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Cantamessa v Queensland Building and Construction Commission[2019] QCAT 268

Cantamessa v Queensland Building and Construction Commission[2019] QCAT 268

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Cantamessa v Queensland Building and Construction Commission [2019] QCAT 268

PARTIES:

TYRON GUISEPPI CANTAMESSA

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR053-17

MATTER TYPE:

Building matters

DELIVERED ON:

5 September 2019

HEARING DATE:

2 August 2018; 3 August 2018

HEARD AT:

Mackay

DECISION OF:

Member Quinlivan

ORDERS:

  1. The decision of the QBCC made on 30 January 2017 to issue Direction to Rectify No 0101527 is set aside.
  2. There is no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – Direction to Rectify – defective work – final completion – unfair termination – repudiation

Queensland Building and Construction Commission Act 1991 (Qld)

Domestic Building Contracts Act 2000 (Qld) (repealed)

R v His Honour Judge Miller and the Builder’s Registration Board of Queensland, ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446

Imperial Homes (Qld) Pty Ltd v QBCC [2014] QCAT 42

De Luchi v QBSA [2002] QBT Q223-01

Birrell v QBSA [2013] QCAT 56

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

APPEARANCES & REPRESENTATION:

Applicant:

J P Mould of Counsel, instructed by Kelly Legal

Respondent:

S Hedger, solicitor of HWL Ebsworth Lawyers

REASONS FOR DECISION

  1. [1]
    The Applicant seeks the following Orders:
    1. a)
      A declaration that the works, the subject of the Direction to Rectify and/or Complete No. 0101527 (the Direction) were not defective;
    1. b)
      Further or in the alternative a Declaration that any defective works referred to in the Direction were not the responsibility of the Applicant.
    1. c)
      An order that the Direction be set aside;
    1. d)
      Costs.
  2. [2]
    The Queensland Building and Construction Commission (‘QBCC’) seeks that the Tribunal confirms the QBCC’s original decision to issue a Direction to Rectify.

Background

  1. [3]
    In February 2014, the Applicant entered into a QBCC contract with Oliver Sabu and Rasmi Nair (‘the Homeowners’) to carry out an extension and renovations to their existing dwelling in Mackay. The works were ‘building works’ within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld).
  2. [4]
    The works commenced around 29 April 2014 and under the contract, the original date for practical completion was 211 calendar days from the date on which the works commenced.
  3. [5]
    During July 2015, as part of the QBCC’s dispute resolution process, the QBCC carried out an Early Dispute Resolution Inspection at the property. The Dispute Outcome Agreement provided that:
    1. (a)
      The dwelling was to be completed by the end of business on Friday 31 July 2015;
    2. (b)
      Handover would occur on Monday, 3 August 2015; and
    3. (c)
      Final payment would occur in accordance with the terms of the Contract.
  4. [6]
    The works were not completed by 31 July 2015.
  5. [7]
    On 10 August 2015, a certifier, David Brookes, attended the property, conducted a final inspection and identified that the following works had to be addressed before a final certificate would be granted:
    1. (a)
      Fit termite stickers to sub-board and kitchen cupboard;
    2. (b)
      Install mid posts to deck for wire balustrades;
    3. (c)
      Reduce gap on internal stairs to 125 mm or less; and
    4. (d)
      Supply certificates as per decision notice.
  6. [8]
    On 10 August 2015, the Applicant was advised by the Homeowner’s solicitors that they had elected to terminate the Contract pursuant to section 90(1)(b) of the Domestic Building Contracts Act 2000 (Qld) (now repealed).
  7. [9]
    On 14 August 2015 the Applicant issued his final tax invoice to the Homeowners in the amount of $58,500. On 20 August 2015, the Applicant’s solicitors gave notice to the Homeowners that the Applicant considered that they had repudiated the contract.
  8. [10]
    On 25 October 2016 the Applicant’s solicitors advised the Homeowner’s solicitors of his express acceptance of the Homeowner’s repudiation.
  9. [11]
    The Applicant’s final tax invoice remains unpaid.
  10. [12]
    The Applicant was paid a total of $331,500 by the Homeowners under the contract, being approximately 85% of the total contract price.
  11. [13]
    Between 31 August 2015 and 14 March 2017 there were a series of inspections of the property and notices issued by QBCC to the Applicant.
  12. [14]
    On 31 August 2015 following a complaint by the Homeowner, Mr John Cherry, on behalf of QBCC conducted an inspection of the works at the property. In attendance were the Applicant, the Homeowners and Mr Malcolm Hull from Master Builders. This Report dealt with 213 complaint items.
  13. [15]
    On 8 September 2015, QBCC issued the Applicant with an Initial Non-Completion Inspection Report. The Report described the relevant defect complained of as ‘Home Incomplete’.
  14. [16]
    On 28 October 2015 following another inspection by Mr Cherry, QBCC issued the Applicant with an Amended Initial Non-Completion Inspection Report.
  15. [17]
    On 3 November 2015, QBCC issued the Applicant with a Final Initial Non-Completion Inspection Report.
  16. [18]
    On 3 occasions, being 21 January 2016, 14 June 2016 and14 September 2016, QBCC advised the Applicant that the Homeowner had complained about ‘defective work’ and ‘incomplete building work’ and that QBCC was proceeding against the Applicant with a claim.
  17. [19]
    At the same time QBCC issued the Applicant with a ‘Scope of Works’ in the form of a  Report from Sergon Building Consultants Pty Ltd (‘Sergon’) dated 19 January 2016, an amended ‘Scope of Works’ dated 31 May 2016 and a ‘Revised Scope of Works’ dated 16 August 2016.
  18. [20]
    It is common ground[1] that Sergon carried out inspections of the property for the purposes of preparing their Reports in the presence of the Homeowners. The Applicant was not informed of the inspections and did not attend them.
  19. [21]
    On 29 September 2016, QBCC issued the Applicant with a Direction to Rectify and/or Complete No. 42342 pursuant to section 72(2) of the QBCC Act requiring 14 items of defective or incomplete building work to be rectified.
  20. [22]
    On 25 January 2017, QBCC issued a Review Notice and Technical Advice outlining the results of an Adapted Internal Review Application. The Internal Review decided as follows:
    1. (a)
      The Contract was not properly terminated by the Homeowners at the default of the Applicant on 10 August 2015;
    2. (b)
      Items 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 of the Direction to Rectify No. 42342 were defective and a Direction to Rectify should be issued;
    3. (c)
      The Applicant should not be directed to rectify item 1 of the Direction to Rectify No. 42342 because there was insufficient evidence that the Applicant was responsible for the damage; and
    4. (d)
      The Revised Scope of Work dated 16 August 2016 was not approved.
  21. [23]
    On 30 January 2017, QBCC issued the Applicant with a Direction to Rectify and/or Complete No. 0101527 requiring 11 items of defective or incomplete building work to be rectified. This Final Direction was received by the Applicant on 7 February 2017.
  22. [24]
    Following receipt of the Final Direction, the Applicant wrote to the Homeowner on 15 February 2017 requesting the release of all keys to the Property so that he could attend to the items of defective and incomplete work in the Final Direction.
  23. [25]
    The Applicant sought access to the Property at 7.00am on 17 February 2017 but was advised by the Homeowner as follows:
  1. Due to prescheduled commitments the earliest time that access could be provided was 11.15am;
  2. Access was to be during working hours on standard business days only;
  3. The Applicant had to list what was planned to be carried out on 17 February 2017, including details of all the persons and contractors that would be attending;
  4. The Applicant had to submit a work method statement of all the work that was going to be carried out and how the rectification of the issue would be achieved; and
  5. The rectification procedure had to be pre-approved by a structural engineer, prior to commencement of any demolition/rectification.
  1. [26]
    On 7 March 2017 the Applicant filed an Application in the Tribunal seeking a review of the decision by the QBCC to issue the Direction to Rectify and/or Complete, No 0101527 on 3 grounds:
    1. a)
      The Applicant has been denied natural justice and procedural fairness by the QBCC and accordingly the decision made by the QBCC to issue the direction was invalid and the Direction is void;
    1. b)
      The decision to issue the Direction was unfair, having regard to the amount owing to the Applicant; and
    1. c)
      The works are not defective works.
  2. [27]
    On 14 March 2017 the Applicant applied to the Tribunal for an external review of the decision to issue the Final Direction.
  3. [28]
    On 1 December 2017, a ‘Joint Statement of Agreed Facts, Facts in Issue and Issues for the Tribunal's determination’ was filed pursuant to Directions made by the Tribunal on 18 July 2017.
  4. [29]
    The Applicant contends that the only incomplete works at the property were those things identified by the Inspector (Certifier David Brookes) at the time of the final inspection on 31 August 2014 and at the time that the Homeowners purported to terminate the contract namely:
    1. a)
      Fit termite stickers to sub-board and kitchen cupboard;
    1. b)
      Install mid-posts to deck for wire balustrade;
    1. c)
      Reduce gap on internal stairs to 125mm or less; and
    1. d)
      Supply certificates as per decision notice.
  5. [30]
    The QBCC acknowledges that the work was approximately 85% complete as at the date of the Homeowner’s purported termination of the contract. The QBCC considers that the incomplete work was not ‘minor defects and omissions’ but was genuinely incomplete work preventing practical completion from being granted.
  6. [31]
    The Tribunal notes that the Initial Non-Completion Report was undertaken on 31 August 2015.[2] In the Report dated 28 October 2018, Mr John Cherry concluded:

The Commission has investigated the dwelling and found a mixture between defective building work and work which is not defective as it is classified as incomplete building work.

Section 72 of the Queensland Building and Construction Commission Act 1991 gives inspectors the power to issue a direction to rectify defective building work. That section also gives inspectors power not to issue a Direction to Rectify if it is not fair or reasonable to do so. As the owner is retaining $58,000 and the dwelling has been deemed 90% practically complete, it is the opinion of the inspector that the owner is retaining sufficient funds to remedy any defective building work performed by Tyron Cantamessa.

  1. [32]
    Mr Cherry did not give evidence at the Hearing.

Issues for determination

  1. [33]
    The parties agree[3] that the issues to be determined are:
    1. (a)
      Was the work building work?
    2. (b)
      Was the building work defective?
    3. (c)
      Was the building work carried out by the Applicant?
    4. (d)
      Is it unfair to direct the Applicant to rectify the building work in the circumstances?
  2. [34]
    The parties agree that issues (a) and (c) are not contested.
  3. [35]
    ‘Building work’ is defined in Schedule 2 of the QBCC Act.
  4. [36]
    Section 72 of the QBCC Act deals with the QBCC’s power to require rectification of building work. It provides that if the QBCC is of the opinion that the building work is defective or incomplete, the QBCC may direct the person who carried out the building work to rectify the building work within the period stated in the Direction.
  5. [37]
    In deciding whether to give a Direction, the QBCC may take into consideration all 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.
  6. [38]
    The QBCC is not required to give a Direction, if it is satisfied that, in the circumstances, it would be unfair to the person to give the Direction.
  7. [39]
    As an  example, the Act states that:

The Commission might decide not to give a Direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of the defective building work carried out on the home.

  1. [40]
    The QBCC may before it considers whether building work is defective or incomplete, require the consumer for the building work to comply with a process established by the QBCC to attempt to resolve the matter with the person who carried out the work.
  2. [41]
    There were 11 items of work carried out by the Applicant that were alleged to be defective and that the Applicant had been directed to rectify according to Direction to Rectify and/or Complete No. 010527.

Issue 1: Is the Building work defective?

  1. [42]
    The term ‘defective’ is defined in Schedule 2 of the QBCC Act to mean ‘in relation to building work, includes faulty or unsatisfactory.’ This definition is applied in the QBCC Rectification Policy, which gives as examples of ‘faulty or unsatisfactory’ work that does not comply with the Building Act 1975 (Qld), the Building Code of Australia or an applicable Australian Standard. Whether or not work is defective is to be ascertained objectively.[4]

Alleged Defect 1 – Installation of the structural floor framing to bedroom 4, the rumpus room, entry foyer, dining room, kitchen pantry and stairwell doorway

  1. [43]
    QBCC submits that this alleged defect relates to complaint items 16. 22, 32, 36, 43 and 199 in the Initial Non-Completion Inspection Report dated 28 October 2015. QBCC alleges that the Applicant failed to install the structural floor framing in accordance with AS 1684.3 – 2010 Residential Timber Framed Construction – Cyclonic Areas.
  2. [44]
    QBCC submits that a survey carried out by RPS Group on 26 July 2016[5] confirmed that significant height discrepancies were present throughout the first floor level. For example, RPS Group found that a 20 mm variance existed between two locations within the living room floor.
  3. [45]
    QBCC referred to the Standards and Tolerances Guide (current as May 2014) but acknowledged that it had not been released at the time of the contract in this matter but submitted that it is reasonable to expect that some tolerance shall be applied when considering the levelness of the floor.
  4. [46]
    QBCC submits that the Applicant’s photographic evidence[6] does not show that the floor area was level.
  5. [47]
    In answer the Applicant gave evidence that he checked the evenness of the floor using straight edge levels, a laser level as well as string lines.
  6. [48]
    He points out that Mr Matthews who gave evidence for the QBCC is not a surveyor, and neither Mr Hull nor Mr Cherry were called to give evidence.
  7. [49]
    The Applicant submits that the evidence relied on by QBCC was based upon documentation prepared by or for the QBCC more than a year after the date of practical completion.[7] Further, the Applicant contends that ‘Reliance upon the Standards and Tolerances Guide as a yardstick against which the Applicant’s measurements are to be compared is unfair because it was only released in May 2014 subsequent to the Contract.’[8]
  8. [50]
    In all the circumstances, the Tribunal is not satisfied that the evidence demonstrates that the installation of the structural floor framing to bedroom 4, the rumpus room, entry foyer, dining room, kitchen pantry and stairwell doorway was defective.

Alleged Defect 2 – Installation of the glass splashback in the kitchen

  1. [51]
    QBCC considered that the glass splashback had not been completed in accordance with acceptable building practices, as the paint to the rear of the splashback was scratched, resulting in a visual defect.
  2. [52]
    QBCC maintained that this is a category 2 defective building work in that it is faulty or unsatisfactory because it does not meet a reasonable standard of construction or finish expected of a competent builder.
  3. [53]
    QBCC says that the home owner’s inspection is not relevant. QBCC argues that to expect a level of inspection that identifies all defects ignores reality.
  4. [54]
    However, the Applicant submits that the ‘reality’ with respect to this particular item is that, on the day of the purported termination of the contract there is photographic evidence that shows the completed kitchen with its protective linings and surface coverings in place.
  5. [55]
    The Applicant strongly asserts that on 15 July 2015, the homeowners created a list of more than 200 items of alleged defective or uncompleted work which included an unrelated issue with the splashback, namely ‘7.2 splashback effect, wrong side of the class painted and damaged paint’, but made no reference to this particular issue. The homeowner’s list provides a comprehensive and sophisticated list of purported incomplete or defective work.
  6. [56]
    Therefore, the Applicant submits that any scratches to the rear of the splashback are likely to have resulted from the homeowner’s own actions.
  7. [57]
    In this case, the Tribunal is not satisfied that any alleged damage to the glass splashback in the kitchen is the result of any action by the Applicant.

Alleged Defect 3 - Installation of timber surrounds (reveals and/or architraves) to the windows in the shower area of the ground floor and first floor bathrooms

  1. [58]
    QBCC contends that the timber surrounds to the windows in the shower areas of the bathrooms were not completed in accordance with the Building Code of Australia because the material is not appropriate to restrict moisture movement and will degrade under normal use conditions.
  2. [59]
    QBCC states that the Applicant agreed at the hearing that the shower area was required to be water resistant to a height of not less than 1800mm above the finished floor level of the shower. Further AS3740 – 2010 ‘Waterproofing of domestic wet areas’ requires waterproofing within a 1,500 mm splashes zone from the shower rose.
  3. [60]
    QBCC submits that the Applicant gave evidence that the fixed shower head was located within 1,500 mm of the top of the timber reveal, but as the showerhead does not turn it will not, in the Applicant's opinion cause any water to be splashed on to the reveals. QBCC argues that the Applicant’s interpretation of the standard is not reasonable.
  4. [61]
    QBCC points out that Mr Matthews maintained his position that the reveal was not adequately waterproofed in accordance with AS/NZS 4858-2004 and submits that this was corroborated by Mr Jaremus.
  5. [62]
    Likewise, the Applicant also maintained his position that the timber was waterproofed before the paint was applied. He submitted that Mr Matthews conceded in cross-examination that it was possible that there was waterproofing under the finished paint. Further, Mr Matthews did not attend the site and there was no evidence of Mr Matthews or Mr Jaremus actually measuring the shower area.
  6. [63]
    The Tribunal is satisfied that the installation of timber surrounds (reveals and/or architraves) to the windows in the shower area of the ground floor and first floor bathrooms was the responsibility of the Applicant and did not comply with the provisions of the BCA.

Alleged defect 4 - Installation of the interface between the window and the external wall of the dwelling to the western side of the garage

  1. [64]
    QBCC submits that the interface was not completed in accordance with the BCA because the gap between the underside of the window and the block work was not adequately sealed, resulting in a finish which is not to the standard expected of a qualified and competent tradesperson and provides an unacceptable risk of water ingress and a subsequent deterioration of the building elements.
  2. [65]
    QBCC referred to BCA Vol 2, Part 2.2.2 which states:

…a roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause –

a.unhealthy or dangerous conditions or loss of amenity for occupants; and

b.undue dampness or deterioration of building elements.

  1. [66]
    QBCC asserts that Mr Matthews gave evidence that ordinary building practice dictates that rubber strips can be used when the window is flush with the cladding, but here the window was set back into the block work and therefore water could penetrate from underneath the strip as can be seen in the photograph included at complaint item 149 in the initial non-completion inspection report dated 28 October 2015.
  2. [67]
    The Applicant gave evidence that to comply with the BCA, windowsills should be angled to deflect water and be fully sealed. Further the Applicant gave evidence that a rubber seal was used on the window in question and in his opinion that was adequate to seal and weatherproof the window.
  3. [68]
    Mr Matthews agreed that there was no evidence of any water ingress in any of the photos produced to the Tribunal. Mr Matthews stated that ‘given the nature of the installation, water ingress would be occurring however it may not have yet appeared as resultant damage internally’ and:

…in any case the defect… does not have to have resulted in water ingress during the period where both structural and non-structural defects are considered to be the responsibility of the licensee.[9]

  1. [69]
    Based on the evidence as presented the Tribunal is not satisfied that the installation of the interface between the window and the external wall of the dwelling to the western side of the garage constitutes ‘defective’ work.

Alleged defect 5 - Installation of the building elements at the junction of the external walls of the dwelling and the garage door

  1. [70]
    QBCC submits that the building elements at the junction of the external walls of the dwelling and the garage door were not completed in accordance with acceptable building practice as the door fouls on the doorjamb, which has resulted in damage at the interface of the door and the wall of the building. QBCC argues that the installation is not to a standard expected of a qualified and competent tradesperson.
  2. [71]
    QBCC points out that the Applicant acknowledged that under the contract he was responsible for supplying and installing the garage door. Further, the Applicant agreed that the garage door was defective when it was installed because it was installed with the incorrect screws causing the door to bind.
  3. [72]
    The Applicant argues that the photographic evidence shows that the garage doors were completed in accordance with acceptable building practice. He argues that it was agreed between the homeowners and him that the homeowners would use their own contractor to install the door. He states that there was a ‘verbal contract’ that varied the written contract and that he paid the homeowners to engage their own contractor to supply and install the garage door.
  4. [73]
    He contends that Mr Matthews proceeded to include the garage door as a defect on the basis that there was no contractual variation.
  5. [74]
    QBCC points out that the Applicant did not record a variation in writing contrary to section 40 of schedule 1B of the QBCC Act. As a result, QBCC submits that the Tribunal has only the Applicant’s word that the contract was varied to remove this work from the Applicant's scope of work.
  6. [75]
    While the evidence regarding this issue is unsatisfactory, the Tribunal accepts the evidence of the Applicant that the installation the garage door was the responsibility of the homeowners as a result of an undocumented agreement between the Applicant and the homeowners and is not the responsibility of the Applicant.

Alleged defect 6 - Installation of the structural framing to the external wall below the deck area

  1. [76]
    QBCC submits that the structural framing to the external wall below the deck area was not completed in accordance with the Standards and Tolerances Guide and accepted building practice because the frames overhang the slab edge by up to 30 mm resulting in inadequate transmission of loads through the load-bearing building elements which in turn has detrimentally affected the structural stability of the dwelling.
  2. [77]
    QBCC points out that the Applicant accepted there was an overhang of approximately 10 mm at the internal corner where a packing block is shown holding up the sill of the wall.
  3. [78]
    QBCC submitted that Mr Matthews gave evidence that the rest of the length of the wall in question (not above the packing block) suffered from an overhang of approximately 20 mm according to the second photograph that was included at complaint item 42 in the initial Non-completion Inspection Report dated 28 October 2015.[10]
  4. [79]
    QBCC argues that the Standards and Tolerances Guide – Part 4.11 Bottom plates that overhang concrete slabs relevantly states:

Bottom plates that are at least 90 mm wide and overhanging concrete slabs by in excess of 15 mm are defective and bottom plates that are 70 mm wide and overhang slabs by an excess of 10 mm are defective.

  1. [80]
    Consequently, the QBCC maintains that the structural framing to the external wall below the deck area was defective because the extent of the overhang (at least in the area not above the packing block) was beyond the industry accepted tolerances at the time (being the same as what is in the standards and tolerances guide).
  2. [81]
    The Applicant submits that the wall framing adheres to the QBCC’s Standards and Tolerances Guide (although he argues that the Guide does not apply retrospectively) and is compliant with acceptable building practice based on the building inspections. He submits that all the framing and post bases are well within the perimeter of the slab edge and do not overhang the slab.
  3. [82]
    The Tribunal is not satisfied on the basis of the evidence presented that the installation of the structural framing to the external wall below the deck area is defective work.

Alleged defect 7 - Installation of the ground floor slab at the perimeter of the ground floor bathroom

  1. [83]
    QBCC submits that the ground floor slab at the perimeter of the ground floor bathroom has not been completed to a standard reasonably expected of a competent tradesperson in that the slab edge has not been finished to a flush line with the existing walls resulting in a visually unacceptable finish.
  2. [84]
    QBCC relies on the Standards and Tolerances Guide – part 2.4 External Building Dimensions which states:

…within the first 12 months from completion of the work, departures from documented external dimensions of buildings are defects if they exceed L/200 where L is the documented overall length of the wall or 5 mm whichever is the greater and such deviation adversely affects the safe use all reasonable amenity of the building.

  1. [85]
    QBCC submits that the Applicant agreed that the parameters set out in the standards and tolerances guide (L/200) had been exceeded, but that the Applicant maintained that the deviation did not affect ‘the safe use or reasonable amenity of the building’.
  2. [86]
    QBCC contends that the Applicant gave two conflicting versions for the cause of the overhang to the effect that:
    1. (a)
      the overhang was due to the incorrect type of toilet being supplied by the homeowners requiring the toilet to be installed in a different location to that originally planned; and
    2. (b)
      the Applicant could not have cut back the slab edge so that it was finished flush in line with the existing walls because there were pipes protruding from the walls.
  3. [87]
    QBCC argues that Mr Matthews gave evidence that a reasonably competent contractor could have cut back the slab edge so that it was finished flush in line with the existing walls using an angle grinder, notwithstanding the pipes that were protruding from the wall. QBCC conceded that Mr Matthews also agreed with the Applicant that based on the photographic evidence available to him, he could see no safety issue with the deviation. By contrast Mr Jaremus gave evidence that the sharp edge of the overhanging concrete was a potential safety issue.
  4. [88]
    The Applicant submitted that the area in question is not an area of human traffic and is in a location involving pipes extruding from the building in any event. He contends that any overhang was as a result of the Homeowners’ demand that the Applicant install a toilet in a different location to that originally planned.[11]
  5. [89]
    In these circumstances, the Tribunal is not satisfied that the installation of the ground floor slab at the perimeter of the ground floor bathroom constitutes defective work.

Alleged defect 8 - Roof framing to the dwelling

  1. [90]
    QBCC submits that the roof framing to the property was not completed in accordance with the fixing requirements of AS 1684.3 Residential Timber Framed Construction – Cyclonic Areas as there were insufficient tiedowns which had detrimentally affected the structural stability of the dwelling which presents an unacceptable risk to the health and safety of the building's occupants in the event of a cyclone event.
  2. [91]
    QBCC acknowledged that it relied largely upon the findings of Mr Cornell who determined that both major and minor roof truss tiedown connections had not been installed appropriately, or at all.[12]
  3. [92]
    QBCC acknowledged that Mr Cornell did not have a copy of the Mackay truss and timber engineering report dated 17 December 2013 at the time of his inspection, nor did he have a copy of the Mackay Truss and Timber Engineering report dated 3 May 2016. As a result, he inspected the roof framing for compliance with AS 1684.3 and good engineering practice.
  4. [93]
    QBCC challenged the way that certain evidence was adduced by the Applicant and that any comments made by Mr Cornell at the hearing in respect of a particular photo should be given minimal weight by the Tribunal.
  5. [94]
    The Applicant submits that Mr Cornell did not have the engineering drawings that were relied on by the Applicant, but an Engineering Report dated 3 May 2016, prepared 9 months after the contract was terminated. The Applicant gave evidence that he complied with all tiedown requirements.
  6. [95]
    The Tribunal is not satisfied, based on the available evidence, that the roof framing to the dwelling is defective.

Alleged defect 9 - Installation of the masonry subfloor areas of the dwelling

  1. [96]
    QBCC argued that the installation of the masonry subfloor areas of the dwelling was not completed in accordance with the BCA because the area was not suitably ventilated, nor did it have evenly spaced ventilation openings resulting in an unacceptable risk of dampness and undue deterioration of the building elements.
  2. [97]
    QBCC submitted that, at the hearing, the Applicant agreed that only one vent had been constructed to the southern side of the sub-floor. QBCC argued that the Applicant had stated that there were no openings depicted on the construction drawings in the first place and in any event this access opening was large enough to allow adequate ventilation.
  3. [98]
    As a result, QBCC contended that the Applicant accepted that he did not comply with the construction drawings when he constructed that the sub floor area. QBCC maintained that this was not sufficient to facilitate a ‘crossflow’ as required by the BCA volume 2, part 3.4.1.2 sub floor ventilation.
  4. [99]
    The Applicant gave evidence that nowhere on the building plan was there any place to cross ventilate, supported by the plans. Therefore, the Applicant argued that this was a responsibility of the homeowners.
  5. [100]
    The Tribunal finds that the work associated with the installation of the masonry subfloor areas of the dwelling is defective because it does not comply with the BCA.

Alleged defect 10 - Installation of the structural floor framing to the external upper-level deck

  1. [101]
    QBCC submits that the installation of the structural floor framing to the external upper-level deck was not completed in accordance with the project engineer’s requirements as undersized members were used, resulting in a reduction in the structural stability of the structure.
  2. [102]
    In this respect QBCC acknowledged that it had relied upon the findings of Mr Cornell who determined that the deck floor framing was not installed in accordance with the engineer’s drawings.[13]
  3. [103]
    In particular QBCC pointed out that the floor joists and bearers of the deck had been run at longer spans and at an opposite direction to that shown on the engineer’s drawings. Also, the joists had been installed with a cantilever which was not shown in the approved plans.[14]
  4. [104]
    QBCC pointed out that the Applicant acknowledged that the deck floor framing had not been installed in accordance with the engineer’s drawings. The Applicant asserted that amended drawings had been prepared but they were not put before the Tribunal by the Applicant. Further there was no evidence from any engineer certifying the new plan.
  5. [105]
    Therefore, the QBCC submits that in effect the Applicant seeks to have the Tribunal rely upon the Applicant's opinion as to the correct engineering approach, despite not having any qualifications in this regard. The Applicant argued that he had built a deck that was structurally superior to that which was proposed by Mr Cornell because it had more joists and bearers.
  6. [106]
    The Applicant submitted that in the matter of Imperial Homes (Qld) Pty Ltd v QBCC the Tribunal stated:

It is not absolute that a builder be liable to rectify defects even though he was following architects or other professionals’ plans or directions… An experienced builder, who follows plans that it knows or could reasonably be expected to know, is in error, cannot nevertheless just slavishly follow the plan, but is expected to exercise good construction practice.[15]

  1. [107]
    The Applicant claimed that he used hardwood of a F17 quality which is above the minimum requirement resulting in greater structural stability as confirmed by building inspections.[16]
  2. [108]
    The Tribunal is not satisfied on the evidence provided that the installation of the structural floor framing to the external upper-level deck constitutes defective work.

Alleged defect 11 - installation of the waterproofing to the lower-level retaining wall adjoining the rumpus room

  1. [109]
    QBCC submits that the installation of the waterproofing to the lower-level retaining wall adjoining the rumpus room was not completed in accordance with the BCA, because the wall did not prevent the ingress of water into the habitable parts of the dwelling, resulting in a potential for undue dampness and deterioration of the building elements and an undue risk to the health and safety of the occupants of the building.
  2. [110]
    QBCC points out that the BCA volume 2, part 2.2.2 Weatherproofing states:

A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause-

a.Unhealthy or dangerous conditions or loss of amenity for occupants; and

b.Undue dampness or deterioration of building elements.

A building is constructed to provide resistance to moisture from the outside and moisture rising from the ground.

  1. [111]
    QBCC claims that the Applicant gave evidence that waterproofing had been applied to the lower-level retaining wall adjoining the rumpus room and that he would ordinarily expect such waterproofing to last for up to 100 years.
  2. [112]
    Further the Applicant stated that the waterproofing could only fail if the drainage points were blocked or removed, which the Applicant believed was the case here because when he returned to the site in 2016 he could not locate the drainage pipes that he had installed.
  3. [113]
    Mr Jaremus gave evidence that during his inspections of the property on 13 and 23 November 2015, 18 February 2016 and 21 April 2016, the drainage pipes in the photographs tendered by the Applicant were all still visible.
  4. [114]
    Mr Matthews gave evidence that if the water proofing system had been adequate the retaining wall should not have leaked, even if the drainage pipe was blocked or missing which was not admitted, Mr Matthews stated that although this could damage the waterproofing system ‘over time’ the waterproofing should still hold up for a while.
  5. [115]
    QBCC maintained that a suitably installed and approved retaining wall should remain water tight within the first six years and three months of completion of the dwelling. In this case the waterproofing failed after less than 12 months.
  6. [116]
    The Applicant submits that his photographic evidence shows that the waterproofing had been installed in accordance with code P2.22.[17] He submits that any water ingress would be as a result of the homeowners’ failure to properly maintain their property. He submits that his photographs show the drain pipe leading from the retaining wall in situ. He alleges that those pipes were absent when he attended the premises subsequently.
  7. [117]
    The Tribunal finds that the evidence does not establish that the installation of the waterproofing to the lower-level retaining wall adjoining the rumpus room constitutes defective work.

Conclusion as to whether the Building work is defective

  1. [118]
    Counsel for the Applicant submitted that QBCC bears an onus to establish that the works that are the subject of these proceedings were defective. However, QBCC rightly points out that this is a merits review of an administrative decision.[18]
  2. [119]
    QBCC submits that the Tribunal stands in the shoes of the QBCC as the decision-maker to make the ‘correct and preferable’ decision and must hear and decide the review by way of a ‘fresh hearing on the merits’.
  3. [120]
    The Tribunal has previously held[19] that the QCAT Act does not place an onus of proof on a party in such proceedings to establish facts or make out a case for review. However, as the decision maker the QBCC must use its ‘best endeavours to help the Tribunal so that it can make its decision’.[20]
  4. [121]
    In summary the findings of the Tribunal are:
    1. (a)
      The installation of the structural floor framing to bedroom 4, the rumpus room, entry foyer, dining room, kitchen pantry and stairwell doorway was not defective.
    2. (b)
      Any alleged damage to the glass splashback in the kitchen is not the result of any action by the Applicant.
    3. (c)
      The installation of timber surrounds (reveals and/or architraves) to the windows in the shower area of the ground floor and first floor bathrooms was the responsibility of the Applicant and did not comply with the provisions of the BCA.
    4. (d)
      The installation of the interface between the window and the external wall of the dwelling to the western side of the garage does not constitute “defective” work.
    5. (e)
      The installation the garage door was the responsibility of the homeowners as a result of an undocumented agreement between the Applicant and the homeowners and is not the responsibility of the Applicant.
    6. (f)
      The installation of the structural framing to the external wall below the deck area is not defective work.
    7. (g)
      The installation of the ground floor slab at the perimeter of the ground floor bathroom does not constitute defective work.
    8. (h)
      The roof framing to the dwelling is not defective.
    9. (i)
      The work associated with the installation of the masonry subfloor areas of the dwelling is defective because it does not comply with the BCA.
    10. (j)
      The installation of the structural floor framing to the external upper-level deck does not constitute defective work.
    11. (k)
      The installation of the waterproofing to the lower-level retaining wall adjoining the rumpus room does not constitute defective work.
  5. [122]
    Therefore, the Tribunal is satisfied that Items 3 and 9 constitute defective work.

Issue 2: Is it unfair to direct the Applicant to rectify the building work in the circumstances?

  1. [123]
    Taking into account its findings with respect to the alleged defective work, the Tribunal must decide whether it is appropriate to issue a Direction to Rectify.
  2. [124]
    Section 72 of the QBCC Act deals with the power to require rectification of building work. QBCC submits that in deciding whether or not to give a Direction to Rectify, it may take into consideration all the circumstances that it considers reasonably relevant.[21]  Further it is not required to give a Direction to Rectify, if it is satisfied that, in the circumstances, it would be unfair to give the Direction.[22]
  3. [125]
    The exercise of the discretion under section 72 must not be based on arbitrary notions of justice or fairness but must be exercised in accordance with accepted principles.[23]
  4. [126]
    QBCC acknowledged that the Applicant claims that it would be unfair to issue a direction in these circumstances because of the following matters:
    1. (a)
      His final tax invoice remains unpaid by the Homeowner;
    2. (b)
      QBCC’s agent, Sergon, carried out a number of inspections without the Applicant being present;
    3. (c)
      QBCC issued a number of differing Scope of Work Reports between 21 January 2016 and 14 September 2016; and
    4. (d)
      The Homeowner failed to allow the Applicant reasonable access to the property to carry out any rectification.
  5. [127]
    QBCC argued that it is generally only considered unreasonable to direct rectification where the monies outstanding under the relevant contract exceed the cost to rectify the defects or incomplete work. 
  6. [128]
    QBCC refers to the Tribunal decision in Birrell v QBSA [2013] QCAT 56 where the learned Member stated:

It is difficult to imagine a scenario in which it would seem reasonable for a home owner to pay a bill to the full contract price when faced with a refusal to rectify alleged defects that are later confirmed as defects by the authority.

  1. [129]
    QBCC acknowledged that the Initial Non-Completion Inspection Report dated 28 October 2015 states at page 110 that ‘the owner is retaining sufficient funds to remedy any defective building work performed by the Tyron Cantamessa’[24] but submits that this statement does not suggest that the Homeowner was retaining more than the cost to remedy the defective work and it does not appear to take into account the incomplete works.[25]
  2. [130]
    In this regard, QBCC states that in July 2016, it was informed by its agent, Sergon, that the cost to rectify all the defective work at the property would be between $194,480 and $298,019.50 and the cost to complete the incomplete work at the property ranged from $96,291.80 two $266,739 (in total a cost between $300,000 and $500,000).
  3. [131]
    On this basis QBCC submits that it was not unreasonable to direct rectification.
  4. [132]
    QBCC concedes that its agent, Sergon carried out site inspections without the Applicant being present. QBCC contends that this is irrelevant to the determination of whether it was unfair to give the Direction to Rectify because  the purpose of the inspections by Sergon was to assist QBCC with its assessment of the homeowners claim under the Statutory Insurance Scheme and to prepare a Scope of Work to rectify the defective work, not to decide if the Applicant was to be directed to rectify defective building work.
  5. [133]
    On the contrary, the Tribunal finds that it is not reasonable for the QBCC to now seek to rely on the Sergon Report in support its decision to issue the Notice to Rectify.
  6. [134]
    The Tribunal notes that QBCC strongly denies any suggestion that it has favoured the homeowner's interests over those of the Applicant or that a perception of bias has arisen. QBCC submits that it has properly considered the objects of the QBCC Act in deciding to issue the Direction to Rectify. The Tribunal makes no finding with respect to these matters.
  7. [135]
    QBCC challenges the Applicant's suggestion that the homeowner refused the Applicant access to the property to rectify the defects and argues that this does not support a finding by the Tribunal that it was unfair to issue a Direction to Rectify.
  8. [136]
    QBCC says that:
  1. a)
    The homeowner informed the Applicant on 16 February 2017 approximately one week after the Applicant received the Direction to Rectify that the Applicant could have access to the property to perform the rectification works;.[26]
  1. b)
    The Applicant attended the property on 17th February 2017 at about 11:30am, but only remained on-site for approximately 20 minutes;.
  1. c)
    In these circumstances QBCC contends that the Applicant's allegation that the homeowner did not allow the Applicant access to the property for the purposes of rectifying defects is disingenuous; and.
  1. d)
    In QBCC's view, the access granted to the Applicant by the Homeowner was not unreasonable.
  1. [137]
    In the circumstances of this dispute, the Tribunal is not satisfied that the homeowner has acted reasonably by imposing extra conditions on the Applicant’s access to the property.
  2. [138]
    The Applicant argued passionately that the decision to issue a Direction to Rectify was unfair. He claims that there was unfairness in the QBCC’s conduct leading up to the issue of the Direction to Rectify and in their conduct during these proceedings.
  3. [139]
    The Applicant claims that the QBCC has breached its own Policy by including 4 alleged defects in the Direction to Rectify that were non-structural and were included after the expiry of the 12-month period allowed for in the Policy.
  4. [140]
    The Applicant submits that the QBCC has failed to act as a Model Litigant by failing to provide statements or testing inconsistencies in the allegations against the Applicant from a number of persons mentioned in the proceedings. In particular, he argued that the 2 Review officers, Jonathan Pacey and Tiffany Barber did not accept responsibility for testing other witnesses, considering that was a task for the technical adviser Gregory Matthews.
  5. [141]
    The Applicant submits that it was significant that none of these people ever attended the building site and were entirely reliant on information from other parties to make an ‘informed decision’. The Applicant contends that in those circumstances it is probable the party providing information to the QBCC did not provide all of the relevant facts required and that their perception of the facts will be coloured giving rise to a perception of bias.
  6. [142]
    The Applicant points to the possibility that contrary evidence was not made available because at least three potential witnesses being Mr Brooks, Mr Cherry and Mr Hull did not give evidence.
  7. [143]
    The Applicant also submitted that the conduct of the homeowner in imposing additional conditions on the Applicant with respect to any rectification work was entirely unreasonable in the circumstances because the Applicant wished to identify the defects before rectifying them. He claimed that he did not suspend the works. The homeowners changed the locks of the premises and took possession of the site on 10 August 2015 when they were not entitled to do so under the contract.[27]
  8. [144]
    Further on 17 February 2017 the homeowners refused to give the keys to the Applicant. instead the homeowners ultimately permitted access but subject to strict conditions[28] as follows:
  • 11:15 am being the earliest commencement time
  • Access during standard business hours
  • A list of planned rectification and have who would be attending
  • A work method statement
  • Preapproval by a structural engineer
  • The homeowner being present.
  1. [145]
    The Applicant testified that he was only allowed one hour when he was permitted onto the property.
  2. [146]
    The Applicant continued to maintain that practical completion had been reached on or before 10 August 2015 but that the Applicant has not been paid for the practical completion stage in an amount of $58,500 and there is no evidence of any intention to pay that amount by the homeowner. The Applicant submits that the QBCC’s own documents show that they considered the amount being retained to be sufficient to allow the homeowners to rectify any alleged defects.

Is it unfair to direct the Applicant to rectify the building works?

  1. [147]
    These proceedings came about following a unilateral decision by a homeowner to take possession of his property after a dispute with his builder.
  2. [148]
    This dispute occurred at a time when the builder was approaching the completion of the contract for the building. There are various matters in dispute as to the events that occurred at that time.
  3. [149]
    It is clear that the Applicant sought payment of the amount of $58,500 on the basis that the property had reached Practical Completion. There is disagreement between the parties around whether the contract was repudiated by the homeowner and that the repudiation was accepted by the Applicant.
  4. [150]
    There is an issue as to whether the homeowner was being unreasonable in placing conditions on the Applicant’s access to the property to undertake any rectification work.
  5. [151]
    The discretionary power to issue a Direction to Rectify derives from s 72 of the QBCC Act that provides that:

if the Commission is of the opinion that building work is defective or incomplete, the Commission may direct the person who carried out the building work to rectify the building work within the period stated in the Direction.

  1. [152]
    Further, s 72(14) provides that:

The Commission is not required to give a Direction under this section to a person who carried out building work for the rectification of the building work if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

  1. [153]
    In considering whether it would, in the circumstances of this case, be unfair to issue a direction, it is relevant to consider the Objects of the legislation. The Objects, relevantly, include ‘to achieve a reasonable balance between the interests of building contractors and consumers’[29].
  2. [154]
    In the Tribunal’s view, it was unreasonable to issue a Direction to Rectify because
    1. (a)
      The Applicant’s final tax invoice remains unpaid;
    2. (b)
      The Applicant was not informed of the inspections and was not given an opportunity to attend them.
    3. (c)
      There was considerable uncertainty surrounding the approach taken by the QBCC.
  3. [155]
    On 30 January 2017, QBCC issued the Applicant with a Direction to Rectify and/or Complete No. 0101527 requiring 11 items of defective or incomplete building work to be rectified. This Final Direction was received by the Applicant on 7 February 2017.
  4. [156]
    Following receipt of the Final Direction, the Applicant wrote to the Homeowner on 15 February 2017, requesting the release of all keys to the Property so that he could attend to the items of defective and incomplete work in the Final Direction.
  5. [157]
    On 7 March 2017, the Applicant filed an Application in the Tribunal seeking a review of the decision by the QBCC to issue Direction to Rectify and/or Complete, No 0101527 on 3 grounds:
    1. (a)
      The Applicant has been denied natural justice and procedural fairness by the QBCC and accordingly the decision made by the QBCC to issue the direction was inappropriate;
    2. (b)
      The decision to issue the Direction was unfair, having regard to the amount owing to the Applicant; and
    3. (c)
      The works are not defective works.
  6. [158]
    There was a clear disconnect between QBCC agreeing that the building was 85% completed and the amount subsequently identified to undertake rectification and complete the works between $300,000 and $500,000.
  7. [159]
    In the Tribunal’s view the decision by the QBCC to issue a Direction was unfair because of the failure by QBCC to clearly identify the purpose of the inspections by Sergon to assist QBCC with its assessment of the homeowner’s claim under the Statutory Insurance Scheme rather than to prepare a Scope of Works to rectify the alleged defective work and to decide if the Applicant ought to be directed to rectify the alleged defective building work.
  8. [160]
    In the Tribunal’s view, even if it was to find that the work was defective and that, therefore, the pre-conditions to the exercise of the discretion to issue the Direction had been met, it would unfair to issue a Direction in these circumstances.
  9. [161]
    While an important object of the legislation is to maintain building standards, an equally important objective is to achieve a reasonable balance between the interests of building contractors and consumers.[30]
  10. [162]
    In the Tribunal’s view, the objective of the maintenance of building standards is not compromised by not issuing a Direction in the circumstances of this dispute. Conversely, issuing a Direction would not be striking a reasonable balance between the Homeowner and the Applicant. 
  11. [163]
    The application for review is upheld. The Tribunal orders that the decision of the QBCC made on 30 January 2017 to issue Direction to Rectify No 0101527 be set aside. There is no order as to costs.

Footnotes

[1]  Joint Statement of Agreed Facts, Facts in Issue and Issues for the Tribunal’s determination dated 28 November 2017, para 1.23.

[2]   Ex; GJM-4 Statement of Gregory Joseph Matthews, 18 September 2017, commencing at page 187.

[3]  Joint Statement of Agreed Facts, facts in Issue and Issues for the Tribunal’s Determination, Section 3.

[4]R v His Honour Judge Miller and the Builder’s Registration Board of Queensland, ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446, 458.

[5]    Ex SPJ-13, Statement of Simon Peter Jaremus 8 March 2018.

[6]    Further statement of the Applicant dated 19 January 2018, exhibit pages 1-9, 12 and 13.

[7]  Joint Statement of Agreed Facts, Facts in Issue and Issues for the Tribunal’s determination para 1.30.

[8]  Applicant’s Final submissions received 24 August 2018, para 96.

[9]  See page 373 of the statement of Gregory Joseph Matthews, dated 18 September 2017.

[10] SOR-9 to the Statement of Reasons.

[11]  Applicant’s QCAT Application, Annexure A, page 12.

[12]  Statement of Matthew Albert Cornell filed 10 April 2018, [9].

[13]  Ibid [9].

[14]  Statement of Simon Peter Jaremus filed 9 March 2018, [37].

[15]  [2014] QCAT 42, [67].

[16]  Applicant’s material to be relied upon, at page 63.

[17] Further Statement of the Applicant dated 19 January 2018 exhibit pages 31 to 35.

[18] QCAT Act Section 20

[19] Laidlaw v Queensland Building Services Authority [2010] QCAT 70 at [22].

[20]  QCAT Act, s 21.

[21]  QBCC Act, s 72(3).

[22]  Ibid s 72(5).

[23]De Luchi v QBSA [2002] QBT Q223-01.

[24]  Non-completion Inspection Report at page 301 of Statement of Gregory John Matthews, dated 18 September 2017.

[26]  Joint Statement of Agreed Facts, para 1.33.

[27]  Joint Statement of Agreed Facts, paras 1.8 and 1.29(a).

[28]  Ibid 1.34; Applicant’s material page 430.

[29]  QBCC Act, s 3(a)(ii).

[30]  QBCC Act, s 3.

Close

Editorial Notes

  • Published Case Name:

    Tyron Guiseppi Cantamessa v Queensland Building and Construction Commission

  • Shortened Case Name:

    Cantamessa v Queensland Building and Construction Commission

  • MNC:

    [2019] QCAT 268

  • Court:

    QCAT

  • Judge(s):

    Member Quinlivan

  • Date:

    05 Sep 2019

Appeal Status

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

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