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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Gale & Anor v Queensland Building and Construction Commission  QCAT 247
queensland building and construction commission
General administrative review matters
19 March 2020
20 February 2020
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – review of a scope of works decision – whether the works are reasonable and necessary
Queensland Building and Construction Commission Act 1991 (Qld), s 71A, s 86(1)(g)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Jenkins & Associates v Queensland Building and Construction Commission  QCAT 117
Kehl v Board of Professional Engineers of Queensland  QCATA 58
K Joyce in-house solicitor
REASONS FOR DECISION
- Mr and Mrs Gale’s claim under the Queensland Building and Construction Commission’s (‘QBCC’) statutory insurance scheme (‘the SIS’) was allowed in respect of damage sustained to their home due to subsidence. A scope of works was prepared so that tenders could be sought. The QBCC’s decision to accept the scope of works was communicated to the Gales by letter dated 22 June 2018 (‘the Decision’). The works the subject of the scope of work are stabilisation works. The Gales seek review of the Decision. The SIS is established under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) as it is now known.
- A decision about the scope of works to be undertaken under the SIS to rectify or complete tribunal work is a reviewable decision.
- The Gales’ position as expressed in their Application and during the conduct of the hearing, up until closing submissions, was that the structural integrity of their dwelling was so compromised that the dwelling should be demolished and rebuilt. On this basis the scope of work was not appropriate. They contend that until the true cause of the issues can be determined and the subsidence abates undertaking the stabilisation works serves no purpose.
- The QBCC confirmed during the hearing that the stabilisation works were the first stage of remedial works and that following its performance and then monitoring further works including remedying consequential cosmetic defects would be the subject of a further scope of works. Such advice was previously provided by the QBCC to the Gales including in a letter dated 26 July 2018.
- During the closing submissions, the Gales’ representative, Mr Hill, informed me that the Gales sought an order that the scope of work be amended so that it only provided for a further six months of monitoring. The QBCC opposes such an order, including because of the effective prolonged monitoring of further movement, which has occurred since these proceedings have been commenced.
- On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration. The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. There is no presumption that the decision under review is correct.
- I accept that the issue for determination is whether the items in the scope of work are reasonable and necessary to rectify the damage. In undertaking a review of a scope of work it is necessary to have an understanding of the defects including what caused the damage to then form a view as to what works are reasonable and necessary to rectify the damage.
- Many of the facts are not in dispute. On 20 April 2012 the Gales entered into a contract for the construction of their home with a builder licensed by the QBCC. Practical completion was achieved in late December 2012. The Gales engaged with the builder after issues with their home became apparent.
- Apparently at the request of the builder, the original engineers attended site in August 2015 and prepared a short report.  At that time Mr Rowan recommended roof and eave ventilation be installed to reduce heat build-up in the roof space. The evidence is that the recommended works were undertaken.
- In September 2016 Reid Consulting Engineers Pty Ltd, apparently also at the request of the builder, attended site and prepared a report. It concluded that the damage potentially indicated the presence of high soil moisture conditions and recommended possible leaking plumbing be investigated. It noted the importance of very good site drainage and maintenance. The evidence is that a plumber attended also at the builder’s request to investigate the plumbing.
- I accept that the issues continued despite works being undertaken.
- On 15 November 2017 the Gales made a complaint to the QBCC in respect of subsidence damage.
- At the QBCC’s request, Mr Van de Hoef of NJA Consulting Pty Ltd attended the Gales’ home on 19 February 2018 and prepared a report. Mr Van de Hoef concluded that the footing system movement was more likely to relate to reactive clay movement than to settlement of fill. He recommended site drainage improvement and set out a rectification works plan followed by monitoring and the performance of cosmetic repairs if no further significant movement had occurred during the monitoring period.
- On or about 4 May 2018 the QBCC decided not to issue a direction to rectify to the builder. The complaint was referred for assessment under the SIS.
- There was considerable evidence before me as to whether the damage to the home was caused by moisture related edge heave or settlement of uncompacted or poorly compacted fill. The Gales also relied upon evidence from Mr Sheppard in support of a contention that the concrete strength was lower than required. Mr Sheppard was not available for questioning despite the QBCC’s request that he be made available.
- At the hearing the Gales did not rely upon any evidence from an appropriately qualified person as to an alternative scope of work.
- A report from Osborn Consulting Engineers had been filed by the Gales but was not relied upon by them at the hearing. That report did not provide any detailed recommendation as to an appropriate alternative scope of work. It suggested certain matters be investigated.
- At the QBCC’s request, Mr Van de Hoef again attended the Gales’ home on 7 February 2019, reviewed the Osborn Consulting Engineers’ report, produced a further report and confirmed his original findings.
- There is no evidence before me upon which I could rely to find that the correct and preferable decision is to amend the scope of works so that it only provided for a further six months of monitoring even assuming that ‘monitoring’ could be regarded as works to be undertaken under the SIS to rectify tribunal work, about which I have some doubt.
- I accept that the Gales have had difficulty in obtaining assistance from appropriately qualified persons, who were prepared to give evidence in these proceedings.
- Mr Rowan, a structural engineer, gave evidence on behalf of the Gales. He prepared a further short report (the 2019 RMA report) in which he stated that ‘we believe the proposed rectification method by NJA Consulting does not address the uncompacted fill and will not rectify the problems’. The 2019 RMA report on its face is a report prepared following review of documents and not following a recent personal inspection of the home.
- As indicated earlier in these reasons, Mr Rowan was the engineer who designed the footing system on behalf of the builder. His evidence was that, in his opinion, the cause of the damage was fill settlement. His oral evidence was that low concrete strength would not affect performance but rather would be a durability issue as the reinforcement would tend to rust. His evidence was that he did not personally attend site during the construction to perform the relevant certifications even though he was the engineer who signed the certificates but that he did attend in August 2015 and prepared a report. In his view, work, such as set out in the scope of work, is not required to control moisture and would not address the problem.
- Mr Rowan’s oral evidence did not support the Gales’ contention that demolition was required. His evidence was that there was, in his view, no safety concerns, the house was habitable, he did not consider that it was necessary for the dwelling to be demolished and that he thought it could be rectified.
- Mr Hill submitted on behalf of the Gales that the money to be spent on the proposed scope of works would be better spent ‘elsewhere’. However, there are no details before me as to any items of work the Gales contend are reasonable and necessary to rectify the damage. Mr Rowan did not provide any recommendations as to the work he considered was required to rectify the damage.
- Mr Van de Hoef, an independent engineer, gave evidence on behalf of the QBCC. He authored a number of reports that were before me. He has attended the Gales’ home on 19 February 2018 and 7 February 2019. The scope of works is derived from his recommendations. His oral evidence was that low concrete strength could impact on durability but that there was insufficient evidence to make a decision about the strength of the concrete. He also considered that demolition was not necessary.
- Mr Rowan disagreed with Mr Van de Hoef as to the likely cause of the damage. In circumstances where Mr Van de Hoef is an independent expert witness and has attended site in 2018 and 2019 and Mr Rowan is not independent and has not attended the site since 2015, I prefer the evidence of Mr Van de Hoef.
- I accept Mr Van de Hoef’s evidence that the stabilisation work is appropriate whether or not the damage is being caused by moisture related edge heave or fill settlement.
- As Mr Sheppard was not available to be questioned I place little weight on his evidence about concrete strength particularly in view of Mr Rowan’s and Mr Van de Hoef’s agreed evidence as to the impact of concrete strength and their agreed evidence that demolition was not necessary.
- I find that the items of work in the scope of works are reasonable and necessary to rectify the damage and accept that a further scope of works will be required once the stabilisation work has been performed and the home monitored as contemplated by Mr Van de Hoef’s report.
- I confirm the Decision.
- The QBCC foreshadowed that it may seek an order for costs. I make directions to allow for the possibility that an application for costs may be made.
 Queensland Building and Construction Commission Act 1991 (Qld), s 71A (‘QBCC Act’).
 Exhibit 10, SOR16.
 Exhibit 1, Application to review a decision filed 7 August 2018.
 Previously Queensland Building Services Authority Act 1991 (Qld).
 QBCC Act, s 86(1)(g).
 Exhibit 10, SOR 20.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24 (‘QCAT Act’).
 Ibid, s 20.
 Kehl v Board of Professional Engineers of Queensland  QCATA 58, .
 Jenkins & Associates v Queensland Building and Construction Commission  QCAT 117,  – .
 Exhibit 10, forms part of SOR 4, commencing at 61.
 Ibid, commencing at 68.
 Ibid, 69.
 Ibid, 71.
 Ibid, 69.
 Exhibit 10, SOR 10.
 Ibid, 182.
 Ibid, 184 – 185.
 Exhibit 10, SOR12.
 Exhibit 8.
 18 January 2019.
 Exhibit 6.
 Exhibit 9.
 Exhibit 10, forms part of SOR 4.
 Exhibit 11, .
 Exhibit 10, SOR10.
- Published Case Name:
Gale & Anor v Queensland Building and Construction Commission
- Shortened Case Name:
Gale v Queensland Building and Construction Commission
 QCAT 247
19 Mar 2020