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Defects in Waffle pod Slab Construction

Defects in Waffle pod Slab Construction

Defects in Waffle pod Slab Construction

VCAT has recently considered and awarded demolition and rebuilding costs in two claims against Metricon Homes Pty Ltd where it was alleged that waffle pod slabs constructed by them had failed.  Both decisions have been appealed by Metricon, and the Supreme Court has dismissed one of those appeals.  Both cases examined failures in the construction of waffle pod slabs.

In the first case, Hooper v. Metricon Homes Pty Ltd (Domestic Building) 2014 VCAT 277, the Tribunal found that the cracking to the home of Mr and Mrs Hooper was excessive and beyond the now VBA Guidelines, and was caused by inconsistent and insufficiently compacted fill placed by Metricon under the slab.  The fill was also placed too high by approximately 230mm, and resulted in deflection of the slab around 86mm, and in the ceilings to the home of 79mm.

In determining what damages should be awarded, the Tribunal decided to order the cost of demolition and re-building, on the basis that the expert evidence accepted by the Tribunal was that the slab was still moving and had not stabilised. The Tribunal considered that it was not reasonable for the owners to take the risk into the future of further movement.  Metricon had argued that the existing damage to the house could be repaired and that some ongoing movement of the house was to be expected, as the house was built on reactive soil.  Metricon therefore argued that the real damage suffered by the owners were disproportionate to the costs of demolition and rebuilding. The Tribunal rejected this argument and found that the movements were not normal seasonal movements and were severe and irregular, and would continue for the life of the building.  The Tribunal applied the law from a well known High Court decision ofBelgrave v. Eldridge to find that demolition was not an unreasonable course to adopt.

In the second VCAT case of Softley v. Metricon Homes Pty Ltd (Building & Property List) (2014) VCAT 1502, Metricon had again constructed a home on highly reactive clay using a waffle pod slab.  The Tribunal found on the expert evidence in relation to the damage to the home that the soil classification and the truss designs were acceptable, but that the drainage constructed by Metricion during the works was not adequate, as for example, downpipes had not been connected.  The Tribunal found that the abnormal site conditions were the responsibility of Metricon. The Tribunal accordingly found that Metricon had breached its statutory warranty.  The Tribunal again considered the issue of damages, and found that the owners were entitled to recover damages necessary to enable them to own a house which was free of risk so far as its stability was concerned. The Tribunal concluded that the cost of repair was not the appropriate measure of damage.  Part of the owner’s claim for a slab upgrade was not accepted, but overall the Tribunal found that the correct measure of damages was to demolish and rebuild the home. Metricon again argued that it would be possible for the owners to make further claims during the structural guarantee offered by Metricon if further problems were encountered after the house had been repaired. Metricon had carried out some rectification work in severally damaged areas in 2011.  Metricion blamed the owners for the problem, pointing to where they had installed a pebble garden, but VCAT considered this area was too far from where the problems were occurring and was not the cause of the damage.  The damaged area was protected by a concrete path.  As the problems had persisted and therefore the Tribunal did not accept Metricon’s argument that the worst damage and movement was over.  Overall, therefore the Tribunal felt that repairs only would be a doubtful remedy.

In Hooper, Metricon lodged an appeal in the Supreme Court which was heard in 2014.  The Supreme Court (by single Judge, His Honour Justice Digby) handed down its decision on 26 March 2015 dismissing the appeal.  Metricon’s central argument was that there was not sufficient evidence to prove it had placed the fill on the site under the slab, which was not properly compacted and the main cause of the problem.  The Judge rejected this argument and found there was sufficient expert evidence for VCAT to have reached its conclusion that Metricon was responsible for the placement of this fill.

Metricon has also lodged an appeal in Softley matter.  Softley was decided by a Presidential Member (Judge McNamara).  It has been heard by three Supreme Court Judges, and a decision is about to be handed down.

Both cases have generated a great deal of interest in the construction industry and related legal circles, and so far have reaffirmed the legal principles in relation to the award of damages, and how the statutory warranties under Section A of the Domestic Building Contracts 1995 operate.

If damage to a house is significant, and in the case of the slab movement is due to poor construction by the builder (e.g. poor drainage, as in Softley, or uncompacted fill underneath – Hooper) – then the owner will be awarded damages to demolish and rebuild if there is a significant risk of ongoing movement, and if the damages are considered both reasonable and necessary.

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