Luscombe v Queensland Building and Construction Commission No 2
[2021] QCAT 15
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- Unreported Judgment
- Luscombe v Queensland Building and Construction Commission No 2[2021] QCAT 15
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Luscombe v Queensland Building and Construction Commission No 2[2021] QCAT 15
Luscombe v Queensland Building and Construction Commission No 2[2021] QCAT 15
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Luscombe v Queensland Building and Construction Commission No 2 [2021] QCAT 15 |
PARTIES: | TONY JASON LUSCOMBE (applicant) |
| v |
| QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR261-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 15 January 2021 |
HEARING DATE: | 25 September 2020 |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | The Reconsidered Scope of Works be set aside and a decision be substituted not to issue a Reconsidered Scope of Works. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – previous finding of defective work – whether scope of work necessary and reasonable – unfair to require rectification ESTOPPEL – application to administrative review – whether issue estoppel arises in a hearing of a statutory tribunal which is not bound by the rules of evidence Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss. 23 (4), 24, Queensland Building and Construction Act 1991(Qld) ss. 71A, 86(1)(g) and 87 Luscombe v Queensland Building and Construction Commission [2019] QCAT 13 Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385. |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Self represented |
Respondent: | HWL Ebsworth Lawyers |
REASONS FOR DECISION
- [1]This review by Mr Luscombe follows upon the rejection by Member Kanowski of all but one of the items the subject of a direction to rectify building work at a house at The Gap. In the first decision,[1] the following orders were made by Member Kanowski on 23 January 2019:
- (a)Except in respect of direction to rectify 42 issued on 13 February 2017, the decision of the Queensland Building and Construction Commission to issue directions to rectify to Tony Jason Luscombe is set aside and a decision is substituted not to issue directions to rectify.
- (b)The decision to issue direction to rectify 42 on 13 February 2017 is confirmed.
- (a)
- [2]On 6 September 2017, Mr Luscombe filed an application to review the scope of works decision in respect of all of the 42 items. On 20 March 2019, the Commission was invited by the Tribunal to reconsider the scope of works decision. It did so, and a reconsidered decision was issued on 15 April 2019 and confined itself to Item 42.
- [3]Mr Luscombe now seeks a review of the reconsidered decision which relates solely to Item 42.
Background
- [4]By way of background, I reproduce, in part, Member Kanowski’s introductory remarks to his reasons for decision in initial proceedings.
[1] … The property is an elevated bushland site. The owner, Ms Kill, engaged Mr Luscombe to build the house. The contract was signed on 23 October 2013. It named Ms Kill’s husband, Mr Cockburn, as Ms Kill’s representative for the contract. Work commenced in about late October 2013. Mr Luscombe and his employees and subcontractors undertook extensive work over the following year or two but the parties fell into dispute before the house was finished. Lawyers were engaged but agreement was not reached. Ms Kill then terminated the contract on 13 October 2015.
[2] Ms Kill made a complaint about Mr Luscombe’s building work to the Queensland Building and Construction Commission (‘QBCC’). After an inspection, QBCC issued directions to rectify to Mr Luscombe on 27 April 2016. Both Mr Luscombe and Ms Kill asked QBCC to review its decision. An internal review officer varied the decision on 8 February 2017, after a further inspection. This resulted in a new set of directions to rectify, dated 13 February 2017. This set contains 68 directions. This large number might create a misleading impression because in many instances a single identified problem resulted in a separate direction for each place in the building where that problem existed as well as a cover-all direction. There is also some other duplication.
[3] Mr Luscombe has applied to the Tribunal for an external review of QBCC’s decision. Mr Russell Ensbey of Gadens Lawyers represented Mr Luscombe at the hearing, while Ms Stephanie Hedger of HWL Ebsworth Lawyers represented QBCC. Oral evidence was given in Mr Luscombe’s case by Mr Luscombe, his site supervisor John De Lang, and Norman Bergin (a building consultant engaged as an expert witness by Mr Luscombe), and in QBCC’s case by Raithlin Trohear (a QBCC building inspector). There were 13 exhibits consisting of statements, reports, attachments, guidelines and so on. I also received a Scott Schedule, in which the parties set out particulars and their positions on each direction, and written submissions from each representative on 26 October 2018.
…
Overview of Mr Luscombe’s position
[11] Broadly speaking, Mr Luscombe’s position is that some of the work that QBCC has regarded as defective is not unsatisfactory at all. The remainder of the work largely reflects its incomplete state. These problems would have been ironed out in the normal course, he says, had Ms Kill not terminated the contract before the project was finished. Some of the problems arose, Mr Luscombe says, from Ms Kill’s conduct. This included engaging an unlicensed painter and, in October 2014, moving her family in to the incomplete house without consultation. Mr Luscombe says that several design changes became necessary as work progressed, yet Ms Kill refused to obtain revised plans, failed to agree to necessary variations, declined to advise what she wanted done, and so on.
[12] Mr Luscombe emphasises what he says was the unusual nature of the project. In summary, he says the owner’s husband Mr Cockburn was a friend. Mr Luscombe had previously undertaken major renovations for Mr Cockburn on a property at Albion. Mr Cockburn had effectively been the project manager. Mr Cockburn assumed a similar role at The Gap. He was frequently on site directing operations. Mr Cockburn was administering a tight budget and this led to many of the problems. At Mr Cockburn’s insistence, Mr Luscombe was prepared to carry out work that differed from the approved plans. This was because Mr Cockburn was a friend, and Mr Luscombe expected that things would be sorted out amicably in due course.
[13] In these circumstances, Mr Luscombe contends, directions to rectify are either unwarranted or unfair.
…
Overview of QBCC’s position
[15] At the outset of the hearing, QBCC acknowledged that some problems have since been satisfactorily rectified. On this basis, QBCC invited the Tribunal to set aside the decision to issue directions to rectify 1 to 4, 9, 28, 33, 48 and 57. As there is no disagreement about these, I do not propose to discuss them further.
[16] So far as the remaining directions are concerned, broadly speaking QBCC’s position is that overwhelmingly the work was not merely incomplete but inherently defective for one reason or another. Mr Luscombe is the licensed builder and ultimately, he must take responsibility for rectifying such work. Actions or inactions of the owner and her husband can be relevant to whether the discretion to direct rectification is exercised, but directions to rectify are appropriate in this case, QBCC argues.
Other relevant background matters
[17] Before considering various aspects of the building work, it is desirable to note some features of the site and the construction contract.
[18] Firstly, the site is classified as bushfire prone. Ms Kill had obtained a bushfire management plan which was prepared by a specialist firm.
[19] Secondly, the contract specified that the owner, rather than the builder, was required to obtain building and other required approvals. The owner was to provide the plans. Further, the owner warranted the accuracy of the plans and the suitability of the design specified in the plans. Ms Kill provided the design plans that were used. These had been prepared by engineering and design consultants.
[20] Thirdly, neither party has invited me to draw any conclusion about whether Ms Kill was entitled to terminate the contract. Without evidence from Ms Kill, I do not believe that I could reliably reach a conclusion on the point. Accordingly, I refrain from making any finding on that issue.
- [5]In respect to his findings in relation to Item 42 Member Kanowski said:
[92] I accept Mr Luscombe’s evidence that the door was satisfactory when installed. However, of course, such a problem may emerge only with the passage of time. On the available evidence, I prefer Mr Bergin’s opinion that the likelihood is that there was some ‘product issue’ with the door. On that basis, I find that the work is defective. It was Mr Luscombe’s responsibility to supply a suitable door. For some reason, the door he received from the supplier turned out not to be suitable. I see no unfairness in requiring him to rectify this defect.
- [6]Member Kanowski found that item 42 which was described as fire rated and the door to the entry foyer required rectification in that it did not have a margin of uniformity and consistency and when closed it projected eight to nine millimetres at the latch side resulting in a visual defect.[2] He further observed that that there was no dispute that the state of the door was unsatisfactory, though the parties had different views on whether it should be classified as defective or incomplete. The available evidence did not clearly establish the cause of the problem.[3]
- [7]The initial scope of works relating to Item 42 was as follows:
24.01 Remove & Reinstall Door frame to ensure plumb and level.
24.02 Remove & Replace Front door with matching style and type.
24.03 Remove & Reinstall Door hardware.
24.04 Prepare & Paint Only previously painted surfaces in similar finish and colour to existing.
24.05 Remove & Replace Plasterboard wall lining as required.
- [8]The Commission extended the Scope of Works in relation to Item 42 to cover the remediation of the adjoining area to achieve what it considered an acceptable finish commensurate with industry standards. It added the following:
24.06 Allow to remove and replace external cladding adjoining the front door jamb as required to facilitate repairs.
24.07 Allow to prepare and paint and paint previously painted surfaces in a similar colour to existing external cladding surrounding door jamb.
24.08 All works to comply with WHS requirements, current Australian Standards, National Construction Code and Manufacturers Installation Requirements and Standards.
24.09 Clean the work area and leave in a tidy condition.
Legislation
- [9]The functions of the Tribunal in a proceeding to review a reviewable decision are set out in s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The Tribunal can:
- (a)Confirm or amend the decision; or
- (b)Set aside the decision and substitute the Tribunal's own decision; or
- (c)Set aside the decision and return the matter to the Commission to reconsider the Decision with directions that the Tribunal considers appropriate.
- (a)
- [10]Under s. 23 (4) of the Queensland Civil and Administrative Tribunal Act 2009 if the decision maker reconsiders the decision then the amended or substituted decision becomes the reviewable decision.
- [11]Part 5 of the QBCC Act establishes the statutory insurance scheme. Pursuant to section 71A of the QBCC Act, the Commission may seek tenders for carrying out building work if it is of the opinion that a person may be entitled to assistance under the statutory insurance scheme.
- [12]A decision about the scope of works including a reconsidered scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work is a reviewable decision.[4] Mr Luscombe is entitled to apply to the Tribunal for a review of the decision under s. 87 of the Queensland Building and Construction Act 1991 (Qld) (QBCC Act).
Respondent’s submissions
- [13]The Commission submits that the key issue for the Tribunal to determine is whether the Reconsidered Scope of Works is reasonable and necessary to rectify the defects that are subject of the Second Direction to Rectify.
- [14]Mr Luscombe concedes that Items 24.08 and 24.09 are reasonable and necessary.[5]
- [15]The cause of damage was found by Member Kanowski as being some product issue with the door. The Commission says that the Tribunal can come to a different opinion as to the cause and is not bound by Member Kanowski’s finding. It is submitted that issue estoppel does not apply.
Issue estoppel
- [16]In Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [6] the Appeal Tribunal confirmed that issue estoppel will not arise unless in two proceedings there is an identity of parties and an identity of issues, and the previous issue must have been an ultimate issue which was part of a final judgment on the merits.[7] This, it is submitted, cannot occur in the context of a review of an administrative decision.
- [17]It is submitted that that the principle of issue estoppel does not arise in a hearing of a statutory tribunal which is not bound by the rules of evidence. [8]
Is there a commonality of issues?
- [18]Clearly, the parties are the same. The issue in the earlier proceeding was that the front door was not fitting properly and whether that was due to the door being warped or not being properly fitted. Member Kanowski noted that the was no dispute that the state of the door was unsatisfactory though the parties differed as to the cause. One view was that it was the door, the competing view was that there were other causes, not detailed in the reasons. He noted that the experts agreed that it was not a painting issue, that is, that one side of the door was painted and the other not, causing it to warp.
- [19]The learned member also accepted that it was satisfactory when installed and then went on to prefer the evidence that it was a ‘product issue’. I do not agree with the Commission’s submissions that there is no express finding as to the cause of the door’s protrusion, Member Kanowski expressed a preference for the cause being a ‘product issue’ and although that may be ambiguous it seems that the defect must be confined to the door. To that extent I think that was a finding in relation to the ultimate issue which was, firstly was there a defect and what was that defect.
- [20]The Commission now submits that it was also an incorrectly installed door frame that has caused the defect. This was not a cause mentioned in the reasons but may well have been one of the ‘other causes’.
- [21]The Commission now urges the Tribunal to revisit what was the defect when in fact what the Tribunal should be considering is whether the scope of work merely requires the repair or replacement of the door or whether it should extend to the repair or replacement of the door jam.
Applicant’s case
- [22]
Is the door frame plumb and level?
- [23]There were 3 witnesses who gave evidence on the issue and were cross examined:
- (a)Tony Jason Luscombe;
- (b)Tony Ghanimeh, General Manager, Australian Architectural Fire Doors Pty Ltd supplier of the door; and
- (c)Steven John Noble, the Principal Technical Officer employed by the commission.
- (a)
Tony Jason Luscombe
- [24]
- [25]When the smoke seals were removed, Mr Luscombe demonstrated by photographs that the door closed against the metal frame and was flush and neat at the top and bottom. He says that if the door seal is removed and relocated from its current position and repositioned will realign the door with the door frame and will be compliant.
- [26]Mr Luscombe has provided an alternative scope of work scenarios. They are to remove and relocate the smoke seals and, if necessary, adjust the hinges to realign the door.
Tony Ghanimeh
- [27]Mr Ghanimeh had not been to the site nor inspected the door. He viewed the photographs after he made the statement dated 4 November 2019. In that statement he affirmatively answered the question whether the door should be replaced.[13] He agreed, under cross-examination that it would have been an advantage to have seen the door before making the statement. He conceded that if he had viewed Mr Luscombe’s photographs, he may have provided a different opinion. Later, he expressed the opinion that if warped it was possible to straighten the door by laying it flat with weights on it.
Steven Noble
- [28]Mr Noble relied upon the initial report of the Commission’s building inspector Mr Rathlin Trohear. Mr Trohear measured the gaps between the door and the door jam and took photographs. The gaps were all within the Commission’s Standard and Tolerances 9.4 Door Clearance Guide. The photographs and findings are contained in his report dated 25 November 2016. When he looked at the face of the door in the closed position he found that it protruded at the top by 9mm and the bottom by 8mm which amounted to a visual defect. However, he assessed the fire rating of the door as not defective. This assessment is reproduced by Member Kanowski in his findings and appears at paragraph [6] above. Mr Trohear made only a visual assessment of the alignment of the door and door frame but did not measure it.
- [29]Mr Noble did not inspect the site or the door but relied upon Mr Trohear’s report. Further, he states that the Commission’s Standards and Tolerance Guide only applies where it does not contradict the relevant Australian Standards in this case AS959-2009 which he says requires doors to be tight fitting. Mr Trohear appears to have considered Australian Standards and satisfied himself with compliance. Indeed, he made a specific finding that it was tight fitting against the door stop.
- [30]Mr Noble disagrees with that assessment but concedes he had not inspected the door, other than from photographs, and that further stated that investigations could have been carried out but, regrettably, they weren’t. I prefer Mr Trohear’s account as he actually inspected the door.
- [31]Mr Nobel attempted to discredit the photographic evidence relied upon by Mr Luscombe that the door and door frame were plumb on the basis that the spirit level used and depicted in the photographs was old and covered in concrete deposits, which, according to him, made it susceptible to inaccurate readings. There is no basis to doubt the accuracy of the spirit level and I accept the accuracy of Mr Luscombe’s photographs.
Conclusion
- [32]I find that the door and door frame are plumb and level. That leaves the door which, on balance, appears to have become warped for any of a number of reasons. Member Kanowski found that it was Mr Luscombe’s obligation to provide a suitable door. On the evidence before me he did. It is unlikely that it would have been supplied in the state it was said to be in at the time it was inspected. Be that as it may, I am satisfied that it could have been rectified by relocating the door seals or even by flattening the door.
- [33]I do not think it is reasonable to replace the door. Nor do I think it is reasonable to direct Mr Luscombe to carry out any other work in relation to the door, e.g. relocation of seals, as such work has already been attend to by the Commission or its contractors under the statutory insurance scheme. Subsequent events and the expiration of time would make it difficult to distinguish between what work was necessary in accordance with these findings and the work actually carried out and the respective cost of such work.
- [34]I set aside the Reconsidered Scope of Works and make no further orders.
Footnotes
[1] Luscombe v Queensland Building and Construction Commission [2019] QCAT 13
[2] Luscombe v Queensland Building and Construction Commission [2019] QCAT 13 paragraph [87]
[3] Luscombe v Queensland Building and Construction Commission [2019] QCAT 13 paragraph [91]
[4] QBCC Act ss. 86(1)(g).
[5] Statement of Tony Jason Luscombe dated 6 August 2019 [2]
[6] [2012] QCATA 241
[7] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241 at [103].
[8] Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 at [32].
[9] Statement of Tony Jason Luscombe dated 6 August 2019 [5] to [7]
[10] Statement of Tony Jason Luscombe dated 6 August 2019 [5] (g)
[11] Statement of Tony Jason Luscombe dated 6 August 2019, [4] and Exhibits TJL-3 and TJL-4.
[12] Statement of Tony Jason Luscombe dated 6 August 2019, [4], [81, [10] to [11].
[13] Exhibit SN-11 to statement f Steven Noble dated 4 March 2020