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Hiettecorp Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 105

Hiettecorp Pty Ltd v Queensland Building and Construction Commission[2018] QCAT 105

CITATION:

Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105

PARTIES:

Hiettecorp Pty Ltd ATF Hiette Unit Trust

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR295-16

MATTER TYPE:

Building matters

HEARING DATES:

21 July 2017 and 27 October 2017

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

6 April 2018

DELIVERED AT:

Townsville

ORDERS MADE:

  1. The decision of the Queensland Building and Construction Commission dated 24 October 2016 to issue a direction to rectify within the meaning of section 72 of the Queensland Building and Construction Commission Act 1991 to Hiettecorp Pty Ltd ATF Hiette Unit Trust is confirmed.
  1. The Applicant’s application is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK –  where owner claims defective building work – where Queensland Building and Construction Commission makes decision to issue a direction to rectify to the contractor – where contractor sub-contracted to a third party to install a solar hot water system – where subcontractor assessed roof to be structurally sound – where subcontractor did not possess qualifications to make that assessment – where subcontractor did not possess qualifications to install – finding of structural defective building work – whether decision to issue a notice to rectify defects was unreasonable

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where Applicant has the responsibility to abide by the Building Code – where Applicant seeks to abrogate those responsibilities to the home owner through the terms and conditions of a contract

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 71I, s 72(1),    s 72(2), 72(3), s 72(5), s 86A and Schedule 2

Queensland Civil Administrative Tribunal Act 2009 (Qld), s 19(c), s 20(1), s 20(2), s 21(1) and           s 24(1)

Fontain v QBSA [2004] QCCTB 163

Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127

Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 042

APPEARANCES:

APPLICANT:

Mr Christopher Hiette

RESPONDENT:

Ms Emily Roberts (Solicitor), Robinson Locke Litigation Lawyers

REASONS FOR DECISION

INTRODUCTION

  1. [1]
    The Applicant is Hiettecorp Pty Ltd ATF Hiette Unit Trust (“the Applicant”) which operates the business Apollo Solar.  Mr Christopher Hiette is a principal of that company.  The Respondent is the Queensland Building and Construction Commission (“the QBCC”).  
  1. [2]
    On 21 August 2015, the Applicant and Shaun Iwaszczyn (“the home owner”) entered into a contract for the installation of a 300 litre solar hot water system onto the roof of his home. 
  2. [3]
    The home owner’s home is a colourbond steel shed.  The Applicant then engaged Ricky Skeene (“Mr Skeene”) from Skeene Plumbing & Gas Fitting to install the solar hot water system.  On 24 August 2015, Mr Skeene travelled to the home owner’s premises and installed a solar hot water system. 
  1. [4]
    On 18 July 2016, the QBCC received a complaint from the home owner about the solar hot water system.  On 25 July 2016 the QBCC carried out an inspection of the work undertaken by Mr Skeene to install the solar hot water system.  On 24 October 2016 a direction to rectify a defect was given to the Applicant.[1]  The Applicant seeks to review that decision.    

THE LEGISLATIVE PATHWAY

  1. [5]
    The objects of the Queensland Building and Construction Commission Act 1991 (“QBCC Act”) are inter alia to regulate the building industry; to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers.  The objects also provide for remedies for defective building work, as well as the provision of support, education and advice to consumers and to those that undertake building work.[2]
  1. [6]
    If the QBCC is of the opinion that building work is defective[3] or incomplete, the QBCC has the authority[4] to exercise its discretion and direct the person who carried out the building work to rectify the building work.[5]  In deciding whether to issue a direction to rectify, the QBCC may take into consideration all the circumstances it considers are reasonably relevant.[6] 
  1. [7]
    For the QBCC to issue a direction to rectify to the Applicant, the QBCC had to be satisfied that –
  1. (a)
    There was building work involved;
  2. (b)
    The building work was defective and/or incomplete;
  3. (c)
    The Applicant is responsible for that work; and
  4. (d)
    In all the circumstances, a discretion should be exercised to issue the Applicant a direction to rectify.
  1. [8]
    By the QBCC exercising its discretion to issue a direction to rectify, the Applicant applied to the Queensland Civil Administrative Tribunal (“the Tribunal”) for a review of that decision.[7]
  1. [9]
    In undertaking a review and carrying out its functions, the Tribunal’s purpose is to reach the correct and preferable decision.[8]  In reaching that point, it may either confirm nor amend the QBCC’s decision; or set aside the decision and substitute it for its own decision; or set aside the decision and return the matter for reconsideration to the QBCC with a direction that the Tribunal considers appropriate.[9]
  1. [10]
    The role of the QBCC in a review hearing is to use its best endeavours to assist the Tribunal to reach the correct and preferable decision.[10]  The nature of the review hearing is by way of a fresh hearing on the merits[11] and in undertaking its responsibilities, the Tribunal has all the functions of the decision maker who made the reviewable decision.    

THE HOT WATER SYSTEM AND THE BUILDING

  1. [11]
    The solar hot water system installed on the roof of the home owner’s steel shed consisted of a 300 litre capacity storage tank.  Providing the water tank was full, the weight specifications for a system of that size is 400 kilograms.  An additional 82 kilograms is then added to that weight for the solar collector and a further eight kilograms is added for the pipe kit.  That brings the total weight of the solar hot water system to 490 kilograms.[12] 
  1. [12]
    The building upon which it was installed was a colourbond steel shed.  In the specifications for that shed, the design loading for the roof stipulated that the structural component for the roof should not carry any other weight, other than its own weight. 
  1. [13]
    That is, the specifications for the steel shed do not provide for a hot water system with the combined weight of 490 kilograms being installed on the roof of that shed.  It is therefore understandable that the shed is not classified as being structurally sound enough to take the weight of the solar hot water system on the roof.[13]

THE APPLICANT’S CASE

  1. [14]
    On 21 August 2015, the Applicant and the home owner entered into a contract for the installation of the solar hot water system.  The Applicant did not go to the home owner’s premises to carry out an inspection.  Instead, the Applicant opted to email a copy of a quote to the home owner.[14]
  1. [15]
    In the quote, it was indicated that the contract will not cover any remedial work as the result of existing deficiencies in the building where the solar hot water system was to be installed.  The quote also suggested that the home owner should inspect the Applicant’s webpage for further terms and conditions.  The Applicant relied upon those terms and conditions, in particular Part 1.8. 
  1. [16]
    What Part 1.8 of the terms and conditions indicated was an expectation of the home owner to undertake his own investigations, at his own cost, into the ability of the roof of his steel shed to carry the weight of the solar hot water system.  It also suggests that prior to the Applicant commencing the installation of the solar hot water system, the home owner was required to engage a qualified and licensed structural engineer to carry out the investigation.  It goes on to indicate that by the home owner accepting the installation booking date, the Applicant will presume that this investigation had been completed by the home owner. 
  1. [17]
    It is observed that notwithstanding the drafting of Part 1.8, the installation of the solar hot water system took place only three days after an agreement was reached between the Applicant and the home owner.   

Mr Skeene

  1. [18]
    To carry out the installation of the hot-water system, the Applicant engaged Skeene Plumbing & Gas Fitting.  The Principal of that business was Ricky Skeene (“Mr Skeene”).  Mr Skeene went to the home owner’s premises on 24 August 2015 to install the solar hot water system.   
  1. [19]
    Mr Skeene has over 14 years’ experience in the field of plumbing and gas fitting.  He is a qualified and licenced plumber and holds a plumber drainer ticket, his gas fitting license as well and the associated QBCC licence for his business, which he has operated for nine years.  In operating his own business, he had only installed a small number of hot water systems.
  1. [20]
    Mr Skeene does not have any engineering qualifications, and at the time of the installation of the solar hot water system, he did not have the authority under his license to undertake that installation.  It has only been since the installation that he has taken steps to upgrade his licence to allow him to install solar hot water systems.  
  1. [21]
    Mr Skeene said that he carried out an assessment of the roof for an appropriate location for the installation.  His found no presence of, or noticeable adverse indications in the building’s structure.  That is, his assessment was that the roof could carry the weight of the solar hot water system.   
  1. [22]
    The installation instructions require the solar hot water system to be installed as close to the centre of the apex of the roof as practical, with the system’s frame designed to be fixed to a minimum of two roof batons. 
  1. [23]
    The roof batons must be continuous over not less than three rafters or trusses.  Mr Skeene said that the roof battens satisfied the minimum thickness gauge and he was of the view that this type of shed could not be sold unless it was cyclone rated as a Category 3. 
  1. [24]
    By following the criteria mentioned above, Mr Skeene’s assessment of the roof led him to be satisfied that the installation could be carried out on the roof.  He saw no evidence to suggest that the building was incapable of holding the weight of the solar hot water system. 
  1. [25]
    Significantly, Mr Skeene said that he did not seek the advice of an engineer or a qualified certifier as to whether the roof was suitable to have the solar hot water system placed upon it.[15]  He said that he was satisfied with his own inspection and evaluation of the structural integrity of the roof.
  1. [26]
    What Mr Skeene was telling the Tribunal was that he travelled to the home owner’s premises, he was there for the day to install the solar hot water system.  Even though he felt that his own assessment of the roof was sufficient, he did not ask the home owner for a copy of the plans for the steel shed to confirm that the roof could take the weight of the solar hot water system.  He said that it was not his normal practice to ask a home owner for a copy of the plans, particularly when he has been contracted by another company, such as the Applicant, to undertake an installation.[16]          
  1. [27]
    Mr Skeene revisited the home owner’s premises on 29 November 2016.  On that occasion, he saw that the system was still functioning as it was designed to do.  Despite the solar hot water system having been installed for well over twelve months, the roof structure showed no physical signs of stress under the weight of the solar hot water system.
  1. [28]
    Mr Skeene conceded that the installation of the hot water system must be undertaken by a qualified person and in accordance with the installation instructions and the Building Code.  He further conceded that at the time of undertaking the installation of the hot water system, he did not have the qualifications to install the hot water system.   
  1. [29]
    It seems that it was only Mr Skeene who inspected the building.  Both the Applicant and Mr Skeene say that there was no engineering assessment undertaken as to the structural soundness of the roof to hold the weight of the hot water system.  In addition, Mr Skeene was not suitably qualified to inspect and certify whether or not the shed was structurally sound enough to take that weight. 
  1. [30]
    What the Tribunal was being told was that the Applicant was not responsible for the defect in the installation of the solar hot water system because it had passed on this responsibility to the home owner through the terms and conditions of the contract.  The Applicant says that the responsibility to ensure that the building was structurally sound enough to carry the weight of the solar hot water system rested with the home owner.  I will return to this point later in these reasons at [41] to [50]. 

ISSUES CONSIDERED

  1. [31]
    In reviewing the Respondent’s decision, the are four issues for the Tribunal to determine.  They are: –
  1. (a)
    Was the installation of the solar hot water system building work?
  2. (b)
    Was the Applicant the relevant person who carried out the building work?
  3. (c)
    Was the installation of the solar hot water system defective?
  4. (d)
    Should discretion be exercised to issue a direction to the Applicant?

Was the installation of the solar hot water system work building work?

  1. [32]
    The Tribunal was required to examine whether the work carried out by the Applicant was building work.  Building work is defined in the QBCC Act[17] to include the provision of water supply in connection with the building. 
  1. [33]
    There is no dispute between the parties that the work complained about was the installation of a solar hot water system onto the roof of a steel shed and the purpose for the installation was to provide the supply of hot water to the premises.  Therefore, I am satisfied that the installation of the solar hot water system is building work.

Was the Applicant the relevant person who carried out the building work?

  1. [34]
    The evidence is that the Applicant was contracted to install a solar hot water system onto the roof of a colourbond steel shed occupied by the home owner.  The Applicant then arranged for Mr Skeene to travel to the home owner’s address and install the solar hot water system.
  1. [35]
    Although the Applicant did not actually carry out the building work, by contracting Mr Skeene to undertake the installation he directly caused the building work to be carried out.[18]  Therefore, I am satisfied that the Applicant is the relevant person who carried out the building work. 

Was the installation of the solar hot water system defective?

  1. [36]
    Defective work is defined within the QBCC Act to include building work which is faulty or unsatisfactory.[19] 
  1. [37]
    There was a requirement for the solar hot water system to be installed in accordance with the manufacturer’s instructions and the Building Code.  That requirement also extends to the installation being carried out by a suitably qualified person, in accordance with the installation guidelines. 
  1. [38]
    I am of the view that it is the responsibility of the person undertaking the installation to ensure that the structural integrity of the building was not compromised by the weight of the solar hot water system and the roof of the steel shed could carry that weight.[20]  
  1. [39]
    The solar hot water system installed on the building had a combined weight of 490 kilograms.  The building upon which the system was installed was a colourbond steel shed.  The building specifications for the shed stipulated that the structural component of the roof should not carry any other weight other than its own weight.[21]  Unsurprisingly, the specifications for the steel shed do not provide for a solar hot water system with the combined weight of 490 kilograms being installed onto the roof. 
  1. [40]
    Having regard to the weight of the solar hot water system and the building specifications of the steel shed, I am satisfied that because the roof of the steel shed was not structurally sound enough to take the weight of the hot water system, the installation was faulty or unsatisfactory and therefore in my opinion, defective.

Should discretion be exercised to issue a direction to the Applicant?

  1. [41]
    If all the circumstances are known to the QBCC at the time the decision is being made, the QBCC is not required to give the direction to rectify if it is satisfied that it would be unfair to the Applicant for that direction to be given.[22] 
  1. [42]
    The Applicant told the Tribunal that he relied the terms and conditions of the contract, in particular where it indicated that the Applicant would not cover any remedial work as the result of existing deficiencies in the building where the solar hot water system was to be installed. 
  1. [43]
    Notwithstanding the terms and conditions of any contract, a builder or contractor has the responsibility to abide by the legislation and the Building Code.[23]  There is a general expectation by consumers that builders and contractors will undertake those responsibilities.  A consumer not only relies upon the builder or contractor to adhere to their responsibilities, but also relies upon the knowledge, experience and expertise of the builder or contractor.
  1. [44]
    As already indicated, the Applicant places significant reliance upon the terms and conditions of the contract, in particular Part 1.8 which provides that: –

Unless specifically mentioned as an inclusion in the contract for work, any existing building deficiency (or potential upgrade required) to the structural integrity a building, is to be completed by the owner, prior to commencement of work. Apollo Solar expect that the owner of the building, conduct their own investigations (at their own cost) into the ability of their structure to carry the weight of the equipment being installed, with a qualified and licensed structural engineer, prior to work commencing. By the owner accepting, the installation booking date, Apollo Solar are making the presumption that this investigation has been completed prior to commencement and will proceed on this knowledge. Apollo Solar will be forthcoming with any product specifics, should they be requested, for this process to occur.[24]

  1. [45]
    It is noted that the Applicant relies upon an unfairness proposition because the home owner did not undertake his own due diligence as provided for in Part 1.8 of the terms and conditions of the contract. 
  1. [46]
    A builder or contractor cannot abrogate their responsibilities and obligations and pass them to a consumer, because if that responsibility or obligation was allowed to pass to the consumer, then that would fly in the face of the objects of the QBCC Act. 
  1. [47]
    I am not convinced that the alleged failure of the home owner to adhere to the terms and conditions of the contract absolves the Applicant from the responsibilities of applying knowledge, experience and due diligence to the installation of the solar hot water system. 
  1. [48]
    Notwithstanding the Applicant seeking to rely upon Part 1.8 of the terms and conditions, I am of the view that the responsibility to ensure that the roof of the home owner’s steel shed had the structural integrity to withstand the weight of a solar hot water system rests with Applicant.  There remains an onus upon the Applicant to ensure that the method of installation of the solar hot water system complied with the requirements of the installation specifications and the Building Code. 
  1. [49]
    I am also of the view that Mr Skeene’s assessment, and therefore also the Applicant’s assessment, of the structural integrity of the roof of the steel shed and the method of installation was flawed and did not comply with those requirements.
  1. [50]
    Having regard to all the facts, circumstance and evidence, I am satisfied that the QBCC’s decision to exercise its discretion to issue the Applicant with notice to rectify the defect was the correct and preferable decision. 

ORDERS

  1. [51]
    The Orders of the Tribunal are –
  1. The decision of the Queensland Building and Construction Commission dated 24 October 2016 to issue a direction to rectify within the meaning of section 72 of the Queensland Building and Construction Commission Act 1991 to Hiettecorp Pty Ltd ATF Hiette Unit Trust is confirmed.
  2. The Applicant’s application is dismissed.

Footnotes

[1]The QBCC’s Statement of Reasons (“SOR”) at SOR-8.

[2]Queensland Building and Construction Commission Act 1991, s 3.

[3]Queensland Building and Construction Commission Act 1991, Schedule 2 – Dictionary defines the term “defective” means building work which is faulty or unsatisfactory. 

[4]Subject to the Queensland Building and Construction Commission Act 1991, s 72.

[5]Queensland Building and Construction Commission Act 1991, s 72(2) and (4).

[6]Queensland Building and Construction Commission Act 1991, s 72(3).

[7]Queensland Building and Construction Commission Act 1991, s 86A.

[8]Queensland Civil Administrative Tribunal Act 2009, s 20(1).

[9]Queensland Civil Administrative Tribunal Act 2009, s 24(1).

[10]Queensland Civil Administrative Tribunal Act 2009, s 21(1).

[11]Queensland Civil Administrative Tribunal Act 2009, s 20(2).

[12]Exhibit 4.  See page 24 of the owner’s guide and installation instructions for the hot water system.

[13]Exhibit 6.  QBCC’s statement of reasons at page 40.

[14]Exhibit 1 at page 2.  CONTRACT OF WORK.

[15]Transcript of Proceedings at page 1-57, lines 38 – 46.

[16]Transcript of Proceedings at page 1-59, lines 30 – 41. 

[17]Queensland Building and Construction Commission Act 1991, Schedule 2 – Dictionary.

[18]Queensland Building and Construction Commission Act 1991, s 71I.

[19]Queensland Building and Construction Commission Act 1991, Schedule 2 – Dictionary.

[20]Applicant’s BOD Rheem Installation Guidelines at page 27.

[21]QBCC’s SOR at page 40.

[22]Queensland Building and Construction Commission Act 1991, s. 72(5).

[23]Fontain v QBSA [2004] QCCTB 163 applied in Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127 at [13] and Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 042 at [62].

[24]Exhibit 1 at page 12.  1.8 Integrity of Building and/or Material, Equipment Installation Location.

Close

Editorial Notes

  • Published Case Name:

    Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland Building and Construction Commission

  • Shortened Case Name:

    Hiettecorp Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2018] QCAT 105

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    06 Apr 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Fontain v Queensland Building Services Authority [2004] QCCTB 163
2 citations
Jump To
Cite 1 - [2004] QCCTB 163
Cite 2 - [2004] QCCTB 163
Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127
2 citations
Jump To
Cite 1 - [2012] QCAT 127
Cite 2 - [2012] QCAT 127
Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42
2 citations
Jump To
Cite 1 - [2014] QCAT 42
Cite 2 - [2014] QCAT 42

Cases Citing

Case NameFull CitationFrequency
ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 3862 citations
Walker v Queensland Building and Construction Commission [2021] QCAT 322 citations
1

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