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Raub & Alderton v Wide Bay Constructions t/as Dixon Homes Hervey Bay  QCAT 90
Sally Raub and Simon Alderton
Wide Bay Constructions t/as Dixon Homes Hervey Bay
13, 14 October 2016
28 March 2017
Claim for rectification of alleged defective work, statutory warranty, expert conclave, exercise of review jurisdiction
Sally Raub and Simon Alderton
Ms R. Pezzuti, Solicitor, Bell Dixon Butler, Lawyers
REASONS FOR DECISION
- The applicants Sally Raub and Simon Alderton are the owners of a property at 31 Bluewater Road Booral, Queensland. On 10 December 2007 they entered into a contract with the respondents, Wide Bay Constructions Pty Ltd trading as Dixon Homes, Hervey Bay for the building of a home on their property.
- According to the applicants, a problem arose shortly after entering the contract about the increasing costs. That matter was resolved, the home was built and the final inspection certificate was issued on 6 November 2008.
- On 19 November 2014, the applicants made a complaint to the Queensland Building and Construction Commission (QBCC).
- At the time the applicants raised 6 items of concern. Subsequently on 12 January 2015 the QBCC issued the licensee with a Notice to Rectify or Complete in relation to 2 items as follows:
- Internal joint in the plasterboard wall beside the main bedroom doorway has cracked and the joint backing strip has displaced and lifted which is of an unacceptable standard of finish and does not match in with the surrounding level of detail (Item 1).
- Water entering the soffit area of the dwelling which is not in accordance with the Building Code of Australia 2007 volume 2 and is in causing damage to the surrounding building elements (Item 3).
- At the same time, the QBCC advised the applicants that items 2, 4 and 5 of their complaint had been investigated and there was insufficient evidence to reveal any obvious defective construction practices by the respondents at the time of inspection. Therefore, the QBCC was unable to provide the applicants with any further assistance to resolve of these matters. With respect to item 6, the QBCC advised that the matter had been investigated and rectified.
- On 21 May 2015, the applicants commenced proceedings in the Queensland Civil and Administrative Tribunal and filed an amended application on 19 February 2016. The applicants also filed an Amended Alleged Defective Work/Incomplete Work Schedule seeking rectification of defective work to an estimated value of $18,500.
- The Amended Schedule identified 8 items of alleged defective work:
Item 1 - leaking eaves
Item 2 - roof on south side warped or sagging in areas
Item 3 - cracked roof tile joinery
Item 4 - rotten roof battens
Item 5 - broken roof tiles
Item 6 - bubbles to interior ceiling paint
Item 7 - moist patches on floor in robe and 4th bedroom
Item 8 - plastic gutter guard has replaced aluminium guard
- On 22 April 2015, QBCC advised the applicants that the licensee had attended to the items noted in the request to rectify dated 12 January 2015 and there was an agreement in place for completion of the minor associated works. No further action was to be taken by QBCC and the complaint was closed.
- In their submissions dated 3 November 2016, the applicants seek the following:
- Orders that would see the rectification of those items listed in the Alleged Defective Work/Incomplete work schedule carried out by a licensed contractor/s selected by the property owners under the terms of the warranty for the dwelling.
- Orders that would see the decision of the QBCC (22 April 2015) overturned so the roof and gutter system to their dwelling can be rectified so as to ensure that the new roof remains sustainable for the practical lifetime of the dwelling and remains structural for the lifetime of the dwelling.
- In accordance with the Queensland Building and Construction Commission Act 1991, Part 6, Sections 71J and 72… orders that that would see the defective and incomplete building works listed as items 5, 6, 7 and 8 of the Alleged Defective Work/Incomplete Work Schedule be rectified.
- In their initial Response and/or Counter-application dated 9 June 2015, the respondents sought the following orders from the Tribunal:
- Dismissal of all claims by the applicant that Wide Bay Constructions is liable for rectification of the roof following a thorough investigation conducted by the builder, QBCC and industry experts who provided comprehensive reports dismissing any fault on the builder’s part.
- Wide Bay Constructions Pty Ltd has met its warranty obligations by investigating and addressing all maintenance claims to the satisfaction of the QBCC.
- Subsequently the respondents filed a “Response and/or Counter-application” dated 3 March 2016 seeking the following orders:
- That the applicant's claim for review of the QBCC decision be struck out, on the basis that the Application for Review (a) has not been properly made and (b) is out of time.
- That the Application to the extent that it relates to the following alleged defects, on the basis of these defects were first noticed, or have been notified after expiry of the Warranty period: (a) item 8 gutter guard replacement, (b) item 7 – water in walk-in robe, (c) item 6 bubbles to interior paint work, (d) item 4 rotten battens, (e) item 5 broken roof tiles, be struck out.
- Each party provided their own chronology of events which are summarised as follows:
2 October 2007
Building work commenced
8 December 2007
6 November 2008
Cracked roof tile joinery on south-west side (Item 3)
Warped/sagging roof along the south side (Item 2)
December 2012/ January 2013
Solar panels installed on roof
Applicants aware of leaks to eaves
19 May 2014
First report of water to fascia and soffit
12 September 2014
Builder notified of defects 1, 2 and 3
19 November 2014
Complaint to QBCC re defects 1, 2 and 3
6 November 2014
Statutory Warranty expired (commenced 6 November 2008, and ended 6 November 2014)
7 January 2015
Roof inspection by QBCC
12 January 2015
21 January 2015
Request to Rectify issued to Respondent:
20 March 2015
Applicants completed cleaning of tiles
31 March 2015
Roofpoint inspection and report (Mark McGuire)
31 March 2015
Tennant Roofing Report (Nathan Locke)
31 March 2015
Rotten roof battens (Item 4), Broken roof tiles (item 5) first noted by applicants.
31 March 2015
Respondent notified of defect 4 – rotten roof battens in various locations.
10 April 2015
QBCC correspondence (Peter Hutson) - Summary of findings regarding Roofing Reports and resolution.
13 April 2015
Respondent notified of defect 5 - broken roof tiles in various locations.
21 April 2015
Sanbeck Building Services Inspection and Report
22 April 2015
Complaint to QBCC closed.
8 May 2015
QBCC close Review and confirm assessment
13 May 2015
Sanbeck Report submitted to QBCC
14 May 2015
QBCC confirm that roof leakage issues caused by the build-up from trees in close vicinity to the dwelling - being an Owner Maintenance issue.
21 May 2015
Applicants apply to QCAT regarding building dispute.
28 May 2015
Alleged defective work/incomplete work schedule lodged with Tribunal.
1 June 2015
Monier email report.
7 August 2015
Report from Joe Indelicato (Allstate Roof Maintenance and Restoration)
21 August 2015
Bubbles on the interior ceiling paintwork noticed after rainfall (Item 6)
Moisture to floor of robe and 4th bathroom (Item 7) and bathroom.
27 August 2016
Application to join QBCC (Dismissed 26 October 2015).
7 September 2015
Roof Tile test and inspection by Monier (Darren Tsimpikas).
25 September 2015
Report by Laurence Eves, Level 1 Building Certifier.
19 November 2015
Roofpoint (Mark McGuire) Certificate re Compliance.
26 November 2015
Respondent notified of defects 6 & 7.
Respondent notified of defect - plastic gutter guard replaced aluminium gutter guard (Item 8).
13 January 2016
Respondent notified of defect 8.
22 February 2016
Applicant filed Amended Application and Amended Alleged defective work/incomplete work Schedule.
26 April 2016
Joint Expert Report
13 October 2016
- On 4 November 2015, the Tribunal listed the matter for an expert conclave to be held on 12 February 2016. The Tribunal directed that “(i)f the experts prepare a joint report, that report will be the expert evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.”
- The Tribunal further directed that, except with the Tribunal’s leave, a party may not raise a matter, not already mentioned in the joint report, submit evidence from an expert that contradicts, departs from or qualifies an opinion about an issue the subject of agreement in the joint report or submit evidence from any other expert about matters mentioned in the joint report.
- On 26 April 2016 a meeting was convened between the various experts involved. Participants were Joe Indelicato (Allstate Roof Maintenance and Restoration), Lawrence Eves (Coast Wide Certification), Nathan Locke (Tennant Roofing Services), Mark McGuire (Roof point) and David Clark (Monier).
- The experts acknowledged that the Report related only to issues as to water ingress and the adequacy of the tile roof.
- The experts concluded that the most economical and practical method of repairing the roof is to:
- (a)strip the tiles off the roof;
- (b)clean the water channels of the tiles out;
- (c)replace the water affected battens and any water affected sarking as required; and
- (d)reinstall the tiles.
- The experts agreed on the following matters:
- If the house had been built in another location without adjoining vegetation, and the tiles had not been interfered with, or broken by walking on, that it is most probable that there would be no water ingress through the tiling (para 13).
- Further the experts agree that given that the roof may have been affected by damage caused by persons walking on the roof, and the extent of water effect on the battens and sarking, that removal and refitting of the entire roof would be a good practice (para 17).
- After repair, the roof will require regular maintenance by a qualified trades person to keep the water channels clear of debris and avoid any possible future water leak by water flowing over the side of the tiles (para18).
- The experts concluded that it cannot be determined whether the leaks affecting the soffit result from water entering via the tiles or via the guttering (para 20).
- The applicants point out that the Report does not state that the leaves blocking the water courses is the cause of the leaking eaves. In their submissions, the applicants meticulously address each of the items set out in the Expert Report and question most of the comments made by the experts. They make numerous suggestions as to alternate possibilities regarding the statements by the experts. However, they have not provided any other evidence to support their assertions and opinions.
- The applicants contend that they “employed the services of the respondents with an expectation to build the house with expert skill set”. The applicants expected a Builder would be aware of problems that could void the warranty and would advise accordingly in the applicant's best interest.
- The applicants claim that they were never advised that the surrounding bushland would ever become a problem. They say that no Maintenance Schedule regarding the cleaning of leaves from the watercourses of the roof tiles was ever provided.
The applicant's case
- The applicants submit that they have made a proper application for review of a reviewable decision in accordance with Part 7 Section 86 of the QBCC Act 1991 and Chapter 2, Part 1 Division 3 of the QCAT Act 2009. They assert that they are disputing defective building work for which QCAT has review jurisdiction.
- The applicants acknowledge that the submission by the respondent that items 5 to 8 of the Alleged defective work/incomplete work Schedule did not comply with the QBCC dispute resolution process is correct. They argue that item 5 became apparent during the QBCC complaint process and items 6, 7 & 8 became apparent after the closure of the QBCC file.
- The applicants point out that they were not satisfied with the final decision of the QBCC and protested profusely about the closure of the file and the inadequacy of the QBCC findings. Accordingly, they made an application for a Domestic Building Dispute on 21 May 2015.
- The applicants submit that their claims may be covered by the Statutory Warranty. On their analysis they argue that items 1, 2, 3 & 4 of the Amended Alleged Defective Work/Incomplete Work Schedule would be covered by the Warranty.
- They acknowledge that items 5, 6, 7 & 8 do not appear to be covered by the Warranty but submit that it must be noted these defects became apparent during the complaint process with the QBCC. They express their opinion that items 5-8 are consequential damage as a result of the rectification works performed by the respondents during the QBCC complaint resolution process.
- The applicants strongly assert that the expert’s conclave and subsequent joint report did not finally agree as to the cause of the leaking roof. They provided a comprehensive analysis of the statements of evidence and expert statements presented by both parties.
- They express their dissatisfaction that the parties did not agree to a set of issues to be considered by the Experts at the Expert Conclave in accordance with the Directions of the Tribunal dated 8 February 2016.
- The applicants submit that their Amended Application for Review of a Reviewable Decision is made pursuant to section 86 of the QBCC Act 1991. They say that they are disputing defective building work for which the Tribunal has review jurisdiction.
- In their Amended Application the applicants seek orders for rectification under the terms of the warranty for the dwelling. However, they do not state what aspects of the warranty they seek to rely on. It is not part of the Tribunal's role to speculate about this issue.
- The respondent's point out that proceedings for a breach of statutory warranty claim are subject to a limitation period as set out in clause 29(1) Schedule 1B of the QBCC Act. They acknowledge that items 1, 2, 3 and 4 of the applicant’s complaint come within the warranty period.
- However, they submit that items 5, 6, 7 and 8 relate to matters that have arisen since the expiry of the warranty period. They contend that these alleged defects resulted from the rectification works conducted has a result of the direction by the QBCC and are not subject to the Statutory Warranty.
- The respondents submit that the QBCC has assessed the rectification works as satisfactory. They acknowledge that the QBCC inspector gave evidence that no inspection was carried out but it is the practice of the QBCC to treat the works are satisfactory on the basis that the respondent confirmed its completion of work pursuant to the rectification orders. There was no other evidence regarding this issue.
- Therefore, the respondent submits that proceedings for breach of the statutory warranty are, otherwise, time barred by reason of the expiry of the warranty period. Consequently, they argue that the Tribunal has no jurisdiction to determine the amended application to the extent it relates to items 5, 6, 7 and 8.
- In any event, the respondent submits that the applicant has not produced any independent or expert evidence as to the existence of the defects identified in items 6, 7 and 8.
- In relation to item 5 they submit that the applicant himself gave evidence that solar panels were installed on the roof in December 2012 or January 2013 and that the Expert Report notes that the installation would involve persons walking on the roof. The respondents contend that there is no evidence to support the applicant's suggestion that the “broken tiles are from the broken battens and the hips sliding…”.
- The respondents submit that “it is open to the Tribunal to find that the broken tiles were caused by persons walking on the roof during installation of the solar panels, which occurred prior to the rectification work carried out by the respondent”.
- The respondents point out that the applicants have not made an Application for a Review of the QBCC's decision dated 22 April 2015 in accordance with section 18 of the QCAT Act. They argue that an application for review of the decision is now out of time pursuant to section 33(3) of the QCAT Act and therefore the Tribunal has no jurisdiction to make the order sought in the amended application.
- In their amended application, the applicants assert that the QBCC complaint process has not produced a fair and reasonable outcome, due to bias. They claim that the QBCC has failed to provide a safe roof and the QBCC investigation caused or contributed to the defects at items 5, 6 and 7 of the Defective Work Schedule.
- However, the respondents submit that the Tribunal does not have jurisdiction to review the QBCC decision and therefore cannot consider and determine those issues.
- I make the following Findings regarding the evidence in this matter.
- There is no evidence that there was any structural defect or deficiency in the roof at the time the house was completed.
- There is no evidence of any water leak prior to the applicants becoming aware of it in October 2013.
- The applicants installed solar panels to their roof in December 2012/January 2013 that involved persons walking on the roof.
- There was traffic on the roof for purposes of inspection and cleaning on an unidentified number of occasions.
- The roof may have been effected by damage caused by persons walking on the roof.
- A number of tiles on the roof were broken by unknown persons.
- The water channels of the tiles were filled and blocked with leaf and vegetation debris, some quite fine and similar to “fur”.
- The underlying issue for determination in this case is whether the licensee/respondent is responsible for any of the problems which the owners/applicants are currently experiencing. The chronology of events in this matter is significant because it provides context for the events that occurred. The respondents acknowledge that the current state of the applicant’s roof is very unfortunate but contended that it is not they have responsibility.
- After a careful consideration of all of the material, I am not satisfied that the applicants have demonstrated on the balance of probabilities that the respondent/licensee is responsible for the damage occasioned to their property.
- I accept the respondent's submission that while the applicants have challenged various matters in the Joint Expert Report they have not sought leave to rely on any other expert evidence to address their concerns.
- I accept the respondent’s submission that the decision of the QBCC has not been the subject of administrative review and I note that the finding in relation to items 2 and 3 of the applicant's schedule of defective work that this is not a defect that the builder is responsible for because the tiled roof is performing and is within the tolerances allowed in AS2050 – 2002.
- The orders which the applicants are seeking are outlined earlier in these reasons at paragraph 10. The orders they are seeking are not supported by the evidence and do not demonstrate why the respondents should be in any way responsible for the remedies that they identify.
The orders which I make are as follows:
- The applicant's claim for review of the QBCC's decision dated 22 April 2015 is dismissed.
- The applicant’s in relation to items 5, 6, 7 and 8 of the Amended Defective Work Schedule dated 19 February 2016 is dismissed.
- The claims by the applicants for the rectification of the applicant’s roof are dismissed.
Requests for rectification of building work or remediation of consequential damage
Power to require rectification of building work and remediation of consequential damage
Tribunal Directions 4 November 2015
Applicant’s submissions 3 November 2016 at page 14
Proceedings for breach of warranties
Applicant’s submissions page 13 paragraph 6
Respondent’s submissions paragraph 22
When review jurisdiction exercised
- Published Case Name:
Sally Raub and Simon Alderton v Wide Bay Constructions t/as Dixon Homes Hervey Bay
- Shortened Case Name:
Raub v Wide Bay Constructions
 QCAT 90
28 Mar 2017
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QCAT 90||28 Mar 2017||Applicant's claims dismissed: Member Quinlivan.|
|Primary Judgment|| QCATA 147||24 Nov 2017||Application in appeal from  QCAT 90 for leave to file fresh evidence refused: Senior Member Howard.|
|Primary Judgment|| QCATA 2||02 Jan 2019||Application for leave to appeal against  QCATA 147 refused as incompetent: Member Paratz.|
|Notice of Appeal Filed||File Number: Appeal 3204/18||21 Mar 2018||-|
|Appeal Determined (QCA)|| QCA 149||29 Jun 2018||Application for extension of time for leave to appeal against  QCATA 147 refused: Sofronoff P and Gotterson JA and Ryan J.|
|Appeal Determined (QCA)|| QCA 84||15 May 2019||Application for leave to appeal against  QCATA 2 refused: Gotterson JA, McMurdo JA and Mullins J.|