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WA Australian Consumer Law - Sole Trader Dispute with Strata Council?

Discussion in 'Australian Consumer Law Forum' started by Dwjh, 16 April 2016.

  1. Dwjh

    Dwjh Member

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    Hi there.

    I am a sole trader plasterer currently in dispute with a Strata Council with liaison being provided by their management company. Very aggressive and dismissive in conduct.

    The problems arose after I was asked to provide an aesthetically pleasing finish to an existing tiled facade and window details to an office block in the city.

    I quoted back in Jan this year and included the statement:
    " Please Note, due to the composition of Acrylic Renders they are not normally recommended for use on areas likely to pool water, however, areas such as window ledges and sills should have sufficient gradients to prevent this from occurring. "

    In other words, informing the client of the materials limitations. In addition, I provided a detailed Schedule of Works in the quote, at no time indicating I was waterproofing the product or indeed building in general. I also completed a test panel to check adhesion which showed no signs of adverse reaction despite rains in the next two months before works commenced. I also provided details of the manufacturer and their email, website, phone no. etc should they require more info.

    I further requested some info on the buildings construction and access and was at no time informed of any hesitancy regards water pooling or any issues there may have been with water retention on the facades etc. I was instructed to go ahead in March and upon completion received excellent feedback and thanks from the client for a job well done.

    A week later, I was paid in full. Again with praise as to improving the buildings appeal to prospective tenants. A week after payment, following a storm, I was informed of serious damage to the renders I had applied. I had no idea as to the cause but arranged and completed the removal of 85% of the works I had completed. The client instructed me to leave the other areas despite my reluctance and the realisation it would likely fail too in due course. This was carried out at no cost or inconvenience to the client as it was all completed over the Easter long weekend.

    Initially, I informed the client I could see no explanation as to why the product should fail, and indicated it must have been my fault. This was answered in reply by the client saying it was not my fault but clearly the product that had failed. It was subsequently discovered that a historic water retention issue with the building namely pooling of water, causing a build-up of water behind the product had caused it to delaminate from the building. Indeed once the water had dissipated render re adhered to the tiles as it had originally.

    I have copies of all these emails, discussions as well as photo and video evidence to back this up.

    In an attempt to resolve the situation, I offered a 60 % refund, stressing I merely wanted to retain my costs for materials, hire of access scaffolds and external labour, whilst not charging anything for my lost income. The job was worth $12,500 I offered $7,500 refund and retention of $5,000

    This was met with hostility and patronising conduct by the Management Agents and a demand for a full repayment of all monies. I sought advice from the Small Business Development Corporation and have been guided through mitigation by them ever since. Thank goodness too. An extremely upsetting experiance.

    Following the original failure, and at my own expense, I had monitored the render left in site, which remained in tact for two more weeks despite light showers. Following further heavy rains, a similar reaction occurred and I was asked, by the clients to remove the remaining render and informed again of their displeasure and belief once again that I was entirely at fault for supplying the wrong product. On advice, I agreed to remove the render as a goodwill gesture in order to further fascillitate ongoing mitigation.

    Once again at my own cost, I re hired equipment and labour to remove the final materials and completed this the next day. Again no cost or inconvenience was caused to the Strata Council. In fact, the painters who have been on site during this whole process utilised my scaffold with my permission and immediately coated the areas with the same water resistant paints they had used to seal the first areas that had been restored to their original state.

    I have a report from the Plasterers Guild of WA confirming I had installed the renders as per industry standards and a representative from the manufacturer concurs that only water retention and/or build up from behind could have caused the damage to the product.

    The mitigation had gone from 60/40% refund to demands for 100% refund to me offering 50%. The Strata Council then offered terms of accepting an 85% refund My advice was to offer a 15% refund...essentially reversing their offer. This was the day before the most recent failure and removal of the remaining render.

    A very long issue but essentially my question is: If I had not quoted to provide a water proof coating to the building and had made clear that areas of the building would not be covered as it was unsuitable in application, and furthermore, some areas may be adversely affected by water retention, to what extent under Australian Consumer Law am I liable for a failure of my product if in hindsight a water proof coating should have been applied over my works, bearing in mind painting contractors were on site and could have easily been employed to provide such a finish if the client had any concerns as to my products ability to repel water?

    I understand their annoyance at having paid for a job and essentially ended up with nothing to show for it which is why I offered a partial refund in the first place. I have, in addition to the intial completetion of works, spent a total of 6 days removing the product and incurred hire costs etc, none of which I have sought compensation for.

    Thank you very much for any thoughts on the situation. I perhaps have gone into too much detail but feel a proper response requires information as to the history of the case.

    NB no contracts were drawn or signed, no architects, Works Managers etc were involved.

    My intial contact throughout was with one of the Strata Council members, who first made the enquiry as to obtaining a quote, right up until my first offer of refunding some of the contract. From then on, the Managing Agents have taken over all dealings.


    Kind Regards
     
  2. Sophea

    Sophea Well-Known Member

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    Under the Australian consumer law any service provided must be provided with acceptable skill and care or technical knowledge, and taking all necessary steps to avoid loss and damage and be fit for the purpose or give the results that was agreed on. The question is, did you breach one or more of these guarantees.

    In determining whether you provided the service with adequate skill and technical knowledge it is necessary to determine:

    (1) What was the cause of the de-lamination?
    (2) Was it foreseeable that something you should have done but didn't or was it due to a latent condition that you could not have known about?
    (3) Did you apply the product as per the directions?
    (4) Would a reasonable tradesman in your position have done anything differently?
    (5) Was the product fit for the purposes of the customer? - having regard to the water and adherence issues? (if those issues were known about prior to the work being done.)

    Obviously, the answers may not be entirely clear, and they would ultimately be decided by a court based on expert evidence etc if it was to be litigated.
     
  3. Dwjh

    Dwjh Member

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    Thank you for your feedback again, Sophea. Very grateful for your help on how to approach the issues.

    Kind Regards
     

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