Connell Enterprises Pty Ltd v Oakvale Homes Building Group Pty Ltd [2012] QCAT 218

CITATION: Connell Enterprises Pty Ltd v Oakvale Homes Building Group Pty Ltd [2012] QCAT 218 PARTIES: Connell Enterprises Pty Ltd (Applicant) v Oakvale Homes Building Group Pty Ltd (Respondent) APPLICATION NUMBER: BDL208-10 MATTER TYPE: Building matters HEARING DATE: 30 September 2011 HEARD AT: Maroochydore DECISION OF: P Hanly, Member DELIVERED ON: 31 May 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant Connell Enterprises Pty Ltd is to pay the respondent Oakvale Homes Building Group Pty Ltd the sum of $1,400.00 by 30 June 2012. 2. Each party is to pay its own costs. CATCHWORDS: Painting contract – terms of agreement – defects period – painting in a proper and workmanlike manner – whether appropriate film build achieved APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Wayne Connell RESPONDENT: Mr Warren Hansen REASONS FOR DECISION [1] The applicant, Wayne Connell, a director of Connell Enterprises (Qld) Pty Ltd (Connell Enterprises), lodged an application in the Tribunal on 13 July 2010 seeking an order relieving his company from payment to Oakvale Homes Building Group Pty Ltd in the sum of $21,891.33. That sum had been contained in a letter of demand dated 26 May 2010 forwarded by solicitors acting for Mr Warren Hansen and Oakvale Homes Building -- 1 of 9 -- 2 Group Pty Ltd (Oakvale) in relation to painting rectification work at two premises owned by Oakvale – 16 Cross Street Gympie and 47 Clematis Street Gympie. [2] Connell Enterprises had undertaken painting work for Oakvale at both premises in November 2008. The Clematis Street work had been completed in approximately December 2008 and the Cross Street work had been completed in approximately January 2009. [3] The agreement entered into between Connell Enterprises and Oakvale included terms contained in an HIA standard form entitled Period Trade Contract Conditions, which was forwarded to Oakvale by Connell Enterprises on 1 April 2008. Connell Enterprises also provided Oakvale with terms and conditions1. A key term of the contract was that a touch ups and defects list had to be presented within 30 days of the work being completed. Once payment for the work was received, Oakvale was taken to have accepted all work carried out by Connell Enterprises. [4] Connell Enterprises issued a tax invoice in relation to Cross Street on 3 April 20092 which was paid by Oakvale on 16 April 2009. A tax invoice was issued in relation to Clematis Street on13 February 20093 which was paid by Oakvale on 2 March 2009. [5] Oakvale lodged a response, seeking that the application be dismissed, and counter-claiming that Connell Enterprises be ordered to pay it $21,891.33, on the basis that the painting work was not performed in a proper and workmanlike manner. [6] The matter was heard on 30 September 2011. [7] At the commencement of the hearing, Mr Hansen advised that, based on the expert evidence following testing of paint samples, he had recalculated his counter-claim at $9,833.00. This figure, based on his own estimate of the cost of carrying out rectification work, comprised $1,733.00 for Clematis Street, $900.00 for the interior of Cross Street, and $7,200.00 for the western wall of Cross Street. The further breakdown of the $7,200.00 comprised $3,500.00 for signwriting, $2,500.00 for scaffold hire and $1,200.00 for cleaning and repainting. [8] The written evidence of Mr Connell4 is summarised as follows: Connell Enterprises applied the requisite number of coats of paint in a skilful and tradesman like manner to both subject properties. The reports from Dulux dated 10 January 2011, 25 January 2011 and 3 March 20115 confirm that all samples of paint taken from subject properties meet the required film build thickness. 1 Attachment D to Exhibit 1 – statement dated 5 July 2011 by Wayne Connell. 2 Attachment E to Exhibit 1. 3 Attachment F to Exhibit 1. 4 Exhibit 1. -- 2 of 9 -- 3 Mr Hansen is an experienced builder who supervised works on behalf of Oakvale and raised no objections to the work performed at the time, or in accordance with the trade terms. Dec Con’s reports (dated 29 March 20106 and 10 January 20117) lack credibility due to the testing methods. In addition some of the alleged defects were so minor that they were missed in the first report. The reports from Dulux were based on results obtained from more accurate methods of testing and should be preferred over the Luxury Paints report8 and Dec Con’s reports. [9] Mr Connell also gave evidence of attending at 16 Cross Street after having received the initial complaint from Mr Hansen in approximately January 20109. Mr Hansen was noted to be using a solvent to clean the walls, which was dissolving the paint. Instead Mr Connell recommended that the walls be cleaned with a soap detergent. Mr Connell advised Mr Hansen that he (Mr Connell) would arrange for a Dulux representative to speak with Mr Hansen about cleaning the paintwork. [10] Subsequently, Mr Adrian Townsend from Dulux Trade attended at the premises and demonstrated to Mr Hansen that painted areas that were marked could be satisfactorily cleaned using a magic wipe cleaning sponge without any damage or deterioration to the paint film.10 [11] Mr Connell obtained quotes11 for rectification work after receiving the first of Dec Con’s reports. The total cost of rectifying the allegedly defective work at the subject premises was $1,040.00. This did not include any component for the western wall at Cross Street. [12] Mr Connell also did his own calculations for the rectification work, which totalled $772.00.12 This figure similarly did not include any component for the western wall at Cross Street. [13] There were expert reports from two sources related to the testing of paint samples from the subject premises. There was also an expert who provided a series of reports concerning visual inspection of alleged defects at these premises. However, as noted by the Dulux Trade representative, Mr Townsend, on 16 September 201013 visual inspection and the use of onsite micrometers to measure paint film build is less accurate than laboratory inspection using stereo-microscopes calibrated for dry film build. 5 Attachments M N & R Exhibit 1. 6 Attachment H Exhibit 1. 7 Attachments O & P Exhibit 1. 8 Attachment T Exhibit 1. 9 Paragraph 14 Exhibit 1. 10 Attachment G Exhibit 1. 11 Attachments J & K Exhibit 1. 12 Paragraph 23 Exhibit 1. 13 Attachment L Exhibit 1. -- 3 of 9 -- 4 [14] Mr George Englert of Dec Con Pty Ltd (Dec Con) first inspected the subject premises at the request of Mr Hansen on 23 March 2010, after which he prepared two reports, both dated 29 March 2010.14 Both reports set out items which required rectification. The report on Cross Street did not make any reference to mould or algal growth on the western wall. [15] Mr Englert re-inspected the subject premises on 5 January 2011. On this occasion, Mr Hansen, Mr Connell, a Dulux representative and Mr Weiss (Mr Connell’s expert) were also present. As before, Mr Englert prepared two reports, both dated 10 January 2011.15 Each report set out items which required rectification, and in respect of the western wall at Cross Street, noted mould on the weatherboards on top of the roof, and also on the wall itself. In both cases Mr Englert expressed the opinion that the lack of film build had been a contributing factor to the development of the mould. He also stated that the raised grain of the sheeting on the wall was another contributing factor, which, combined with the lack of film build, trapped dirt which in turn allowed the mould to grow in damp conditions. [16] Subsequently, eleven paint samples were taken from various locations at the subject premises. Mr Connell and Mr Hansen were both present when these samples were taken. The samples were tested by Dulux for film build thickness measurements (reports dated 10 January 2011 – 7 samples – and 25 January 2011 – 4 samples)16 and Luxury Paints (report dated 28 March 2011).17 Prior to the Luxury Paints report, Mr Hansen requested a more comprehensive report for individual layers, colours and dry film build from Dulux, which provided a further report dated 3 March 2011 on all 11 samples.18 None of these samples was from the western wall at Cross Street. [17] Mr Connell, noting that there was no sample tested from the western wall, later took a sample from that wall, and had it tested by Dulux (report dated 29 April 2011).19 [18] At the hearing, Mr Hansen objected to this test result on the western wall sample. He stated that he did not know when it was taken, nor from which part of the wall. In response to that objection, Mr Connell gave evidence that he had contacted “Dianne”, Mr Hansen’s office manager, and requested that he be permitted to attend at the Cross Street premises and take a paint sample from the western wall. He further stated that when he arrived at the premises, Dianne acknowledged his presence, although she did not accompany him outside when he took the sample. Mr Connell said that there was a ladder available outside which he used to climb up and take the sample. He was unable to state definitively on 14 Attachments H & I Exhibit 1. 15 Attachments O & P Exhibit 1. 16 Attachments M & N Exhibit 1. 17 Attachment T Exhibit 1. 18 Attachment R Exhibit 1. 19 Attachment S Exhibit 1. -- 4 of 9 -- 5 which date he had taken the sample, but clearly it was after January 2011 and before 29 April 2011. [19] Mr Hansen did not request the Tribunal to allow him to call evidence from Dianne to refute Mr Connell’s testimony. Mr Hansen also did not request an adjournment to allow him to have the sample tested by Luxury Paints. He said that the testing was “irrelevant” and challenged the results, but was unable to say why an independent body should have provided erroneous results on this occasion, and not on the earlier occasions when the eleven samples were tested. Mr Hansen concluded that “there was enough material” before the Tribunal in relation to the western wall to allow a finding to be made. [20] Evidence was given by Mr Connell’s employee, Mr Timothy Donovan.20 He confirmed that the work carried out by him at both Clematis Street and Cross Street had involved the application of one sealer undercoat and two finish coats on interior areas with puttying carried out after the doors and frames received the first coat of acrylic sealer and undercoat. This was stated by Mr Weiss, to whose evidence reference will be made later in these reasons, to be “industry standard”.21 [21] Mr Donovan also stated that exterior balustrades were sanded and given one oil based primer undercoat, which was allowed to dry for 24 hours before two coats of acrylic finish were applied to the balustrades, and also to the walls. [22] The first of the experts to give evidence was Mr Caleb Weiss.22 In his written statement, he acknowledged that there were areas in both Clematis Street and Cross Street which required touch-up work to be carried out. He concluded that neither job required a complete repaint. However in relation to the western wall at Cross Street, he expressed the opinion that the problems (with mould) had been caused by the weather and not the lack of film build. [23] Mr Weiss’ oral evidence focussed predominantly on the western wall at Cross Street23 (which was variously referred to throughout the hearing as the south-facing wall, the western wall and the wall with the sign). Mr Weiss stated that the discolouration on the wall was caused by algal growth, which is a common problem on a wall that remains damp for a large part of the day. He explained that the algal growth is promoted by warmth, sunlight and moisture. This particular wall, being a western wall, is in shade for the morning, then warms up with the afternoon sun. After sunset, the warm wall attracts the evening moisture (part of the climatic conditions prevailing in Gympie), leading to condensation. That moisture remains throughout the night, and during the following morning, before it again receives the afternoon sun. 20 Exhibit 3 – statement dated 29 August 2011. 21 Exhibit 4 – statement dated 26 July 2011. 22 Exhibit 4 supra. 23 Exhibit 6 – photograph tendered by Applicant. -- 5 of 9 -- 6 [24] Mr Weiss conceded, in answer to questions from Mr Hansen, that there might also be mould on the wall, but considered that it was predominantly algal growth. Mr Weiss distinguished between mould and algal growth by explaining that algal growth, like a plant, requires sunlight, whereas mould flourishes in damp, dark conditions, much as a mushroom does. Mr Weiss did not consider that the thickness of the paint film was material to the development of algal growth. He stated that even an unpainted surface can develop algal growth. The painted surface is however easier to wash. Mr Weiss further stated that in his view, highway grime was not relevant to the development of the algal growth. [25] In answering the proposition that the roughness of the surface of the western wall, as well as lack of film build, would have enhanced the development of mould (trapping dirt particles which in turn allowed mould to grow, as opined by Mr Englert), Mr Weiss stated that mould can grow on a glass surface, which is very smooth. He did not accept Mr Englert’s view. [26] Mr Weiss advised that in order to keep the algal growth at bay, a chlorine based solution should be used to wash the wall, at least once per year. When questioned as to why the Clematis Street property did not develop algal growth, Mr Weiss explained that the Cross Street property was in a slight gully, whereas Clematis Street was more elevated, thus allowing better air drainage. [27] Mr Weiss was then asked his views about the costs of rectification for the various defects detailed in the material. He stated that he had not been asked to provide a quotation, and had therefore not turned his mind to the issue at the time of his inspection. When the various figures proposed by Mr Hansen were put to him, he could do no more than comment that the figures did not sound “outrageous”. [28] Further expert testimony was provided by Mr Englert.24 In his written statement he addressed the painting defects at both Clematis Street and Cross Street. In relation to the western wall at Cross Street, he said “the lack of sanding to tops of F.C. weatherboards traps dirt and grime which supplies food for mould to grow, if the tops were adequately sanded and sufficient paint was applied to the top of these weatherboards the dirt would be washed off with normal rainfall.” [29] In oral evidence, Mr Englert explained that the lack of film build means that the rough grain in the surface is not filled, and this allows dirt to attach, which in turn provides “food” for the mould to grow. Mr Englert stated that algal growth and mould were very similar, however he conceded that he was a painting expert, not an expert in algal growth and mould. Mr Englert observed that mould requires dark, damp conditions to grow. In response to questions about the prevailing weather conditions in Gympie, he replied that climatic conditions have some impact on mould growth. 24 Exhibit 5 – statement of George Englert undated. -- 6 of 9 -- 7 [30] Mr Englert expressly refuted the need to wash down painted surfaces every 12 months, and stated that in his view every 2-3 years would be adequate. He expected that a wash down with a chlorine based solution would clean up a wall such as the western wall in question. [31] Mr Englert was also questioned about his view of the costs calculated by Mr Hansen for rectification works. He, too, confirmed that he had not been requested to provide a specific quotation for such works. In relation to the Clematis Street property (for which Mr Hansen had calculated $1,733.00, and Mr Coyne had quoted $590.00) Mr Englert estimated $1,200.00 to $1,400.00, based on 3 days work at $50.00 per hour plus about $150.00 for materials. [32] In relation to the interior of Cross Street (for which Mr Hansen had calculated $900 and Mr Coyne had quoted $450.00), Mr Englert estimated that it would take more than one day and probably closer to two days, so that it was likely to be closer to $900.00. [33] Neither of the experts was able to do any more than say that the figures calculated by Mr Hansen in relation to the western wall (comprising scaffold hire, cleaning and repainting and sign writing) seemed reasonable. [34] I have considered the technical evidence in relation to Clematis Street and Cross Street (minus the western wall). With the exception of off white internal walls in sample 2 (first lot – 34 & 37 microns on two separate samples within that packet) as described by Luxury Paints, all samples have the requisite film build thickness applicable to the number of coats as per the specification, and the evidence given by Mr Donovan. In the Dulux testing on the white internal walls sample, average film build was 80 microns, approximately 3 coats. All other samples similarly exceed the requisite 2 coats. I am therefore satisfied that there has been compliance with the specification, and the contractual agreement between the parties. [35] In any event, as Mr Connell has conceded at the commencement of the hearing that there is some minor rectification work required at both premises excluding the western wall at Cross Street, I shall now address the quantum of that work. [36] Mr Connell obtained an independent quotation for the work from Mr Coyne25. Mr Connell also did his own calculations of how much it should cost26. Mr Hansen on the other hand did not obtain an independent quotation, and only did his own calculations, which he did not reduce to writing. In so doing, he conceded that he is not a painting contractor, but considers that his experience as a building contractor equips him to make a fair and reasonable assessment of the costs involved. This may well be so if Mr Hansen were providing the assessment to a third party, but in this instance it is for his own potential benefit. On that basis, I do not intend to 25 Attachments J & K Exhibit 1. 26 Pages 3 & 4 Exhibit 1. -- 7 of 9 -- 8 give the same weight to Mr Hansen’s calculations of the costs as I would to an independent quotation. Similarly, I give lesser weight to Mr Connell’s calculations than I give to his independent quotation. [37] I have also considered the comments made by both experts when Mr Hansen’s figures were put to them. I do not consider the experts’ comments to be anything more than indicative. They were not specifically requested to quote. Neither of them had seen the premises for many months by the time of the hearing. Neither of them had any notes to which they could specifically refer in making their comments. I did not find that these comments assisted me in my determination, beyond allowing me to find that Mr Hansen’s figures were not “outrageous”. That of course is not the test. I am required to make my determination based on what has been substantiated and shown to be reasonable. [38] Mr Coyne provided his quotes in October 2010. The subsequent Dec Con reports of January 2011 noted some further small areas requiring attention at both properties. I have therefore taken that additional work into account in my determination. [39] I am satisfied that the amount which should be allowed for Clematis Street is $750.00. I am further satisfied that the amount which should be allowed for Cross Street (excluding the western wall) is $650.00. I have ordered accordingly. [40] In making these determinations, I am mindful that the terms of the agreement required Mr Hansen to notify of any defects within 30 days, and that following payment of the invoices for the work, he was taken to have accepted all work. [41] However, Mr Connell’s concession at the hearing that there was a small amount of defective work requiring rectification, in my view permits the findings made. [42] Turning to the western wall, I am satisfied that the sample taken by Mr Connell from that wall has been tested by Dulux. In the absence of any cogent evidence that those results are flawed, I accept them. On that basis therefore, I reject Mr Hansen’s and Mr Englert’s assertions that the western wall did not have sufficient film build. I similarly reject their assertions that the mould and/or algal growth were promoted because of the lack of film build. [43] I find Mr Weiss’ evidence of the manner in which algal growth is promoted on such a wall to be more persuasive than Mr Englert’s version, particularly as Mr Englert’s version is largely predicated upon the erroneous view that there is insufficient film build on the wall’s surface. -- 8 of 9 -- 9 [44] I am also satisfied that the mould and/or algal growth could have been kept at bay by a proper maintenance programme undertaken by Mr Hansen, as recommended by Dulux27 and confirmed by Mr Weiss. [45] In relation to the carport28 I accept the evidence of Mr Weiss that the colourbond sheet metal of this structure would allow it to cool and heat more quickly, thereby providing a different environment for the potential development of mould or algal growth when compared to the 8-9mm thick fibrous cement wall of which the western wall is constructed. [46] It follows that I am not satisfied that Connell Enterprises should be held accountable for any rectification or repair work to the western wall at Cross Street. 27 Attachment G Exhibit 1 Dulux Paint Maintenance Guide Page 5 of 12 Sect 4.3. 28 Exhibit 8 photograph tendered by Mr Hansen. -- 9 of 9 --