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- Unreported Judgment
Lyon v Queensland Building and Construction Commission QCAT 296
Lyon v Queensland Building and Construction Commission  QCAT 296
Queensland Building and Construction Commission
General administrative review matters
2 February 2016
Member J Allen
25 August 2016
GENERAL ADMINISTRATIVE REVIEW – where review of Queensland Building and Construction Commission to issue direction to rectify – where oral agreement – whether builder performed building work – where unpaid invoice – whether reasonable to issue direction to rectify.
Queensland Building and Construction Commission Act 1991 (Qld) ss 3, 72, 73, sch 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 17,19, 21, 24
Mr Keith Lyon
Ms K Stewart, in-house legal officer for the Queensland Building and Construction Commission
Mr Lyon was self-represented
The Queensland Building and Construction Commission appeared by an in-house legal officer
REASONS FOR DECISION
- Mr Lyons is a builder who has limited himself to building fences for many years. He performed fencing work at 80 Pioneer Drive, Kuraby and also became involved in the building of a deck at the property. The owners were not happy with the work and made a complaint to the Queensland Building and Construction QBCC (‘the QBCC’). The QBCC investigated the complaint and following a review of an initial decision not to issue a direction to rectify, issued a direction to rectify to Mr Lyon. He requested an internal review of that direction and a new direction to rectify was issued in respect of the fence and the decks. Mr Lyon has applied to the Tribunal to review the decision of the QBCC to issue the direction to rectify.
- The QBCC issued Mr Lyon with Direction to Rectify 40921 on 9 March 2015. The direction directed him to perform the following rectification work:
- The construction of the timber floor decking to the rear patio deck has not been installed in accordance with Timber Queensland Technical Data Sheet 13 in that two fixings have not been provided to every joist crossing and fixings of the decking joists have not been secured to the joists. Fixing within 1.00m of the pool edge have not been provided with stainless steel or monel metal fixings.
- The construction of the timber floor decking to the rear of the patio deck and adjacent the swimming pool has not been installed in accordance with AS1684 nor Timber Queensland Technical Data Sheet 13 in that there is not any support to the cantilevered section of the deck adjacent to the swimming pool. The construction of the deck adjacent the masonry piers has not been installed in accordance with AS3660.1 in that the termite barrier has been bridged.
- The installation of the timber posts is not in accordance with best industry practice, in that, the posts installed were not of sufficient length and the additional section provided to the top of the posts to support the fence members will not achieve adequacy for the design life of the fence.
- If the QBCC is of the opinion that the building work is defective or incomplete it may direct the person who carried out the building work to rectify the building work. Building work includes the erection of a fence and the extension or alteration of a building by adding a deck. The term defective is defined as building work that is faulty or unsatisfactory.
- In deciding whether to give a direction, the QBCC may take into consideration all of the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work. A person who carries out building work includes a building contractor by whom the building work was carried out. In this case, Mr Lyon alleges that at least some of the building work subject to the direction to rectify was not carried out by him. The QBCC is not required to give the direction if the QBCC is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
- Examples given in the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) as to why a direction to rectify would not be issued are that an owner refuses to allow a builder to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home. The objects of the QBCC Act include to achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.
- The QBCC has a defects policy entitled ‘Rectification of Building Work Policy’ (‘the policy’). In accordance with that policy, a building contractor who relevantly carries out category 1 defective building work should be required to rectify that work, unless in the circumstances rectification is unfair or unreasonable. Category 1 defective building work is defined in the policy as building work that is faulty or unsatisfactory because it does one or more of the following:
- adversely affects the structural performance of the building;
- adversely affects the health or safety of persons residing in or occupying a building;
- adversely affects the functional use of a building; and
- allows water penetration into a building.
- Defective building work is defined in the policy as building work that is faulty or unsatisfactory, and includes, for example, work that, does not comply with the Building Act 1975 (Qld), Building Code of Australia or an applicable Australian standard or involves the use of a manufactured product and that product has been used, constructed or installed in a way that does not comply with the product manufacturers instructions.
- The Tribunal has jurisdiction to review the decision of the QBCC to issue the direction to rectify upon application by Mr Lyon, as the builder subject to the direction. The Tribunal when reviewing a decision of the QBCC must decide the review and perform the functions conferred on the Tribunal by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) and the QBCC Act and has all the functions of the decision-maker for the reviewable decision. In effect, the Tribunal stands in the shoes of the decision-maker. The purpose of the reviewable decision is to produce the correct and preferable decision and the Tribunal must hear and decide a review by way of a fresh hearing on the merits. The role of the QBCC is to assist the Tribunal to make its decision on review and as part of that role the QBCC is to provide the Tribunal with a written statement of reasons. The Tribunal may confirm or amend the reviewable decision; set aside the reviewable decision and substitute its own decision or set aside the decision and return it to the decision-maker for reconsideration with the directions the Tribunal considers appropriate.
- The QBCC submitted that the issues for the Tribunal to determine in reviewing a decision of the QBCC to direct rectification are:
- Was the work building work?
- If so, was the work defective?
- Was Mr Lyon responsible for the building work?
- Was the decision of the QBCC to direct Mr Lyon to rectify the building work reasonable in the circumstances?
- I note that this is a fresh hearing on the merits so that it is appropriate for the last issue to be reframed as ‘(d) is it reasonable in all of the circumstances to issue a direction to rectify to Mr Lyon’. I will use those headings for the balance of the decision. There are two pieces of building work, the fence and the deck, and they will need to be treated separately as there are separate submissions in regard to them.
Was the fence building work?
- There was no formal contract in respect of the fencing work performed by Mr Lyon, only some handwritten quotes and invoices and the oral evidence. Mr Lyon submitted a document No 20 referring to a R/H side fence with 8 L/m at 1.8 and 17 L/m at 1.5 and a R/H return with gate 1.5 m and L/h return with gate 1.8 for a total of $4,415 with hardwood posts and dressed pine palings. There is a receipt No 20 dated 7 July 2014 for the R/h side, gate return and a sleeper seat (box) in the amount of $4,260, which is marked paid. There is a receipt No 23 dated 14 July 2014 fencing as quoted L/H side $3,000 ½ by you $1,500 gate returns 605, $2,105. This is also marked paid. There is a further document No 20, which includes make R/H side fence higher new gates returns to 1.8 m this is dated 25/7/14.
- The fence was made higher at the request of the owners and this was achieved by putting additional post on top of posts and boxed them in.
- The new work performed in regard to this first issue is therefore fence building. As mentioned earlier, building work includes the erection of a fence and so this work is building work.
Was the fence defective?
- Mr Aghababaie, the owner of the property, in his complaint to the QBCC of 10 November 2014 stated at Item 5 – 13/9/14 fencing palings not even.
- In his inspection report dated 3 December 2014, Mr Ferguson stated the following in regard to the fence:
- Item 5 – visual inspection noted that the gaps to the horizontal boards on the side timber fence was not even with the difference of the gaps between the boards of up to 6mm. It is my opinion that there may be some shrinkage differential to these boards which is not the fault of the licensee. It was also evident that the timber posts appear to have been installed too short and an additional piece was provided to the top to support the horizontal boards.
- Mr Ferguson’s evidence at the hearing was that the fence needs to be designed to withstand certain forces and the posts were nailed to the end grain and any wind forces would not be transferred to the post. This means that the fence articulates at the joints and the boxing is not designed by an engineer. The work could comply with an engineer’s certificate.
- Mr Lyon submitted that the fence tops are purely cosmetic and that they do not interfere with wind velocity of fence.
- I prefer Mr Ferguson’s evidence that the additional fence posts have not been properly secured to the original posts, which will affect the structural integrity of the fence. Mr Lyon did not obtain an engineer’s certificate to ensure that the work would not adversely affect the structure. I do not accept Mr Lyon’s evidence that the fence tops are purely cosmetic. They are an addition to the structure and he should have ensured that they were safe.
- I am satisfied that the right hand side fence is defective building work.
Was Mr Lyon responsible for the fence?
- The documentary evidence, as it is, shows that Mr Lyon built and was paid for the fences. Mr Lyon stated at the hearing that he built the fences but hey were not defective. I am satisfied that Mr Lyon is responsible for the fences.
Is it reasonable in the all of the circumstances to issue a direction to rectify to Mr Lyon in respect of the fence?
- Mr Lyon has raised issues about amounts outstanding in respect of the work he has performed for Mr and Mrs Aghababaie to show that it would not be reasonable to issue a direction to rectify. The original complaint shows a total contract sum of $14,365.00 with variations of $450.00 an amount of $10,500.00 having been paid leaving $3,865.00 outstanding. This corresponds with the total amount for the works set out in Document No 9 and the note signed by Mr Lyon confirming that he had been paid $10,500.00 by Mr Aghababaie. The total amount for the fences as set out in paragraph 11 above is $6,365.00 and the two invoices are marked paid.
- Therefore, in the case of the fences, the work has been paid for so there is no question that it is not reasonable to issue a direction in respect of the fence due to non-payment for Mr Lyon’s work.
- Mr Lyon indicates that he advised Mr and Mrs Aghababaie that if they wished to raise the fence he would need to replace the posts and that they did not want to incur extra costs. His solution was to raise the fence in the manner he has. He has done so without considering the wind affect on the stability of the fence and he is responsible to ensure that the fence is structurally sound.
Order in regard to fence.
- I am satisfied of all of the matters necessary to exercise the discretion in regard to the right hand side fence built by Mr Lyon and the direction to rectify 3 is confirmed.
Was the deck building work?
- The photographic evidence shows that there is a deck between the back of Mr and Mrs Aghababaie’s house and the pool. A deck is a fixed structure and therefore is a building and so the construction of the deck is building work.
Was the deck defective?
- Mr Hamid Aghababaie, the owner of the property, in his complaint to the QBCC of 10 November 2014 stated:
- Item 1 - deck around pool – noticed 13/9/14 - different colour sanded joins to make even when oiled deck not staining properly.
- Item 2 - deck around pool – noticed 12/9/14 – nails/screw sticky above wood.
- Item 3 – deck and pool supporting posts – noticed July August 2014 – joins uneven, deck uneven sloping, deck moving underfoot especially on edge of pool.
- Item 4 – 9/9/14 – gap at side of box on top of decking – screws not in right place.
- Mr Aghababaie in his evidence stated that the deck took 12 weeks to complete and was unusable because nails were sticking up, the wooden deck pieces would pop up one end, the deck would move under foot, it was uneven under foot, the sides above the pool were uneven and not attached very well as they came off more than once.
- Mr Ferguson in his review decision notes that:
The licensee further advised that there is an amount of $4,000.00 outstanding on the works. The owner indicated on the complaint form that an amount of $3,865.00 was outstanding. I have reviewed the Internal Review Unit inspection report dated 2 December 2014 and found that the estimated cost of the rectification of the defective building works to be approximately $5,000.00.
- Mr Ferguson’s in his inspection report dated 3 December 2014 stated the following in regard to the fence :
- Item 1 – I was not able to identify specific different colours to the timber decking.
- Item 2 – visual inspection noted that the decking has been installed with one fixing in the middle of each board. The fixings to the ends of the flooring boards have not been secured to the supporting floor joists with the result the boards are easily removed with slight pressure. Fixings have not been finished flush with the top of the boards with the fixings protruding approx. 2mm and may cause injury if stood on when traversing the deck. We were not able to confirm that fixings adjacent to the pool area were corrosive protected due to the proximity of the pool water.
- Item 3 – the visual inspection was not able to identify the supporting framework of the timber deck, however it was evident that there is substantial movement to the deck and in particular the cantilevered section over the swimming pool. We could not identify how the cantilevered section was supported nor secured adjacent to the pool. The deck was easily sagging when slight pressure was applied. The timber deck adjacent to the masonry piers has been installed directly against the piers and has bridged the termite barrier of the dwelling.
- Item 4 – we were not able to identify the issue at the inspection.
- Mr Ferguson was not asked any questions at the hearing by Mr Lyon in regard to whether or not the deck is defective.
- Mr Lyon stated at the hearing that if Mr and Mrs Aghababaie were not happy with the deck then why did they stain it and put a pool fence on top. Mrs Aghababaie in her evidence stated that the deck was stained four times to make it look a little better as she was ashamed of it. She stated that they had not used the deck since a piece of the deck came off in her sons hand with a large nail in it.
- Mr Ferguson has identified particular defects in the construction of the deck, which confirm the concerns expressed by the owners in regard to the structure of the deck and the safety issues in regard to the decking boards not being secure. Mr Lyon has not raised any evidence to show that the deck is not defective.
- I am satisfied that the deck is defective building work.
Was Mr Lyon responsible for the deck?
- Mr Lyon denies that he carried out the building work in respect of the deck. He states that he helped the owner Mr Aghababaie with the work. The documentary evidence includes invoice No. 26 from K Lyon dated 25 July 2014 for work at 80 Pioneer including drill holes deck posts and concrete in. Mr Lyon stated that he was not paid for this work. Mr Lyon stated that he picked up the decking for him, Mr Aghababaie, to save delivery costs for $4,000.00.
- Mr Aghababaie stated the only work he did to the deck was to attach spigots for the pool fence to the deck and attached the glass panels to the spigots. He also hammered down the nails that were sticking up out of the deck so his children, wife and him did not rip our feet.
- Mr Aghababaie states that he paid Mr Lyon $10,500.00 for fencing and decking around the pool. This was evidenced by a document signed by Mr Lyon. Mr Lyon confirmed at the hearing that he had signed this document and that it was correct. Order 09 also shows than amount of $8,000.00 for Deck and that $9,500.00 has been paid with a balance of $4,865.00. Mr Lyon claims that Order 9 was the total moneys to be paid not a receipt and that was before the deck had been build and fence made higher. Document 20 dated 6/14 shows back Deck $1,800.00. Mr Lyon also provided another breakdown of payments made which did not equate with other documents.
- At the hearing, Mr Lyon claimed he was only working for wages in respect of the deck as set out in a document he provided to the QBCC.
- Mr Lyon stated that while Mr Aghababaie claims he paid him $8,000.00 for the deck, he did not. Mr Lyon also stated that if he is ordered to fix the deck the $8,000.00 should be put in a trust account with the $3,800.00 still to be paid. Mr Lyon later confirmed that Mr Aghababaie did pay $4,000.00 for the decking wood.
- The homeowners and Mr Lyon were asked to provide a statement of contractual agreement in regard to the work, as there was no written contract. Mr Lyon described the work as “help with building deck”. He stated that there was no value for the contract and Mr Aghababaie had been responsible for the purchase of materials and supplies and that the value of those were Gill & Co $3,675.00 and Keith Lyon $750.00. He said that Mr Aghababaie was responsible for the day-to-day supervision of the work. The agreement provided by the home owners stated that the contracted work included “Deck around pool and deck on alfresco slab”. That the total value of the contract was $14,500.00 and neighbours $1,500.00. Payments made totalled $10,500.00 with Mr Lyon responsible for the purchase of material and day-to-day supervision.
- At the hearing, Mr Lyon confirmed that he had put the posts in for the deck in accordance with Mr Aghababaie’s plans and put rafters on concrete posts. He said he picked up the decking timbers, which had been selected by Mr Aghababaie. He said that the posts had been put in where Mr Aghababaie marked on the plan to avoid drilling through the pool pipes. That he and Mr Aghababaie had set out the job with his tape measure and Mr Aghababaie using his mobile phone as a calculator. He said he laid some bearers and put on some boards only. He said they took up the boards, which were laid because they did not like the gaps. He said he had stopped work because he wasn’t paid. Mr Lyon was shown a series of photos of a deck and denied that he had done the work set out in the photos.
- I note that when queried at the hearing as to how many decks he had constructed, Mr Lyon stated that he had built 10 or 12 decks over the years and this was in the context of him having worked in fencing and landscaping for 40 years.
- There are two major issues with the deck, which have been identified by Mr Ferguson. The first of these is the supporting framework for the deck. The second is the poor fixing of the decking timber. Mr Lyon stated that he had dug the posts for the deck in accordance with a plan provided by Mr Aghababaie. This plan showed where it was safe to drill having regard to the pipe work associated with the pool. It in no way represented the appropriate placement of the posts to support a deck. Mr Lyon has admitted that he did this work and I am therefore satisfied that he is responsible for it. I am also satisfied that Mr Lyon went out and purchased the decking timbers.
- I did not find Mr Lyon a particularly reliable witness and his claim that he was simply helping to build a deck is not borne out by the fact that he has done the substantial work of setting out the posts and concreting them in. The homeowners have denied that they were involved in the deck construction. Order 9 showed a lump sum amount for the deck of $8,000.00, I accept that this represented the amount for Mr Lyon to build the deck. Moreover, that document 9 was a receipt for part payment in respect of the work set out on it and that there is currently an amount of $3,865.00 outstanding for the work performed by Mr Lyon.
- I am satisfied that Mr Lyon is responsible for the building work in respect of the deck.
Is it reasonable in all of the circumstances to issue a direction to rectify to Mr Lyon in respect of the deck?
- As mentioned, Mr Lyon has raised issues about the amount outstanding in respect of the work he has performed for Mr and Mrs Aghababaie to show that it would not be reasonable to issue a direction to rectify. That is, the amount of $3,865.00, which the homeowners have acknowledged is unpaid. I am satisfied that the amount unpaid represents the work that was performed in respect of the deck as the fence work has been paid for as discussed above.
- Mr Ferguson, in his review decision, estimated the cost of rectification to the defective building works to be approximately $5,000.00. He considered that as the rectification amount exceeds the outstanding monies owed it was fair and reasonable to issue the direction. I would, in other circumstances, consider that where the amount of rectification only just exceeds the amount owed that it was not reasonable to issue a direction to rectify.
- In the circumstances here, though, where the deck is unsafe, I consider that the object of the QBCC Act requires that the balance between proper standards and the interests of consumers outweighs the interests of the building contractor. Mr Lyon can bring an application and pursue the homeowners in respect of the outstanding amount. This deck must be rectified and it is Mr Lyon who has performed the defective work and so it is reasonable to issue the direction to rectify to him.
Order in regard to the deck
- I am satisfied of all the matters necessary to exercise the discretion in regard to the deck built by Mr Lyon and the directions to rectify 1 and 2 are confirmed.
 Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’), s 72(1)(a), s 72(2).
 Ibid, sch 2.
 Ibid, s 72(3).
 Ibid, s 72(5).
 Ibid, s 3(a)(ii).
 Ibid, s 3(b).
 Exhibit 4 at 17-20.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), s 17; QBCC Act, s 86, s 87.
 QCAT Act, s 19.
 Ibid, s 20.
 Ibid, s 21.
 Ibid, s 24.
 Exhibit 1.
 Exhibits 15.
 Exhibit 3 at .
 Ibid, at -.
 Ibid, at .
 Ibid, at .
 Ibid, at -.
 Ibid, at .
 Exhibit 6, at .
 Exhibit 3, at .
 Ibid, at -.
 Exhibit 1, at .
 Exhibit 5, at .
 Exhibit 1, at .
 Exhibit 6, at -.
 Ibid, at .
 Ibid, Annexure 2.
 Exhibit 3, at .
 Ibid, at .
- Published Case Name:
Lyon v Queensland Building and Construction Commission
- Shortened Case Name:
Lyon v Queensland Building and Construction Commission
 QCAT 296
25 Aug 2016