Goldfield Projects Pty Ltd v Queensland Building and Construction Commission
[2017] QCAT 295
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- Unreported Judgment
- Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 295
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Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 295
Goldfield Projects Pty Ltd v Queensland Building and Construction Commission[2017] QCAT 295
CITATION: | Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 295 |
PARTIES: | Goldfield Projects Pty Ltd (Applicant) |
v | |
Queensland Building and Constuction Commission (Respondent) | |
APPLICATION NUMBER: | GAR213-15 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Deputy President O'Callaghan |
DELIVERED ON: | 29 August 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – where applicant applied for production of documents – whether production should be ordered |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Goldfield Projects Pty Ltd (Goldfield) seeks to review a decision of the Queensland Building and Construction Commission (QBCC) as to the scope of works to be undertaken under the QBCC statutory insurance scheme to rectify defects at a property built by Goldfield in 2012.
- [2]The dispute between Goldfield and QBCC has some history.
- [3]Following a complaint by the owner concerning defective work, the QBCC issued a direction to rectify, requiring Goldfield to rectify two items:
- The installation of the tiling to the floor of the shower recess to the ensuite bathroom does not comply with The Building Code of Australia 2011 Volume 2 Clause P2.4.1 wet areas as the installation has failed allowing the tiles to become drummy and water to be expressed from between the tiles when pressure is applied affecting the functional use of the shower and endangering the health and safety of the occupants – pertains to item 1 on the BSA complaint form; and
- The installation of the tiling to the floor of the bathroom does not comply with The Building Code of Australia 2011 Volume 2 Clause P2.4.1 wet areas as the installation failed allowing the tiles to became drummy and loose and the grout to fail affecting the functional use of the bathroom and endangering the health and safety of the occupants – pertains to item 2 on the BSA complaint form.
- [4]Goldfield sought a review of that decision in the Tribunal (proceeding GAR460-13).
- [5]Prior to that review being determined, the QBCC engaged Sergon Building Consultants (Sergon) to provide a scope of works to rectify the defective works. Sergon provided a scope of works which was approved by the QBCC.
- [6]The QBCC also approved a subsequent variation to the scope of works.
- [7]Goldfield applied to review the scope of works in September 2015 (these proceedings).
- [8]In October 2016, the Tribunal delivered a decision in proceeding GAR460-13.[1]
- [9]The Tribunal confirmed the decision to issue the direction to rectify and varied the scope of the direction to rectify to include replacing the waterproofing.
- [10]Goldfield has filed an application in these review proceedings for miscellaneous matters seeking various orders from the Tribunal.[2]
- [11]I dismissed part of that application seeking an order for site access. I delivered reasons for that decision on 31 July 2017.[3]
- [12]The other orders sought by Goldfield related to the production of documents by the QBCC and the rectifying builder and for orders around the appointment of experts.
- [13]A directions hearing was held on 20 July where I heard arguments from Goldfield’s representative (Mr Chan) and the QBCC in relation to the production of documents.
- [14]This decision relates to that part of the miscellaneous application.
- [15]Goldfield seeks production of the following documents from the QBCC, as identified in the application:
- Scope of works report by Sergon Building Consultants;
- Tender documents for rectification work carried out;
- All tenders received for the rectification work;
- Inspection report from QBCC for the completion of rectification;
- Inspection report from QBCC for the approval of variation work;
- Photo records before and after the rectification;
- Invoice and payment evidence of the rectification work to the builder who undertook the rectification works, Robert Markus Patterson;
- QBCC insurance payment record for the additional rectification work conducted by builder Robert Markus Patterson; and
- Completion certificate including waterproofing certificate and form 4 of any plumbing works which had been carried out by Robert Markus Patterson.
- [16]At the hearing it was determined that documents referred to in items a, b, c, d, and e, (to the extent that they exist), have already been provided to Goldfield.
- [17]In relation to (f) (photo records before and after rectification), the representative from the QBCC advised that all photos, to the best of her knowledge, had been provided, however, she agreed to undertake a search of the QBCC records and if any further photos were found then they would be provided.
- [18]In relation to (g) (invoice and payment records to the rectifying builder), the QBCC representative said that it was unlikely that the QBCC had copies of any invoices from the rectifying builder but that they may have progress payment claims from the owner. Whilst disputing the relevance of these documents she agreed that if those documents were in the possession of the QBCC they would be provided to Goldfield.
- [19]As to (h) (the QBCC insurance payment record for the additional rectification work conducted by the builder), the QBCC disputes the relevance of any such documents to this review.
- [20]It became apparent during the directions hearing that Mr Chan’s concerns are, to some extent, based on his suspicion that “additional works” beyond the scope of works relating to the rectification of defects were carried out by the rectifying builder at the QBCC’s (and perhaps ultimately his) expense.
- [21]The issue for consideration in this review is whether the scope of works (prepared by Sergon Building Consultants) is reasonable and necessary to rectify the defective works. The works were confirmed as defective in the Tribunal’s decision in GAR460-13.
- [22]Mr Chan was unable to articulate what he believed the “additional works” were.
- [23]The QBCC representative outlined to the Tribunal that payments had been made under the insurance policy for the amount approved in accordance with the accepted tender to complete the scope of works. These amounts are recorded in the documents from Sergon, which were included in the documents already provided to Goldfield.
- [24]In the absence of any details from Goldfield as to the “additional work”, it is difficult to identify any documents that the QBCC may have which are relevant to that “additional work”.
- [25]Further, I am not convinced of the relevance of Mr Chan’s concerns to the issue of whether the scope of works (as identified in the documents disclosed) was necessary and reasonable to rectify the defects which are particularised in the direction to rectify.
- [26]I therefore refuse the application for an order for the production of documents sought in item (h).
- [27]As to (i) (the completion certificate and form 4 for plumbing works carried out by the rectifying builder), Mr Chan’s concern here appears to be whether certain works identified as necessary in the scope of works were in fact carried out.
- [28]Whilst it might be a tenuous link to the issues for consideration in this review, it may be arguable that if the works identified in the scope of works were not completed then they were not in fact necessary.
- [29]If the QBCC has the documents sought they should be produced.
- [30]Mr Chan has also sought orders for the production of documents from the rectifying builder. The builder has no notice of this application. Some of the documents sought are also sought from the QBCC.
- [31]It is preferable to see whether, after the documents to be provided by the QBCC are provided (or confirmed not to exist), it is still necessary to require the rectifying builder to produce any outstanding relevant documents.
- [32]I order that the QBCC provide the documents, to the extent that they exist, outlined in paragraph 3(g) and (i) of the application for miscellaneous matters within 14 days.
- [33]It is appropriate to list this matter for a directions hearing following a receipt of those documents to determine the next steps to be taken in this matter.