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- Unreported Judgment
Hishon v Queensland Building and Construction Commission QCAT 309
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hishon v Queensland Building and Construction Commission  QCAT 309
Queensland Building and Construction Commission
8 October 2019
22 August 2018
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant seeks to review two related decisions by the QBCC to not issue directions to rectify – where both decisions by the QBCC relate to separate works on the same property – where a review of the QBCC’s decision is done by way of a fresh hearing on the merits – where Tribunal has to determine whether building work was defective on the available evidence – where applicant tries to rely upon Tribunal findings in an unrelated matter to substantiate his claim – whether the QBCC’s decision to not issue directions to rectify was fair and reasonable in the circumstances
Queensland Building and Construction Commission Act 1991 (Qld), s 72
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 24(1)
Doolan v Queensland Building and Construction Commission  QCAT 58
P W Woods (Builders) Pty Ltd & Anor v Hishon  QCAT 318
P W Woods (Builders) Pty Ltd v Watch This Space Builders Pty Ltd  QCAT 188
N Thirumoorthi, legal counsel of the Queensland Building and Construction Commission
REASONS FOR DECISION
- Peter Hishon has applied to the Tribunal for a review of two internal review decisions of the Queensland Building and Construction Commission (‘the QBCC’) dated 6 December 2017.
- The first of these proceedings, GAR028-18, is a decision not to give a direction to DMC Rendering Pty Ltd (‘DMC’) pursuant to s 72 of the Queensland Building Construction Commission Act 1991 (Qld) (‘QBCC Act’) to rectify what Mr Hishon says are defective rendering works (‘the rendering decision’).
- The second proceeding, GAR031-18, is a decision not to give a direction to Wahoo Air Conditioning Pty Ltd (‘Wahoo’) to rectify what Mr Hishon says are defective air conditioning works (‘the air conditioning decision’).
- In respect of each matter the material relied on by Mr Hishon is contain in the application and a statement by him dated 15 March 2018. Mr Hishon provided a written opening statement at the commencement of the hearing and lengthy written submissions after the hearing concluded.
- The QBCC material in each proceeding included a statement of reasons by the decision maker Jonathan Pacey and a witness statement and report by its building inspector Daniel Yates. Both Mr Pacey and Mr Yates gave oral evidence and were cross-examined by Mr Hishon. The Commission also provided written submissions prior to commencement of the hearing and again after its conclusion.
Nature of the Proceedings
- In review proceedings the Tribunal may, pursuant to s 24(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’):
- Confirm or amend the decision, or;
- Set aside the decision and substitute its own decision, or;
- Set aside the decision and return the matter to the Commission for reconsideration with directions the Tribunal considers appropriate.
- Mr Hishon is the owner of a property at 9 Greggor Street, Wynnum West and undertook the construction of a dwelling on it as owner builder in 2011.
- He entered into a construction management agreement with P W Woods Builders Pty Ltd (‘the construction manager’) in June 2011 and various trade contracts, including contracts with DMC on 27 February 2012 and Wahoo on 25 November 2011.
- The construction management agreement was terminated in May 2012.
- Mr Hishon lodged a complaint with the QBCC against the construction manager on 2 July 2012 which included rendering work undertaken by DMC. The QBCC found that the rendering was not defective building works.
- The construction manager issued a building dispute proceedings against Mr Hishon in 2012 (‘the QCAT proceedings’).
- Mr Hishon lodged a complaint with the QBCC with the construction manager on 17 September 2012 which included allegations of defective building works in respect of the air conditioning works undertaken by Wahoo but the QBCC considered it was precluded from dealing with the complaint because of the QCAT proceedings.
- A decision in the QCAT proceedings was given on 8 May 2014 which in part allowed an amount of $425.42 for rectification of the rendering the parties agreed was defective.
- Mr Hishon lodged a further complaint in respect of both the rendering and the air conditioning against the construction manager on 18 June 2014.
- In respect of the rendering works, the QBCC for a number of reasons declined to take further action and in particular because it did not identify any defective construction practices by the construction manager.
- In respect of the air conditioning works, the QBCC found that while the noise of the air conditioning unit was excessive it was not clear whether this was a result of product failure or faulty installation. An internal review decision classified it as a category 2 defect but found that the construction manager was not responsible for it.
- It does not appear to be contested that in making his complaints against the construction manager Mr Hishon was acting on the advice of the QBCC that he could do so rather than pursuing each trade directly.
- Mr Hishon also had ongoing disputes with the QBCC over his claims under the statutory insurance scheme, ultimately the subject of the settlement deed in October 2016.
- Clearly, Mr Hishon is unsatisfied with his dealings with the QBCC over almost seven years. His dissatisfaction is apparent both in his evidence and some 35 pages of submissions. Even if I accept that his complaints are completely justified, it is not the function of these proceedings to address and rectify the QBCC’s past shortcomings. These proceedings are limited in scope to a review of the internal review decisions of 6 December 2017.
- Mr Hishon seeks to attack the decisions under review largely on the basis of what he says are inconsistent findings in earlier decisions and the QCAT proceedings. There are a number of difficulties with this. They relate to different complaints made years apart. None of the decision makers or the building inspectors who provided reports in respect of them were witnesses in these proceedings.
- The QCAT proceedings heard evidence over three days before reaching its decision. None of that evidence is before the Tribunal. In those circumstances little or no weight can be given to the findings in those proceedings.
- Mr Hishon did not call any evidence by an independent expert witness. He explained in evidence that he did not want to pay for expert witnesses.
- Mr Hishon holds a degree in applied science (construction) and has been employed in the building industry in various capacities for 20 years, including management positions. His evidence is that while he has previously provided technical opinions in respect of defective works of other builders he did not do so in respect of either the rendering decision or the air conditioning decision. In any event, he is clearly not after seven years of conflict with the QBCC, an objective witness.
Issues for the Tribunal
- It is not in dispute that work in both the rendering decision and air conditioning decision is building work and that it was carried out respectively by DMC and Wahoo.
- In those circumstances there are two issues in respect of each which the Tribunal must determine:
- Is the building work defective; and
- If it is defective, is it fair and reasonable in all circumstances to exercise the discretion to issue a direction to the person responsible for it?
Is the rendering work defective?
- Daniel Yates, a QBCC inspector, inspected the rendering works and provided an inspection report dated 31 October 2017. He gave oral evidence at the hearing and was cross-examined by Mr Hishon.
- Mr Yates report provides that the cracking evident in the rendering was measured by him and was two millimetres at its greatest point.
- In evidence he said delamination of the rendering was also evident but it was not the subject of the complaint and accordingly it was not dealt with in the report.
- He characterized the cracking as a category 2 non-structural defect.
- Under cross-examination, Mr Yates said that he had no special qualifications in structural engineering or rendering.
- In his submissions Mr Hishon is critical of Mr Yates report and evidence because:
- He lacks qualification;
- He was ‘selective’ in his use of measurement and photographs;
- His distinction between cracking and delamination or spalling is a ‘play on words’ and unconvincing; and
- It was not consistent with an earlier report prepared by him which was not before the Tribunal.
- He is also critical of the statement of reasons and evidence of the decision maker Jonathan Pacey because:
- He lacks building qualifications;
- His decision is based on the ‘incorrect information’ contained in the Yates report;
- His reference to the QBCC’s standards and tolerances guide, which he concedes came into existence after the rendering works were completed and accordingly ‘cannot definitively be relied upon in determining whether the rendering complaint is defective’; and
- The earlier QBCC decision in 2015 and the findings in BDL358-12 has determined that the rendering work is defective.
- In relation to this last point, for reasons set out earlier, in this decision this Tribunal is not bound by those earlier decisions and attaches little or no weight to them.
- The difficulty for Mr Hishon, however, is that even if I accept some or all of his criticisms, it is not enough to establish that the rendering work is defective or that DMC is responsible for it. The only evidence before the Tribunal that the works are defective other than that of Mr Yates and Mr Pacey, comes from Mr Hishon and that evidence is neither expert nor objective. It would, in my view, be unsafe for the Tribunal to overturn the QBCC’s decision on the basis of that evidence.
Is the air conditioning work defective?
- Mr Hishon’s complaint is that the air conditioning was excessively noisy.
- Mr Yates evidence is that he inspected the property and turned the air conditioning on and he did not find the units to be excessively noisy.
- He acknowledged in cross-examination that he was not an expert in air conditioning that he had not conducted decibel readings or had access to decibel readings.
- He said if he thought that there was excessive noise he would have caused readings to be taken and or obtained in an experts report.
- As with the rendering complaint, Mr Hishon could have provided some additional evidence before both the internal review and to this external review but he chose not to.
- Mr Hishon’s evidence alone is not sufficient to establish the air conditioning works are defective or if it was Wahoo that was responsible for it. In those circumstances the Commission’s decision must stand.
Is it fair and reasonable to direct rectification?
- Given my findings that the rendering decision and the air conditioning decision are confirmed, it is unnecessary to determine whether it is fair and reasonable in all the circumstances to exercise the discretion to issue directions to DMC and Wahoo, however, for the sake of completeness I do so.
- In each case the works were carried out some six and a half years ago.
- Mr Hishon lays the blame for this firmly at the feet of the QBCC. Even if that is the case it would in my view still be unfair to both DMC and Wahoo neither of whom has played any part in the delay, to issue a direction after that time has elapsed.
- I note the comments in Doolan v Queensland Building and Construction Commission, that the threat of such notices should not be indefinite.
- The Tribunal orders accordingly, that:
- The decision of the Commission not issue a direction to rectify to DMC Rendering Pty Ltd is confirmed; and
- The decision of the Commission not issue a direction to rectify to Wahoo Air Conditioning Pty Ltd is confirmed.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(1) (‘QCAT Act’).
 Ibid s 20(1).
P W Woods (Builders) Pty Ltd & Anor v Hishon  QCAT 318 (BDL358-12); P W Woods (Builder) Pty Ltd v Watch This Space Builders Pty Ltd  QCAT 188 (BDL358-12).
 GAR074-15; GAR165-15.
 Applicant’s submissions, paragraph 16.
 Ibid, Item K, page 35.
 Ibid, Item K, page 34.
 Ibid, page 18
 Respondent’s submissions, paragraph 24(a).
  QCAT 58, .
- Published Case Name:
Hishon v Queensland Building and Construction Commission
- Shortened Case Name:
Hishon v Queensland Building and Construction Commission
 QCAT 309
08 Oct 2019