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  4. Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission - [2023] QCAT 307

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Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission[2023] QCAT 307

Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission[2023] QCAT 307

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission & Anor [2023] QCAT 307

PARTIES:

Kimama Holdings Pty Lts t/as visual Diversity Homes

(applicant)

v

Queensland Building and Construction commission

(first respondent)

NEIL ANDREW BAGGOT

(second respondent)

APPLICATION NO/S:

GAR316-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 August 2023

HEARING DATE:

28 March 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The decision of the Queensland Building and Construction Commission made on 8 July 2019 to give the Applicant a Direction to Rectify under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) is approved.

CATCHWORDS:

PROFESSIONS AND TRADES – Builders – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – Direction to rectify – defective work – person responsible for carrying out defective work – was it fair and reasonable for the Commission to exercise discretion.

Queensland Building and Construction Act 1991 (Qld), s 72, s 72A(4), s 86(1)(e), s 87, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission (2014) QCAT 42 at (47), (48) and (49).

APPEARANCES & REPRESENTATION:

Applicant:

A Smith, director of the applicant

First Respondent:

J Blaney instructed by Queensland Building and Construction Commission.

Second Respondent:

Self represented.

REASONS FOR DECISION

  1. [1]
    On 25 October 2013 Kimama Holdings Pty Ltd t/as Visual Diversity Homes (the Applicant) entered into a contract with Neil Baggott and Rebecca Richey, (the Owners) the owners of land at 36 Ingham Street, Oxley, in the State of Queensland for the construction of a new home and swimming pool on that property. The contract price was $279,790.00. Variations were made to the contract at an additional cost of $18,123.00. The total contract price was $297,913.00.
  2. [2]
    In July 2014 the Applicant completed construction of a home and swimming pool and handed over the property to the Owners.
  3. [3]
    In about January 2015 the Owners engaged a plumber, Plumcorp Pty Ltd, to carry out additional stormwater drainage to the rear of the property in the vicinity of the block retaining walls next to the swimming pool.
  4. [4]
    On 31 October 2018 the Owners lodged a complaint with the Queensland Building and Construction Commission (QBCC) relating to a number of building defects arising from construction work by the Applicant.
  5. [5]
    On 18 February 2019 Daniel Yates, a Senior Building Inspector with QBCC, undertook an initial inspection to investigate the complaints made by the Owner. On 23 March 2019 he completed an Initial Inspection Report which identified that the retaining wall and adjoining safety fence footings were inadequate causing movement in the completed structure. The Report referred to:
    1. the retaining wall to the right side boundary has excessive amounts of cracking and dislodgement of tiles;
    2. the retaining wall is approximately 1200 mm in height;
    3. the retaining wall was an extension to the existing block wall and appears to be constructed on a non-structural concrete path as shown in photographs in the report
    4. reference was made to the report from NJA Consulting Engineers.
  6. [6]
    On 21 March 2019 an Inspection Report was provided to QBCC by Mr Van de Hoef, a Senior Structural Engineer of NJA Consulting Pty Ltd. The Report identified that a section of the rear retaining wall appeared to be constructed on the pool wall at the deep end of the pool (approximately 1.8 m deep) and a small section of the block work has been constructed at the front of the pool on a section of the concrete path. The Report stated:

The net result is that for a highly and extremely reactive clay soil differential vertical movement between the different founding depths was virtually inevitable. The methodology of construction adopted made no provision for the differential vertical movement that would be expected to occur, with the net result that the upwards movement to the section of pavement has effectively pushed the section of blockwork wall up and sheared through the tile grout line and also sheared off the mortar capping on the top of the blockwork retaining wall.

  1. [7]
    In discussing the Owners complaint with respect to tiles, Mr Van der Hoef referred to tiles being typically dried in a kiln and when placed in an in-surface condition, expansion of tiles would often be expected to occur with absorption of moisture. The Report then commented:

Further to this, with a pool coping, concrete shrinkage would also be expected to occur. The net result is that in the absence of suitable control joints to a tiled coping, expansion of tiles would be expected to induce compression in the plane of the tiles which can lead to de-bonding and tenting to sections of tiles.

  1. [8]
    On 4 April 2019, QBCC conducted a review these investigations and then gave the Applicant a Direction to Rectify and/or Complete Work (DTR) relating to two (2) items of defective or incomplete work requiring rectification as follow:

Item 2 – Therefore, the licensee has failed to construct the additional section of the retaining wall in accordance with an acceptable engineering design and therefore is structurally unsuitable for its intended application. This has caused movement, cracking of the blockwork and dislodgment of tiles which has resulted in a health and safety issue for owners and occupants. Pertains to item 2 of the QBCC complaint form

Item 3 – Therefore, installation and construction of the tiling to the pools coping and surrounding pool areas including the path to the patio does not comply with AS 3959.1 Ceramic Tiles – Guide to the Installation of Ceramic Tiles in that insufficient control joints have been installed. The licensee has also failed to install the concrete path which has been tiled over in accordance with AS 3727 – Residential Pavements and HB198 – Guide to Specification and Testing of Slip Resistance of Pedestrian Surfaces. This has caused differential movement in the concrete paths and the dislodgement and the tenting of tiles and therefore resulted in a health and safety issue for owners and occupiers. Pertains to item 3 of the QBCC complaint form

  1. [9]
    On 2 May 2019 the Applicant advised QBCC that it was formally lodging a request for an internal review of the decision dated 4 April 2019. The Applicant also supplied with the request, a number of documents including a Report dated 1 May 2019 from Tim Ryan, engineer of Structerre Consulting. That report contained the following comments:
  2. [10]
    no reported damage had been mentioned by the Owner;
    1. vertical cracks to the block work are result in change of footing systems. The additional high moisture would contribute to this observed movement.
    2. The external render cracks would be classified as slight for Damage Category 2;
    3. the movement of the pool surround and the path is a direct result of abnormal moisture conditions in the rear yard. Water is able to change soils in the rear yard by the new gully pit that has resulted in expanding soils that are presently lifting the concrete.
    4. It is common for a pool surround to display movement relative to the pool coping and other structures. What is unusual is the location of the movement. The introduction of the new gully pit and redirection of excess water from the adjoining site onto this property is a major contributing factor that requires addressing.
  3. [11]
    QBCC made further enquiries and on 29 May 2019 obtained a Supplementary Report from Mr Van de Hoef of NJA Consulting Pty Ltd. That Supplementary Report commented in the earlier engineering report from Structerre that differential movement is primarily related to inadequate site drainage conditions in these terms:

It is relevant to note that in situations where movement of structures is related to reactive clay movement, it is always the case that changes in soil moisture content are the relevant driving factor. Notwithstanding this fact, it is also relevant to note that it is our understanding that the more recent drainage works installed at the rear of the pool retaining wall were intended to alleviate a site drainage problem that was previously present in this location.

  1. [12]
    The Supplementary Report went on to state:

We concur that the driving mechanism for the differential vertical movement that is occurring between adjoining building elements is related to the reactive clay movement associated with soil moisture content change. Notwithstanding this fact, we are also able to indicate that there is no evidence that a footing under the section of blockwork to the front of the pool was sufficient to prevent differential founding conditions from occurring.

  1. [13]
    On 5 June 2019 QBCC gave a “Decision Notice” to the Applicant in which it stated that based on its investigations, QBCC was satisfied that there is evidence of defective building work that adversely affects the health or safety of persons residing in or occupying a building. It was satisfied that the Applicant had carried out structural defective building work and was therefore issuing a Direction to Rectify (DTR) for the defective building work. That Decision Notice stated:

Item 2 - to reject the Applicant’s assertion that this defect is primarily related to an inadequate site drainage conditions being present on the property and that the differential movement is not a structural issue. It concluded that there was “insufficient articulation to be able to tolerate even small amounts of differential movement” and that the methodology of construction is a contributing factor to the resulting defects. It also concluded that there is defective building work which adversely affects the health or safety of persons residing in or occupying the building. QBCC decided to issue a direction to rectify this defective building work.

Item 3 - to reject the Applicant’s assertion that the movement of the paths and coping is not related to the construction methods but rather directly to the excessive movement being caused by the inadequate drainage systems being used by the surround roads and properties. It accepted that the tenting of tiles is related to tile expansion and subsequent de-bonding and tenting that most likely would have been prevented if adequate control joints were provided. It was also satisfied that this was defective building work that adversely affected the health or safety of persons residing in or occupying the building. QBCC decided to issue a direction to rectify this defective work.

  1. [14]
    On 8 July 2019 QBCC sent the Applicant the Direction to Rectify and/or Complete defective work based on its internal review decision of 5 June 2019. The Direction required the following works to be undertaken:

The additional section of retaining wall has not been constructed in accordance with an acceptable engineering design and therefore is structurally unsuitable for its intended application, resulting in movement, and cracking to the brickwork, and dislodgement of tiles which has resulted in the health and safety issue for owners and occupant.

The installation and construction of the tiling to the pools coping and surrounding pool areas including the path to the patio does not comply with AS 3959.1 Ceramic Tiles – Guide to the Installation of Ceramic Tiles in that insufficient control joints have been installed. The licensee has also failed to install the concrete path which has been tiled over in accordance with AS 3727 – Residential Pavements. This has caused differential movement in the concrete paths and dislodgement and tenting of tiles and resulting in a health and safety issue for owners and occupants.

  1. [15]
    On 8 August 2019 the Applicant filed in the Tribunal an Application to review a decision made by QBCC on 8 July 2019 on the basis that:
    1. the damage was caused by significant overland water run-off and not by defective work;
    2. QBCC failed to address the homeowners alterations made to the licensees drainage system;
    3. the wall called a retaining wall was never constructed with retaining earth as an intention;
    4. it is not possible to even consider rectification as a show of good faith due to the damage caused by the overland water flow.
  2. [16]
    On or about 12 November 2019 QBCC filed in the Tribunal its “Statement of Reasons” together with documentation in its possession relating to the decision made on 8 July 2019 to issue the DTR.
  3. [17]
    On 7 January 2020 an Application was made to the Tribunal by the Owner, Neil Andrew Baggett, to be joined as a party in the proceedings. The Tribunal made a direction on 19 February 2020 that the Owner be joined as a Respondent to the proceedings.
  4. [18]
    On 1 July 2020 the Applicant provided additional evidence in support of the Application to the Tribunal. That includes a further report dated 26 June 2020 from Tim Ryan, engineer of AW Geotechnics Pty Ltd, who refers to the “retaining wall” adjacent to the pool and the increase of fill against that wall since its construction. The report states that the joint between the pool and adjoining path has been shown, on photographs provided, to have been filled with Ableflex or similar flexible sealant. The Applicant also filed a letter from Oasis Pools Construction Pty Ltd stating it is not their industry standard to put expansion joints in pool coping tiles. Other evidence was provided which it is not necessary to set out fully.
  5. [19]
    On 23 March 2021 a Statement of Evidence by Daniel Yates, Senior Building Inspector for QBCC was filed in the Tribunal containing the Inspection Report dated 23 March 2019 from his earlier inspection of the Owner’s property.
  6. [20]
    On 29 March 2021, QBCC filed the statement of Mr Van de Hoef containing his two (2) engineering reports and other supporting documentation.
  7. [21]
    On 14 May 2021 the Respondent Owner, Neil Andrew Baggett, filed in the Tribunal a “Statement of Evidence” including a number of documents, plans and photographs.
  8. [22]
    On 19 July 2021 the Applicant filed further photographs and also a substantial bundle of documents containing plans and further material.
  9. [23]
    Following pre-hearing procedures, the Tribunal on 23 September 2021 directed that an Experts Conclave take place between the Applicant’s expert, Tim Ryan of AW Geotechnics and QBCC’s expert, Mr Van de Hoef of NJA Consulting.
  10. [24]
    On 23 November 2021 the two experts attended an Experts Conclave to discuss the DTR items issued to the Applicant that form the matters in dispute between the parties.
  11. [25]
    On 13 December 2021 the experts completed a Joint Expert Report (JER) which was filed in the Tribunal. Both experts state in the JER that their understanding of site conditions was that site soils had been classified as being highly or extremely reactive to changes in soil moisture content.

Joint Expert Report (JER).

  1. [26]
    As background to the JER the experts said that they were informed that in 2015 the Owner engaged Plumcorp Pty Ltd to install additional stormwater drainage works from behind the retaining wall with two additional surface field gullies connected to pipes then transporting the water to the front right hand corner of the site for discharge into a grated pit. The experts also repeated their understanding that site soils were highly or extremely reactive to changes in soil moisture content and that there was always potential for some degree of movement to occur to footings of landscaping structures (including the pool).
  2. [27]
    The experts refer to specific issues being experienced on the site as follows:
    1. debonding of the coping tiles from the pool coping to the front section of the pool;
    2. movement damage to tiles at the interface between an external concrete pavement and the rear edge of the alfresco area;
    3. movement damage to the pool retaining wall and associated low height landscaping wall;
    4. movement concerns and potential trip hazards at the interface between the pool coping and the pavement situated at the front of the pool (same location as the debonding coping).

Review Jurisdiction of the Tribunal.

  1. [28]
    The Application filed by the Applicant on 8 August 2019 seeks a review of the decision made by QBCC on 8 July 2019 to give a Direction to Rectify.
  2. [29]
    Division 3 of the QBCC Act provides an external review by the Tribunal for persons affected by a reviewable decision of the Commission.[1] The decision made by QBCC on 8 July 2019 is a reviewable decision.[2]
  3. [30]
    The Tribunal in exercising the review jurisdiction must hear and decide the review by way of a fresh hearing on the merits to produce the correct and preferable decision.[3]
  4. [31]
    In proceeding for a review of a decision the Tribunal may;[4]
    1. confirm or amend the decision; or
    2. set aside the decision and substitute its own decision; or

set aside the decision and returned the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.

  1. [32]
    Mr Ryan is of the opinion that rectification works would involve removing the section of wall tiles, saw cutting the mortar or grout between the sections of block work at the interface between the two sections of wall and then installing a flexible articulation joint and reinstating the tiles.

Mr Van de Hoef points out that the concrete pavement is not physically connected to the pool or that the section of blade wall is not physically dowelled to the section of the pool retaining wall. He considers that regardless of the type of joint present between the two elements, some degree of ongoing vertical separation movement will occur. Mr Van de Hoef considers it would be prudent to reconstruct the small section of block work and physically connect the two sections of block work together by suitably detailed dowelled joint.

What are the Issues to be Determined in the Review of the Decision.

  1. [33]
    As a consequence of Directions made by the Tribunal all parties have filed in the Tribunal their evidence relevant to the review of the decision made on 8 July 2019.
  2. [34]
    The Tribunal has now conducted a hearing on the merits and the has provided all parties with a further extended period in which to file written submissions following the conclusion of the hearing.
  3. [35]
    QBCC’s submissions refer to several issues not in dispute.[5] Those submissions also refer to the following issues which are in dispute:
    1. Retaining wall and in particular;
      1. does construction of the section of the feature wall amount to defective building work;
      2. is the Applicant responsible for failing to take into account relevant site conditions;
      3. does the engineer’s design extend to the construction of the masonry feature wall;
      4. did the methodology of construction cause the defect relating to the feature wall.
    2. Dislodgement and tenting of tiles to pool coping and surrounding area and in particular;
      1. does this complaint amount to defective building work;
      2. is the Applicant responsible for carrying out the work related to this construction work;
      3. did the failure to install sufficient control joints cause the defect (debonding and tenting of tiles);
      4. did the engineer’s design extend to the tiling around the pool (no control joint).
    3. Stepping and differential vertical movement between path and pool coping and in particular;
      1. does the stepping and differential vertical movement between the path and pool coping amount to defective building work;
      2. is the Applicant responsible for carrying out this construction work;
      3. did the Applicant's methodology of construction cause the step defect;
      4. was the Applicant responsible for failing to take into account relevant site conditions;
      5. does the engineer’s design extend to the step between the pavement and the pool coping.
    4. Fairness and in particular;
      1. is it fair in all the circumstances to give a DTR to the Applicant in respect of the above complaints, or any of them?
      2. if any of the complaint items are non-structural defects, does this mean the Commission does not have jurisdiction to issue a DTR outside of the timeframes in the Rectification Policy.
  4. [36]
    QBCC’s Submissions raised a further issue in relation to “slip resistance of tiles”.[6] However QBCC in its “Decision Notice” of 5 June 2019 did not continue with this complaint. and it was not included in any DTR to the Applicant to rectify defective work. It is unnecessary to consider this issue any further in the proceedings.
  5. [37]
    The Applicant’s Submissions of 17 May 2022 filed in response to the QBCC’s submissions commence by restating its primary position that all issues raised are caused by an excessively wet site due to run-off of water from neighbouring properties being deliberately directed to the rear of the pool area at 4 Ingham Street. In summary, the Applicant submits that:
    1. QBCC failed to disprove that the wall at the rear of the pool area is nothing more than pool fencing and is not a structural retaining wall;
    2. QBCC failed to determine that the wall at the rear of the pool area had movement in that wall prior to the Owner removing the Applicant’s drainage and the Owner installing a new drainage system.
    3. the feature blade wall is not a retaining wall over 1 m which negates the requirement for it to be engineered;
    4. as for the debonding and tenting of tiles;
      1. the Ceramic Tiles Guide statement that “movement joints are recommended at 3m intervals with a maximum of 4.5m” is only a “recommendation”;
      2. QBCC failed to address the possibility that the coping tiles have lifted by the path lifting on the side of the pool due to abnormal moisture conditions;
    5. the step created by the lifting path is caused by abnormal moisture conditions;
    6. further issues related to the allegation that QBCC should be held to account for errors said to include typographical errors including a witness who is alleged not to have been able to reference the correct Australian Standard;
    7. QBCC has failed to treat the Applicant in a fair and reasonable manner and has failed to access the policy for home warranty insurance.
  6. [38]
    The Owner’s submissions refer to a number of background facts and in summary refers to the following issues;
    1. who is responsible for the defects to the retaining wall and the fairness in terms of rectification;
    2. dislodgement and tenting of tiles to pool coping and surrounding areas and whether there was a defect and who is responsible;
    3. differential vertical movement between the path and pool coping and step including who is responsible;
    4. Applicant’s reference to the QBCC Home Warranty Scheme; and
    5. orders sought by the Owner.

Construction of “Retaining Wall” and abutting Feature Wall.

  1. [39]
    The Applicant submits that the wall at the rear of the pool area is nothing more than pool fencing and is not a structural retaining wall. It says that the wall is less than a metre high and does not require any building approval.
  2. [40]
    The Owner submits that it is a retaining wall. In his evidence relating to the wall, he says that the height is 1200 mm and AS 4678:2002 requires a registered engineer to sign off on the design. He claims that the Applicant left backfill less than 1 m to avoid the need for approval and engineering.
  3. [41]
    Mr Van de Hoef says that the “retaining wall” is less than 1m high and does not require building approval.[7]
  4. [42]
    QBCC says that the question whether “the relevant pool blockwork wall is a retaining wall” is referred to in the JER as follows;[8]

the experts note that technically speaking the section of masonry feature wall is retaining a small height of soil (approximately 300 mm). The experts note that whether or not the section of blade wall is retaining soil is largely irrelevant in consideration of the defects that have occurred between the masonry blade wall and the retaining wall situated on the pool coping.

  1. [43]
    QBCC submits that whether or not the blockwork wall is a “retaining wall” is irrelevant as the QBCC Act does not exclude work that does not require building approval as constituting building work.[9] Accordingly it says that whether the blockwork wall is a retaining wall or not, it still constitutes “building work” pursuant to s 72 of the QBCC Act.[10] Whether any building work is defective depends upon whether it is “faulty or unsatisfactory”.[11]
  2. [44]
    The Tribunal has had regard to s. 72 of the QBCC Act which authorises the Commission to require building work that is defective or incomplete to be rectified.

Was the Applicant’s Building Work Defective?

  1. [45]
    QBCC submits that the Applicant’s construction of the additional section of wall is faulty or unsatisfactory and is therefore defective for these reasons:
    1. the construction has resulted in differential vertical movement and excessive cracking/damage to the blockwork and dislodgement of tiles which is a health and safety issue for owners and occupiers; and
    2. the additional section of retaining wall is not considered to be constructed in accordance with an acceptable engineering design and is therefore structurally unsuitable for its intended application.
  2. [46]
    QBCC further submits that the evidence supports the claim of defective building work by the Applicant. It refers to the following evidence:
    1. a small section of this wall was built on the concrete pavement and it is unlikely that a significant footing was provided to this section wall;[12]
    2. two sections of retaining wall are founded at significantly different depths. One part of the wall sits on the pool wall which would be approximately 1.8 m deep and the small section of block work is situated on a section of concrete path;[13]
    3. Mr Yates’s evidence and photographs taken on 18 February 2019 show the relevant defect as;
      1. excessive amount of cracking and dislodgement of tiles; and
      2. the extension of the existing block work wall appears to be constructed on a non-structural concrete path.
  3. [47]
    QBCC submits that Mr Yates’s evidence and photographs of these defects constitute a structural defect.[14] It relies on further evidence from Mr Van de Hoef in a subsequent inspection of the Owner’s property that the front most section of the block work wall has tiles cracking and confirmed a structural footing was not present under the slab.”[15]
  4. [48]
    QBCC also rely on the evidence from Mr Yates that:[16]

the Applicant failed to construct the additional section of the retaining wall in accordance with an acceptable engineering design and therefore it was structurally unsuitable for its intended application.

QBCC then submit that the feature wall is considered unsatisfactory as it was not constructed in accordance with acceptable engineering design, was structurally unsuitable for its intended purposes and consequently constitutes defective building work.

  1. [49]
    The evidence of the “health and safety issue” is referred to by QBCC as follows:[17]

Mr Yates refers to the movement, cracking to block work and dislodgement of tiles has resulted in a health and safety issue for owners and occupants;

QBCC then submits that it is arguable whether there is potential for this damage to affect the health and safety of persons present on the site.

  1. [50]
    However, the evidence from the Joint Experts in the JER states:

the damage at the interface between the masonry feature wall and the pool retaining wall does not have the potential to affect the health and safety of persons present on this site.

  1. [51]
    The Applicant disputes the claims of QBCC and the Owner. The Applicant points out that the wall is not at risk of falling over nor has it moved in a manner that changes the safety requirements of a pool fence. Any problem with the building work he submits has been caused by an excessively wet site due to runoff of water from neighbouring properties being deliberately directed to the rear of the pool area. It is further submitted that QBCC has failed to disprove that the wall at the rear of the pool area is nothing more than pool fencing.
  2. [52]
    The expert’s comment in the JER that the footing to the blade feature wall is effectively a surface footing (a section of concrete slab) and the block work to the pool is constructed directly onto the edge of the pool and is founded at a depth of approximately 2 m at the location of the relevant defect.
  3. [53]
    The experts state the different founding conditions present and the reactive clay movement is the cause of differential vertical movement between the right hand side pool retaining wall and the blade feature wall sections.
  4. [54]
    The experts accept that the methodology of construction involved a butt joint between two sections of block work with tiles continuing on the surface without provision of a flexible joint has contributed to the observed damage. The top mortar bed has been trowelled onto the top of both sections of block wall. This means that the interface of the two sections of wall do not have the ability to cope with some degree of ground movement expected and is a contributing factor to the damage present. Mr Ryan is also of the opinion that there are contributing site drainage features that have likely contributed to the reactive clay movement that has occurred, with the new grated pit established at the end of this blade feature wall. Mr Van de Hoef says that because of the highly or extremely reactive site soils some degree of movement to these structures would be expected.
  5. [55]
    The evidence establishes that the highly reactive site conditions is a cause of the differential movements between the adjoining concrete block walls. However the evidence establishes that it is not the only cause. The construction of the two block walls on foundations each having a different depths is the contributing cause. The wall on the pool foundations has footings that extend a considerable distance more than the block wall which is being constructed on the pavement. The concrete pavement does not have a foundation  which take into account the movement in the highly reactive soils caused by moisture. The evidence is that the Applicant should have taken this into account when constructing the block wall. However, the concrete pavement is, on the evidence, insufficient on this site block wall. The Tribunal accepts the evidence of Mr Yates and that of the joint experts are which demonstrated that the concrete pavement provided a base which was too shallow on the site with highly reactive clay soils. The Tribunal accepts the submissions of the Owner and the QBCC but does not need to make any separate finding, as explained by the Joint Experts, as to whether the additional block wall is a retaining wall. The construction of the block wall does, however. come within the meaning of the building work within s 72 of the QBCC Act.
  6. [56]
    As a consequence of these findings, the Tribunal also finds that the building work in respect of the additional block wall was faulty and unsatisfactory. The Tribunal finds that this building work was defective.

Is the Applicant responsible for this defective building work?

  1. [57]
    There is a significant dispute as to whether the defective building work was caused by the Applicant undertaking the building work or was it caused by other factors such as the Owner altering at the drainage system at the rear of the property.
  2. [58]
    The Applicant contends any defects were caused by the Owner’s alteration to the drainage system. In the Application filed in the Tribunal, the Applicant claims that the damage was caused by significant overland water run-off attributable to the Owner’s alterations made to the drainage system previously installed by the Applicant. In the Applicant’s submissions dated 17 May 2022, the Applicant reiterates its primary argument that all issues raised were caused by an excessively wet site due to run off of water from neighbouring properties being deliberately directed by the Owner to the rear of the pool area at 4 Ingham Street.
  3. [59]
    QBCC on the other hand asserts that the Applicant was responsible for carrying out the building work which required him to take into consideration the relevant site conditions containing highly reactive site soils. It contends that the Applicant failed to adequately take into account these factors and the subsequent methodology of construction employed by the Applicant resulted in the defective building work.
  4. [60]
    The Owner’s submissions of 31 May 2022 says the Applicant is the responsible entity as:[18]

according to the evidence of the Experts, the methodology of construction employed by the Applicant directly resulted in differential founding conditions, subsequent differential movement and caused the defects in respect of complaint item 2, evident at the interface between the two sections of blockwork wall.

  1. [61]
    To determine which of these contentions accurately identifies the cause of the defective building work it is necessary to consider the evidence of the parties.
  2. [62]
    The evidence establishes that after the Applicant completed the building work the Owner, a couple of years later, made alterations to the stormwater drainage system which had previously been installed by the Applicant. These alterations included installation of two additional field gully pits to the ground behind the block work wall. These pits were then connected to pipes running through the right-hand side of the property and discharging into a grated pit at the front righthand corner of the property. The evidence before the Tribunal contained photographs of the gulley pits.[19]
  3. [63]
    QBCC’s submissions refer to the evidence of the Owner at the hearing which confirmed the Applicant’s original drainage was failing and water had been spurting up through the tiles around the pool. The Owner said that he gave the Applicant approximately 18 months to rectify this issue however the Applicant failed to take any action.[20] QBCC then referred to the following evidence from the Owner:[21]

Due to denial, deflection and lack of response along with the summer wet season approaching in September and October 2015 we undertook work to remove the topsoil road base, builder’s rubble, and short length of narrow ag pipe near the bottom and replaced it with a temporary drainage system that has served us well. We have not had any issues with water entering our property.

  1. [64]
    Evidence from the Applicant is contained in the expert report from Mr Ryan of Structerre dated 1 May 2019 which states the following:
    1. the arrangement to direct the flow towards the wall and new pit will have an adverse effect on the block work and pool;
    2. the new pit is inadequate to carry the access flow;
    3. the observed movement is a direct result of abnormal moisture conditions in the rear yard; the introduction of the new gulley pit and redirection of excess water from the adjoining site onto this property is a major contributing factor that requires addressing.
  2. [65]
    However, a couple of years later following an Experts Conclave between Mr Ryan and Mr Van de Hoef, Mr Ryan stated in the JER dated 13 December 2021 the following:[22]

The experts are of the opinion that the defects currently present are caused by reactive clay movement associated with the changes in soil moisture. Mr Van de Hoef notes…………………… Mr Ryan notes that there are site drainage conditions present that may have exacerbated the overall differential reactive clay movement that has occurred.

  1. [66]
    Also, in the JER Mr Ryan’s expressed the following opinion:[23]

the methodology of site drainage modification implemented by the building owner created circumstances where there is a potential for stormwater to discharge from the field galley installed adjacent to the blade wall which would contribute to moisture content increases to the founding soils of this location. Mr Ryan believes that in the absence of any engineered design for the site stormwater the methodology of construction implemented by the building owner is potentially a contributing factor to the overall reactive clay movement that has occurred.

  1. [67]
    Additional statements of opinion by Mr Ryan in the JER relating to the changes in site drainage by the Owner uses expressions such as “likely contributed”,[24] “are likely to have contributed”,[25] “are likely to be a contributing factor”,[26] and as “potentially a contributing factor”.[27]
  2. [68]
    The above expert evidence by Mr Ryan appears to undergo a subtle change of opinion between his Report of May 2019 and the JER of December 2021. That subtle change of opinion will be discussed in more detail later.
  3. [69]
    QBCC in its Submissions refers to the evidence of Mr Ryan at the hearing as stating the following:[28]
    1. he has not personally observed stormwater discharging from the field gulley pit on the Owners land;
    2. he has not carried out any calculations in respect to the field gulley pit, so as to enable a determination to be made whether or not the size of the system design is appropriate;
    3. if the water was changing the soils, this would only be a contributing factor to the lifting of the concrete, and would not be a core factor;
    4. he had not inspected the Owners land prior to the installation of the additional stormwater drainage works and is unable to say with any confidence whether the relevant defect on site would have occurred if the Owner did not have the gulley pit installed; and
    5. it was possible that the relevant defects occurring at the interface between the blade feature wall and pool retaining wall could have occurred prior to the Owners alteration to the site drainage.
  4. [70]
    QBCC submits that Mr Ryan’s opinions set out above are not supported by any evidence and are merely speculative. The opinions do not establish a caused link between the Owners installation of stormwater system and the relevant defects.[29]
  5. [71]
    The evidence provided by Mr Van de Hoef in the JER is that the defective building work is located some distance from the gulley pits involved in Mr Ryan’s opinions. In the JER:[30]

Mr Van de Hoef also notes that at the interface between the external pavement and the pool coping are located a considerable distance away from the potential discharge of stormwater noted by Mr Ryan.

  1. [72]
    Both Mr Ryan and Mr Van de Hoef adopted a joint opinion that the methodology of construction of the two sections of block work was defective. In their JER they jointly expressed the following opinion:[31]

The experts believed that the methodology of construction involving a butt joint between the two sections of block work with tiles continuing on the surface without provision of a flexible joint has contributed to the observed damage. The top mortar bed trailed over the top of both sections of block work has also created circumstances where the interface between the two sections of wall do not have ability to cope with some degree of ground movement expected and is a contributing factor to the damage present.

  1. [73]
    The evidence establishes that while the site was subject to highly and extremely reactive changes in soil moisture content, the Owners changes to the drainage system from 2015 was not the primary cause of the defective work related to what is being described as the “Retaining Wall” at the rear of the property. The Applicant’s reliance upon its expert engineer’s evidence suggests that at best that there may be a “possibility” the damage was caused by changes to the stormwater system. But this opinion is not supported by any evidence. The Tribunal also accepts the evidence is that the block wall is not immediately adjacent to the gulley pits and accepts the evidence of Mr Van de Hoff that the block wall is some distance from the discharge point to the gulley pits. There is a lack of evidence to show any causal connection between the alterations to the stormwater drainage made by the Owner has caused the defective building work. There is no evidence of what water discharge, if any, occurs at the gulley pits are the extent to which the highly reactive clay soil has been affected, if at all, after the completion of the Owners drainage works in 2015.
  2. [74]
    The Tribunal accepts the submissions of the QBCC that the opinion that the defective building work could “possibility” have been caused by changes to the stormwater system is speculative and is not supported by evidence of personal observations, calculations or other matters referred to in the evidence above. The Tribunal rejects the submissions of the Applicant that the change in drainage was the cause of the defective work. The Tribunal accepts and adopts the submissions of QBCC and the Owner in relation to this issue.
  3. [75]
    The Tribunal finds that the Applicant is responsible for the defective building work.

Is the Applicant responsible for failing to take into account the site conditions.

  1. [76]
    It is not controversial in these proceedings that the Owners land contained soil which was highly or extremely reactive to changes in soil moisture content. Nor is it controversial that this was well-known to the Applicant during the construction of the building and the pool.
  2. [77]
    QBCC submits that the Applicant as builder was required to inform himself of site conditions including site classification prior to the construction of the pool. It submits that the Applicant is responsible for all facets of construction including the site classification and should have been aware that the relevant defects were likely to occur given the conditions and methodology adopted.
  3. [78]
    The Applicant in its submissions says that it obtained the soil test and used the same engineer who undertook the design of the pool structure. (It is not entirely clear whether the Applicant personally obtained the soil test or whether that was undertaken by the engineer or by others). In any event the evidence seems to be that whoever obtained the soil test, the Applicant and the engineer were both aware of the relevant site conditions. The Applicant says the pool structure was designed by an engineer according to the soil test, inspected the stages of building as required and signed off the construction. It says that this construction is covered by the insurance provided by the QBCC home warranty policy. It says that it is unfair and unreasonable to lay the blame on the Applicant. It appears from the Applicant’s submissions that responsibility lies with the engineer or with the insurer.
  4. [79]
    It is the opinion of the Experts in the JER that the primary cause of defects in the retaining wall is related to the reactive clay movement of site soils. The experts stated:[32]

The experts are of the opinion that the primary cause of the defects currently present is related to reactive clay movement of the site soils caused by moisture content changes.

  1. [80]
    The evidence establishes that the engineer did design the pool and the pool retaining wall but did not design the section of masonry feature wall constructed onto the front of the pool retaining wall.[33] QBCC in its submissions refers to evidence from the Applicant that it constructed the pool retaining wall in accordance with the engineer’s plan of November 2013.[34] It submits that is not the problem. It submits the problem is related to the construction of the masonry feature wall on the concrete path where there is no evidence that that construction was undertaken in accordance with any engineering design.
  2. [81]
    The JER discusses the methodology of construction by the Applicant of the masonry feature wall and says there was always the potential for defects to occur. They stated in the JER:[35]

The experts note that given the methodology of construction adopted on this site and the nature of this site’s soils, with the methodology of construction adopted there was always the potential for defects to occur at the interface between the two sections of masonry wall.

  1. [82]
    The experts were provided with architectural drawings and Mr Ryan had been provided with the structural design drawings for the pool. In their JER they stated:

the construction methodology adopted on the site generally has limited provision for movement at the interface between dissimilar elements such as the pool and the associated landscape feature wall or adjoining sections of pavement.

  1. [83]
    There was additional evidence critical of the methodology of construction adopted by the Applicant. For example, Mr Van de Hoef in discussing the differential movement of approximately 10 mm caused to the section of retaining wall[36] goes on to state a number of construction methodologies employed by the Applicant which have caused or contributed to the defect:[37]
    1. failure to provide a flexible joint at the butt joint between the two sections of blockwork with tiles continuing on the surface of the blockwork;
    2. absence of physical connection to pool retaining wall;
    3. mortar bed trowelled on top of block work;
    4. failure to provide sufficient allowance for movement in structure;
    5. differential founding conditions created by concrete slab footing and two sections of wall founded on significantly different depths.
  2. [84]
    QBCC submits that having regard to matters referred to relating to site soils, a competent builder would have known that employing such methods of construction would result in defects and that the workmanship demonstrated was not of the standard of quality that would reasonably be expected of the builder in the license class that the Applicant and is responsible for the defects relating in the retaining wall.
  3. [85]
    The evidence before the Tribunal clearly establishes that the site soil conditions were at all times known to the Applicant. There were engineering drawings provided, but these related to the pool and retaining wall. No such engineering drawings were provided in respect of the feature walk constructed on the concrete path. The concrete path and the retaining wall were each constructed on different founding conditions. The expert evidence is that given the site soil conditions at this site, that is the primary cause of defects in the structure. The experts also state the methodology of construction adopted with the known site conditions always had the potential for defects to occur at the interface between the two sections of masonry wall. The methodology of construction was the cause of the defective building work. The Tribunal  accepts, based on the above evidence, this evidence relating to the causation of the building defects.
  4. [86]
    The Tribunal rejects the Applicant’s submissions that it is not responsible for this defective work. The Tribunal does not accept the submission that responsibility lies with the engineer as relevant drawings or specifications were not provided in respect of the feature wall where the defective work is located.
  5. [87]
    The Tribunal accepts the submissions of QBCC that the Applicant is responsible for the defect present in this part of the Owners complaint. The Tribunal makes findings in accordance with those Submissions that the Applicant failed to take into account the site conditions when undertaking the building work relating to the construction of the block wall.

Dislodgement and tenting of tiles to the pool coping and surrounding pool area

  1. [88]
    QBCC says these tiles are located on the pool coping in the front section of the pool. (as viewed from the road)
  2. [89]
    QBCC submits that this tile work does not comply with the applicable AS 3958.1 as there are insufficient control joints located in the pool coping tiles.[38]The submissions referred to the following evidence:
    1. Mr Van de Hoef was able to establish that these tiles are in compression;[39]
    2. both experts observed the coping tiles are approximately 5.9 m in length and no control joints were provided;[40]
    3. both experts stated that to comply with the requirements of the tiling code AS 3958.1 a single control joint would be required within a continuous length of tiles of 3.0 m with a maximum length of 4.5 m.[41] The continuous sections of tiles of the pool coping exceeds 4.5 m in length. 
  3. [90]
    The Applicant has provided evidence to the effect that;
    1. JC Engineering documentation makes no reference to control joints in the pool shell nor in the retaining wall:[42]
    2. the Applicant says it followed the Engineering design;
    3. the Engineers recommended installation of Ableflex between the pool shell and proposed dwelling footings or wall. Ableflex was used in the construction;[43]
    4. another pool contractor gave evidence that the industry standard was not to put expansion joints in pool coping tiles.[44]
  4. [91]
    However, QBCC submits there was no evidence of any specific “industry standard”. In any event, QBCC submits the industry standard statement is contrary to AS 3958.1 which recommends movement joints for coping tiles at intervals of 3.0 m with a maximum of 4.5 m.[45] This section of tiling QBCC submits was a continuous section that exceeds 4.5 m in length. To comply with AES 3958.1 a control joint is required.
  5. [92]
    As for the Engineers documentation relied upon by the Applicant, the JER says that this design only:[46]

provides details for the retaining wall situated on top of the pool coping or pool wall

  1. [93]
    According to that evidence the Engineers documentation deals with the design of the pool retaining wall and does not provide a design in relation to the tiling in the pool area. The construction work relating to tiling of the retaining wall was a matter for the Applicant in accordance with the relevant building requirements.
  2. [94]
    The Applicant undertook the construction of the pool coping and is responsible for that building work. The Applicant however says that the debonding and tenting of tiles was not caused by his workmanship but by the drainage work undertaken by the Owner which meant that the site was not adequately drained so as to prevent excessive moisture in the soils.
  3. [95]
    However, the Tribunal has been referred to the JER which stated that the debonding and tenting of tiles is not related to reactive clay movement and the drainage. The JER states that the characteristics of site conditions present are not “overly relevant”.
  4. [96]
    The experts identified the location of these tiles as being at the front left-hand corner of the pool. Both experts discuss the cause of the debonding relates to the tiles being in compression which is most likely related to expansion of previously kiln dried tiles absorbing increased moisture content or contraction or shrinkage of the concrete pool shell
  5. [97]
    The experts note that there are no control joints in approximately 5.9 m of coping tiles. To comply with AS 3958.1 a single control joint within the continuous length of tiles would be required. To rectify this problem of debonding tiles over area of approximately 1.8 m requires their removal and re-bonding to the surface with provision of a control joint being required in the reinstalled section of tiles. They add that it would be prudent to install a control joint at both ends of the reconstructed section of tiles.
  6. [98]
    This disparity between the parties’ evidence can be resolved by consideration of what the parties experts concluded in the JER. While the Applicant has provided its own evidence in relation to these matters, that evidence needs to be considered along with the evidence of the Applicant’s expert (Mr Ryan) in consultation with Mr Van de Hoef in the JER. Both experts agree that to comply with AS 3958.1 a control joint in a continuous section of tiles that exceed 4.5 m is required. The tiles which have dislodged and are tenting are in a continuous line of tiles of approximately 5.9 m in length. There is, on the evidence, a failure to comply with the Australian Standard. Whatever is said by other pool contractors about an industry standard, AS 3958.1 is a requirement for a builder. The evidence does not establish engineering drawings provided any detail with respect to tiling or the installation of those tiles. The Tribunal finds that the requirement for control joint/s in the installation of ceramic tiles has not been provided by the applicant. The absence of control joints has caused the tiles to dislodge and the tenting of tiles. The Tribunal accepts the evidence of the experts in the JER and the evidence referred to by QBCC, in particular the evidence by Mr Yates. The Tribunal rejects the Applicant’s evidence that control joints were not required.
  7. [99]
    The Tribunal finds that the Applicant is responsible for the defective building work caused by the debonding and tenting of the tiles on the coping at the front of the pool.
  8. [100]
    The Tribunal finds that the Applicant in constructing the pool coping at the front section of the pool was required to provide control joints where there was a continuous tiling which exceeded 4.5 m in length. As the pool coping exceeded 4.5 m in length the Applicant has not complied with AS 3958.1. The Tribunal finds that the tiling undertaken by the Applicant is defective building work.
  9. [101]
    QBCC relies on the evidence of Mr Yates to the effect that the debonding and tenting of tiles constitutes a trip hazard.[47] QBCC then submits that this constitutes a structural defect “as it may adversely affect the health or safety of persons residing in occupying the building”.[48] However, in the JER, the experts did not consider the debonding and tenting to the tiles constituted a trip hazard. The evidence as shown in photographs of these tiles demonstrates that they are at the rear of the property located on the top of the block wall and confined to the top edge of the tiles at the junction between the horizontal and vertical tiles installed. The defective tiling work is obvious but not essentially in a trafficable area although it is in an area open to owners or occupiers of the property. In these circumstances the Tribunal is not satisfied that the debonding of these tiles constitutes a “trip hazard”. The Tribunal finds that the debonding of these tiles does not constitute a structural defect.

Differential Vertical Movement between Path and Pool Coping.

  1. [102]
    In March 2019 an inspection of the pool area of the property by Mr Van de Hoef identified a differential vertical movement at the interface between the pool coping and the pavement situated to the front of the pool of approximately 10 mm.
  2. [103]
    In December 2021, the experts in the JER identified that the differential vertical movement or stepping was currently of the order of 15 mm.
  3. [104]
    The JER considered that this differential movement or stepping was effectively a trip hazard and was considered by them to be a health and safety issue for persons residing or occupying the building.[49]
  4. [105]
    Mr Van de Hoef in an earlier report said that the area of differential movement was a “high traffic area during the use of the pool” and that the QBCC Standards and Tolerances Guide in relation to trip hazards stated that the maximum allowable vertical movement is limited to 5 mm.[50] He also states that the Standards and Tolerances Guide is based on AS 3727 which provides for the maximum allowed differential movement would be limited to 5 mm.[51]
  5. [106]
    The contract specification and design documents include documentation that the external pavement was required to be 75 mm thick reinforced slab with the top surface being diagrammatically shown as “stepped down from the surface of the paving”. The dimension of any specific step or details of the face between the pavement and the pool coping were not provided in pool documentation.[52]
  6. [107]
    The experts in the JER refer to the following:[53]
    1. the Applicant’s construction method provided for a “flush joint” between the pavement tiles and pool coping tiles, with flexible silicon;
    2. there are differential founding conditions between the concrete path and the pool coping which is founded at a greater depth;
    3. the step defect is related to differential vertical movement associated with reactive clay movement caused by soil moisture content changes;
  7. [108]
    Mr Ryan in the JER stated that drainage characteristics on the site are likely to have contributed to the amount of reactive clay movement and associated stepping that is present and also stated:[54]

that as the pool designer did not provide any specific connection detail for the interface between the pool coping and the adjoining external pavement, other than the requirement of Ableflex any retrospective discussion of what action the builder may have taken so as to have prevented such movement is unreasonable.

  1. [109]
    Mr Van de Hoef in the JER states:[55]

that a detail for an external pavement was provided on the pool design drawings, with a 75 mm thick pavement with F62 mesh central being specified.… the pavement was detailed with a step down from the pool coping (by un-dimensioned amount). If a suitable step down had have been provided for the pavement relative to the coping, then a trip hazard such as currently present, would not be present.

  1. [110]
    While both experts noted that drainage characteristics of the site are likely to have contributed to the amount of reactive clay movement and associated stepping, Mr Van de Hoef noted that where the two tile surfaces were effectively finished at the same height “it was virtually inevitable that some form of step defect would occur”.[56] Mr Van de Hoef also stated:[57]

on a highly or extremely reactive site in circumstances where two adjoining sections of pavement are not physically connected together and one of the substrate forms part of a deep pool wall, it was virtually inevitable that some degree of differential vertical movement would occur…….. if the gap between the two sections of pavement had been infilled to prevent water penetration, then there was significant potential for moisture content changes from other sources to occur and contribute to ongoing vertical differential movement between the two sections of tile surfaces.

  1. [111]
    The experts agreed that as the differential movement was greater than 5 mm it effectively represents a potential trip hazard and is therefore a potential health and safety issue.[58]
  2. [112]
    The evidence before the Tribunal establishes that the Applicant as the builder would have been aware that soil conditions on the site were extremely or highly reactive to changes in moisture content. The Applicant would have also been aware that the founding conditions of the adjoining walls were different. The Applicant would also have been aware that the contract design and documentation that the external pavement was required to be 75 mm thick reinforced slab with the top surface being diagrammatically shown as “stepped down” from the surface of the paving. The evidence also establishes that the Applicant’s methodology construction did not involve any step down from the surface of the paving and was constructed with a “flush joint” finish. As Mr Van de Hoef points out it was inevitable that there would be differential movement between the two surfaces. This movement has caused a trip hazard.
  3. [113]
    The evidence from the experts is that they agree the site conditions played a part in the differential movement between the pool path and pool coping. Mr Ryan considers however that any retrospective discussion about the applicant’s construction is unreasonable. Mr Van de Hoef explains that as a suitable step down in the pavement was provided in the drawings, had the Applicant provided for the pavement relative to the coping then a trip hazard such as that which is now occurred would have been avoided. The evidence does not satisfactorily explain why the Applicant chose to construct the pavement flush with the coping and did not provide the step down. As the drawings provided for this method of construction the trip hazard would have been avoided with a suitable step down. The Tribunal accepts the evidence of Mr Van de Hoef in preference to that of Mr Ryan who considers that it is not reasonable to enquiring to the construction of this aspect of the pool surrounds.
  4. [114]
    The Tribunal is satisfied on this evidence that the Applicant did not undertook the construction in compliance with the plans for the step down between the adjoining surfaces but rather constructed them with both services been flush. The Tribunal accepts the evidence of the Mr Van de Hoef as well as the submissions and evidence relied upon by the QBCC.
  5. [115]
    The Tribunal is satisfied that the Applicant’s method of construction has caused the trip hazard which is defective building work demonstrated by the differential movement between adjoining surfaces.

Should a Direction to Rectify be given to the Applicant.

  1. [116]
    The Applicant does not consider that it is fair or reasonable that a Direction to Rectify should be given in the circumstances. Rather, the Applicant says that it has paid QBCC for a home warranty insurance which is to be utilised to complete the works. It submits that this policy exists for geological anomalies where the builder has complied with everything the engineer has asked, and problems have arisen. It refers to the Owner altering the drainage system installed by the builder as detailed by an engineer. The Applicant considers it is unreasonable for QBCC to deem themselves to be not bound by the insurance policy due to their not meeting certain time guidelines when at the same time, it regards the Applicant is bound by QBCC legislation to rectify the defects. The Applicant believes the QBCC case “does not hold water” which should be dismissed as being an attempt to manipulate an outcome favourable to the QBCC.
  2. [117]
    The Applicant maintains that it has done everything in accordance with the guidelines and is being held accountable for problems that have arisen through no fault of its own.
  3. [118]
    The Applicant also maintained that the Notice to Rectify is for non- structural items and the prescribed period within which to issue that Notice has expired and QBCC is now out of time.
  4. [119]
    The Applicant refers to typographical errors made in the Decision Notice of 5 June 2019 and also in the internal review Direction to Rectify dated 8 July 2019.
  5. [120]
    QBCC submits that:
    1. its Notice was within time as provided by s 72A(4) of the QBCC Act;
    2. that it’s issue of the Notice is in accordance with its Rectification Policy; and
    3. that in all the circumstances it was fair and reasonable to issue the Notice as the objects of the QBCC Act are to achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.
    4. It also explains that there were typographical errors in the Decision Notice of 5 June 2019  in the identification of an Australian Standard in the internal review Decision to Rectify dated 8 July 2019 but these errors should not invalidate the Notice.
  6. [121]
    The Applicant does not explain its preference for the defects to be dealt with under the home warranty scheme when there is a discretion in the Commissioner to issue a Notice to Rectify to the Applicant. This is more so when the defects identified relate to defective building work on the part of the Applicant. The Commissioner is authorised to issue such a Notice where there is defective building work. In addition, the Commissioner is guided in its decision by the Rectification Policy which QBCC submit deals with giving a DTR for structural defects (within 6 years and 6 months) and for non-structural defects (within 6 months). Although the Rectification Policy may be subordinate legislation[59] it still has to be read subject to the provisions in the QBCC Act. QBCC refers to s 72A(4) of the QBCC Act which states the prescribed time limit in respect of giving notice is for building defects are, in these terms:

A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed, or left in an incomplete state …

  1. [122]
    QBCC submits that the Applicant’s submissions relating to time limits for structural and non-structural defects are misconceived as s 72A(4) applies to all defective building work. It submits that the building work was completed in about 18 July 2014 and the Decision Notice was made by the Commissioner on 5 June 2019. That Decision Notice was issued within the prescribed period of time.
  2. [123]
    The prescribed period in s 74A of the QBCC Act relates to “building work” which is defined to mean the erection or construction of a building including numerous other aspects of such associated works. The definition is in broad terms and does not on its proper construction distinguish between structural and non-structural building work. The prescribed period relates to building work for a period of 6 years and 6 months after the building work was completed or left in an incomplete state. On the facts in these proceedings the giving of the Notice on 5 June 2019 was within the prescribed period. The Tribunal rejects the submissions of the Applicant to the effect that the Notice was given out of time and therefore not a valid Notice. In those circumstances, the Tribunal accepts that the QBCC acted appropriately within the prescribed period in issuing the Notice rather than relying on the provisions of the home warranty scheme.
  3. [124]
    The Applicant furthers submits that it has done everything required under the guidelines and is being held responsible for defects which were not of its making. The Tribunal has already held that the Applicant undertook building work which was defective and for which it is the responsible. Accordingly, this further submission by the Applicant is rejected for the reasons already been set out above.
  4. [125]
    The Applicant relies upon typographical errors in the Decision Notice dated 5 June 2019 and the internal review Decision of 8 July 2019. QBCC “acknowledges there is a typographical error” in the Notice dated 5 June 2019. However, that Notice refers to “complaint item 1 and complaint item 2” and then proceeds in the Notice to explain that item 1 refers to “complaint item 2” and that item 2 refers to “complaint item 3”.[60] In any event it does not seem to matter that an alleged “typographical error” was made in the Notice of 5 June 2019 as the Applicant sought a review of that decision and has now received the further internal review Decision of 8 July 2019 which is the subject of these proceedings and not the former Decision notice dated 5 June 2019. The Tribunal is reviewing the internal review Decision of 8 July 2019. The Tribunal does not accept that there is any appropriate basis on which to regard the Notice dated 5 June 2019 as being invalid, particularly as it is not the decision under review in these proceedings
  5. [126]
    The typographical error referred to in the internal review Decision of 8 July 2019 relates to a reference to “AS 3959.1” rather than “AS 3958.1”. The Australian Standard being referred to is the “Ceramic Tiles-Guide to the Installation of Ceramic Tiles” which is referred to in conjunction with the Australian Standard said to contain the typographical error. Any person reading the Decision would be aware that it is a reference to the Ceramic Tiles Australian Standard. This would be particularly the case for a licensed builder with numerous years of experience, such as the Applicant, who would readily identify the appropriate Australian Standard being referred to in respect of the tiling issue. It would be reasonable to assume that a licensed builder of some experience would not be confused, but rather instantly recognise the correct Australian Standard being referred to tile work. The Tribunal is not satisfied that the typographical error is of such a nature, when taken into account with all of the circumstances and contents of the Decision made on 8 July 2019, as to render that Decision invalid. The Tribunal rejects the Applicant’s submissions relating to alleged invalidity based upon typographical errors in both documents.
  6. [127]
    Finally, was it fair and reasonable to the Applicant for the Commissioner to issue the Direction to Rectify of 8 July 2019. The Applicant entered into a contract with the Owner for the construction of the home and pool to be completed in a workmanlike manner. It is appropriate for the Applicant to complete those works. QBCC submits that it is fair and reasonable for the owner to have that construction completed free of defects. The Tribunal accepts that submission. QBCC also refers to the objects of the QBCC Act stated in s 3 as follows:

to regulate the building industry-

to ensure the maintenance of proper standards in the industry; and

to achieve a reasonable balance between the interests of building contractors and consumers; and

to provide remedies for defective building work;

  1. [128]
    Taking into account the findings made already by the Tribunal that the Applicant is responsible for the defective building work and also taking into account the considerations referred to above including QBCC’s reference to the objects of the QBCC Act it was, and is, fair and reasonable for the Commissioner to issue to the Applicant the Direction to Rectify of 8 July 2019.

Conclusion.

  1. [129]
    For the reasons set out above the Tribunal finds that the Applicant has engaged in defective building work referred to in the Direction to Rectify of 8 July 2019 and that in all of the circumstances it was, and is, fair and reasonable for the Commissioner to issue to the Applicant that Direction to Rectify.
  2. [130]
    The Tribunal concludes that in reviewing the decision of the Commissioner made on 8 July 2019 that the Tribunal confirm that decision.

Footnotes

[1]  Queensland Building and Construction Commission Act 1991 (Qld) s. 87.

[2] Queensland Building and Construction Commission Act 1991 (Qld) s. 86(1)(e).

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.

[5] QBCC’s Submissions at paras.50 to 56.

[6] QBCC submissions at paras 52.

[7] See Mr Van de Hoef's statement at page 1192.

[8] JER at page 1275, paragraph 3(b)(f).

[9] QBCC Act Schedule 2 definition of “building work’ and “Building”.

[10] QBCC’s Submissions at page 12, paragraph 55.

[11] QBCC Act Schedule 2 definition of “defective”.

[12] QBCC Submissions at paragraph 59; Mr Van de Hoef's statement, Exhibit 1 page 1158.

[13] QBCC Submissions at paragraph 60; Mr Vanderhoof's statement.

[14] QBCC Submissions at paragraph 65.

[15] QBCC Submissions paragraphs 66 and 67; Mr Van de Hoef's statement, Exhibit 1, page 1161.

[16] QBCC Submissions paragraph 68. Mr Yates statement 23 March 2021, Exhibit 1, page 1088.

[17] QBCC Submissions paragraph 71; Mr Yates statement dated 23 March 2021, Exhibit 1 page 1088.

[18] Owners Submissions at paragraph 12.

[19] QBCC Submissions at paragraph 83 – 84.

[20] QBCC Submissions at paragraph 84.

[21] Applicant’s Statement at paragraph 3 at Exhibit 1, page 1210.

[22] Experts Report Exhibit 1 at paragraph A(b) at page 1272 -1273.

[23] Experts Report Exhibit 1 at paragraph 3(a) (VIII)(b) at page 1274

[24] Experts Report Exhibit 1 at paragraph 4.3 at page 1271.

[25] Experts Report Exhibit 1 at paragraph 4.4 at page 1272 at second bullet point.

[26] Experts Report Exhibit 1 at paragraph 3(b)(VI) 1273.

[27] Experts Report Exhibit 1 at paragraph3(a)(VIII) at page 1274

[28] QBCC Submissions at paragraph 92.   

[29] QBCC Submissions at paragraph 90.

[30] Experts Report Exhibit 1 at paragraph 3(a)(VIII)(b) at page 1274.

[31] Experts Report Exhibit 1 at paragraph 4.3 at page 1271 (bullet point 6).

[32] Experts Report Exhibit 1 at paragraph 3(b)(c) at page 1274.

[33] Experts Report Exhibit 1 at paragraph 3(b)(h) 1275 and at 4.3 at page 1271.

[34] QBCC Submissions paragraph 106 and 10

[35] Experts Report Exhibit 1 paragraph A(c) 1273

[36] Mr Van de Hoef’s Statement Exhibit 1 at page 1160.

[37] Experts Report Exhibit 1 at page 1271.

[38] QBCC submissions at paragraph 126(a).

[39] Statement of Mr Van de Hoef, Exhibit 1 page 1159.

[40] JER, Exhibit 1 at page 1270.

[41] JER, Exhibit 1 at page 1270.

[42] Statement of Tim Ryan, Exhibit 1, page 31.

[43] Above note 53.

[44] Oasis Pool Constructions, Exhibit 1, page 28.

[45] Statement of Mr Yates, Exhibit 1, page 1091.

[46] JER, Exhibit 1, page 1275.

[47] QBCC Submissions at paragraph 138.

[48] QBCC relies upon the Rectification of Building Work Policy effective 10 October 2014, Exhibit 1, page 780.

[49] JDR, Exhibit 1, page 1275.

[50] Statement of Mr Van de Hoef,, Exhibit 1 at page 1161 – 1162, and at 1192.

[51] Statement of Mr Vanderhoff, Exhibit 1 at page 1177 and 1186 – 1187.

[52] JER, Exhibit 1, page 1272.

[53] JER, Exhibit 1, page 1271, 1276 and 1277.

[54] JER, Exhibit 1, page 1272.

[55] JER, Exhibit 1, page 1272.

[56] JER, Exhibit 1, page 1272.

[57] JER, Exhibit 1, page 1277 paragraph 3(b)(n).

[58] JER, Exhibit 1, page 1277 paragraph 3(b)(o).

[59] QBCC Submissions at paragraph 184 – 186; referring to Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission (2014) QCAT 42 at (47), (48) and (49).

[60] Exhibit 1 at page 760 and at page 761.

Close

Editorial Notes

  • Published Case Name:

    Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission & Anor

  • Shortened Case Name:

    Kimama Holdings Pty Ltd t/as Visual Diversity Homes v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 307

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    07 Aug 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
Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42
2 citations
Jump To
Cite 1 - [2014] QCAT 42
Cite 2 - [2014] QCAT 42

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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