Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Waddell v Queensland Building and Construction Commission - [2023] QCAT 159

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Waddell v Queensland Building and Construction Commission[2023] QCAT 159

Waddell v Queensland Building and Construction Commission[2023] QCAT 159

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Waddell v Queensland Building and Construction Commission [2023] QCAT 159

PARTIES:

GARY ALLAN WADDELL

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR126-20

MATTER TYPE:

Building matter

DELIVERED ON:

29 March 2023

HEARING DATES:

24 March 2022 and 25 March 2022

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDER:

The decision of the Queensland Building and Construction Commission dated 17 March 2020 to issue Gary Allan Waddell with a Direction to Rectify and/or Complete No. 0105893 to rectify building work said to be defective or incomplete is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – renovations and re-roofing of house – re-roofing undertaken by the applicant as owner of the house – applicant sold the house for profit – purchaser later discovered the roof leaked – applicant claimed roofing work undertaken by him personally over three stages of the renovations – whether the roofing work is building work – Category 1 defect – whether it is unfair to issue a Direction to Rectify and/or Complete building work said to be defective or incomplete

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 71I(1)(i), s 72, s 72(3), s 72(5) and s 87

Queensland Building and Construction Commission Regulations 2018 (Qld), Schedule 1, paragraph 33

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 19, s 20(2), s 24(1), s 28(2) and s 28(3)(a)

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

Doolan v Queensland Building and Construction Commission [2017] QCAT 58

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

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

Fontain v Queensland Building Services Authority [2004] QCCTB 163

Harold Terry v Queensland Building Services Authority [1995] QTB 55

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568

Kioa v West (1985) 159 CLR 550

Middleton v Queensland Building and Construction Commission [2018] QCAT 177

Pappas v Queensland Building Services Authority [2002] QDC 290

R v His Honour Judge Miller and the Builders’ Registration Board of Queensland; ex-parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Small v Building Services Corp [1988] 7 BCL 109

Stephenson v Queensland Building Services Authority [2005] QCCTB 59

APPEARANCES & REPRESENTATION:

 

Applicant:

Self represented

Respondent:

R Ensbey, Special Counsel, Gadens Lawyers

REASONS FOR DECISION

Introduction

  1. [1]
    On 17 March 2020, the Queensland Building and Construction Commission (‘the respondent’) issued Gary Allan Waddell (‘the applicant’) with a direction to rectify building work on a house situated in Railway Estate, Townsville (‘the house’).  That direction was made pursuant the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).[1]    
  2. [2]
    The applicant purchased the house in June 2016 and over a period of about twelve months he carried out renovations on the house, including replacing the roof.  He also added a veranda as an extension.  He is not a licensed builder, and he does not possess any trade or building qualifications.  Apart from the electrical works, the cabinetry in the kitchen and the waterproofing of the bathroom, all of the other work or renovations undertaken on the house was carried out by the applicant under the capacity that he was the owner.
  3. [3]
    The applicant later sold the house to Maggie Dwyer (‘Ms Dwyer’).  A little over 18 months after she purchased the house, Townsville experienced a significant amount of rainfall resulting in major flooding within the Townsville area (‘the 2019 flood’).  In some parts of Townsville, over 1.5 metres of rain fell in a short period of time during late January to early February 2019.
  4. [4]
    Following the 2019 flood, Ms Dwyer discovered that the roof of the house leaked.  She contacted the applicant, but he suggested that she have it fixed before the next wet season.  She then complained to the respondent, who in turn carried out an inspection of the roof.  Arising from the inspection was a decision by the respondent to issue the applicant a notice directing him to rectify the defective roof. 
  5. [5]
    The applicant denied responsibility for the defective work and requested the respondent undertake an internal review of the decision.  That internal review agreed with the QBCC’s initial findings.  A new direction to rectify was then issued to the applicant.    
  6. [6]
    The applicant contests the respondent’s decision to issue him the direction to rectify.  In doing so, he claims that the roofing work undertaken on the house was not building work as prescribed by the QBCC Act because he owned the house at the time.  He said the roofing work was a repair, and the costs of the materials fell below the threshold as prescribed in the legislation.

Background

  1. [7]
    The applicant purchased the house in June 2016 for $135,000.  In June 2017, he sold the house to Ms Dwyer for $279,000.  The purchase and sale of the house was through a discretionary trust, of which he was a trustee.  He did not live in the house during the time he owned it as he lived in his own home in North Ward, however he claimed that from time to time he used the house as a form or a ‘retreat’.  Over the course of the next year, he carried out renovations and improvements to the house. 
  2. [8]
    At the time of owning the house, the applicant owned three other properties and a block of land within the locality of Townsville.  One of those properties was his primary place of residence.  He insisted that the house was not purchased for investment purposes, it was just something he did to keep himself busy.  This is notwithstanding that the house was not purchased as his primary place of residence; he purchased the house through a discretionary trust; and he more than doubled the original value of the house in twelve months.  
  3. [9]
    As already outlined in these reasons, the applicant is not a licensed builder, and he had no trade or building qualifications.  He carried out the work on the house as a combination of repairs and extensions.  He claimed that he telephoned the respondent and was informed that as an owner undertaking the work, he did not require a permit or certificate for the house because the value of the work to be undertaken was valued less than $11,000.  He insisted that the building work undertaken on the roof did not exceed that amount.
  4. [10]
    The applicant said that the house was about 100 years old, and he was aware that it had been re-stumped not long before he purchased it.  The only new stumps he installed were beneath the enclosed veranda extension he built.  Much of the work, or the renovations of the house were undertaken by him, including the re-roofing of the house. 
  5. [11]
    He described that when he purchased the house the roof was ‘leaking quite badly’.  He also carried out the painting of the house, however, he engaged a licensed electrical contractor to undertake the electrical work on the house, a licensed cabinet maker to build and install the kitchen cabinets and a licensed contractor to undertake the waterproofing of the bathroom.
  6. [12]
    The applicant said that in October 2016, he carried out repairs of the main roofing iron and an extension was built at the rear section of the house measuring 12 square metres.  He said this was at a cost of  $10,600.
  7. [13]
    In February 2017, the new kitchen was installed and the QBCC insurance was paid.  In March 2017, work was undertaken on the new front patio and re-roofing took place on the front and back enclosed veranda/extension.  The cost of that work was $8,400.  In May 2017, the cladding on the original section of house was repaired.
  8. [14]
    Ms Dwyer recalled that when the house was advertised for sale, it included comments that it had a brand new roof.  Upon buying the house, she was not made aware that it was the applicant who had undertaken the work on the roof.  Nor was she made aware that he did not have any building qualifications.  
  9. [15]
    After the 2019 flood, she noticed that the roof was leaking.  She contacted her insurer and made a claim.  Her insurer arranged for a plumber to attend the house; however, she was told that although her policy covered her for consequential damage, the insurer would not cover the work to be undertaken on the roof. 
  10. [16]
    Ms Dwyer made several attempts to contact the applicant and managed to contact him by sending him an email.  She exchanged a number of emails with the applicant  about the roof, and he told her that she should get the roof fixed before the next wet season.  It appeared to her that he was placing the onus on her about the leaking roof.  She recalled that he never took the opportunity to disclose to her that he did not hold any building qualifications.
  11. [17]
    On 29 October 2019, Ms Dwyer contacted the respondent, and a complaint was lodged about her roof.  Provided to the respondent was a copy of a roofing report undertaken by 1touch Plumbing & Gas (‘the plumbing report’) engaged by her insurer.
  12. [18]
    A summary of the defective items identified in the plumbing report were:
    1. (a)
      All barge cappings on the roof had been poorly made such that they would eventually leak.
    2. (b)
      The ridge capping on the roof had been poorly scribed in.
    3. (c)
      The roofing iron sheet over the back left hand side room had been poorly installed and had been forcibly pulled into place with a stitching screw.
    4. (d)
      Inside the loft/roof space, the battens should have been installed at the lower section and apex sections of the roof. 
  13. [19]
    Email communications between the applicant and the respondent about the house commenced on 25 November 2019.  In one email to the respondent, the applicant said that he was not responsible for the work, meaning the roof. 
  14. [20]
    In another email to the respondent, the applicant outlined that:

I have reviewed the certification for some work (existing and new) on that property and note roofing was listed.  I now understand your reference to owner builder.  I wasn’t really aware to be honest, I knew I did not apply for OB and did not have a number.                  

  1. [21]
    The Tribunal understands from the language of that email that the applicant was referring to Ms Dwyer’s house which he carried out work on.  Where he referenced the letters OB, he was referring to the term ‘owner builder’.
  2. [22]
    Subsequently, on 6 January 2020 the respondent’s building inspector, Kevin Cameron (‘Mr Cameron’) and representatives from a roofing company engaged by the respondent, carried out an inspection of the roof of Ms Dwyer’s house.  A roofing report was subsequently completed, and the report identified ten defects with regard to the workmanship and installation of the roof.[2]  A separate inspection report (‘Initial Inspection Report’) was completed by Mr Cameron outlining his observations of the roof and the work carried out by the applicant.[3]
  3. [23]
    The day after the inspection took place, the applicant emailed the respondent and requested the list of defects identified with the roof.  He wanted the list before he discussed them with Ms Dwyer.
  4. [24]
    In a later email, he disclosed that:

The roof was completed by Kyle, who was an acquaintance at the time.  To the best of my knowledge he was a locally employer roofer who moved back to Brisbane.  As a homeowner wanting to essentially a repair to the original building and being under $3300, I did not seek a contract or any further checks.  I paid him cash.[4]

  1. [25]
    As disclosed by the applicant at the hearing, that statement that an acquaintance  called Kyle completed the work on the roof was a fabrication and was misleading.
  2. [26]
    On 17 January 2020, the respondent provided to the applicant a copy of Mr Cameron’s Initial Inspection Report and issued to him was a Direction to Rectify and/or Complete No. 0105625 (‘the initial direction’).  A copy the Initial Inspection Report and the initial direction to rectify was provided to Ms Dwyer.
  3. [27]
    As already explained in these reasons, the applicant requested an internal review of that decision.  That review affirmed the original decision and subsequently on 17 March 2020, the respondent issued the applicant with a Direction to Rectify and/or Complete No. 0105893 (‘direction to rectify’).  The applicant then filed an application with the Tribunal to review that decision.[5]

The Tribunal’s role and legislative pathway

  1. [28]
    The applicant does not agree with the respondent’s decision to direct him to rectify the defect and the QBCC Act provides him with an opportunity to apply to the Tribunal for a review of that decision.[6] 
  2. [29]
    The review is an administrative review undertaken at the Tribunal’s discretion.  Proceedings for building matters are conducted subject to the provisions of the QBCC Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT Rules’).  When effecting that discretion, the Tribunal is obliged to employ fair procedures adapted to the circumstances of each particular case,[7] act fairly[8] and comply with the rules of natural justice.[9] 
  3. [30]
    When undertaking a review of the respondent’s decision, the Tribunal effectively ‘stands in the shoes’ of the original decision maker,[10] and is generally obliged to have regard to the best and most current information available.[11] 
  4. [31]
    The review must be a fresh hearing on the merits of the application[12] and the question for the determination of the Tribunal is not whether the original decision was the correct or preferable one on the material before the original decision maker, but rather whether the Tribunal’s decision is the correct or preferable one based on the material before the Tribunal at the hearing.[13]
  5. [32]
    In arriving at a conclusion of what is the correct and preferable decision, there is a discretionary authority for the Tribunal to either confirm or amend the respondent’s decision; or set aside the respondent’s decision and substitute that decision with its own decision; or set aside the respondent’s decision and return the matter for consideration to the respondent with directions the Tribunal considers appropriate.[14]

Applicant’s case

  1. [33]
    The applicant argues that the direction to rectify was not issued in accordance with the QBCC Act.  He said that he undertook three separate roofing projects on the house, and each of those projects were separated over time.  He also claimed that because he was the homeowner undertaking that work, it was not ‘building work’ as defined in Queensland Building and Construction Commission Regulations 2018 (Qld) (‘the QBCC Regulations’).[15]  He went on to say that because he was the homeowner doing the work himself, he is not listed in, or broadly captured within the list of people able to be directed pursuant to section 72 of the QBCC Act.

Building work – separation of time

  1. [34]
    The applicant said that the work undertaken on the roof of the house was carried out by him.  The work was undertaken by what he described as three separate projects and each of the projects were carried out independently of each other three months apart.  He asked the Tribunal to bear in mind that the work was carried out 100-year-old cottage, it was not a new build.
  2. [35]
    He claimed that he commenced the work on the roof on 11 November 2016.  This work was a repair or a replacement what he described as tin.  He said he completed the work within seven days.
  3. [36]
    The second amount of work was undertaken on 22 February 2017 when he purchased almost 60 square metres of corrugated iron roofing.  He installed that new sheeting on the roof , as well as enclosing a small extension which he had constructed onto the house.[16]  The sheeting also replaced the old sheeting to the front section of the house.  He said that because this work was undertaken by him as the owner of the house,  it was not building work as defined  in the QBCC Regulations.
  4. [37]
    He claimed that at the time the work was carried out, his elderly father was present.  His father was concerned that the applicant may ‘walk off the roof’ by accident, and he was merely there as an observer and to allay any fears of the applicant hurting himself.  He said that his father suffers from vertigo and cannot climb a ladder and he denied his father was on the roof with him.  He also denied the respondent’s suggestions that his father assisted him in carrying out the work.
  5. [38]
    The third part of the building work took place in May 2017.  The applicant said that on this occasion he purchased another 42 square metres of roof sheeting.  That sheeting was used to replace the existing sheeting to the front skillion.  He claimed that the work was undertaken by him as the owner of the house and did not fall within the provisions of building work as prescribed by the QBCC Regulations.
  6. [39]
    Notwithstanding that when he purchased the house, he identified that the roof was ‘leaking quite badly’, he claimed that when he sold the house to Ms Dwyer, he was not aware that the roof was defective.  He said that the roof weathered the heaviest rainfall Townsville’s history and only suffered a ‘minor leak’.  If he was to compare the roof when he purchased the house to when he sold the house to Ms Dwyer, he said the roof was in better condition when he sold it.  He also claimed that the roof appeared to be relatively effective in carrying out its intended purpose.
  7. [40]
    He went on to outline that because he was not subject to the provisions of section 72 of the QBCC Act, the respondent had no authority to issue the direction to rectify to him.  He argues that the reasons why the provisions of section 72 of the QBCC Act did not apply to him was because he was not a person mention in section 71I of the QBCC Act.
  8. [41]
    He rejected the respondent’s proposition that he fell within the ambit of section 71I.  In regard to whether he made a profit or gain from the house, he said that the respondent could not substantiate this because the respondent could not have known his intent when he purchased the house.  Respectfully, the Tribunal disagrees.
  9. [42]
    The evidence shows that he purchased the property in 2016 for $135,000 and it was sold one year later to Ms Dwyer for $279,000.  In an email to the respondent, the applicant said that he had bought the house to tidy it up to use as a rental property.  When considering that comment, along with the renovations he undertook, including the work on the roof, the Tribunal finds that those particulars were all part of the applicant’s plan to improve and renovate the house for his intended purpose of making money either through rental income, or for capital gain. 
  10. [43]
    The applicant proposed that any argument his motivation was for profit did not carry weight because had he delayed the sale to Ms Dwyer for another four weeks, he would have benefited from a capital gains tax discount which would have in real terms realised him an additional $18,000.  He asked the rhetorical question in his submissions; would this argument be applicable if he had suffered a loss?  Clearly if he had made a loss, then the provisions within section 71I(1)(i) would not have applied to him.  But that is not the evidence in this matter, he did make a profit.
  11. [44]
    The Tribunal does not accept the applicant’s argument.  Already identified was the evidence that the applicant owned three other properties and a block of land within the locality of Townsville, one of which was primary place of residence.  The house was not purchased as his primary place of residence; he purchased the house through a discretionary trust; and he more than doubled the original value of the house in twelve months.  When assessing those features, on the balance of probabilities it would be a nonsensible argument to insist that the purchase of the house was for anything other than an investment.  
  12. [45]
    When canvassing the legislation in regard to profit or reward, the provisions of section 71I the QBCC Act outline that a person who carries out building work is taken, for this part, to include a person who, for profit or reward, carried out the building work.[17]  When carefully considering the facts, circumstances and evidence in this matter, the Tribunal finds that the applicant falls within the ambit of section71I of the QBCC Act. 

The evidence at the review hearing

Maggie Dwyer

  1. [46]
    Ms Dwyer is the current owner of the house.  The Tribunal found her to be an honest, credible and forthright witness.  She provided a statement in regard to these proceedings outlining that on 27 May 2017, she entered into a contract with the applicant for the purchase of the house.[18]  The house was marketed through a licenced real estate agent.  She said that she was never told that the house had been renovated by an owner builder, and even when she later communicated with the applicant he did not make such a disclosure.
  2. [47]
    She had a building and pest inspection undertaken on the house on 30 May 2017, and a report was compiled by the inspector.  The inspector noted the house was in average condition and the roof could not be inspected due to the height of the roof.
  3. [48]
    After the 2019 flood, Ms Dwyer noticed her lounge room ceiling was leaking.  She contacted her insurance company, who in turn sent a contractor to inspect the house.  The insurance company covered the expenses for consequential damage but would not cover the expenses regarding the leaking roof.  This evidence was not challenged by the applicant. 

Kevin Cameron

  1. [49]
    Mr Cameron is a Building Inspector employed by the respondent.  His evidence comprises a written statement[19] and his oral testimony to the Tribunal was taken by telephone.  He was present when an inspection was undertaken of the roof.  When a portion of one corner of the roofing was lifted, water staining was observed on the insulation under joints.  There was an absence undersealing between the flashing and other general roof defects were observed.  In his opinion, the presence of water staining on the roof insulation indicated that the roof had leaked and was likely to leak further.  It was his opinion, this confirmed the presence of defective building work.
  2. [50]
    Mr Cameron also noted that the applicant claimed that the area of the roof was about 82 square metres which was based on the area of the relevant floor plan of the house.  In Mr Cameron’s opinion, this reckoning did not take into account the pitch of the roof.  In his calculations, the actual area of the roof is 119.08 square metres.  He went onto say that this estimate did not take into account actual wastage of materials and a conservative amount of roof material required was in excess of 120 square metres. Having regard to Mr Cameron’s vast experience and his involvement in the building industry which spans over several decades, the Tribunal accepts the calculations arrived at by him in respect to the amount of roofing material which would have been required.
  3. [51]
    When assessing Mr Cameron’s evidence, the Tribunal is satisfied that there is evidence of water ingress under the roof, and that water ingress was a result of work which was carried out on the roof, and that work was defective.
  4. [52]
    The applicant complained of Mr Cameron going outside the scope of his original investigation plan as outlined in his letter to the applicant on 12 December 2019, however the Tribunal considers that the perimeters of an investigation plan did not prevent Mr Cameron from exploring the possible foundations of the defects identified, or the causes of those defects.
  5. [53]
    With respect to Mr Cameron, clearly the applicant did not like him.  The applicant’s focus was on a perception that Mr Cameron adopted an aggressive and biased attitude towards him, and his evidence was dubious.  That is not the considerations adopted by the Tribunal about Mr Cameron.  He is a very experienced and well qualified within the role the respondent engages him for.  The applicant may claim that Mr Cameron acted inappropriately in his investigation, however the Tribunal notes that no competing expert was called by the applicant and in the Tribunal’s view, Mr Cameron’s evidence was not negated. 
  6. [54]
    In conclusion, the Tribunal found nothing in Mr Cameron’s evidence to support any hypothesis to reject his evidence and nor did the Tribunal find and reasons why his evidence should not be accepted in preference to the applicant’s evidence.  

Timothy James Ablett

  1. [55]
    Mr Ablett provided a statement for these proceedings.[20]  He is a licensed roof and wall cladding contractor and the principal of D-Lux Solutions Pty Ltd.  He has extensive experience in undertaking cost assessment for various scopes of work, including replacing a roof.  When assessing his role in respect to these proceedings, the Tribunal is mindful that Mr Ablett has no vested interest in the outcome of the proceedings.
  2. [56]
    Mr Ablett’s evidence was that in relation to the cost of replacing the roof on the house, he provided a number of quotes in relation to the cost of replacing the roof to the Applicant and others.  He said that in his calculations, the appropriate 2016 price for replacing the roof on the house was $85 per square metre.  This included items such as labour, materials, overheads and a profit for the contractor.  His evidence was that based on his calculations, the costs of replacing the roof of the house was $14,526.60 (including GST).  His evidence was that this estimate did not include an additional $25 per square metre for removing and disposing of the existing roof.
  3. [57]
    The Tribunal accepts Mr Ablett’s evidence as to what the cost would have been in 2016 to remove and replace the roof (including disposal of roofing materials) and finds that his evidence to be reliable and credible. 

Cody Allan

  1. [58]
    Cody Allan (‘Mr Allan’) is a licensed plumber and drainer with over 10 years’ experience in that field of work.  He accompanied Mr Cameron during the inspection of Ms Dwyer’s house on 6 January 2020.  Arising from that inspection was a report, which had been completed with his input.[21]  The report detailed significant and substantial defects in the construction of the roof, and described:
  • Metal filings had been left on the roof which caused rusting.
  • Various lengths and gauges of roofing screws had been used to install the roof area and flashing in contravention of AS 1562.1.
  • Roof fittings over the entire roof had either not been installed to the correct tightness, or others had been installed too tight causing the seal on the fixings to be pushed out.  Nor had the fixings been installed in the correct position with evidence of the fixings missing the timber battens.
  • The metal roof sheeting not installed as per Australian Building Code in that they were overlapped incorrectly so that the side flap was facing the prevailing weather.
  • Roof sheeting had been laid on an angle not parallel to barges, meaning the barge flashing did not line up allowing water runoff into roof spaces.  It was observed that the roof had not been installed correctly and was not undertaken in a tradesman like manner.
  • In contravention of the Australian Building Code, each of the roof sheet stop ends had not been turned up at the ridge line.
  • The flashings were described as poorly fitting and poor workmanship.  The flashings and mitres did not line up with the roof angles and building structure.  This work did not conform with the Australian Building Code.
  1. [59]
    Mr Allan’s evidence was not challenged or in any way negated by the applicant.  The Tribunal accepts this evidence with respect to the contraventions of the Australian Building Code and the Australian Standards.

Addison Rach

  1. [60]
    The Tribunal received evidence from Addison Rach (‘Mr Rach’).[22]  Mr Rach was engaged by Ms Dwyer’s insurance company to inspect the roof.  During his inspection of the roof of the house on 19 February 2019, he identified that the leak discovered in the lounge room was caused by screw penetration. 
  2. [61]
    He said that all barge cappings had been poorly made, and in his assessment, they would eventually leak. The roof had recently been replaced and the battens should have been installed at the lower section and apex section of the roof, however they were not. 
  3. [62]
    Mr Rach went on to say that the ridge capping had been poorly scribed in and the roofing sheet iron over the back left hand side room had been poorly installed and had been forcibly pulled into place with a stitching screw.  He also identified that 10 roofing screws were loose and would require tensioning.  None of Mr Rach’s evidence was seriously challenged, disputed or negatived by the applicant and the Tribunal accepts that Mr Rach was an honest and forthright witness.

Was the roofing work undertaken on the house building work for the purposes of section 72 of the QBCC Act?

  1. [63]
    Work of the value of $3,300 or more is building work unless it is embarked upon personally by the owner of the land on which the work is undertaken.  If the building work is undertaken personally by the owner, and it is valued at $11,000 or more, then it is building work for the purposes of the QBCC Act.   
  2. [64]
    Building work is described within the QBCC Act as meaning to include the renovation, alteration, extension, improvement or repair of a building.  It was not disputed by the applicant that he carried out work on the house, and the Tribunal finds that the evidence shows the applicant did undertook renovations on the house.  He also completed an extension and carried out repairs to the house.  In that sense, what he did was building work, however, he disputes this.  He argues that he was an owner builder and is not captured by that definition because the value of the work he undertook was less than $11,000.
  3. [65]
    The Tribunal observes that an early position adopted by the applicant was to tell Mr Cameron in an email that the building work on the roof was undertaken by an acquaintance who was a licenced contractor.  He referred to this person as Kyle.  When the hearing was underway, he disclosed that what he told Mr Cameron was not correct.  He had fabricated that Kyle had undertaken the work, when in fact it was the applicant himself who carried out the work.  He also said that his father was at the house when the work was carried out, however the applicant did the roofing work without the assistance of his father.  His father was merely an observer just in case of an accident such as the applicant stepping off the roof.   
  4. [66]
    When looking at the applicant’s evidence on this issue, he gave conflicting versions as to who carried out the actual work.  Firstly, he said Kyle did the work, then he admitted that this was a fabrication; and it was really he alone who did the work, even though his father was present.  This all brings into question the credibility of the applicant.  The Tribunal notes that a significant period of time passed between when his fabricated version about Kyle was told to Mr Cameron to when he admitted at the hearing that Kyle did not exist.  He could have at any time during that period told the respondent that he had fabricated the version about Kyle.  But instead, he maintained that pretence until he gave evidence at the hearing.  When carefully assessing those features with respect to his credibility, it is the Tribunal’s view that he is not a witness of truth with respect to the evidence just discussed. 
  5. [67]
    The applicant’s evidence at the hearing was that not only did he carry out the work himself, but it was undertaken in three separate stages, and the overall costs were less than the $11,000 threshold.  In contrast to that, there was Mr Cameron’s evidence that the work undertaken to complete the building work on the roof would have exceeded $11,000.
  6. [68]
    The Tribunal had the opportunity during the hearing to assess the applicant demeanour as a witness and the responses he gave to the questions posed to him by Mr Ensbey.  The Tribunal has already referred to the applicant’s veracity as a witness and when applying that assessment to his claims about the work he carried out on the roof and the costs involved, the Tribunal prefers the evidence of Mr Cameron and Mr Ablett over that of the applicant in respect to the cost of the roof.
  7. [69]
    Earlier in these reasons, the Tribunal discussed the application of section 71I(1)(i) of the QBCC Act to this matter.  On the weight of evidence, the Tribunal is satisfied and finds that the house was purchased by the applicant as an investment and after carrying out the building work to renovate the house, he sold the house for profit or for gain.  Having accepted the evidence of Mr Cameron and Mr Ablett in preference to the applicant in respect to the value of the work undertaken by the applicant, the Tribunal finds that the work he carried out on the roof was building for the purposes of section 72 of the QBCC Act.     

Was the building work defective?

  1. [70]
    The Tribunal has carefully assessed the evidence given by Mr Cameron, Mr Rach, Mr Ablett and Mr Allan.  Each of those witnesses have significant experience within the building industry.  They undertook inspections of the roof and their evidence, individually and cumulatively, satisfies the Tribunal that the building work was defective.

Is the applicant responsible for the building work?

  1. [71]
    There is no dispute that it was the applicant who carried out the building work.  The applicant gave two versions with regard to the presence of others when he undertook the work.  Firstly, he told Mr Cameron that he engaged a licenced contractor called Kyle to install the roof.  He later retracted that version when cross examined at the hearing.  He then said that his father was present, although his father was merely an observer and did not participate in the work undertaken.
  2. [72]
    Having assessed the evidence in respect to where the responsibility lies as to who carried out the building work, the Tribunal finds that it was the applicant who was responsible for the building work being carried out.

Discussion – was the building work on the roof undertaken by the applicant as part of one project?

  1. [73]
    The evidence in this matter confirmed that the applicant’s purchase of the house was for the purposes of an investment.  He sold the house to Ms Dwyer, and in doing so made a profit.  When looking logically at that point, the Tribunal concludes that as soon as the renovation work and the extensions were completed, he took the necessary steps to sell the house.  It is also logical to conclude that when the house was purchased, he knew that work had to be undertaken on the roof, as well as other parts of the house to bring the condition of the house to a standard where it would soon, if not immediately, attract a buyer.
  2. [74]
    The applicant claimed that he undertook the roofing works in separate stages.  He wanted to undertake works to repair the main roofing iron because he was worried about the forthcoming wet season and the imminent increased leaking which would occur.  He said that the remaining roofing works were carried out in March 2017.  He does not cavil with the evidence that during the time he owned the house, he carried out a substantial amount of renovation and repair works to the house, including the roofing. 
  3. [75]
    The Tribunal has already discussed the applicant’s untruthfulness with respect to telling a version to Mr Cameron that he had engaged Kyle to carry out the roofing work, and then he changed that version at the hearing and admitted that he had lied. 
  4. [76]
    He told the Tribunal that he lied to Mr Cameron because he believed that he would be fined for doing the work on the roof.  Clearly, during the time he gave evidence and was cross-examined at the hearing, he displayed a better than a working knowledge of the provisions of the QBCC Act, in particular the provisions relating to owner builders and being required to obtain a permit if the costs exceed the $11,000 threshold. 
  5. [77]
    The Tribunal considered that he also displayed considerable knowledge that if anyone had assisted him, like his father, then there were certain ramifications so as to the application of the provisions of section 72 to him.
  6. [78]
    Helpfully, the respondent has provided clear particulars of its position so far as the evidence in this matter, including a discussion on the applicant’s claims that he carried out the building work.
  7. [79]
    The Tribunal has read the respondent’s submissions and concurs wholeheartedly with, and adopts the following assessment and reasoning in respect to the carrying out of the work on the roof:

If, as the Applicant asserts, the October 2016 roofing works and the March 2017 roofing works were separate undertakings, the Applicant does not explain, or provide evidence in support of his contention that the repair works to the roof undertaken in March 2017 were quite separate to the repair works to the roof undertaken in October 2016. In other words, if the Applicant only intended, prior to October 2016, to undertake the October 2016 roofing works, the Applicant did not indicate what occurred to then result in the Applicant subsequently considering that further roofing works needed to be carried out in March 2017. Apart from asserting they were separate works, the Applicant has not provided any justification or evidence for that position. To the contrary, the fact that the Applicant has indicated that the October 2016 works were carried out first as urgent repair works to the roof due to the imminent wet season, indicates that it was intended in October 2016 that the further non-urgent works to the roof would be undertaken after the wet season had ended.[23]

  1. [80]
    It was the applicant’s evidence that when he purchased the roof, he became aware that the roof was in poor condition and need replacing or repairing.  Any reasonable conclusion to be drawn from that evidence is that with the forthcoming wet season, the repairs and replace were essential.  The Tribunal has given careful consideration to the short period of time between when the roof replacement and repair works were undertaken by the Applicant.  When assessing that, the Tribunal is of the view that a reasonable conclusion to reach is that the roofing works undertaken by the applicant in October 2016 and March 2017 were undertaken for the single purpose or project of fixing the roof.  Afterall, he purchased the property as an investment and to have the work undertaken in the shortest reasonable time was beneficial so that the house could either be rented or sold for capital gain.
  2. [81]
    In Pappas v Queensland Building Services Authority [2002] QDC 290, the Court made a determination in respect to whether it would be unfair to issue a direction to rectify.  In discussing the circumstances and the facts of the case, the Court said that depending upon the particular circumstances of any case, a common sense approach is required so far as justice, fairness, equity and fault are involved. 
  3. [82]
    Applying that common sense approach principle to the applicant’s case, along with an assessment of his evidence that the October 2016 works were undertaken as an urgent repair of the roof because of the pending wet season, this suggested that at the initial point in time he intended to carry out the non-urgent work after the passing of the wet season. 
  4. [83]
    By staging the work at different intervals, this would mean that he could avoid his requirement to obtain an owner builder permit, and could avoid the consequences arising from carrying out unlawful or unlicensed building work.  As identified by the respondent,  such works could include works that are not just cosmetic, but structural in nature, which may have devastating consequences for the occupants of the dwelling, or subsequent purchasers if these works were not carried out to the required building standard.[24]
  5. [84]
    When carefully considering the facts, circumstances and features of this matter, the Tribunal is of the view and finds that the roofing work undertaken by the applicant was a continuing project and each part when taken cumulatively formed a single project.

Would it be unfair to give the direction to the applicant?

  1. [85]
    Having been satisfied of the findings as they have been outlined in these reasons, the Tribunal has turned its mind to whether it would be unfair to the applicant if the respondent was to give him a direction to rectify.  
  2. [86]
    At the time he purchased the house, the applicant was aware of the poor condition of the roof, and he knew that it required attending to.  Ultimately, he is the person responsible for the building work being carried out on the roof.
  3. [87]
    The Tribunal had the benefit of hearing the evidence of the respondent’s witnesses, in particular Mr Cameron, Mr Ablett, Mr Allan and Mr Rach.  Collectively, they consider that the work undertaken by the applicant was of very poor standard.  When considering the images shown in the photographs included in the building report exhibited in the hearing, the Tribunal concurs with their assessment with respect to the identification of poor workmanship.  
  4. [88]
    Listed within the QBCC Act are the objectives the legislation strives to achieve. Along with providing remedies for defective work, the objectives also expressly provide, inter alia, that they exist to regulate the building industry and to ensure the maintenance of proper standards in the industry.  The Objects go on to provide remedies for defective building work,[25] and the same principle applies to owner builders. 
  5. [89]
    A direction to rectify is given for a number of reasons, including to ensure proper standards in the industry[26] and consumer protection is a primary purpose of the QBCC Act.  It is the legislator’s intention that for reasons of consumer protection, the responsibility for defective building works sits squarely at the feet of the person responsible for carrying out that building work.
  6. [90]
    As to whether it is unfair to direct the applicant to rectify the building work in those circumstances, the Tribunal has to be satisfied that the giving of a direction to rectify would be unfair in all the circumstances.[27]  The Tribunal has the discretion to consider all the circumstances which are reasonably relevant in each particular case,[28] and those circumstances may include the terms of the contract;[29] the competing interests of the parties;[30] the cause of the defective building work and the blameworthiness of the home owner.[31]
  7. [91]
    There was no contest that the applicant undertook the building work, and nor is it contested that the building work was defective.  When work undertaken comes within the definition of building work that is faulty or unsatisfactory, this enlivens the respondent’s discretion to give a direction to remedy the defective work. 
  8. [92]
    On previous occasions, the Tribunal and the various preceding Tribunals have recognised that a failure of a building contractor to meet relevant standards, such as the Building Code of Australia and Australian Standards amounts to defective building work[32] because it is the building contractor’s responsibility to ensure the building work complies with the relevant regulations.  In this case it was not a building contractor undertaking the work, but the applicant himself as an owner builder.  The same principles apply to owner builders. 

Conclusion

  1. [93]
    The Tribunal is satisfied that it would not be unfair for the applicant to be directed to rectify the defective work.  The Tribunal’s correct and preferable decision is to confirm the respondent’s decision made on 17 March 2020 to issue the applicant with a notice to rectify the defective building work at the house sold to Ms Dwyer.

Footnotes

[1] Queensland Building and Construction Commission Act 1991 (Qld), s 72.

[2] Exhibit 4, Respondent’s Statement of Reasons for the Decision, SOR-12, pages 321 – 334.

[3] Exhibit 4, Respondent’s Statement of Reasons for the Decision, SOR-14, pages 341 – 366.

[4] Exhibit 4, Respondent’s Statement of Reasons for the Decision, SOR-13, page 335.

[5] Application filed on 16 April 2020.

[6] Queensland Building and Construction Commission Act 1991 (Qld), s 87; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18.

[7] Kioa v West (1985) 159 CLR 550, 585.

[8] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2).

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a).

[10] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19.

[11] Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 299.

[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[15] Queensland Building and Construction Commission Regulations 2018 (Qld), Schedule 1, paragraph 33.

[16] The applicant claimed the actual exact measurement was 59.65m2.

[17] Queensland Building and Construction Commission Act 1991 (Qld), s 71I(1)(i).

[18] Exhibit 5.

[19] Exhibit 6.  Statement dated 14 September 2020.

[20] Exhibit 7.

[21] Exhibit 8.

[22] Exhibit 9.

[23] Respondent’s submissions filed 29 May 2022, page 14, paragraph 43

[24] Respondent’s submissions filed 29 May 2022, page 15, paragraph 46.

[25] Queensland Building and Construction Commission Act 1991 (Qld), s 3.

[26] Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259, followed in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568, [22].

[27] Queensland Building and Construction Commission Act 1991 (Qld), s 72(5).

[28] Queensland Building and Construction Commission Act 1991 (Qld), s 72(3).

[29] Doolan v Queensland Building and Construction Commission [2017] QCAT 58, [13].

[30] Stephenson v Queensland Building Services Authority [2005] QCCTB 59, [40].

[31] Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397, [9]; R v His Honour Judge Miller and the Builders’ Registration Board of Queensland; ex-parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446.

[32] Middleton v Queensland Building and Construction Commission [2018] QCAT 177, [27] in reference to previous decisions of Fontain v Queensland Building Services Authority [2004] QCCTB 163, Harold Terry v Queensland Building Services Authority [1995] QTB 55, Small v Building Services Corp [1988] 7 BCL 109.

Close

Editorial Notes

  • Published Case Name:

    Waddell v Queensland Building and Construction Commission

  • Shortened Case Name:

    Waddell v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 159

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    29 Mar 2023

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
Doolan v Queensland Building and Construction Commission [2017] QCAT 58
2 citations
Jump To
Cite 1 - [2017] QCAT 58
Cite 2 - [2017] QCAT 58
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
2 citations
Jump To
Cite 1 - (1979) 24 ALR 577
Cite 2 - (1979) 24 ALR 577
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
Fontain v Queensland Building Services Authority [2004] QCCTB 163
2 citations
Jump To
Cite 1 - [2004] QCCTB 163
Cite 2 - [2004] QCCTB 163
Harold Terry v Queensland Building Services Authority [1995] QTB 55
2 citations
Jump To
Cite 1 - [1995] QTB 55
Cite 2 - [1995] QTB 55
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
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
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
Middleton v Queensland Building and Construction Commission [2018] QCAT 177
2 citations
Jump To
Cite 1 - [2018] QCAT 177
Cite 2 - [2018] QCAT 177
Pappas v Queensland Building Services Authority [2002] QDC 290
2 citations
Jump To
Cite 1 - [2002] QDC 290
Cite 2 - [2002] QDC 290
R v His Honour Judge Miller and Builders' Registration Board; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446
2 citations
Jump To
Cite 1 - [1987] 2 Qd R 446
Cite 2 - [1987] 2 Qd R 446
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
2 citations
Jump To
Cite 1 - (2008) 235 CLR 286
Cite 2 - (2008) 235 CLR 286
Small v Building Services Corp [1988] 7 BCL 109
2 citations
Jump To
Cite 1 - [1988] 7 BCL 109
Cite 2 - [1988] 7 BCL 109
Stephenson, Peter Thomas & Christine Ann v Queensland Building Services Authority [2005] QCCTB 59
2 citations
Jump To
Cite 1 - [2005] QCCTB 59
Cite 2 - [2005] QCCTB 59

Cases Citing

Case NameFull CitationFrequency
Castro v Queensland Building and Construction Commission [2025] QCAT 1192 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.