Wharton v Duffy Constructions (QLD) Pty Ltd
[2015] QCAT 180
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- Unreported Judgment
- Wharton v Duffy Constructions (QLD) Pty Ltd[2015] QCAT 180
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Wharton v Duffy Constructions (QLD) Pty Ltd[2015] QCAT 180
Wharton v Duffy Constructions (QLD) Pty Ltd[2015] QCAT 180
CITATION: | Wharton v Duffy Constructions (QLD) Pty Ltd [2015] QCAT 180 |
PARTIES: | Bev Wharton (Applicants) |
v | |
Duffy Constructions (QLD) Pty Ltd (Respondent) |
APPLICATION NUMBER: | BDL212-14 |
MATTER TYPE: | Building matters |
HEARING DATE: | 7 April 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 25 May 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | BUILDING DISPUTE – JURISDICTION – ESTOPPEL – CAUSATION – whether jurisdiction limited by orders sought in application – where ‘tribunal work’ – where Tribunal not bound by rules of pleading – where Tribunal’s jurisdiction and orders conferred by statute – whether Queensland Building and Construction Commission determination not to issue Direction to Rectify created issue estoppel – where Tribunal determining civil liability – whether building work caused cracking – where scope of work did not extend to existing footings – where new footings and designs certified as compliant – whether structures properly connected – where differing expert evidence – where insufficient evidence of cause of cracking Domestic Building Contracts Act 2000, ss 43, 44 Queensland Building and Construction Commission Act 1991, ss 16, 72, 75, 77, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009, ss 3, 4, 28, 107 Briginshaw v Briginshaw (1938) 60 CLR 336 Bryan v Maloney (1995) 182 CLR 609 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 Hart v Hall & Pickles Ltd [1969] 1 QB 405 Kuligowski v Metrobus (2004) 220 CLR 363 North v Paul Bongioletti Homes Pty Ltd and Pershouse [2011] QCAT 134 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 |
APPEARANCES:
APPLICANT: | Mr David Love of Dale and Fallu Solicitors for Bev Wharton |
RESPONDENT: | Mr L.C. Alford of Counsel for Duffy Constructions (QLD) Pty Ltd |
REASONS FOR DECISION
What is this Application about?
- [1]Bev Wharton lives on a property with highly reactive soil. In September 2010, she contracted Duffy Constructions (QLD) Pty Ltd to renovate her home. Almost two years later, she discovered cracks in her home.
- [2]In June 2014, she complained to the Queensland Building and Construction Commission that Duffy’s defective work caused the cracking because her home could no longer move with the soil. The Commission dismissed her complaint.
- [3]Ms Wharton now wants the Tribunal to order rectification.
- [4]The issues for me to decide are whether the Tribunal has jurisdiction, whether Ms Wharton is ‘estopped’ from bringing her application and whether Duffy’s work caused cracking in her home.
ISSUES
Does the Tribunal have jurisdiction?
- [5]Duffy contends that because Ms Wharton’s application refers to relief not referred to in the Queensland Building and Construction Commission Act 1991, the Tribunal does not have jurisdiction.
- [6]Ms Wharton’s application is against the builder, Duffy, for alleged defective building work – namely, renovations and extensions to her home and related site work. The Tribunal has jurisdiction because renovations, extensions and related site work are ‘tribunal work’.[1]
- [7]
- [8]Even if the Tribunal does not have jurisdiction to make the orders referred to in Ms Wharton’s application, it does not mean that the Tribunal does not have jurisdiction to make orders to resolve the dispute. This is because the Queensland Building and Construction Commission Act 1991[4] and the Queensland Civil and Administrative Tribunal Act 2009 confer upon the Tribunal the orders it may make.[5]
- [9]The Tribunal is mandated to deal with matters in a way that is accessible, fair, just, economical, informal and quick,[6] by ensuring proceedings are conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice.[7] It is not unfair to Duffy for the Tribunal to make Orders empowered by legislation.
- [10]The Tribunal may therefore make orders to resolve the dispute including compensation, rectification and costs,[8] or dismiss the application. Whether any of those orders are appropriate will depend upon the merits of Ms Wharton’s application, upon considering the evidence from the parties. The parties have been given an opportunity to present their evidence accordingly.
- [11]I am therefore not satisfied to dismiss Ms Wharton’s application for lack of jurisdiction.
Is Ms Wharton ‘estopped’ from bringing her application?
- [12]Duffy also contends that Ms Wharton is ‘estopped’ from proceeding with her application because the Commission has already made a final decision not to issue a ‘Direction to Rectify’. Duffy submits that in making this decision, the Commission noted insufficient evidence to reveal any obvious defective construction practices and therefore the current proceedings involve the same subject matter.
- [13]The contention fails because the Commission and the Tribunal are determining different issues that will not produce conflicting judgements.[9] The Commission made an administrative decision about whether to issue a Direction to Rectify.[10] In doing so, the Commission is confined to applying section 72 of the Queensland Building and Construction Commission Act 1991.
- [14]The Tribunal is not reviewing that decision (as part of its review jurisdiction), but deciding a ‘domestic building dispute’ as part of its civil jurisdiction.[11] The Commission’s determination of whether to issue a ‘Direction to Rectify’ is not a final determination of civil liability and does not bind the Tribunal in determining that liability.[12] The Commission’s determination does not create an estoppel because it is not a finding on the merits[13] that Duffy is not civilly liable:
I do not think the principle in Anshun’s case is relevant to civil proceedings which might follow [review of] an administrative decision. I make that finding on the basis that review proceedings are limited in scope and limited in the orders which may be made. I do not consider that it could be held against the applicant that it failed in review proceedings to conduct a damages case for negligence or breach of contract or breach of statutory duty against a party and that it is therefore barred from later bringing such an action.[14]
- [15]Although there may be an overlap, the issues for the Tribunal to determine are distinct from those of the Commission. The Tribunal must consider legislative, contractual and tortious duties and whether Duffy’s construction complied with those duties.[15] These include whether Duffy performed its work in accordance with all relevant laws and legal requirements and in an appropriate and skilful way and with reasonable care and skill.[16]
- [16]As part of its considerations, the Tribunal can accept or reject the Commission’s more limited determinations[17] as evidence. The Tribunal’s findings or determinations therefore do not contradict the Commission’s determinations – they subsume them.
- [17]Duffy also claimed that Ms Wharton is ‘estopped’ from bringing her application because it relied upon her representation that the existing piers were to be excluded from the contract. That may be relevant to the merits of her application and liability. It does not prevent Ms Wharton from bringing an application for the Tribunal to determine its merits and liability.
- [18]I am therefore not satisfied that Ms Wharton is prevented from proceedings with her application on grounds of ‘estoppel’.
Did Duffy’s work cause cracking in Ms Wharton’s Home?
- [19]Ms Wharton engaged Focon Pty Ltd, Consultant Engineers to investigate and report on the structural condition of her renovations. Mr Brian Thomas, Director prepared the report under the consent and supervision of Mr Ross Proud.[18]
- [20]The Focon report attributed the cracking to inadequate footings for the soil type, and the back deck and new structures pulling on the house.
Were the footings inadequate for the soil type?
- [21]Ms Wharton said that Mr Oisin Duffy, Director of Duffy and On-Site Manager, verbally indicated he would concrete under existing stumps of the existing house if needed. Mr Oisin Duffy disputed this and claimed he simply said that if he could fix them ‘with a couple of hours work, I would’. His evidence was that the stumps needed more than this.
- [22]Duffy’s contract with Ms Wharton did not require Duffy to work on footings for the existing house.[19] Although the Contract allowed for fixed price variations, no fixed price variation was submitted. This suggests any inadequate footings in the existing house were beyond Duffy’s scope of work, for which Duffy is not responsible.
- [23]
- [24]Geotech recommended footing and slab designs for a ‘Class P’ Site.[22] This means that Geotech classified Ms Wharton’s property as ‘Problem Site’ due to these factors:
- Existing trees may cause abnormal soil moisture conditions; and
- Potential differential soil movement across the site.[23]
- [25]
- [26]Once Mr Thomas had the benefit of the soil results and Geotech report,[26] he accepted when giving his oral evidence that the footings were properly designed.
- [27]I am therefore satisfied on the evidence that Duffy’s footings were properly designed and adequate for the soil type and did not cause cracking.
Did Duffy’s new structures properly connect to the existing house?
- [28]The Focon report notes the ‘movement of the back deck and new structures is pulling on the existing house and causing all the damage’.[27] When giving his oral evidence, Mr Thomas was able to clarify that his main concern was that the footing system installed by Duffy did not match the floating system on the existing house.
- [29]Mr Thomas considered that directly connecting the deck extension restricted the main house’s movement. He said articulation joints were not evident in the project and should have been between the existing house and Duffy’s extension, to allow the main house to move without damage.
- [30]Mr Patrick Duffy, Director of Duffy also gave evidence at the hearing. Mr Duffy emphasised that the new structures exerted no force on the existing house. Mr Duffy said that the deck extension could not have restricted the main house’s movement. This is because the deck was only attached to a corner of the main house by simple pin connections. Importantly, he added that the junction of the structures did have flexible articulation.
- [31]In ascribing weight to Mr Duffy’s evidence, I have noted that he is a Director of Duffy and cannot be considered to be an independent expert. Similarly, in ascribing weight to Mr Thomas’ evidence, I have noted that he prepared his report to assist Ms Wharton with technical information for her complaint to the Commission and thought the current proceedings were to review the Commission’s decision not to issue a ‘Direction to Rectify’. I have also noted that neither gentleman was involved in the project before Ms Wharton raised her concerns.
- [32]However, these considerations do not mean they are not qualified to comment from their own observations on any forces being exerted and the workmanship.
- [33]Indeed, I found both Mr Thomas and Mr Duffy to be honest and credible when giving their evidence. Both gentlemen have considerable experience. Mr Thomas has an Associate Degree in Civil Engineering. Mr Duffy has been a structural engineer since 1972, is a Member of the Institute of Structural Engineers (with only a 23% pass rate of candidates) and worked on the Sydney Opera House. He would appear to be eminent in the field of structural engineering.
- [34]Where there is a contest of fact, Ms Wharton as the applicant has the onus of proving her claim to the Tribunal’s reasonable satisfaction.[28] Relevantly, Mr Thomas did not do any testing to establish that the back deck and new structures are pulling on the house. Mr Thomas was also required to modify some of his findings. This is understandable given he did not initially have the benefit of the architect’s report and the Geotech report. However, it reduces the weight that I can ascribe to his comments about differential movement and articulation.
- [35]Because of these qualifiers to Mr Thomas’s evidence, I cannot be satisfied to accept his findings as sufficient to prove an absence of articulation to allow for any differential movement. I am also not satisfied that his evidence establishes that any joining of the rafters between the new structure and the existing rafters provided structural continuity sufficient to cause cracking.
- [36]
- [37]I have also noted that all of Duffy’s works were independently certified.[31]
- [38]Therefore, even if the existing house and the deck are moving differentially (regardless of which of the structures is exerting the forces), I am not reasonably satisfied on the evidence that Duffy failed to properly articulate the structures for the differential movement.
Conclusion on cause
- [39]Ms Wharton did not discover cracking until almost 18 months after Duffy completed the work. After trying to resolve the issues with Duffy, she complained to the Queensland Building and Construction Commission. The Commission found insufficient evidence of defective construction.[32]
- [40]The Commission noted substantial packing between the bearer and stumps of the existing house, suggesting excessive soil movement.[33] Both Ms Wharton’s own expert engineer[34] and Duffy’s geotechnical engineer noted concerns about the soil under her house. The report of the geotechnical engineer warned:
We cannot over emphasise the importance of the owner / occupier maintaining the structure and surrounds in a sensible and responsible manner.[35]
- [41]It would appear that Ms Wharton knew about the volatility of her soil. However, apart from some re-levelling and re-packing of stumps, no maintenance had been done to the existing house, and in particular the footings for some 25 years.
- [42]Because I am not satisfied on the evidence that Duffy’s work caused cracking, Ms Wharton’s application is dismissed.
What are the appropriate Orders?
- [43]Ms Wharton’s is dismissed because she has not proven that Duffy’s work caused cracking to her home.
- [44]I will allow the parties to make submissions about whether the Tribunal should award costs.
- [45]The appropriate Orders are therefore:
- The application is dismissed.
- Bev Wharton is to file with the Tribunal and serve on Duffy Constructions (QLD) Pty Ltd any submissions on costs by 4.00pm on 8 June 2015.
- Duffy Constructions (QLD) Pty Ltd is to file with the Tribunal and serve Bev Wharton any submissions on costs by 4.00pm on 22 June 2015.
- The costs of the proceedings will be determined on the papers and without an oral hearing not before 23 June 2015.
Footnotes
[1] Queensland Building and Construction Commission Act 1991 s 75(1)(b).
[2] Queensland Civil and Administrative Tribunal Act 2009 s 28(3)(b).
[3] Ibid s 28(3)(c).
[4] Queensland Building and Construction Commission Act 1991 s 77(2).
[5] Queensland Civil and Administrative Tribunal Act 2009 s 16.
[6] Ibid s 3(b).
[7] Ibid s 4(c).
[8] Queensland Building and Construction Commission Act 1991 s 77.
[9] Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at [40] per Gibbs CJ, Mason and Aickin JJ.
[10] Queensland Building and Construction Commission Act 1991 s 72.
[11] Ibid s 77 and Schedule 2 definitions of ‘building dispute’, ‘domestic building dispute’ and ‘reviewable domestic work’.
[12] Unlike Kuligowski v Metrobus (2004) 220 CLR 363.
[13] Hart v Hall & Pickles Ltd [1969] 1 QB 405 at 411 per Denning LJ.
[14] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 at [102].
[15] Bryan v Maloney (1995) 182 CLR 609 at [14]; North v Paul Bongioletti Homes Pty Ltd and Pershouse [2011] QCAT 134 at [50].
[16] Domestic Building Contracts Act 2000 ss 43, 44.
[17] Inspection Report of Rodney Turkington, Building Inspector – Resolution Services dated 23 July 2014.
[18] Engineering Conditions Report of Focon Pty Ltd dated 6 March 2014.
[19] Major Works Contract dated 28 September 2010.
[20] Ibid.
[21] Statement of Patrick J Duffy sworn 12 November 2014 at page 3.
[22] Report of Brisbane-West Geotech dated 22 October 2010.
[23] Ibid.
[24] Compliance Certificate of Jose Castaneda, Engineer dated 22 October 2010.
[25] Final Inspection Certificate of John Tunney dated 24 May 2011.
[26] Report of Brisbane-West Geotech dated 22 October 2010.
[27] Engineering Conditions Report of Focon Pty Ltd dated 6 March 2014 at page 3.
[28] Briginshaw v Briginshaw (1938) 60 CLR 336 at 346, per Dixon J (as His Honour then was).
[29] Drawing of Dennis Dawson of Metro Concepts Housing & Commercial Design at attachment C4 to the Statement of Patrick J Duffy sworn 12 November 2014.
[30] Report of Brisbane-West Geotech dated 22 October 2010 at page 2.
[31] Final Inspection Certificate of John Tunney dated 24 May 2011.
[32] Inspection Report of Rodney Turkington, Building Inspector – Resolution Services dated 23 July 2014.
[33] Ibid.
[34] Engineering Conditions Report of Focon Pty Ltd dated 6 March 2014 at page 1 notes the soil as ‘highly reactive’.
[35] Report of Brisbane-West Geotech dated 22 October 2010 at page 3.