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  • Unreported Judgment

Landscaping Qld Pty Ltd v Queensland Building and Construction Commission

 

[2020] QCAT 130

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Landscaping Qld Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 130

PARTIES:

LANDSCAPING QLD PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR150-17; GAR345-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 April 2020

HEARING DATE:

9 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

In GAR 150-17:

  1. The decision of the Queensland Building and Construction Commission to issue Direction to Rectify No 0102226 is varied as follows:
    1. Items 1, 2, 3, and 7 of the Direction to Rectify No 0102226 are set aside.
    2. Items 4, 5 and 6 of the Direction to Rectify No 0102226 are confirmed.

In GAR 345-17:

  1. The decision of the Queensland Building and Construction Commission is returned to the decision-maker pursuant to s 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for reconsideration if necessary in accordance with these reasons.

APPEARANCES &

REPRESENTATION:

Applicant:

U Berger

Respondent:

S Hedger, solicitor of Ebsworth & Ebsworth

REASONS FOR DECISION

  1. [1]
    The Wollermanns are the owners of a house at Broadbeach Waters. There is a pleasing view from the rear of the house over an in-ground swimming pool and onto a canal. They wanted to renovate and extend the back area of the house with the addition of a covered and sealed pergola/sala, new decking around the pool and new glass panel pool fencing. They engaged the applicant to prepare plans and quote on the building work. Paxton Berger and Urs Berger (Paxton’s father) are directors of the applicant company. Urs Berger, who is an architect, prepared plans for the proposed work the extent of which is show in the plans.[1] The design of the pergola incorporated a central raked ceiling to a gable roof with the roof line flattening to the end of the existing dwelling. The plans also detailed the positioning of a number of structural columns to support the roof structure.
  2. [2]
    After the work was completed, the Wollermanns made a complaint to the Queensland Building and Construction Commission about the quality of the work. After one of the Commission’s building inspectors attended the premises and inspected the work with Mr Paxton, the Commission made a decision to issue a direction to rectify to the applicant in respects of certain aspects of the building work. The initial direction to rectify was internally reviewed at the request of Mr Wollermann and a further direction to rectify, No 0102226, was issued which included additional items of defective building work. The applicant now seeks a review of the Commission’s decision to issue the direction to rectify.

Background

  1. [3]
    The Wollermanns and the applicant entered into a construction contract for the construction of the pergola and associated works around the outside pool with actual work commencing on or about 25 January 2016. The work was completed on or about 18 May 2016. Paxton Berger who is the nominee licensee for the applicant supervised and carried out the work under the contract. During the course of the construction work Mrs Wollermann was onsite most days save for a period towards the end when she and her husband went on an overseas holiday. Where necessary she provided instructions and approval when there were necessary deviations from the prepared plans. An example of this, which will be discussed later, is the positioning of the rendered columns to support the roof structure.
  2. [4]
    The progression of the work was uneventful and nearly all of the monies payable under the contract were paid save for a final payment of $2,050.00. The applicant contends that on 12 May 2016 Urs Berger had a site meeting with Mrs Wollermann and it was agreed between them that after adjustments, the final amount payable under the contract was $2,050.00.
  3. [5]
    After the final invoice was issued, Urs Berger received an email from Mr Wollermann on 17 May 2016 querying whether their last invoice was the ‘full and final account for all works to date’. In a reply to that email, Mr Urs Berger said that was the amount agreed to between himself and Mrs Wollermann. Mr Wollermann expressed some surprise at that response because it was not simply a ‘yes’ or ‘no’ response but did not make any direct challenge as to whether or not that was the agreed amount.
  4. [6]
    Then on 31 May 2016, Mr Wollermann again emailed Urs Berger and set out a list of complaints about works carried out by the applicant including the manner in which they (presumably Paxton Berger and Urs Berger) treated Mrs Wollermann whereby she felt ‘intimidated and bullied’. There were further emails from the Bergers attempting to set up a meeting with the Wollermanns so that their complaints could be discussed and the matter resolved but that was flatly refused by the Wollermanns because they could not see any utility in a meeting. There was a standoff with the Wollermanns not paying, and the applicant not addressing their concerns. A more fulsome email setting out further detailed complaints was sent to the applicant on 19 July 2016.
  5. [7]
    Nothing further happened and then on 18 August 2016 the Wollermanns lodged a formal complaint with the Commission which included complaints about specific items of work carried out by the applicant.
  6. [8]
    On receiving that complaint, the Commission arranged for an inspection of the work at the premises by Resolution Services, a division of the Commission. On 17 October 2016 David Adams a building inspector with the Commission attended the site and carried out an inspection in the company of Mr Paxton and the Wollermanns. Subsequently, he prepared a report dated 2 November 2016. The report addressed the following items of complaint, summarised, as follows.
  7. [9]
    Complaint 1 related to the pergola ceiling not being as designed. The ceiling was not uniform in appearance. In respect of this complaint Mr Adams did not find any defective work. No direction to rectify issued.
  8. [10]
    Complaint 2 related to the positioning of the columns supporting the roof structure being out of line and not square. There is no dispute that the columns are out of alignment. There is an apparent 60mm difference between the column outside the rear doorway and the one to the left of it. Photographs clearly show a 60mm differential on a tile line extending between the two columns which shows that they are out of line. Mr Adams noted the differential but considered it would be unreasonable to issue a direction to rectify. A second item under this complaint related to tie down rods but Mr Adams was unable to inspect these and therefore not prepared to issue a direction to rectify. A third item related to the absence of a termite barrier. This was evident on inspection and a direction to rectify was issued in respect of this defect.
  9. [11]
    Complaint 3 related to cracking of the umbrella stand inside the pool fence. However, Mr Adams could not identify any obvious defective construction practices and did not issue a direction to rectify in respect of this complaint.
  10. [12]
    Complaint 4 related to hairline cracking to the masonry planter box. The cracking was within the tolerances of the relevant standards and no direction to rectify was issued.
  11. [13]
    Complaint 5 related to the steps to the pool area. Inspection revealed they were within the tolerances of the relevant standards and no direction to rectify was issued.
  12. [14]
    Complaint 6 related to the positioning of an umbrella stand into which a large umbrella would be placed to shade the swimming pool. This was too close to the pool fence and did not comply with the distancing requirements for pool fencing regulations in that it was viewed as a climbing hazard. This was not a construction issue and the Commission could not take any action in respect of it and therefore no direction to rectify issued.
  13. [15]
    Complaint 7 related to excess deflection in the glass fence built on decking surrounding the swimming pool. It was not adequately secured to the deck and therefore a direction to rectify issued in respect of this defect.
  14. [16]
    Complaint 8 related to the stormwater drainage into the grates in the renovated area. The downpipes were installed too low onto the filter grates. This was considered to be defective work and a direction to rectify issued.
  15. [17]
    Complaint 9 related to the packing of the steel stirrups to hold the bearers for the sub floor of the decking around the pool: ‘The stirrups had been installed to [sic] low and this has then been packed excessively with a compressible packer. This has resulted in the bolt connection of the bearer being located close to the edge of the bearer’. Mr Adams found this was unacceptable under AS 1684 and issued a direction to rectify. Also in respect of the steel stirrups he found concrete mounding around the base of the stirrup post did not allow water run-off and required rectification. The applicant has given evidence that he has attended to most of these but there are still a few that require attention. A direction to rectify issued in respect of this defect.
  16. [18]
    Complaint 10 related to rainwater missing the gutter at the barge cap overhanging the pool which was found to be out of level. A direction to rectify issued in respect of this complaint.
  17. [19]
    Complaint 11 related to some rendering repair work where the masonry was ‘chased’ out for an electrical cable. It had been repaired but was unsatisfactory. However, having discussed the work with Mr Wollermann, Mr Adams noted that the owner was prepared to accept this.
  18. [20]
    Complaint 12 related to a water leak between new structure and the house wall. This has come about because the longitudinal apron flashing of the roof sheeting was only 70mm – 80mm where 150mm is required. Testing revealed leaking and a direction to rectify was issued.
  19. [21]
    As a result of Mr Adams’ inspection, the Commission issued Direction to Rectify No 0101385 to the applicant on 8 December 2016. The direction to rectify required rectification of the following items of complaints, which are in summary:
    1. (a)
      Absence of a physical termite barrier;
    2. (b)
      Excessive movements in the glass panelling fencing;
    3. (c)
      Rectification of the downpipe and stormwater drainage;
    4. (d)
      Use of excessive packing to the stirrup footings and absence of mounding on the concrete footings to deflect water;
    5. (e)
      Defective barge cap not directing water to the stormwater system; and
    6. (f)
      Rectification of the flashing of appropriate length – 150mm.
  20. [22]
    The Wollermanns were notified of the direction to rectify but were dissatisfied that some of the items, in particular the complaints about the columns and the pergola ceiling were not the subject of a direction to rectify. The Wollermanns sought an internal review of Mr Adams’ assessment.
  21. [23]
    The internal review was conducted by an internal review officer, Ms Tyler, who sought technical assistance from Greg Matthews, another building inspector within the Commission. His assistance was sought because Ms Tyler did not have the necessary expertise to consider some of the technical aspects of the construction work necessary for the review; an example is the columns. Neither Ms Tyler nor Mr Matthews attended the site for a physical inspection but rather reviewed the report of Mr Adams, and referred to the photographs that were included in the report.
  22. [24]
    As a consequence of that internal review, the further and final direction to rectify, No 0102226, was issued to the applicant on 16 June 2017. This direction to rectify included additional items. In summary the additional items to the direction to rectify previously issued now included:
    1. (a)
      The plaster board ceiling at the east side of the pergola was not flat and true at its junction with the perimeter beam resulting in a visually unacceptable (wavy) finish which is not to a reasonable standard expected of a suitably qualified and competent tradesperson;
    2. (b)
      The masonry columns were 60mm out of line with the corresponding column at the end of the patio which created a visually unacceptable finish and was not of a reasonable standard; and
    3. (c)
      The installation of the umbrella post adjacent to the pool area does not satisfy the swimming pool safety requirements and is considered a climbable object within the non-climbable zone.
  23. [25]
    On 12 June 2017 the applicant filed an application to review the Commission’s decision to issue the direction to rectify 0102226. There is a brief summary as to why the applicant says the direction should not have issued in the application itself but a more fulsome explanation is set out in the material that has been filed by the applicant which includes statements from Mr Paxton Berger and Mr Urs Berger. The applicant also relies on an expert report prepared for the purposes of the review application by Access Dispute Resolution authored by Michael Walton. Mr Walton conducted an inspection of the premises and the work the subject of the direction to rectify on 27 November 2017 for the purposes of preparing his report.
  24. [26]
    The Commission relies on the statement of reasons for the decision which sets out the history of the decision-making process, statements of Mr Gregory Matthews and of course the reports from Resolution Services which are all included in the statement of reasons. There is an additional statement from Simon Gregory dated 5 June 2018 of Sergon Building Consultants. Sergon was engaged to prepare a scope of work in respect of the rectification work the subject of the direction to rectify. The scope of work is annexed to Mr Gregory’s statement.

The Review

  1. [27]
    The application to review an administrative decision is conducted under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which requires the Tribunal to produce the correct and preferable decision by way of a fresh hearing on the merits. In other words the Tribunal stands in the shoes of the original decision maker to consider the matter afresh. It is the Tribunal’s function now to consider each direction to rectify and decide whether it should be upheld or set aside.
  2. [28]
    The Commission’s power to issue a direction to rectify is contained in Part 6 Division 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  3. [29]
    Section 72(5) of that Act also provides that ‘the commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.’
  4. [30]
    It was in reliance on that section that Mr Adams, at first instance, did not issue the direction to rectify in respect of the out of line columns.

The Defects

Plasterboard Ceiling to the Pergola

  1. [31]
    In his initial report, Mr Adams chose not to issue a direction to rectify, although his report does not specifically address the complaint that the plasterboard is not flat at its juncture with the perimeter beam resulting in visually unacceptable (wavy) finish. Ms Tyler and Mr Matthews considered this work was defective; however, they did not carry out a site inspection but instead relied on photographs only.
  2. [32]
    Mr Matthews did not give consideration to the fairness of the issuing of a direction to rectify in respect of this complaint or any complaint because his role was limited to technical advice only.
  3. [33]
    Mr Walton did undertake a careful physical inspection of the pergola ceiling and found that although there was some deviation at the very north forward/east corner of the ceiling, the deviation only occurred in the last 450mm or so to the corner where it did drop but only to about 4mm to 5mm directly over the column. He stated in his report that this was ‘the only deviation plainly visible to the eye’. He did not observe any ‘wavy’ deviations along the eastern margin. The measurements shown in photographs[2] Item 1-4 through to Item 1-10 show a fairly consistent distance between the ceiling and the bottom of the beam of roughly 110mm until the beam reaches the column and there is a reduced measurement of about 105mm. The accuracy of the measurement at the corner with the column is difficult because of the existence of proud concrete render.
  4. [34]
    Mr Simon Gregory, of Sergon, provided evidence that is somewhat consistent with that of Mr Walton where he stated that the deviation was in the localised area referred to. He made no reference to a wavy ceiling or any other defects with respect to the pergola ceiling. He did say to carry out selected rectification in this isolated area would be unsatisfactory and therefore the whole ceiling needed to be replaced.
  5. [35]
    The deviation, if over 5mm over the length of the ceiling at that point, is outside that provided by AS 2589 which allows for a tolerance of 4mm over 1.8m. However, given the only measurements that have been provided are those by Mr Walton, which shows a deviation of perhaps 4mm, at best, it would seem to me that over 450mm this deviation would comply with the tolerances provided for in the Standard and therefore I agree with Mr Adams that a direction to rectify should not issue. Even if it is 5mm, then under s 72(5) it would be unfair to issue a direction to rectify for a minor discrepancy of 1mm. I would also make the point that in the absence of any physical inspection and measurement by those internally reviewing the original decision, the original decision should stand.
  6. [36]
    In respect of whether the ceiling is ‘wavy’ I am not satisfied that a determination can be made about this by simply looking at photos, because it is not apparent, when those that actually inspected the ceiling did not observe that the ceiling was ‘wavy’. On this point I accept the evidence of Mr Walton who undertook a thorough examination of the ceiling and took measurements of the relevant part the subject of the complaint.

Columns

  1. [37]
    There is no doubt that this is defective work in that the columns do not align. Mr Adams initially found that it would be unreasonable to issue a direction to rectify in respect of the columns because in the circumstances it would be unfair and relied on s 72(5) of the QBCC Act.
  2. [38]
    There is no dispute that the columns are out of alignment and in a different position than noted on the plan which required them to be an equal distance from the rear wall of the house. There is a differential between the column at the end of the house to the left side looking out compared to the column immediately in front of the external doorway out onto the patio area. It is evident from the tile line running between the columns that there is a difference of about 60mm. However, the only person who actually measured the distance of each column from the house was Mr Walton. His measurement established the differential in alignment was only 45mm.
  3. [39]
    However, there is a reasonable explanation why the columns are out of alignment. The pergola was a building extension to the existing house and constructed around the existing pool. The evidence from Paxton Berger, which is not contradicted by any evidence from the Wollermanns or the Commission, is that the columns were offset because, when undertaking the construction of the columns he was required to work around existing underground plumbing both for stormwater and for the swimming pool. Photographs[3] taken when the existing slab was opened up for the foundation for the columns show the presence of these pipes. It was better to have the columns slightly offset rather than cut out more concrete of the existing slab.
  4. [40]
    This seems a reasonable approach at the time and without the tile line it is doubtful the difference would ever be noticed. Also, while this work was being done Mrs Wollermann was on site and involved in communication with Paxton Berger about the works as they progressed. I accept his evidence that she appeared to be happy with the work and no complaint was made until final payment was requested. There is no evidence from the Wollermanns to contradict the evidence of either Paxton Berger or Urs Berger. This is only relevant to the question of fairness.
  5. [41]
    When considering whether to issue the direction to rectify, the decision maker Ms Tyler had regard to s 72(5) of the QBCC Act but only insofar as the cost of rectification work exceeded the balance amount owing under the contract. It is evident from the Review Notice and the Statement of Reasons, that the reviewer did not give any consideration to the reasons why the columns were out of alignment and the impact this had on the overall visual appearance of the completed works. This is certainly a consideration when considering the question of unfairness under s 72(5). As Mr Urs Berger was on site during the initial inspection it is reasonable to assume that he told Mr Adams the reasons for the location of the columns and Mr Adams took this into account when he considered ‘the reasonability of issuing a Direction to Rectify’.
  6. [42]
    Not only was the reason explained by the Bergers but also addressed by Mr Walton in his report.[4] He commented that as the new structure was to be connected to the existing drainage system some latitude could reasonably be expected. He went on to say:

Minor dimensional adjustments such as the relocation of the column in question are typical with this type of “renovation work”, especially where there is reuse of existing services and where the builder has not been provided with any reliable ‘as constructed drawings’ of the existing services to allow accurate placement of the work in the first place.

Clearly, neither column is precisely in the plan nominated position. Notwithstanding this apparent deviation, there may be good reason for the departure(s). We are instructed that (particularly in relation to the second column), during construction some amount of offset from the plan was in fact required so as to accommodate connection to the existing stormwater line. In these circumstances we consider the observed divergence from the plan dimension to be a natural and reasonable consequence of the latent site conditions.

  1. [43]
    In considering this part of the application afresh, it is my view that it would be unfair to the applicant to demolish and rebuild the columns to correct a differential of 45mm on a home extension project of this type. In coming to this conclusion I rely on the evidence of the Bergers as to why the columns were placed where they were, I have had regard to the decision of Mr Adams, a building inspector, who also considered the reasonableness of issuing a direction to rectify and also the opinion of Mr Walton referred to above, which I accept without reservation on this point.

Termite Barrier

  1. [44]
    Mr Adams and the Commission were not satisfied that an adequate termite barrier had been installed in the constructed columns. Even though the columns were core filled, there was a concern that termites might navigate a track through any cavities in the concrete core filling to the ceiling of the pergola and then into the house itself. The applicant had made some attempt to address this problem prior to the issuing of the direction to rectify but because of the review requested by the Wollermanns, no further action was taken. Despite this, the applicant contends that there is a sufficient termite barrier for a number of reasons.
  2. [45]
    Mr Adams did not undertake a visual inspection of the internal structures of the pergola ceiling because this would have been invasive and beyond his remit. The applicant concedes that there is no termite barrier as such in the columns but contends this is unnecessary because the timber framing for the pergola roof above the plasterboard ceiling was termite treated as noted on the plan which stipulates that ‘Termite management. All structural timbers H3 treated as per AS3660 1 2000 Appendix D.’
  3. [46]
    Mr Urs Berger, an architect, issued a Form 16 certifying that the timber structure was built in accordance with the specification on the plan and confirmed that he had ordered the timber framing for the roof structures which was all termite treated. On the basis of that evidence, the applicants submit that even if termites were to access the ceiling through the concrete piers, which is highly unlikely, the termite treated framing would prevent any further progression of termite infestation. There is no evidence to contradict that submission.
  4. [47]
    In addition to that, Mr Walton, accepting that there is no evidence of an installed termite barrier because the new work is attached to the existing house via a ‘pole plate’ he did not consider that the new structure would be a ‘bridge’ or ‘path of travel’ to allow termites to enter into the structure, traverse the new structure and then enter the existing structure. Further, because the pole plates are fixed with masonry anchors, these fixings also preclude access to termites.
  5. [48]
    On the basis of Mr Urs Berger’s evidence as to the use of termite treated framing, the fact that the columns were core filled and Mr Walton’s opinion as to how the new structure is affixed to the existing structure, I am satisfied that there is a sufficient termite prevention mechanism in place which would satisfy the need for a termite barrier.              

Excessive Movement in the Glass Panelling Fencing

  1. [49]
    The evidence that there is excessive movement in the glass panelling is compelling. This is unacceptable and requires rectification. Mr Walton has expressed a view as to how this might be remedied but for the purposes of this review, that is irrelevant. In respect of this complaint, the direction to rectify will stand.

Downpipe and Stormwater Drainage

  1. [50]
    The photos show that the stormwater downpipe discharging into the grate is too low. This will obviously lead to blockage of the downpipe if debris is washed from the roof gutters. Cutting a hole in the grate is unsatisfactory as it will allow debris to then wash into the stormwater drain causing potential blockage. This is defective work and even if the applicant has attended already to rectification, the direction to rectify must stand.

Stirrup Posts Supporting the Decking

  1. [51]
    There are photographs which show that there is excessive packing in some of these stirrups and also there is not sufficient bearer within the stirrup to properly secure the fixing bolts through the stirrups to the bearers. Mr Walton noted that not all of the stirrups had excessive packing, mainly four posts at the north eastern corner of the deck. This is unsatisfactory and requires rectification.
  2. [52]
    In respect of the concrete mounding around the steel posts in the footing, I accept Mr Berger’s evidence that most of these have already been rectified but in so far as there are some that have not, the direction to rectify must stand. It is unacceptable to allow water to pond around the base of the steel posts, particularly in a seaside environment. The direction to rectify in respect of both these items is upheld.

Defective Barge Cap Not Directing Water to the Stormwater System and Defective Flashing

  1. [53]
    Mr Pawson was the roofing plumber subcontracted to install the roofing to the pergola. He states that he attended the site on 18 December 2016 and carried out rectification work to the barge flashing, downpipes and silicone joints. This work seemed satisfactory. He also gave evidence at the hearing and explained how the flashing works to prevent water egress. He was of the opinion that whether the flashing was 150mm or 100mm it would not make any difference to whether water would penetrate because of the it runs up the wall 40mm and there ‘is no way the water can get up there’. Also, the longer the flashing the more likely there will be ‘flapping’ from wind, particularly on a canal block.
  2. [54]
    He returned to the house in early 2019, carried out a water test and noted some water penetration in one discrete area. He carried out some further work and said that the owner was happy with the result as was the Commission. This is confirmed in an email he sent to Urs Berger on 5 September 2019. He said in that email that he had spoken to Mrs Wollermann, showed her photos of the work (attached to his email) and asked for her to contact him if there were further problems. No further contact has been made at the date of the email.
  3. [55]
    There has been no reinspection of this work by the Commission subsequent to the initial inspection by Mr Adams.
  4. [56]
    However, Mr Simon Gregory of Sergon Building Consultants did carry out an inspection when preparing a scope of work for the rectification work the subject of direction to rectify 0102226. In his report of 5 June 2017 he noted that the ‘defects noted in the DTR all remained defective’ when he carried out the inspection. He did not carry out any testing nor does he give any detail as to the nature of the defects. He is not a qualified building inspector or roofing plumber. His role was as an estimator to determine the scope of work necessary to comply with the direction to rectify not to make any assessment of whether the work was defective or not.
  5. [57]
    In addition to the evidence of Mr Pawson, the applicant through Mr Urs Berger says that this complaint has been rectified. Mr Pawson’s explanation about the roof plumbing, flashing and the rectification was compelling and is preferred to that of Mr Gregory. I am satisfied on the basis of both what Mr Pawson and Mr Berger said about this defect that is has been rectified and therefore these complaints the subject of the direction to rectify should be set aside.

Umbrella Stand

  1. [58]
    The positioning of the umbrella stand was at the direction of the Wollermanns. It does not comply with the requirements of the Building Act 1975 (Qld) Chapter 8 (Swimming Pool Safety) and needs to be repositioned because it is too close to the pool fence. It is the subject of the direction to rectify. The Commission accepts it is not defective work but a category 1 defect as it impacts the health and safety of persons residing in or occupying the building. The difficulty with that submission is that it must be defective work that gives rise to the category 1 defect and that is not the case here.
  2. [59]
    It would be a simple matter for the umbrella to be repositioned and as it is a safety issue it should have been repositioned by the Wollermanns as soon as this became apparent to them. The applicant has returned to the site to carry out rectification work but not been permitted to do so by the owners. This part of the direction to rectify will be set aside.

Scope of Work

  1. [60]
    Subsequent to the issuing of the final direction to rectify, the Commission engaged Sergon Building Consultants to prepare scope of work in respect of the rectification work the subject of the direction to rectify. The scope of work is annexed to the statement of Simon Gregory dated 5 June 2018. There was an initial scope of work prepared on 9 October 2017 and then after it was received by the Commission a revised scope of work was prepared dated 22 November 2017.
  2. [61]
    On 15 November 2017 the applicant filed an application to review the decision of the Commission in respect of the scope of work of 9 October 2017. The decision about a scope of work is a reviewable decision under s 86 of the QBCC Act. This application has proceeded on the basis that it is the revised scope of work that is under review. The grounds of the review application are that:

The Scope of Works contains items which have already been rectified, items which previously have been classified by QBCC as not being rectifiable defect, and items that are not listed in the Direction to Rectify.

  1. [62]
    The Commission has provided a statement of reasons for its decision to issue the revised scope of work, which is that as the Wollermanns’ claim under the Home Warranty Insurance Scheme was accepted, the scope of work was necessary for the purposes of carrying out the rectification work. This is the usual procedure for processing such claims.
  2. [63]
    The only relevance the scope of work has to the applicant is the extent to which the Commission can recover any cost, or insurance paid out under the Scheme, from the applicant under s 71(1) of the QBCC Act. That, presumably, is now limited to those items in the direction to rectify that were upheld by the Tribunal.
  3. [64]
    Also, in respect of those items there is no evidence put by the applicant to challenge the assessment of the scope of work provided by Sergon for those items, such as the pool fencing (Scope item 7), the steel stirrup footing and the mounding of the concrete footing (Scope item 4) and the stormwater pipe into the grate (Scope item 3). Again, presumably, given that the some of the rectification work has been carried out by the applicant already it will only be that work which is required to be undertaken to comply with any amended direction to rectify.
  4. [65]
    Given that a new Direction to Rectify will now presumably be issued, or the existing one varied,  by the Commission, the scope of work, insofar as it impacts the applicant, should now be reconsidered. It was submitted by the Commission at the hearing that the Tribunal could make an order under s 24(1)(c) of the QCAT Act to set aside the decision and return the matter to the decision-maker or reconsideration. This approach seems sensible even the insurance claim has been accepted. The scope of work was to address the work to be carried out in accordance with the insurance claim. The Commission has recovery rights under s 71(1) of the QBCC Act rom any person by ‘whose fault the claim arose’.. Whether having accepted the claim the Commission is now estopped from rejecting parts of the claim because of the findings in this decision is not for me to decide.
  5. [66]
    To give the Commission an opportunity to fully consider these reasons and to formulate another decision about the scope of work if necessary, the Tribunal will make an order pursuant so s 24(1)(c) of the QCAT Act.

Disposition

In GAR 150-17:

  1. The decision of the Queensland Building and Construction Commission to issue Direction to Rectify No 0102226 is varied as follows:
  1. Items 1, 2, 3, and 7 of the Direction to Rectify No 0102226 are set aside.
  2. Items 4, 5 and 6 of the Direction to Rectify No 0102226 are confirmed.

In GAR 345-17:

  1. The decision of the Queensland Building and Construction Commission is returned to the decision-maker pursuant to s 24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for reconsideration if necessary in accordance with these reasons.

Footnotes

[1]Statement of Reasons (SOR) – Attachment 1.

[2]Photographs attached to the Access Dispute Resolution Report are marked as ‘Items’ with the first numeral being the complaint number and the second numeral being the photo number in respect of the complaint.

[3]Exhibit 6.

[4]Exhibit 5.

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Editorial Notes

  • Published Case Name:

    Landscaping Qld Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Landscaping Qld Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 130

  • Court:

    QCAT

  • Judge(s):

    Member Oliver

  • Date:

    28 Apr 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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