Jozinovic v Queensland Building and Construction Commission
[2015] QCAT 116
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- Unreported Judgment
- Jozinovic v Queensland Building and Construction Commission[2015] QCAT 116
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Jozinovic v Queensland Building and Construction Commission[2015] QCAT 116
Jozinovic v Queensland Building and Construction Commission[2015] QCAT 116
CITATION: | Jozinovic v Queensland Building and Construction Commission [2015] QCAT 116 |
PARTIES: | Niko Jozinovic Cvita Jozinovic (Applicants) |
v | |
Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR127-14 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 13 March 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Howard |
DELIVERED ON: | 10 April 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – DIRECTION TO RECTIFY –where brick house has white efflorescence primarily on double brick columns and below damp proof course – where brown staining in similar areas – whether defective building work Queensland Building and Construction Commission Act 1991 (Qld), s 72, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 |
APPEARANCES:
APPLICANT: | Niko Jozinovic and Cvita Jozinovic represented by Robert Jozinovic |
RESPONDENT: | Queensland Building and Construction Commission represented by Kirsty Smith of Holding Redlich |
REASONS FOR DECISION
- [1]Metricon built a dark-coloured brick house for Mr Jozinovic and Ms Jozinovic. Hand-over occurred in August 2012. During and since construction, the homeowners have complained about two issues with the brickwork. Firstly, they say there is a white stain on the face of the brickwork. Secondly, they say that a substance is leeching from the bricks causing dark brown staining. The issues are mainly evident on the large columns at the front of the house and at the back at the base of the building.
- [2]The builder has paid for professional cleaning of the brickwork on at least four occasions since the completion of the works, but the issues subsist. The homeowners obtained a building report that concluded that the issues must be rectified or reworked or the bricks replaced.
- [3]In January 2014, the homeowners made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about alleged defective building work relating to the discolouration on the bricks. Under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), the QBCC may issue a direction to a builder to rectify defective building work.
- [4]The QBCC’s representative inspected. He considered that, in both instances, the discolouration complained about is a maintenance issue. He was not satisfied that there was defective building work. He refused to issue a direction to rectify. The homeowners have applied to the Tribunal for review of the decision of the QBCC.
The review process
- [5]The purpose of the Tribunal’s review is to produce the correct and preferable decision, following a fresh hearing on the merits.[1] In conducting the review, the Tribunal effectively stands in the shoes of the decision-maker and makes its own decision about whether to issue a direction to rectify, having regard to the evidence presented and the law applicable. The Tribunal must be reasonably satisfied, that is, on the balance of probabilities.
- [6]There were some amendments to the applicable legislative provisions about directions to rectify after the application was filed in the Tribunal but before the hearing. Under the transitional provisions, the Tribunal must decide the review as though the amendments had not been made. All of the references made to the QBCC Act in this decision are to the QBCC Act as it was before the amendments.
- [7]The QBCC Act provides that a direction to rectify may be issued for defective building work.[2] In deciding whether to issue a direction to rectify, consideration may be given to all circumstances which are reasonably relevant.[3] The terms of any warranties included in the contract for building work may be taken into account.[4] A direction is not required to be issued if in all the circumstances it would be unfair to give the direction.[5] A direction to rectify may issue within 6 years and 3 months after completion of the building works.[6] Defective is defined to mean ‘faulty or unsatisfactory.’[7]
- [8]The Rectification of Building Work Policy (‘the Policy’) made pursuant to the QBCC Act must be taken into account. It provides that generally speaking a building contractor who carries out defective building work should be required to rectify the work unless in the circumstances rectification is unfair or unreasonable.
- [9]The Policy defines category 1 defective building work to relate essentially to work which effects the structural performance or functional use of a building. Category 2 defective building work is defined to mean building work (other than category 1 defective building work) that is faulty or unsatisfactory because, among other things, it does not meet a reasonable standard for construction or finish expected of a competent holder of a contractor’s licence. Defective building work may also occur when a manufactured product is used otherwise than in compliance with the product manufacturers instructions.
- [10]In this case, there is no issue that the brickwork is building work or that Metricon was the builder in respect of which a direction to rectify could issue. The relevant questions are whether there is defective building work, and if so, whether it would be unfair in the circumstances to issue a direction.
The evidence presented by the parties
- [11]The homeowners relied upon several statements made jointly by them together with attachments. The attachments, broadly speaking are generic publications about cleaning of brick work, mortar, and pH levels of rainfall, rather than reports relating to the particular house or brickwork.
- [12]The homeowners also filed, attached to their application for review, a building report they had obtained from David Tacon of Jim’s Building Inspections, Austral Bricks cleaning and maintenance guide, and the Victorian Guide to Standards and Tolerances 2007. Mr Tacon’s qualifications and experience are not stated and his report is not signed. Mr Tacon did not provide a witness statement in the proceedings and was not made available for cross-examination at the hearing. Therefore, his evidence could not be tested.
- [13]The QBCC relies upon the statements of the building inspector and decision-maker, Mr Jordon Collins. Mr Collins is a builder with some 21 years of experience, although he is relatively new in the role of QBCC building inspector. He holds an open builders licence.
- [14]The homeowners question the expertise of Mr Collins to give an opinion. In cross-examination, attempts were made to discredit him, including by asking about his knowledge of chemistry and chemical compounds, and his reliance on advice from others in coming to his conclusions. However, I am satisfied that Mr Collins is qualified to express an opinion as a builder, based on his considerable building knowledge, experience, and research of the issues conducted in his capacity as a builder. He does not purport to be a chemist, nor to give his experience on the basis of expertise in chemistry.
- [15]After the hearing had concluded, the homeowners were to provide to the Tribunal (and serve on the QBCC) a list of page numbers and other references to the particular parts of their generic material which they wanted to draw to my attention. They filed instead some 40 pages of typed material and several other documents. Some refers to the already filed documents, but a significant portion appears to be new. The QBCC objects to the homeowners’ new material. It submits that the homeowners have had ample opportunity to provide evidence and submissions to the Tribunal. It further says that it would be contrary to procedural fairness to allow them to rely on it.
- [16]I accept the QBCC’s arguments. In directions made in May 2014, June 2014 and February 2015, the Tribunal directed the homeowners to file evidence to be relied upon by them. The evidence was tested at hearing based on the case presented by each party. Submissions were made by both parties. At the hearing I asked the homeowners to refer me to the relevant parts of the generic material. They were unable to do so on the day, and wanted time to record the relevant page numbers and references. No further evidence was directed or anticipated.
- [17]Significant public resources are used to conduct a hearing. As the High Court has said, the resources of courts (and by analogy, tribunals) serve not only the litigants in the particular proceeding but the public.[8] Litigants must take care in the conduct of proceedings and comply with directions. I do not consider it reasonable, the hearing having concluded and the decision having been reserved, to have regard to the new evidence. To do so, would require that I reopen the hearing and give the QBCC an opportunity to respond to the evidence in order to afford it procedural fairness. I do not consider that there is any reasonable basis to do so.
Discussion of the evidence about the white and brown deposits or ‘staining’
- [18]The homeowners explain that the ‘staining’ is largely at the front of the house, particularly on the large pillars or columns at the entrance. Mr Jozinovic describes the white and brown staining as being on the bricks themselves. They both describe (although Ms Jozinovic seemed less certain) a small amount of staining on the sides of the house and some at the back of the house at the base of the building.
- [19]Mr Collins describes a broadly similar distribution, save that he did not particularly notice discolouration on the sides. He describes the staining at the base as below the damp proof course, which acts as a barrier to moisture. He says the double-brick pillars at the front of the house hold more moisture than a single layer of bricks. He describes the brown staining as being concentrated along the white mortar joints, rather than on the bricks. Mr Tacon’s report also describes the brown staining as staining to the mortar joints. Consistently, the photographs before the Tribunal appear to show a white deposit on some bricks and brown discolouration to some white mortar joints.
- [20]The homeowners rely upon a warranty given by Austral Bricks that their bricks will not lose their colour or strength for at least a century. The homeowners both say that the staining became evident during construction. In the complaint form, they specify that they first noticed the problem in April 2012. Mr Jozinovic says he spoke with the site manager about it during construction and expressed concern about it at handover. The homeowners consider this ‘ugly scaring’[9] on the façade of their new home does not meet a reasonable standard of construction or finish expected of a competent builder. They rely upon the report of Mr Tacon in which he makes observations that he considers it represents category 2 defective works.
- [21]The homeowners say the staining must be the result of the construction, or alternatively the cleaning processes undertaken by the builder, because several spare palettes of bricks left over from construction do not have the same staining on them. Mr Jozinovic insists that it is the result of bad building practices.
- [22]Ms Jozinovic acknowledged some temporary reduction in the staining after one of the professional cleaning services paid for by Metricon, but said she did not believe the house would ever be clean. Mr Jozinovic acknowledged that one of the professional cleaners did acceptable work and removed some staining, but that he only cleaned the part of the house Metricon instructed him to clean. The homeowners deny that they have cleaned the brickwork, and therefore assert that it must be that the builder has incorrectly prepared, laid or cleaned the brickwork. They do not consider that they should have to pay for professional cleaning to remove the deposits/staining.
- [23]They acknowledge that, on their instructions, the pillars at the front of the house were not initially capped, but that Metricon later suggested capping them to limit rain penetration, which it’s representative apparently considered may be contributing to staining.
- [24]It is uncontroversial between the parties that the white deposits are efflorescence. Mr Collins says that efflorescence is common in new brickwork. He says, and it is consistent with the generic material presented by the homeowners, that efflorescence is caused when soluble salts are brought to the surface as moisture dries out. He describes it as being a harmless and usually temporary problem. Consistently, the generic material provided by the homeowners says that it will usually disappear with normal weathering. In his oral evidence, Mr Collins explained that the problem can reoccur while salts remain in the brickwork which are drawn out when moisture is present and evaporating. He says that this is why it has occurred below the damp proof course, which acts as a barrier to moisture, and in the double brick columns at the front of the house which hold moisture moreso than a single layer of bricks.
- [25]With respect to the brown staining, it is in contention between the parties as to whether the cause is manganese or iron staining.
- [26]The homeowners assert that if the staining is iron staining this could only be because of the actions of the builder. They say iron staining will occur if the incorrect strength of hydrochloric acid is applied to clean the brickwork of excess mortar. The generic material refers to this possibility (and also suggests other causes for iron staining).[10] The homeowners have not provided expert evidence about whether the brown staining to their house is manganese or iron staining. Mr Tacon’s report suggests it may be either. In his oral evidence, Mr Jozinovic said that Mr Tacon had told him it was impossible to tell which it was.
- [27]In respect of the brown staining, Mr Collins is of the opinion that it is caused by manganese dioxide, which is used as a brick colouring agent. The manganese colouring agents undergo chemical changes during manufacture, resulting in manganese compounds which are insoluble in water, but soluble in weak acids. If dissolved, they migrate towards the surface of the brickwork. He says that rain water, acid rain or use of acid in cleaning can cause the staining to occur by causing the manganese to leech from the bricks.
- [28]He explains that manganese staining is closely related to efflorescence since it is the sulphate and chloride salts in manganese that travel to the surface of the brickwork. When they reach the mortar joints, the salts are neutralised by the cement or lime in the mortar producing insoluble manganese hydroxide which is deposited on the mortar joint. When it dries, it converts to brown manganese tetroxide resulting in the stain.
- [29]Consistently, the generic material provided by the homeowners refers to manganese staining as usually occurring at the edges of bricks or along the mortar, when the manganese sulphate or chloride solutions migrate to the mortar joints during drying and are neutralised by the mortar.
- [30]Mr Collins is not of the opinion that Metricon’s actions during construction caused the staining. He says that Metricon’s representatives informed him that they followed the manufacturer’s recommendations in respect of the brickwork and his investigations did not determine otherwise. With respect to the argument that the post-handover cleaning processes caused the staining, he formed the view that because the staining was already present during construction, that this was not the case. Mr Collins gave evidence that cleaning of the house in an appropriate manner by way of regular maintenance will assist to reduce both deposits because if they are not cleaned, then some will reabsorb into the brick extending the period of time until dissipation occurs.
- [31]Mr Collins says that he has often seen efflorescence occur, although has not seen manganese leeching previously. In respect of the suggestion that the cause of the brown staining is iron leeching, as opposed to manganese, he says he formed the view that this is not the case. He has seen iron leeching on numerous occasions and it usually produces a stain which is generally green to yellow in colour. In his opinion, it does not look like iron staining.
- [32]The homeowners assert that Mr Collins was wrong to rule out iron staining as a possible cause for the mortar staining. They rely upon an Astral Bricks cleaning guide,[11] which states that iron staining is yellow to deep brown, as sufficient evidence that this may be the case in their situation. However, this presents a mere possibility or theory, rather than evidence of a probable cause in the circumstances.
- [33]The homeowners deny that acid rain occurs in the area of their home. This denial is made on the basis of an academic article about the pH levels of rainwater tanks, (including on the contents of 6 Brisbane water tanks) published in 2006. I have given this evidence no weight as it does not speak to the PH levels of rainwater in the climatic conditions at the relevant time, at the homeowners premises.
- [34]Mr Collins says the efflorescence and manganese leeching are both temporary phenomena. He says both will settle. When all of the deposits have leeched out, the leeching will stop.
- [35]The homeowners appear, erroneously, to believe that the QBCC and Mr Collins in particular were obliged to provide evidence of chemical testing about the cause of the brown staining. However, that is not so. The QBCC is entitled to rely upon the expressed expert opinion of Mr Collins as to the cause and his explanation for the basis for his view. It was, of course, open to the homeowners to obtain whatever evidence they chose to rely upon. If they considered chemical testing necessary, they could have obtained and presented that evidence. They chose not to do so. I must make my decision based on the evidence which has been presented to the Tribunal.
My conclusions about the causes of the white and brown staining
- [36]I accept that Austral Bricks warrants that its bricks will not lose colour or decay within 100 years. However, this is irrelevant to the outcome of this review since the alleged defect/s concern deposits on the brickwork, not colour change or decay of the bricks.
- [37]I find, as the homeowners assert, that the deposits/staining was present during construction of the house. As a consequence, I find that the cleaning processes post-handover of the house cannot logically be responsible for causing the deposits or staining. Indeed, Ms Jozinovic’s evidence, which I accept on this point, was to the effect that in respect of at least some of the cleaning processes, there was a temporary reduction in the amount of staining. The reoccurrence is consistent with Mr Collins explanations for the deposits/staining, which he says will reoccur until the relevant substances are leeched out of the bricks.
- [38]It is uncontroversial, and I find, that there is efflorescence on the house in question, particularly concentrated on the double-brick pillars at the front of the house and at the back of the house below the damp proof course, although there are small patches elsewhere. I find that efflorescence occurs in the manner and conditions described by Mr Collins.
- [39]It is uncontroversial, and I find that the brown staining occurs broadly in the same areas. I accept the evidence of Mr Collins and I find that it is primarily concentrated on the mortar joints. This is consistent with Mr Tacon’s report and the photographs before the Tribunal.
- [40]The concentration of the brown deposits suggests that the brown staining is not iron staining. If an incorrect concentration of acid was used by the builder during construction to clean the excess mortar, the brown staining would reasonably be expected to be widespread over the house. It is not. I find that the brown deposits occur primarily in areas where the brickwork tends to hold moisture, namely on the double-brick columns and below the damp proof course. I draw the reasonable inference from this concentration that moisture is instrumental in the deposits occurring. This is consistent with the opinion reached by Mr Collins about the cause of the deposits. Accordingly, I accept Mr Collins evidence, and I find that it is more probable than not, based on the available evidence that the brown staining is caused by manganese leeching in the manner he describes.
- [41]I further find, accepting Mr Collins evidence, that both the efflorescence and the manganese leeching are temporary natural phenomena, that will cease once the relevant substances have leeched out.
Is there any defective building work?
- [42]I appreciate that the homeowners are concerned about the aesthetics of their new home. It represents a very substantial investment for them. The efflorescence and manganese leeching which they describe as ‘ugly scarring,’ while it persists, no doubt from their perspective, detracts from its presentation. That does not mean, however, that the building work is defective.
- [43]I have found that both efflorescence and manganese leeching occur naturally because of the substances in brick under the conditions described by Mr Collins. Both will cease in time. I am not satisfied that the builder employed methods of construction other than in accordance with the brick manufacturer’s instructions. I am also not satisfied that the brickwork does not meet a reasonable standard of construction or finish expected of a competent builder.
- [44]Having regard to my findings, and the relevant provisions of the QBCC Act and the Policy, I am not satisfied that the work is faulty or unsatisfactory or that it does not meet a reasonable standard of construction or finish expected of a competent builder. Accordingly, I am not satisfied that it is defective building work.
Conclusions
- [45]Accordingly, the correct and preferable decision is to confirm the decision of the QBCC to refuse to issue a direction to rectify to Metricon. I make orders accordingly.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 20.
[2] QBCC Act s 72(1).
[3] Ibid, s 72(2).
[4] Ibid.
[5] Ibid, s 72(14).
[6] Ibid, s 72(8).
[7] Ibid, Schedule 2 Dictionary, defective.
[8] Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175.
[9] Exhibits 2 and 3.
[10] Exhibit 2, Attachment 4.
[11] Attachment to the application for review.