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In another of my older cases (2007) my client, a renderer (yes the same one, some have all the luck!) was not paid approximately 10K for rendering a large two storey home.

The owner builder(this time a registered builder) claimed that the rendering was poorly executed and sub standard. The reality however was that the house frame was not straight and the brickwork as a base for rendering was extremely poorly built. This is what I had to say:

Information provided by the client:

The client is a rendering contractor.

The client has been engaged by the owner builder to render the house under construction.

The rendering has been completed.

The owner builder has refused to pay the final claim for payment (approximately $10,000).

The owner builder is alleging defective rendering as reason not to pay.

The following statements by the client have bearing on assessment of defects:

The client has advised the owner builder prior to commencement of rendering that the brickwork and timber frame are defective and that finished rendering may reflect those defects and that the usual quality of finish cannot be guaranteed.

The owner builder acknowledged the advice and advised the client to proceed and do the best he can.

The client has advised the owner builder to reduce rubble levels at the bottom of  the brick walls, prior to rendering as subsequent filling would show up as patchwork.

The owner builder could not do so due to scaffolding being in the way but advised the client to proceed with render anyway.

The client advised that in his endeavours to produce as good finish as possible, he had to carry out additional packing to the timber frame and build up thick render coats. The client was not paid for this extra work.

 Inspection findings

1. 1.     Visible patch band exists around the perimeter of the home where render was added after removal of scaffold and clean up of rubble.
2. 2.     Weep hole widths are visibly uneven and some are exceedingly wide. 

1. 3.     There is visible misalignment of surfaces between vertical window pillar and horizontal base brickwork under window
2. 4.     Finished render surface has been damaged by paint drips whilst owner was painting the roof eaves.
3. 5.     Brickwork articulation joints are misaligned, out of plumb, poorly positioned or non continuous.
4. 6.     Brickwork was confirmed with a spirit level to be significantly out of vertical in several locations.
5. 7.     Timber frame was confirmed with a spirit level to be significantly out of vertical in several locations.

General Comments

 Building construction is a sequential activity with the next trade following the last. The last trade becomes the base for new work. It is common practice for tradesman to inspect the base before committing to carry out his trade. This is necessary firstly to ensure that the base is suitable for application of finishes and secondly because the tradesman becomes responsible for the finished quality of his work. In the event that the base is inadequate this is communicated to the builder with the request that it be fixed before proceeding with the work.

The quality in building construction is dependant on each link in the chain of trades completed to satisfactory standard and to acceptable tolerances. Just as painting cannot hide poorly executed plaster, poorly straightened walls and poor fixing so applied render finish cannot hide poor brickwork and poorly executed and misaligned house frame elements.

Specific Conclusions

From the information supplied by the client it is evident that the owner builder was warned about inadequacy of the quality of the base for render application but has instructed the client to proceed anyway.

It is evident that the client has attempted to repair poor base by packing the frame and building up with thick layers of render.

On the day of the inspection there were no visible render defects which can be attributed to poor rendering but all of the defects can be attributed to poor base for rendering.

It is difficult to see how the owner builder who apparently has not cared about the quality of this house during framing and brickwork could all of a sudden become concerned and demand quality of applied finish which cannot be delivered on a poor base.

It appears that the owner builder who has shown no competence in quality supervision is merely seeking a reason not to pay for works done.

 Recommendations:

The owner builder should be served with this report with a request for payment without delay plus the cost of this report.

In the event that payment is refused the client should lodge a claim with VCAT.

The matter did go to full VCAT hearing followed by site viewing (where a member visits the site to see for himself)

My evidence and opinions prevailed and the builder was ordered to pay the contractor almost the full amount sought (minor deductions for minor faults attributable to the contractor)

In this case a builder, who was registered but ignorance and incompetence was shining through, sought to blame the contractor for the inadequate finished result when if fact the base for a good finish wasn’t there and it was his fault.

A lesson to be learned by all contractors is that if you don’t think the base you are going to work on will allow you to produce acceptable finish put it in writing before you start and make sure owner acknowledges it and gives you clear instruction to proceed regardless(in writing)

Owner builders often run out of money, their projects stall and tradies don’t get paid. This is one of my older cases (2006)where rendering contractor working on a house was not paid under excuse that the work was defective.

The owner had a particularly badly executed brickwork on his house that had been rendered by another contractor(since gone and not paid). Predictably render followed bowed and bulged walls and hollows.

My client was engaged to make good and finish the job. After speeding more than a week on the job filling bad spots and building up render to get true lines he was sent off by owner claiming filling rendering compound was incompatible with existing cement render and it is a defect.

The matter went to VCAT and I appeared as an expert witness giving evidence and expert opinion. This is synopsis of the report:

The investigation

The search of Australian Standards did not produce standard on acrylic based renders.

The search returned a Guide to Plastering HB 161-2005 which deals with application of cement based rendering

Unitex was contacted for additional information about of acrylic render and MSD information was received and is included in this report.

The MSD for Redi Render reveals that it contains Portland cement and sand among its constituents. These materials are identical to those used with cement based renders.

Conclusions

Redi render is a cement based render which is reinforced with acrylic binder. Given that the chemical composition of cement based render and Unitex Redi Render is essentially the same there be no doubt about the compatibility of application.

After reviewing all of the above information and after drawing on my extensive experience in building construction which includes many projects with rendered finishes I am able to form a conclusive opinion that :

1. There is no known incompatibility of application of “Redi Render” over cement sand based render
2. There is no evidence to indicate that the work as executed on site would be prove defective

My evidence and expert opinion prevailed and my client was awarded almost a full amount of the claim (less minor amount for actual small defects in rendering attributable to my client)

Owner builder and a serial offender “non payer” was ordered to pay.

Further to my blogs of 29th February and  26th March I appeared in VCAT as expert witness giving evidence and offering my opinion on the condition of a commercial roof.

The central argument between parties was whether the roof repairs were finished because that determined whether higher rent payments were to apply(as per retail tenancy agreement)

The opposing party and their expert witness attempted (in my view unconscionably and against logic) to assert that roof repairs were complete and that the resulting roof leaks were due to maintenance neglect by the tenant.

My evidence and the expert opinion was that the roof repairs were physically not finished and legally not finished as roof required a certificate of plumbing compliance. The evidence was supported with photos and thermal imaging photos showing locations of roof leaks.

My evidence prevailed and ultimately the VCAT decision was favourable to my client.

My client, a young lady could not afford legal representation and represented herself.

I was impressed by her preparation, steadiness, determination and tenacity in the face of aggressive and intimidating barrister, to withstand cross examination and eventually prevail.

I could also not help but be disgusted with a system of justice in which,  intimidation, extortion of rent, unconscionable conduct (by the real estate agent) and  a false lockout of tenant, ultimately went with impunity.

Ultimately, the root of the dispute was a poorly drafted contract which despite this outcome has left my client worse off by thousands of dollars.

A lesson to be learned is: pay attention to the contract before you sign.