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Rakus v Bennett t/as Tough Floors QCAT 328
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Rakus v Bennett t/as Tough Floors  QCAT 328
Euan Douglas Bennett t/as tough floors
22 September 2021
On the papers
Member Paratz AM
Euan Douglas Bennett t/as Tough Floors is to pay to Jasa Rakus the amount of Five Thousand Six Hundred and Thirty-Five Dollars and Fifty Cents ($5,635.50).
DUTY OF CARE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – DAMAGES AND CAUSATION – GENERALLY – where an owner relied upon the builder to provide an appropriate system of coating over an existing tiled floor – where breach of duty by builder in undertaking building work – assessment of damages
Queensland Building and Construction Commission Act (1991) Qld, s 77(h)
Cerda v Jacob  QCATA 57
Kirkby v Coote  QCA 61
Bellgrove v Eldridge (1954) 90 CLR 613
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- Jasa Rakus (‘the owner’) contracted with Euan Douglas Bennett t/as Tough Floors (‘the builder‘) to apply an epoxy coating to the front patio and rear alfresco area of the owner’s home at Springfield Lakes in Brisbane.
- The work involved the application of an epoxy coating over existing floor tiles.
- The builder gave an initial quote number TF1292 dated 24 October 2015 to the owner for $4,635 (ex GST), which is $5,098.50 (incl. GST).
- Two later quotes for the work dated 16 October 2016 were also given to the owner. Quotation number TF1292-1 as to the rear patio was for $3,240 (ex-GST). Quotation TF1400 as to the front patio was $860 (ex-GST). The total of those quotes was $4,100 (ex-GST), which is $4,510 (incl GST).
- After the work was completed, the owner noted defects in the work, including visible ghosting lines, dents and bumps in the flooring, inconsistencies of topcoat application, missing flakes particularly around the edges, visible scratches of the surface and bubbling of the flooring.
- The owner initially commenced an application for minor civil dispute in relation to the matter on 17 April 2009 seeking refund of the amount of $4,100.00 (excl GST), he subsequently sought to amend the amount claimed to $4,510 include GST. He also seeks the filing fee of $120.50.
- The matter was transferred to the Building Disputes list of the Tribunal on 12 February 2020.
- A direction was given on 1 October 2020 for the matter to be determined on the papers. These are the reasons, and decision, in the matter.
- The owner sent an email to the builder on 3 January 2017, shortly after the work was completed, as follows:
Thanks again for working over the holidays on our patio, we really appreciate it.
I just wanted to share some photos we took yesterday afternoon before we started using the patio.
There’s a few issues that will probably need to be revisited.
Some areas have ‘dents’ in them and a few are missing flakes. The lines are also still visible, and it doesn’t seem they have been reduced at all. Also there are some inconsistencies (lines, missing flakes) around the edge.
- An exchange of emails then took place between the owner and the builder as to what to do about the situation. The builder proposed on 8 October 2018 that a decorative strip be placed over the split, and maybe one or two other areas in the back area to disguise the area, and also to act as a feature.
- The owner did not agree to that proposal, and sent an email outlining their position as follows:
Thank you for your reply. We both find your sudden distancing from our liability very surprising due to several reasons.
- We have first alerted you to the imperfections and issues of the job on our patio on 3rd of January 2017, just a few days after the job was finished. The issue is whether the visible lines along the tile grout line, and photos of these lines were attached with the email.
- We have also alerted due to bubbles and hollow sound in both the front porch and back patio floor on more than one occasion since the job was done.
- We dispute the report prepared by Mr Dalton Bryant on 3rd of October 2018 as we believe Mr Bryant was not provided with all the information needed to make his conclusions neither has he visited the site in person. The lines on the epoxy floor on our back patio were present since the job was finished, which indicates that the lines were there due to the job finishes and not due to the movement of tiles.
- Mr Dalton Bryant’s report from 3rd of October 2018 questions suitability of the epoxy flooring over tiles in external environment. The solution of applying epoxy flooring over the tiles was proposed by you and if the tiles are indeed not a suitable match with epoxy, you should take full responsibility for suggesting such a solution in the first place. At no point in the process, neither the first time in 2016 nor the second in 2017 were we given the information of potential substrate movement and the risk of something like this happening. In our conversations prior to finishing the job you have never advised removing the tiles altogether, instead you as the subject matter expert, concluded that grinding of tiles would be sufficient. We have expressed our concern of different materials and different movement the first time we discussed epoxy as an option, and you showed us a sample of an ‘old’ epoxy that was rigid and inflexible and the new product which, according to you, allowed for plenty of movement and was used for lining Utes. You advised us that this option was the best one, which is why we have decided to follow your advice.
- During Mr Bartlett’s inspection we again pointed out several issues including the lines, cracks, bubbles, hollow areas and scratches on our epoxy flooring, which indicates that there are other issues there and not just movement of tiles.
- We also dispute the opinion of ‘the other supplier’ provided in your email from 8th of October, since this supplier never came to investigate the issue in person.
We are hereby claiming the warranty on both the product and labor, and requesting Tough Floors to either address/repair all the issues or return the money paid for the job, so that we can get someone else to rectify the damage.
- The owner stated that he had been advised that it was not possible to rectify the work, that the system of coating the existing outdoor tiles with an epoxy finish was unsuitable, and that an alternative system of finishing the concrete areas was required:
- I, the applicant, have since learned that the above issues typically occur when applying epoxy on top of existing tiles and when applying epoxy to outdoor areas (attachment 8). I have also learned that many suppliers only use epoxy flooring for indoor surfaces, as the material is not suitable for outdoor use due to impacts of UV rays and rain. The solution of applying epoxy flooring over the existing tiles was proposed by the Respondent, which was in retrospect a bad advice from someone who should have been an expert in the area.
- Due to the nature of epoxy flooring these defects are not rectifiable. The only possible solution is to replace the whole flooring, which is what the respondent confirmed verbally on several occasions. The defects will only worsen over time. Cracks will become bigger, moisture will penetrate under the epoxy coating, making it crack even further resulting in peeling off the coat, more cracks and holes. Discolouration will continue to worsen leading to unappealing look of the epoxy flooring.
- Based on the above I believe evidence exists that the work performed is defective, which is why I, the applicant, request a refund of the amount outlined in point 2. Refund will cover some, but not all the cost involved in rectifying the flooring defects. In order to rectify the defects and damage caused, epoxy flooring and tiles underneath will need to be removed and new flooring suitable for outdoor area (not epoxy) will need to be installed. A quote for such works as been obtained from OzGrind (attachment 9). Shortly after the epoxy flooring is applied, and before I realised how severe and difficult the epoxy flooring defects were, I had an outdoor kitchen built on the flooring (photo and attachment 7) which will represent an additional challenge and cost in repairing the damage. The outdoor kitchen will have to be removed for the flooring works to be installed which will increase the cost further.
- The quote from Ozgrind Polished Concrete dated 1 August 2019 was to hone the concrete, and apply a sealer, for a total of $5,115.00 (GST inc).
Submissions of the builder
- The builder filed a response in the Tribunal on 2 July 2020 stating that he disputed the allegations.
- The builder filed a report by Dalton Bryant, the technical engineer for MAPEI, the supplier of the product used by the builder, dated 3 October 2018. Mr Bryant noted that Mr Troy Bartlett of MAPEI had attended the site on 24 September 2018.
- The report by Mr Bryant noted that the area previously had existing tiles which were primed using MAPEI’s Eco Prim Grip and then smoothed with Mapecam Quickpatch, and a non-MAPEI epoxy flax flooring was then applied over it. He observed that the flooring had three straight cracks, assumed to be directly where a grout or movement joint was in the tiling, and that a small section had a drummy sound. He commented and concluded as follows:
As the cracking had occurred in-line with the joints and the tiling works, it indicates that a stress or movement has occurred in the tiling work joints. With the project being external and receiving frequent heating and cooling, the tiling works will expand and contract at different rates to the epoxy flooring. The grout and movement joints are the weakest point and where the stress concentrates which has likely caused the cracking in the epoxy flooring.
Conclusion and recommendation:
It is MAPEI’s belief that the tiling system which the flooring was applied to is expanding and contracting due to thermal movements, which has caused the subsequent rigid products to crack.
MAPEI recommends that advice from the epoxy flooring manufacturer should be sought for how best to rectify the flooring and any guidelines regarding the epoxy flooring suitability over tiles in external environments.
- The builder also filed an email by Jack Josephson of Real-World Epoxies who made the following comments:
- As the supplier of the epoxy resin that has been used as a base coat between the Mapecam Quickpatch subfloor leveller and the flake and urethane topcoats, we are looking for signs that the epoxy has voluntarily delaminated from the subfloor leveller.
- From the photos provided, and reviewing the report issued by Mapei, it appears movement in the subfloor has reflected through as a crack in the epoxy. We could not see any signs of delamination that was not caused by the movement and, therefore, have no reason to suspect a warranty issue with the epoxy product.
- The work conducted by the builder has not performed satisfactorily.
- There are numerous defects in the work which became apparent shortly after it was finished, which make the work not of an acceptable standard due to cracking and flaking and other defects, and which the owner submits will cause the work to continue to deteriorate and have a limited life.
- The builder has submitted that the cracking and other defects have resulted from movement of the substrate below the epoxy coating. The builder has not however established that the expansion and contraction of the tiles which form the substrate would have been unexpected, and should not have been anticipated by the builder.
- The owners say that they queried the builder as to different materials being used and different movement the first time they discussed epoxy as an option with the builder, and were told that the ‘new’ type of epoxy that was proposed to be used would allow for plenty of movement.
- The builder has provided evidence from the manufacturers of the products used, that supports the materials used as being satisfactory. If the materials are accepted as satisfactory, the defects must have arisen from poor workmanship, or from an improper use of the materials.
- The owner has submitted that the system and materials used by the builder were not suitable for the purpose of being used over existing tiles in an outdoor setting. The builder has not provided evidence that would contradict that contention.
- The builder represented to the owner that the system of coating used would be satisfactory for the purpose. There is no suggestion that the builder warned the owner that the systems and materials may not give a satisfactory result.
- I am satisfied that:
- (a)the builder represented himself as an expert in coatings, and
- (b)the system of coating adopted by the builder in the circumstances was not suitable for the purpose, and
- (c)the owner relied upon the experience and representations of the builder.
- Whilst the owner has specifically claimed a refund of the monies he has paid to the builder, his actual claim is framed as breach of a duty of care, on the basis that the owner relied upon the builder taking reasonable care and exercising reasonable skill in proposing and providing an appropriate system of coating over tiles.
- In Cerda v Jacob, the Appeal Tribunal considered the situation where the provisions of the Civil Liability Act 2003 (Qld) applied in a building dispute, and considered the relevant principles relating to a breach of duty and restitution. They noted in that case that the builder owed to the owner a duty to take reasonable care and exercise reasonable skill in undertaking the building works.
- In the course of their decision the Appeal Tribunal discussed the damages arising from a breach of that duty, as follows:
 In an action in negligence, the claimant is entitled to damages to put the claimant into the position which the claimant would have enjoyed but for the commission of the negligent act. The measure of damages is the cost of the work necessary to remedy the defects. In Kirkby v Coote it was stated:
 In Bellgrove v Eldridge, the High Court affirmed the following statement of principle:
‘The measure of the damages recoverable by the building owner for the breach of a building contract is… The difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract.’
 One may pause here to observe that this is a case where the building owner claims in negligence rather than breach of contract, but neither party suggested that a different approach should be adopted to the measure of damages where the negligent breach of duty has produced a result which falls short of the result which reasonable skill and diligence would have produced.
 The High Court, having referred to authority for the proposition cited above, went on to say:
‘In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace only a small part, or a substantial part, or, indeed, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner’s loss.
The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.
As to what remedial work is both ‘necessary’ and ‘reasonable’ in any particular case is a question of fact. But the question whether demolition and redirection is a reasonable method of remedying defects does not arise when defective foundations seriously threaten the stability of a house and when the threat can be removed only by such a course. That work, in such circumstances, is obviously reasonable and in our opinion, may be undertaken at the expense of the builder.’
- The owner seeks a refund of the cost of the work in the amount of $4,510.00, however has also obtained a quote for the installation of an alternative system, of removing the existing work and polishing the concrete for $5,115.00 (including GST).
- The owner submits that the work cannot be satisfactorily rectified, and this has not been disputed by the builder. As the work cannot be satisfactorily rectified, the only option is to remove and replace the work.
- The owner was seeking a suitable finish to the outdoor concrete areas. He is entitled to recover the cost of removing the unsatisfactory work and replacing it with a suitable comparable finish.
- The builder has not challenged that polishing the concrete would be a suitable comparable finish, and has not challenged the quote by OzGrind.
- The owner is therefore entitled to recover the amount of the quote by OzGrind in the amount of $5,515.00.
- The tribunal may award costs in a building matter under section 77(h) of the Queensland Building and Construction Commission Act 1991. As the owner has wholly succeeded in his claim, I am satisfied that it is appropriate that he should be awarded the filing fee he has paid of $120.50.
- I order that the builder pay to the owner the amount of $5,635.50 being an amount of $5,515 for damages plus costs of $120.50.
Email from Jasa Rakus to Euan, 9 October 2018 at 11:23am.
Statement of Jasa Rakus dated 3 May 2020.
Report of Dalton Bryant 3 October 2018.
Email Jack Josephson to Tough Floors 10 June 2019 at 10:39am.
 QCATA 57.
 QCA 61.
(1954) 90 CLR 613.
- Published Case Name:
Rakus v Bennett t/as Tough Floors
- Shortened Case Name:
Rakus v Bennett t/as Tough Floors
 QCAT 328
Member Paratz AM
22 Sep 2021