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Groove Properties Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 191

Groove Properties Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 191

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Groove Properties Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 191

PARTIES:

GROOVE PROPERTIES PTY LTD

(applicant)

V

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR 342-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 May 2022

HEARING DATE:

25 January 2022

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. 1.The decision of the Queensland Building and Construction Commission dated 28 August 2020 to issue a direction to rectify defective building work to Groove Properties Pty Ltd is confirmed.
  2. 2.Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to the other party by 4:00pm on that date which is twenty-eight days after the date of this order.
  3. 3.If an application for costs is made in accordance with order 2:
    1. (a)
      the other party is to file in the Tribunal two (2) copies and give one (1) copy to the party making the application any submissions and evidence in response by 4:00pm on that date which is twenty-eight days after the date in order 2; and
    2. (b)
      the application will be determined on the papers and without an oral hearing unless a party requests an oral hearing not before 4:00pm on that date which is twenty-eight days after the date in order 2.
  4. 4.If no application for costs is made in accordance with order 2, there will be no order as to costs in this proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where review of direction to rectify defective building works – whether issue of water ingress is defective work – whether fair to give direction to rectify

Queensland Building and Construction Commission Act 1991 (Qld) s 3, s 71, s 72, s 71A, s 74, s 75, s 86, s 86C, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9(1), s 17(1), s 19, s 20, s 21, s 23, s 28, s 29, s 100

Statutory Instruments Act 1992 (Qld) s 7

Queensland Building and Construction Commission “Insurance Policy Conditions, Edition 8”

ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386

Briginshaw v Briginshaw (1938) 60 CLR 336

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

Cowen & Anor v QBCC & Anor [2017] QCAT 416

Dixon Projects Pty Ltd v QBSA [2009] QCCTB 2

Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259

Duke Building Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397

Holtham v Queensland Building and Construction Commission [2018] QCAT 316

JM Kelly (Project Builders) Pty Ltd v QBSA [2010] QCAT 568

Taouk v QBSA [2013] QCAT 508

Walker v Queensland Building and Construction Commission [2014] QCAT 228

Wright & Anor v Duke Building Pty Ltd & Anor [2017] QCATA 35

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Mr Andrews, in-house Solicitor

REASONS FOR DECISION

What is this application about?

  1. [1]
    The Queensland Building and Construction Commission (“QBCC”) operates the Queensland Home Warranty Scheme (“the scheme”), a statutory insurance scheme pursuant to which homeowners have access under a policy of insurance (“the policy”) to certain remedies where a builder is alleged to have performed defective building work.
  2. [2]
    Pursuant to a contract dated 17 June 2014 (‘the contract”), Groove Properties Pty Ltd, a licensed building company, constructed a two-storey home in Carindale for Mr and Mrs Zuppini.  Works completed and final payment was made on or by 27 March 2015. 
  3. [3]
    On 12 February 2020, Mr Zuppini complained to the QBCC about defective building work summarily identified as follows:
    1. (a)
      Water ingress through the light fitting in the upstairs living room during storms noticed on 24 December 2019 (“Complaint 1”);
    2. (b)
      Water ingress through the garage door ceiling mounts on garage ceiling, power points and light noticed on 24 December 2019 (“Complaint 2”);
    3. (c)
      Water ingress issue recurring following rectification works at the front balcony noticed on 12 February 2020 (“Complaint 3”); and
    4. (d)
      Water ingress issue recurring following rectification works at the rear balcony noticed on 12 February 2020 (“Complaint 4”).
  4. [4]
    Pursuant to the scheme, the QBCC can direct a builder to rectify defective work and if they do not, alternate builders can be engaged to perform the work with the original builder to reimburse the scheme for the cost of the rectification works.
  5. [5]
    On 17 June 2020 the QBCC directed Groove Properties Pty Ltd to rectify the defective building works the subject of the complaints.
  6. [6]
    Following an internal review, the QBCC decided[1] to direct rectification of the building work the subject of Complaint 4 only,[2] being:

The balcony at the rear left-hand side of the dwelling is not constructed in accordance with the NCC 2014, BCA Vol 2 Part 2.2.2 Weatherproofing as water is able to penetrate the building resulting in deterioration of building elements.

  1. [7]
    In its application for review filed 10 September 2020, Groove Properties Pty Ltd asked the tribunal to review the decision.  
  2. [8]
    On 11 May 2021, following a reconsideration[3], the QBCC confirmed the decision dated 28 August 2020 to issue a direction to rectify for Complaint 4. 
  3. [9]
    The following evidence was tendered in the proceedings:
    1. (a)
      Statement of Peter Doolan, Building Inspector employed by the QBCC, dated 22 July 2021;[4]
    2. (b)
      Statement of Mario Zuppini, homeowner, dated 20 July 2021;[5]
    3. (c)
      Statement of Reasons dated 15 February 2021;[6]
    4. (d)
      Statement of Nick Madden, director of Groove Properties Pty Ltd dated 23 June 2021[7]; and
    5. (e)
      Application for Review including its attachments.
  4. [10]
    Oral evidence was given by: 
    1. (a)
      Mario Zuppini;
    2. (b)
      Nick Madden; and
    3. (c)
      Peter Doolan. 
  5. [11]
    The parties also made written submissions filed 4 February 2022 (for the Commission) and 23 June 2021 and 11 February 2022 (for Groove Properties Pty Ltd). 

What is the role of the tribunal in these proceedings?

  1. [12]
    The tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act[8] and its review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[9] 
  2. [13]
    Under sections 86(1)(e) and 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) a person affected by a direction to rectify defective building work (namely, by a reviewable decision) may apply to the tribunal for a review of the decision.
  3. [14]
    It is not in dispute that:
    1. (a)
      Mr Zuppini is a homeowner with protection under the policy;
    2. (b)
      Groove Properties Pty Ltd carried out building work[10] for Mr Zuppini;
    3. (c)
      rectification work has now been carried out; and
    4. (d)
      the application for review was filed within time, properly served and there are otherwise no preliminary or jurisdictional impediments to the tribunal hearing the dispute.
  4. [15]
    The role of the tribunal in such an application is to review the circumstances afresh and to produce the correct and preferable decision.[11]
  5. [16]
    The role of the QBCC is to assist the tribunal in making that decision,[12] rather than to take an adversarial role or to defend the decision under review.

What are the issues for the tribunal in deciding about rectification?

  1. [17]
    The decision under review is a decision to direct Groove Properties Pty Ltd to rectify water penetration to the rear balcony of the Zuppinis’ home.
  2. [18]
    Pursuant to section 72 of the QBCC Act, to direct Groove Properties Pty Ltd to rectify building work, the tribunal must be satisfied that:[13]
    1. (a)
      the building work is “defective”; and, if so,
    2. (b)
      Groove Properties Pty Ltd is responsible for the defective building work; and, if so,
    3. (c)
      it is fair in all the circumstances to direct Groove Properties Pty Ltd to rectify the defective building work. 
  3. [19]
    The tribunal must:
    1. (a)
      weigh up factors both for and against the issue of a direction and to consider the competing interests of the parties, the cause of the defective work and the blameworthiness of the homeowners; and
    2. (b)
      consider the competing interests of the parties involved and an over-reaching public policy consideration of ensuring proper standards in the industry.[14]

Factual background to the decision under review

  1. [20]
    According to Mr Zuppini, water penetration was occurring on the rear balcony in September 2015. He did not complain to the QBCC the time because Mr Madden was attending to the defect.
  2. [21]
    Mr Zuppini said he observed paint bubbling in the underside of the balcony after a rain event.
  3. [22]
    Emails were exchanged by Mr Zuppini and Mr Madden on 21 and 27 October 2015[15] in which the following was said (my emphasis added):
    1. (a)
      Mr Zuppini (21 October 2015):

The tiler came just after I messaged him the other day to come sort this pond out. He can't do anything, it's been as dry as I can get it and clean for about 5 days, this morning there's some water in there somehow. So, he couldn't do anything.

Also showed him water pooling on re balcony, nothing can be done, he said he mentioned the problem to you during the build and that slab/balcony wasn't done well, so they would have had to make a bed so full could be enough. Apparently, you said just put the tiles down as is, so now he's not sure what can be done about it. The concern apart from water not falling away is also water sitting around the spigots and getting into the floor.

  1. (b)
    Mr Madden (27 October 2015):

I will be popping around a little later in the day just sort out pond… The tiler is back-pedalling with the balcony. He never mentioned to me about the fall, and it is one joist spanning that distance so I can get fall on the rest of the balcony but not the front edge as the joist are all running at the same plan.

I will deal with him and look at how much water is it is holding and see if it is within the tolerances. The balcony is fully waterproofed so, if not a lot of water it should be fine.

  1. [23]
    On 4 November 2015 a representative of the applicant attended the property and cleaned mould from the underside of (the ceiling beneath) the balcony.
  2. [24]
    By May 2017 Mr Zuppini says the defect had persisted, triggering another exchange of emails between Mr Zuppini and the applicant[16] in which the following was said:
    1. (a)
      Mr Zuppini (31 May 2017):

9 August 2016

Defect item: mould / water drainage issue on the rear balcony

Unsure if this is from cracks in the side, or if the waterproofing is broken from where the spigots for the balustrade were mounted.  Nick’s guy came in just wiped the mould away when they came out 4th November, problem still exists.

19 January 2017

Defect item: rear balcony drainage problem

Tiles rear corner are catching water and causing it to pool up on the balcony instead of running off. Most likely part of the issue mentioned back in August.  

  1. (b)
    Mr Madden (23 June 2017) (replying to Mr Zuppini’s text):

9 August 2016

Defect item: mould / water drainage issue on the rear balcony

Unsure if this is from cracks in the side, or if the waterproofing is broken from where the spigots for the balustrade were mounted.   Nick’s guy came in just wiped the mould away when they came out 4th November, problem still exists.

I will inspect the cracks.

19 January 2017

Defect item: rear balcony drainage problem

Tiles rear corner are catching water and causing it to pool up on the balcony instead of running off. Most likely part of the issue mentioned back in August.  

Not a defect.

  1. [25]
    In the homeowners’ spreadsheet titled “Defects Rectification Works” dated 21 July 2017,[17] the following notes were made:

Groove Properties (GP)

Issue

Details

To be actioned as discussed at site meeting

Water leak deck tiled balcony

Water leak on rear upper deck balcony causing

- mould to rear alfresco ground floor ceiling

- cracking, swelling and mould to render and paint on lower alfresco fascia

GP to carry out testing to locate source of penetration to waterproofing.

GP suggested sealing base of glass balustrade spigots

GP to test drainage and fall as possible cause

GP to repair location of water leak

Updated 21/07/2021 – GP has applied sealant to the base of glass balustrade spigots, water testing completed but will be unsure as to whether this is resolved until water damage is fixed and area is monitored over a period of time for reoccurrence. 

Damage associated with water leak

- mould to rear alfresco ground floor ceiling

- cracking, swelling and mould to render and paint on lower alfresco fascia

GP to repair and refinish locations of associated damage cause by water damage.

As listed in “Details”.

  1. [26]
    I am satisfied that there is clear evidence, up until July 2017, of water penetration to the rear balcony resulting in deterioration of building elements and that this was a consequence of defective building works by the applicant.
  2. [27]
    Mr Zuppini then[18] made a complaint alleging defective building work and was informed by the QBCC[19] that they would not be issuing Groove Properties Pty Ltd with a direction to rectify.
  3. [28]
    Due to exploding panels on the rear balcony, the homeowner engaged Innovative Stainless Steel Designs Pty Ltd (“ISSD”) to replace the glass balustrades on the rear balcony in November 2018.  As the panels originally installed by the applicant could no longer be sourced, ISSD needed to install slightly larger panels, requiring the top rail of the balustrade to be moved vertically by approximately 25mm, leaving a small penetration to the column at the rear balcony where the top rail of the balustrade was previously attached to the balcony columns.
  4. [29]
    A letter from Darryl Pather, director, ISSD dated 24 April 2020 was tendered to the tribunal by the applicant, and states as follows:

On 16/11/2018 Innovative Stainless Steel Designs Pty Ltd was commissioned by Mario Zuppini… to replace the external glass balustrades and handrails to the rear balcony above the pool.

It was stated and accepted by the owner that replacing the existing glass to the rear balcony, that the dimensions of the new glass were greater in dimensions than the existing glass. So, the handrail would need to be repositioned higher than the existing handrails. This would leave penetrations in the lightweight render coating columns where the existing handrail brackets would be removed, and the new brackets installed higher up the columns. The owner would have to rectify the old penetrations at his expense, as this was not allowed for.

  1. [30]
    On 12 February 2020, after a prolonged period of rain, Mr Zuppini noticed bubbling to the underside of the balcony and filed the complaint that led to the decision under review.
  2. [31]
    The QBCC engaged BT Plumbing Services Pty Ltd who inspected the property on 8 May 2020, issuing a report dated 23 May 2020,[20] although this report doesn’t appear to address complaint item 4. 
  3. [32]
    Mr Madden met with Mr and Mrs Zuppini and with Mr Doolan at the site on 13 May 2020. Mr Doolan’s photographs and audio recording from the inspection were tendered to the tribunal.[21] 
  4. [33]
    The homeowner conducted his own further testing on 22 May 2020, sending the results to Mr Doolan.

Is the building work defective?

  1. [34]
    Part 6 of the QBCC Act contains the relevant provisions for rectification work.
  2. [35]
    The QBCC will also have regard to the Rectification of Building Work Policy (“the policy”) when responding to complaints about defective building work.
  3. [36]
    The policy is approved under the Queensland Building and Construction Commission Regulation 2018 (“QBCC Regulation”) and has effect as a statutory instrument.[22]
  4. [37]
    The policy relevantly provides in Part 5 that:
    1. (a)
      building work is defective if it does not comply with the Building Act 1975 (Qld), the Building Code of Australia (“BCA”) or an applicable Australian Standard;
    2. (b)
      building work is defective if it involves the use of a manufactured product and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions;
    3. (c)
      defective building work is structural defective building work if it is faulty or unsatisfactory because it adversely affects the structural performance of a building, adversely affects the health and safety of persons residing in the building, adversely affects the functional use of the building or allows water penetration into a building; and
    4. (d)
      defective building work is non-structural defective building work where it does not meet the reasonable standard or finish expected of a competent holder of a licence in the relevant class.
  5. [38]
    Volume 2, Part 2.2.2 of the BCA provides that:

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

  1. (a)
    unhealthy or dangerous conditions, or loss of amenity for occupants; or
  2. (b)
    undue dampness or deterioration or building elements. 
  1. [39]
    Therefore, questions to be answered include:
    1. (a)
      is water penetrating the rear balcony?
    2. (b)
      if so, where is it penetrating from?

Applicant’s submissions

  1. [40]
    The applicant says that they attended to all historical issues with the property and that there is no water penetration to the rear balcony.   They say that the QBCC failed to adequately investigate the issue, relying instead on the homeowners’ unqualified opinion and rudimentary tests, and made the following submission:[23]

Rather than have a hydraulic engineer or a leak detection company to review the apparent water penetration to the rear balcony, [the Commission] solely relied upon the homeowner's evidence to determine water penetration.

… During 2015 and 2017 the applicant was unable to find evidence of water penetration. A small area of mould was removed from the underside of a different area of the balcony however this is not evidence of water penetration. External mould on ceilings in tropical climates is due to high humidity.

The application of silicon to various areas during any property inspection is an action undertaken as a matter of course and not an acknowledgement of water penetration nor a remedy for water penetration that may cause deterioration of building elements.

On 13 May 2020 a water test was conducted by the inspector including thermal imaging that did not produce evidence of any water penetration.

The homeowner’s water test is not reliable as there are inconsistent reports of how long the tests were conducted for and how they were conducted, combined with the lack of visible evidence of water penetration demonstrating reasonable proof that there was no water penetration occurring to the rear balcony.

Grainy images of pencil marks around supposed water spots on the underside of the rear balcony, and apparent paint bubbling images taken just inches from the area do not account for serious evidence of water penetration.

The Commission states that visual inspections of defective areas are to be taken from 1.5 metres to 2 metres away in natural daylight to ensure a reasonable image of the area. The images tendered by the homeowner were taken at night inches away with a spotlight shining across the service of the building which picks up many different superficial marks within and external to the painted finish.

A failure in the waterproofing membrane on the rear balcony would have displayed extreme and significant water damage well within the five-year period from when the home was handed over in 2015 to when Mr Doolan conducted his only inspection of the property in 2020.

The applicant raised the penetration in the vertical column as being the likely access for water ingress in the absence of any major and significant signs of water penetration to the area

If there was evidence of water penetration to the rear balcony, it would have been both evident and subsequently resolved during previous remedial works to the property.

Mr Doolan acknowledges that when he inspected the property in May 2020, there was no evidence of existing water penetration, despite his water test.

… All water tests conducted to the balcony by the homeowner where it was claimed there were subsequent water penetration to the rear balcony, occurred after works to the balustrading to the area and the installation of a security camera to the ceiling above. Works to the balustrading… border penetrations to the lightweight column directly over the ceiling area of concern. These works would have also disturbed the sink the spigots that are connected to the floor and waterproofing allowing water penetration to the area. The Commission never returned to the property after their initial inspection and were only able to rely upon the grainy camera photo imagery supplied.

If water penetration did exist during the five years, there would have been significant aesthetic and structural evidence of the damage caused by the existence of water penetration within that time and certainly in May 2020 when the Commission attended site for an inspection. Evidence exists by way of grainy images showing what is indicated as pencil marks where sometimes paint bubbles according to the homeowner. At inspections in November 2015, July 2017 and May 2020 paint bubbles were never evident after water tests were conducted by both the Commission and the applicant

  1. [41]
    Mr Madden also says that he went out to inspect the ceiling on 8 July 2020 and there was no evidence of damage on the ceiling at all at that point. He did note that the homeowner had installed a security camera in the place where the leaks were said to have been occurred and he questioned whether a homeowner would reasonably install electronic equipment in an area that the homeowner said was subject to water penetration.
  2. [42]
    In its alternate submission, the applicant says that water penetration must, if it is occurring, be from the small hole in the column caused by the relocation of the balustrade and its brackets by ISSD in November 2018.
  3. [43]
    On this point the applicant replies upon the letter from Mr Pather from ISSD in which the homeowner was cautioned by ISSD to rectify the penetrations caused by the relocation.
  4. [44]
    Therefore, the applicant’s submissions are that:
    1. (a)
      there is no water penetration the building elements, and
    2. (b)
      if there is, another contractor or the homeowner is responsible for works on the property that led to that defect.

Respondent’s submissions

  1. [45]
    Among other things, Mr Doolan said in his written statement that:
    1. (a)
      During his inspection of the property on 13 May 2020 he performed a visual inspection of the balcony, conducting a water test on the balcony and viewing the balcony using an Flir thermal imaging camera, which can detect internal water penetration.
    2. (b)
      He conducted the water test by applying a running hose to the base of the column and balustrade spigots on the balcony for approximately twenty-four minutes, but could not detect water penetration on the balcony from his balcony column and balustrade spigots water test, nor via the thermal imaging camera during the inspection.
    3. (c)
      He then conducted a water test by applying a running hose to the side fascia and floor junction for approximately seven minutes, during which water was still flowing towards the base of the balcony column, but he could not detect water penetration on the balcony from his floor and fascia water test, nor via thermal imaging camera during the inspection.
  2. [46]
    Mr Doolan did, however, directly witness evidence of damage from water penetration in paint bubbling to the ceiling on the underside of the balcony, as the paint appeared to him to be delaminated and discoloured.
  3. [47]
    He says that he assumed that his water test did not cause water penetration because the amount of water he applied during the test was of an insufficient volume.
  4. [48]
    Following the inspection Mr Doolan says that when Mr Zuppini reported that water penetration had re-occurred after significant rainfall, Mr Doolan requested that Mr Zuppini conduct a further water test and send the results that he could better identify the location of water ingress.
  5. [49]
    Mario Zuppini described the water tests he undertook on 22 May 2020 as follows:
    1. (a)
      at approximately 9am, he placed a hose with a hand sprinkler attachment on the balcony, facing away from the house with the water stream from those directed towards the area where the paint bubbling was prevalent;
    2. (b)
      at 9:20am he noticed paint bubbling on the area underneath the ceiling for the balcony, which worsened, with prominent bubbles becoming visible at about 11am;
    3. (c)
      he stopped the hose at midday; and
    4. (d)
      he took photographs during the test on 22 May 2020, more on 25 May 2020 and supplied them to Mr Doolan.[24]
  6. [50]
    Mr Zuppini outlined the water staining/bubbled areas in the ceiling with pencil marks.  Accordingly, the photographs supplied include those pencil marks, which are not to be taken as watermarks themselves.
  7. [51]
    Mr Doolan agrees with paragraph 15 of Mr Zuppini’s statement dated 21 July 2021 that he accepted the results of the water test carried out by the homeowner, because the results of that water tests were consistent with the evidence of water penetration he witnessed at the inspection, despite that he could not detect water penetration during his own tests and via thermal imaging.
  8. [52]
    Mr Doolan’s initial inspection report dated 25 May 2020 following the inspection on 13 May 2020 and the information provided by Mr Zuppini about his subsequent water test includes the following relevant information:

The floor framing face ER panel acted as drip mould to the ceiling beneath the balcony.

The balcony floor was fibre cement sheeting with tiles.

There was a rendered blue board column in the rear left-hand corner of the balcony.

Beneath the upper-level blue board: the ceiling showed signs of water damage through blistering paint work and visible water staining on the paintwork.

The balcony had a glass balustrade which was fastened to the floor with brackets

The balustrade brackets were sealed to the floor.

On 21 May 2020 photographic evidence of paint bubbling in the same proximity of where ceiling marks were found during the initial site inspection.

The claimant advised having conducted a water test on the balcony floor on 22 May 2020.

A hose was used to spray water on the balcony at the left-hand side of the dwelling.

The hose was directed to the rear left-hand column.

The water test was conducted from approximately 9am to midday.

The hose was not moved at any time throughout the water test.

From 9:20am onwards puffs under the paint on the ceiling below started to appear and by 11am the ceiling below the balcony had more sections of water showing.

  1. [53]
    In the hearing, Mr Doolan said, when challenged by Mr Madden, that, whilst it is preferable to conduct tests himself, sometimes the QBCC does rely on tests undertaken by homeowners.
  2. [54]
    He also referred to the discussion with Mr Madden (captured in his audio recordings) during the site inspection on 13 May 2020 in which Mr Madden discusses whether water could penetrate the small hole created by ISSD when they moved the balustrades in brackets in which the following is said

Mr Doolan:  The amount of water that would have to come through that particular hole to create damage would be...

Mr Madden:  Oh I know that but I’m saying…[inaudible]…a hole like that in the floor would create that much damage.

Mr Doolan:  It would.

  1. [55]
    This appears to be a concession by Mr Madden on 13 May 2020 that there was water penetration to the balcony even though he also said in his evidence that could not see any evidence of water damage to the underside of the rear balcony that day. 
  2. [56]
    It is also submitted by the respondents that this discussion is a concession by Mr Madden that the small hole left by ISSD was insufficient in size and location to allow the volume of water ingress needed to create the level of damage observed by the homeowner and by Mr Doolan.
  3. [57]
    Mr Zuppini denies that the work undertaken by ISSD to replace the glass panels on the rear balcony and in particular the small penetration that remains in the column are responsible for the water penetration. He says the water penetration was evidencing itself prior to those works being undertaken, and that, in any event, in his own water test he did not direct water at that penetration. Mr Zuppini is also of the (albeit unqualified) view that the covered location of the hole in the column and its small size would mean it would be difficult for any water to get in.

Findings

  1. [58]
    I am satisfied on the evidence that there is water penetration to the rear balcony that will deteriorate building elements. 
  2. [59]
    Photographs tendered in evidence satisfy me that there is bubbling and water staining, even discounting the homeowner’s added pencil marks that overly emphasise the evidence of damage.  I accept the evidence of Mr Zuppini and Mr Doolan in this regard, the latter being a builder and carpenter of some experience who says that he observed damage from water penetration even though his own brief tests failed.  The historical, and early, reports by the homeowner of the water penetration and the applicant’s earlier attempts to rectify it (somewhat superficially on one occasion by simply wiping away mould), support this finding.
  3. [60]
    The source of the water penetration isn’t particularly clear on the evidence before the tribunal however I do not consider that the small horizontal hole in the vertical column created by ISSD in November 2018, left untreated by the homeowners, is the source of the water penetration because:
    1. (a)
      having view the photographs of the homeowner’s water test, which do suggest at least some sprayed water would have reached the hole, it was of an insufficient volume to create water pooling below and the bubbling, staining and mould on the underside of the balcony observed by the homeowner;
    2. (b)
      the same damage was observed by Mr Zuppini in the three years prior to the making of the hole by ISSD; and
    3. (c)
      although the audio is difficult to hear in parts, Mr Madden did appear to make a concession during the 13 May 2020 inspection that the hole is unlikely to allowed the volume of water required to make the damage observed by the inspector, but the situation might be different if the hole were on the floor of the balcony.

Is Groove Properties Pty Ltd responsible for defective building work?

  1. [61]
    The QBCC say that the applicant carried out the works under the building contract, was paid in full for them and is, therefore, responsible for the defect.  I agree with this submission, having dismissed the suggestion that the homeowner or another contractor were responsible for the defective building work.

Is it fair in all the circumstances to direct rectification?

  1. [62]
    The fairness of directing rectification will turn on the facts of each case and is a matter of discretion.[25]
  2. [63]
    The conduct of the parties, and any fault attributable to them, is a relevant factor[26] as is maintaining the objects of the QBCC Act[27] to regulate and to maintain proper standards in the building industry.[28]
  3. [64]
    The QBCC submits that it is fair to require Groove Properties Pty Ltd to rectify the defective building works in circumstances where:
    1. (a)
      they were engaged under the building contract to construct the rear balcony and the homeowner is entitled to the construction being completed free of defects;
    2. (b)
      the homeowner made several attempts to have the applicant rectify the defect in the years between the works being completed and the complaint being made;
    3. (c)
      the objects of the QBCC Act are to uphold proper standards within the industry and proper standards would include ensuring that the balcony constructed by the applicant was not defective;
    4. (d)
      the policy position in respect of the rectification of defects is that a building contractor who carries out defective building work should be required to rectify that work;[29] and
    5. (e)
      where they have been paid in full under the building contract.
  4. [65]
    I accept these submissions and further note that the defect has been enduring since shortly after the works were completed, the applicant’s attempts to rectify it were largely superficial, treating the symptom of mould and not the cause (water ingress), and the defect will, if left unrectified, create substantial damage to building elements.
  5. [66]
    In those circumstances it is not unfair to the builder to require rectification.

Conclusion

  1. [67]
    Although there is no formal onus in review proceedings,[30] there is nonetheless both an evidential[31] and a practical[32] onus upon Groove Properties Pty Ltd to provide appropriate evidence to the tribunal to support the decision it seeks.
  2. [68]
    The requisite standard of proof is the balance of probabilities, albeit to a sliding scale whereby the more serious the consequences, the higher the standard of “reasonable satisfaction” is needed for an application to succeed.  This principle was espoused by Justice Dixon in Briginshaw v Briginshaw:[33]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.

  1. [69]
    I am satisfied on balance that the applicant was responsible for and was paid for building work comprising the construction of the rear balcony, that the subject defect in the work appeared shortly after construction and, although some superficial attempts were made by the applicant to remedy the defect in 2015 and 2017, the defect has not been remedied and it ought to be.  There are no demonstrable causative links between the defect and acts or omissions of the homeowner or other contractors that would led to the tribunal to set aside the decision under review.

What is the “correct and preferable” decision? 

  1. [70]
    I am satisfied that:
    1. (a)
      water penetration was occurring to the rear balcony at the property;
    2. (b)
      the water penetration was occurring due to the failure by the applicant to construct the rear balcony in such a manner as to prevent water penetration in contravention of Part 2.2.2 of the NCC;
    3. (c)
      accordingly, complaint item 4 is defective building work for which the applicant is responsible; and
    4. (d)
      it is not unfair to give a direction to rectify to the applicant.
  2. [71]
    Accordingly, the correct and preferable decision is to confirm the decision dated 28 August 2020 to issue a direction to rectify defective building work to Groove Properties Pty Ltd.

The question of costs

  1. [72]
    Section 100 of the QCAT Act requires that each party to tribunal proceedings bear its own costs unless the circumstances of the proceedings and the “interests of justice” compellingly require otherwise.
  2. [73]
    This is a review proceeding where the Commission’s decision has been confirmed. Consequently, unless either party files an application for costs and gives the other party submissions to the contrary within 14 days, each party must pay their own costs.

Footnotes

[1]  Essentially, by default pursuant to section 86C(3) of the QBCC Act.

[2]  Decision of the QBCC made 28 August 2020, notified to the applicant on 8 September 2020.

[3]  Invited by Member Kent by a direction made 15 March 2021 pursuant to section 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).

[4]  Exhibit 1.

[5]  Exhibit 2.

[6]  Filed pursuant to section 21(2) of the QCAT Act; Exhibit 3.

[7]  Exhibit 4.

[8]  Section 9(1) of the QCAT Act.

[9]  Section 17(1), ibid.

[10]  Within the meaning of Schedule 2 of the QBCC Act.

[11]  Section 20 of the QCAT Act.

[12]  Section 21, ibid.

[13] Duke Building Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397.

[14] Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259; JM Kelly (Project Builders) Pty Ltd v QBSA [2010] QCAT 568 at [22]; Dixon Projects Pty Ltd v QBSA [2009] QCCTB 2 at [26]; Taouk v QBSA [2013] QCAT 508 at [39]; Cowen & Anor v QBCC & Anor [2017] QCAT 416 at [25].

[15]  Marked MZ-1 to Exhibit 2.

[16]  Annexure MZ-2 and MZ-3 to Exhibit 2.

[17]  Attached to an email sent to the applicant on 17 July 2017, marked MZ-4 to Exhibit 2.

[18]  Complaint made 12 June 2018 (attachment “SOR 3” to the Statement of Reasons).

[19]  Letter dated 4 September 2018 (attachment “SOR 4” to the Statement of Reasons).

[20]  Attachment “SOR-14” to the Statement of Reasons.

[21]  Exhibit 5.

[22]  Section 7 of the Statutory Instruments Act 1992 (Qld).

[23]  Submissions dated 11 February 2022.

[24]  Attachments MZ-7 and MZ-8 to Exhibit 2.

[25] Holtham v Queensland Building and Construction Commission [2018] QCAT 316 at 32.

[26] Wright & Anor v Duke Building Pty Ltd & Anor [2017] QCATA 35 at 60.

[27]  Section 3(a)(i).

[28] Wright & Anor v Duke Building Pty Ltd & Anor [2017] QCATA 35 at 136.

[29]  Annexure SOR-2 to the Statement of Reasons.

[30] Walker v Queensland Building and Construction Commission [2014] QCAT 228 at [23].

[31] ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386 at [19].

[32] Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 at [33].

[33]  (1938) 60 CLR 336 at 362.

Close

Editorial Notes

  • Published Case Name:

    Groove Properties Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Groove Properties Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 191

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    17 May 2022

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
ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386
2 citations
Jump To
Cite 1 - [2019] QCAT 386
Cite 2 - [2019] QCAT 386
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
2 citations
Jump To
Cite 1 - [2015] QCATA 115
Cite 2 - [2015] QCATA 115
Cowen v Queensland Building and Construction Commission [2017] QCAT 416
2 citations
Jump To
Cite 1 - [2017] QCAT 416
Cite 2 - [2017] QCAT 416
Dixon Projects Pty Ltd v QBSA [2009] QCCTB 2
2 citations
Jump To
Cite 1 - [2009] QCCTB 2
Cite 2 - [2009] QCCTB 2
Duke Building Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 397
2 citations
Jump To
Cite 1 - [2015] QCAT 397
Cite 2 - [2015] QCAT 397
Holtham v Queensland Building and Construction Commission [2018] QCAT 316
2 citations
Jump To
Cite 1 - [2018] QCAT 316
Cite 2 - [2018] QCAT 316
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568
2 citations
Jump To
Cite 1 - [2010] QCAT 568
Cite 2 - [2010] QCAT 568
Mackay Pty Ltd v Queensland Building Services Authority (2009) QCCTB 259
2 citations
Jump To
Cite 1 - (2009) QCCTB 259
Cite 2 - (2009) QCCTB 259
Taouk v Queensland Building Services Authority [2013] QCAT 508
2 citations
Jump To
Cite 1 - [2013] QCAT 508
Cite 2 - [2013] QCAT 508
Walker v Queensland Building and Construction Commission [2014] QCAT 228
2 citations
Jump To
Cite 1 - [2014] QCAT 228
Cite 2 - [2014] QCAT 228
Wright v Duke Building Pty Ltd [2017] QCATA 35
3 citations
Jump To
Cite 1 - [2017] QCATA 35
Cite 2 - [2017] QCATA 35
Cite 3 - [2017] QCATA 35

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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