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  4. GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission - [2025] QCAT 16

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GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission[2025] QCAT 16

GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission[2025] QCAT 16

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission [2025] QCAT 16

PARTIES:

gds building services pty ltd trading as zen roofing

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO:

GAR233-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 January 2025

HEARING DATE:

3 October 2024

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

  1. The decision by the Queensland Building and Construction Commission dated 20 May 2022 to issue a direction to rectify defects numbered 1, 2, 3, 4, 5 and 6 is confirmed.
  2. The decision is stayed insofar as it requires work to be done which is agreed by the parties as rectified, being the work the subject of defects numbered 1, 3 and 6.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BUILDING – QBCC INTERNAL REVIEW OF DECISION TO RECTIFY – defective work – whether within the scope of the contract – where some rectification work undertaken – whether fair in all the circumstances to issue decision to rectify

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 75, s 87

Birrell v Queensland Building Services Authority [2013] QCAT 56

Cantamessa v Queensland Building and Construction Commission and Anor [2019] QCAT 268

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

Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Lyon v Queensland Building and Construction Commission [2016] QCAT 296

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Ms Hannah Lilley, Norton Rose Fulbright Australia

REASONS FOR DECISION

Background

  1. [1]
    The applicant (‘Zen Roofing’) carried out roofing works at a house property at 132 Barrack Road, Cannon Hill in the State of Queensland pursuant to a contract with the homeowner dated 8 March 2021 (‘the Contract’), which provides for the scope of works as ‘removal of existing asbestos roof cladding, to be replaced with corrugated metal sheeting’. The works were completed on or about 13 August 2021.
  2. [2]
    On 8 November 2021, the homeowner lodged a complaint with the respondent (‘the QBCC’) alleging 12 defects.
  3. [3]
    On 7 March 2022, Mr Sanders, a QBCC building inspector, together with a representative of Sunnyside Roofing, inspected the works. 
  4. [4]
    On 29 March 2022, Mr Sanders made a decision to issue a direction to rectify to Zen Roofing in relation to six defects summarised as follows:
    1. Hip and ridge cappings are not fitted to battens in accordance with AS1562.1 (‘defect 1’).
    2. Hip and ridge cappings are not joined in accordance with HB39 section 5.8 (‘defect 2’).
    3. Rafters to ridge and under purling connections are not detailed in accordance with the approved documents (‘defect 3’).
    4. Roof sheeting and flashings to the veranda roof are not completed in accordance with BCA section 3.5.1.7 and manufacturer’s recommendations (‘defect 4’).
    5. Roof screws are not completed in accordance with AS1562.1 section 4.4 (‘defect 5’).
    6. Roof screws are not completed in accordance with AS1562.1 (‘defect 6’).
  5. [5]
    On 26 April 2022, Zen Roofing applied to the QBCC for internal review of the decision to issue a direction to rectify. Zen Roofing did not respond to the QBCC’s request on 11 May 2022 for further information to assist the QBCC in assessing the issue of fairness.
  6. [6]
    Zen Roofing had until 3 May 2022 to comply with the direction to rectify, and until on or before the same date to apply, giving reasons, for an extension to comply with the direction to rectify.
  7. [7]
    On 3 May 2022, Zen Roofing wrote to the QBCC requesting an extension to comply with the direction to rectify to the end of the following week (13 May 2022), the reasons being public holidays and unpredictable weather. There is no evidence the QBCC granted or refused Zen Roofing’s request for an extension.
  8. [8]
    On 20 May 2022, the QBCC made a decision (‘the Internal Review Decision’) upholding its earlier decision to issue a direction to rectify.
  9. [9]
    On 26 May 2022, Zen Roofing carried out some rectification work.
  10. [10]
    On 7 June 2022, Zen Roofing applied to the Tribunal for external review of the Internal Review Decision (‘this application’).
  11. [11]
    On 15 June 2022, Mr Sanders re-inspected the works and found they were not satisfactory, and on that basis made a decision to issue a failure to rectify notice. Zen Roofing applied for internal review, and on 27 September 2022, the QBCC upheld the failure to rectify decision. Zen Roofing did not apply to the Tribunal for external review.
  12. [12]
    On 6 January 2023, the QBCC accepted the homeowner’s claim under the statutory insurance scheme.

Part hearing 9 March 2023

  1. [13]
    On 9 March 2023, Member Goodman commenced a hearing of this application, which involved taking submissions from the parties regarding the issues to be determined by the Tribunal. There was no examination of witness evidence. Member Goodman adjourned the proceeding to allow Zen Roofing the opportunity to obtain legal advice and to allow both parties to make further submissions on particular matters.
  2. [14]
    Zen Roofing did not dispute that defects 1, 2, 4, 5 and 6 were defects existing as at 20 May 2022, the date of the Internal Review Decision, but claimed that on 26 May 2022 it returned to the house property and carried out certain repairs, which resulted in further decisions by the QBCC, which are not the subject of this application.
  3. [15]
    Zen Roofing did not accept that defect 3 was a defect.
  4. [16]
    Member Goodman took submissions from the QBCC regarding the effect and application of the Tribunal’s decision in Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 (‘Interlink’) in which Senior Member Traves (then, Member Traves) considered the relevance of evidence showing defects had been rectified after the time for rectification had expired, but prior to the Tribunal’s review decision.
  5. [17]
    Senior Member Traves reasoned that:

Although the Tribunal is entitled to consider evidence which has arisen after the decision under review …the admissible evidence will be confined to the question which the original decision maker was bound to decide, as if the original decision maker was making the decision at the time it is being reviewed by the Tribunal. The Tribunal cannot take into account matters not before the original decision maker where to do so would change the nature of the decision, or, to put it another way, the question to be answered.[1]

…the nature and incidents of the decision under review…support the position that the review is limited to the question of whether, at the time of the decision the subject of review, here the internal review decision, a direction to rectify should have been issued. This follows from the intrinsic nature of a decision to issue a direction to rectify, which involves an assessment of whether work is defective at a particular point in time, particularly in the context of the objects of the QBCC Act and of the role the direction to rectify has in the broader statutory scheme applicable to the rectification of defective or incomplete work.[2]

…

The question is to determine whether, at the time the direction was issued, the correct and preferable decision was to issue or not issue a direction to rectify…the question itself…necessarily has a temporal element…it is critical to identify the evidence relevant to the question which the original decision maker was bound to decide. That evidence…does not include evidence of work done after the direction to rectify. To take such evidence into account would be to change the nature of the decision of the original decision maker and to undermine all the statutory sections which contemplate events occurring as a consequence of the decision.[3]

  1. [18]
    Member Goodman identified that the Tribunal must consider and determine:
    1. Whether defects existed as at the date of the Internal Review Decision;
    2. Whether defect 3 is a defect and Zen Roofing is responsible for the defect;
    3. Whether Interlink applies to this case;
    4. In deciding whether to give the direction to rectify, all the circumstances it considers reasonably relevant;
    5. Whether it would be unfair to Zen Roofing to give a direction to rectify, having regard to the nature of the defects and the cost of rectification and the amount owing under the Contract.
  2. [19]
    Member Goodman made directions summarised as follows:
    1. Hearing adjourned.
    2. Zen Roofing to advise the Tribunal and the QBCC whether it accepts the QBCC counsel’s written submissions dated 9 March 2023 that:
      1. (i)
        It is bound to ensure that the roofing works complied with approved plans, and, even if the Repairing to Storm Damaged Roof specification was not a relevant specification to include in the approved plans, the ridge to rafter connection required by AS1684.4 was not complied with, and the construction was therefore defective building work.
      1. (ii)
        Based on the reasoning in Interlink, evidence of rectification work undertaken after the Internal Review Decision is no defence to a decision to issue a direction to rectify. However, there is no utility in requiring rectification of work that no longer requires it, hence the decision to issue a direction to rectify be stayed in so far as it relates to items the QBCC agrees has been rectified.
    3. If Zen Roofing accepts the QBCC counsel’s submissions summarised above, the hearing will proceed on the basis that the issue for determination is whether, pursuant to s 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) it would be unfair to issue a direction to rectify. The parties are to provide submissions on this issue and the Tribunal will determine the issue on the papers without a further oral hearing.
    4. If Zen Roofing does not accept the QBCC counsel’s submissions summarised above, Zen Roofing is to provide submissions in response and the matter will be listed for a directions hearing.

Post part-hearing submissions

  1. [20]
    On 3 April 2023, Zen Roofing made submissions summarised as follows, that:
    1. Zen Roofing does not accept the QBCC counsel’s submissions summarised in the Tribunal’s earlier directions (paragraph [14](b)(i) above) because:
      1. (i)
        Defect 3 was a pre-existing defect expressly excluded from the Contract under paragraph 1 of the special conditions, and
      1. (ii)
        While Zen Roofing agrees that additional tie-downs may need to be installed to the ridge/rafter, the roofing work was not defective because such installation was not included in the scope of works, and it was always agreed under the Contract that it would be the homeowner’s responsibility to rectify any defects in the building structure. Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251 was cited in support.
    2. Zen Roofing does not accept the QBCC counsel’s submissions summarised in the Tribunal’s earlier directions (paragraph [14](b)(ii) above) because:
      1. (i)
        Interlink is not a comparable case. The rectification work in that case was done well after the time for rectification had expired, whereas in this case, it was only two days later.
      1. (ii)
        Zen Roofing’s delay in completing the rectification work was beyond its control: several public holidays and prolonged unpredictable weather occurred during the relevant period.
    3. Zen Roofing requested an extension of time from the QBCC on 3 May 2022 to comply with the direction to rectify, giving reasons for its delay, and on that basis, asked why the extension was not granted. In turn, Zen Roofing asked the Tribunal to decide if an extension should have been granted.
    4. As to whether it would be fair and reasonable to issue a direction to rectify, the cost to rectify the defects was estimated by Zen Roofing to be $1,788.55, and by the QBCC to be $7,354.35, whereas $12,392.58 remained owing to Zen Roofing under the Contract. In these circumstances, the homeowner is withholding enough money to have the rectification work done and it would therefore be unnecessary or unfair for the QBCC to issue a direction to rectify. Further, it is not fair or reasonable to issue a direction to rectify where the builder, such as Zen Roofing, who has taken responsibility for defects, has relied on subcontractors to do the rectification work and they have failed to do a proper job. Cantamessa v Queensland Building and Construction Commission and Anor [2019] QCAT 268 and Duke Building Pty Ltd v Queensland Building and Construction Commission and Anor [2015] QCAT 397 were cited in support.
  2. [21]
    On 25 July 2023, Member Goodman made directions at a Directions Hearing that the parties file any further material they intend to rely on, including witness statements, and that the matter be listed for hearing.
  3. [22]
    On 21 June 2024, counsel for the QBCC wrote to the Tribunal and Zen Roofing advising that the parties had agreed on the issues in dispute, summarised as follows:
    1. Whether defect 3 was excluded from the Contract.
    2. Whether it is fair in all the circumstances for the QBCC to issue the direction to rectify, taking into account: Zen Roofing’s delay in rectifying defects; circumstances where the rectification works were undertaken after the expiry of the direction to rectify; and the cost of rectification versus monies withheld by the homeowner under the Contract.
  4. [23]
    On 30 July 2024, Zen Roofing filed in the Tribunal an Application for miscellaneous matters seeking a direction that defect 4 is not a defect.

Resumed hearing 3 October 2024

Zen Roofing’s claims and case

  1. [24]
    Statements of evidence dated 17 October 2022 and 30 November 2022.
  2. [25]
    Defect 3 (relating to rafters to ridge and under purling connections, also referred to as tie-downs) is work not included in the Appendix - Scope of Work to the Contract and is therefore not a defect.
  3. [26]
    Under special conditions 1 and 2 of the Contract, the homeowner is responsible for structural problems with the roof and any problems with the condition of the timberwork.
  4. [27]
    The certifier of the roofing works, Mr Grant Johnson of Fluid Building Approvals, issued an approval reference number 7508/21 dated 13 October 2021 in relation to the roof replacement at the homeowner’s property, which provided in particular that:
    1. A Form 43 Fixing of Steel Roof Sheeting by the QBCC licensed builder is to be provided to Fluid Building Approvals prior to final inspection.
    2. Roof sheet replacement is to be in accordance with the Department of Housing and Public Works “Repairing storm damaged roofs.”
    3. All members and tie downs to be checked for compliance by builder. All metal battens are to be replaced unless written confirmation is provided from the manufacturer for their reuse.
  5. [28]
    Mr Johnson did not provide a statement of evidence and was not called to give evidence.
  6. [29]
    Zen Roofing believes there was a subsequent approval document (after the Fluid approval). However, they do not have a copy.
  7. [30]
    Fluid Building Approvals emailed Zen Roofing on 24 August 2022 as follows:

As Fluid does not receive any structural details of the existing roof frame nor are afforded the opportunity to inspect the existing roof frame at the time the existing roof material is removed and prior to the installation of the new roof material, Fluid provides conditional approval that states (in part):

  • The builder shall confirm the structural adequacy of existing buildings and structures prior to commencing work.
  • Timber framing must comply with AS1684.2-2006 (Residential Timber Framed Construction Manual), AS/NZS1170, AS1720, the BCA and the Manufacturers Engineered Specifications.

In addition to the conditions of the Decision Notice prior noted Fluid provides the following stamps (in red) on the approved plans:

Roof sheet replacement is to be in accordance with the Department of Housing and Public Works “Repairing storm damaged roofs.”

All members and tie downs to be checked for compliance by builder. All metal battens are to be replaced unless written confirmation is provided from the manufacturer for their reuse.

It is assumed that the QBCC has made their direction based on investigative work performed at the site and are satisfied that the tie-downs are insufficient. Fluid recommends that if you disagree with that direction, you consider a consultation with a structural engineer (RPEQ) to investigate and report on your behalf.

  1. [31]
    Mr Steven Hackworth of The Soil Testers emailed Zen Roofing on 1 September 2022 in response to Zen Roofing’s query regarding the applicability of the “Repairing storm damaged roofs” guidelines, as follows:

1. Note I have not personally undertake [sic] a site/visual inspection of the structure, and the following is generic comment only.

2. Based on the project is the removal of the asbestos sheeting and direct replacement with corrugated roof sheeting with no modifications to the structure. Wind category N2 classification.

3. The existing truss structure including battens was deemed to be structurally adequate and for purpose, ie timber elements, including truss chords, battens and wall frames including connections are in good, structurally adequate condition.

4. The above has been confirmed by a “competent person”.

5. Construction methodology includes the addition of bugle/batten screws to all the batten to truss top chord and straps to all truss top chord to load bearing wall top plates and the fitment of sheet roof sheeting in accordance with the manufacturer’s specification.

6. It is understood that this particular project was not a repair to a “Storm Damaged Roof”.

In preparation for this type of works consideration of the requirements of the national Construction Code, Building Code of Australia (current at the time of the approval) and all relevant referenced Australian Standards, including but not limited to those listed in the Decision Approval dated 28 July 2022 Attachment would be applicable. To include the requirements of the Roof sheet replacement to be in accordance with the Department of Housing and Public Works “Repairing to storm damaged roofs” would in my opinion not have been a standard consideration for this type of project.

  1. [32]
    Mr Hackworth did not provide a statement of evidence and was not called to give evidence.
  2. [33]
    When installing the roof, Zen Roofing inspected the existing roof, including the timber frame, and could not see any sign of storm damage, and as a result, determined that there was no need to install extra tie-downs between the ridge and hip rafters.
  3. [34]
    Mr Wolfe of Sunnyside Roofing and consultant engineer, Mr Hughes (both separately engaged by the QBCC to inspect the roofing works), found that there was no sign of storm damage to the timber frame.
  4. [35]
    As there was no evidence of storm damage to the timber frame, the document, “Repairing storm damaged roofs”, was utterly inappropriate.
  5. [36]
    Defect 4 (in relation to roof sheeting and flashings to the veranda roof) is not a defect. The veranda roof extends 600mm behind the fascia board, so in the event that rain blows in, it will land on the veranda roof and run off due to the roof pitch.
  6. [37]
    Defects 1, 2, 5 and 6 are defects. However, the defects were rectified on 26 May 2022. It is unfair to issue a direction to rectify very soon after the expiry of the rectification period given that Zen Roofing applied for an extension to comply due to delays caused by public holidays and bad weather.
  7. [38]
    Mr Sanders’ estimate of the cost of the repair work was vastly inaccurate and excessive.
  8. [39]
    The cost of the repair work was around $1,800.00. The amount owing under the Contract exceeds the cost of rectification. It is therefore unfair to issue a direction to rectify.
  9. [40]
    Overall, the defective work was minor, not fundamental or structural, and there is no evidence that the roof was leaking. It is therefore unfair to issue a direction to rectify.
  10. [41]
    Zen Roofing relies heavily on subcontractors. At the time, there was a surge in COVID-19 cases, and it was very difficult to find subcontractors, but this point was inadvertently omitted from the reasons given for the request for extension.
  11. [42]
    A small amount of rain can make it dangerous to carry out roofing work. Even when the weather clears, it is difficult to allocate a small team across multiple jobs and get the work done in a limited clear weather window.

QBCC’s claims and case

  1. [43]
    Mr Sanders’ statements of evidence are dated 16 November 2022 and 19 September 2023.
  2. [44]
    The nature of defects 1, 2, 5 and 6 (acknowledged as defects by Zen Roofing) demonstrates the purpose served by a direction to rectify to highlight poor quality workmanship, thus addressing the discretionary issue of fairness.
  3. [45]
    Mr Sanders gave oral evidence based on his statements of evidence dated 16 November 2022 and 19 September 2023.
  4. [46]
    In relation to defect 4, Mr Sanders stated that he relied on the Sunnyside Roofing report dated 9 March 2022 in determining the defect, noting that the photograph Zen Roofing relies on as evidence of no defect does not capture the relevant area of the defect.
  5. [47]
    Mr Sanders stated that the tie-down requirement does not relate to a structural problem as referred to in special condition 1 of the Contract. Rather, it is an issue arising as a result of the replacement of a heavier asbestos roof with a lighter metal sheet roof, in that the lighter roof is more susceptible to uplift and therefore requires tie-downs. On that basis, Mr Sanders’ concluded that the tie-down requirement is not outside the scope of the Contract. The Tribunal allowed this additional evidence from Mr Sanders on the basis that it specifically addresses Zen Roofing’s claim that the tie-down requirement is outside the scope of the Contract.
  6. [48]
    Mr Sanders referred to page 2 of the Contract (Appendix – Scope of Work), in particular that Zen Roofing will provide the QBCC home warranty insurance and roof certification including Form 16 and Form 21 certificates. Paragraph 4.5 of Mr Sanders’ statement of evidence dated 19 September 2023 sets out what is required to be done by Zen Roofing to provide roof certification, including completion of works in accordance with the Fluid Building Approval’s approved plan, which required compliance with the Department of Housing and Public Works “Repairing storm damaged roofs” document. Mr Sanders states that he is not aware of the criteria Fluid Building Approvals used to determine the applicability of the document to these works.
  7. [49]
    Mr Sanders stated that while the certifier issued a Form 21 certificate certifying that the works had been completed in accordance with the approved plan, he must rely on his own inspection to satisfy himself of such. Mr Sanders determined that because Zen Roofing had not complied with the Department of Housing and Public Works “Repairing storm damaged roofs” document, the works had not been completed in accordance with the approved plan. Further, Mr Sanders cited the applicable Australian Standard AS1684.4 2010 for residential timber-framed construction, which he determined had not been complied with because no ridge to rafter connection was evident.
  8. [50]
    Regarding the issue of the cost of rectification versus the amount owing under the Contract, Mr Sanders stated that it may be considered unfair to issue a direction to rectify if the contractor has not been paid for work performed. Mr Sanders stated that the homeowner in this case provided a quote for roof replacement of $32,967. Mr Sanders also stated that the QBCC asked Zen Roofing for a scope of works to rectify the complaint items and associated costs, however Zen Roofing did not respond until after the Internal Review Decision and did not provide evidence to substantiate its cost estimate of $1,788.55. Mr Sanders determined a cost estimate of $7,354.35 based on recognised modelling noting that the actual cost was likely to be higher due to increasing prices for labour and materials in the construction industry over the last few years. Mr Sanders concluded that despite money outstanding under the Contract, it was not unfair to issue the direction to rectify.

Issues to be determined

  1. [51]
    Counsel for the QBCC presented at the resumed hearing consolidated written submissions dated 3 October 2024 addressing issues previously raised and issues that have arisen since the part hearing, and identifying the issues to be determined by the Tribunal, summarised as follows:
    1. Whether defect 3 was excluded from the Contract.
    2. Whether it is fair in all the circumstances for the QBCC to issue the direction to rectify on 20 May 2022, and whether the following should be taken into account in the fairness considerations:
      1. (i)
        The alleged rectification works undertaken by Zen Roofing after the expiry of the direction to rectify;
      1. (ii)
        Zen Roofing’s delay in undertaking the alleged rectification works;
      1. (iii)
        Zen Roofing’s submissions regarding the cost of rectification works versus the amount outstanding under the Contract.
  2. [52]
    I am satisfied the issues in the preceding paragraph are to be determined by the Tribunal.
  3. [53]
    There is also the issue of defect 4. During the part hearing, I note Zen Roofing did not dispute that defect 4 was among the defects existing as at 20 May 2022, the date of the Internal Review Decision. I also note that Zen Roofing made no reference to defect 4 in its post part-hearing submissions dated 3 April 2023. Subsequently however, Zen Roofing made an Application for miscellaneous matters on 30 July 2024 seeking a directions that defect 4 is not a defect.
  4. [54]
    I am satisfied the parties are not in agreement regarding the status of defect 4, and accordingly the following issue is included in the issues to be determined by the Tribunal: Whether defect 4 was a defect as at the date of the Internal Review Decision.
  5. [55]
    I am satisfied the parties are in agreement that defects 1, 2, 5 and 6 were defects as at the date of the Internal Review Decision.
  6. [56]
    I am satisfied the parties are in agreement that defects 1, 3 and 6 have since been rectified.

Consideration

Statutory framework and jurisdiction

  1. [57]
    One of the objects of the QBCC Act is to provide remedies for defective building work.[4]
  2. [58]
    ‘Building work’ is defined in Schedule 2 of the QBCC Act to include the renovation, alteration, extension, improvement or repair of a ‘building’, which is defined as generally including any fixed structure. ‘Defective’, in relation to building work, is defined as including faulty or unsatisfactory.
  3. [59]
    Section 72 of the QBCC Act provides (inter alia) that where the QBCC is of the opinion that building work is defective or incomplete,[5] it may direct the person who carried out the building work to rectify the building work within the period stated in the direction.[6] This is commonly referred to as a direction to rectify.
  4. [60]
    In deciding whether to give the direction, the QBCC may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work.[7]
  5. [61]
    The QBCC is not required to give the direction if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction.[8]
  6. [62]
    Section 86(1)(e) of the QBCC Act provides that a decision of the QBCC to give a direction to rectify or remedy or not to give the direction is a reviewable decision.
  7. [63]
    A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision, also known as external review.[9] Section 86E of the QBCC Act provides that a reviewable decision (for the purposes of external review) means an internal review decision of the QBCC made pursuant to s 86C.
  8. [64]
    I am satisfied that the legislative requirements have been met and the Tribunal has jurisdiction to hear and decide this application.
  9. [65]
    The Tribunal must exercise its review jurisdiction in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The purpose of the review is to produce the correct and preferable decision.[10] The Tribunal must hear and decide the review by way a fresh hearing on the merits,[11] and in doing so, the Tribunal stands in the shoes of the QBCC.[12]

Whether defect 3 was excluded from the Contract

  1. [66]
    Defect 3 has been described already as: Rafters to ridge and under purling connections are not detailed in accordance with the approved documents. I refer to this as the tie-down requirement.
  2. [67]
    Zen Roofing claims that defect 3 relates to work outside the scope of the Contract and therefore is not a defect.
  3. [68]
    I am not persuaded by Zen Roofing’s evidence in relation to this issue.
  4. [69]
    Mr Johnson of Fluid Building Approvals did not provide a statement of evidence and was not called to give evidence. As a result, there was no opportunity for the Tribunal to hear evidence from Mr Johnson about the conditions and circumstances of the approval.
  5. [70]
    While Zen Roofing claims there was a subsequent approval document, no evidence of this document is before the Tribunal.
  6. [71]
    Mr Hackworth of The Soil Testers did not provide a statement of evidence and was not called to give evidence. As a result, there was no opportunity for the Tribunal to hear evidence from Mr Hackworth about the contents of the email he sent to Zen Roofing in response to their query regarding the applicability of the “Repairing storm damaged roofs” guidelines. Mr Hackworth states in his email that he has not inspected the structure, and his comments are generic only.
  7. [72]
    I prefer Mr Sanders’ evidence in relation to this issue.
  8. [73]
    Special Condition 1 of the Contract makes the homeowner responsible for any structural problems with the roof. I consider that the tie-down requirement is related to the replacement roof being a lighter metal sheet roof, not any structural problem with the roof.
  9. [74]
    Zen Roofing was required under the Contract (Appendix – Scope of Work) to provide roof certification, including certification that the works were completed in accordance with Fluid Building Approval’s approval document, which required compliance with the Department of Housing and Public Works “Repairing storm damaged roofs” guidelines.
  10. [75]
    I consider that Mr Sanders was required to satisfy himself that the works had been completed in accordance with the Fluid Building Approval’s approval document, and in doing so, was not required to question the conditions of the approval or the reasons for imposing the conditions, including the condition requiring compliance with the Department of Housing and Public Works “Repairing storm damaged roofs” guidelines.
  11. [76]
    I consider it is credible that a condition of approval requiring compliance with the Department of Housing and Public Works “Repairing storm damaged roofs” guidelines may be imposed in circumstances where a roof is not storm damaged, but the approver considers the nature or state of the roof to be such as to warrant compliance with the guidelines.
  12. [77]
    Zen Roofing was required under the Contract (General Terms and Conditions – 1(a) Obligations of the Parties) to carry out and complete the works as set out in the scope of works, and in accordance with all the laws and any relevant Australian Standards applicable to the works. Australian Standard AS1684.4 2010 requires ridge to rafter connection for residential timber-framed construction.
  13. [78]
    I find that:
    1. Defect 3 is within the scope of the Contract.
    2. Zen Roofing did not comply with the Department of Housing and Public Works “Repairing storm damaged roofs” guidelines, and therefore did not comply with the Contract (Appendix – Scope of Work).
    3. Special Condition 1 of the Contract does not apply to the tie-down requirement.
    4. Zen Roofing did not comply with Australian Standard AS1684.4 2010 for residential timber-framed construction and therefore did not comply with the Contract (General Terms and Conditions – 1(a) Obligations of the Parties).
    5. Defect 3 was a defect as at the date of the Internal Review Decision.
  14. [79]
    Given my finding that defect 3 is within the scope of the Contract, I do not consider Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251 is a relevant authority.

Whether defect 4 was a defect as at the date of the Internal Review Decision

  1. [80]
    Defect 4 has been described already as: Roof sheeting and flashings to the veranda roof are not completed in accordance with BCA section 3.5.1.7 and manufacturer’s recommendations.
  2. [81]
    Zen Roofing claims that defect 4 is not a defect because the veranda roof extends 600mm behind the fascia board, so in the event that rain blows in, it will land on the veranda roof and run off due to the roof pitch.
  3. [82]
    Zen Roofing’s evidence is that the veranda roof has a 4.5 to 5 degree pitch and includes a photograph with arrows to a particular section of the veranda roof and fascia board where they say there is no defect.
  4. [83]
    Mr Sanders gave evidence that he relied on the Sunnyside Roofing report dated 9 March 2022 in determining defect 4 and noted that the photograph Zen Roofing relies on as evidence of no defect does not capture the relevant area of the defect.
  5. [84]
    The Sunnyside Roofing report is comprehensive. I note the following in relation to defect 4:
    1. At page 17, the report states: There are a number of areas on the veranda where no flashings have been installed to protect the sheet ends from directional wind driven rain. These gaps also provide areas where vermin can live and nest.
    2. At page 19, the report states: There are very minimal screw fixings along the veranda flashings which does not allow the flashing to be fixed tightly to the roof sheeting and allow directional wind driven rain to be blown up under.
    3. At page 21, the report states: An apron flashing join has no fixings or sealant installed and can be easily lifted. [A reference follows to the Installation code for metal roof and wall cladding]. The last roof sheet has been overlapped approximately 8 corrugations, this will significantly reduce the lifespan of the roof sheeting with moisture being trapped between the sheets, the sheet needs to be ripped to prevent this overlap.
    4. At page 22, the report states: The veranda is sheeted with corrugated profile roof sheeting which is required to have a minimum of 5 degree pitch, when measured with a digital level it was found to have a pitch ranging from 4.4-4.8 degrees.
    5. At page 24, the report states: Stratco material specifications table states the 0.42 BMT corrugated profile roof sheeting requires a minimum of 5 degree pitch.
    6. None of the photographs included on pages 18 to 24 of the report capture the same area of the veranda roof and fascia board as the photograph produced by Zen Roofing.
  6. [85]
    Zen Roofing has not explained in its evidence how their photograph of the veranda roof and fascia board relates to or addresses the issues articulated in the Sunnyside Roofing report. However, Zen Roofing states that the roof pitch is 4.5 to 5 degrees, which, according to the Sunnyside Roofing report, is not compliant with the Stratco specifications.
  7. [86]
    Zen Roofing has not otherwise given evidence addressing the issues articulated in the Sunnyside Roofing report.
  8. [87]
    I am not persuaded by Zen Roofing’s evidence in relation to this issue.
  9. [88]
    I prefer Mr Sanders’ evidence and the Sunnyside Roofing report in relation to this issue.
  10. [89]
    I find that defect 4 was a defect as at the date of the Internal Review Decision.

Whether it is fair in all the circumstances for QBCC to issue the direction to rectify having regard to the alleged rectification works undertaken by Zen Roofing after the expiry of the direction to rectify

  1. [90]
    I have noted that the parties agree that defects 1, 2, 5 and 6 were defects as at the date of the Internal Review Decision.
  2. [91]
    I have found that defect 3 was within the scope of the Contract and was a defect as at the time of the Internal Review Decision.
  3. [92]
    I have found that defect 4 was a defect as at the time of the Internal Review Decision.
  4. [93]
    I have noted that on 26 May 2022, after the Internal Review Decision on 20 May 2022 upholding the QBCC’s decision to issue a direction to rectify and after the expiry of the direction to rectify, Zen Roofing carried out some rectification works.
  5. [94]
    I have noted that the parties agree that defects 1, 3, and 6 have been rectified.
  6. [95]
    Having regard to the Interlink decision referenced earlier in these reasons, I consider that, in standing in the shoes of the QBCC, I must address the evidence before the Tribunal that relates to the question the QBCC was bound to decide. That is, whether at the time of the internal review decision, a direction to rectify should have been issued. This involves assessing whether work was defective at that particular point in time. The relevant evidence does not include evidence of work done after the expiry of the direction to rectify.
  7. [96]
    Zen Roofing submits that Interlink does not apply because the rectification work was done well after the time for rectification had expired, whereas in this case, it was done two days after, and the delay was caused by reasons beyond their control, being the number of public holidays and unpredictable weather.
  8. [97]
    I reject this submission as it ignores the central principle articulated in Interlink requiring the Tribunal, standing in the shoes of the QBCC, to determine whether work was defective at the time of the Internal Review Decision, not at any later time.
  9. [98]
    Zen Roofing has asked the Tribunal to decide if an extension should have been granted by the QBCC to comply with the original direction to rectify following their email request dated 3 May 2022, in which they refer to the delay caused by reasons beyond their control, being the number of public holidays and unpredictable weather.
  10. [99]
    I am satisfied that a decision by the QBCC not to grant an extension of time for compliance with a direction to rectify is not a reviewable decision under the QBCC Act, and that the Tribunal has no review jurisdiction in relation to such a decision.
  11. [100]
    I find that Zen Roofing having rectified some defects after the expiry of the direction to rectify does not derogate from the fairness of the QBCC’s decision to issue a direction to rectify.

Whether it is fair in all the circumstances for QBCC to issue the direction to rectify having regard to Zen Roofing’s delay in undertaking the alleged rectification works

  1. [101]
    This issue is addressed in paragraphs [98] to [100] of these reasons.

Whether it is fair in all the circumstances for QBCC to issue the direction to rectify having regard to Zen Roofing’s submissions regarding the cost of rectification works versus the amount outstanding under the Contract

  1. [102]
    I note the parties are in agreement that the amount outstanding under the Contract (the amount payable by the homeowner to Zen Roofing) is $12,392.58.
  2. [103]
    There is no evidence before the Tribunal to substantiate Zen Roofing’s figure of $1,788.55 for the cost of rectification.
  3. [104]
    Mr Sanders gave evidence of recognised modelling he undertook to arrive at a cost estimate of $7,354.35 and noted that the actual cost was likely to be higher due to increasing prices for labour and materials in the construction industry over the last few years.
  4. [105]
    I am not persuaded by Zen Roofing’s evidence in relation to the cost of rectification.
  5. [106]
    I prefer Mr Sanders’ evidence in relation to the cost of rectification.
  6. [107]
    I find that the cost of rectification is likely to be close to or on a par with the amount outstanding under the Contract.
  7. [108]
    I note the case law cited by the parties in their submissions and the general proposition that outstanding moneys under the Contract is a discretionary factor to consider in balancing the interests of the contractor and the homeowner.
  8. [109]
    I am assisted by the Tribunal’s comments in the case of Birrell v Queensland Building Services Authority [2013] QCAT 56 at [54]-[55]:

It is difficult to imagine a scenario in which it would seem reasonable for a homeowner to pay a builder the full contract price when faced with a refusal to rectify alleged defects that are later confirmed as defects by the Authority.

  1. [110]
    I am also assisted by the Tribunal’s comments in the case of Lyon v Queensland Building and Construction Commission [2016] QCAT 296 at [46]-[47]:

I would, in other circumstances, consider that where the amount of rectification only just exceeds the amount owed that it was not reasonable to issue the direction a rectify. In the circumstances here, though, where the deck is unsafe, I consider that the object of the QBCC Act requires that the balance between proper standards and the interests of consumers outweighs the interests of the building contractor. Mr Lyon can bring an application and pursue the homeowners in respect of the outstanding amount. This deck must be rectified and it is Mr Lyon who has performed the defective work and so it is reasonable to issue the direction to rectify to him.

  1. [111]
    I consider that Mr Sanders’ evidence and the Sunnyside Roofing report are persuasive evidence of Zen Roofing’s poor workmanship under the Contract resulting in a number of defects and a decision by the QBCC to issue a direction to rectify; some of those defects have been rectified, others remain to be rectified. I consider that the homeowner is entitled to have the remaining defects rectified to ensure that their roof is not defective, and that if Zen Roofing wishes to seek to recover any outstanding amount under the Contract, they are free to pursue that action.
  2. [112]
    Zen Roofing cites the cases of Cantamessa v Queensland Building and Construction Commission [2019] QCAT 268 and Duke Building Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 397 in support of their submissions. In the first case, the Tribunal was not satisfied the homeowner had acted reasonably; and in the second case, the Tribunal referenced the blameworthiness of the homeowner and the cause of the defective building.
  3. [113]
    There is no evidence before the Tribunal in this case that the homeowner’s conduct has contributed in any adverse way such as to warrant a conclusion that the competing interests of the parties should fall in favour of setting aside the direction to rectify.
  4. [114]
    I find that it was fair in all the circumstances for the QBCC to issue the direction to rectify.

Footnotes

[1]Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 at [40].

[2]  Ibid at [41].

[3]  Ibid at [45].

[4]  QBCC Act, s 3(b).

[5]  Ibid, s 72(1)(a).

[6]  Ibid, s 72(2)(a).

[7]  Ibid, s 72(3).

[8]  Ibid, s 72(5).

[9]  Ibid, s 87.

[10]  QCAT Act, s 20(1).

[11]  Ibid, s 20(2).

[12]  Ibid, s 19(c).

Close

Editorial Notes

  • Published Case Name:

    GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission

  • Shortened Case Name:

    GDS Building Services Pty Ltd t/as Zen Roofing v Queensland Building and Construction Commission

  • MNC:

    [2025] QCAT 16

  • Court:

    QCAT

  • Judge(s):

    Member Chapple

  • Date:

    06 Jan 2025

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
Birrell v Queensland Building Services Authority [2013] QCAT 56
2 citations
Jump To
Cite 1 - [2013] QCAT 56
Cite 2 - [2013] QCAT 56
Cantamessa v Queensland Building and Construction Commission [2019] QCAT 268
3 citations
Jump To
Cite 1 - [2019] QCAT 268
Cite 2 - [2019] QCAT 268
Cite 3 - [2019] QCAT 268
Duke Building Pty Ltd v Queensland Building and Construction Commission [2015] QCAT 397
3 citations
Jump To
Cite 1 - [2015] QCAT 397
Cite 2 - [2015] QCAT 397
Cite 3 - [2015] QCAT 397
Fewster v Queensland Building and Construction Commission [2021] QCAT 251
3 citations
Jump To
Cite 1 - [2021] QCAT 251
Cite 2 - [2021] QCAT 251
Cite 3 - [2021] QCAT 251
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
3 citations
Jump To
Cite 1 - [2020] QCAT 480
Cite 2 - [2020] QCAT 480
Cite 3 - [2020] QCAT 480
Lyon v Queensland Building and Construction Commission [2016] QCAT 296
2 citations
Jump To
Cite 1 - [2016] QCAT 296
Cite 2 - [2016] QCAT 296

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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