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Kimama Holdings Pty Ltd t/as Visual Diversity Homes[2021] QCAT 445

Kimama Holdings Pty Ltd t/as Visual Diversity Homes[2021] QCAT 445

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kimama Holdings Pty Ltd t/as Visual Diversity Homes [2021] QCAT 445

PARTIES:

Kimama Holdings Pty Ltd t/as visual diversity homes

(applicant)

v

Queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR387-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 December 2021

HEARING DATE:

21 February 2020

 

7 December 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. The decision of the Queensland Building and Construction Commission to issue Direction to Rectify No. 0103858 on 17 September 2018 is amended as follows:
    1. (a)
      Items 4, 7 and 18 of the Direction to Rectify No. 0103858 are set aside.
    2. (b)
      Item 10 of the Direction to Rectify No. 0103858 is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where decision made to issue a direction to rectify to the builder – where the owner filed an application to review the decision – whether items of work are defective work – whether fair to give a direction to rectify

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

HWL Ebsworth Lawyers

REASONS FOR DECISION

  1. [1]
    Kimama Holdings Pty Ltd t/as Visual Diversity Homes (the builder) entered into a contract for the construction of a new dwelling with the owners of a property at Upper Coomera in Queensland on 21 May 2016. Work was completed at the property on 28 July 2017.[1]
  2. [2]
    The owners lodged a complaint on 31 May 2018 with the Queensland Building and Construction Commission (QBCC) relating to alleged defective work carried out by the builder.
  3. [3]
    The QBCC issued a Direction to Rectify No. 0103858 on 17 September 2018 to the builder.
  4. [4]
    The builder requested an Internal Review of the decision to issue the Direction to Rectify. An internal review decision was made on 24 October 2018 to give a direction to the builder to rectify items 4, 7, 10 and 18 of the complaint.
  5. [5]
    The items directed to be rectified were as follows:
    1. (a)
      Item 4 – gutter on the left-hand side of the dwelling
    2. (b)
      Item 7 – hip tiles to the left-hand side of the building
    3. (c)
      Item 10 – site surface drainage
    4. (d)
      Item 18 – ensuite cavity sliding door
  6. [6]
    On 31 October 2018 the builder filed an application to review the decision of 24 October 2018 in the Tribunal.
  7. [7]
    I heard the matter on 21 February 2020, and 7 December 2020, and gave directions for the filing of closing submissions. Submissions were filed in January and February 2021.
  8. [8]
    These are my Reasons in the matter.
  9. [9]
    The director of the builder, Mr Anthony Smith, and Mr Cornelius Koen, a building inspector employed by the QBCC, gave evidence at the hearing.
  10. [10]
    The issues to be determined in the matter, as submitted by the QBCC,[2] are:
    1. (a)
      Was the work ‘building work’?
    2. (b)
      Was the building work defective or incomplete?
    3. (c)
      Was the building work carried out by the builder?
    4. (d)
      Is it unfair to direct the builder to rectify the building work in all the circumstances?

The gutter issue

  1. [11]
    The QBCC submits that the guttering to the front right-hand side of the entrance portico roof did not comply with clause 3.5.2.4 of the Building Code of Australia in that it did not have the required fall to the downpipe, resulting in water ponding in the gutter.[3]
  2. [12]
    Mr Koen said that the gutter was not properly secured and flashed, which is not in compliance with the Building Code of Australia, or with Part 7.5 of the QBCC standards and tolerances guide.[4]
  3. [13]
    Clause 3.5.2.4 of the Building Code of Australia states that:[5]
    1. (a)
      gutters must be installed with a fall of not less than 1: 500 for eaves gutters, unless fixed to metal fascias; and
    2. (b)
      eaves gutters must be supported by brackets securely fixed at stop ends at not more than 1.2m centres.
  4. [14]
    The builder submits that there was confusion as to which gutter was being complained about, and that the complaint was originally as to a gutter attached to the portico, whereas the discussion later was as to the lower left side roof area.[6]
  5. [15]
    The builder submits that the defect was simply rectified at the time of the QBCC inspection:[7]

This defect was simply a case of the gutter being dislodged from the bracket and in doing so it had pulled the flashing adhesive away from the external cladding. Before leaving the inspection, the builder pushed the gutter back into the bracket and added a screw to the flashing as per the inspector’s suggestion.

  1. [16]
    The builder notes that other trades had accessed the roof to install solar panels, and submitted that there was more than a reasonable doubt that the gutter could have been dislodged by a third party working for the owner.[8]
  2. [17]
    The builder concluded that it would be unfair to require rectification of the gutter:[9]

These points combined with the fact the builder rectified this item before leaving the inspection would make any direction issued against them grossly unjust and pointless other than to unfairly punish them for an item that was never clearly identified as a defect in question.

  1. [18]
    There is a dispute as to whether the gutter was attached to a metal fascia. The builder says that clause 3.5.2.4 of the Building Code of Australia does not apply because the gutters were fixed to metal fascias.
  2. [19]
    Mr Koen stated that he observed that the gutter did not have the required fall to the downpipe on the left-hand side of the dwelling, and resulted in water ponding in the gutter near the entrance portico.[10]
  3. [20]
    Mr Smith contended in his evidence at the hearing that he could guarantee the gutter would have had a 1:500 fall when it was installed, otherwise the building inspector who did a complete inspection at handover would have picked it up; and that the gutter must have been dislodged by someone later.
  4. [21]
    There is no evidence that any further remedial works were performed to the gutter to alter the fall of it, or secure it, after Mr Smith had reseated it, and secured it with a single screw, at the QBCC inspection. That suggests that the fall was adequate when the gutter was seated in its attachment, and that a sufficient attachment system was initially provided.
  5. [22]
    I am not satisfied that it is established that the gutter was defective at the time of completion of the works, and that a Direction to Rectify should issue in relation to this item.

Hip tiles

  1. [23]
    The Direction to Rectify refers to the hip tile pointing in the described area as not being completed in a tradesman like manner, resulting in an unsightly appearance.
  2. [24]
    The complaint by the owners refers to ‘cracks around pier and the soffit is now twisted and ridge-capping now kicks up’.
  3. [25]
    The builder submits that the inspector issued the Direction to Rectify based upon the finish to the pointing having bled out onto the roof tile after application, which is not mentioned in the complaint by the owners.[11]
  4. [26]
    Mr Koen stated that he had climbed up the ladder onto the roof of the dwelling and saw that the flashing and the bedding of the last three hip tiles to the left-hand side of the river the dwelling were poorly installed and appeared unsightly in that the flashing and/or bedding did not match the finish the rest of the tile roof. He states that he observed that the hip and the gutter showed signs of bedding which prevented water free flow. [12]
  5. [27]
    The builder submits that he rectified this item prior to completion of the QBCC inspection and that the inspector failed to return to inspect it.
  6. [28]
    The QBCC submits that it may issue a direction irrespective of whether an owner has made a complaint in relation to the work the subject of the direction.[13]
  7. [29]
    It has not been established that this alleged defect does disturb water flow into the gutter. The alleged defect affects only three tiles, and had not previously been observed by the owners before the QBCC inspection.
  8. [30]
    I am not satisfied that it is established that the work was not rectified as submitted by the builder. I am not satisfied that there was a defect of sufficient significance in relation to the hip, which had not been repaired, as to be fair to issue a direction to rectify to the builder.

Surface drainage

  1. [31]
    The description of this item of the Direction to Rectify is:

The site drainage system is inadequate resulting in surface water causing ponding and water being directed towards the foundations of the dwelling.

  1. [32]
    Mr Koen said in his statement that he carried out a visual inspection of the installed turf on the right hand side of the yard at the rear and side of the dwelling, and took a measurement with a 1.2m spirit level, which showed negative falls towards the dwelling/footings.[14] An attached photograph shows the bubble of a spirit level being partially across one of the level marks.
  2. [33]
    In his evidence, Mr Koen stated that he could visibly see that the whole area was tilted towards the house.
  3. [34]
    Mr Koen refers to observations of a base slab stage building report dated 13 February 2017 by K-Spec that there was water ponding along footings at the rear of the property, and a further enclosed stage building report by them dated 8 March 2017 that there was still water ponding next to footings along the rear of the property.[15]
  4. [35]
    In his evidence, Mr Smith was critical of the practice of Mr Koen to put a spirit level on top of grass. Mr Smith said that he scraped the grass away and placed a spirit level on the dirt, and a different reading resulted.
  5. [36]
    Mr Smith stated that the ground works were completed correctly, and signed off by a licensed building certifier, and that the soil along the side of the house had later been compacted over a 12 month period by the owners’ dogs.[16] In his evidence he said that they were two 80 kg dogs.
  6. [37]
    The builder submits that Mr Koen accepted under cross examination that:[17]
    1. (a)
      there were two (2) large dogs living in the yard;
    2. (b)
      it would be unfair to ask a builder to rectify a yard damaged by a homeowner’s pets;
    3. (c)
      he never saw the yard at the time of handover; and
    4. (d)
      changing the falls would have required major machinery work
  7. [38]
    The QBCC submits that the evidence in relation to this item is conflicting between that of Mr Koen and that of the builder. It noted that the builder’s position was that the ground levels were compliant with the building approval, or certificates of inspection were accepted from competent persons, and that the builder’s position was that the ground levels were compliant as at 28 July 2017 when the Form 21 final inspection certificate was issued.[18]
  8. [39]
    The QBCC submits that Mr Koen gave evidence that the Form 21 final inspection certificate was issued before the levelling and landscaping was completed by the builder, and was also issued more than 12 months before the inspection.[19]
  9. [40]
    The builder’s contention is that the required fall of 50 mm over the first 1 m to enable sufficient drainage was provided at the time of handover, but that the yard was compacted by the owner’s dogs to such an extent that at the time of inspection by Mr Koen about 12 months later that there was not only a fall away from the house, but that there was a fall towards the house.
  10. [41]
    If the dogs were running on a concentrated path, there might be expected to be a track worn by their movement, but that is not suggested to have occurred.
  11. [42]
    It is difficult to accept that the owner’s dogs could have uniformly compacted the yard at the side of the house to the extent that a straight spirit level could touch the surface continuously.
  12. [43]
    The owners in their complaint to the QBCC noted that ‘RHS fall on the land falls towards the house causing flooding up against the house – video sent’.[20]
  13. [44]
    The owners therefore contended at that time that water did actually pool against the house, and Mr Koen’s evidence is that he measured and observed a fall towards the house.
  14. [45]
    The builder argues that the yard has been compacted by the owner’s dogs. This argument in itself implicitly accepts that the land is not currently level. The builder agreed in cross-examination that at the time of the QBCC inspection the ground was not level.
  15. [46]
    The evidence of Mr Koen is that changing the fall of the land would have required major machinery work. That proposition would make it unlikely that the activities of even two very large dogs would be sufficient to uniformly change the fall of the land over a 12 month period.
  16. [47]
    Whilst the final inspection report of 28 July 2017 did not make mention of any problem with the fall of the yard, it does not contain a positive statement that the fall is as required by the Building Code of Australia, and it was conducted about 12 months before finalisation of the landscaping works by the builder.
  17. [48]
    The builder said in cross-examination that his company had found when constructing a house that the top layers of the surrounding ground would be compacted by workers and machines.
  18. [49]
    Having regard to the evidence of Mr Koen, which I accept in this regard, I consider that it is highly unlikely that the change of fall of the land was caused by the owner’s dogs.
  19. [50]
    There is no suggestion that either the owners, or a third party, were involved in altering the fall of the land.
  20. [51]
    The logical conclusion is that the fall of the land at the completion of the works did not conform with the requirements of the Building Code of Australia to have a sufficient fall away from the house.
  21. [52]
    The consequences of water flowing towards a house, and affecting it, can be severe, so this item is one of importance.
  22. [53]
    I am satisfied that the decision to issue a Direction to Rectify in relation to the fall of the land is justified, and is not unfair to the builder.

Ensuite cavity sliding door and frame

  1. [54]
    This item is described by the QBCC in its submissions as follows:[21]

7.1 The final item on the DTR stated that the installation of the paint to the ensuite cavity sliding door was not completed in accordance with appendix C to AS/NZS 2311-2017 guide to the painting of buildings, in that there was an uneven surface finish which did not meet a reasonable standard of construction or finish expected of a competent holder of a contractors licence.

7.2 More specifically, Mr Koen has given evidence that the top timber rail (cleat) next to the sliding door was poorly painted and displaying a blemish, and that the frame had an uneven surface finish which does not comply with appendix C4(a)(i) and(iii) to Australian Standard 2311-2017.

  1. [55]
    The complaint by the owner on the complaint form as to this item (18) was that ‘cavity slider doorframe is bowed and/or has damaged frame’. The complaint does not refer to paint finish.
  2. [56]
    The builder submits that the doorframe was rectified before the QBCC inspection, and that the QBCC inspector issued the direction to rectify in relation to a previously unidentified item which was outside the 12 month minor defects period.[22]
  3. [57]
    The QBCC submit that the defects policy is merely a ‘guideline’, and that failure to adhere to the strict timelines in the defects policy is not a bar to the issuing of a direction to rectify.
  4. [58]
    The QBCC notes that Mr Koen did concede in cross-examination that the blemishes on the paintwork were a relatively minor issue.[23]
  5. [59]
    The paint blemishes were not raised in their initial complaint by the owners, and were only identified more than 12 months after completion of the work. The builder was not given the opportunity to repair the blemishes, which do not appear to have been brought to its attention until the QBCC inspection.
  6. [60]
    I consider that the paint blemishes to the ensuite cavity door are a minor issue, and that it is unfair to issue a Direction to Rectify this item in the circumstances.

Conclusion

  1. [61]
    The Direction to Rectify referred to four items. I am not satisfied that it was fair and justified to issue a Direction to Rectify as to items 4, 7 and 18.
  2. [62]
    I am satisfied that the issuing of a Direction to Rectify was fair and justified in relation to item 10 (the surface falls away from the building on the right hand side and rear of the block).
  3. [63]
    The decision of the QBCC to issue Direction to Rectify No. 0103858 is amended by setting aside items 4, 7 and 18; and confirming Item 10.

Footnotes

[1] Respondent’s closing submissions, chronology.

[2] Ibid [3.1].

[3] Ibid (4.1).

[4] Ibid (4.2).

[5] Ibid (4.3).

[6] Respondent submissions filed 26 January 2021, p 2.

[7] Ibid p 2.

[8] Ibid p 3.

[9] Ibid p3 oh.

[10] statement of Cornelius Koen, filed 15 August 2019 [10].

[11] This submission of the builder 26 January 2021, p 3.

[12] Statement of Cornelius Koen [11].

[13] Respondents closing submissions (6.1).

[14] Statement of Cornelius Koen 13 August 2019 [12].

[15] Ibid [12h].

[16] Applicant's response to respondents closing submission 12 February 2021, p3.

[17] Respondents closing submissions in reply 12 February 2021 [4.2].

[18] Ibid [6.6].

[19] Ibid [6.8].

[20] Statement of Reasons 339.

[21] Respondents closing submissions filed 29 January 2021 [7.1] and [7.2].

[22] Submissions of the applicant filed 26 January 2021, p 5.

[23] Respondents closing submissions filed 29 January 2021 [7.7].

Close

Editorial Notes

  • Published Case Name:

    Kimama Holdings Pty Ltd t/as Visual Diversity Homes

  • Shortened Case Name:

    Kimama Holdings Pty Ltd t/as Visual Diversity Homes

  • MNC:

    [2021] QCAT 445

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    15 Dec 2021

Appeal Status

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

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