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  4. Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission - [2022] QCAT 396

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Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission[2022] QCAT 396

Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission[2022] QCAT 396

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission [2022] QCAT 396

PARTIES:

dacro constructions qld pty ltd as trustee for dacro family trust

 

(applicant)

 

V

 

queensland building and construction commission

 

(respondent)

APPLICATION NO/S:

GAR141-20 and GAR386-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 December 2022

HEARING DATE:

16 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1.  The direction to rectify is confirmed.
  2.  The scope of works is amended to remove the reference to ‘movement joints’, but is otherwise 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 scope of works issued in respect of the direction to rectify – where the builder filed applications to review both decisions – whether fair to give a direction to rectify – whether direction to rectify issued within time – whether scope of works reasonable and necessary

Queensland Building and Construction Commission Act 1991 (Qld), s 71J, s 72, s 86C

Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50

Briginshaw v Briginshaw (1938) 60 CLR 336

Jarvis v Queensland Building and Construction Commission [2014] QCAT 693

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

G Andrews

REASONS FOR DECISION

  1. [1]
    Dacro Constructions Qld Pty Ltd as trustee for Dacro Family Trust (‘Dacro’) entered into a contract to undertake renovation work on property owned by Tracey Lee Cunningham (‘the owner’) on or about 12 October 2011.
  2. [2]
    Building work commenced, but the parties subsequently fell into dispute.  The owner commenced proceeding BDL284-14 in the Tribunal.  On 17 April 2015, consent orders were made in the following terms:

1. Tracey Lee Cunningham pay to Dacro Constructions Qld Pty Ltd the sum of $35,000.00 as follows:

i. $10,000 by 1 May 2015

ii. $10,000 by 1 June 2015

iii. $15,000 on completion

2. Dacro Constructions Qld Pty Ltd will complete the outstanding works in accordance with the contract being: the western wall; garage door; disconnect existing garage; stair to rear of carport; and remove colonial bars, by 31 July 2015.

  1. [3]
    A ‘Form 21 – Final inspection certificate’ was issued on 15 April 2016, following an inspection of final stage items on 20 November 2015.
  2. [4]
    It is not in dispute that the owner has not paid the final instalment of $15,000.
  3. [5]
    Between 16 December 2019 and 19 December 2019, the Queensland Building and Construction Commission (‘QBCC’) exchanged emails with the owner.  The QBCC has treated this as a complaint by the owner.
  4. [6]
    The QBCC issued a direction to rectify on 23 January 2020, with an amended direction to rectify being issued on 27 April 2020 following an internal review.  The terms of the direction to rectify are as follows:

1. The cracking, delamination and dislodging of render applied to the western elevation external wall evidences a failure of the rendering system, which is unsatisfactory and/or faulty.  This has resulted in damage to the render, causing an unsightly finish, and may adversely affect the health and safety of persons through render debris falling from heights – Pertains to item 1 of the Complaint form.

2. The cracking and delamination of render applied to the easter elevation external wall evidences a failure of the rendering system, which is unsatisfactory and/or faulty.  This has resulted in damage to the render, causing an unsightly finish, and may adversely affect the health and safety of persons through render debris falling from heights – Pertains to item 2 of the Complaint form.

3. Water penetration into the building’s interior and floor cavity below the deck/balcony off the main bedroom (balcony) evidences a failure of the waterproofing system applied to the balcony, which is unsatisfactory and/or faulty.  This has resulted in damage and deterioration of building elements and loss of amenity for building occupants – Pertains to item 4 of the Complaint form.

  1. [7]
    The QBCC also issued a scope of works on 27 April 2020, pertaining to the direction to rectify.  An amended scope of works was issued on 17 September 2020 following an internal review.  The terms of the scope of works are as follows:

Items 1 and 2

Allow to supply and install scaffold to the eastern and western walls.

Allow to prepare sheet substrate for application of render in accordance with manufacturers installation instructions. (ensuring all joins are taped and movement joints installed) to the eastern and western walls.

Allow to supply and apply rendered finish to match existing areas of the dwelling to the eastern and western walls. (as per manufactures (sic) application instructions)

Supply and apply paint to the eastern and western walls to match existing.

Pertains to items 1 and 2 of the complaint form.

Item 4

Allow to remove Balustrade panels and store in safe location for re-installation.  Pertains to item 4 of the complaint form.

Allow to remove tile and FC sheeting from upper floor rear balcony off the main bedroom.  Pertains to item 4 of the complaint form.

Allow to supply and install new fc sheeting ensuring termination heights are achieved under timber door sill.  Allow to supply and apply waterproofing in accordance with the BCA for external balconies.  Pertains to item 4 of the complaint form.

Allow to supply and install new tiles to match existing.  Pertains to item 4 of the complaint form.

Re-instate balustrade panel and paint effected areas to match existing.  Allow to remove timber and FC sheeting where damaged due to moisture.  Pertains to item 4 of the complaint form.

  1. [8]
    Dacro has sought review of both the direction to rectify and the scope of works.  I will deal with each decision separately.

Direction to rectify

Legislative framework

  1. [9]
    The power to issue a direction to rectify is contained in s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).  Relevantly, that decision provides:

(1) This section applies if the commission is of the opinion that—

(a) building work is defective or incomplete; …

(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction—

(a) for building work that is defective or incomplete—rectify the building work; …

…

(3) In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).

…

(5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

Example for subsection (5)—

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

  1. [10]
    The issues for determination which arise were set out in Jarvis v Queensland Building and Construction Commission [2014] QCAT 693 at [3] as follows:
    1. (a)
      is the work ‘building work’?
    2. (b)
      is the building work ‘defective’?
    3. (c)
      is the applicant responsible for the defective building work?
    4. (d)
      is it fair or reasonable in the circumstances to direct the applicant to rectify the defective building work?
  2. [11]
    In the present case, it is not in dispute that the work is building work, is defective, and that Dacro is responsible for the work.  To the extent that it is necessary for me to do so, I accept the QBCC’s uncontested evidence on those issues.
  3. [12]
    Accordingly, the dispute relates to whether it is fair and reasonable to direct Dacro to rectify the defective building work, and whether the direction to rectify was issued within time.

Fair and reasonable

  1. [13]
    Darco has contended that it is not fair and reasonable to issue a direction to rectify on the following grounds;
    1. (a)
      the direction to rectify should be issued to the subcontractor who performed the rendering;
    2. (b)
      the complaint by the owner was made by email and not on an official form;
    3. (c)
      the owner delayed in making her complaint about water penetration (item 4); and
    4. (d)
      the owner has not paid the final instalment of $15,000 pursuant to the Tribunal’s orders dated 17 April 2015.
  2. [14]
    The issue of whether a direction to rectify should be issued to the subcontractor was resolved in these proceedings in an interlocutory decision made on 8 January 2021.  At paragraph 21, Member Paratz stated:

A contractor is liable for works, including the work of a subcontractor.  It is appropriate that a Direction to Rectify be given to a contractor.

  1. [15]
    The issue of the owner not using an official form to make a complaint is of no consequence.  Section 71J(1) of the QBCC Act provides:

A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete.

  1. [16]
    There is no prescribed form, and an email is capable of meeting the requirements of this provision.  In any event, as set out above in section 72(1), the QBCC’s power to issue a direction to rectify is not contingent upon a complaint being made.
  2. [17]
    There is a paucity of evidence in relation to the issue of delay.  Section 71J(4)(a) relevantly provides that:

Also, a request under subsection (1) … must be made within 12 months after the person becomes aware of … the building work the person considers is defective or incomplete.

  1. [18]
    Dacro referred me to the owner’s email complaint to the QBCC dated 19 December 2019, in which the owner stated:

The water coming into the living dining room was first shown to builder in 2013 he claimed he had fixed it, again I forwarded photographs and video to the builder on several occasions afterwards showing the problem had not been rectified, in all cases he claimed to have fixed it and was not returning until he was paid!

  1. [19]
    Dacro does not dispute that an attempt was made to rectify the water penetration issue in 2013.  The owner’s email does not state how long after this attempt that further water penetration was noticed.
  2. [20]
    I note that the owner made a separate complaint to the QBCC on 22 March 2017, which did not refer to water penetration.  It is open to me to refer that the owner had not noticed issues with water penetration between 2013 and 2017, otherwise she would have included them in the complaint.
  3. [21]
    In the circumstances, there is insufficient evidence for me to conclude that the owner delayed more than 12 months after becoming aware of the water penetration before requesting the QBCC to issue a direction to rectify.
  4. [22]
    I acknowledge that the non-payment of $15,000 is a factor which can be taken into account in considering whether it is fair and reasonable to issue a direction to rectify.  However, the evidence before me includes a quote from DRF Builders in respect of rectification costs in the amount of $78,300.20.  I also have before me Darco’s claim debt under the statutory insurance scheme in the amount of $63,300.20.  This includes a reduction of $15,000 from the rectification costs to reflect the non-payment of this amount by the owner.
  5. [23]
    In circumstances where the costs of rectification exceed the amount of the non-payment several times over, I do not consider it unfair or unreasonable to issue the direction to rectify.
  6. [24]
    Having regard to all the circumstances, including:
    1. (a)
      the safety risk posed by the delaminating render; and
    2. (b)
      the water penetration off the balcony,

I consider it fair and reasonable to issue the direction to rectify.

Time limit

  1. [25]
    For completeness, I will also consider whether the direction to rectify was issued within the time limit contained in section 72A(4) of the QBCC Act.  That sub-section provides:

A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

  1. [26]
    While there was a delay between the work initially undertaken by Dacro, and the work undertaken following the Tribunal’s orders dated 17 April 2015, there is no evidence that the building contract was terminated or rescinded in the intervening period.
  2. [27]
    As noted above, the inspection of the final stage items took place on 20 November 2015, prior to the issuing of the Form 21.  Evidence was given at the hearing that this inspection was arranged by Dacro, although the subsequent issue of the certificate on 15 April 2016 was arranged on behalf of the owner.
  3. [28]
    In Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50, Justice Flanagan stated at [32]:

The provision of a final inspection certificate falls within the definition of “building work” which means, among other things, contract administration.  Contract administration includes arranging for certificates.  The building work was therefore not completed until the second applicant arranged the final inspection …

  1. [29]
    In the present case, I find the building work was completed in November 2015.  The complaint made on 19 December 2019 was therefore within the six years and six months period.

Scope of works

  1. [1]
    The Tribunal’s power to review a scope of works was considered by Member Lohrisch in Middling v Queensland Building Services Authority [2005] QBSA CCT Q600-03 at [25]:

I agree with the Authority’s submissions that the exercise to be undertaken pursuant to the applicant’s review of the Authority’s quotation/scope of works is towards assessing whether the scope of works are works reasonable and necessary to rectify and/or complete the items referred to in the Authority’s direction of 28 January 2003.

  1. [30]
    That approach has been accepted as correct by the Tribunal on a number of occasions, and I regard it is a settled position.
  2. [31]
    Dacro has raised two complaints in relation in relation to the scope of works decision, as set out in its written submission dated 25 January 2022.  He objected to:
    1. (a)
      the installation of “movement joints” in respect of items 1 and 2; and
    2. (b)
      the removal of existing and the installation of “new fc sheeting ensuring termination heights are achieved under the timber door sill” in respect of item 4.
  3. [32]
    At the hearing, the QBCC conceded the installation of movement joints was excessive, having regard to the absence of movement joints in the original substrate.  In my view, this was an appropriate concession to make.
  4. [33]
    In respect of the removal and replacement of the FC sheeting, evidence was given during the hearing by Daniel Yates, a former senior building inspector with the QBCC.  Mr Yates opined that it not be possible to prevent water penetration without the removal and replacement of the FC sheeting.  This position was also supported by the report of Wayne Blackman, a principal technical officer with the QBCC, who also gave evidence at the hearing.
  5. [34]
    Dacro expressed a contrary view, but did not provide any independent expert evidence to support its view.  As Justice Dixon observed in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362, the proof of any fact must be made out to the reasonable satisfaction of the Tribunal and should not be ‘produced by inexact proofs, indefinite testimony, or indirect inferences’.
  6. [35]
    In the circumstances, I am satisfied that the removal and replacement of the FC sheet to ensure termination heights are achieved under the timber door sill is reasonable and necessary to rectify the water penetration issue.

Disposition

  1. [36]
    The direction to rectify is confirmed.
  2. [37]
    The scope of works is amended to remove the reference to ‘movement joints’, but is otherwise confirmed.
Close

Editorial Notes

  • Published Case Name:

    Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission

  • Shortened Case Name:

    Dacro Constructions Qld Pty Ltd ATF Dacro Family Trust v Queensland Building Construction Commission

  • MNC:

    [2022] QCAT 396

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    01 Dec 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
Barry v Queensland Building and Construction Commission [2015] QSC 50
2 citations
Jump To
Cite 1 - [2015] QSC 50
Cite 2 - [2015] QSC 50
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
Jarvis v Queensland Building and Construction Commission [2014] QCAT 693
2 citations
Jump To
Cite 1 - [2014] QCAT 693
Cite 2 - [2014] QCAT 693

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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