Geary v QBCC[2023] QCAT 179

REASONS FOR DECISION

1. [1]
   Mr Geary has applied to the Tribunal for review of a decision made on 13 October 2020 by the Queensland Building and Construction Commission (“QBCC”) not to issue certain requested directions to rectify defective building work claimed to be performed by Mr Murray at Mr Geary’s property in 2019.
2. [2]
   Mr Geary made 20 complaints about the work done by Mr Murray. QBCC directed Mr Murray to rectify six, but not the remainder. Mr Geary apply to the tribunal to review the decision not to direct rectification of the other 14 items of complaint.
3. [3]
   Mr Geary resiled from his application seeking review of complaint items 3, 7, 8, 14, 17, 18, 19 and 20 at a compulsory conference held on 13 October 2021. The review application continued but limited to complaint items 2, 4, 5, 6, 11 and 16. At the compulsory conference the Tribunal directed that evidence be confined to addressing only complaint items 2, 4, 5, 6, 11 and 16.
4. [4]
   The parties appeared before the Tribunal at hearing on 24 January 2023.

The complaints

5. [5]
   The relevant complaints according to Mr Geary:
6. [6]
   Complaint 2 – timber floors have not been levelled as requested and expected, as per verbal contract.
7. [7]
   Complaint 4 – three 100 mm square holes left in timber floor (after three 100 mm  supporting posts to ceiling were removed) have been filled with cheap particle board and left uneven. Four boards could have been replaced.
8. [8]
   Complaint 5 – timber floor was not levelled and planed (where required) – to prepare floor for installation of vinyl flooring.
9. [9]
   Complaint 6 – timber floor was not levelled and wall not straightened (adjacent kitchen) as requested and expected. Verbal contract was not completed.
10. [10]
    Complaint 11 – numerous timber posts supporting bearers and house off ground have large gaps – (4 – 6 inches). They are not held in place, support nothing which the builder agreed to fix.
11. [11]
    Complaint 16 – hole drilled by builder into “water collection box” on front wall of house to access a 90 mm pipe is larger than 90 mm. Hole is not sealed leaks and allows vermin.

Background

12. [12]
    Mr Geary owns an older style home on a rural property west of Toowoomba. The house was effectively made up of three parts when he asked Mr Murray to do work there. One side of the house Mr Geary calls the kitchen area, the other side the bedroom area, and in the middle a living room area. The living room area was formed by roofing across an area between the kitchen and the bedroom areas. Whereas the kitchen and bedroom areas each had a separate peaked roof, the living room area roof was flat with a box gutter running across its middle from front to back collecting and diverting water.
13. [13]
    Mr Murray was engaged to demolish the living room roof and rebuild it with a pitched roof.
14. [14]
    The parties did not record their agreement about the building work to be done. The agreement was oral. As is quite common where that happens, their individual views about the scope of work and obligations of the parties are markedly divergent. There were no plans, no specifications. It is largely because of their failure to make written record of the scope of work that QBCC determined it could not decide whether the work Mr Geary wants rectified was work Mr Murray was asked to do and was paid to do by agreement.

The QBCC decision

15. [15]
    QBCC determined that in respect of complaints numbered 2, 5, 6 and 11 the QBCC was unable to determine if Mr Murray had been required to undertake the work in relation to the complaints. There was no written contract, no plans or specifications available. The QBCC was unable to decide whether or not the work complained about was within the builder’s scope of work and he was responsible for it. On that basis the QBCC found it was not appropriate to issue a direction to Mr Murray to rectify the disputed work.
16. [16]
    A number of other directions to rectify defective work (work not to an appropriate standard) were issued to Mr Murray, but the work concerned was not challenged by Mr Murray as work outside the agreed scope of work.
17. [17]
    As to complaints 4 and 16, QBCC found the work fell within the builder’s responsibilities but they were non-structural defects and did not constitute an adverse health or safety issue. By the QBCC Rectification of Building Work Policy it is a policy of QBCC not to issue a direction to rectify if a consumer lodges a formal complaint of defective work later than 12 months after completion of the building work. The building work completed on 27 November 2019 and the complaint was made on 21 July 2020.
18. [18]
    The finding that items 4 and 16 were out of time according to the QBCC Rectification of Building Work Policy is clearly wrong. That was subsequently recognised at hearing by the building inspector who attended the site and prepared a report about the construction work for QBCC, Mr Jones. He notes the error in his statement of evidence.^[1] He goes on to say that even so it was not appropriate to issue a Direction to Rectify in respect of these items. The defects were non-structural, they did not adversely affect the structural integrity or performance of the building and they did not constitute any adverse health or safety risk.

The issues

19. [19]
    The following are the issues to be resolved:

    1. (a)
       What was the scope of work agreed by the parties?
    2. (b)
       Are the complaints about Mr Murray’s work being defective or incomplete established?
    3. (c)
       If a complaint or complaints are established, is it appropriate to issue a direction to rectify to Mr Murray?

The scope of work

20. [20]
    At hearing Mr Geary said the parties had agreed that Mr Murray would demolish the living room down to the existing floor. He would then rebuild it and modernise it and fit new windows and build a new pitched roof above it with a good high ceiling and a decent ceiling cavity. Mr Murray wasn’t to build a new floor but he was going to make sure the floor was of a standard to take floorcoverings. He was also going to level the floor. The price was agreed at $37,500.
21. [21]
    Mr Murray on the other hand said what he was asked to do, at least initially, was simply to stop water overflowing the box gutter in the flat roof above what Mr Geary called the living room area. That area had formerly been a common verandah separating different parts of the house. The gutter filled with leaves and blocked up and water constantly flooded into the living room area beneath. He was asked to demolish the flat roof and rebuild it with a pitched roof. He said he was not asked to remove the floor covering in that middle section or do anything to the floor. He did agree that he would try to get the floor flat as best he could although it was impossible to level. That was because there was a 30 to 40 mm height difference (slope) between the bedroom side of the floor and the kitchen side of the floor. The external walls were to stay and he was to refit the existing louvres. The agreed price was $41,154 inclusive of GST.
22. [22]
    Then, as work progressed Mr Murray said he was asked to do more, such as new wall framing and sheeting and new windows instead of using the existing louvres. The cost of this additional work brought the total to $46,000 inclusive of GST.
23. [23]
    Mr Murray said the ceiling height beneath the new pitched roof had been agreed from outset as only that possible given the existing divided roofs to either side of the living room area – it was not possible to achieve a 2.4 m ceiling height beneath the new roof.
24. [24]
    Mr Murray relies on his quotation dated 18 July 2019 as an accurate summary of the scope of work. The quotation describes the following work to be done for the price of $41,154.30 (GST inclusive):
25. [25]
    Cut 20 mm to 50 mm off 6 stumps; jack and pack 8 stumps; demolish structure down to floor level; fit beams x 3 ; build roof structure; fit valley gutters, roofing, gutters and downpipes; batten and sheet ceiling; replace damaged frame; sheet walls where damaged frame has been replaced; rehang existing doors; fit mouldings.
26. [26]
    Then beneath appears this described as an amendment:

With regard to the above quote the following items are not included in the price.

1  electrical work

2  painting

3  floor coverings

4  any repairs to existing flooring after lino and underlay are removed.

27. [27]
    At hearing Mr Geary accepted that the quotation accurately listed the agreed work to be done, save he disputed item 4 excluding from the scope of work “any repairs to existing flooring after lino and underlay are removed”.
28. [28]
    Mr Geary was asked in cross-examination to clarify what he said was the agreed work concerning the floor. He said “He was going to get the floor – the timbers in the floor – to a standard to take floor coverings, which meant a bit of planing, replacing a couple of boards”.^[2]
29. [29]
    Mr Geary was asked to be specific and recall what was actually said by him and Mr Murray when discussing the work to be done by Mr Murray in respect of the floor. He did not do that though asked to be specific on more than one occasion. I conclude that was because his discussions with Mr Murray about the floor, indeed the build generally, were entirely broad brush and rather vague and I determine that nothing more specific was agreed between the men other than Mr Murray would level the floor by packing or cutting existing stumps under the floor.
30. [30]
    Mr Murray’s evidence at hearing was that nothing to do with the floor was his responsibility. That is what was said in his quotation. He did agree however that the stump work beneath the floor was within the scope of work and done with a view to making the floor a flat surface rather than raising or dropping either side of the house to bring it to a level plane.
31. [31]
    Mr Murray said this in cross-examination by Mr Geary:

Mr Murray, with your verbal agreement, did or did not you agree to make the floors level as per our agreement?---I did not agree to level your building.

That wasn’t the question?---I – in answering to that question, and we both agreed on this, that I thought 30 to 40 mil, the kitchen end to the bedroom end, was difference in height. It was way too big an issue to either raise or lower half the house. It was decided that we just get it as level as we possibly can, meaning a flat area, because of the way the stumps were coming out of the ground, which you know I cut off, and as I – as I stated, that’s what I’m allowed to do in my scope of works.

Right?---Cut six stumps down and jack approximately eight stumps.^[3]

32. [32]
    On a number of occasions during the hearing Mr Geary raised a challenge about Mr Murray’s quotation. There was no challenge by him about the accuracy of the scope of work listed in the quotation save for the stated exclusion about no responsibility for the floor. Rather he raised a challenge about never having been sent a copy of the quotation until after the work was done.
33. [33]
    According to Mr Murray, Mr Geary decided to have the water entry problem fixed after a significant rain event which caused flooding into the living room area. Mr Geary claimed under his insurance but told Mr Murray to go ahead with the work before the insurance was approved. It is not clear when Mr Murray started work but during the course of the work he says Mr Geary instructed him to send a quotation for the work to be done to Mr Geary’s insurer, which Mr Murray did by email dated 18 July 2019.
34. [34]
    The following exchange occurred during cross-examination of Mr Murray by Mr Geary:

Well - - -?---You asked me to send all relevant details to your insurance company, and it was then - - -

That was well after you’d started the job?---It – it was only then that I had – I got a – a – a – a claim number, a person’s number, the lady’s number, a claim number which you were waiting on them to send you a claim number for me to send to your – the relevant paperwork to them. And that was sent - - -

That was well after you’d started the job?---Because you didn’t give me the information we needed, John, to send.

Well, you didn’t give me the information. I – you were supposed to provide me with all this stuff before you even started the job. This is not your first building job. How long have you been a builder, Mr Murray?---Forty-five years.

Well, you should know what you’ve got to do to keep up your end of the deal. I’ve never had building work done before in my life?---No, but you love to work on a handshake. Just let’s go, let’s get into it.

I do. That’s an Australian thing. An honesty bond is a man’s handshake?---That’s right.

You should not – you never shake a man or a woman, lady’s hand softly, and you should end up with - - -?---That’s right.

- - - the reasonable expectation of a job?---Totally agree.

35. [35]
    Where the evidence of Mr Murray and Mr Geary conflicts I prefer the evidence of the former. He was able to give far more detailed evidence on most subjects and his evidence was consistent throughout whereas Mr Geary’s evidence was broad brush and rather dismissive of requests to provide detail.
36. [36]
    I accept Mr Murray’s evidence that he sent the quotation to Mr Geary’s insurer on Mr Geary’s instructions. I also accept Mr Murray’s evidence and submission that Mr Geary was not interested in paperwork or detail during the course of the build. I find the agreed scope of work is accurately set out in the quotation and in that regard that it was no part of the agreement that Mr Murray do anything with the floor save cut or pack some stumps under the floor to level it as best possible and get the floor supported on the existing stumps beneath.

The complaints

37. [37]
    Complaints 2, 4, 5 and part of complaint 6 concern the floor – that it was not levelled as expected, three holes in the floor were not filled with timber but rather particle board and the floor was not planed in preparation for insulation or vinyl flooring.
38. [38]
    I have found that it was no part of Mr Murray’s scope of work to level or plane the floor or indeed to be concerned about it other than to cut and pack stumps beneath. Accordingly the complaints about Mr Murray not levelling the floor are not made out, given it was no part of the work he agreed to do.
39. [39]
    Mr Murray said he had however filled three holes in the floor with a product called yellow tongue (not particle board) which was vermin proof and water resistant, after Mr Geary lifted the old linoleum, but that was additional voluntary work on his part, no part of the contract.
40. [40]
    Mr Geary said he had fallen through the floor because of the poorly affixed particle board. Given the holes corresponded in size to the three original supporting posts each 100mm square, I do not accept that Mr Geary could fall through the floor as claimed; the holes are too small.
41. [41]
    Mr Jones, the QBCC inspector, attended on site and inspected the floor including the particle board – I note it was not put to him that it was yellow board rather than particle board. He said in his report, and he confirmed at hearing, that use of particle board to fill the three holes did not constitute a health or safety issue. It was a suitable product to use under floor coverings. Whether particle board should have been used rather than timber, given it was perhaps unsightly, was a contractual matter. His evidence was that he had inspected the three pieces of particle board and found them fixed and stable.
42. [42]
    I accept Mr Jones’ evidence about that. I find the complaint about the use of particle board not made out.
43. [43]
    Part of complaint 6 concerned a wall adjacent to the kitchen not being straightened. It is a little hard to understand this complaint. Apparently the complaint is not about any work done by Mr Murray doing work, but that Mr Murray did not do work on another existing wall in the house.
44. [44]
    This exchange occurred during cross-examination of Mr Geary:

MR MURRAY: Item 6. I believe I was 75 per cent of the way through the job when you approached me and said, “What do you think is going on out here?” That is from – you said before the work area is the work area. I had to go through the kitchen and out to another room for you to – to show me where the wall was coming away from the building; is that correct?---That’s an outer room. Yes.

Yes. Is that – there’s that – is that in the scope of works area?---Well, it’s not written in your scope of works, but there was never a scope of works. It was a handshake agreement.

This item 6 is – I said – did I say to you at the time, John, if I get time, I will lift some iron and have a look at what’s going on up there. The wall is coming away from the building that far up at the top and you wanted to know why. And I said I can’t tell you why until we lift iron; is that correct?---I can’t remember that. But anyway - - -

Well - - -?--- - - - what you’re saying is what you’re saying.^[4]

45. [45]
    I determine rectifying an existing wall in the dwelling was no part of work Mr Murray agreed to do. There is no mention of it in the quotation as conceded by Mr Geary.
46. [46]
    This complaint is not made out either.
47. [47]
    Complaint 11 concerns the stumps beneath the living area. Mr Geary questioned Mr Murray about them at hearing:

Yeah. Well, that was a six-month period of time and you failed to strap it down. The – the – the bearers were springing in the air six months later?---But they’re not today. They’ve been packed.

Beg your pardon?---I say it’s not springing today.

No?---That’s right.

But there was gaps there that were – needed strapping down?---Well, I just explained. They were cut off early – the stumps were cut down to try and get the house to come back down as there was no weight – it’s one big room. It’d be different if there was a centre wall that could force the floor down, but there was no weight in the centre of that room.

That’s why you’d strap it, wouldn’t you?---That’s right, but I – that’s why there was gaps there when you seen it, but there’s not now, and as I say, we were waiting for it to come back down, John. You know full well.^[5]

48. [48]
    According to Mr Murray, the floor had settled and as at date of hearing rested on all the stumps. That was not challenged by Mr Geary. Rather he seemed to accept that but complained about the floor not being strapped down to the stumps. I find that the floor has settled onto the stumps. Indeed tying down the floor to the stumps was the subject of a direction to rectify issued to Mr Murray on 13 October 2020 and is no part of the review proceedings at hand.
49. [49]
    Complaint 11 is not made out.
50. [50]
    Which leaves complaint 16 concerning a hole cut by Mr Murray into the new water collection box fixed to the front wall of the house to allow a 90 mm storm water pipe entry. The previous collection box had been on the wall that Mr Murray demolished as part of the building work. Mr Geary arranged for a new collection box to be manufactured and Mr Murray fitted it. Mr Geary complains the hole is cut too large and it is not sealed and it allows access for vermin. He said this in cross-examination at hearing:

It has been poorly constructed; is that right?---No. Poorly attached. Like, his work – he cut a – a gaping hole in the side of it - - -

Yes?--- - - - and put a 90-mil pipe in it, didn’t grommet it. Frogs can get in there, because the – the – the box was built by a firm in Toowoomba, like, built quite well, and it’s got a mesh screen in the top to stop vermin going into where your drinking water goes. So in his haste trying to finish the job in late November, this – he’s just hacked a big gaping hole and put the 90-mil pipe in the side, never sealed it for vermin or anything like that.

51. [51]
    Mr Jones said at hearing he had inspected the collection box. He said it should have been sealed but was not, but that did not affect the structural integrity of the dwelling and it did not constitute a health and safety issue. It did the job it was supposed to do. The gap around the pipe was small. It might allow insects to enter, but not frogs or other vermin.
52. [52]
    He thought it was unreasonable to direct Mr Murray to rectify such a minor problem.
53. [53]
    Mr Murray described his work cutting a hole in the collection box to take the stormwater pipe as neat. He said he didn’t seal it to allow it to be removed easily without having to cut out silicone.
54. [54]
    I prefer the evidence of Mr Jones to that of Mr Geary about this. Mr Jones struck me as an independent witness who did not exaggerate and gave accurate, considered answers to questions. 
55. [55]
    I determine the gap around the pipe was not large. It would not allow frogs to enter but it would not keep out insects. I accept however that it should have been sealed with silicone but it was not and on that basis it constituted defective building work.

Is a direction to rectify fair?

56. [56]
    By s 72(5) QBCC Act the Commission is not required to give a direction to rectify defective work if the commission is satisfied that in the circumstances it would be unfair to the person to give the direction.
57. [57]
    As stated in Wright and Anor v Duke Building Pty Ltd and Anor [2017] QCATA 35 [88]:

3. [88]
   Section 72(1) of the QBCC Act concerns the identification of defective building work, not fault attribution.… The initial question to be determined by the Commission is simply whether or not faulty or unsatisfactory building work has been identified. If the answer is yes, that leads to the question, is it reasonable in all the circumstances, to direct someone to rectify it? That requires the exercise of a discretion by the Commission whether it is appropriate in the circumstances to that person, here the builder, to do that work.

58. [58]
    Should Mr Murray be required to return to Mr Geary’s property to silicone around the stormwater pipe where it enters the collection box? That is the only defect and there is nothing to indicate it is anything other than a trivial defect. According to Mr Jones the gap between box and pipe is small. It doesn’t allow vermin to enter but perhaps it does allow insects entry. As with the other items of complaint the subject of the review, it is a non-structural defect, not a health and safety concern and the collection box works.
59. [59]
    Mr Murray said at hearing he has concerns for his safety in the presence of Mr Geary. He said at hearing and in statements of evidence filed prior to hearing that he  has tried to return to fix other problems at Mr Geary’s property only to be refused access which has caused him considerable trouble and costs.
60. [60]
    I determine it would be unfair to require Mr Murray to return to add silicone to the small gap between pipe and opening in the collection box.
61. [61]
    The discretion not to issue a direction to rectify is exercised. Given Mr Geary has resiled from seeking review of any of his original items of complaint save for the six considered herein, the appropriate order is simply to confirm the decision of the QBCC.
62. [62]
    The day before hearing Mr Geary filed an application for miscellaneous matters in the Magistrates Court at Maroochydore. The application sought a non-publication order in respect of the names and addresses of two witnesses and an adjournment of the hearing on the basis Mr Geary worked in a remote area without internet and he was not aware of the hearing date. The hearing proceeded on 24 January 2023 with Mr Geary attending. The miscellaneous application was only received by Brisbane registry from the Magistrates Court on 25 January 2023. The application for adjournment became otiose and I need not address it further.
63. [63]
    On 20 April 2023 Mr Geary filed another miscellaneous application seeking the same non-publication order in respect of the same witnesses and also seeking to submit additional statements of evidence. There is no evidence that the additional statements of evidence have been provided to either QBCC or Mr Murray, nor indeed the miscellaneous application. There is no application filed by Mr Geary to reopen the proceedings. There is no suggestion the evidence concerned could not have been obtained before hearing and made available for the hearing.
64. [64]
    It would be unfair to admit the statements now, particularly given the respondents will have no opportunity to challenge them.
65. [65]
    Concerning the applications for non-publication, there is no basis laid for such an order. The short reason given in the first application provides no enlightenment: “Due to nature of both the afore mentioned employment types.” There is nothing “aforementioned.”  In the second the reasons are given some slight elaboration with this added “As the employment nature of these people in the roles of mental health and Nursing not be compromised”.
66. [66]
    The two witnesses concerned are not identified in the reasons for decision. Their evidence was irrelevant to the issues in dispute which turned principally on the scope of work agreed between the parties, not the condition of the property found by attendees post construction or what they were told by Mr Geary. There is no basis laid for issue of a non-publication order and the application is refused.