Gugliemino v Advance Flooring Co P.L (Home Building) [2005] NSWCTTT 162

CTTT-COMMON\REASONS\2002\HB\02-06558-2005.rtf 1

Gugliemino v Advance Flooring Co P/L (Home Building) [2005] NSWCTTT 162 (16 March 2005)

CONSUMER, TRADER AND TENANCY TRIBUNAL

Home Building Division APPLICATION NO:

HB 02/06558

APPLICANTS:

D Gugliemino and D Gugliemino

RESPONDENT:

Advance Flooring Co Pty Ltd

APPEARANCES:

Applicants in person B Crook, director of the respondent, for the respondent

HEARING:

30 March 2004 at Griffith

LEGISLATION:

Home Building Act 1989

ORDER

The respondent is to pay the applicants the sum of $23,153.00 on or before 5 April 2005.

The Tribunal declares that the sum of $1,941.00 is not due or owing by the applicants to the respondent under section 8 (1) (d) of the Consumer Claims

Act 1998.

REASONS FOR DECISION APPLICATION

The applicants filed an application on 1 March 2002 with the then Fair Trading Tribunal seeking compensation/damages from the respondent for the alleged

defective laying of a parquetry floor.

On 8 October 2003, by notice to the respondent and the Tribunal, the applicants amended the claim which was to proceed to the final hearing. That claim was as follows:

The costs of removal, relaying and sealing of

parquetry floor $28,963.00

http://www.austlii.edu.au/cgi-bin/sign.cgi/au/cases/nsw/NSWCTTT/2005/162


Cost of report from Mr. B.J. O’Mara $ 4,400.00 Travel expenses Mr. B.J. O’Mara $ 427.45

Riverina Floor Restorations Report $ 780.00 RJ Kendall (Kendall and Sellick) Report $ 1,053.70

Cost of copying Mr. O’Mara’s report $ 70.00 Filing fee in Fair Trading Tribunal $ 55.00 Advance Flooring Pty Ltd Report $ 1,941.00

Total $35,749.15 CONCILIATION

The file shows that conciliation took place before member D Gordon at an early stage of the proceedings, which was unsuccessful.

The independent inspector appointed by the Fair Trading Tribunal, Mr. A Rendell, an accredited mediator, also, according to his report, attempted to

settle the matter, without success. THE FINAL HEARING

The applicants were owner builders who had contracted directly with the

respondent to supply and install a parquetry floor at their residence. The applicants’ case was that the whole of the floor laid by the respondent

was defective, and required removal and relaying. Both the applicants gave evidence, and the applicants also tendered reports from Kendall and Sellick, Structural Engineers dated 14 June 2001 and 28 October 2002, Riverina Floor

Restorations dated 20 February 2002, and Mr. B O’Mara dated 29 September 2003, as well as a number of statements.

The applicants also tendered the report of the independent inspector, Mr. A Rendell of A. Rendell and Associates dated 20 June 2003.

The effect of these reports was to support the contention of the applicants,

although Mr Rendell was unable to conclude that the respondent was liable, at least at the time of his report.

On behalf of the respondent, Mr. Crook, a director of the respondent, tendered a report prepared by himself on 20 February 2001, a report dated 29 June

2001 prepared by him in reply to the first report of Kendall and Sellick, a report from Carson Adhesives dated 15 February 2001, and a detailed critique dated 26 February 2004 dealing with all the reports tendered by the applicants. He

also submitted extra documentation and statutory declarations.

It was the respondent’s case in reply that the applicants’ experts had not been able to point to a defect in the preparation and laying of the wooden tiles, and that in any event the tiles on the two lower levels had lifted because the

applicants had not had their builder properly seal the doors and walls to the downstairs two levels.



He further maintained that they had allowed water to enter both levels of the downstairs area, either then breaching the contract with the respondent, or

causing the damage to the downstairs tiles, and in addition failing to mitigate any problem that may have arisen with the downstairs tiles.

THE PRESENTATION OF THE CASES BY THE PARTIES

The final decision in this matter has been made more difficult by a significant

lack of evidence in crucial areas in the cases of both the applicants and the respondent.

The applicants had originally instructed solicitors, and the claim is still significant enough to warrant legal representation, however, for (apparent)

costs reasons, the solicitors’ assistance was not continued. The applicants would have benefited from a solicitor simply organising their case for them.

This meant that the Tribunal, after the evidence concluded, had to marshall the evidence and put together, in fairness to both parties, the best evidence

possible on behalf of both the applicants and the respondent, in what was a complicated and large claim.

The respondent meanwhile did not provide the evidence of any independent expert, but simply relied upon the expertise of the respondent’s director who

appeared. Some reports were presented by the respondent, but they only addressed particular issues. However, in his oral evidence, Mr. Crook challenged a number of the conclusions of the experts whose reports were

relied upon by the applicants, and also gave his own oral evidence.

The applicants’ case was further hampered by the fact that the most comprehensive report (being in excess of forty pages), which was done as an independent report under procedures designed to settle matters in the former

Fair Trading Tribunal, only came to limited conclusions because, in Mr Rendell’s opinion, further investigation or information was necessary.

Apparently because Mr Rendell concluded that it was difficult (at that stage) for him to establish how the damage had arisen, the applicants did not request

a follow up report from Mr. Rendell, once the further information had been obtained. They employed a different expert, Mr. O’Mara.

Further, none of the independent experts clearly set out, in diagram form or otherwise, in what areas the tiles had actually lifted (delaminated), and each

of the experts provided different reasons for the condition of the floor.

The quote for rectification was unfortunately also deficient in outlining costs for anything other than a complete removal and restoration.



THE EVIDENCE

There are some areas of evidence that are not in dispute and these will be outlined first.

The applicants approached the respondent to supply and lay parquet flooring in August 1999. An initial quote was obtained for supply and laying of English

Oak parquet with a polyurethane finish. This was revised by a quote dated 13 September 1999 by the respondent for the same flooring with a Tung Oil

finish. On 15 September 1999 the applicants completed a quotation acceptance form for the supply and laying of the floor which would total $22,000.00.

These documents had on the back a series of conditions in small print one of

which was a guarantee with conditions, of which more later. The flooring was delivered to the site, laying was commenced on 8 November

1999 and apparently completed on 22 November 1999.

The concrete floor on which the flooring was laid was erected in 1997 and the house structure above it appears to have been erected soon after. Thus the concrete substrate had remained untouched and covered for in excess of 2

years.

There was no evidence that the respondent had conducted a moisture test on the concrete substrate prior to laying and Mr. Crook conceded this in his evidence.

All the external doors were in place however the threshold tiles were to be

installed after the flooring was laid. The applicants supplied the floor layers with aluminium angle iron and they installed those angles at each external doorway, prior to laying the floor.

At the time of laying there was no flushing between the outside and the

aluminium angles, indeed there was a gap which was still present at the time when the earlier reports were carried out. That is, at the time of laying, and certainly during the year 2000, the external doors at their base were not

properly waterproofed.

The house has three levels of flooring, the lowest being the living room. Some steps lead from the living room up to the next slightly higher level which contains the dining room, entrance and a passage behind to the kitchen, all

with parquetry flooring. Above all those rooms is the first floor which contains a gallery, hallway and the bedrooms. The gallery and the hall opposite the

bedrooms are all on the same level, and have parquetry flooring as well. For consistency the living room will be described as the first level, the dining room and entrance as the second level and the gallery and bedroom hall as the

third level.



There is an external door at the entrance, and two external French doors to the living room. The dining room does not have any external doors. The

gallery and bedroom area is on the first floor above the ground and does not have any external doors. The external paving on the first and second levels

was installed after the internal flooring was laid, but did not abut completely with the living room doors.

The respondent did not hold home warranty insurance nor was a certificate of insurance supplied for this work, and the respondent is therefore in breach of

section 92 Home Building Act 1989, the contract being for a sum well in excess of $12,000.00.

The applicants stated that in December 1999 some of the floorboards appeared loose, and that by February 2000 some of the boards in the

entrance and in the living room were clearly quite loose. In February 2000 the applicants notified the respondent of this and requested that Mr. Crook either inspect himself or arrange for an inspection. For various reasons explained

by the respondent, an inspection was not carried out until September 2000, by Mr. Crook himself. He provided a report to the applicants dated 20 February

2001, and invoiced the applicants $1,941.00. The respondent corporation is located at Wollongong, and as noted above the residential premises were situated at Tharbogang outside Griffith.

As part of that report, Mr. Crook noted that the blocks (of the flooring) in the

living room showed indications of moisture along both sides of the room adjacent to the windows and the doors. There are doors on one side of that room and windows on the other side. He also indicated that blocks

throughout the room had swollen.

He reported that there were signs of movement caused by expansion in the flooring near the entrance. In the dining room he reported that blocks had badly swelled at the windows, and that there were several blocks loose and

drummy in the upstairs hallway and around the stair void (the gallery areas). By the time of Mr. Rendell’s inspection, some blocks in the living room in one

corner were completely de-laminated, and blocks near the entrance were loose. He does not mention the first floor (third) level, however, by the time of Mr O’Mara’s report, the same tiles were delaminated in the living room, the

entrance tiles were still loose, and tiles were lifting in the passage behind the dining room to the kitchen (the second level) and in a number of areas in the

gallery and hallway on the first floor (third level). Other than the above, the evidence of both parties diverges and the reports by

various experts disagree as well. There is no doubt, however, that the tiles, reported now by Mr. O’Mara, have delaminated in the manner described. The

issue is the cause of that delamination. It is now necessary to summarise the reports.



The respondent, in between his inspection in September 2000 and his report of 20 February 2001, arranged for a representative of Carson Adhesives to

also inspect the work, and that report (by Mr F Furner) concluded as follows:

“It was obvious the parquet blocks on cement floor have expanded and de-laminated from concrete substrate. Further inspection of the building had revealed a discolouration of outside walls of around 3 cm

from base with degradation and flaking of cement render.

The source of the moisture: 1. The perimeter walls and concrete slabs have no moisture protection

or adequate drainage.

2. Terrace walls at rear of building and on hillside have contributed greatly to rising water table.

3. Driving rain on all doorways has evident by door jams and doors show water stains.

In all instances moisture is evident on concrete floor as discolouration of substrate is also self-evident. These sources of moisture have

soaked into the adhesive and softened and weakened the adhesive bond strength at interface, between the adhesive and the substrate and also swollen parquetry blocks hence causing extra pressure on

adhesive bond.”

Mr. Crook (the director of the respondent) referred to that report, then provided his report of 20 February 2001, which concluded

“Considering all the above we have no doubt that moisture penetration is the cause of the swelling of the blocks, resulting in the blocks

shearing the adhesive bond between blocks and sub floor. We know that had the floor been flushed and sealed from moisture this problem would not have arisen. To this day we are told it still has not been

carried out. We recommend the following be carried out before any rectification is commenced.

(A) Proper threshold be installed at all perimeter doors (B) All exterior doors have weather strips fitted

(C) All abutments of exterior walls to tiles courtyards and verandah’s be properly sealed for dampness and drained appropriately

(D) All windows be checked for sealing against moisture.” These two reports placed the responsibility for the problems clearly at the feet

of the applicants.

It appears, however, as signs of water entry at each of the external doors were observed and mentioned in both the reports of Carson Adhesives and Advance Flooring, that it was recommended that the applicants could consider

a claim on their own insurer, on the basis that the entry of the water may have come from rainstorms. The applicants through their then solicitors lodged a

claim with CGU Insurance Limited, and the insurer employed Messrs. Kendall



and Sellick, Structural Engineers, to provide a report. That report, by Mr R.J. Kendall, who later provided his CV, dated 14 June 2001 concluded:

1. “The adhesive has failed to adhere to the concrete slab

2. The installer failed to provide and effective moisture barrier at external doors

3. The installer failed to allow sufficient time for acclimatisation of

the floor blocks 4. The installer failed to provide sufficient expansion jointing in the

floor.” The insurer advised the applicants’ solicitor that, “ . . . the policy exclusion

regarding faulty workmanship would apply. We would further point out that the policy also excludes water entering buildings because of structural

defects, faulty design or faulty workmanship when the buildings were constructed.” The claim was refused.

The applicants then filed their application in the former Fair Trading Tribunal. The next report in time is a brief report done by Riverina Floor Restoration

dated 20 February 2002, obtained by the applicants. This concluded: “In my professional opinion the floor has failed because of:

1. The installer failed to prepare the concrete before laying. 2. The glue failed to adhere to the concrete

3. The doming is the result of sanding too soon after laying 4. The installer failed to allow for acclimatisation of the parquetry

blocks.’

The Kendall and Sellick report was provided to the respondent, and Mr. Crook

responded with a critique of that report dated 29 June 2001. In summary his criticisms were as follows:

Expansion voids have been installed to the perimeters, 10mm in width and

they are now covered by the skirting boards

He asserted that the water staining on the doors must have been more

than minor.

He questioned where water might go if it travelled into the weepholes in the external walls.

He questioned whether the engineers had considered rising damp and moisture in the air.

He asserted that when shearing of blocks occurs, it arises from expansion from moisture and then shrinking, and that the adhesive always parts from

the substrate.

He asserted again this would only occur through excessive moisture.

He asserted that 18 days acclimatisation of the blocks was sufficient and

that the industry standard was seven days to two weeks.

He asserted that the Draft Australian Standard AS 1262-1972 [referred to

as the DAS] was withdrawn, and that the new standard was still in draft



form. (Nevertheless the DAS set out, namely ASCA 31-1960 was tendered by the respondent, and relied upon).

He explained some matters on how to deal with the adhesive and acclimatisation and reiterated that the applicants were to weatherproof all

doorways following installation. The applicants then submitted Mr Crook’s reply to Messrs Kendall and Sellick,

who perused it and provided their own critique. It essentially confirmed their earlier conclusions, and gave the applicants some pointers to faults in Mr

Crook’s report. The next report in time was the very extensive report of Mr. Rendell. It did not

refer to the criticism of the Kendell and Sellick report by Mr. Crook, nor to the Riverina Floor Restorations report, however it still addressed those issues. A. Rendell & Associates report

The author of that report, Mr A Rendell, in his final conclusion stated that, at

the time of his report, ‘. . . the applicant has presented insufficient evidence to clearly demonstrate that on the balance of probability the respondent is responsible for the failure of the flooring.’ In the course of coming to that

conclusion, however, he expressed a number of other opinions that are particularly relevant, and his report was particularly detailed. It also had the

advantage of being independent. At point 7.3.3 of his report, he states the view that the respondent was said to

be satisfied that the substrate was suitable to receive the flooring and that this responsibility is set out in the DAS at point 2.8.2, which states:

“when tested in accordance with appendix E, the concrete slabs shall be deemed to be adequately dry. If the moisture content of the

concrete does not exceed the following, a) 5.55 as determined by the electrical resistance test…

b) 70% relative humidity as determined by the surface hygrometer test.

C12 laying and acclimatisation

Before fixing, ensure that your contractor has checked the flooring moisture content.”

Mr. Rendell then points out the ‘conditions of contract’ which might have appeared to exclude liability for moisture, but correctly points out that the

condition appears to only exclude moisture ‘from any outside source after the flooring is installed’.

The clause itself (under the heading ’Guarantee’) does, however, state:

“Only upon specific written instruction from the client will our company carry out a moisture test on the sub-floor prior to the installation… No



responsibility can be taken for lifting, distortion and blooming caused directly or indirectly by rising dampness or atmospheric conditions….’

The guarantee goes on to guarantee the floor for twelve months against faulty

workmanship or materials. It does, however, mention that, ‘the company carries out all its tests in accordance with AS 1262 and makes no warranty as to the suitability of the premises to the flooring installation or any other works

carried out by this company.’

Mr. Rendell rightly points out in relation to this clause that the respondent cannot ‘contract out’ or exclude the rights of the applicant in respect of the statutory warranties contained in the Home Building Act 1989 (specifically

section 18G).

Mr. Rendell did mention that he used a non invasive scanning method to test for moisture during his inspection and indicated the presence of excessive moisture in some areas, however, he concluded it was not definitive.

Mr. Crook in his report also supplied a ‘precipitation register’, which he

obtained from the NSW Bureau of Meteorology, which shows 13.2 mm of rain recorded over the seven days prior to 8 November 1999 (just prior to laying) and also shows that in a two week period after the laying, that is in December

1999, there was a total of 50mm of rain in the same area.

Mr. Rendell states that in his view, a competent tradesman would be required to check the moisture entry points e.g. door thresholds and weep cavities before laying the floor, particularly after rain as indicated above.

Mr. Rendell points out that the DAS recommends that whenever a concrete

slab is at risk of external moisture, a moisture barrier should be installed or applied first. He noted that the damage to the flooring on his inspection appeared to be more severe immediately adjacent to the external doors, and

to a slightly lesser extent the windows. He fairly raises in his report at point 7.4.9, that if the thresholds to the doors were in fact incomplete at the time of

the floor installation then the layers should have considered not proceeding until the thresholds were properly complete. He further points out that whilst they were clearly not complete at the time of laying and after completion, then

there may well have been an obligation on the applicants to mitigate further damage by having the thresholds installed as soon as possible after laying.

The acclimatisation issue is best dealt with during the evidence of the respondent.

However, in relation to expansion joints, Mr. Rendell notes that, ‘ . . . no

expansions have been provided in the flooring even though it extends for areas in excess of twelve metres in length and through several rooms.’

Mr. Rendell, however, notes that in fact there is a cork expansion joint around the perimeter of each room, as originally asserted by Mr. Crook. Mr. Rendell



concludes that the expansion joints in the walls are sufficient and that there is no defect in relation to those expansion joints.

He points to the DAS paragraphs 3.4.4. (headed Appendix F) and points out

that an expansion joint should be provided where the floor abuts a threshold. He states that, ‘an expansion joint does not appear to have been provided at the door threshold’. Furthermore, Appendix F states, ‘ . . . a strip floor 9m in

width requires an intermediate expansion joint.’ He points out that the flooring extends 10.4 m to the ground floor dining room and entrance, and 15 m

through the first floor bedroom hall and gallery. He concludes that intermediate expansion joints should have been installed on both the ground floor and the first floor, and they were not.

He does, however, opine that the omission of these joints may have

contributed to the failure but he was not qualified to state that categorically. He concluded that the estimate of rectification would be in the range of $32,000.00 to $37,000.00.

The report of Mr O’Mara

Finally, there is a report of Mr. B. J. O’Mara who inspected on 22 September 2003 and reported on 29 September 2003.

Mr. O’Mara was highly critical of the Advance Flooring and Carson Adhesives

reports. He referred to the photographs provided also by the respondent. He pointed out correctly that the photographs show one set of the french

doors in the living room with apparent water staining some distance up the doors. He stated that the timber used in construction of the doors, western

red cedar, . . ‘is renowned for the easy staining by water even where the amount of water is minimal.’

He went on to say that in the case of the one set of french doors in the photos, neither the photographs nor his site inspection showed that the parquet in this

position had delaminated from the slab. He said it may have shown some minor effect from the weather but it had not moved. He took photos which he said showed that no delamination had occurred in those positions. It certainly

showed, however, that the flushing was missing and that there was still a gap in the threshold.

His report refers to a major delamination in the south-western corner of the dining room, but in the evidence it became apparent that this was in fact the

living room. Mr. O’Mara pointed out that this was some 7.5m from the stained door and ‘could not be the result of the claim that moisture penetration came

from that set of doors.’ He points out that the claimed water stains shown under the delaminated tiles

in that part of the floor are in fact setting or trowel marks created in the final finishing process of the slabs.



He pointed out that he had inspected the exterior walls and could not find evidence of past dampness nor any tell tale signs of dampness. He included

photos showing this.

He comments on the statement by Mr. Furner (of Carson Adhesives), asserting that the perimeter walls and slabs have no moisture protection or adequate drainage. He said that he could see no sign of moisture above the

flushing or damp course, and that Mr. Forlico, the applicants’ builder had provided the statement that ‘all damp courses on the project were installed as

required’. Mr. O’Mara pointed that if that were not the case, water damage would be evident by this time namely three and half years later.

He pointed out that Mr. Crook in his original report stated that there was ‘extensive water staining around all walls… to the extent that the render is

cracking and loose’. He refers to the two photos supplied by Mr. Crook. Mr. O’Mara disagreed with such conclusion. Further he pointed out that the photographs taken by Mr. Crook are not of the area adjacent to the living

room, but are in fact the south-western corner of the dining room, some 10 metres away, and 45 centimetres higher than the living room and on the other

side of the main entry. Further, he pointed out that the weep holes which were said to be a problem

by Mr. Crook are in fact 100mm below the level of the inside concrete slabs, making it difficult to assert that any moisture entry could affect the (higher)

floor. His report points out that there could be no suggestion of rising damp as the

whole floor level is at some distance above the ground. Further, there is a whole storage room area in rooms below the entrance, and there is no

evidence of moisture on the walls or anywhere in those rooms. He inspected the area below the dining room and took photographs and also

the area below the living room, none of which showed entry of moisture.

Further he points out the assertion by Mr. Furner that the hillside may have caused the problem is untenable as the building is excavated into the side of the hill and there are habitable rooms constructed below which show no sign

of the rising of the water table as claimed.

Mr. O’Mara finally refers to the areas behind the main entrance doors and confirms that the tiles in this area have lifted. He asserted that no extensive water stains were evident. He also opined that a parquet floor can and should

tolerate water introduced to the finished surface if it has been laid correctly. If not, he said, every time water was spilled on the finished floor it would fail.

He proceeds later on page 25 of this report to dispute the conclusions of Mr. Rendell, based upon the findings that Mr. Rendell had already made. In reply

to this, Mr. Crook for the respondent provided an 11 page report and a further 16 pages of annexures, dated 26 February 2004 and also confirmed a number

of matters in his own evidence.



In that report and also in his evidence Mr. Crook stated that they were 18 days

allowed prior to 8 November for acclimatisation, and this would appear to be confirmed by the documents.

A statutory declaration from one of the layers, Mr. Y Yaghi, was tendered, in which he stated that at the time of laying the floor he pointed out to Mr.

Gugliemino that there was no flushing between the outside balcony and inside surfaces. Mr. Gugliemino’s alleged reply was that he was having this

attended to straight after the floor was finished and that the builder would attend to the water proofing immediately upon his return to the site. Mr. Crook said that he was also phoned by Mr. Yaghi that morning and Mr Yaghi had

said to him that he was laying the floor because the builder was returning to weatherproof it. He confirmed in his evidence all the other statements in his

report, and asserted that there could only be one reason for the “doming” of the floor, which would be moisture causing the swelling.

He explained that, in his experience, delamination can occur at some distance from the site of the original water entry and expansion.

He suggested that this moisture could have entered from below the floor, or indeed from above, based on his twenty year experience. This was the first

time there had been any suggestion of moisture from above. He pointed to the weep holes in the external walls being only 20mm above the courtyard

tiles, and the staining in the photographs. He disagreed with the conclusions about dampness expressed by Mr.O’Mara. He referred to Mr. Rendell’s conclusions at points 8.1 and 2 and relied on those for the conclusion that an

independent person could not conclude where the moisture came from.

He disagreed with the assertions by Mr Rendell, however, as to expansion joints, which he considered are only necessary over large areas for a joint in the floor. He said that over the twenty years of his company installing wooden

tiles in much larger areas than in this house, they have not needed expansion joints. He asserted that in any event there was no code dealing with

expansion joints. He said that the adhesive was cured for 7 days, which is the required time.

He pointed out that the failure to get insurance arose from the fact that most of

their flooring was commercial and only 15% of their work was residential, all of which was on small floors. He agreed he should have obtained insurance and that this was an oversight.

Mr. Gugliemino in his evidence stated that the staining that was apparent on

the external surface of the building arose not from a rainstorm but during the laying of the external pavers. He agreed however that water had entered under one doorway during a rainstorm but not in any of the other doors.

In the course of the evidence, Mr. Crook produced a warranty which his

company had provided to another householder which set out the details of the



warranty and certain warnings about ingress of moisture. This document had never been supplied previously and both Mr. and Mrs. Gugliemino denied

ever having received anything similar. As it had not been disclosed earlier, and was not a copy of any document relating to these parties, the Tribunal

determined it would not be admitted as a relevant document.

FINDINGS

As noted above at the outset, there was a great deal of conflict in relation to the reports, and also gaps in each of them.

Notwithstanding the conclusions drawn by Mr. O’Mara, there can be no doubt that there was water entry through at least one of the doors in the living room,

that is, on the first level. Mr. Gugliemino conceded that. Notwithstanding Mr O’Mara’s opinion that the stains occurred through other means, the Bureau of Meteorology reports strongly suggest the likelihood of the conceded water

entry.

Furthermore, for a period of at least two years, the applicants did not properly waterproof the thresholds to both the french doors in the living room. True it is that there is apparently no delamination immediately beside those doors, but

there is significant delamination in this room, albeit some distance away. The likelihood of further water entry during this time is also high. The conclusions

of Mr Rendell (or at least his doubts) are accepted, in relation to this area. This is, however, no real proof of water entry into the entrance doors, even

though there is delamination near those doors. There is in fact no evidence of staining on those doors, based on the evidence actually produced. Further,

the level of paving outside the entrance indicates (as opposed to the first level) that it would be difficult for much rainwater to enter the second level area. There is also significant movement of the blocks in an area a

considerable distance from that point, namely the hallway to the kitchen.

It is also difficult to accept the assertion by Mr Crook that there could have been water entry through the windows in that area. There is no evidence of such entry, and because of the position of the external weep holes, there is

unlikely to have been sufficient dampness to cause delamination from any water entry through there. The condition of the rooms below, as pointed out by

Mr O’Mara, belies water entry above via the weep holes. The third level

Finally there are the significant loose areas and de-lamination in the top or

third level both in the gallery and the hallway. None of that area had any connection with any external doors, weep holes or external windows.

In his submissions and in his report, Mr. Crook asserts the applicants have to show how the top floor (third level) blocks lifted. The Tribunal is, however,

entitled to take into account the opinions expressed in the reports of Kendall



and Sellick and Mr O’Mara as to how they may have delaminated, and even the warranty given by the respondent requires replacement of the top floor

should it lift within twelve months, which it apparently did.

It is more correct to say that, in the light of those reports, it is necessary for the respondent to show why the lifting of the top floor blocks is not the responsibility of the respondent.

Further, the fact that those blocks have lifted could suggest that the blocks on

levels 1 and 2 lifted for the same reason. The reasons for delamination on all three levels could be either internal moisture at the time of laying (it not being tested), a problem with the sealer (application or otherwise), or insufficient

expansion joints, as suggested by Kendell and Sellick, Mr Rendell or Mr O’Mara.

There are a number of alternative, or collective reasons, for the delamination in all three floors, none of which (other than below) have effectively been

negated by the respondent.

The atmospheric moisture reason postulated by the respondent is simply not supported by the evidence, or any other reports, including any other reports submitted by the respondent, and certainly not by Mr Rendell in his extensive

report.

The respondent must therefore meet the cost of rectification of the third level. The second level

Further, notwithstanding the supposed moisture test by the respondent (Mr

O’Mara’s query of the methodology is accepted), there is no real evidence of water entry to the dining room and entrance area, and the assessment by Mr Rendell and Mr O’Mara is accepted, in preference to Mr Crook, in relation to

this area. Again the reasons for delamination are either internal moisture at the time of laying (it not being tested), a problem with the sealer (application

or otherwise), or insufficient expansion joints, as suggested by Kendell and Sellick, Mr Rendell or Mr O’Mara.

Thus, in addition to the third level, the respondent is responsible for the de-lamination in the second level i.e. the dining room, entrance and kitchen

hallway. The first level

In relation, however, to the living room area, Mr. Rendell’s conclusion is still apposite. The remarkable failure by the applicants to properly waterproof this area at the french doors, both prior to laying and for a significant period

thereafter, leaves this Tribunal in significant doubt as to whether this area of the floor delaminated because of some failure of the respondent in properly

preparing or laying it.



The conclusions of Mr O’Mara in relation to this area are not accepted,

because they are not supported by the evidence at the hearing. Further, Kendall and Sellick place the responsibility for not waterproofing on the

installer (the respondent), when it is more correctly placed on the applicants, as set out below.

Taking into account all the evidence, including that the applicants were owner builders, the Tribunal finds that the layers for the respondent were placed in

an invidious position when they found the french doors had not been properly waterproofed. They had travelled some distance to do this job, and then to defer it until the applicants had put in place proper waterproofing, was not

reasonable. The warning given (that is, for the builder to install waterproofing as soon as possible) was more than likely given, and was a reasonable

course of action, in the particular circumstances of this case. Further, the failure by the applicants to install such waterproofing in any

reasonable time after the floor was installed, is a clear failure to either comply with the terms of the respondent’s warranty (the “guarantee” referred to

earlier) or a failure to properly mitigate any original loss, the extent of which is, at this date, difficult to ascertain.

Thus the respondent is not responsible for the costs of rectification of the first floor, or living room level.

CONCLUSION

As noted, the quote for replacement covers the whole area. The plans show

the living room area as 7m x 6m. The second level including the entrance, dining room and kitchen hallway appears on the plans to be 5m x 10.5m overall. The third level is 16 m x 2.3m.

Based on the area for rectification being 89.3 m2

of the total area, and using

the Riverina Floor Restorations quote, the amount allowed for rectification, using those proportions is $19,698.00.

As the respondent at no stage accepted any responsibility for rectification, the applicants are entitled to employ a contractor of their choice, and claim those

costs, as they have done. Thus the respondent is liable for rectification work to the extent of $19,698.00.

In relation to the other claims, the report and expenses of Mr O’Mara total

$4,827.45. Not all his findings were accepted, and no clear explanation was given as to why Mr Rendell (based in Orange, and thus more local) was not utilised again, other than that his findings at the time were not acceptable.

Thus those costs should be discounted to $2,900.00, including any associated copying costs.



The Riverina Floor Restorations report, without any CV, and in its terms, was of no real assistance, and costs for that report are refused.

The Kendall and Sellick report fees could only relate to the perusal of Mr

Crook’s report, and the comments on it. The fee for that appears well out of proportion to the work involved, the majority of the work being carried out in the original report, apparently invoiced to the insurer. Their fees are allowed

at $500.00.

The fees for the Advance Flooring report have not been met by the applicants. Surprisingly, Mr Crook did not withdraw his claim for those fees at the hearing, but perhaps that was an oversight.

As a claim by the applicants, those fees are not allowed, as they are not

payable by the applicants. They are not payable as the Tribunal declares that the applicants are relieved from paying that sum under section 8 (1) (d) of the Consumer Claims Act 1998.

The filing fee of $55.00 is allowed, as costs normally follow the event in claims

of this amount. Thus the final sum payable by the respondent is a total of $23,153.00

D. Sheehan Member

Consumer Trader & Tenancy Tribunal 16 March 2005


Gugliemino v Advance Flooring Co P.L (Home Building) [2005] NSWCTTT 162

Documents

Transcript of Gugliemino v Advance Flooring Co P.L (Home Building) [2005] NSWCTTT 162