A further reminder of risks faced by construction
professionals is evidenced by a recent decision of Victorian Civil
and Administrative Tribunal in Softley v Metricon Homes Pty
The December 2014 decision builds on the potential exposure
facing construction professionals operating in the domestic
building sector arising out of slab heave caused by volatile soil
movements, as featured in the article, " Victorian
Construction Professionals under scrutiny:
a new wave of claims on the horizon.
STANDARDS OF WORKMANSHIP IN QUESTION
The applicant owners, Mr and Mrs Softley, engaged Metricon to
construct a Metricon designed dwelling known as 'Santorini
26' on their vacant block of land located in Melton West. The
design was premised on structural engineering drawings produced by
Structural Works (an engineering practice) on behalf of
Shortly after occupying the dwelling, the Softleys observed
cracking in the walls, skirting boards and cornices, as well as
areas where the ceiling had separated from the cornices. Following
torrential rainfall a few months later, the Softleys observed
extensive external damage, including cracking and splitting in the
bricks and mortar. Subsequent investigations revealed that the
damage was caused by slab heave which lifted the external walls and
distorted the timber frame.
Following a series of investigations and an unsuccessful
rectification attempt by Metricon, the Softleys commenced
proceedings against Metricon alleging that in breach of the implied
warranties set out in section 8 of the Domestic Building
Contracts Act 1995 ('the Act') and
expressly referred to in the contract, Metricon had departed from
the proper standards of workmanship in construction.
In finding for the Softleys, the Tribunal held that Metricon had
breached the implied warranty contained in section 8 of the Act as
it departed from the proper standards of workmanship in
construction by, amongst other things:
failing to install downpipes once the roof had been installed
resulting in water pooling at the base of the slab during the
exposing the edges of the waterproof membrane placed under the
failing to take steps to channel rainwater away from the edge
of the slab after the pouring of the slab; and
failing to provide adequate surface and sub-surface drainage
prior to construction as stipulated in the structural design.
The Tribunal was satisfied that Metricon's failings caused
the expansion of the highly reactive clay subsoil following heavy
drought ending rainfall which occurred during the construction
Although finding that the design itself was not defective, the
Tribunal appeared to accept that Metricon could have otherwise been
liable in circumstances where it was, for all intents and purposes,
the designer. The position was contrasted to a scenario where an
owner engages an architect/engineer and, on the basis of their
design, retains a builder solely for the purpose of
The Tribunal accepted the Softleys' primary claim for loss and
damage by awarding the cost of a demolition and rebuild over the
more commonly awarded cost of rectifying the existing
The Tribunal held that in determining whether to award the cost
of rectification or the cost of demolition and reconstruction, it
needed to consider whether the damage and distress suffered was a
'one off event' or whether it was likely to be an ongoing
In this context, noting that a number of unsuccessful attempts
at rectification had been made, the Tribunal was satisfied that the
damage was ongoing and on that basis awarded damages that were
sufficient to allow for a demolition and reconstruction of the
VOLATILE SOIL RISK
The Tribunal's decision highlights the risks facing
construction professionals when designing and/or constructing
dwellings in areas where volatile soil is present.
Whilst the Softley claim differs from the recent "waffle
slab" claims, because the damage occurred in the construction
phase rather than after occupation, it is a further reminder of the
dangers of construction professionals adopting cost-saving
practices without considering the geology and natural features of
the previously undeveloped parcels of land.
Given the reported increase in property damage arising from slab
heave caused by volatile soil movement, construction professionals
may find themselves more readily exposed to costly disputes and
adverse findings if they are shown to have failed to give
sufficient consideration to the risk of volatile soil movement.
1 VCAT 1502.
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