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  4. Barry v Queensland Building and Construction Commission - [2023] QCAT 287

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Barry v Queensland Building and Construction Commission[2023] QCAT 287

Barry v Queensland Building and Construction Commission[2023] QCAT 287

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Barry v Queensland Building and Construction Commission [2023] QCAT 287

PARTIES:

Jane Catherine Barry

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR040-22

MATTER TYPE:

Building matters

DELIVERED ON:

21 July 2023

HEARING DATE:

28 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

The decision of the Queensland Building and Construction Commission not to issue a direction to rectify in respect of complaint items one, two, three and five of its decision of 11 November 2020 (and as confirmed on internal review on 1 February 2021) is confirmed.

CATCHWORDS:

CONTRACTS – BUILDING – COST PLUS CONTRACT – domestic renovation and building work – rectification of building work – reasonableness of direction to rectify when contractual payment outstanding

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29

Queensland Building and Construction Commission Act 1991 (Qld)

Body Corporate for London Woodstore’s Apartments & Or’s v Queensland Building Services Authority [2011] QCAT 86

APPEARANCES & REPRESENTATION:

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]
    In this application Jane Barry (Ms Barry) seeks rectification of defective building works in respect of construction at Freshwater Queensland by Sherriff Contractors Pty Ltd (Sherriff) in the period November 2019 to August 2020 pursuant to a cost-plus contract dated 2 October 2019.

Prior Background

  1. [2]
    Initially by Application BDL 43/21 filed 4 March 2021 at Brisbane (originally 26 February 2021 at Cairns) Ms Barry sought rectification of defective building work against Sherriff. By Application BDL 68/21 filed 24 March 2021 Sherriff sought payment of outstanding final sum due $3,161.30 ($2,873.49 plus GST). Ms Barry filed a counterapplication to that Application seeking dismissal of Sherriff’s claim, consolidation of proceedings and compensation. Subsequently, both the Application and Counter application BDL 68/21 were dismissed on 8 August 2022.
  2. [3]
    Prior on 27 January 2022 with respect to BDL 43/21 the Tribunal directed the Queensland Building and Construction Commission (QBCC/Commission) be joined as a Respondent and Sherriff removed, the Application to proceed as an application to review the decision of the QBCC dated 1 February 2021.The Application was then transferred to the General Administrative Review – QBCC – list and renumbered GAR 040/22.
  3. [4]
    On 30 March 2022 Sherriff applied to be joined to the proceeding on the basis it was a named affected party in QBCC’s internal review decision.
  4. [5]
    The QBCC also submitted the builder Sherriff was a named affected party in the internal review decision stating it was in the interests of justice that the builder be joined; that the builder’s interests would be affected by the decision and that if the Applicant Ms Barry was successful a direction to rectify might be issued to the builder and for the builder to comply with such direction.
  5. [6]
    The Commission argued that joining the builder would enable the issues between the Applicant and builder to be finally determined submitting that the competing positions advanced by Ms Barry and Sherriff should be put directly to the Tribunal by each so that “one body on one occasion may make one decision as to all relevant facts and law”. [1]
  6. [7]
    On 28 June 2022 the Tribunal joined Sherriff as a Respondent to the Application. On 13 October 2022 further directions were made to progress the Application to hearing including the collation of an indexed paginated hearing book containing all material on which each party intended to rely with no party being permitted to rely on any evidence not contained in the hearing book without leave. Latterly on 7 November 2022 Sherriff applied for production of Ms Barry’s Counter- Application in BDL 68/21 for use as evidence for the reason the items listed in Ms Barry’s Counter - Application in BDL 68/21 were the same items listed by Ms Barry originally in the subject Application. On 28 February 2023 the Tribunal directed the Counter – Application be produced.

Background and Evidence

  1. [8]
    On 7 September 2020 Ms Barry submitted a complaint to the QBCC detailing alleged defective work at the Freshwater premises. There were some six items of complaint. On 21 October 2020 the QBCC’s inspector Steven Sargent carried out an inspection and completed an initial inspection report dated the same day (case number 915599). In that report he recorded approved variations over the contract sum at $2,873.49. Both Ms Barry and Sherriff agreed that contractually at least $2,873.49 was owing. The six complaint items were addressed as follows.
    1. (a)
      Pool fence (barrier) Ms Barry sought reconstruction of the pool fence to required standards. It was submitted that photographs produced indicated a gap of up to 10mm from paling to ground. In his report Mr Sargent said both the Building Certifier and Cairns Regional Council commented the pool fence was compliant at the time of inspection. He noted the contract between Ms Barry and Sherriff was a cost-plus contract and that both parties had undertaken building work in respect of the pool fence barrier. The relevant Australian Standard stated, “the height of any opening between the bottom of the barrier and finished ground level shall not exceed 100mm.” Here in places the gap was 95mm to 100 mm between the bottom pool barrier and timber sleeper. Nor was it the case that an existing earth embankment had eroded such as to permit entry. The complaint was considered a non-structural defect it being considered unreasonable to direct Sherriff to rectify where the pool barrier currently complied though subject to some rectification in the short term; that monies owing to Sherriff were more than any defective work repair and that both parties had undertaken building work on the pool fence barrier. Ms Barry was not satisfied with material selection to bottom of pool fence barrier, a matter between Ms Barry and Sherriff. There was no direction to rectify this complaint item.
    2. (b)
      Down pipe to side of dwelling – poor quality of paintwork. Mr Sargent found imperfections to PVC surface evident, the coating being transparent and starved of paint when assessed in accordance with QBCC guidelines. This complaint item was considered a non-structural defect it being considered unreasonable to direct Sherriff to rectify where a contractual payment was outstanding to Sherriff and monies owing to Sherriff were more than any defective work repair. There was no direction to rectify this complaint item.
    3. (c)
      Short lower roof addition and finish to side adjacent to the lower retaining wall. The same imperfections were found, and the same reasoning adopted in determining there would be no direction to rectify this complaint item.
    4. (d)
      Cleaning of the deck and stairs- significant damage to deck board from wire wheel and acid wash to wall. On inspection Mr Sargent found Ms Barry was responsible for prepping and sealing timber decks herself; that Sherriff had used a wire wheel and light acid wash on timber decking to remove construction stains; that there was no evidence of divots or undulations to timber surface from wire wheel only expected minor colour variation. Prepping of the timber deck was required before application of timber seal. Prepping may include sanding or high-pressure cleaning both of which cause inconsistent colouring or texture finish. Colour variations may occur from sandpaper of wire wheel. Both have the same effect. Neither amount to defective building work. Some visible markings were evident on painted wall surface, but they did not appear to be acid wash residue. Timber decking boards were not prepped or sealed at inspection. It was considered there was insufficient evidence of significant damage to decking boards or acid wash residue to constitute defective building work. No action was warranted in respect of this complaint item.
    5. (e)
      Paint finish balustrading, posts, fence paling – poor and inconsistent paint finish with significant defects. A visual inspection of metal balustrade to upper deck and second story room was undertaken. Imperfections to painted surface were evident, with paint application transparent and starved. Poor finish noted with touch ups required to make good. While the complaint item was considered a non-structural defect and the builder’s responsibility to rectify it was deemed unreasonable to direct Sherriff to rectify where a contractual payment was outstanding to Sherriff and monies owing to Sherriff were more than any defective work repair. No direction to rectify was warranted.
    6. (f)
      Rust spots identified on the new roof- swarf damage to roof- incorrect cleaning had removed protective coating. A visual inspection of newly installed zincalume roof cladding was undertaken. Scuff marks were evident, but the new roof cladding appeared reasonably clean. There had been access to the roof top by third parties. There was no evidence of corrosion in areas cleaned with roof cladding performing satisfactorily. In view of access by others and current satisfactory performance of roof sheets it was considered unreasonable to issue a direction to rectify.
    7. (g)
      Though there were six complaint items listed Mr Sargent’s inspection report separately addressed a seventh item, namely premature corrosion to multiple decking screw fixings. He referenced Timber Qld Technical Data sheet 4 Residential Timber Decks which indicated fixings could be either galvanised or stainless steel. It appeared to be the case that most fixings had been replaced with stainless steel screws. He considered there was insufficient evidence of any defective construction practice.
  2. [9]
    On 11 November 2020 the QBCC issued its decision with respect to all six complaint items stating that no directions to rectify would be issued. An internal review was requested on 10 December 2020. On 1 February 2021 the Commission issued its Decision Notice confirming that no directions to rectify would be issued. Ms Barry disputed the Commissions review decision filing her application for domestic building dispute on 4 March 2021 (BDL043/21). She asserted with respect to complaint item one that the pool barrier was non-compliant; that with respect to complaint item four, acid staining to painted wall, that the damaged wall be repainted; finally with respect to complaint item six, swarf present on roof, that remaining swarf present on new or original roof sections be removed or roofing sheets be replaced in their entirety. Then on 16 March 2021 Ms Barry through her representative made an additional complaint submission to the Commission listing some forty-one asserted defects including those the subject of the Commission’s reviewed decision of 1 February 2021 (case number 1025358).
  3. [10]
    On 12 May 2021 a further inspection was conducted by Commission Inspector Stephen Ferguson. As well an outsourced expert /specialist roofing consultant Nathaniel Criaco was present at the inspection. Mr Fergusons report is dated 22 May 2021 (though it seems not fully finalised and received until about 15 July 2021) the date recited at the end/foot of his report.
  4. [11]
    With respect to the forty - one listed defects the first six were those the subject of the Commission’s decision of 11 November 2020. Those six complaint outcomes were not able to be disturbed having already been confirmed by the Commission’s internal review unit on 1 February 2021, that is, the Commission was not legislatively empowered to reconsider an internal review decision.
  5. [12]
    With respect to the remaining thirty-five asserted defects, it was found in seventeen cases there was insufficient evidence to reveal any obvious defective construction practice. Of the then remaining eighteen (one had already been investigated – roof dents and cleaning of cladding) all were categorised as not fair and reasonable or not reasonable to direct the contractor to rectify the complaint items. In the event no directions to rectify were issued by the Commission. Ms Barry was notified of the Commission’s decision not to issue a direction to rectify in respect of any of the forty-one complaints by notice dated 23 July 2021.
  6. [13]
    It was suggested by Ms Barry there were inconsistences between standards selected by the Commission’s inspector and those referenced in a parallel report dated 20 May 2021 by Nathaniel Criaco, roofing expert. Though not exclusively the QBCC is guided by the Queensland Building and Construction Board policy “Rectification of Building Work” . The policy requires the QBCC to consider all available information including but not limited to the reasonability of issuing a direction to rectify. The Commission’s inspector did not rely on Nathaniel Criaco’s report of 20 May 2021 when compiling his own report.
  7. [14]
    On 18 August 2021 Ms Barry applied for an internal review of that decision not to issue a direction to rectify limited to complaint items seven, fifteen to nineteen, twenty-one, twenty-four to thirty-four and forty-one. On 22 September 2021 the QBCC issued its Decision Notice and Reasons in respect of those complaint items as follows.
  8. [15]
    Complaint item seven. Premature corrosion of multiple external decking screw fittings under the deck. The Commission confirmed the original finding that fixings to the deck had been replaced with stainless steel fixings. There was no evidence of corrosion to an extent that affected the structural integrity of the screws or building elements. There was no defect for which a direction to rectify ought to be given.
  9. [16]
    Complaint item fifteen. Scratched external fence palings at poolside. Sherriff considered this matter had already been decided in case number 915599 (the original complaint and inspection of October/November 2020). Item five of the original complaint referred to paint finish/fence paling and should have been attached to the initial item one in dispute 915599. Ms Barry’s photographs in dispute 915599 confirm this issue is the same as that issue item one. Because QBCC cannot review a decision that has already been the subject of internal review there would be no direction to rectify.
  10. [17]
    Complaint item sixteen. Poor quality paintwork to external stair stringers and landing frame. The original decision found the work to be incomplete rather than defective. Even though the painter stated painting and touch up was of a satisfactory standard it was not evidence of completion. Ms Barry’s photographs indicated the work had not been satisfactorily rectified. On internal review the Commission considered the work defective for which a direction should be given.
  11. [18]
    Complaint item seventeen. Poor quality paintwork to SHS column one. The original decision found the work to be incomplete rather than defective. Though the painter stated painting and touch up was of a satisfactory standard it was not evidence of completion. Ms Barry’s photographs indicated the work had not been satisfactorily rectified. On internal review the Commission considered the work defective for which a direction should be given.
  12. [19]
    Complaint item eighteen. Poor quality paintwork to SHS column 1 100mm downpipe. The original decision found the work to be incomplete rather than defective. Though the painter stated painting and touch up was of a satisfactory standard it was not evidence of completion. Ms Barry’s photographs indicated the work had not been satisfactorily rectified. On internal review the Commission considered the work defective for which a direction should be given.
  13. [20]
    Complaint item nineteen. Poor quality paintwork to SHS column centre. The original decision found the work to be incomplete rather than defective. Though the painter stated painting and touch up was of a satisfactory standard it was not evidence of completion. Ms Barry’s photographs indicated the work had not been satisfactorily rectified. On internal review the Commission considered the work defective for which a direction should be given.
  14. [21]
    Complaint item twenty-one. Premature corrosion of primary water supply piping clamps below deck. Water pipe clips/clamps under the deck within one metre of the pool are required to be stainless steel not just galvanised but can be made of PVC. Photographs of use of unsuitable galvanised clips/clamps were produced leading to the Commission to consider their use as constituting defective work. The clips/clamps were affixed with B8 screws corrosion resistant and suitable for use in very severe marine environments characterised by salt in the air but not impacted by salt spray. The screws however were likely to be impacted by salt water from the pool e.g., splashing. But the Commission found the use of B8 screws did not form part of the complaint item. Therefore, there could be no direction to rectify.
  15. [22]
    Complaint item twenty-four. Screw snapped off in barge capping and left in place. Both Ms Barry and Sherriff gave evidence that the work had since been rectified. Therefore, there was no direction to rectify.
  16. [23]
    Complaint item twenty-five. Ridge capping junction between old and new section solely reliant on silicone; no fixings installed to junction. Sherriff produced a photograph depicting barge capping provided with fixings. Whilst marginally non-compliant at 55 mm (fastenings at intervals not exceeding 40 mm) it was considered not to be of significant consequence. The barge capping performs adequately. The Commission was satisfied the work had been satisfactorily rectified. Therefore, there were no grounds to issue a direction to rectify.
  17. [24]
    Complaint item twenty-six. Fixings in barge capping (lower roof) joint laps spaced at greater than 40 mm centres. The reasoning was identical to that expressed for item twenty-five. Therefore, there were no grounds to issue a direction to rectify.
  18. [25]
    Complaint item twenty-seven. Fixings in barge capping (upper roof) joint laps spaced at greater than 40mm centres with some not undersealed. The Commission found rectification work had taken place; fixings were compliant. There was no evidence that the lapping had not been undersealed. Rectification work had been satisfactorily completed. Therefore, there were no grounds to issue a direction to rectify.
  19. [26]
    Complaint item twenty-eight. No fixings installed in vertical leg of barge capping to upper floor requiring fixing at approximate centre dimensions Sherriff gave evidence that the work had since been rectified. Ms Barry did not refute this. Therefore, there was no direction to rectify.
  20. [27]
    Complaint item twenty-nine. Screw placed in incorrect position, removed and hole patched with silicone (with swarf present) to barge capping to upper roof. Sherriff gave evidence that the work had since been rectified. Ms Barry did not refute this. Therefore, there was no direction to rectify.
  21. [28]
    Complaint item thirty. Lap in eaves gutter is not fastened. Sherriff produced a photograph indicating that the lap in the gutter had been provided with fixings. Ms Barry referred to the relevant Australian Standard requirement for fasteners to be spaced at not more than 40mm centres. That applied to box gutters. There was no such requirement for eaves gutters. The only requirement for eaves gutters was for the lap to be not less than 25mm. Sherriff’s photograph depicted fixings at greater than 40mm but there was no requirement for fasteners to be spaced at not more than 40mm from eaves gutters. The Commission concluded the work had been satisfactorily rectified. Therefore, there were no grounds to issue a direction to rectify.
  22. [29]
    Complaint item thirty-one. Swarf staining to eaves gutters and roofing associated with installation of gutter guard by the building contractor. The Commission found where other persons accessed the roof undertaking work likely to cause swarfs it would be unreasonable to apportion full responsibility to Sherriff. Damage by others could not be excluded. It would be unfair to give Sherriff a direction to rectify in the absence of real or substantial evidence that damage was directly caused by Sherriff.
  23. [30]
    Complaint item thirty-two. Swarf staining stuck in silicone installed by Sherriff. Photographs were produced by both parties but the presence of swarfs within the silicone could not be clearly identified. Therefore, it could not be said with certainty the work was defective. To give a direction to rectify in those circumstances would be unfair.
  24. [31]
    Complaint item thirty-three. Several roof screw washers split/damaged due to overtightening. Several roof screws were found to be overdriven splitting and deforming the sealing washers. Nor did the installation of the roof screws conform/comply with manufacturers specifications. Sherriff asserted being on the roof removing and replacing screws but there was no verifying evidence. In those circumstances the work was considered defective for which a direction to rectify could properly be given.
  25. [32]
    Complaint item thirty-four. Several cyclone roofing assemblies had been disassembled and installed as single screws without the cyclone plate. The building contractor had installed these screws with only the bottom cyclone plate EPDM washer. The Commission found the installation of screws where the outer diameter of the EPDM washer was greater than the hexagon washer head was defective in that it did not conform to the manufacturer’s specifications. The screws were overdriven into the EPDM washers with exposure to ultraviolet light likely to lead to reduced service life. The work was defective and a direction to rectify ought to be given to Sherriff.
  26. [33]
    Complaint item thirty-seven (though this item was not listed on Ms Barry’s internal review application of 18 August 2021). The external eaves gutters do not appear to have been fitted with any dedicated overflow measures. Whilst it was accepted overflow measures for eaves gutters can be excluded where eaves have no lining eaves in this case were lined with overflow measures to be provided. Sherriff further asserted overflow measures had been provided in the form of a back gap. But it was found overflow measures involving a back gap required permanent minimum 10mm spacer pursuant to the National Construction Code. In this case it was 6-8mm and therefore non-compliant. The work was therefore defective and a direction to rectify ought to be issued.
  27. [34]
    Complaint item forty-one. Exposed reinforcing bar inside access concrete slab. Sherriff said the work had been rectified. Ms Barry did not refute this. That being so there was no direction to rectify to be issued.
  28. [35]
    In the decision notice and reasons of 22 September 2021 the Commission also notified Ms Barry of its decision to give Sherriff a direction in relation items 16,17,18,19,21,33,34 and 37 listed in Ms Barry’s original further complaint submission of 16 March 2021. In that same decision the Commission stated it had decided not to give Sherriff a direction to rectify in respect of items 7,24,25,26,27,28,29,30,31,32 and 41 listed in that same complaint submission of 16 March 2021.
  29. [36]
    On 19 October 2021 the Commission notified Ms Barry of its direction to rectify/defective work list being issued to Sherriff. The eight-item direction to rectify/defective work list issued to Sherriff encapsulated the Commission’s internal review determination in respect of items 16, 17, 18, 19, 21, 33, 34 and 37. The eight defective works listed were to be fixed by 22 November 2021 and were in short form as follows.
    1. (i)
      The application of the paintwork to the stair stringers and landing frame does not comply……Pertains to item 16 on the complaint form.
    2. (ii)
      The application of the paintwork to the square hollow section (SHS) identified as column one does not comply……Pertains to item seventeen on the complaint form.
    3. (iii)
      The application of the paintwork to the downpipe connected to and/or running parallel with SHS column 1 does not comply……Pertains to item eighteen on the complaint form.
    4. (iv)
      The application of the paintwork to the square hollow section (SHS) identified as column 2 does not comply……. Pertains to item nineteen on the complaint form.
    5. (v)
      The installation of galvanised saddle clips provided to support the water supply pipes under the deck within 1.0m of the edge of the swimming pool do not comply……. Pertains to item twenty-one on the complaint form.
    6. (vi)
      The installation of the roof screws to the metal roof does not comply with the product manufacturer’s recommended installation instructions-----Pertains to item thirty-three of the complaint form.
    7. (vii)
      The installation of the roof screws to associated cappings and flashing fitted to the metal roof does not comply with the product manufacturer’s recommended installation instructions------Pertains to item thirty-four of the complaint form.
    8. (viii)
      The installation of the eave’s gutters provided to the perimeter of the roof do not comply with the National Construction Code, Building Code of Australia -------Pertains to item thirty-seven of the complaint form.
  30. [37]
    The Commission’s decision of 22 September 2021 and notification of 19 October 2021 constitute the internal review of its prior decision of 23 July 2021.
  31. [38]
    On 16 February 2022 the Commission conducted a reinspection of the premises addressing the eight defects identified in its direction to rectify/defective work list. In all eight cases the Commission found the licensee Sherriff complied with its direction.
  32. [39]
    In her statement dated 25 October 2022 (filed on about 31 October 2022 or thereabouts) Ms Barry stated her forty-one-complaint item additional complaint submission included her six original complaint items because outstanding monies could not again be used as a reason to exclude action for defective works. The Commission did rightly point out that those six items were not up for reconsideration having already been the subject of an internal review. As for Ms Barry’s Application for domestic building dispute filed 4 March 2021 disputing original complaints one, four and six such were superseded by inclusion of the six initial complaints in the additional complaint submission made on the 16 March 2021. Even if that is considered incorrect it is the case that upon consideration of all forty-one complaints the Commission determined in its 23 July 2021 decision notice that no notice to rectify was to issue.
  33. [40]
    Following on 18 August 2021 Ms Barry then sought the internal review limited to nineteen items (though item thirty-seven was favourably considered as well). That resulted in the eight directions to rectify being issued by the Commission, but they were in respect of complaint items other than items one to six.
  34. [41]
    Subsequently however, and also contained in her statement dated 25 October 2022 (filed on about 31 October 2022 or thereabouts) Ms Barry stated she was seeking a direction to rectify for items 1, 2, 3 and 5 in case number 915599 (the original six complaints) for the reason the Commission’s review officer found the works to be defective but did not give a direction to rectify on the basis that there were outstanding monies which exceeded the value of rectification works. She considered outstanding monies to be unfounded and unreasonable grounds for Sherriff not to be issued a direction to rectify. Her reasoning was that payment of a final invoice was not on account and could be treated as evidence that works had been completed which was not the case (Ms Barry offered to pay the disputed sum into a trust account pending completion of rectification works); that Sherriff’s application to QCAT for final payment was dismissed; and that the Commissions estimate of reparation works was grossly underestimated.
  35. [42]
    Mr Sherriff director of Sherriff in an undated statement which included photographs said Ms Barry had agreed to have her counterapplication dismissed. However, the Tribunal’s directions of 28 February 2023 are clear. Ms Barry’s counterapplication was to be produced to the Tribunal and each other party to this proceeding. Mr Sherriff referred to a statutory declaration by his on-site carpenter Brent Davis declared 3 August 2022 and produced to the Tribunal. Mr Davis stated that when he left site in July 2020 there were uncompleted works including painting, cleaning, and sealing of the deck and general cleaning. He was of the understanding that Ms Barry would provide a detailed list of works for Sherriff to complete because she was wanting to undertake certain jobs herself. He returned in August 2020 to complete requested works.
  36. [43]
    Prior in his statement dated 1 June 2022 Steven Sargent said during his initial investigation he had found Ms Barry owed Sherriff $2,873.49 under the cost-plus contract. He used Cordell Estimating Programme to estimate the cost of rectifying items 1, 2, 3 and 5 at $1,707.88 inclusive of GST utilising current industry prices at that time. The totality of rectifying items one to six came in at $1,791.23 inclusive of GST. He otherwise reiterated his comments regarding item one swimming pool barrier, items two and three paintwork and item five balustrade painting. He confirmed his view that the elements of section seventy-two of the QBCC Act had not been satisfied to the requisite standard to warrant the giving of a direction to rectify.
  37. [44]
    In a follow up statement dated 24 November 2022 Steven Sargent said Cordell’s Estimating Programme was at the high end of pricing of building work; that only touch ups were required for defective paint surfaces; and that no quotes to verify an underestimation had been provided. With respect to Brenden Sherriff’s undated statement and photographs he said concerning item one, swimming pool barrier, the ironbark timber sleeper appeared to have been securely fixed by screws behind the barrier and that the sleeper appeared to be a permanent structure preventing the 100mm gap under the fence becoming compromised by weather. He considered item one rectified adding erosion issues were the homeowners responsibility.
  38. [45]
    With respect to items two and three it appeared to Steven Sargent that the downpipes to the front right side and the left side of the dwelling had been repainted. He could not detect any imperfections to the PVC surfaces with paint finishes appearing satisfactory. He considered those items rectified. With respect to item five it appeared to him that balustrades had been repainted. He could not detect any imperfections but conceded that was difficult based on photographs alone. Finally, he noted rectification work depicted in the photographs was dated in excess of twelve months prior therefore placing such work outside the twelve-month defect liability period.
  39. [46]
    Ms Barry in her statement in reply dated 1 December 2022 disputed Steven Sargent’s statement saying firstly with respect to the pool barrier that no inspection had taken place and that the temporary sleeper repair was not fixed to the pool barrier. Secondly with respect to items two, three and five that no inspection had taken place and that Mr Sherriff had attempted to touch up defective paintwork with spray paint which had since rubbed off. She said repair/restoration required detailed surface preparation with a two-pack finish. But Ms Barry had not supplied definitive repair quotes in respect of any of items one, two and three because no monies were outstanding. That being so they were no longer relevant. She asserted Mr Sherriff’s touch up paint repairs did not last even close to twelve months. The surface bubbling of the two-pack finish was not corrected by Mr Sheriff’s touch up spray paint.

Conclusions

  1. [47]
    This current application was initially made against Sherriff but proceeded as an application to review the decision of the QBCC declining to issue a direction to rectify in respect of six complaint items concerning defects and incomplete works at Ms Barry’s Freshwater premises with Sherriff subsequently being added as an affected party. This application then is about the correctness or otherwise of the QBCC’s decision not to issue a direction to rectify in respect of four complaint items one, two, three and five of Ms Barry’s initial six item complaint although numerous other complaints were made along the way initially declined in full and then allowed in part resulting in eight directions to rectify which were undisputedly complied with. The position was made clear in her statement of 25 October 2022 where she stated she was seeking a direction to rectify for items one, two, three, and five in case number 915599, that is, Steven Sargent’s initial inspection report of 21 October 2020 and QBCC’s original decision of 11 November 2020.
  2. [48]
    A factor taken into account in declining to issue a direction to rectify in all four cases was the fact that the Commission determined the cost of rectification in all four instances was less than the sum of $2,873.49 owing to Sherriff as final payment under the cost-plus contract. Ms Barry asserted the rectification cost was grossly underestimated by the Commission which utilised the Cordell Estimating Programme, a well-accepted estimating tool within the building industry designed to calculate building costs. Though some evidence of estimated cost for rectification of items one to six was produced by Ms Barry such was incomplete not including some labour charges and including estimated loss for absence of solar generation. The Commission’s reliance on an industry accepted standard is to be preferred where there is an estimated costs divergence.
  3. [49]
    Ms Barry was prepared to place the sum of $2,873.49 into a trust account pending resolution of the four items indicating impliedly at least the efficacy of the final payment outstanding.
  4. [50]
    Ms Barry seemed to be suggesting Sheriff’s application to QCAT BDL 068-22 for final payment being dismissed on 8 August 2022 subsequently and latterly opened the way for fresh determinations to be made in respect of complaint items one, two, three and five or as she put it “the fact that there no outstanding monies, it is clear this finding should be overturned and a direction to rectify should be issued to Sherriff Contractors”. But the dismissal of 8 August 2022 was by consent. Not only was the application dismissed, but Ms Barry’s Counter - Application was also dismissed. The consent order, because that is what it was, cannot be construed as a retraction of claim or an admission of non-entitlement to final payment. It was the dismissal of two claims each in consideration of the other. Additionally, it is not an argument to turn back the page and apply a latter event to a former finding. Arguments about the correctness or otherwise of the Commission’s decision not to issue a direction to rectify for complaint items one, two, three and five were and are determined in the context of and by reference to case number 915599 (as Ms Barry herself put it) constituted by the Commission’s inspection of 21 October 2020 and original decision of 11 November 2020.
  5. [51]
    For clarity the inspections and observations of Steven Sargent, experienced Commission Inspector (including photographic), are preferred to those of others.
  6. [52]
    For the reasons above the Tribunal confirms the decision of the Commission not to issue a direction to rectify in respect of complaint items one, two, three and five of the Commission’s decision of 11 November 2020 and as confirmed on internal review on 1 February 2021.

Footnotes

[1] Body Corporate for London Woolstore’s Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86.

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Editorial Notes

  • Published Case Name:

    Barry v Queensland Building and Construction Commission

  • Shortened Case Name:

    Barry v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 287

  • Court:

    QCAT

  • Judge(s):

    Member Bertelsen

  • Date:

    21 Jul 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
Body Corporate for London Woolstores Apartments & Ors v Queensland Building Services Authority [2011] QCAT 86
2 citations
Jump To
Cite 1 - [2011] QCAT 86
Cite 2 - [2011] QCAT 86

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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