Queensland Building and Construction Commission v Williams
[2015] QCAT 355
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- Unreported Judgment
- Queensland Building and Construction Commission v Williams[2015] QCAT 355
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Queensland Building and Construction Commission v Williams[2015] QCAT 355
Queensland Building and Construction Commission v Williams[2015] QCAT 355
CITATION: | Queensland Building and Construction Commission v Williams [2015] QCAT 355 |
PARTIES: | Queensland Building and Construction Commission (Applicant) v Barry Kenneth Williams (Respondent) |
APPLICATION NUMBER: | OCR428-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 31 July 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Guthrie |
DELIVERED ON: | 24 August 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
The Tribunal further directs that:
|
CATCHWORDS: | OCCUPATIONTAL REGULATIONAL MATTER – DISCIPLINARY PROCEEDINGS – BUILDER where defective building work – inadequate support for top level of building – whether negligent or incompetent – suspension of licence Queensland Building Services Authority Act 1991 (Qld), s 88, s 89, s 91 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1, s 55 Williams v Queensland Building Services Authority [2013] QCAT 589 Briginshaw v Briginshaw (1938) 60 CLR 336 Queensland Building Services Authority v Bryan Graham Stanley D295-96 [1997] QBT 16 Queensland Building Services Authority v Wilkins [2012] QCAT 582 Queensland Building Services Authority v Chandra & Anor [2013] QCAT 628 Queensland Building and Construction Commission v D Block Constructions Pty Ltd [2015] QCAT 62 |
APPEARANCES: | |
APPLICANT: | Queensland Building and Construction Commission represented by Mr S Formby of counsel |
RESPONDENT: | Barry Kenneth Williams |
REASONS FOR DECISION
- [1]Mr Williams is the holder of ‘Builder – Low Rise’ licence number 1149329 and trades under the name, ‘Williams Brothers Builders’. On 21 December 2012, the Queensland Building Services Authority applied to the Tribunal seeking a number of orders including that pursuant to s 89(i) of the Queensland Building Services Authority Act 1991 (Qld) (the Act), proper grounds exist for taking disciplinary action against Mr Williams in that on a date or dates unknown between 16 June 2010 and 18 September 2011, Mr Williams was negligent or incompetent in carrying out tribunal work under his licence at a particular property at Brighton, Queensland. The Queensland Building Services Authority is now known as the Queensland Building and Construction Commission and will be referred to as the QBCC in these reasons.
- [2]In his opening address, Mr Formby submitted that s 55 in Schedule 1 of the current Queensland Building and Construction Commission Act 1991 (Qld) applies with the effect that the Tribunal must complete the disciplinary proceeding as if the former Part 7, Division 4 of the Act had not been repealed by the Amendment Act. The Tribunal accepts that submission.
Background to the QBCC’s application
- [3]On 26 May 2010, Mr Israel and Mrs Natasha Hayes (the homeowners), and Mr Williams completed a Schedule for Major Works contract which described the building work, the subject of the agreement as ‘raise existing, extend and renovate’ to an agreed value of $160,457. Essentially, the building work involved the raising of a low-set weatherboard and fibro cottage, extending it, and building underneath it. The Tribunal finds that the building work met the definition of ‘Tribunal work’ in s 75(1)(b) of the Act.
- [4]In Williams v Queensland Building Services Authority,[1] this Tribunal (differently constituted) determined, on 23 October 2013, that other documents formed part of the terms of the contract between the homeowners and Mr Williams. Those other documents outlined which tasks were to be completed by Mr Williams and which tasks were to be completed by the homeowners. The Tribunal further determined that, on 3 June 2011, the contract was validly terminated by Mr and Mrs Hayes on the basis that Mr Williams failed to remedy defective works within the time stipulated in the Notice to Remedy the Breach. The Tribunal found, in the alternative, that due to its finding in relation to Mr Williams’ defective work, he had breached the statutory warranty created by s 44 of the Domestic Building Contracts Act 2000 (Qld).
- [5]The QBCC received a written complaint from Mr and Mrs Hayes on 13 July 2011, alleging that Mr Williams had carried out defective work and had not completed the building work. Subsequently, following inspections carried out by Mr Michael Hulme, the QBCC’s building inspector, and Mr Peter Wright, Engineer of Hughes, Beal & Wright Pty Ltd, the QBCC issued a direction to rectify on 18 August 2011. The direction to rectify referred to 14 matters involving defective or incomplete building work. Ultimately, another builder, Mr Gregory Roberts was engaged to rectify the defective building works and complete the work.
- [6]In July 2012, Mr Roberts contracted with the homeowners to carry out the work which ultimately cost $164,483.96. In so doing, Mr Roberts removed the cladding or blue board from the newly constructed lower level of the building. What he found prompted the QBCC to arrange for Mr Wright to carry out further inspections and provide a further report. Mr Wright’s report dated 14 August 2012 (the Wright report)[2] was relied on by Mr Hulme in his ‘Negligence and Incompetence Report’ dated 10 September 2012.[3]
- [7]The items of defective work upon which the QBCC relies in this application have been consistently referred to in the documentary evidence, and in the oral evidence and submissions at the hearing as items 3.1.4 and 3.1.7, adopting the numbering used in the Wright report. For consistency, the Tribunal has also adopted that description of the alleged defective building work in these reasons.
- [8]Mr Formby submitted that while the QBCC relies on items 3.1.4 and 3.1.7 as the most egregious items of defective work, it would be incorrect to consider those two matters as isolated events. Those defects, he said, should be considered against the background of the many defects identified by the various building inspections and which founded the QBCC’s direction to rectify.
- [9]In determining this application, the Tribunal must be reasonably satisfied of the facts as claimed. The degree of satisfaction required varies according to the gravity of the fact to be provided.[4] The gravity of the facts alleged here is such that, if the Tribunal is satisfied that the conduct occurred, Mr Williams may have his builder’s licence suspended or cancelled. Indeed the QBCC seeks an indefinite suspension of his licence. Therefore, a high degree of satisfaction is needed for the Tribunal to be satisfied the facts occurred as alleged.
Do appropriate grounds exist for taking disciplinary action against Mr Williams?
Item 3.1.4
- [10]Item 3.1.4 relates to the outer bearers to the upper floor. Certain of the facts relating to the bearers in question are not in dispute. Mr Williams installed the bearers. The bearers in question were part of the new construction so that no part of the original dwelling was used in that part of the construction. The bearers are short of supporting steel posts by a hundred or so millimetres. The Tribunal makes findings of fact accordingly.
- [11]While there is no dispute that Mr Williams also installed the blue board over the relevant bearers, he alleges that the blue board he installed was removed by the homeowners to move walls and cut one of the bearers. It is the homeowners’ involvement that is at the heart of Mr Williams’ defence.
- [12]Mr Hayes in his affidavit dated 21 August 2014[5] states that Mr Williams last worked on the site on 23 February 2011. Inspections were conducted on 31 March and 11 April 2011 by Mr Bruce Moore of Building Survey Australia Pty Ltd who took photographs and prepared a report. Mr Moore was engaged by Mr and Mrs Hayes. Mr Moore did not give evidence at the hearing but Mr Williams did not claim at the hearing or in his statement[6] that the inspections by Mr Moore did not occur and he did not put this to Mr Hayes. It is not in dispute that Mr Hulme inspected the property on 15 August 2011 and again on 26 September 2011.[7] Mr Wright inspected the property on 25 July 2012, 30 July 2012 and 4 August 2012. Mr Roberts was on site by late July 2012. The Tribunal finds accordingly.
- [13]Turning then to a consideration of the bearer on the right hand side of the dwelling. Mr Wright gave evidence consistent with his two statutory declarations[8] and the reports attached thereto. Mr Wright took a number of photographs of the bearer, which appear, in his report. Enlarged copies of the photographs he took on 4 August 2012 were also tendered at the hearing, and the Tribunal has carefully examined them.[9]
- [14]In the Wright report, Mr Wright states that the end of the bearer, which is a primary load-carrying element, has no lateral support to prevent it from twisting or buckling or to transfer lateral load to the post or the lower floor framing. He further states that due to a combination of defective building practices, the bearer had a noticeable twist.
- [15]Mr Williams says that when he installed the bearer on the right hand side of the building it was the required length. He gave evidence that the sequence of events was that (1) he correctly installed the bearer and covered it with sarking; (2) the homeowners cut the bearer on the right hand side of the building after it was installed and then (3) he unknowingly covered the area with blue board. Mr Williams says that had the cladding not been removed by Mr Roberts, the problem with the bearer would not have been discovered.
- [16]In his statement,[10] Mr Williams claims that inspection of the photographs shows that:
- The beam has been cut to the right hand side of the post flange so that saw marks would not have appeared on the flange itself
- Saw marks and further timber damage is clearly visible in the member directly below the cut to the right of the steel post flange.
- The section of the beam removed could have removed the flange bolt in place.
- The clear presence of saw dust and timber shards resting on the top of the post flange and on the top plate member below is consistent with the bearer being cut in situ.
- [17]Mr Williams also claims that the upper floor could not have been constructed if the beam had been installed short in the first place. Mr Wright’s response to this statement appears in his statutory declaration dated 11 July 2014.[11] He states that ‘as with a house of cards it is possible to construct a house however it lacks the general level of robustness expected in domestic construction’.
- [18]In his statutory declaration dated 29 November 2012,[12] Mr Wright states that he saw no evidence the end of the bearer was cut off to shorten it after it was incorporated into the structure. He states that there is no evidence of saw marks on the timber members above or below the bearer, which might indicate that timber bearer had been cut after it was incorporated into the structure.
- [19]Mr Williams relies on part of the transcript of the QCAT proceedings in OCR269-11[13] where Mr Wright, in response to the question whether the bearer could have been cut in situ after it had been installed, says ‘I guess anything is possible…’. The Tribunal notes that the transcript reflects that Mr Wright went on to say, ‘I would say it’s highly improbable that it was cut after it was installed’ and then proceeds to give his reasons for that opinion.
- [20]Mr Wright states in his report of 11 July 2014 that his initial view was that the bearers were installed short. He states that he did not for one moment consider that anyone of sound mind would cut the ends off two primary building elements after they were installed.
- [21]Mr Wright goes on to state that if the beams were cut short after installation one would not expect to see saw marks on the flange, that is the steel cap plate to the steel post, as the cut would have been made beyond the end of the plate. Further, he says that the saw marks and ‘further timber damage’ clearly visible in the member directly below the cut, to the right of the steel post flange are not in his opinion evidence of the member being cut after installation. He states that evidence of ‘saw marks and further timber damage’ appears on the timber packer beneath the bearer (left of the end of the bearer). Mr Wright states that if this timber damage were caused during the cutting of the bearer, then he states he would expect the timber damage to be directly below the end of the bearer. He states that the ‘damage’ appears offset and in his view is not evidence of cutting after installation.
- [22]Further, Mr Wright states that close inspection of the underside of the wall plate sitting on top of the bearer shows no evidence of saw marks that might indicate the bearer was cut after installation. He states that it would take extreme care to cut the end of the bearer in situ without marking the underside of the bottom plate or the wall above. He was unable to see evidence of saw marks to the underside of the bottom plate to suggest that the bearer was cut after installation.
- [23]In relation to the bolt in the flange plate which Mr Williams asserts would have been through the bearer when it was installed, Mr Wright states in his report of 11 July 2014 that there is evidence of a bolt having been ‘snapped’ off in the flange plate more than likely due to torsion failure possibly due to over tightening. However, he says that the bolt failure is not consistent with the bolt having been inserted into the bearer. In support of this statement, he states that the bolt is in line with the outer face of the bearer. Mr Wright states that there is a distinct lack of damage or markings consistent with a short section of bearer having been removed. In terms of the sawdust and timber shards seen in the photographs in the area, Mr Wright states that there were other timber working activities in the vicinity that could have produced sawdust and timber shards that could have deposited in these locations. He gave evidence that in his opinion there was virtually no doubt that the bearer was cut prior to installation.
- [24]Mr Roberts gave evidence that when the bearers were uncovered nothing stood out to him at the time that the bearers were cut in situ. He was shown the enlarged photographs and said that he could not see any evidence in the photographs that the bearers had been cut in situ. Mr Roberts said that he would have expected markings on the bearer at the top or bottom if the cut had been made in situ. He said that the cut was too neat to have been done with a sabre saw and that was the only way he could see that it could be done. While he agreed there was sawdust in the area of the bearers he said that that could come from other things.
- [25]Mr Roberts said that to start the cut in situ a hole would have to be drilled in the timber and then you would have to use a sabre saw to move up from the drill hole. It would be difficult to avoid cutting the top and bottom plates. He commented that a sabre saw is ‘not the most delicate of things’.
- [26]Mr Roberts also agreed in re-examination that the bolt in the flange of the steel post did not appear to line up with the bearer.
- [27]Mr Hulme gave similar evidence regarding why he did not consider that the bearers could have been cut in situ but said that he had not seen the bearers in situ but rather had examined the photographs taken by Mr Wright. He agreed that the only way he could envisage the bearer being cut in situ was to use a circular saw dropped into the beam and then finish off the triangular sections remaining at the top and bottom using a reciprocating saw or handsaw. He considered it ‘defied logic’ to say that the bearers had been cut in situ. He said that the remainder of the drill hole used to start the cut would also be evident had that occurred.
- [28]Mr Hayes gave evidence consistent with his affidavit dated 21 August 2014[14] that he did not cut the bearer in situ nor did he authorise anyone else to do so. There was no suggestion by Mr Williams that Mr Hayes’ evidence in that regard was inconsistent with the evidence he gave to the Tribunal at the hearing regarding the termination of the contract.
- [29]In the Tribunal’s view, the weight of the evidence, in particular, the objective evidence of Mr Wright and Mr Roberts, which is consistent with the photographic evidence, points to one reasonable conclusion that the bearer on the right side of the building was installed short of the steel post. Based on the consistent evidence of Mr Hulme, Mr Wright and Mr Roberts, the Tribunal does not consider that such a clean cut could have been done in situ. Further, the claim by Mr Williams that the bolt in the flange of the steel post was originally through the bearer is not supported by any of the oral evidence of the witnesses called by the applicant nor by a close examination of the photographs. The bolt in the flange does not line up with the bearer.
- [30]In his 2012 statutory declaration, Mr Wright states that the failure of the bearer to span the full distance to its steel support significantly reduces the structural integrity of the rear of the building.
- [31]Mr Roberts said the beam was short and not supported and it was a structural member, which is required to be linked at all points to transfer the loads. Without the adequate bracing in the upper walls through to the ground and footings the structural performance of the house would be detrimentally affected. Mr Roberts said that failure to provide adequate support was a breach of the building code.
- [32]Mr Hulme’s evidence was also to that effect. Australian Standard AS 1684 makes it clear that bearers shall span between supports.
- [33]The evidence of Mr Wright, Mr Roberts and Mr Hulme was that this was an example of very poor workmanship. Mr Hulme gave evidence that it is ‘carpentry 101’ that a member must have adequate support.
- [34]The Tribunal concludes that the installation of the bearer on the right hand side of the building by Mr Williams fell well short of the reasonable standard of construction expected of a competent holder of the licence of the type held by Mr Williams and that the defective building work would adversely affect the structural integrity of the building. The Tribunal finds that it is an example of significantly defective building work and that in installing the bearer as he did Mr Williams was negligent and incompetent.
- [35]Turning then to a consideration of the bearer on the left hand side of the building, which also fell short of the nearest supporting post. Much of the evidence tendered by the QBCC was aimed at addressing a claim that that bearer too had been cut short in situ. This bearer has nails protruding from it and has a timber plate behind it, which all the witnesses called by the QBCC said would make it even more difficult to cut it cleanly in situ, leaving the nails intact as depicted in the photographs of that bearer.[15] The Tribunal can clearly see from the photographs how difficult that would be. For those reasons and the reasons already given in relation to the bearer on the right hand side of the building, the Tribunal finds that the bearer on the left hand side of the dwelling was not cut to the length depicted in the photographs in situ.
- [36]Mr Williams put to the witnesses called by the QBCC that in relation to the bearer on the left hand side of the dwelling, the walls had essentially been moved after he installed them leaving the bearer short. He gave evidence that the homeowners removed the sarking, moved the frame and then reinstalled the sarking and blue board.
- [37]Further, he says that the bearer was never intended to be supported by the steel post, as with the bearer on the right hand side of the building, but rather he was intending to use a hybrid system to ensure that the bearer was properly supported. The nails protruding from the bearer were to make contact with the end of the old building.
- [38]Mr Formby put to Mr Williams that this was something Mr Williams had thought of later in an attempt to defend his poor workmanship. Mr Williams however, maintained that he had not understood that the bearer on the left hand side of the dwelling was in issue, as he had not previously seen a photograph of it in any report. It is true that the photograph of the bearer on the left hand side of the dwelling does not appear in the Wright report although there is a reference to it. A photograph of it appears in the later report of Mr Wright dated 11 July 2014. The Tribunal is satisfied that Mr Williams was given a copy of the report prior to the hearing.
- [39]The evidence of all the witnesses called by the QBCC was consistent with the photographs that the bearer on the left hand side of the dwelling could not have been supported on the steel flange of the post as an old block of wood sits on top of the steel flange.
- [40]Mr Wright gave evidence that it was unusual to use, within the same construction, different forms of supporting loads. He said that an examination of the plans for the dwelling did not identify that a hybrid system was to be used.
- [41]Indeed an examination of the plans shows the tie down system to be used in construction.[16] The plans indicate that the beams are to be affixed to posts with 2/M12 bolts per connection. The use of a hybrid system in relation to the bearer on the left and side of the building would have been a variation of the plans. Mr Wright agreed that a builder could have the requisite skill to install such a system. He said that if the walls were shifted then they would align reasonably well with the outside of the steel posts.
- [42]In cross-examination, Mr Williams conceded that a hybrid system would require a cluster of studs, which were not present in the photographs.
- [43]Mr Williams claims that Mr Hayes’ failure to remove the asbestos from the dwelling meant that he was unable to install tie downs throughout the dwelling as it was agreed with the homeowners that he would install all tie downs at once. Further, he says that in the area of the bearer in question, he had not nailed off the area permanently because he intended to remove the blue board to install the tie down rods and install another bearer beside the one which relates to item 3.1.7. Mr Williams says he was unable to do so because he was not allowed back on site.
- [44]Mr Hayes gave evidence that he did not move walls after they were installed. He did not cut any bearers after they were installed. He also said that there was no asbestos in the new part of the house and that he recalled that Mr Williams had told him that tie down rods were not required and it was only necessary to use the steel beams and straps. Mr Williams pointed to a photograph, which he said showed to tie down rods in the place.[17] Mr Hayes conceded that there was still some asbestos in the roof when Mr Roberts arrived on site. He said that he had removed asbestos when asked to by Mr Williams. Again, there was no suggestion that Mr Hayes’ evidence in this regard was inconsistent with the evidence he had previously given to the Tribunal that determined the issue of termination of the contract.
- [45]Mr Wright said that while he was looking for structural defects when he inspected the property prior to Mr Roberts’ removal of the blue board, he saw no evidence that the blue board had not been nailed off ready for rendering. He said that it would have been reasonably obvious to him if the nail heads were protruding. He said that the building had a distinct curve when you looked at it and he would have seen nail heads protruding. Although he did say that this was more of a ‘finishing issue’ not a structural one with which he was primarily concerned.
- [46]Mr Roberts gave evidence that he had no specific recollection of the nailing of the blue board other than it was nailed and he had to remove it. He recalled that it was flush nailed but said that he was not looking for that at the time. Mr Williams put to Mr Roberts that that someone could release the post from the old house. Mr Roberts responded that the posts lined up with the old house so he did not think so.
- [47]
- [48]Mr Hulme’s affidavit dated 20 May 2015 annexes photographs he took of the blue board on 15 August 2011 and then on 26 September 2011.[20] Enlarged copies of those photographs were tendered.[21] Mr Hulme gave evidence that he saw no indication when first on site that the blue board was other than permanently nailed.
- [49]Essentially, Mr Williams admits to having covered the newly constructed lower level of the house with blue board as though it was completed ready for rendering but says he did not permanently nail an area near the bearer in question and the bearer relevant to 3.1.7. He gave evidence that he did this so that the dwelling could be said to have reached lock up stage and so he could make a claim in relation that stage.
- [50]The Tribunal does not consider that the weight of the evidence supports a finding that Mr Hayes moved walls after Mr Williams installed them. The Tribunal would have to be reasonably satisfied that Mr Hayes either moved the walls prior to Mr Williams covering them with blue board or removed the blue board, moved the walls and then reapplied the blue board and did this to his own home. Mr Hayes denies doing so and none of the inspections conducted by Mr Hulme, Mr Wright nor Mr Roberts’ observations when he came on site raised any suspicion in their minds that that had occurred.
- [51]The Tribunal is reasonably satisfied that the bearer on the left hand side of the building was installed as it appears in the photographs short of the steel post and short of the adjoining wood blocking.
- [52]For the same reasons given in relation to the short bearer on the right hand side of the dwelling, the Tribunal finds that the defective work, fell well short of the standard of a competent builder holding the relevant licence and the work detrimentally impacted the structural integrity of the dwelling. The Tribunal finds that Mr Williams’ actions in installing the bearer as it appears in the photographs, was negligent and incompetent.
Item 3.1.7
- [53]Item 3.1.7 relates to the external side walls of the upper level at the rear of the dwelling. Mr Wright states that at the rear of the dwelling the upper external walls were not provided with adequate support due to the use of a narrow bearer to carry the floor joists. Photographs showing the amount of overhang between the bottom plate of the upper wall and the bearer form part of the Wright report. The QBCC tendered enlarged copies of the photographs.[22] The evidence of Mr Hulme, Mr Wright and Mr Roberts was that the QBCC’s current standard and tolerances guide states that it is preferable that there be no overhang. Mr Wright gave evidence that an overhang of in excess of 15 mm is a defect and in this case the overhang was in excess of 50 mm. It is not in dispute that Mr Williams installed the bearer and the Tribunal finds accordingly.
- [54]In the Wright report, Mr Wright states that a competent contractor would have provided a double bearer under the side walls to provide full width support for the bottom plates. Mr Roberts gave evidence that this was the method used to rectify the defect.
- [55]It is clear from the photographs that there is a significant overhang and the Tribunal has no hesitation in concluding that left as it was at the time of Mr Wright’s inspection on 4 August 2012, there was no adequate support for the side walls. Mr Wright, Mr Roberts and Mr Hulme gave evidence to that effect. Mr Roberts gave evidence that ‘it was amazing that it was staying up’.
- [56]Mr Williams conceded that left like that, the work was negligent but he said that he had intended to do further work in that area of the building despite having covered it with blue board. He gave evidence that he would have come back to add another bearer and effect the hybrid tie down system. He agreed that as the kitchen was installed this would have been difficult to do and would have required not only removal of the blue board but also the removal of one of the weatherboards and a section of the roof to complete the work.
- [57]Mr Wright and Mr Roberts conceded that what Mr Williams proposed to them in relation to the additional work was technically possible but difficult. Mr Wright also said that it was odd to install the hold down bolts later and to later install another bearer. The Tribunal understood Mr Wright’s and Mr Robert’s evidence to be that this would not be usual order of construction. Further, they said that the fact that the kitchen had already been installed would have made completing that work even more difficult.
- [58]Mr Williams’ evidence was that he could not install the tie downs as it was his agreement with the homeowners that that would be done throughout the entire building at one time after all the asbestos was removed. However, as this area of the dwelling was new construction there was no asbestos in that area. The Tribunal understands Mr Williams’ evidence to be that the presence of asbestos in the ceiling space of the old house affected his ability to complete the hybrid system of tie downs. He says that he was prohibited from doing the additional work because of the direction to rectify. He said that he did some work on the site but, despite being given a two week extension, was then prohibited by Mr and Mrs Hayes from returning.
- [59]The Tribunal understands the evidence of Mr Wright and Mr Roberts to be that if the construction was done in the usual order and in accordance with the plans, then there would have been no issue with the bearer.
- [60]It is unclear to the Tribunal what timeframe Mr Williams had in mind to return to complete the work he described but, what is clear, is that, on his own evidence, he did not install two bearers at the same time and covered the lone bearer with blue board to have the construction signed off as reaching ‘lock up’ stage knowing that it was not safe to do so. Whether or not Mr Williams planned to return to effect more work to this area of the construction, Mr Williams was prepared to leave the dwelling in a situation where the external walls of the upper level of the house were not properly supported. To rectify this situation, he says required the homeowners to do further work which he says they had not been done as late as 16 September 2011 four months after the termination of the contract.
- [61]While the Tribunal accepts that it was possible with the passage of time and further extensive work for defect 3.1.7 to be rectified, the Tribunal is reasonably satisfied that Mr Williams’ installation of the bearer without an additional bearer was defective work and left the external walls of the upper level of the house with limited support. The Tribunal also finds that his actions in doing so fell well short of the standard expected of a competent holder of a low-rise builder’s licence. The Tribunal finds that Mr Williams’ actions in installing the bearer leaving such an overhang was negligent and incompetent.
- [62]Based on the Tribunal’s findings in relation to items 3.1.4 and 3.1.7, the Tribunal finds that proper grounds for disciplinary action against Mr Williams exist pursuant to s 89(i) of the Act.
- [63]In relation to the overall standard of the work at the site, Mr Hulme gave evidence that at the relevant time the dwelling was in the top five worst houses he had seen, having held his current position with the QBCC since 2007. Mr Wright said that it was ‘nowhere near the best he had seen’. Mr Roberts said that in the 15 years he had been doing rectification work he would regard the dwelling as the worst or second worst he had seen.
- [64]Mr Williams claims that the homeowners were largely responsible for the appearance of the dwelling.
- [65]While the Tribunal accepts that the homeowners undertook certain work at the site, the Tribunal is reasonably satisfied that items 3.1.4 and 3.1.7 were not the only examples of defective work that can be attributed to Mr Williams. Mr Williams was responsible for the new construction and he was the builder on site. The Tribunal has made findings that the homeowners did not move walls and/or cut bearers or remove and reinstall blue board in the area of the new construction as alleged by Mr Williams. The Wright report includes other areas of defective work identified after the blue board was removed by Mr Roberts.
- [66]Mr Formby argued that the Tribunal should not make any finding inconsistent with the findings made by the Tribunal when it considered the issue of termination of the contract. However, given the nature of this application, the standard of proof is different to that applied in the previous decision. At paragraph 60 of that decision the Tribunal said:
Although we accept that some aspects of the identified defective works should not be attributed to Mr Williams, (for example the lack of sisalation under the roof sheets, penetration holes in the blue board, and the noted absence of tie downs in some parts of the structure, because of the failure by the homeowners to first remove asbestos sheeting in a timely manner).The fact remains however, that there are still many other items of poor workmanship that Mr Williams did agree in his oral evidence before the Tribunal were works that were performed by him. An example of the poor workmanship which we accept was conducted by Mr Williams are the joist hangers used to support the upper floor which are very clearly too large for the joist they are intended to support, and the absence of nail fixings securing the SmartJoists into the joist hangers.
- [67]The matters to which the Tribunal refers in that paragraph relate to item 3.1.5 in the Wright report. No specific evidence was led regarding any of the other items of defective work. Mr Williams was not cross-examined on any other items of defective work. Therefore, the Tribunal does not make any finding about whether the description of the overall workmanship of the dwelling as given by Mr Wright, Mr Hulme and Mr Roberts in their evidence is attributable to work performed only by Mr Williams. Rather, the Tribunal finds only that defects 3.1.4 and 3.1.7 were not the only items of defective work for which Mr Williams was responsible and, in any event, those items were, of themselves, of very serious concern.
What order, if any, should be made for disciplinary action?
- [68]Section 91(1) of the Act provides that if the Tribunal decides that appropriate grounds exist for taking disciplinary action against a person the Tribunal may make one or more of the orders mentioned in s 91(3) to s 91(5).
- [69]In determining what order or orders, if any should be made, the Tribunal considers it appropriate to have regard to the following:
- Disciplinary proceedings are protective in nature rather than punitive;[23]
- The desirability of imposing a penalty that has deterrent effect, on the respondent but also others who may contemplate a similar breach;
- Assessment of the gravity of the beach against the objects of the Act which include ensuring the maintenance of proper standards in the industry and achieving a reasonable balance between the interests of building contractors and consumers and to provide support, education and advice for those who undertake building work and consumers;
- Whether there is a satisfactory explanation for the occurrence of the breach;
- Whether the breach is likely to re-occur;
- Whether the respondent admitted the breach at the earliest opportunity or consented to orders that proper grounds exist for taking disciplinary action against the respondent;
- The need for consistency in the imposition of penalties.
- [70]Section 91(3) of the Act provides that the Tribunal may make an order imposing a penalty on the person of not more than, in this case, 200 penalty units. Mr Formby submits that some such order should be made and provided the Tribunal with some cases, which he submits, provide some guidance as to the appropriate amount of the penalty.
- [71]Mr Formby provided the Tribunal with a copy of the Tribunal’s decision in Queensland Building and Construction v D Block Constructions Pty Ltd.[24] This case related to a builder who failed to comply with a Direction to Rectify. Mr Formby directed the Tribunal to the cases the Tribunal considered to be comparable at [12] to [17] of the Tribunal’s reasons. This case is of course different to the present case as the ground relied on for disciplinary action is different.
- [72]The other cases provided to the Tribunal relate to disciplinary proceedings involving building certifiers. In Queensland Building Services Authority v Wilkins,[25] Mr Wilkins was ordered to pay a penalty of $4,000, mid-range of the possible penalty. Mr Wilkins was found to have behaved in a way that constituted professional misconduct under the Building Act 1975 (Qld) by certifying as compliant a pool fence that was not compliant with the Australian Standard. Unfortunately, a child drowned after gaining access to the pool, the fencing to which Mr Wilkins had certified as compliant. Mr Wilkins was found to have cooperated with the QBCC during the course of its investigation. In fact, it was found that his willingness and honesty in disclosing his files to the Council and the QBCC led to him rather than another person facing disciplinary proceedings. He made his files fully available despite not being required to retain files beyond seven years. Mr Wilkins had four prior findings of ‘unsatisfactory conduct’ as opposed to ‘professional misconduct’ made against him. He had expressed remorse.
- [73]In Queensland Building Services Authority v Chandra & Anor,[26] Mr Chandra was ordered to pay a penalty of $10,000 and was never to be re-licensed as a building certifier. He was also ordered to pay the complainant the sum of $44,522.31 to complete rectification work. Mr Formby said that in this case the penalty was a lesser amount due to the order to pay for the rectification work. The Tribunal found that Mr Chandra was guilty of professional misconduct. It appeared to the Tribunal in that case that he had taken a rather cavalier attitude to applying himself to his role of registered certifier. The Tribunal found that Mr Chandra’s conduct was incompetent and lacking in integrity and as a consequence his conduct compromised the amenity of the homeowners property for some considerable time and put the family to considerable inconvenience and expense. It was also found that Mr Chandra had engaged in professional misconduct due to repeated acts of unsatisfactory conduct. It was noted that Mr Chandra had shown little remorse in the past and showed little remorse for his failings and the damage he had caused in the present case. Given his extensive history of professional misconduct and unsatisfactory conduct, a monetary penalty was merely punishing Mr Chandra without achieving the objects of the legislation. Although the Tribunal ordered payment of a penalty, it stated that the best protection for the public was considered to be that Mr Chandra never be allowed to hold a licence again.
- [74]Mr Formby submitted that the penalty in the present case should fall somewhere between these two cases. He submitted that Mr Williams’ case was not as serious as that of Mr Chandra.
- [75]Section 91(5) of the Act provides that the Tribunal may make an order:
- (a)reprimanding the licensee; or
- (b)suspending the licence; or
- (c)Imposing conditions on the licence; or
- (d)cancelling the licence.
- [76]Mr Formby seeks an order that Mr Williams’ licence be suspended indefinitely but did not provide any comparative cases for the Tribunal’s consideration. The Tribunal located the decision of the Queensland Building Tribunal in Queensland Building Services Authority v Bryan Graham Stanley D295-96.[27] Ultimately, in this case the Queensland Building Tribunal cancelled the builder’s licence as it was not satisfied that the builder fulfilled the financial requirements for holding the licence and also imposed two separate penalties for the two particular matters it considered.
- [77]The facts in that case were that it was apparent from the engineer’s inspection that the house had not been constructed in accordance with the plans and that it was susceptible to sway. In particular, the Council noted that there were shear cracks in the wall panels of the lower and upper floors and that the sub-floor structure had not been constructed in accordance with the plans. The Queensland Building Tribunal considered it a very serious breach of the manner of construction because it is a matter that goes to the overall integrity of the founding of the structure. The Queensland Building Tribunal observed that the defects rendered the construction to be extremely susceptible to demolition in the event of high wind or other natural trauma. Council was not prepared to approve the construction of the house until a registered professional engineer certified that the frame was structurally adequate because the homeowners had advised the Council that the house continued vibrating and swaying.
- [78]The Tribunal went on to say that to construct a house with such a fundamental problem in the sub floor structure and the bracing was unforgivable. The Queensland Building Tribunal also considered the inappropriateness of the builder’s response to the complaints made by the homeowners which was effectively to ignore them.
- [79]The Queensland Building Tribunal concluded:
In my view, the matter warrants a significant penalty made to demonstrate to like minded person that this type of incompetence will not be tolerated. It … behoves somebody who has the privilege of a licence to ignore that privilege and undertake work beyond the level of their own competence or, indeed, if they are competent, to be so slovenly in the work that they show almost a callous indifference to performing work in a competent manner. They should be discouraged and there should be a strong penalty imposed in order to advertise to like minded people that when these problems arise, that they will not be disposed of lightly or treated lightly. I think also that the fact that having had the matter brought to his attention, he showed compete indifference in terms of responding to those very serious matters of his own doing; his own negligence also warrants some sanction.
- [80]The Tribunal considers this reasoning to be of guidance in this case.
- [81]Mr Formby submitted that the suspension order would not prevent Mr Williams earning a livelihood. He could work as a tradesman under supervision. Mr Formby submits that it is the function of a builder to look at the work of others and say that it is wrong. An indefinite suspension would allow Mr Williams to apply for a licence at some future time and demonstrate his competence to the QBCC so that his application could be assessed. Any decision made by the QBCC in relation to such an application is reviewable.
- [82]Mr Formby agreed that the QBCC was unaware of any other complaints of the type in issue here made in relation to Mr Williams. Mr Formby submitted that the QBCC did not seek such an order lightly. He said that while the nature of the contract between Mr Williams and the homeowners was a complicating factor, the defective work was found by the previous Tribunal decision to be a valid reason for termination. There were many areas of work that were Mr Williams’ responsibility and which were defective. The building as a whole he said was very badly constructed. The defects 3.1.4 and 3.1.7 were significant. The Tribunal has already made a finding in relation to this submission.[28]
- [83]Mr Williams submitted that he was not responsible for items 3.1.4 and 3.1.7. He urged the Tribunal to take into account the actions of the homeowners who he said had not considered what would happen to his licence. He submitted that their involvement in the building process heavily contributed to the appearance of the building when he was not on site. He said that they took over the site. He said this was the only time a homeowner had questioned his work. He conceded that he had not properly documented what was to happen on site and that was his fault. He agreed that he had ‘let this happen’.
- [84]Mr Williams said he knew it was wrong to leave the work as it was but he did not intend to leave it like that. He said he was guilty of trying to help the homeowners get their kitchen in by Christmas. He referred to the homeowners as ‘malicious and deceitful’ in discontinuing his work on site and ‘cunning’ regarding the terms of the contract. He said that he has been left in a situation where it is almost impossible for him to disprove the negligence claims. He said that he agreed that some suspension of his licence was warranted but not an indefinite suspension because he had done nothing wrong in the past. He did not consider that his actions warranted an enormous fine or for his career to be destroyed.
- [85]Mr Williams concedes that he did not take control of the site. He sought to appease the homeowners and work within their timeframes. For these actions he concedes that some period of suspension of his licence is appropriate. However, he accepts little responsibility for the work the Tribunal has found was negligent and incompetent. He blames the homeowners for the state of the workmanship and his inability to rectify defective work or complete the work. In relation to the bearer on the right hand side of the dwelling, the Tribunal has found that it was installed short and has rejected as not credible Mr Williams’ evidence that the bearer was cut in situ. At no time did Mr Williams resile from that position. The Tribunal considers his actions in leaving the single bearer supporting the external side walls and covering it with blue board of serious concern whether or not he intended to return to do more work.
- [86]Given Mr Williams’ persistence in levelling blame at the homeowners, the Tribunal is not reasonably satisfied that presented with similar circumstances, Mr Williams would not act in the same or similar way. He appears to lack some insight into his behaviour and the privilege it is to hold a builder’s licence.
- [87]Against those matters is weighed the fact that there is no evidence before the Tribunal that he has had any previous complaints resulted in disciplinary proceedings nor any complaints in the approximately four years since the events in issue took place.
- [88]Taking those matters into account as well as the gravity of defects 3.1.4 and 3.1.7 and the objects of the Act to ensure the maintenance of proper standards in the industry and achieve a reasonable balance between the interests of building contractors and consumers, the Tribunal considers that some order under s 91 is appropriate.
- [89]The QBCC seeks an indefinite suspension. Mr Williams agreed that some period of suspension was warranted but did not specify a period. The difficulty the Tribunal has with determining a specified period of suspension is that upon the expiration of the period of suspension, Mr Williams could resume work under the conditions of his current licence without any requirement to satisfy the QBCC that he is competent. An indefinite suspension will allow Mr Williams to apply for the licence at any time and provide evidence to the QBCC that he is competent to hold it. The Tribunal therefore considers that the appropriate order is that Mr Williams’ licence be suspended indefinitely. While the QBCC requested an order that Mr Williams pay a penalty, the Tribunal considers that the suspension order recognises the seriousness of Mr Williams’ conduct, provides the necessary protection to consumers, and has a deterrent effect. The Tribunal declines to make any further order for disciplinary action.
- [90]In its application to the Tribunal, the QBCC sought an order for costs. At the hearing, the QBCC sought leave to address the Tribunal on costs after the substantive issues were determined. In order for the Tribunal to consider and determine the application for an order for costs, the Tribunal directs that:
- The QBCC file in the Tribunal one copy and give to Mr Williams one copy of its written submission in support of the application for costs by 4:00 pm on 14 September 2015.
- Mr Williams file in the Tribunal one copy and give to the QBCC one copy of his submissions in reply to the application for costs by 4:00pm on 5 October 2015; and
- Unless either party applies for an oral hearing by 4:00 pm on 6 October 2015, the application for costs will be determined by the Tribunal on the papers based on the written submissions from the parties.
Footnotes
[1][2013] QCAT 589.
[2]Exhibit 13 Annexure PGW-2.
[3]Exhibit 1 Annexure MH-11.
[4]Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 to 362.
[5]Exhibit 11.
[6]Exhibit 15.
[7]Exhibit 9.
[8]Exhibits 13 and 14.
[9]Exhibits 4A and 4B show the bearer on the right hand side of the dwelling.
[10]Exhibit 15.
[11]Exhibit 14.
[12]Exhibit 13.
[13]Exhibit 16.
[14]Exhibit 11.
[15]Exhibits 4A and 4B and 5.
[16]Exhibit 1 annexure MDH-2.
[17]Exhibit 3.
[18]Exhibit 12.
[19]Commonly referred to as blue board.
[20]Exhibit 9.
[21]Exhibit 2.
[22]Exhibits 3 and 7 relate to the overhang.
[23]Queensland Building Services Authority v Taylor, R [2005] QCCTB 70 at [25] cf NSW Bar Association v Evatt (1968) 117 CLR 177 at 183.
[24][2015] QCAT 62.
[25][2012] QCAT 582.
[26][2013] QCAT 628.
[27][1997] QBT 16.
[28]Paras [63] to [67] inclusive of these reasons.