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Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission[2020] QCAT 454

Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission[2020] QCAT 454

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 454

PARTIES:

PETER WHALLEY HOMES PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR112-16

MATTER TYPE:

Building matters

DELIVERED ON:

16 November 2020

HEARING DATE:

25 September 2019

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDER:

The decision of the Queensland Building and Construction Commission dated 8 April 2016 to issue Peter Whalley Homes Pty Ltd with a Direction to Rectify No. 42267 to rectify building work said to be defective or incomplete is set aside and substituted with the decision that in the circumstances it would be unfair to give that direction.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant constructed a kit home – complaints of defective building work – investigation by regulator – applicant directed to rectify building work – direction to rectify withdrawn and converted to request to rectify defects – re-inspection of dwelling showed no further action required by regulator – internal review by home owners – direction to rectify reinstated – internal review identified a Category 1 defect in the dwelling – applicant issued with a direction to rectify – whether building work was defective – whether it would be unfair to direct the applicant to rectify building defects

PRACTICE AND PROCEDURE – EVIDENCE – EXPERT EVIDENCE – joint expert report – where competing opinions and assessments expressed by each expert – competing expert evidence – whether an examination is required of the substance of opinions expressed – primary duty of the Tribunal – Tribunal not bound by the rules of evidence – whether a discretion should be exercised to accept hearsay evidence which unnecessarily disadvantages a party

Queensland Building and Construction Commission Act (1991 (Qld), s 3(a)(ii), s 3(b), s 72, s 72(5), s 87 and Schedule 2.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20, s 20(1), s 20(2), s 21, s 24(1), s 28(2), s 28(3)(a), s 28(3)(b), s 28(3)(c), s 32

Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229

Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

G & A Lanteri Nominees Pty Ltd v Fishers Stores Consolidated Pty Ltd [2007] VSCA 4

Holtmanv Sampson [1985] 2 Qd R 472

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Kioa v West (1985) 159 CLR 550

Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743.

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380

Pappas v Queensland Building Services Authority [2002] QDC 290

Q M Properties Pty Ltd v Belscorp Pty Ltd [2019] QCA 138

Queensland Building and Construction Commission v Whalley [2018] QCATA 38

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Spencer v The Commonwealth (1907) 5 CLR 418

The Commonwealth v Milledge (1953) 90 CLR 157

The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228

Whalley v Queensland Building and Construction Commission [2017] QCAT 15

Applicant:

P Whalley

Respondent:

R Ensbey, Special Counsel, Gadens Lawyers

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant in this matter is Peter Whalley Homes Pty Ltd (‘the applicant’). The applicant’s principal is Peter Benjamin Whalley (‘Mr Whalley’). The respondent is the Queensland Building and Construction Commission (‘QBCC’).
  2. [2]
    On 28 March 2013, the applicant entered into a contract with Vic and Kerry Riella (‘the owners’) for the construction of a kit home at in the suburb of West End, Townsville (‘the house’).[1]
  3. [3]
    The work commenced on or about 11 July 2013 and was completed on or about 10 December 2013. On 16 June 2014, the owners lodged a complaint with the QBCC in relation to alleged defective work carried out by the applicant at the house.[2]
  4. [4]
    After undertaking an investigation into the owners’ complaints, the QBCC decided to issue the applicant with a direction to rectify and/or complete work carried out to the owners’ house.[3] The applicant seeks a review of that decision.[4]

The Tribunal’s role

  1. [5]
    Conditional on the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’), Tribunal proceedings are conducted at the discretion of the Tribunal. When exercising that discretion, the Tribunal is obliged to apply fair procedures that are adapted to the circumstances of each particular case.[5] The rules of natural justice must be complied with,[6] and accordingly, the Tribunal must act fairly.[7]
  2. [6]
    A crucial point the Tribunal should be mindful of is that unlike a judicial review, the Tribunal’s function in administrative or merit reviews is to review the decision, not the process by which it was arrived at, nor the reasons for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made and there is no presumption that the original decision is correct.[8]
  3. [7]
    In the conduct of the proceedings, the Tribunal has the discretion to inform itself in any way it considers appropriate,[9] and although the Tribunal is not bound by the rules of evidence,[10] this does not generally mean that those rules should be overlooked. Every effort or attempt must be made to administer substantial justice and the Tribunal should not ignore those rules and resort to methods of inquiry that unnecessarily places one party at a disadvantage whilst favouring the evidence of the other party.[11]
  4. [8]
    Returning to the QBCC Act, an objective of this legislation is to achieve a reasonable balance between the interests of building contractors and consumers.[12] A further objective is to provide remedies for defective work.[13]
  5. [9]
    As the applicant does not agree with the QBCC’s decision to issue a direction to rectify the building work,[14] the QBCC Act provides an opportunity for the applicant to apply to the Tribunal for a review of that decision.[15] By undertaking that review, the Tribunal effectively ‘stands in the shoes’[16] of the original decision maker, and the review must be a fresh hearing on the merits of the application.[17] Any decision reached by the Tribunal must be based on the material before the Tribunal at the time of the review hearing[18] with a view of reaching the correct and preferable decision.[19]
  6. [10]
    Besides being a party to these proceeding, the QBCC has a distinct role to play. It is obliged to use its best endeavours to assist the Tribunal to reach the correct and preferable decision. Although the QBCC’s role may be non-adversarial, and it is obliged to assist the Tribunal, this does not automatically mean the QBCC cannot thoroughly test the evidence relied upon by the applicant.[20]
  1. [11]
    In regard to a determination on the merits of the application, it is theoretically conceivable that in some proceedings there may be many months or even a year or more since the original decision was made, as it has occurred in this matter. Therefore, it is only logical that when reaching a determination of what is the correct and preferable decision, the Tribunal is generally obliged to have regard to the best and most current information available.[21] Therefore, the question for the determination of the Tribunal is not whether the original decision was the correct or preferable one on the material before the original decision maker, but rather whether the Tribunal’s decision is the correct or preferable one based on the material before the Tribunal at the hearing.[22]
  1. [12]
    In arriving at a conclusion of what is the correct and preferable decision, there is a discretionary authority for the Tribunal to either confirm or amend the QBCC’s decision; or set aside the QBCC’s decision and substitute that decision with its own decision; or set aside the QBCC’s decision and return the matter for consideration to the QBCC with directions the Tribunal considers appropriate.[23]

Background

  1. [13]
    The applicant constructed a kit home for the owners at their property. Because the owners were dissatisfied with some of the workmanship undertaken by the applicant on their house, they complained to the QBCC. Thirteen items were identified in their complaint.
  2. [14]
    The QBCC advised the applicant of the circumstances of the owners’ complaint.[24] The applicant responded and in doing so, addressed each of the thirteen items of complaint. At that stage, the house had not been handed over to the owners as they still owed money to the applicant and other contractors who undertook work on the house.
  3. [15]
    At a subsequent time,[25] the QBCC received an additional complaint from the owners relating to an alleged defect to the painting of the internal and external doors of the house. The applicant was advised of the additional complaint.
  4. [16]
    The QBCC undertook an investigation. Mr Kevin Cameron (‘Mr Cameron’), who is the QBCC’s Building Inspector carried out an inspection at the house.[26] At the conclusion of his investigation, Mr Cameron completed an Initial Inspection Report outlining his findings and observations.[27]
  5. [17]
    Sometime later, the QBCC arrived at a position that the applicant should rectify the identified defects discovered at the owners’ house. Correspondence was sent to the applicant attaching a Direction to Rectify and/or Complete No. 40354 (‘first direction’).[28] The first direction related to the identification of two specific Category 1 defects and a single Category 2 defect.[29] They were –
    1. (a)
      The kitchen server window and a number of the external windows were not externally weather sealed;[30]
    2. (b)
      The barge capping located at the rear verandah required flashing;[31] and
    3. (c)
      The rear door jamb was not square which prohibited the installation of a security door.[32]
  6. [18]
    Following a meeting between the applicant, Mr Cameron and the Building Certifier, Mr Milton Stennett (‘Mr Stennett’), it was determined that the first direction would be withdrawn and replaced with a Request to Rectify. Correspondence was sent to both the applicant and the owners attaching a copy of the Request to Rectify.[33]
  7. [19]
    At a later time,[34] Mr Cameron returned to the house and carried out a re-inspection to assess the status of the rectification work carried out by the applicant. Subsequently, Mr Cameron completed a Re-Inspection Report in which his findings and observations were noted.[35] An observation of this report shows that Mr Cameron specifically noted that the QBCC proposed to take no further action unless the windows failed and allowed water penetration.[36]
  8. [20]
    Resulting from that re-inspection and the Re-inspection Report, the QBCC sent correspondence to the owners and the applicant advising that because Item 1 was a Category 2 defect, the QBCC were not notified by the owners within the required time period which applied to that category.[37] Therefore, the QBCC would not be issuing a Direction to Rectify to the applicant for this item. In relation to the remaining two items of the Request to Rectify, the QBCC determined that those items had been satisfactorily rectified by the applicant.[38]
  9. [21]
    The owners were dissatisfied with that outcome and applied for an internal review of the QBCC’s decision.[39] In undertaking the internal review, the QBCC’s Senior Technical Internal Review Officer and Building Inspector, Mr Stephen Ferguson (‘Mr Ferguson’) carried out an inspection of the house. A further Inspection Report was completed outlining Mr Ferguson’s findings and observations.[40]
  10. [22]
    It was later determined by Ms June Blaney (‘Ms Blaney’), the QBCC’s Internal Review Officer[41] that the applicant had carried out defective building work in relation to window head flashings.[42] It was recommended that a direction to rectify should be issued to the applicant.
  11. [23]
    Correspondence was then sent to the applicant attaching a Direction to Rectify and/or Complete No. 40913 (‘second direction’).[43] However, in error, this direction was left blank. No description was provided of the building work to be rectified.[44]
  12. [24]
    After discovering the QBCC’s error in omitting the particulars of the building work to be rectified, the applicant wrote to the QBCC and identified this error.[45] He also pointed out that he had earlier emailed the QBCC’s Internal Review Officer where he asked two questions; did the windows leak?, and had there been a complaint by the owners that the windows leaked? He suggested that he had not received a reply to those questions.[46]
  13. [25]
    It would seem that the direction inadvertently omitted from the second direction related specifically to a single defect –
    1. The construction of the external facade of the dwelling is not in accordance with the Building Code of Australia Part 3.5.3.6 in that flashings have not been installed to the openings in the wall.
  14. [26]
    In responding to the applicant’s correspondence where the error in the second direction was identified, the QBCC apologised for the oversight in not attaching the details of the direction. An extension of time was provided for the applicant to comply with the direction.
  15. [27]
    In that letter, the QBCC confirmed to the applicant that it considered that the windows did not comply with or satisfy the requirements of the Building Code of Australia[47] (‘the building code’). Although the QBCC recognised that the applicant’s argument that the construction method is an alternative solution, the QBCC’s position was that no relevant documentation had been provided to show that the construction method had been certified as an internal solution to meet the performance requirements of the building code.
  16. [28]
    The QBCC acknowledged the applicant’s argument that the building work had not failed and there had not been any water ingress. However, the QBCC confirmed to the applicant that the failure of building work to perform is only one factor to be considered in assessing whether the building work was defective. Non-compliance with the building code is considered defective building work and may be grounds for the issuing of a direction.
  17. [29]
    The QBCC correctly identified to the applicant that the QBCC was responsible for maintaining proper standards within the building industry, and compliance with the building code is important in ensuring that building work performs as expected. The QBCC went on to further indicate to the applicant that the window items had been investigated and were subject to a formal internal review which found that it was appropriate for a direction to be issued.[48]
  18. [30]
    The applicant later provided the QBCC with an engineer’s report commissioned from Mr Steve McKenzie (‘Mr McKenzie’).[49] Mr McKenzie is registered consultant engineer and is the Director of Steve McKenzie Consulting Engineers (‘SMCE’). He is a registered professional engineer and a member of the Institute of Engineers Australia. He has over 40 years’ experience as a draftsman and an engineer.
  19. [31]
    In his report (‘the SMCE report’), Mr McKenzie identified two issues. Firstly, he commented on what seemed to be confusion in the notice to rectify. This was in reference to the complaint about the kitchen server window (items 2 and 3 of the complaint) which did not need rectification, whereas all other windows under complaint item 3 required rectification. The second issue related to the QBCC insisting that the installation of the windows did not conform to the building code. Mr McKenzie disagreed with that assessment. He provided certified drawings of the window installation which he showed the flashing materials did conform to the relevant standards.
  20. [32]
    Consequently, the applicant did not comply with the second direction. The QBCC then wrote to the owners to advise that the applicant’s certifier had provided an alternative solution, and as a consequence the second direction had been complied with.[50] The QBCC also wrote to the applicant advising that the QBCC at that stage reached a determination that the direction to rectify had been complied with. The applicant was thanked for his co-operation throughout the investigation and advised that no further action will be taken in regard to this matter.[51]
  21. [33]
    Despite accepting that the applicant had satisfactorily rectified the defective work, it seems that on the day prior to writing to the applicant and advising that it would not be taking any further action, the QBCC’s Internal Review Unit was engaged to undertake a second internal review. A structural engineering company was also engaged to provide a report. That company was NJA Consulting Pty Ltd (‘NJA Consulting’). The purpose of the report was to give an opinion in relation to the requirement for window head flashings in external walls of dwellings.[52]
  22. [34]
    Some four months after the NJA Consulting report was completed, and almost 12 months after the QBCC deemed that no further action was to be taken against the applicant because it was accepted that he had complied with the second direction, Mr Ferguson overturned this decision. Persuaded by the findings of NJA Consulting report, he determined that the work undertaken by the applicant had not been satisfactorily rectified.
  23. [35]
    The QBCC then wrote to the applicant advising of its latest review and its determination to overturn that earlier decision.[53] The QBCC then issued a direction notice to the applicant for the defect to be rectified (‘final direction’). The item in the Direction to Rectify was –

Due date for completion – 16 May 2016

You are directed to rectify the following defective or incomplete building work by the Due date for completion.

1 The construction of the external facade of the dwelling is not in accordance with P 2.2.2 of the Building Code of Australia in that flashings have not been provided to the wall openings.[54]

  1. [36]
    In arriving at that decision, the QBCC considered that the direction item had not been satisfactorily rectified on the basis that the applicant had not –

….. complied with Part 2.2.2 of the Building Code of Australia in that the flashings have not been provided to the top of the openings in external walls and there is not any evidence that an alternative solution has been provided.[55]

  1. [37]
    Emphasis has been placed upon a view reached that the applicant had not complied with the building code. The building code provides that the external wall (including openings around windows and doors) must prevent the penetration of water that would cause unhealthy or dangerous conditions, or the loss of amenity for occupants; and it must also prevent undue dampness or deterioration of building elements.[56] The QBCC concluded that the applicant had engaged in Category 1 defective building works as defined in the QBCC Rectification of Building Works Policy. The QBCC’s explanations for that decision are discussed later in these reasons.
  2. [38]
    On the same day that the final direction was issued, the QBCC wrote to the owners and advised them of its decision.[57]
  3. [39]
    The applicant applied to the Tribunal for a review of that final decision.[58] When the matter first came before the Tribunal, the application was considered and determined on the papers.[59] The Tribunal’s decision on that occasion was to set aside the QBCC’s decision.[60] The QBCC appealed the Tribunal’s decision. The appeal was allowed and the applicant’s application to review the QBCC’s decision was remitted back to the Tribunal for reconsideration.[61]
  4. [40]
    At a later time, the Tribunal gave directions relating to the completion of a Joint Expert’s Report.[62] That report was later competed by Mr McKenzie and Darren McDonald (‘Mr McDonald’).[63]

QBCC’s Reasons for Decision

  1. [41]
    By way of some additional background information, when providing his reasons for making the decision to issue the notice to the applicant, Mr Ferguson succinctly outlined the legislative framework. That is, defective building work includes work that is faulty or unsatisfactory.[64] For work that involves the use of a manufactured product, that work may be defective if the product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.
  2. [42]
    Mr Ferguson then went on to differentiate what comprises Category 1 and Category 2 defective building work. Category 1 defective building work means defective building work that is faulty or unsatisfactory because it does one or more of the following –
    1. (a)
      adversely affects the structural performance of a building.
    2. (b)
      adversely affects the health and safety of persons residing in or occupying a building.
    3. (c)
      adversely affects the functional use of a building.
    4. (d)
      allows water penetration into the building.
  3. [43]
    Category 2 defective building work does not include defective building work other than structural defective building work, or Category 1 defective building work or residential construction causing subsidence. However, it does include defective building work that is faulty or unsatisfactory because –
    1. (a)
      it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or
    2. (b)
      it has caused a settling in period defect in a new building.
  4. [44]
    In undertaking a site inspection, Mr Ferguson found that the wall openings for windows and doors on the house had not been provided with head flashings within the external cladding and on top of the windows and doors. This resulted in the applicant being directed to rectify the defective building works, namely the flashings. The applicant’s engineer then provided an alternative solution indicating the installation method was an alternative provision under the building code and therefore complied with the performance provisions of the building code. In submissions to the QBCC, the applicant’s certifier said –

that as the dwelling is in a ‘C3’ wind code the deemed to satisfy provision of the BCA are not appropriate in this instance and the engineers design provided compliance under the performance provisions.[65]

  1. [45]
    Mr Ferguson’s reasons went on to say that it was noted that the engineer’s details were not provided as part of the decision notice and approved plans that the certifier lodged to the local authority.[66] Acknowledged by Mr Ferguson was an earlier decision by Bill Piper (‘Mr Piper’) that the works complied with the building code and therefore the direction had been satisfied. Mr Piper was the Manager of the QBCC’s Service Centre at Townsville.
  2. [46]
    However, Mr Ferguson could not determine if Mr Piper had classed the works as complying with the deemed to satisfy solution of the relevant building code provisions, or whether Mr Piper had deemed that the applicant had provided an alternative solution under the building code’s performance provisions.
  3. [47]
    It was also acknowledged by Mr Ferguson that Mr Piper had indicated in his correspondence to the applicant that there was an alternative solution provided by the applicant’s engineer. However, Mr Ferguson considered that the engineer had not provided any evidence of suitability, nor a verification method to determine that the flashings to the openings provided an alternative solution to satisfy the performance requirements. Furthermore, the applicant had not provided an alternative solution approved by the certifier, nor had the certifier issued a notice confirming an alternative solution to the local authority and provided an amended decision notice with alternative solution. An observation of this is, within the management of its own investigation, there was seemingly a differing of opinions by QBCC personnel.
  4. [48]
    Undeniably, an objective of the building code performance provisions is to protect the building from damage caused by external moisture entering the building.[67] The building work must prevent the penetration of water that could cause unhealthy or dangerous conditions, or loss of amenity for the occupants; and it must prevent dampness or deterioration of building elements. Mr Ferguson noted that the certifier had already issued a final certificate and there was no provision within the legislation to allow the certifier to provide and alternate solution after the building work had been completed and a final certificate issued.[68]
  5. [49]
    Mr Ferguson considered the SMCE report provided by Mr McKenzie. It was noted that the SMCE report indicated that the in-situ construction method of the installation of the window to the house without an additional flashing complied with the building code because there was a 30 millimetre aluminium fin provided to the window which satisfied Part 3.5.3.6 of the building code. Mr Ferguson noted that the applicant had not provided any evidence that the material provided to the head of the window complied with the requirements of the Australia Standards[69] as detailed in the engineer’s diagram.[70]
  6. [50]
    Reference was then made by Mr Ferguson to the NJA Consulting report.[71] That report considered the requirements for flashings above windows in external walls of a domestic construction. The report was undertaken and completed without an actual inspection of the owners’ house. Instead, reliance was placed upon an appraisal of communications between the author of the report and various organisations, along with a number of documents relevant to this matter, including[72] –
  • Building Code of Australia 2013;
  • SMCE report;[73]
  • Owners’ email;[74]
  • Bradnams Drawing;
  • Capital Aluminium Window Flashing Installation recommendations;
  • Australian Window Association Timber Frame Head installation;
  • Weathertex Drawing;
  • Building Connection Publication “Flashing of Windows”
  • AS2047;
  • QBCC Inspection Report;[75] and
  • Acacia Building Approvals email.[76]
  1. [51]
    It was noted that although the NJA Consulting report forms part of the material relied upon by Mr Ferguson to reach his decision, the author of report, John Van de Hoef (‘Mr Van de Hoef’) was not called to give evidence at the hearing.[77] His report includes opinions expressed by other individuals,[78] of which he extracted and utilised those opinions to form the basis of his own opinion. Mr Van de Hoef goes so far as to apply to the report information he obtained from representatives from companies involved in the building industry during telephone conversations,[79] and those opinions expressed to him remained untested.
  2. [52]
    The requirements for flashings above windows in walls of a domestic constructions were considered in that report. In reaching his decision, Mr Ferguson referenced the NJA Consulting report[80] and identified Mr Van de Hoef’s conclusion –

Regardless of the recommendation provided in the report prepared by SCME or the opinion provided by the building certifier, on the basis of the advice of the window manufacturer, the cladding manufacturer and the Australian Window Association, it is recommended that a head flashing be provided to window (sic) in similar situations to the subject site. Any failure to install a suitable window head flashing has the direct consequences of likely voiding the warranty that may have been provided by either the window manufacturers or the cladding manufacturer in circumstances where water penetration into the dwelling is found to occur at some point in the future.[81]

  1. [53]
    Based on the advice provided by the NJA Consulting report, Mr Ferguson was ultimately persuaded to concur with Mr Van de Hoef’s findings. That is, a flashing was to be provided to the window.[82] So far as accepting the conclusions of this report, my view differs from Mr Ferguson. Although the QCAT Act provides that the rules of evidence do not apply to proceedings in the Tribunal,[83] the Tribunal is afforded a discretion as to what weight should be applied to that evidence. Notwithstanding that, a cautious approach should be taken with respect to accepting the findings of the NJA Consulting report and I should be mindful of the principle of accepting evidence that unnecessarily places one party at a disadvantage whilst favouring the evidence of the other party. Although I consider that the report was fundamentally based on the opinion, comments and theories of others, and Mr Ferguson was persuaded by its findings, those same factors were not determinative in the ultimate decision reached on this occasion.
  2. [54]
    The Tribunal’s responsibility in considering all of the information just discussed, including the QBCC’s reasons, is that first and foremost there is no presumption that Mr Ferguson’s decision was correct.[84] As the Tribunal is effectively ‘standing in the shoes’ of Mr Ferguson,[85] the review of his decision must be undertaken by way of a fresh hearing on the merits of the applicant’s application.[86]
  3. [55]
    There has been a passing of a significant amount of time since Mr Ferguson’s decision, and the law is well settled on the point that the Tribunal is generally obliged to have regard to the best and most current information available[87] and any decision the Tribunal reaches must be based on the material before the Tribunal at the time of the review hearing.
  4. [56]
    Afterall, the question is not whether Mr Ferguson’s decision was the correct or preferable one on the material before him, but rather whether the Tribunal’s decision is the correct or preferable one based on the material before the Tribunal at the review hearing.[88]

Issues considered

  1. [57]
    The QBCC Act provides a discretionary power to require the rectification of defective building work.[89]
  2. [58]
    In undertaking a review into this matter, consideration should be given to all the circumstances, in particular the following four main issues –
  1. (a)
    Was the installation of the external facade on the owners’ house building work?
  2. (b)
    Was the applicant or its representative the relevant person who carried out the building work?
  3. (c)
    Was the installation of the external facade of the owners’ house defective?
  4. (d)
    Should discretion be exercised to issue a direction to the applicant?

Was the work undertaken by the applicant actually work building work?

  1. [59]
    The Tribunal is required to examine whether the work carried out by the applicant was building work. Building work is defined in the QBCC Act to consist of a number of things, including the erection or construction of a building.[90] A building generally includes any fixed structure. The owners’ house is such a structure.
  2. [60]
    There is no dispute between the parties that the work complained about was the construction of the external facade on the house.
  3. [61]
    The external facade is part of the house, and thus forms part of the building work undertaken. Therefore, I am satisfied that the construction of external facade falls within the ambit of the definition of building work as provided within the QBCC Act.

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

  1. [62]
    The evidence is that the applicant contracted with the owners to build their house.[91] The applicant, being a company[92] engaged its principal, Mr Whalley, to undertake the building work.
  2. [63]
    The parties do not dispute the applicant was the building contractor for the construction of the owners’ house[93] Therefore, I am satisfied that the applicant is responsible for the carrying out the building work.

Was the construction of the external facade defective?

  1. [64]
    Defective work is defined within the QBCC Act to include building work which is faulty or unsatisfactory.[94]
  2. [65]
    There is a requirement for the installation of the external facade to comply 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, and in that regard, I wholeheartedly accept that Mr Whalley was suitably qualified to carry out the installation of the external facade.
  3. [66]
    The building code provides the minimum necessary requirements for safety, health, amenity and sustainability in the design and construction of new buildings and as I have already referred to, the installation of the external facade must comply with the building code.
  4. [67]
    Evidence was heard from Mr Ferguson. While also being the QBCC’s original decision maker,[95] he is currently the QBCC’s Manager of Technical Resources. In undertaking his inquiries into this matter, Mr Ferguson carried out an inspection of the owners’ house.[96] He completed an inspection report[97] which contains his observations and comments.[98] I note that his inspection of the owners’ house was carried out almost 15 months prior to him issuing the direction to the applicant. I also note that his assessment did not purely focus on the items identified in the first and second notices, but instead it was a revisit of all of the owners’ original complaints.
  5. [68]
    The first complaint item investigated by Mr Ferguson related to the windows in the main bedroom of the owners’ house. The owners were concerned that the windows were not set out as per the design drawings for the dwelling. The house was a kit home which had been provided to the applicant for construction. The pre-nailed wall frames were set out and constructed by the kit home’s manufacturer. It was Mr Ferguson’s opinion that the applicant had installed the wall frames according to the design of the house. He correctly concluded that the applicant was not responsible for the design, nor the setting out of the house. Therefore, the applicant had not engaged in defective building works in relation to this item of complaint.[99]
  6. [69]
    The second complaint item related to the owners’ concern about the gaps at the top or base of the window frame. At that time, it had been raining quite heavily and the owners complained of moisture sitting on top of the window frame. The owners were also concerned about gaps between the external cladding and the aluminium window frame and whether the building work was sufficient to prevent moisture or vermin entering the house.[100]
  7. [70]
    Mr Ferguson noted that the window subject to the complaint was located within the verandah of the house and adjacent to the carport. Although he was unable to fully access the roof area, he acknowledged the roof covering and flashings appeared to be in place. He also found that although there were some minor gaps between the ends of the board, the inspection identified that the cladding boards covered the aluminium fins of the window frame and the side flashings prevented moisture and vermin entry to the house. Mr Ferguson noted that a head flashing had not been provided to the window, however the cladding had been installed in accordance with the manufacturer’s specification. There seem to be no identifiable issues with regard to the workmanship relating to this complaint, and Mr Ferguson was satisfied the building code did not include a provision in relation to vermin proofing.
  8. [71]
    In regard to the third complaint item, the owners were concerned that the tops and the base of the windows to the house had not been sealed to prevent the ingress of moisture and vermin into the house. Mr Ferguson found that there were some minor gaps between the ends of the board, however the cladding boards were provided as part of the kit home and they covered the aluminium fins of the window frame and the side flashings preventing moisture entry to the house. The cladding boards were installed in accordance with the manufacturer’s specifications and he was not able to find any evidence of moisture ingress or vermin entry into the house.
  9. [72]
    However, he found that it was evident that the head flashings had not been provided to the tops of the aluminium windows. It was noted that the windows of the bedroom and living area were located under the verandah overhang. Overhang measured 2.4 metres at the living area and 1.0 metre at the bedrooms. The rear window had not been provided with an overhang or soffit.
  10. [73]
    It was Mr Ferguson’s opinion that a requirement of the building code’s performance requirement indicated that external walls must prevent water ingress into a dwelling.[101] He further opined that the building code’s acceptable construction method indicated that a flashing installed to an external opening must satisfy the performance requirement of the building code.[102] His report on this complaint item suggested that the applicant was not able to confirm that an alternative solution had been provided to achieve the performance requirement.[103]
  11. [74]
    The fourth complaint item related to barge capping that required fixing. At the time of Mr Ferguson’s inspection, the applicant had rectified that defect.[104]
  12. [75]
    In respect of the fifth complaint item, this related to a suggestion that the short edge flooring boards to the verandah was not secured. Mr Ferguson was of the opinion that the applicant had installed the decking boards in accordance with the Timber Queensland Timber Deck data sheet and he was convinced that there were no concerning issues relating to this complaint.[105]
  13. [76]
    In regard to complaint items 6 to 11, Mr Ferguson was of the view that no further action was required in regard to those complaints.[106]
  14. [77]
    Complaint item 12 related to the concern raised by the owners about the method used to nail the flooring to the verandah. Mr Ferguson identified that the components were provided as part of the kit home and the applicant appropriately installed the flooring.
  15. [78]
    In respect to complaint item 13, it was established that the applicant had installed the window in accordance with the manufacturer’s specification and this was not deemed to be defective building works.[107]
  16. [79]
    In conclusion, Mr Ferguson’s investigation established that the only complaint item where a direction was required to be given to the applicant related to complaint item 3. This related to what Mr Ferguson viewed as a failure of the applicant to construct the external facade of the dwelling in accordance with the building code. That is, the flashing had not been installed to the openings in the wall.[108]
  17. [80]
    A common theme in the complaints raised by the owners about the windows was a concern of water ingress into the house. Mr Ferguson was not aware of any complaint by the owners that they had experienced any ingress of water. Nor was there any evidence to support any hypothesis that water ingress had occurred. Nevertheless, in response to those points, Mr Ferguson was of the view that he would expect that the flexible sealant installed to the window was providing a short-term preventative measure in lieu of the long-term protection afforded by a flashing system.[109] In his opinion, moisture may still be affecting the building elements and not presenting to the interior of the dwelling, although it is noted that there is no tangible evidence presented to the Tribunal to support that theory.
  18. [81]
    Mr Ferguson confirmed that although he had undertaken an inspection of the house, in particular the window which he deemed was defective building work, he was not able to determine which method of construction was utilised by the applicant in relation to that window. However, he was firm in his opinion that he was able to determine that the suitable flashing had not been provided regardless of what construction methodology was utilised.[110]
  19. [82]
    Mr Stennett, an accredited building certifier, told the Tribunal that he had the opportunity to read the QBCC’s reasons for its decision. He specifically referred to paragraphs 58 to 67 of those reasons which discuss the building code’s performance requirements.[111] The QBCC inferred –

The building, being in a cyclonic location, is located in an area with a design wind speed of more than NS. 3.5.3.1(d) applies regardless of the design wind speed for buildings in the area. The limitation in 3.5.3.1(a) applies to the installation of wall cladding in accordance with 3.5.3.1(b). To interpret 3.5.3.1 otherwise would be to place a lesser requirement for the weatherproofing of buildings in cyclonic areas.[112]

  1. [83]
    In respect to what was applicable for the wall cladding to the owners’ house, Part 3.5.3.1 of the building code provides that compliance with this part of the building code satisfies the performance requirement P2.2.2 for wall cladding, providing that –
    1. (a)
      the building is located in an area with a design wind speed of not more than W41; and
    2. (b)
      wall cladding is installed according to the appropriate part of the building code for the type of cladding utilised; and
    3. (c)
      …….
    4. (d)
      Openings in cladding are flashed in accordance with Part 3.5.3.6.
  2. [84]
    Part 3.5.3.6 of the building code provides that for flashings to wall openings, the openings in external wall cladding exposed to the weather must be flashed as follows:
    1. (a)
      All openings must be adequately flashed using materials that comply with AS 2904.
    2. (b)
      Flashings must be securely fixed not less than 25mm under the cladding and extend over the ends and edges of the framing of the opening.[113]
  3. [85]
    In Mr Stennett’s opinion, those provisions of the building code are only relevant where the dwelling is located in an area with a design wind speed of not more than N3, and the owners’ house was located in an area with a design wind speed of more than N3. He went on to opine that therefore, because the owners’ house existed in a design wind speed area, those provisions of the building code relied upon by the QBCC do not apply.[114]
  4. [86]
    Mr Stennett explained his reasoning by adopting the verification methods provided for in Part V2.2.1 of the building code. He said that for the purposes of compliance with the relevant provisions of the building code, his assessment was that when the owners’ house was compared to the relevant risk factor score scale displayed in Part 2.2.1(a), the house had a high risk score of 1.
  5. [87]
    Mr Stennett’s overall opinion was that the windows of the owners’ house were fully compliant with the building code performance requirements. His opinion, in my view, warrants consideration.
  6. [88]
    When Mr McKenzie gave evidence, he was primarily of the opinion that the flashing on the subject window complied with 3.5.3 of the building code and he disagreed with any suggestion that it did not comply.
  7. [89]
    In his SMCE report, Mr McKenzie expressed an opinion that he found it odd that the kitchen server window did not need rectification, but the window subject to the complaint required rectification. He went on to express a view that the main issue appears to be the QBCC’s representatives insisting that the installation of the windows did not conform with the building code’s recommendations. In his opinion, he found those assertions incorrect.
  8. [90]
    Mr McKenzie went on to explain that the glazing at present conforms to the building code performance requirement P2.2.2 (weatherproofing) as well as the building code 3.5.3.6 (flashings to wall openings). He added a certified sketch to his report regarding the installation of aluminium framed windows to timber framing. He pointed out that both a perimeter flashing and building paper had been installed around the opening for a minimum of 300mm compliance with building code 3.5.3.6(a). He also said that the aluminium glazing frame has a fin to the perimeter which is 30mm long and this satisfies building code 3.5.3.6(b).
  9. [91]
    Furthermore, he expressed a view that he disagreed with the opinions arrived at by the QBCC’s representatives. His attached certified drawings of the window installation showing that the flashing material conformed with AS/NZS 2904 – Damp-proof courses and flashings, as well as complying with part 1.2 – Acceptance of design and construction of the building code.
  10. [92]
    Mr McKenzie’s overall opinion in this matter was based on two things. His historical observations of the building and his experience as an engineer. He accepted that he had not carried out any testing and he had not inspected the windows during their installation. He relied upon the advice provided to him from Mr Stennett regarding the actual method used by the applicant to install the windows. Pausing at this point, I note that although Mr McKenzie may not have inspected the windows during their installation, nor had any experts relied upon by the QBCC undertaken any inspection of the windows during installation.
  11. [93]
    Mr McKenzie had also been engaged by the applicant as an expert for the compilation of the joint experts’ report.[115] In compliance with the Tribunal’s directions, a joint experts’ report was completed by Mr McKenzie and Mr McDonald. When asked to give an opinion about whether the window conformed to the building code requirements P2.2.2 (weatherproofing) as well as 3.5.3.6 (flashings), Mr McDonald considered that the window installation did not comply with the deemed to satisfy provisions.[116] Whereas Mr McKenzie indicated that he relied upon expert judgement in the absence of any other test data to conclude the window installation (window with no head flashing) complied with the requirements.[117]
  12. [94]
    In regard to the flashing methods used and whether they complied with the standard deemed to comply provision, and whether the flashings as installed satisfy the performance provisions, both experts had differing views. Mr McDonald’s response was not a did not comply whereas Mr McKenzie said that they did.

Discussion

  1. [95]
    It is evident that there are competing views expressed by the experts engaged by both parties. The issues concerning competing evidence has been the subject of discussion in many jurisdictions and if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of specialised knowledge. There must also be an identified aspect of the field in which the witness demonstrates their specified training, study or experience which allows them to become an expert.[118] I accept that the evidence of Mr McDonald and Mr McKenzie is expert evidence. I also accept that the evidence of Mr Stennett should also fall into this category.
  2. [96]
    Identified earlier in these reasons was a common theme within the owners’ complaints as to whether the window in question would be susceptible to water ingress into the house.
  3. [97]
    The conclusion drawn by the QBCC and its experts is that any failure to install a suitable window head flashing was not in compliance with the building code and the likelihood of water ingress into the owners’ house in the future. The ‘future’ is a term which is indeterminate. The life of the owners’ house is valued at 50 years. If the term ‘future’ were to be applied to this house, at what point does that occur, albeit the limitation of time provided for a Category 1 defect.
  4. [98]
    The window subject to the complaint is similar in construction to the other external windows. There is no suggestion that they had been constructed differently. The cladding boards covered the aluminium fins of the window frames, the side flashings prevented moisture and vermin entry to the house and no head flashing was provided. There were no discernible issues regarding the workmanship to those other windows.
  5. [99]
    If it is accepted the other external windows without head flashings complied with the relevant regulations, then weight would have to be given to the evidence of Mr Stennett and Mr McKenzie so far as the effectiveness of the window in question. Another consideration is the applicant’s argument that there was no evidence that the window failed and allowed water ingress. Given the highly unusual and unprecedented rain event experienced in Townsville during late January to early February 2019, if that window in question was defective, then it would be expected and highly probable that those conditions would have exposed that defect. There is no evidence of that happening.
  6. [100]
    A further feature of this matter is that since construction of the owners’ house, there is no known complaint by the owners of the house experiencing water ingress, either through the window in question or at any other part of the house. At best, all that is relied upon by the QBCC was the expectation the flexible sealant installed to the window would only provide a short-term preventative measure in lieu of the long-term protection afforded by a flashing system.[119] No explanation was provided as to the meaning of ‘short term’ and no evidence was provided of the life span of the flexible sealant product used by the applicant.
  7. [101]
    By the time of the inspections carried out by the QBCC, the house had already been constructed for over 12 months. In the interim, it experienced a Category 1 cyclone. Notwithstanding this, there was no evidence of water ingress to the house. In addition to that, during the period of late January to early February 2019, Townsville experienced record rain falls unseen in that area. All of those events occurred ‘in the future’ after the completion of the house. No information was provided by to the Tribunal of any concerns of water ingress resulting for those adverse rain conditions experienced at that time.
  8. [102]
    Of interest was the opinion expressed by Mr Stennett that the window complied with the building code,[120] particularly regarding the construction of the house to a Category C2 wind rating, which is a greater rating than Category N3.
  9. [103]
    It seems that an overarching feature of this matter is the competing opinions expressed by the various experts. In Queensland, the courts have previously identified that in cases where the experts differ, logic and common sense must be applied in deciding which expert view is to be preferred or accepted. In Holtman v Sampson, the Queensland Court of Appeal held –

The primary duty of a tribunal is to find ultimate facts, and so far as is reasonably possible to do so, to look not merely to the expertise of the expert witnesses, but to examine the substance of the opinion expressed; and in doing so, the tribunal may not accept the opinion of an expert witness, and in cases where the experts differ, the tribunal will apply logic and common sense to the best of its ability in deciding which view is to be preferred or which parts of the evidence are to be accepted.[121]

  1. [104]
    The issue relating to competing experts was canvassed by the Queensland Court of Appeal in a more recent case. In Q M Properties Pty Ltd v Belscorp Pty Ltd the court observed –

In considering this issue it is as well to bear in mind some matters established by the authorities. The determination of value is a question of fact, to be decided upon the evidence of experts conversant with the subject matter. Lay evidence or common sense does not have to be disregarded in deciding whether to accept (wholly or in part) the competing assessments of the experts.[122]

  1. [105]
    Identified by the Victoria Court of Appeal in Alsco Pty Ltd v VICA Mircevic was a method of the Tribunal’s function when faced with competing opinions. The court observed –

When faced with competing opinions, which are both supported by sound reasoning, the tribunal's function is to decide the issue at hand and that may require the tribunal to accept one opinion over the other….

The Court went on to say –

……the tribunal's persuasion to prefer one opinion over another may well be based on factors such as that the expert's opinion was tested under cross-examination, or that the opinion was given by a person eminent in his or her field, or that the opinion was supported by clinical observations.[123]

  1. [106]
    Depending upon the particular circumstances it appears that the common approach taken by the courts is that a commonsense approach is required having considerations so far as justice, fairness, equity and fault are involved.[124]
  2. [107]
    Regarding this matter, in particular the pertinent issue relating to the window flashings, there were competing opinions expressed by the experts, in particular the positions adopted by Mr McDonald and Mr McKenzie in the joint expert report.
  3. [108]
    It seems that the test is the application of logic and common sense. In Q M Properties Pty Ltd v Belscorp Pty Ltd the court arrived at a position that common sense does not have to be disregarded when reaching a decision as to whether the competing assessments of the experts should be accepted.

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

  1. [109]
    It is recognised that the Tribunal has previously found that a direction to rectify in a legal sense is not given solely for the benefit of the homeowner, but rather to ensure proper standards in the industry.[125]
  2. [110]
    Notwithstanding that, there is a requirement for all reasonably relevant circumstances to be considered. There is also discretion conferred upon to the Tribunal that it is not required to issue a direction to the applicant if the Tribunal is satisfied that, in the circumstances, it would be unfair to the applicant for that direction to be given.[126] This requires the Tribunal to consider the justice of giving such a direction, and liberates it from giving a direction if it is satisfied that in the circumstances it would be unfair.[127] Where that discretion is exercised unfavorably, the person affected has a right of review.[128]
  3. [111]
    Both parties rely heavily on the opinions expressed by the respective experts. The opinions expressed or relied upon by each party about the quality or effectiveness of the building work, and whether it complied with the building code are completely opposite in regard to the essential elements of the matter. Quite succinctly outlined in the authorities discussed earlier, there is an overarching principle that when faced with competing expert evidence, commonsense should not be discarded.
  1. [112]
    In applying the principle which the court arrived at in Holtman v Sampson,[129] I have given consideration to not merely to the expertise of the expert witnesses, but an examination was undertaken of their evidence about the building work to the external facade. I accept and prefer that opinions expressed by Mr Stennett and Mr McKenzie over those expressed by Mr McDonald and Mr Ferguson so far as compliance of the building work with the building code. In applying a logical, practical and commonsense approach to the circumstances of this matter, there has been no failure of the workmanship of the window that contravenes P2.2.2 of the building code.
  2. [113]
    Having reached that conclusion, I am the satisfied that the correct and preferrable decision is to set aside the QBCC’s decision made on 8 April 2016 to issue the applicant with a direction to rectify building work said to be defective or incomplete, and substitute that decision with the Tribunal’s own decision that in the circumstances, it would be unfair to give that direction.

Footnotes

[1] QBCC’s SOR-2, pages 28 – 31.

[2] QBCC’s SOR-3, pages 32 – 50.

[3] Direction to rectify and/or complete No. 42267 issued by the QBCC on 08/04/2016.

[4] Application filed 06/05/2016.

[5] Kioa v West (1985) 159 CLR 550, 585.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[8] Queensland Civil and Administrative Tribunal Act 2009, s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c).

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[11] The King v The War Pensions Entitlement Appeal Tribunal and Another; ex parte Bott (1933) 50 CLR 228, 256.

[12] Queensland Building and Construction Commission Act 1991 (Qld), s 3(a)(ii) and Schedule 2. A consumer generally means a person for whom, building work is carried out.

[13] Queensland Building and Construction Commission Act 1991 (Qld), s 3(b).

[14] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2. Building work means and includes the erection or construction of a building.

[15] Queensland Building and Construction Commission Act 1991 (Qld), s 87; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.

[16] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19.

[17] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[18] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[20] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21.

[21] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

[22] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[23] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[24] By email on 24/06/2014.

[25] On 11/07/2014.

[26] The inspection was carried out on 21/07/2014.

[27] QBCC’s SOR-10, pages 94 – 113.

[28] First Direction to Rectify issued 15/08/2014.

[29] QBCC’s SOR-11, pages 119 – 123.

[30] Items 2 and 3 on the owners’ QBCC complaint form; QBCC’s Initial Inspection Report / Statement of Reasons dated 21/07/2014: QBCC’s SOR-10, pages 96 – 99.

[31] Item 4 on the owners’ QBCC complaint form; QBCC’s Initial Inspection Report / Statement of Reasons dated 21/07/2014: QBCC’s SOR-10, page 100.

[32] Item 6 on the owners’ QBCC complaint form; QBCC’s Initial Inspection Report / Statement of Reasons dated 21/07/2014: QBCC’s SOR-10, page 103.

[33] QBCC’s SOR-12 pages 119 – 123.

[34] On 1 October 2014.

[35] QBCC’s SOR-13, pages 124 – 129. Mr Cameron’s Re-Inspection Report / Statement of Reasons dated 24/10/2014.

[36] QBCC’s SOR-13, page 125.

[37] Queensland Building and Constriction Commission Board Policy provides that a Category 2 defect is one that is a non-structural defect. Generally, for a Category 2 defect, the lodgement of a complaint has to be made within 6 months following the completion of the building work.

[38] QBCC’s SOR-14, pages 130 – 146. QBC’s letter to owners dated 21/11/2014.

[39] On 09/12/2014.

[40] QBCC’s SOR-15, pages 147 – 155. Mr Ferguson’s Inspection Report dated 30/01/2015.

[41] Ms June Blaney

[42] Ms June Blaney, the QBCC’s Internal Review Officer made this finding on 04/02/2015.

[43] Issued on 06/03/2015.

[44] QBCC’s SOR-16, pages 156 – 158. Issued 06/03/2015.

[45] QBCC’s SOR-17, pages 161 – 164. Mr Whalley’s letter dated 18/03/2015.

[46] This query was emailed to the QBCC on 09/02/2015. QBCC’s SOR-17, page 177.

[47] The Building Code of Australia provides the minimum necessary requirements for safety, health, amenity and sustainability in the design and construction of new buildings.

[48] QBCC’s SOR-18, pages 178 – 179. QBCC’s letter to the applicant dated 02/04/2015.

[49] Mr McKenzie’s Consultant Engineer Report sent on 14/04/2015. QBCC’s SOR-20, pages 182 – 185.

[50] QBCC’s SOR-22, page 190. QBCC’s letter to the owners dated 21/04/2015.

[51] QBCC’s SOR-23, page 193. QBCC’s letter to the applicant dated 22/04/2015.

[52] QBCC’s SOR-24, pages 195 – 228. NJA Consulting Pty Ltd provided their report to the QBCC on 01/12/2015.

[53] QBCC’s SOR-25, page 229. QBCC’s letter to the applicant dated 05/04/2016.

[54] QBCC’s SOR-26, page 239. QBCC’s submissions dated 18/10/2019, page 1, paragraphs 1 – 2. Direction to rectify and/or complete No. 42267.

[55] QBCC’s SOR-25, page 238. QBCC’S letter to the applicant dated 05/04/2016.

[56] The Building Code of Australia Vol 2, P2.2.2 – Weatherproofing.

[57] QBCC’s SOR-26, page 242. QBCC’s letter to the owners dated 08/04/2016.

[58] Applicant’s application filed 06/05/2016.

[59] Pursuant to the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32.

[60] Whalley v Queensland Building and Construction Commission [2017] QCAT 15.

[61] Queensland Building and Construction Commission v Whalley [2018] QCATA 38.

[62] Tribunal’s Directions dated 08/05/2019.

[63] An engineer engaged by the QBCC.

[64] Queensland Building and Construction Commission Act (1991 (Qld), Schedule 2.

[65] QBCC’s SOR-25, page 235. The term BCA is a reference to the Building Code of Australia.

[66] The local authority is the Townsville City Council.

[67] Building Code of Australia – Vol 2, Part 2.2; F2.2.2 Weathering and dampness.

[68] QBCC’s SOR-25, page 236.

[69] Australian Standards 2904 – Damp-proof.

[70] QBCC’s SOR-25, page 236.

[71] QBCC’s SOR-24, pages 195 – 228. Engineering report of Mr John Van de Hoef, Engineer of NJA Consulting Pty Ltd dated 01/12/2015.

[72] NJA Consulting Report, dated 01/12/2015, page 1.

[73] Dated 14/04/2015.

[74] Dated 07/05/2015.

[75] Dated 27/01/2015.

[76] Dated 20/04/2015.

[77] The author of the NJA Consulting Report was Mr John Van de Hoef, Senior Structural Engineer.

[78] Tracey Gramlick from the Australian Window Association, email dated 25/11/2015; Conal O'Neill from Weathertex, email dated 23/11/2015

[79] Representatives from Weathertex, Australian Window Association and Bradnams.

[80] QBCC’s SOR-24, pages 195 – 228. Engineering report of Mr John Van de Hoef, Engineer of NJA Consulting Pty Ltd dated 01/12/2015.

[81] QBCC’s SOR-24, page 202.

[82] QBCC’s SOR-25, page 237.

[83] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b).

[84] Queensland Civil and Administrative Tribunal Act 2009, s 20; Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[85] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19.

[86] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[87] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

[88] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[89] Queensland Building and Construction Commission Act 1991 (Qld), s 72.

[90] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 – Dictionary.

[91] QBCC’s SOR-2, pages 28 – 31.

[92] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2. Company means any body corporate.

[93] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2. The term ‘building contractor’ generally means a person who carries on a business that consists of or includes carrying out building work and includes a subcontractor who carries out building work for a building contractor. Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 – Dictionary.

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

[95] At the time of making the final decision, Mr Ferguson held a position within the QBCC as a Senior Technical Internal Review Officer.

[96] Inspection undertaken on 22/01/2015.

[97] Inspection Report dated 27/01/2015.

[98] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1.

[99] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 6. Complaint Item 1.

[100] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 7. Complaint Item 2.

[101] The Building Code of Australia, P2.2.2.

[102] The Building Code of Australia, 3.5.3.6.

[103] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 8. Complaint Item 3.

[104] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 9.

[105] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 9.

[106] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 10.

[107] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 11.

[108] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, Annexure SF-1, page 12.

[109] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, paragraph 7.

[110] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, paragraphs 9 – 10.

[111] Exhibit 5. Statement of Milton Stennett dated 13/04/2019, paragraphs 3 – 4.

[112] QBCC’S SOR, paragraph 63.

[113] To assist, the building code provides drawings of the typical window flashing detail.

[114] Exhibit 5. Statement of Milton Stennett dated 13/04/2019, paragraphs 5 – 7.

[115] Exhibit 2.

[116] Exhibit 2, page 3.

[117] Exhibit 2, page 4.

[118] Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705, 743.

[119] Exhibit 7. Statement of Stephen Ferguson dated 03/06/2019, paragraph 7.

[120] Building Code of Australia – Volume 2, Part 3.5.3.1 – Acceptable construction practice.

[121] [1985] 2 Qd R 472.

[122] [2019] QCA 138, [154] citing Spencer v The Commonwealth (1907) 5 CLR 418, 432; G & A Lanteri Nominees Pty Ltd v Fishers Stores Consolidated Pty Ltd [2007] VSCA 4, [22]; The Commonwealth v Milledge (1953) 90 CLR 157, 162;Holtmanv Sampson [1985] 2 Qd R 472, 474;Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209, 221.

[123] [2013] VSCA 229, [95].

[124] Pappas v Queensland Building Services Authority [2002] QDC 290.

[125] Don Mackay Pty Ltd v QBSA [2009] QCCTB 259 endorsing and approving the Tribunal’s earlier approach in Feoderoff v QBSA [2005] CCT QO35, [23].

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

[127] McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380, [72].

[128] McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380, [25].

[129] [1985] 2 Qd R 472.

Close

Editorial Notes

  • Published Case Name:

    Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 454

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    16 Nov 2020

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
Alsco Pty Ltd v VICA Mircevic [2013] VSCA 229
2 citations
Jump To
Cite 1 - [2013] VSCA 229
Cite 2 - [2013] VSCA 229
Boland v Yates Property Corp Pty Ltd (1999) 74 ALJR 209
2 citations
Jump To
Cite 1 - (1999) 74 ALJR 209
Cite 2 - (1999) 74 ALJR 209
Commonwealth v Milledge (1953) 90 CLR 157
2 citations
Jump To
Cite 1 - (1953) 90 CLR 157
Cite 2 - (1953) 90 CLR 157
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
4 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
Cite 3 - (1979) 24 ALR 577
Cite 4 - (1979) 24 ALR 577
Feoderoff v QBSA [2005] CCT QO 35
1 citation
Jump To
Cite 1 - [2005] CCT QO 35
G & A Lanteri Nominees Pty Ltd v Fishers Stores Consolidated Pty Ltd [2007] VSCA 4
2 citations
Jump To
Cite 1 - [2007] VSCA 4
Cite 2 - [2007] VSCA 4
Holtman v Sampson [1985] 2 Qd R 472
4 citations
Jump To
Cite 1 - [1985] 2 Qd R 472
Cite 2 - [1985] 2 Qd R 472
Cite 3 - [1985] 2 Qd R 472
Cite 4 - [1985] 2 Qd R 472
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
3 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Cite 3 - [2010] QCATA 58
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Mackay Pty Ltd v Queensland Building Services Authority (2009) QCCTB 259
1 citation
Jump To
Cite 1 - (2009) QCCTB 259
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
2 citations
Jump To
Cite 1 - (2001) 52 NSWLR 705
Cite 2 - (2001) 52 NSWLR 705
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QCA 380
3 citations
Jump To
Cite 1 - [2010] QCA 380
Cite 2 - [2010] QCA 380
Cite 3 - [2010] QCA 380
Pappas v Queensland Building Services Authority [2002] QDC 290
2 citations
Jump To
Cite 1 - [2002] QDC 290
Cite 2 - [2002] QDC 290
QM Properties Pty Ltd v Belscorp Pty Ltd [2019] QCA 138
2 citations
Jump To
Cite 1 - [2019] QCA 138
Cite 2 - [2019] QCA 138
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
2 citations
Jump To
Cite 1 - [2018] QCATA 38
Cite 2 - [2018] QCATA 38
R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228
2 citations
Jump To
Cite 1 - (1933) 50 CLR 228
Cite 2 - (1933) 50 CLR 228
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
3 citations
Jump To
Cite 1 - (2008) 235 CLR 286
Cite 2 - (2008) 235 CLR 286
Cite 3 - (2008) 235 CLR 286
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
Whalley v Queensland Building and Construction Commission [2017] QCAT 15
2 citations
Jump To
Cite 1 - [2017] QCAT 15
Cite 2 - [2017] QCAT 15

Cases Citing

Case NameFull CitationFrequency
Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 834 citations
VSC Corporation Pty Ltd t/as Kustom Homes v Queensland Building and Construction Commission [2024] QCAT 721 citation
1

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