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- Unreported Judgment
Quinn & Anderson v Don Woods Homes Pty Ltd & Anor  QCAT 55
Don Woods Homes Pty Ltd
Radhound Pty Ltd as Trustee for The Floorsome Unit Trust t/as Choices Flooring Mackay
4 February 2016
10 March 2016
BUILDING - CONTRACT DISPUTE - Where domestic building contract for renovations included vinyl plank flooring - where builder laid the Masonite underlay - where laying of vinyl plank performed by sub - contractor - where bubbles have appeared on the flooring - where glue under Masonite does not comply with specifications - where no independent expert evidence about the cause of the bubbles - whether breach of contract - whether defective work - whether builder liable in damages to homeowner for costs of rectification
BUILDING - CONTRACT DISPUTE-where builder claims sub-contractor responsible for defects - whether evidence to support claim
Heather Quinn & Christopher Anderson represented themselves
Don Woods, Director, represented Don Woods Homes Pty Ltd
Mitchell Pollock, Director, represented Radhound Pty Ltd
REASONS FOR DECISION
- In March 2013, Heather Quinn and Chris Anderson entered into a domestic building contract for renovations to their home with Don Woods Homes Pty Ltd (‘Don Woods Homes’) for $422,776.06. The works included the installation of vinyl plank flooring in kitchen, lounge, dining hall and family room areas. The original flooring in those areas comprised of, in some places particle board; in others, hardwood; and in others, other wooden planking.
- It is uncontroversial that tradespersons employed and/or sub-contracted by Don Woods Homes laid the Masonite underlay for the vinyl plank flooring onto or over the original flooring. Don Woods Homes contracted with Radhound Pty Ltd as Trustee for The Floorsome Unit Trust t/as Choices Flooring Mackay (‘Choices Flooring’) for the supply and laying of the vinyl planking on top of the Masonite underlay.
- There were some variations to the contract. The works were completed in early April 2014. An amount of $428,391.00 was paid to Don Woods Homes by Ms Quinn and Mr Anderson. Don Wood Homes says that $1,657.79 remains outstanding after variations. Ms Quinn and Mr Anderson dispute that they owe the allegedly outstanding amount.
- Mr Anderson and Ms Quinn moved into the renovated home shortly after completion. About six weeks later, they noticed that a bubble had appeared in the vinyl plank flooring, near the kitchen bench. They contacted Don Woods Homes, whose representative inspected the bubble and took a sample from a piece of the vinyl plank that was coming away. Since that first bubble appeared, bubbling has appeared in each of the rooms/areas of the house in which the vinyl planking has been installed. Ridges are also now obvious under the vinyl planking.
- Ms Quinn and Mr Anderson commenced proceedings in the Tribunal seeking damages for the costs of rectification of the defective vinyl plank flooring in the amount of $14,500.00 from Don Woods Homes. Don Woods Homes, in response, counter-claimed an offset of the $1,657.79 from the homeowners. He also purports to ‘counter-claim’ the cost of rectification from Choices Flooring.
- Despite the way the proceeding has progressed, there are two distinct claims. In essence, in their claim (Claim 1), Ms Quinn and Mr Anderson allege that Don Woods Homes, in breach of its contractual obligations, has produced defective work, in respect of the vinyl plank flooring. They claim damages being the cost to rectify the defective work. Don Woods Homes counter-claims an amount which he alleges remains unpaid by the homeowners. A second discrete claim (Claim 2) is made by Don Woods Homes, in which it alleges that Choices Flooring is responsible for the defective work in breach of the sub-contract between them, and claims the amount of any damages awarded, from Choices Flooring.
- There is some irregularity in the manner in which Claim 2 against Choices Flooring has proceeded. However, in the interests of dealing with the matters raised in an economical and expeditious manner (in accordance with s 3 and s 4(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)), and given that both claims were raised on the material before me, I proceeded to hear both of them when they came before me, notwithstanding Don Woods Homes ought to have filed a separate claim against Choices Flooring. I have treated evidence in relation to each claim as evidence in relation to the other claim.
- There is no controversy that both Don Woods Homes and Choices Flooring was each obliged to perform their work under the respective contract arrangements free of defects: in essence, in an appropriate and skilful manner, with reasonable care and skill, and in compliance with relevant laws and requirements. There is likewise no controversy that the flooring is defective, although whether the entirety of the vinyl plank flooring is defective is in issue, or only some limited areas.
- If the entire floor is found to be defective, there is no suggestion that the quote of $14,500 relied upon by the homeowners to remove and replace the existing vinyl plank flooring is unreasonable. Indeed, there have been no alternative quotes filed or relied upon by any party.
- For Claim 1, the controversial issues concern whether the whole of the floor is defective; whether Don Woods Homes is responsible to the homeowners for any defects; and whether the set-off claimed by Don Woods Homes for monies unpaid by the homeowner should be allowed. For Claim 2, the issues concern whether Choices Flooring bears any or all responsibility for the defective works; and if so, whether it should pay an amount of damages to Don Woods Homes.
The events leading to the claims
- Much of the evidence given by the parties is uncontroversial.
- It is unclear precisely when Don Woods Homes laid the Masonite underlay. However, it is uncontroversial that it was laid by December 2013. It is also uncontroversial that the vinyl planking was not laid on top of the Masonite by Choices Flooring, until about March 2014.
- Mr Anderson gave evidence that underneath the piece of plank that was lifted following the appearance of the first bubble, that the nails in the Masonite were 13cm apart, and that Don Woods Homes used pro-spec strong fix adhesive to glue the Masonite underlay to the existing floors. He provided the relevant A2P Hardboard underlay (the Masonite) specifications. The specifications detail that a premium grade flexible polyurethane adhesive is to be used and that the correct spacing for nails (around the perimeter of the Masonite sheeting) to affix the underlay to the sub-floor is 75mm. Mr Anderson provided a photograph which demonstrates that on this piece of planking the nails were 13cm apart. Ms Quinn also explained that over time, distinct ridges have also appeared under the vinyl planking.
- Mr Anderson says that he observed other tradespersons (employed by Don Woods Homes, and others employed directly by the homeowners) continued with construction on the premises after the laying of the Masonite and before the vinyl planking was laid. Mr Anderson gave evidence about tradespersons putting their lunch on the floor, spilling drinks, and on one occasion seeing chicken fat from a whole chicken being placed on the floor. I accept that these events occurred.
- Mr Don Woods, director of Don Woods Homes acknowledged that the A2P specifications are applicable. He also admitted that the adhesive he used was solvent based, rather than polyurethane. He says that there are specifications for some other Masonites which allow for solvent-based adhesives to be used. His evidence was that although the particular nails under the (small) sample of planking taken up may have been 13cm apart, rather than the 7.5cm required, that there is some degree of variation when nailing is done. He asserts, and I accept, that a photograph showing one instance of a gap 13cm does not of indicate the distance between the nails over the rest of the Masonite underlay.
- Mr Woods acknowledged that his tradespersons had nailed the Masonite. He said that the nailing was generally ‘a lot closer’ than 13 cm. His evidence was that Choices Flooring had inspected the Masonite prior to the laying of the vinyl planking, and suggested that there should be more nails. He then arranged for more nails to be inserted as requested before Choices Flooring laid the vinyl planking. As a registered builder, he is of the opinion that the Masonite was ‘nailed off’ adequately. If it was still inadequate, he said that Choices Flooring should or would have told him so. He further says that if there was any damage to the floor which affected its suitability for the laying of vinyl planking that it should have been brought to his attention before Choices Flooring proceeded to lay it.
- Mr Woods was not aware of any issues because of the Masonite being laid in advance. That said, it had been his intention to proceed to have the vinyl planking laid shortly after the Masonite was installed. He says that he did not do so only because the homeowners requested that he not do so because they had other tradespersons, including painters, coming in and that they did not want the floor to be damaged in the process of painting. The homeowners acknowledge that there was a discussion about the other tradespersons coming in, but say that they did not make any request for delay as alleged.
- I am satisfied that whether or not there was a request by the homeowners is irrelevant. Don Woods Homes was the responsible builder. It had control of the site. I am satisfied that if delay was problematic for the integrity of the flooring components, he had a responsibility to advise the homeowners and take steps to organise the works to avoid potential issues accordingly.
- Mr Mitchell Pollock, director and representative for Choices Flooring, was not present when the vinyl planking was laid. He has not been to the premises at any stage although he has seen photographs. He is not a builder, having qualifications in business management and a Certificate III in floor-covering technologies. He said that Choices Flooring employed a registered installer, a Mr Trevor Hall, who laid the vinyl planking. He acknowledged that gluing of the Masonite to the sub-strate was required by a newly (in ‘the last two to three years’) prescribed Australian Standard (‘AS’), although neither he (nor Mr Woods) was able to identify which AS contained the requirement. Prior to this change, nailing alone was adequate to meet requirements.
- Mr Pollock has no knowledge what was actually done at the building site, although he asserted that Choices Flooring had not experienced any other problems. He asserted that if there was chicken fat on the Masonite underlay that it could be sanded off and that it would not be responsible for the issues which have materialized with the homeowners floor. He did not know whether the Masonite had been sanded, but asserted that he understood from the tradesperson concerned that all appropriate steps had been followed.
- Mr Pollock suggested to Mr Woods that Choices Flooring’s salesperson (who did not give evidence) had recommended that the Masonite be installed by Choices Flooring, but that Mr Woods had declined and decided to do it. Mr Woods’ evidence was that when discussing the flooring with Choices Flooring sales representative, he had said that he intended to install the Masonite and that the salesperson had simply agreed. He denied that a recommendation was made to him as asserted by Mr Pollock. In the absence of direct evidence from the salesperson concerned, I accept Mr Woods version of events.
- Mr Pollock provided e-mail and correspondence that he had obtained from Moxon (the business which distributed the Masonite), A2P (the manufacturer of the Masonite) and RLA Group (the manufacturer of the vinyl plank flooring). As a result of their cumulative effect, he asserted that the problems were not caused in relation to adhesion between the vinyl planking and the Masonite (and therefore, not caused by anything Choices Flooring did).
- Moxon had initially suggested that the problem was the vinyl flooring (noting previous issues with the flooring). A2P had later asserted that the delay between laying the Masonite and installing the vinyl plank flooring which had affected the integrity of the Masonite (essentially blaming a possible spill/s prior to laying the vinyl). RLA asserted there was no issue with the cohesion of the vinyl to the Masonite, but possibly an issue between hardboard and floor. The authors of these documents were not available for cross-examination at the hearing. Mr Pollock explained that he had invited representatives of A2P and Moxon to give evidence in relation to these matters, but they had declined.
- In any event, the correspondence and e-mail relied upon is signed by salespersons and a company director, rather than persons with any building qualifications and experience, as far as the documents before the Tribunal reveal. Further, these companies have vested interests in their product/s not being responsible. Given that the evidence has not been tested and the vested interests involved, I am satisfied that it is not appropriate to give any weight to the opinions expressed in the correspondence and emails.
Claim 1: The homeowners claim against Don Woods Homes
Is the whole of the vinyl planking flooring defective?
- As discussed, Ms Quinn gave evidence that there are ridges or distinct lines which have appeared over time. However, the specifications indicate that some floor coverings under a certain reflective light may show through the underlay sheet joints. I am satisfied that the lines or ridges of which Ms Quinn spoke are the joints. As this is to be expected, I am not satisfied on the evidence, that the lines or ridges are evidence of defective work.
- Although it is uncontroversial that there are bubbles, the photographs presented demonstrate that there are bubbles, as alleged, in the flooring. I am satisfied that there are bubbles in diverse locations: I am therefore satisfied that the issues with the flooring are not confined to a discrete area or areas, and encompass all areas and rooms in which the vinyl plank flooring has been installed. I am further satisfied that, contrary to the manufacturer’s specifications, Don Woods Homes used solvent glue to affix the Masonite to the existing flooring.
- I am satisfied that the weight of the evidence supports a finding that the flooring has not been laid with reasonable care and skill and in accordance with manufacturer’s requirements. I so find. I find that it is defective building work.
Is Don Woods Homes responsible for the defective work? If yes, what amount of damages should be awarded?
- Ms Quinn and Mr Anderson entered into a contract with Don Woods Homes for works including for the cost and installation of the vinyl plank flooring. They paid him for works including the flooring. The flooring is defective building work. They are entitled to damages in the amount of the reasonable costs of repairing the defect.
- Don Woods Homes had claimed that if damages are awarded that it be confined to damages for a small area of flooring concerned. However, I have accepted that there are now bubbles throughout the flooring in each of the areas in which the vinyl planking is laid. Accordingly, it is appropriate to award damages that recognise the cost of removing and replacing the entirety of the flooring, that is, $14,500.
The claimed offset of $1,657.79
- Don Woods Homes rendered an invoice for the amount of $1657.79. Mr Woods gave evidence that it remains unpaid. Mr Woods says he has made no attempt to follow this up because of the progress of this claim against him.
- Mr Anderson and Ms Quinn acknowledge receiving the invoice. They say that there was a variation to the effect that the rain water tank and pump which form part of the contract was not provided. The tax invoice shows a credit of $3,141.00 for the tank and pump. However, they say that the full price was over $5,000.00 and that the difference is the $1,657.79.
- Mr Woods says that some work was done prior to the homeowners’ change of mind about the installation of the tank. He says that a pad was cut for the tank, and that when it was no longer required excavation had to be done for rainwater to be diverted back to the front of the premises. The homeowners dispute that a pad was cut, or that excavations were necessary on the basis that there were pipes ‘anyway’, for the existing house. They say that if extra work was required because of the change, that they should have been separately notified of it in a separate variation.
- I accept that some work may have been carried out by Don Woods Homes to cut the pad. However, Mr Woods says that the amount claimed of $1,657.79 relates to cutting the pad and some other excavation work. There is no itemisation for each of these costs. If excavation work was required which did not form part of the original contract it should have been the subject of a separate variation. The evidence does not suggest that there is one. The cost of cutting of the pad, if that was done, is unknown. There is no evidence about it before the Tribunal. In the circumstances, Don Woods Homes has failed to present evidence to establish its counter-claim.
- That being the case, the counter-claim against the homeowners cannot succeed.
Claim 2: Don Woods Homes’ claim against Choices Flooring
Is Choices Flooring responsible to Don Woods Homes for the defective works and should it pay any damages to Don Woods Homes?
- Don Woods Homes claims that Choices Flooring is responsible for the defective vinyl plank flooring.
- I have little evidence before me (and that which I do have is vague) about the state of the Masonite underlay at the time the floor was laid.
- I have no evidence, other than Mr Pollock’s assertions made (despite never having been to the premises) and based on a conversation with his installer (the veracity of which cannot be tested as the installer is not a witness in the proceedings) about the preparations undertaken by Choices Flooring’s installer to ensure that the vinyl planking was appropriately laid in accordance with requirements.
- In any event, I have no compelling expert evidence about the cause of the defect. Mr Pollock relies in particular upon the letter from RLA Group the supplier of the vinyl planking which analysed the problem, although only based on photographs. RLA’s sales manager opined that there had been sufficient transfer of adhesive film to the substrate, suggesting that, at least in the area of the sample that was taken, there was no issue with the state of the Masonite underlay and that the vinyl was sufficiently adhered to it. However, I have placed no weight on this evidence for the reasons identified earlier.
- Mr Woods apparently acknowledges some (unspecified) level of responsibility in using a solvent-based glue when a polyurethane adhesive was specified.
- It is possible that the actions of Choices Flooring were either responsible for or contributed to the failure of the floor. However, for Don Woods Homes to succeed in its claim against Choices Flooring, I must be reasonably satisfied on the evidence that this is more probable than not, not that it is merely possible. Don Woods Homes has not presented evidence in support of its claim that the actions of Choices Flooring are responsible for the defect, as opposed to the actions of its own employees and sub-contractors.
- Accordingly, Don Woods Homes’ claim against Choices Flooring must fail.
- Accordingly, in respect of Claim 1, I make orders for the payment by Don Woods Homes Pty Ltd to the homeowners in the sum of $14,500.00 within 28 days of these orders.
- Claim 2 is dismissed.
 A separate application should have been filed by Don Woods Homes for this claim.
 Choices Flooring had the opportunity to file material and present its case, despite the irregularity, and all parties understood the hearing to encompass both claims.
 Exhibit 1, “Annexure E”.
 Exhibit 2, photograph 3.
 Exhibit 6, email from Corinne Marshall, Sales Representative, Moxon, dated 27 October, 2014.
 Exhibit 6, letter from Jim Moore, Managing Director, A2P Timber to Moxon dated 26 November 2014.
 Exhibit 6, letter from Brent Cartwright, Sales Manager - Flooring, RLA Group to Karndean International dated 13 November 2014.
 Exhibit 1 – “Annexure E” p.2, column two as marked by Mr Woods.
 Exhibit 5 – Attachment Tax Invoice 1502 dated 4 June 2014.
- Published Case Name:
Heather Quinn and Chris Anderson v Don Woods Homes Pty Ltd and Radhound Pty Ltd as Trustee for The Floorsome Unit Trust t/as Choices Flooring Mackay
- Shortened Case Name:
Quinn v Don Woods Homes Pty Ltd
 QCAT 55
10 Mar 2016