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  4. Scomparin v Sekisui House Services (Qld) Pty Ltd - [2018] QCAT 426

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Scomparin v Sekisui House Services (Qld) Pty Ltd[2018] QCAT 426

Scomparin v Sekisui House Services (Qld) Pty Ltd[2018] QCAT 426

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Scomparin v Sekisui House Services (Qld) Pty Ltd [2018] QCAT 426

PARTIES:

JOHN SCOMPARIN

and

CAROLYN SCOMPARIN

(applicants)

v

SEKISUI HOUSE SERVICES (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

BDL141-17

MATTER TYPE:

Building matters

DELIVERED ON:

24 October 2018

HEARING DATE:

17 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

Application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – where contract contained extended 25 year warranty described as a guarantee – interpretation of term structural failure of structural timber - whether breach of warranty – where homeowner added additional load to roof – whether timber trusses failed – whether timber trusses were designed to support additional load

Building and Construction Legislation (Non-conforming Building Products-Chain of Responsibility and Other Matters) Amendment Act 2017 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Clarke v Mariotis [2009] VSC 279

Dunne v Dwyer Quality Homes [2017] QCAT 262

Hampson v Clyne (1967) 86 WN (NSW) 321

Oscar Chess Ltd v Williams [1957] 1 WLR 370

Sterling Estates Development Corporation Pty Limited v Malouf & Anor [2003] NSWCA 278

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S McCarthy, instructed by Mills Oakley Lawyers

REASONS FOR DECISION

  1. [1]
    The applicants, John and Carolyn Scomparin, who, for ease of reference, I will refer to hereafter as the ‘Scomparins’ engaged A V Jennings Ltd to build their home at 6 Sittella Court, Noosa. The house constructed was of a single level brick veneer construction on a concrete raft slab. The roof structure consisted of concrete tiles supported by 12 metre timber roof trusses at 600mm centers. The ceilings and walls were plasterboard cladding.
  2. [2]
    In late 2014, the Scomparins noticed the deterioration in the plasterwork around the centre of the house including cornices which were cracking. They sought the advice of some builders about fixing the plaster and were advised that the cause of the cracking was that timber trusses supporting the roof were collapsing.
  3. [3]
    In 2010, the respondent, Sekisui House Services (Qld) Pty Ltd (’Sekisui’) assumed all relevant obligations of A V Jennings Ltd. On completion of the home A V Jennings Ltd provided the Scomparins with a 25 year Structural Guarantee (‘Guarantee’). Sekisui assumed A V Jennings Ltd’s obligations under that Guarantee.
  4. [4]
    The Scomparins now claim under the Guarantee as they allege that their ceiling problems arose from a structural failure of a number of the trusses that support the roof.
  5. [5]
    Sekisui assert that the cracked ceilings and cornice damage are not due to structural timber failure within the meaning of the Guarantee but are due to the natural downward deflection of the trusses due to the imposition of plant and equipment weighing 600 kg, which was installed on the roof during the period between 2011 and 2014. The equipment comprised a hot water system, air conditioner and solar panels.
  6. [6]
    There are two subsidiary issues. The first is a claim in negligence. The second is a claim under s 74AG of the Queensland Building and Construction Act 1991 (Qld) (‘QBCC Act’). That section was inserted into the QBCC Act on 1 November 2017 as part of the Building and Construction Legislation (Non-conforming Building Products-Chain of Responsibility and Other Matters) Amendment Act 2017 (Qld) which received Royal assent on 31 August 2017. That part of the Act applied to investigations that are commenced but not been completed at time of the commencement of the amended section. That is the limit of its retrospectivity and could have no application to the contract and construction in this case.
  7. [7]
    The claim of negligence was not formulated with any degree of precision. The Scomparins, merely alleged that there was a duty of care and the Respondent had breached it. Indeed, there was some degree of confusion between the negligence claim and the claim under the guarantee as Ms Scomparin submitted that, in denying the 25 year structural guarantee, Sekisui had breached its duty of care. I do not consider that a case of negligence has been made out.
  8. [8]
    There is common ground between the parties on a number of issues. Firstly, it is agreed that A V Jennings Ltd built the home in 1999. Secondly, that in 2010 Sekisui assumed all relevant obligations of A V Jennings Ltd.
  9. [9]
    It is further agreed that the building contract contained a guarantee the following relevant terms:

WHAT YOUR GUARANTEE COVERS UP TO 3 MONTHS AFTER COMPLETION.

…

We will rectify at our expense in the faulty workmanship or material is carried out or installed by us in or to your home. This includes plumbing, roof tiling, wall tiling, electrical systems, brickwork, fencing, septic or sewerage installation.

UP TO 1 YEAR AFTER COMPLETION.

We will rectify at our cost:

  • Paint failure
  •  Faulty spiting, downpipes and storm water drains

UP TO 25 YEARS AFTER COMPLETION.

We will rectify at our cost:

The structural failure of:

  • Concrete foundations
  • Load-bearing brickwork
  • Structural timbers

PLEASE NOTE

…

This guarantee does not cover problems caused by misuse or neglect on your part. It is therefore in your interest to ensure your home receives proper care and maintenance.

  1. [10]
    It appears that Sekisui was first notified of the problem on 5 January 2015.
  2. [11]
    The damage to the house involved damage to plaster cornices running along the ceiling separating the passageway and the kitchen as well as the Bathroom, Meals and Family area. The cornices had cracked and, in some cases, broken away.[1] There was also cornice damage to the north-south wall between the Lounge/Meals area. There was a vertical crack in the cornice and plasterboard bulkhead to the eastern wall of the Meals area adjacent to the wall opening through the Gallery. There was cornice damage over the south wall (external) wall of the bathroom. There was a localized area of undulation and slight sag in the line of the roof tiles at the north-east corner of between the eastern end of the PV solar panels and north east corner roof hip and the south western corner of the roof over the Bedroom 2. There was some degradation of mortar to capping tiles to the south-west corner hip.

The Applicant’s case

  1. [12]
    The Scomparins allege that the failure is due to a structural failure of the timber trusses. In support of that allegation they rely upon the expert opinion of Mr Jason Lindsay of Lindsay Consulting, Structural and Civil Engineers, Mr Arthur Cross a Registered Builder and Mr Sunil Narsey, State Engineering Manager of MiTek Australia Ltd.
  2. [13]
    Mr Cross, after inspecting the house in June 2016, expressed the opinion that the timber trusses were collapsing under the roof weight. This, he thought, had been caused by inappropriate timber sizing and installation. He provided a scope of works and quotation to repair the defects at $71,591.74 inclusive of GST.
  3. [14]
    Mr Lindsay inspected the premises on 30 August 2016. He found that the roof trusses were suffering from excessive movement resulting in structural issues with the residence. The roof profile had a predominant wave in it resulting from the movement of the trusses. Inspection of the roof trusses showed that the trusses had moved vertically under the weight of the tiled roof. That has caused the trusses to settle on the internal non-loadbearing walls causing the trusses to be compressed resulting in rotation to the chords of the trusses.
  4. [15]
    Movement of the trusses and the pressure applied to the non-loadbearing walls throughout the residence has caused internal walls to move and crack along with a cracking at the intersection of the ceiling and the walls. Mr Lindsay thought the trusses were failing due to them not being structurally adequate to carry the load or due to poor installation i.e. not being installed vertically or not within the tolerances of AS4440-2004 Installation of nail-plated timber roof trusses.
  5. [16]
    His report incorporated the opinion of Mr Sunil Narsey, State Engineering Manager of MiTek Australia Ltd.
  6. [17]
    MiTek Australia Ltd, inter alia, engineers and manufactures prefabricated roof trusses. Mr Narsey identified the manufacturer of the trusses used in the house as Northside Trusses & Frames, a firm that no longer exists. However, he was of the opinion, that the timber roof trusses had been designed in accordance with sound and widely used engineering principles and the relevant codes of practice. His report is illustrated with a series of photographs depicting the faults he had identified in his report.
  7. [18]
    Essentially, those faults, comprise a number of trusses (HRG2400-1, HTS1, HTS2, and HTG42001-1) where the horizontal top chords have dislodged about 45mm from the middle connections. They had been fixed with only two skew nails which Mr Narsey considered not good building practice as the best connection should be metal connectors for key structural members.
  8. [19]
    Trusses HT1B and HT1A top chords had dislodged about 35mm from the hip connections and were fixed with only one 100mm x 50mm StrapNail plate. Again, he considered that this was not good building practice, the best connection he considered should be metal connectors with proper fixings for key structural members.
  9. [20]
    Trusses HGT1 and HT1 had their top cords dislodged about 35mm from the apex connections and were fixed with only 2 skew nails, again not good building practice.
  10. [21]
    Truss T1 has its apex nail plates dislodge next to Truss HGT1. He considered the apex plate dislodged because of the series of adjacent trusses referred to above had dislodged because of poor fittings. He noted that trusses TS2, TS3, TS4 and TS5 on the south side were bowing along the top chords because they had been installed out of plumb when the building was constructed. Again, this was evidence of poor workmanship.
  11. [22]
    Mr Narsey observed that the middle section of the roof on the northside looked wavy particularly where the solar panels were loaded. He noted that the solar panels and the air conditioning unit loaded on the middle of the roof were additional loads that were not allowed for in the initial truss design. Some of the rectification work he recommended involved strengthening some of the trusses with a single top chord timber scab so as to support the solar panels. He recommended similar rectification work, by the installation of timber scabs on trusses supporting the air conditioning unit.
  12. [23]
    It is implicit from Mr Narsey’s report that he considered that a cause of the cornice cracking and other cracks in the walls and ceilings was due to the additional loads of the solar panels and air condition unit on the roof and the poorly installed trusses.
  13. [24]
    Mr Narsey's report considered a possible reason for the cornices to crack and trusses to be pulled apart in the middle could be due to slab upheaval during adverse weather conditions. He strongly suggested that a geotechnical consulting engineer be used to check or monitor if there has been any differential settlement.
  14. [25]
    Mr Narsey did not give oral evidence and was not cross examined on his report. It seems that he was not asked to specifically for his opinion as to the cause of the cornice cracking or wall and ceiling cracks. He recorded no observations about the trusses resting on the external wall plates.
  15. [26]
    Mr Lindsay provided a further statement dated 4 December 2017. In that statement he referred to the applicable Australian Standards that were current at the time of construction in 1999. He was of the opinion that, if properly designed in accordance with those standards, the trusses should have been adequate to support the additional loads of the air-conditioning unit solar panels and hot water system. From the information in his possession he thought the original trusses were under designed contributing to the structural issues with the residence.
  16. [27]
    Subsequently, on receipt of further information Mr Burnell, the Respondent’s expert, Mr Lindsay was satisfied that if the original trusses had been correctly installed as designed then they were structurally adequate.

Respondent’s case

  1. [28]
    Initially, Sekisui engaged Mr Douglas Turnbull, a structural and civil engineer of the firm T. D & C Pty Limited, Consulting Engineers & Construction Managers to inspect the house and provide a report dated 18 November 2015. Subsequently, it engaged Mr Neil Burnell a Civil Engineer of Intelara, Consulting Engineers who provided 2 reports dated 22 December 2016 and 31 January 2018.
  2. [29]
    Mr Turnbull inspected the house on 29 May 2015. He formed the opinion that the cornice deformation and distress had arisen from a differential movement between the roof trusses and the walls. The cornices were affixed to both the ceiling and the wall, and thus any relative movement of those members would deform the cornices. He considered the fixing detail to be incorrect, inappropriate and a cause of the cornice damage. He did not consider it a ‘structural failure’.
  3. [30]
    He reviewed the observed truss member sizes and compared them with the standard ‘Gang nail Truss Designs’. The truss members he observed conformed with the required member sizes and he did not believe there was any deficiency in the truss design. He opined that the expected truss deflection after fixing the cornices would be expected to be only one to 2mm due to ‘creep deflection’ of the trusses. Such deflection ‘duration factor’ did not increase after one year and, therefore, in, his opinion, the creep deflection was expected to have occurred within the first year. The amount of deflection would not have caused the distress and distortion he had observed in the cornices. He observed the trusses to be in good order and condition and there was no evidence of any factor which would cause trusses to deflect after the initial creep deflection. In his opinion, there had been no ‘structural failure’ of the roof trusses and they were not a source of the relative movement of the ceiling and the wall.
  4. [31]
    It is apparent that Mr Turnbull’s inspection did not reveal the dislodgement of some of the trusses, nor that some of the trusses were out of plumb and poorly installed. Mr Turnbull did not give oral evidence and was not cross-examined.
  5. [32]
    Mr Turnbull observed that as the deformation and distress had arisen 15 years after construction of the residence it was not logical that the distress was due to the roof truss deflection. He thought that the relative movement of the ceiling in the wall causing the distress to the cornices may be due to the movement of the ground slab either from settlement of the slab at the edges and/or heave (uplift) of the slab in the middle. The residential Slabs and Footings’ Code AS2870 limits the differential the formation of the raft slabs for articulated masonry veneer construction to span 400 or 30mm max. In his opinion, the slab differential the formation of the residence did not exceed that limit and there was no ‘structural failure’ of the concrete foundations. Whilst he acknowledged the defects had caused damage to the cornices it had no effect on the structural integrity of the residence and the rectification works were not a structural item.
  6. [33]
    Mr Neil Burnell’s two reports related to inspections on 9 and 19 November 2016. The second report, comprising 107 pages, responds to the Scomparins’ statement of evidence which was accompanied by the various expert reports, already referred to.
  7. [34]
    As part of his investigations Mr Burnell modelled and analysed a typical 12 m span timber roof truss, representative of those supporting the ceiling area where the cornicing was crushing or had failed using a Microstran frame analysis program. The results of that analysis and his manual calculations corroborated the structural design and adequacy of the typical roof trusses used in the house. In particular the 12 m span timber roof trusses were structurally adequate as originally designed and specified. There was no structural failure of any the roof trusses at the house. They were structurally adequate to withstand the relevant load combinations for dead loads, including truss self-weight, the concrete tiled roof, the plasterboard ceiling, the additional equipment loads on the roof, a roof maintenance live load and wind loads.
  8. [35]
    Mr Burnell observed that the tiled roof was in good condition overall and was performing satisfactorily with no reports of leaks. There was some minor undulation in the plane of the roof which was due to deflection of some trusses but had been there for some time but there was no distress in the truss framing.
  9. [36]
    On inspecting the top of the internal walls, where the typical roof trusses pass over the top plates of the internal walls Mr Burnell noted there was a vertical clearance of between 25 and 45mm between the bottom of the roof truss chords and the top of the internal wall top plates. He noted that where the roof trusses span over internal walls the plasterboard cornices have been firmly fixed to both the ceiling and the top of the wall. Where the cornice is the observed missing from the south wall to the Meals area, the bottom chords of the timber trusses appear to be resting on the top of the plasterboard wall sheeting.
  10. [37]
    Mr Burnell visually inspected the truss installation throughout the roof space and in particular over the Kitchen/Family/Meals/Laundry/Passage area where the ceiling cornice damage had occurred. He was of the opinion that the installation generally complied with the intent of the relevant standards, although several areas, he considered, required closer investigation and remediation. Mr Burnell identified these as follow:
    1. (a)
      Truss ST2 had a horizontal lean towards the west at its top compared to its bottom chord. He commented that this was something that had not occurred recently and that it was quite stable. He said the truss was installed this way and locked into position by a combination of the metal strap roof bracing, the closely spaced timber batons, the timber binders between the bottom chords of the trusses and then by the plasterboard ceiling itself fixed to the bottom of the trusses. It was found to be 65mm out of vertical. It was non-compliant.
    2. (b)
      The top chord of Truss ST1 at the southern end had a visibly noticeable localised vertical sag between the end of the truss and the first internal panel point where the diagonal web member meets the top chord. The sag was approximately 10-12 mm vertical and was compliant with the Code.
    3. (c)
      The top chord of truss TGT1 at the southern end was noticeably horizontally out of alignment with the bottom chord. This had not occurred recently nor was it indicative of degrading timber framing. It appeared to be quite stable locked into its position similarly to Truss ST2. The top chord was 90mm to the east compared with the bottom chord. This exceeded the limit of 50mm in the code and therefore was non-compliant. Even so, Mr Burnell noted that the truss was not resting on the top of the timber framed internal wall between the Passage and Bedroom 2.
    4. (d)
      The long web member near the centre of Truss ST3 appeared to have a slight lean over its length. A spirit level indicated it was 20mm out of vertical but was within tolerances and therefore compliant.
  11. [38]
    Mr Burnell was unable to identify any obvious sagging or bowing in the individual framing members at the north-east corner between the eastern end of the solar panels in the north-east corner hip over the Garage where minor sagging and the roof had been noted. He believed the minor sagging at tile level was due to incremental long-term differential deflections of the varying stiffness roof framing elements and drying out of the individual timber framing in the roof tile line. There was no distress in the framing or the roof tiles associated with it. He observed that the sag was within limits set by QBCC Standards and Tolerance Guide - February 2016.
  12. [39]
    The roof framing beneath the minor sagging in the roof tile line at the south-west corner was due to the out of vertical alignment of the south end of the top/bottom chords of TGT1 and the localised sag in the south end of ST1.
  13. [40]
    The internal walls within the house were non-loadbearing timber stud walls. The external timber framed walls were 35mm higher than the internal walls and provided a nominal 35mm vertical gap between the bottoms of the roof trusses on the top of the internal walls.
  14. [41]
    He advised that the gap begins to reduce after the trusses have been installed and loads are applied to it. The timber trusses, when initial load is applied, will deflect immediately (called short-term deflection) and will then continue to deflect for a year or so, being the long-term effect called ‘creep deflection’. Any incremental increase in the loading will produce an additional short-term deflection followed by an amount of creep deflection.
  15. [42]
    It was structurally intended, with the above considerations that the roof trusses should never bear on these internal non-loading bearing walls. The minimum vertical gap found during his investigation was in the order of 20mm and a maximum of 38mm and none of the typical trusses was in direct contact with the top of any of the internal wall top plates.
  16. [43]
    He noted a plasterboard coving cornice was installed to seal the gap between the top of the plasterboard wall lining and the plasterboard ceiling lining at both the external walls and the internal walls. The cornice adhered to both the plasterboard wall lining at the top of the wall and the ceiling plasterboard lining attached to the underside of the timber roof trusses using cement to provide a rigid fixing.
  17. [44]
    Mr Burnell measured the floor levels throughout the house and, in particular, the areas where the cornice had been affected and found those areas were fairly flat.
  18. [45]
    Summarising his findings, Mr Burnell observed that the cornice distress was first noticed by the Scomparins in late 2014 approximately 15 years after construction and that it was not logical for the cornice distress to be due to ‘failure of the roof trusses’ unless, something had changed either by additionally loading to the framing or because of a deterioration of the timber due to white ant infestation or water ingress. He findings were:
    1. (a)
      There was no evidence of trusses having failed or collapsed on the top of internal stud walls as claimed by other experts;
    2. (b)
      The roof trusses identified by him as being non-compliant have continued to stand without failing;
    3. (c)
      There was evidence that all the standard roof trusses spanning over the area where there has been distress to the cornices have deflected with time since the cornices were originally installed in late 1999, which was to be expected;
    4. (d)
      The cornice detail of rigid fixing directly to the top of the plasterboard wall lining and to the plasterboard ceiling has provided no allowance for the additional downwards deflection in the roof trusses after the cornices were installed. The additional deflection has caused the roof trusses to bear on to the top of the ceiling cornices where it can be seen in a number of locations that this deflection has been absorbed with the plasterboard ceiling in the cornice locally crushing and distorting in the area under the bottom of the truss bottom chords where the trusses pass over the gap at the top of the internal stud walls. At the location where the cornice is completely dislodged is where the two trusses supporting the ceiling mounted AC unit passover and they had deflected the greatest amount after the cornicing was installed; and
    5. (e)
      The cornice damage was completely due to the incremental additional deflections of the roof trusses that occurred after the ceiling cornicing was installed. These include the creep the flexion component of the roof trusses from the weight of the tiled roof and ceiling after the cornices were installed and the increasing increments of short and long term creep deflection as the additional loads of the air-conditioning unit, solar panels and hot water system were placed on the roof trusses.
  19. [46]
    Sekisui’s case is that the cornice and ceiling failure is not the result of ‘structural failure’ within the meaning of the Guarantee. The cornices have been inappropriately affixed to the walls and ceiling, in a manner, that does not allow for differential movement between the roof trusses and the wall.
  20. [47]
    The cause of the movement between the roof trusses and the wall was creep deflection of the timber trusses from the weight of the tiled roof in the short term, plus creep deflection as a result of the installation of a ceiling mounted air conditioning unit and the later addition of solar panels and solar hot water system to the roof.
  21. [48]
    Defects noted in a number of trusses, such as dislodgment or being out of plumb or with nail plates that had prised free, occurred at the time of installation and were not a cause of structural failure.

Experts Conclave

  1. [49]
    Mr Lindsay and Mr Burnell attended an experts conclave on 2 May 2018. Their report dated 9 May 2018 responded to a series of issues put to the them. I have set out below the issues and the experts’ response.

The nature and extent of the alleged defects with respect to the structural timbers

  1. [50]
    It was agreed that 4 trusses were out of vertical alignment laterally between position of the top and bottom chords. Mr Lindsay said there were six. Mr Lindsay asserted that the roof battens had sagged in the course of the dwelling’s lifetime and not only after the application of additional loads. Similarly, the trusses had been undergoing structural failure, unobserved for years, and the addition of the extra loads was the tipping point for the structure. Mr Burnell denied this was the case. He said none of the four trusses he found out of alignment was sagging. He referred to a level survey of the ceiling over the Kitchen/Family/Meals area he had undertaken in November 2016 which showed little vertical variance across the area. He indicated that the four trusses that were out of alignment were to the west end of the Kitchen and not over the area where the ceiling cornices had failed or fallen off. No roof trusses were resting on the internal walls. The trusses over the main cornice damaged area had been appropriately installed and were performing satisfactorily.

The likely cause of any identified defects with respect to the structural timbers (with specific consideration to what impact the addition off added loads to the roof had on any identified defects)

  1. [51]
    Mr Lindsay maintained that 6 or 7 of approximately 25 trusses were incorrectly installed, and then the problem had been exacerbated by the additional load on the roof caused by the solar panels, hot water system and the air-conditioning unit.
  2. [52]
    Mr Burnell said, whilst admitting some trusses had been poorly installed, the problem did not manifest for 10 to 12 years until the additional load was applied to the roof. On balance, he thought the additional load was a primary causative factor for the identified problem. The primary defects of the trusses was that they had not been installed vertical within the code tolerances

The locality and extent of damage caused by any identified defects with respect to the structural timbers

  1. [53]
    Mr Lindsay said the locality and extent of the problem is that as revealed in the MiTek report.
  2. [54]
    Mr Burnell identified the areas of damage and installation defects. He observed that the defects were pre-existing defects and away from the area where the ceiling cornice damage had occurred.

Is the design and installation of the timber roof trusses structurally sound and in accordance with good industry practice and the relevant Australian design standards? With specific consideration to:

(i)    The design loads applied to trusses during construction and whether those were compliant with the requirements of AS 1170.1-1989

  1. [55]
    Mr Lindsay was satisfied that the original trusses (if correctly installed) as designed were structurally adequate. He would not confirm that the trusses were working satisfactorily for some 15 years after the original construction of the house but concluded that the movement was noticed after the addition of the extra loads.
  2. [56]
    Mr Burnell said the roof truss structural design was correct in terms of the load requirements of AS 1170 on the basis of the Microstran truss analysis and timber member design to AS 1720 he conducted. This was supported by the original truss design certificate issued by the truss manufacturer from when the roof was constructed. He also referred to other evidence. He considered that the truss installation defects were unrelated to the ceiling cornice damage. He considered the timber roof structure had performed satisfactorily until the ceiling, damage became apparent in late 2014. He considered that four trusses had not been installed in accordance with the guidelines of AS 4440.

(ii)    Whether or not the original truss design accounted for, or is sufficient to accommodate, any additional loads

  1. [57]
    After being provided with some additional calculations, Mr Lindsay agreed that correctly installed the trusses would carry the additional loads.
  2. [58]
    Mr Burnell said that the original truss system was designed for its intended purpose at the time which did not contemplate and was not even today, required by Code, to allow additional loads such as solar panels, hot water systems or air-conditioning. He considered the roof trusses had deflected an additional amount as consequence of additional loads having been placed on the roof well after its original construction.

(iii)    Are timber roof trusses performing stress-wise and defection-wise in accordance with standard engineering principles?

  1. [59]
    Mr Lindsay said it cannot be determined that the trusses were not suffering structural deterioration prior to the addition of the extra loads, loads which from Mr Burnell’s calculations should not have caused the structural failure of the trusses.
  2. [60]
    Mr Burnell answered in the affirmative but admitted there had been slightly more additional deflection than theoretically calculated, most probably due to factors used to determine the ‘creep’ component of the deflection that can vary. The additional deflection caused by the additional loads was a natural response, and sufficient to cause the brittle ceiling cornice fixing between the top of the internal walls and the underside of the ceiling to fail. The notification of the damage by the Scomparins was consistent with the timing.

If there are identified defects with respect to the timber roof trusses, do these defects amount to a ‘structural failure’ in the sense contemplated by the 25 year guarantee?

  1. [61]
    Mr Lindsay answered in the affirmative on the basis that the incorrectly installed trusses have led to a structural failure of parts of the truss system to the roof and need to be rectified.
  2. [62]
    Mr Burnell answered in the negative stating that they were localised defects relating to the original roof truss installation as installed defects and had not led to any structural failure parts of the roof framing to the extent that it would invoke the 25 year guarantee. He emphasized, that it was important to separate the pre-existing defects from the damage caused by the additional load as applied to the roof trusses. He considered that the builder was not responsible for the damage to the ceiling cornices caused by the additional loads on the roof. He thought the defects should be fixed.

If the answer is yes, what is the likely scope and order of magnitude estimate of cost of defect rectification work?

  1. [63]
    Mr Lindsay considered six or seven trusses plus some nail plates needed to be rectified as detailed in the MiTek’s report.
  2. [64]
    Mr Burnell relied upon the scope of works contained in his report. In addition, he considered some nail plates needed to be rectified/strengthened. Mr Burnell adopted some of the MiTek recommendations but excluded many as being subjective, by which I understand, he meant unnecessary.

Discussion

  1. [65]
    Of the experts who provided reports in this case, only Mr Lindsay and Mr Burnell gave oral evidence and were cross examined on their findings and opinions.
  2. [66]
    Mr Cross, a registered builder, expressed the opinion in his written report that the timber trusses were collapsing under the roof weight because of inappropriate timber sizing and installation. I reject that opinion as it is not supported by any evidence or, indeed, investigation other than an inspection. There has been no other criticism of the timber sizing.
  3. [67]
    Sekisui criticises Mr Narsey’s report on a number of bases. Firstly, he was not made available for cross examination. Secondly, although he identified a number of defects in the installation of the trusses he does not say that such defects are structural defects. Thirdly, he expresses no opinion as to whether the defects are the cause of the damage complained of, that is the cracking and cornice failure. I note the criticism but will give the report such weight it deserves allowing for its deficiencies.
  4. [68]
    Overall, I found Mr Burnell’s analysis to be the most persuasive. His report was through and detailed and included the Microstran frame analysis program. Mr Lindsay’s report was confined to his observations on inspection and involved no real analysis of the problem. There was no basis for his opinion that trusses had been undergoing structural failure, unobserved for years, and that the addition of the extra loads was the tipping point for the structure was not supported by any detailed investigation or analysis. He changed his initial opinion that the trusses were structurally inadequate to support the load (including the additional items of plant) to acceptance of Mr Burnell’s opinion that, as designed, they were structurally adequate. His opinion that the movement of the trusses and the pressure applied to the non-load bearing walls throughout the residence was the cause of the cracking and cracking of the cornices was, clearly wrong. Mr Burnell found no instances of the trusses coming into contact with the internal walls and observed clearances of between 25mm and 45mm between the bottom of the roof truss chords and the top of the internal wall plates.
  5. [69]
    Mr Burnell’s opinion that the cause of the cracking was caused as a result of short-term deflection and creep deflection of the trusses on the rigid plaster board coving cornice sealing the gap between the wall and ceiling which made no allowance for additional downwards deflection, I find compelling. Whilst the cornices may have survived up to the present time had additional loads not been placed on the roof, the additional deflection and creep deflection of the additional loads, added to the roof, caused the cracking, first observed in late 2014.
  6. [70]
    I accept Mr Burnell’s opinion that the trusses had deflected because of the additional loads but have not failed. There is no evidence to support Mr Lindsay’s opinion that the trusses may have been suffering from structural deterioration prior to the addition of the extra loads.

Structural failure?

  1. [71]
    In the Tribunal decision of Dunne v Dwyer Quality Homes[2] Member Howe considered a similar guarantee. It is worth repeating the Member’s findings in full as they are apposite to this case.

[14] Lord Denning in Oscar Chess Ltd v Williams[3] discussed a case  involving a warranty as to the age of a motor vehicle in which he regarded the expressions guarantee and warranty use there to be fairly interchangeable: "in saying that he must prove a warranty, I use the word "warranty" in its ordinary English meaning to denote a binding promise. Everyone knows what a man means when he says, "I guarantee it", or "I wanted", or "I give my word on it". He means that he binds himself to it. That is the meaning which it has born in English law 300 years…"

[15] How then is the "30 year structural guarantee" to be construed? I conclude it was intended to be a warranty by the builder of the adequacy of the builder structural construction work and the builder promised that it would hold good for 30 years.

  1. [72]
    The decision of Dunne (supra) considered a guarantee relating to the ‘structural integrity of the footing slab design, and structural construction work by… [the builder]… in the house’. It was held in that case that a defective termite management system installed by the builder was an essential component of the structural construction work and without it the construction work would have been prohibited. Therefore, the termite management system was covered by the 30 year structural guarantee. It can readily be seen that the requirements of the guarantee were quite different to what was guaranteed in the instant case.
  2. [73]
    Member Howe referred to the Macquarie Dictionary which defined the word ‘structural’ as ‘of or relating to structure; relating to essential to a structure.’ Member Howe went on to comment:

Structure is defined as "mode of building, construction, or organisation; arrangement of parts, elements or constituents… A complex system considered from the point of view of the whole rather than of any single part…" Those definitions introduce the concept of component parts fit together make up a whole.

  1. [74]
    Counsel for Sekisui, in his written submissions, referred me to a number of authorities in relation to the meaning of ‘structure’ and ‘structural failure’. He submitted that the term structure varies, considerably, according to its context.[4] In a building context, for a fault or defect to be of a ‘structural’ nature in the relevant sense it must be ‘of a substantial nature which must be done to the fabric of a building’.[5] In other words, he submitted it must be a ‘fault or defect in the property which arose even from the construction of the structure or subsequent failure on the part of the structure to remain satisfactorily put together’.
  2. [75]
    Where the context requires more than merely establishing a defect of a structural kind (such as, for example, identifying a ‘major’ structural defect), a two-step process is necessary. The first involves identifying that the fault was of structural kind as per the above. The second requires consideration of the consequences of the defect to the building itself. In the case of Clarke v Mariotis [2009] VSC 279, Justice Hansen considered the meaning of the words ‘major structural defect’ contained in certain special conditions that were annexed to a contract for the sale of land. In this regard he commented thus:

The expression "major structural defect" is to be understood in the sense of encompassing an important, serious or significant but not minor shortcoming that is in or relates to the structured building.[6]

  1. [76]
    Justice Hansen provided guidance as to what to look for when assessing whether a defect was serious enough to constitute a major structural defect. He stated that regard must be had to whether the defects ‘will produce consequences significantly deleterious to the building itself.’
  2. [77]
    Counsel submitted that one must assess the seriousness of the defects to the structure of the building by looking at the deleterious consequences of the impugned defects to the building itself in order to determine whether defects are tantamount to a structural failure. The term ‘failure’ would suggest that the consequences to the building would be of greater detriment than a major structural defect above. Indeed, from an engineering viewpoint, failure has been defined as ‘an unacceptable difference between expected and observed performance.’[7]
  3. [78]
    Counsel referred to Mr Burnell's comment in his report of the definition of structural failure he said:

The addition of the word ‘failure’ following the word ‘structural" in the structural guarantee as it relates to the roof trusses means excessive deformation or collapse of the truss(es) due to the applied loading exceeding the structural capacity of the truss or truss members or connections or it supports

  1. [79]
    Counsel goes on to submit, based on the above authorities, that in assessing whether the alleged defects identified by the Scomparins amount to a structural failure, regard must be had to the consequences of the defect(s) to a structural component of the building and whether it is of such detriment that it has resulted in collapse, deformation or some other failing in the relevant sense (not merely identifying a defect in a structural sense)
  2. [80]
    The phrase that requires my determination in this case is ‘the structural failure of structural timbers.’ Clearly, the trusses were structural timbers. Were the timbers that formed part of or comprised the truss a ‘structural timber’? Ms Scomparins, in the course of the proceedings and in her submissions, was at pains to distinguish between individual timber members and the truss assemblage. She submits that there has been a gradual and progressive failure of the truss assemblage.
  3. [81]
    It appears to me that some weakness in a timber member that forms part of a truss does not necessarily interfere with the integrity of the truss as a whole. So, as in this case, though there may be some twisting or bowing of a timber member the integrity of the truss of which that timber member forms part has not been affected. In my opinion, the individual timbers comprising the truss cannot be seen as a structural timber.
  4. [82]
    Mr Narsey, Mr Lindsay, Mr Turnbull and Mr Burnell accept that the trusses supplied complied with the Australian Standards and were appropriately designed. If there has been any failure of the trusses it arises from the manner in which they were installed. Mr Narsey, Mr Lindsay, and Mr Burnell agree, that as a result of poor workmanship, some of the trusses have not been installed correctly. That may result in structural failure, but it is not because of failure of the structural timber. In any event, I have found that the trusses have not failed.
  5. [83]
    In relation to the damage to the cornices I find the cause to be that they were rigidly fixed to the top of the plasterboard walls and ceiling which made no allowance for additional downward deflection in the roof trusses after the cornices were installed. The downward deflection was due to the incremental creep deflection from the tiled roof and ceiling and then the incremental loading deflections of the roof trusses that occurred as a consequence of, the additional weight of the AC unit, hot water unit and solar panels placed on the roof trusses that span over the Family, Kitchen, Meals, Passage and Bedrooms areas of the residence and the additional creep deflection caused by the additional loads.
  6. [84]
    In respect to the cornice damage to the north-south wall I find that it resulted from the same cause that is the downward deflection of the 12m span trusses under the additional 600kg load.
  7. [85]
    The crack in the corners and plasterboard bulkhead to the eastern wall of the meals area I also find be due to the same cause. I note that Mr Burnell considered there may have been some contribution by the differential movement between floor slab and wall. If that be so is not due to any structural failure of the trusses.
  8. [86]
    There was cornice damage over the south wall (external) wall of the bathroom. Mr Burnell thought that probably was due to localised settlement. I accept that. It was not due to any structural inadequacy of the trusses.
  9. [87]
    The roof undulation that relates to vertical tolerance of the roof truss in that area but again, is not due to roof truss failure.
  10. [88]
    I agree that the degradation of the mortar to the capping tiles was a maintenance issue.
  11. [89]
    The Scomparins installed plant and equipment on their roof, over a period of time, without any investigation of the capacity of the roof to bear such weights. Mr Burnell acknowledged that the strength of most roofs originally designed to the relevant loading codes with no specific allowance for solar panels are able to be justified structurally to support the weight of solar panels within their structural capacity. However, he stated it should never be readily assumed that the added loads to the roof trusses post construction can automatically be accommodated without causing additional deflection and/or otherwise affecting the roof truss capacity to meet Code performance requirements. In this case there not only have solar panels been installed but also a hot water system and an air conditioning unit. These loads should be assessed on a case-by-case basis and the homeowner should seek expert advice from a suitably qualified professional.
  12. [90]
    The same view was shared by MiTek in its 2005 brochure where it is recorded:

Trusses are designed for normal roof, ceiling and wind loads to suite (sic) specific jobs and conditions. Additional loading such as solar units, hot water tanks air-conditioning etc. require special consideration. Advice should be sought from a fabricator prior to commencing construction

  1. [91]
    Sekisui submits that it was not commonplace to add solar panels to roofs in 1999.
  2. [92]
    The guarantee contained an additional term to the following effect:

This guarantee does not cover problems caused by misuse or neglect on your part. It is therefore in your interest to ensure home receives proper care and maintenance.

  1. [93]
    It follows that the Guarantee does not respond to the claim. If I am wrong in this regard, it is my opinion that the Scomparins have breached the Guarantee by placing the additional loads on the roof without seeking any advice as to the potential effect of doing so.
  2. [94]
    I dismiss the claim. I invite the parties to file written submissions in relation to the Respondent’s entitlement to costs. Such submissions, if any, to be filed by the Respondent by 16 November 2018 and by the Applicants by 23 November 2018.

Footnotes

[1]The areas of damage is depicted in Appendix B of the Intelara report dated 31 January 2018.

[2][2017] QCAT 262.

[3][1957] 1 WLR 370, 374.

[4]Hampson v Clyne (1967) 86 WN (NSW) 321.

[5]Sterling Estates Development Corporation Pty Limited v Malouf & Anor [2003] NSWCA 278, [77].

[6]Clarke v Mariotis [2009] VSC 279, [41].

[7]Technical Council on Forensic Engineering of the American Society Civil Engineers (1982).

Close

Editorial Notes

  • Published Case Name:

    John Scomparin & Anor v Sekisui House Services (Qld) Pty Ltd

  • Shortened Case Name:

    Scomparin v Sekisui House Services (Qld) Pty Ltd

  • MNC:

    [2018] QCAT 426

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    24 Oct 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bruce Dunne & Heidi Dunne v Dwyer Quality Homes [2017] QCAT 262
2 citations
Jump To
Cite 1 - [2017] QCAT 262
Cite 2 - [2017] QCAT 262
Clarke v Mariotis [2009] VSC 279
3 citations
Jump To
Cite 1 - [2009] VSC 279
Cite 2 - [2009] VSC 279
Cite 3 - [2009] VSC 279
Hampson v Clyne (1967) 86 WN (NSW) 321
2 citations
Jump To
Cite 1 - (1967) 86 WN (NSW) 321
Cite 2 - (1967) 86 WN (NSW) 321
Oscar Chess Ltd v Williams (1957) 1 WLR 370
2 citations
Jump To
Cite 1 - (1957) 1 WLR 370
Cite 2 - (1957) 1 WLR 370
Sterling Estates Development Corp Pty Ltd v Malouf [2003] NSWCA 278
2 citations
Jump To
Cite 1 - [2003] NSWCA 278
Cite 2 - [2003] NSWCA 278

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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