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  4. Jaques v Queensland Building and Construction Commission - [2022] QCAT 54

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Jaques v Queensland Building and Construction Commission[2022] QCAT 54

Jaques v Queensland Building and Construction Commission[2022] QCAT 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jaques v Queensland Building and Construction Commission [2022] QCAT 54

PARTIES:

ian clark jaques

(applicant)

V

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR182-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The decision to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39 is set aside, and a new decision is substituted not to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39
  2. The decision to issue a direction to rectify in respect of complaint items 6, 28, 31 and 35 is confirmed. 
  3. The decision not to issue a direction to rectify in respect of complaint items 2, 7, 10, 11, 13, 14, 17, 18, 21, 30, 36, 40, 41 and 42 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 builder filed an application to review the decision – whether items of work are defective work – whether fair to give a direction to rectify

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17

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

Lohmann v Jaques [2021] QCATA 28

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 4 June 2018, Mr Jaques lodged an application to review a decision with the Tribunal.  The decision to be reviewed is a decision made by the Queensland Building and Construction Commission (‘QBCC’) on 9 May 2018 to issue a direction to rectify to Mr Jaques.
  2. [2]
    As set out in s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision. 
  3. [3]
    Section 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) confers power on the Tribunal to review ‘a decision to give a direction to rectify or remedy or not to give the direction’.  The considerations relevant to issuing a direction to rectify are set out in s 72. 
  4. [4]
    In conducting this review, it is important to note at the outset the Tribunal is limited to the scope of the considerations set out in s 72 of the QBCC Act.  The Tribunal does not have the power to address other issues that Mr Jaques might wish to ventilate.

The decision under review

  1. [5]
    The decision under review in these proceedings is the internal review decision made by the QBCC on 9 May 2018 to issue a direction to rectify to Mr Jaques in the following terms:

I have decided to direct rectification of complaint items 1, 4, 6, 8, 15, 19, 22, 24, 26, 28, 31, 35 and 39.

I have also decided not to direct rectification of complaint items 2, 7, 10, 11, 13, 14, 17, 18, 21, 30, 36, 40, 41 and 42 on the basis that the complaint items are no longer defective.

  1. [6]
    The complaint items relate to work undertaken on a house owned by Graham Lohmann and Meryl Lohmann.

Section 72 of the QBCC Act

  1. [7]
    Section 72 of the QBCC Act relevantly provides:

(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.

  1. [8]
    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?

Complaint items 1, 4, 6, 8, 15, 19, 22, 24, 26, 28, 31, 35 and 39

  1. [9]
    Complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39 relate to alleged tiling defects in various rooms of the house owned by Mr and Mrs Lohmann.
  2. [10]
    Complaint items 6, 28, 31 and 35 relate to alleged painting and plastering defects on various rooms of the house.

Is the work ‘building work’?

  1. [11]
    Schedule 2 of the QBCC Act defines the term ‘building work’ to include ‘the renovation, alteration, extension, improvement or repair of a building’.  The term ‘building’ is in turn defined to include ‘any fixed structure’.
  2. [12]
    It is not in dispute that tiling, painting and plastering work undertaken at Mr and Mrs Lohmann’s house is building work.

Is the building work ‘defective’?

  1. [13]
    Schedule 2 of the QBCC Act defines ‘defective work’ to include work that is ‘faulty or unsatisfactory’.
  2. [14]
    The QBCC has provided an inspection report from Stephen Noble dated 30 April 2018, and a statement dated 24 October 2018.  Mr Noble is a senior technical review officer with the QBCC.
  3. [15]
    In relation to the alleged painting and plastering defects, Mr Noble carried out a visual inspection of the following areas:
    1. (a)
      the cornice in the rumpus room; and
    2. (b)
      the external laundry door.
  4. [16]
    He identified poor surface preparation and paint application not in accordance with Australian Standard 2311: 2017, Guide to the painting of buildings (AS2311).
  5. [17]
    Mr Noble also carried out a visual inspection of the following areas:
    1. (a)
      the wall and bay window of the master bedroom; and
    2. (b)
      the wall behind the TV and below the window of bedroom 3.
  6. [18]
    He identified that no paint application had been completed below the window sills.
  7. [19]
    Mr Jaques has not disputed the findings in relation to the alleged painting and plastering defects in these proceedings.  In these circumstances, I find that the work the subject of complaint items 6, 28, 31 and 35 is defective.
  8. [20]
    In relation to the alleged tiling defects, Mr Noble carried out a visual inspection of the tile installation to the following areas:
    1. (a)
      the living room floor;
    2. (b)
      the rumpus room floor;
    3. (c)
      the dining room floor;
    4. (d)
      the hallway floor;
    5. (e)
      the toilet floor;
    6. (f)
      the bathroom floor;
    7. (g)
      the laundry floor; and
    8. (h)
      the rear patio floor.
  9. [21]
    Mr Noble observed a deviation from straightness of > 4mm over 2 metres to the lateral plan and inconsistent joint widths across the span of the works.  These deviations were not within acceptable tolerances of Australian Standard 3958.1: 2007, Ceramic Tiles - Guide to installation of ceramic tiles (AS3958.1).
  10. [22]
    Mr Jaques has relied upon International Standards Organisation 13006:2013, Ceramic tiles – Definitions, characteristics and marking (ISO13006).  Mr Jaques stated that he followed ‘best practice’ during the installation process by way of ‘ensuring the work was: square to walls, using correct primer and flexible adhesive, using “Tuscan tile clips” to minimise lippage and using correct spacing of control joints’.
  11. [23]
    Mr Noble responded by stating that ISO13006 governs the manufacture of tiles, and that AS3958.1 governs the installation of tiles.  He stated that:

While I accept that a margin of deviation to the dimensions of an individual tile is acceptable, the tolerance applied to the installation in accordance with AS3958.1 requires tiles with these deviations to be installed straight across a 2 m plane.  This means that minor variance (up and down) will be identified along the straight edge between adjacent tiles.  Overall, the deviation of a given plane should not exceed > 4mm across a 2 m plane.

Unfortunately, a creep effect has occurred where tiles of varying deviations have been laid side by side.  This has contributed to misalignment along joins and resulted in non-compliance with AS3958.1.

This is why deviations are measured over a 2 m plane, as opposed to smaller planes, where it would be more difficult to achieve a flat finished surface with a straight edge.

  1. [24]
    I have also had regard to the photographs attached to Mr Noble’s statement.
  2. [25]
    In these circumstances, I find that the work the subject of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39 is defective.

Is the applicant responsible for the defective building work?

  1. [26]
    Section 72(5) of the QBCC Act provides that the person who carries out the building work includes ‘a building contractor by whom the building work was carried out’.
  2. [27]
    It is not in dispute that Mr Jaques was the building contractor by whom the building work was carried out.

Is it fair or reasonable in the circumstances to direct the applicant to rectify the defective building work?

  1. [28]
    Mr Jaques has raised a number of bases upon which he claims it is not fair or reasonable to direct rectification.  Most of these are irrelevant for present purposes, and I do not propose to canvass them.
  2. [29]
    However, Mr Jaques does raise the following issue of relevance in his statement dated 24 September 2018:

On the 31st of January 2017 Graham Lohmann (owner) attended the site and spoke to the applicant about his concerns regarding the installation of the tiles and grout colour.  I proceeded to lay out several tiles on the floor of the garage/shed between two 3 meter straight edges to show the variation in tile sizes.  I also explained to Graham that the tiles were not uniform in size and that they were still within the Australian Standard AS ISO 13006 (Ceramic Tiles) and have a tolerance of +/- 4mm in a 400mm tile.  Graham appeared satisfied with this explanation however in my effort to ensure client satisfaction I proceeded to do the following:

(a) I called NQ tiles who supplied the tiles originally and asked if they had enough replacement tiles of the same batch (colour) in stock to which they answered yes.

(b) I called the kitchen manufacturer who Mr and Mrs Lohmann had contracted to supply and install their kitchen and requested the postponement of the kitchen installation until the issue with the tiles was resolved.

(c) sent a text messages (sic) to Graham I quote:

(d) 31/01/2017 09:54 am “Hi Graham I have laid out remaining tiles in the shed it’s clearly visible that they are not true to size as I explained although they are to Australian Standards.  I will leave them here so you and Merely can see.  Cheers Ian”

(e) 31/01/2017 12:00 noon “Hi Graham can we have a meeting with you and Meryl this afternoon to resolve the issue of the tiles?  If you are not happy with the job then it’s unacceptable and I have some ideas on rectification”

(f) Graham’s response was “OK Ian, would 3.30 suit? We have to collect the grandkids from school.”

(g) My response “Yes 3.30 will be fine”

(h) The owners arrived on site around 3:30 pm and I again explained the variation in the tiles and grout and that this was within the tolerance of tile manufacturing, I then offered to remove all the tiles in question being the kitchen, dining, living area and hall to supply and relay all the tiles at my own cost, if this would appease the owners concerns, we also offered to lay the tiles in a diagonal pattern as this would eliminate the degree the variation it tile sizes to the eye, this was rejected immediately by the owners.  We (Ian and Kathy Jaques) told the owners to think on it overnight on the options we had discussed and let us know their decision on how best to proceed.  On the morning of the 1st of February 2017 at 9:23 am a text message was received from Merely saying they had decided to “leave the tiles as is as the grout will lighten”

  1. [30]
    Copies of the relevant text messages were attached to Mr Jaques statement.
  2. [31]
    As no evidence was filed disputing Mr Jaques’ account of the above events, I accept that the events took place as recounted by Mr Jaques.  As noted, his account is supported in part by copies of the relevant text messages.
  3. [32]
    In circumstances where:
    1. (a)
      Mr Jaques identified a problem with the tiles prior to completion of the tiling work;
    2. (b)
      Mr Jaques offered to remove and relay all the tiles; and
    3. (c)
      Mr and Mrs Lohmann instructed him to leave the tiles as is,

I do not consider it would be fair to issue a direction to rectify to Mr Jaques for the purposes of s 72(5) of the QBCC Act in relation to complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39. 

  1. [33]
    Had Mr and Mrs Lohmann wished to pursue rectification of the tile work, they had the opportunity to do so when Mr Jaques presented them with it in early 2017.  They choose not to do so.  That choice is theirs to live with.
  2. [34]
    In relation to complaint items 6, 28, 31 and 35, which were not disputed by Mr Jaques, I consider it fair and reasonable to issue a direction to rectify in relation to those items.
  3. [35]
    For completeness, I note that Mr Jaques has argued that the contract entered into with Mr and Mrs Lohmann on 21 September 2016 was terminated before it commenced.  However, in Lohmann v Jaques [2021] QCATA 28 at [29], Judicial Member McGill SC found that there was a further agreement between the parties made on 6 November 2016 for works to be undertaken.  Indeed, in those proceedings, Mr Jaques sought to recover monies which he said were owing for works which he had undertaken.  In my view, where works were undertaken by Mr Jaques and where he received payment for those works, it is otherwise appropriate for a direction to rectify to issue for works which are defective.

Complaint items 2, 7, 10, 11, 13, 14, 17, 18, 21, 30, 36, 40, 41 and 42

  1. [36]
    The QBCC decided not to direct rectification of the above complaint items on the basis that they were no longer defective.
  2. [37]
    No evidence has been provided by either the QBCC or Mr Jaques to indicate that these items are defective.  In those circumstances, there is no material before me upon which a direction to rectify could be issued.

Disposition

  1. [38]
    The decision to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39 is set aside, and a new decision is substituted not to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39
  2. [39]
    The decision to issue a direction to rectify in respect of complaint items 6, 28, 31 and 35 is confirmed. 
  3. [40]
    The decision not to issue a direction to rectify in respect of complaint items 2, 7, 10, 11, 13, 14, 17, 18, 21, 30, 36, 40, 41 and 42 is confirmed.
Close

Editorial Notes

  • Published Case Name:

    Jaques v Queensland Building and Construction Commission

  • Shortened Case Name:

    Jaques v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 54

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    15 Feb 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
Jarvis v Queensland Building and Construction Commission [2014] QCAT 693
2 citations
Jump To
Cite 1 - [2014] QCAT 693
Cite 2 - [2014] QCAT 693
Lohmann v Jaques [2021] QCATA 28
2 citations
Jump To
Cite 1 - [2021] QCATA 28
Cite 2 - [2021] QCATA 28

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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