if you require the use of heavy earthmoving machinery or heavy vehicles in the future and/or after completion of Impact Asphalts work to avoid unnecessary damage. We use a standard depth of 150mm crush rock with our driveways although this may increase to 150mm to 300 mm if the area is to have the use of heavy machinery and/or vehicles in the prevention of any damage. [12] Mr Barber contends that the problems seen with the driveway have arisen as the result of the failure by Mr and Mrs Cousins to back-fill an area adjacent to the driveway in the manner that he had advised them, as well as being due to “changing weather conditions” and either (a) earthmoving machinery (as used by landscape contractors retained by Mr and Mrs Cousins around the time of the construction of the driveway) or (b), subsequently, by grocery delivery trucks driving on the driveway, which are all events that Mr Barber contends are excluded from his warranty by clauses 4, 5 and 6, as excerpted, by me in paragraph [11], above. Applicant’s evidence [13] The Applicants commissioned an engineering investigation by Cardno Construction Sciences (‘Cardno’). This investigation included invasive testing of the compacted road base beneath the asphalt by means of a dynamic cone penetrometer (‘DCP’). The DCP testing undertaken by Cardno reveals that the degree of compaction of the road base at the three selected test sites, as measured by DCP varied between 90.5% and 94%. These results were considered by Cardno to be too low. The Cardno report says that the Brisbane City Council requires 95% compaction, and the Sunshine Coast City Council requires 97% compaction. Road base thickness at the three selected DCP test sites was found by Cardno to be 135mm, 215mm, and 300mm. Asphalt thickness at the test sites was between 40 and 45mm, yet the overall thickness of the driveway was (at least in the opinion of Cardno), insufficient in some places for a lightly trafficked granular pavement. [14] Mr and Mrs Cousins also obtained evidence from Mr Glenn Palk, who is a bricklayer. Mr Palk says that the mortar used in the brick edging on the driveway had not been mixed correctly and was much too sandy. Mr Palk also says that no mortar haunch had been applied to the side of the bricks, so as to prevent them from moving laterally. Mr Palk says that on 22 and 23 October 2014 he and his workers lifted all the bricks, and then re-laid these, correctly. Mr and Mrs Cousins were charged for that work. -- 4 of 7 -- 5 [15] Finally, Mr and Mrs Cousins rely on evidence from Mr Peter Smith from Dynamic Turf Management. Mr Smith says that he was on site laying turf in July 2014, when Impact Asphalt was constructing the driveway. Mr Smith says that he did not see Impact Asphalt using a vibrating roller to compact the road base. Mr Smith says that he observed the road base being spread by means of a skid steer loader, and that the only compaction undertaken of the road base - at least as was observed by Mr Smith - was by means of the skid steer loader. Mr Smith does however say that Impact Asphalt used a vibrating roller once the hot mix asphalt was laid, subsequently. Mr Smith further says that the drainage installed by Impact Asphalt was, in his view at least, wholly inadequate, and could not cope with rainwater runoff, and that this resulted in a portion of the driveway becoming undermined during a heavy downpour. Mr Smith was then retained by Mr and Mrs Cousins to redo the drains. [16] By way of reply to that evidence Mr Barber says that, although one section of the brick edging did require some remedial work the primary difficulty with the brick edging has been caused by landscape machinery, used by other contractors (presumably Mr Smith), having driven over it. Mr Barber also says that Mr Palk’s evidence about haunching should be ignored by me, as laying each paver in a 90mm bed of concrete (as he says that he did in this instance) is, in his view at least, far superior to haunching. [17] In regards to the engineering evidence from Cardno, Mr Barber says that his own inquiries with Austroads (an Industry Advisory Body for road construction) reveal that there is no industry design standard for driveways and that the closest design standard is the Pavement Design Standards for Light Traffic: which suggests that a minimum base thickness of 125mm is acceptable for ‘light traffic’ contexts. The Cardno investigations reveal that the minimum road base depth installed on the Cousin’s driveway by Impact Asphalt is 135mm, thus exceeding that standard (although I do here note that this is less than the 150mm minimum thickness promised in the Impact Asphalt warranty, as excerpted by me in paragraph [11], above). [18] Mr Barber also submitted a statement from a Barry Schulz, dated 10 April 2017. Mr Schulz says that he operates a water truck, and that he applied water to the road base on the Cousin’s driveway at Doonan in July 2014, whilst Mr Barber compacted the newly wetted road base, by means of a vibrating roller. Conclusions and the evidence [19] I accept the evidence of Mr Palk the bricklayer. I conclude that the mortar mix used in the brick edging along the entire length of the driveway was much too sandy, and that the brick edging should have been installed with a proper mortar shoulder haunch. I do not accept that Mr Barber’s claimed 90mm mortar bed is superior to haunching. Although Mr Barber is of the opinion that much of the damage to the brick edging must have been caused by the landscape contractors driving their machinery over the brick edging, that is just supposition, by him. There is not sufficient independent evidence of that before the Tribunal to allow me to be satisfied that I could -- 5 of 7 -- 6 comfortably reach that conclusion. I find that the brick edging was not satisfactorily installed, and was already in a poor condition within only a few weeks after installation. [20] I accept that the thickness of the sub-bed road base and the asphalt installed by Impact Asphalt on the Cousins driveway at Doonan were of an acceptable industry standard. The road base was not less than 125mm in thickness, and the asphalt was between 40mm and 45mm. [21] Although I am prepared to accept that Mr Barber did use a vibrating roller on the road base before the asphalt was subsequently laid over the top of it, I conclude that the road base was not however sufficiently compacted by Mr Barber before the asphalt top surface was then laid over it, and that the lack of sufficient compaction is now confirmed by the Cardno invasive testing, by means of DCP. I conclude that this has caused the early signs of degradation now seen in the driveway. I do not accept that earthmoving machinery and/or delivery trucks subsequently driving on the driveway have caused this damage, because there is insufficient evidence to allow me to draw that conclusion. [22] Mr Barber’s own web site marketing material (as has been put into evidence by the Applicants) says that driveways may fail, if road base is not adequately compacted. The website also says that the rectification process is costly, necessitating the removal of the new driveway in order to address the problem. [23] The area of most contention in the evidence relates to the adequacy of the drainage works performed by Mr Barber. Mr Barber says that his drainage work was entirely adequate, and that back filling over the drainage pipe installed by him was to be completed by other contractors. There is no dispute that a heavy rain event did wash away a sizeable portion of the driveway, even before the Cousins had any reasonable opportunity to back fill over the drain installed by Mr Barber. That was most unfortunate. Ultimately, I do not think that responsibility for the timing of that rain event should be a matter attributed to Mr Barber. Nor should Mr Barber be required to meet the cost of it. [24] The Cardno report commissioned by Mr and Mrs Cousins proffers no real opinion in relation to the drainage issues. Although Mr Smith, the landscaping contractor called on behalf Mr and Mrs Cousins, does say that the drainage installed by Mr Barber was inadequate, Mr Smith does not go on in his very short statement to elaborate and explain the nature of that reputed inadequacy. Because of that, I do not regard Mr Smith’s opinion as affording sufficient basis for a finding in relation to the drainage issue. Ultimately, I conclude that the Applicants have not adduced sufficient evidence in relation to the drainage issue to make out that specific component of their claim against Mr Barber. [25] In the end, I am of the view that the Applicant’s should have judgement against the Respondent for the following amounts: -- 6 of 7 -- 7 a) $2,440: repairs to brick edging; b) $20,526: quoted costs to repair the driveway; c) $599.60: QCAT filing fee; d) $643.50 Compaction testing; e) $1,045: cost of the Cardno Engineering Report. [26] I make no provision in the judgement sum for the Applicant’s to have the costs of Cardno Engineering attend the compulsory conference. Equally, the Respondent Mr Barber should be entitled to the $1,661 that he says was invoiced to the Cousins (yet never paid) in order to effectuate further repairs after the rain event that caused damage to the driveway approximately 1 week after it was completed. That sum should now be deducted from the award to Mr and Mrs Cousins. [27] I order that the Respondent pay to the Applicant’s the sum of $23,593.10 within 28 days. -- 7 of 7 --