Keep v Queensland Building and Construction Commission
[2025] QCAT 209
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- Unreported Judgment
- Keep v Queensland Building and Construction Commission[2025] QCAT 209
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Keep v Queensland Building and Construction Commission[2025] QCAT 209
Keep v Queensland Building and Construction Commission[2025] QCAT 209
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Keep v Queensland Building and Construction Commission [2025] QCAT 209 |
PARTIES: | anthony keep (applicant) MARTINE KEEP (applicant) v queensland building and construction Ccommission (respondent) |
APPLICATION NO | GAR491-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 29 May 2025 |
HEARING DATE: | 3 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member McVeigh |
ORDERS: | The Commission’s decision will not be amended. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the QBCC issued a direction to rectify work – where the consumer made an application to review the decision of the QBCC – where the consumer seeks an order on review from the Tribunal substituting a direction that another contractor carry out rectification – whether it is unfair in all of the circumstances to require rectification Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 71J, s 72 Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 83 Hall v Queensland Building and Construction Commission [2020] QCAT 379 Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 Rosecove v Queensland Building and Construction Commission [2023] QCAT 101 |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
Respondent: | Dentons Australia Limited |
REASONS FOR DECISION
What the applicant wants
- [1]Mr and Mrs Keep (owners) are the owners of a Queenslander which is over a century old. In April 2022 they engaged the holder of QBCC licence 15005581 (the painter) to paint their home inside and out. The work was completed in June 2022 and the painter was paid. The painter did not do a good job. When the owners received no satisfactory response to their complaints from the painter, they complained to the Queensland Building and Construction Commission (Commission). Each item in their complaint gave a location and a description of the work the subject of the complaint. Some items, which became a focus of the hearing, gave the location of the work the subject of the complaint as ‘everywhere’.
- [2]On 2 May 2023 the Commission issued Direction to Rectify 0110722 to the painter. The painter was directed to rectify 10 of 20 items, in whole or part. The Commission did not direct the painter to rectify ‘everywhere’. Following an internal review of the decision by the Commission the painter was directed to rectify two additional defects.
- [3]On 20 July 2023 the owners filed this application seeking a review of the Commission’s decision not to direct rectification of all or part of the items complained about. The owners asked the tribunal to review the long list of issues, but they did not want an amended direction to be issued to the painter. They asked that the Commission be directed to have the house re-painted by another painter. They asked this because they believe that the painter could not rectify to the appropriate standard.
Statutory obligations imposed on the Commission
- [4]The Commission is tasked with achieving the objects of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). They include:
- ensuring the maintenance of proper standards in the building industry; and
- achieving a reasonable balance between the interests of building contractors and consumers.[1]
- [5]A consumer may ask the Commission to give a direction to rectify building work the consumer considers is defective or incomplete.[2] When making the request, the consumer must give the Commission details of the building work the consumer considers is defective.[3] This is the first step in a process that may culminate in the issue of a direction to rectify to the contractor.
- [6]If the Commission forms the opinion that building work is defective, it may direct the person who carried out the building work to rectify the defective work. In deciding whether to give the direction, the Commission may take into consideration all the circumstances it considers reasonably relevant. The Commission is not required to direct the person who carried out the building work to rectify the defective work if it would be unfair to do so.[4]
- [7]In forming an opinion as to whether or not building work is defective, officers of the Commission take into account guidelines established in the Rectification of Building Work Policy.[5] That policy provides that defective building work includes work that does not comply with applicable Australian Standards. In the hope of reducing disputation, the Commission has published a Standards and Tolerances Guide,[6] compiled from legislative provisions, the National Construction Code, Australian Standards, manufacturer’s installation requirements and other recognised industry standards. The Guide provides that painting is defective if it does not comply with AS 2311 – Guide to Painting of Buildings. It provides that paintwork is defective if there are bare or starved painted areas, blistering or irregularities visible in the surface from a normal viewing position. Surface splits are defects if they can be seen from a normal viewing position.
The tribunal’s role
- [8]The tribunal’s role is prescribed by legislation. It can:
- confirm or amend the decision under review;
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[7]
- [9]The tribunal’s role is to review the decision of the Commission by conducting a fresh hearing on the merits in order to arrive at the correct and preferable decision.
- [10]The owners bear the burden of adducing sufficient evidence to satisfy the tribunal that the painting which has not already been the subject of the direction is defective.
- [11]If the tribunal forms the opinion that the painting is defective, it has a discretion to direct the person who carried out the building work, i.e., the painter, to rectify the defective work. The tribunal cannot direct the Commission to have the house re-painted by another painter.
- [12]The Commission’s decision that the rectification has been carried out satisfactorily could have been the subject of a review application, but that is not the application made by the owners. Consequently, is not the subject of these review proceedings. The only decision which is the subject of these review proceedings is the Commission’s decision not to direct the painter to rectify some items in the complaint.
- [13]While the tribunal has jurisdiction to deal with contractual disputes, the owners have not brought a claim against the painter for breach of contract. This decision is not about a contractual dispute between the owners and the painter.
Material
- [14]
- [15]
The hearing
- [16]The application came on for hearing on 3 March 2025. At the commencement of the hearing the Commission conceded that the painter should have been directed to rectify cracks on the walls in the basement (which was part of item 12 in the complaint). During the hearing the Commission also conceded that the painter should have been directed to gap fill multiple cracks on walls in the walkway (which was part of Item 11).
- [17]The owners did not press complaint items 9, 13, 14 and 15.
- [18]The complaint items, or those parts that had not been the subject of the direction, pressed at the hearing were:
Item 1 Main bedroom - gap fill cracks on walls/ceilings and windows above French doors do not open
Item 2 En suite - gap fill multiple cracks on walls/ceilings
Item 3 Walk in robe - gap fill cracks on walls/ceilings
Item 4 Living room - gap fill cracks on walls/ceilings
Item 5 Kitchen - gap fill multiple cracks on ceilings
Item 6 Linen cupboard/walkway - gap fill cracks on walls/ceilings
Item 7 Kitchen - paint window outside of kitchen not complete - paint on steps bubbling
Item 8 Everywhere - gap fill cracks - all rooms around house
Item 10 Laundry - gap fill multiple cracks on walls
Item 11 Walkway - gap fill multiple cracks on walls
Item 12 Basement - gap fill multiple cracks on walls - painting not complete
Item 16 Bedroom 2 - French doors do not open
Item 17 Everywhere - adequate preparation not conducted resulting in cracks and peeling…
Item 18 Everywhere - not painting 3 coats of paint …
Item 19 Downstairs bathroom/laundry - discolouration of skirting boards - not white
Item 20 Interior skirting boards, wall frames and ceilings in walk in robe plus back stairs - use of wrong paint
Background
Complaint
- [19]On 28 June 2022 Mr Keep emailed a list of complaints to the painter.[15] Among other things he wrote:
Gap fill multiple cracks around the house – cielings (sic), new VJ sheeting, old VJ sheeting, living room roof, wardrobe roof, bedroom wall, laundry wall, …
Inside bay windows…
- [20]On 13 July 2022 the owners lodged a complaint form with the Commission. It listed 16 items.[16] Item 8 described the complaint as ‘gap fill cracks – all rooms around the house located ‘everywhere’.
- [21]On 22 February 2023 the Commission’s assessment officer advised Mr Keep that four additional defect items described by Mr Keep had been added to the complaint.[17] They included:
- Item 17 everywhere - Adequate preparation not conducted resulting in cracks and peeling… there are cracks everywhere around the house…;
- Item 18 everywhere interior and exterior - Not painting 3 coats of paint.
- [22]When Mr Keep asked that the additional items be added he attached over 20 photographs[18] to provide more detail of the extensive issues.
- [23]The Commission did not ask for particularisation of the defects described as occurring ‘everywhere’.
- [24]The Commission advised the painter and the owners that an inspection would occur on 20 March 2023. The notice attached a list of 20 complaint items.[19]
Inspection
- [25]Andrew Kirby, a senior building inspector engaged by the Commission, inspected the work on 20 March 2023. Mr Keep and the painter were present.
- [26]Mr Kirby has over 40 years’ experience in the building industry. He is well qualified to express opinions about the quality of the painting work. Mr Keep has no relevant qualifications in domestic construction or painting.
- [27]In his statement Mr Kirby said that in cases where a complaint item is too vague, he often asks the consumer to clarify what they mean and to show him the specific work the subject of the complaint.[20] In cross-examination Mr Kirby accepted that it was not necessary for the complaint item to descend to the specifics of describing the location of every gap or crack in every face of the building. He said it would be sufficient if the item identified the room and the wall or ceiling in the room that was the subject of the complaint. He said that he did not inspect ‘everywhere’ inside and outside the house, but he did inspect all the places he was shown or directed to by Mr Keep.
- [28]Mr Kirby prepared a report of the inspection dated 26 April 2023.[21] In his report he noted, inter alia:
- Cracks of approximately 0.5mm in the paintwork between the tongue and groove boards in multiple locations in the main bedroom. He did not observe any gap filler inside many of the gaps. He did not observe defective building work on the ceiling lining. The breezeway window above the French doors had been painted shut.
- A gap of approximately 1mm wide between the timber cornice and the wall tiles and a crack of approximately 0.5mm in the T & G ceiling lining above the shower in the en-suite.
- A crack of approximately 0.5mm in the T & G wall lining and 3 full length cracks up to approximately 1mm wide in joints in the T & G ceiling lining in the walk-in robe.
- Multiple cracks approximately 0.5mm wide in the T & G wall on the front wall and left hand side wall, cracks approximately 0.5mm wide in the MDF T & G sheets on the right hand side wall and cracking approximately 0.5mm wide between the T & G wall lining and skirting boards in the living room. In cross-examination he said he had observed 30 to 40 boards that had not been ‘Gapped’.
- Almost every T & G ceiling joint in the kitchen was cracked.
- An unfilled crack of approximately 1mm between the right hand side of the French door jamb and the adjacent MDF VJ wall lining and unfilled cracks at the junction of the MDF VJ wall lining and the door jambs on both sides of the entry in the linen cupboard/walkway.
- Paint missing from the centre area of the bottom three front entry steps.
- Regarding item 8 of the complaint; that Mr Keep agreed that the interior cracks and gaps had been previously addressed in items 6 to 8.
- Gaps and cracks up to approximately 1.25mm wide in the VJ wall/ceiling junctions and around the exposed sub-floor structure of the laundry.
- The breezeway window above the French doors in bedroom 2 had been painted shut.
- Regarding item 17 of the complaint, that there had been inadequate preparation resulting in cracks, that the item had been previously addressed.
- That there were gaps up to approximately 0.5mm between the new pine and pre-existing chamferboards and vertical timber stops on the right hand side exterior of the house.
- [29]When giving evidence Mr Kirby observed that as well as taking photographs of defective work it would have been useful to take photographs of work that he did not consider to be defective. With the benefit of hindsight that would have been useful.
- [30]Quite properly, in the report he did not comment about contractual matters such as:
- whether or not certain areas had received 3 coats of paint (part of item 18); or
- on the type of paint that had been used.
- [31]He inspected the basement, but did not observe any cracks, gaps or incomplete paintwork from the normal viewing position, (item 12).
- [32]He inspected the skirting boards in the downstairs bathroom/ laundry, but did not observe any obvious defective construction practices by the painter (item 19).
- [33]During the inspection when attention was drawn to matters that had not been the subject of a complaint but nonetheless were instances of poor workmanship, e.g., the incomplete painting of the handrail to the stairs, the painter volunteered to attend to the item when on site to perform other rectification work.
Direction to Rectify 0110722
- [34]On 2 May 2023 the Commission issued Direction to Rectify 0110722 (DTR) to the painter.[22] The painter was directed to rectify some or all of complaint items 1, 2, 3, 4, 5, 6, 10, 11, 16 and 18.
- [35]The defective work list attached to the DTR described the manner in which each item of work was defective by reference to relevant standards. It cross referenced the items in the complaint.
Internal review
- [36]On 10 May 2022 Mr Keep emailed Mr Kirby enquiring whether he was aware that there was a whole room (second front bedroom) missing from the report.[23]
- [37]On 23 May 2022 the owners requested an internal review of the decision not to direct rectification of all items.[24] There were two categories of item the subject of the internal review application:
- items referred to in the inspection report, but not the subject of a direction;
- items not the subject of a direction, but identified and discussed at the inspection.
- [38]On 20 June 2023 the Commission added 2 further items to the DTR and maintained the decision that no direction should be given in respect of items 8, 9, 13, 14, 15, 17, 19 and 20.[25] The new items were:
- Item 7, incomplete paintwork to the kitchen windows; and
- Item 12, painting not complete in the basement.
- [39]The internal reviewer observed that although the inspection report did not note the areas starved of paint and unpainted on the kitchen windows, photographs provided by the owners showed that the painting of the kitchen windows was defective (Item 7). They also observed that as Mr Kirby had noted that the tops of the hardwood bearers had not been fully painted a direction to rectify that defective work should be given (Item 12).
- [40]The internal reviewer accepted that the painter did not complete the painting of the handrail to the stairs but decided not to add a direction to the DTR on the basis that the complaint was described as ‘use of wrong paint’.
External review
- [41]On 20 July 2023 the applicants filed this application.
- [42]The owners asked the tribunal to review the long list of issues which had not been the subject of a direction. They identified the fundamental issue as being poor surface preparation by the painter. Their view was that the evidence demonstrated that the painter was incapable of rectifying to the appropriate standard. They saw that the solution was to have another painter re-paint the house inside and out.
Rectification and reinspection
- [43]The painter carried out some rectification works on 25 and 26 July 2023.
- [44]On 6 September 2023 the Commission reinspected the work.[26] Mr Kirby was satisfied that the painter had rectified each of the items the subject of a direction to rectify.
- [45]Despite the fact that the Commission was satisfied that the painter had satisfactorily addressed the DTR, Mr Keep maintained his view that the only solution to the problem was to have the house repainted. However, the owners did not file an application to review the Commission’s decision that the painter had satisfactorily complied with the DTR.
Inspection by Master Painters Association (Qld)
- [46]On 20 September 2023 Mr Appleby, a representative of the Master Painters Association (Qld), inspected the work as rectified.[27] Mr Appleby concluded that it is doubtful that the specified number of coats of paint had been applied throughout the property. Further, he observed that the filler to the VJ panelling was very poor. In some cases, gaps had been overfilled and in others no filler had been used and paint had not spanned the gaps.
- [47]Unfortunately, Mr Appleby’s report did not address the items referred to in the complaint or the DTR.
Consideration
Scope of these proceedings
- [48]The scope of these proceedings is limited by the legislation. The only questions to be determined in these proceedings are:
- whether there is any defective work the subject of the complaint which has not already been the subject of the DTR; and if so
- whether it would be unfair to direct the painter to rectify that work.
- [49]There can be no doubt that the quality of the work performed by the painter was poor. There is a wealth of evidence pointing to that conclusion. Mr Keep says so. Mr Kirby thought that a lot of the paint work had not been done in accordance with the code.[28] The DTR was issued. By attending to rectify the defective work described in the DTR, the painter conceded as much.
- [50]These proceedings are not about the painter’s obligations under the contract. While it is no easy task to prepare and paint a Queenslander that is over 100 years old that features interior VJ walls and ceilings, double hung sash windows, breezeway windows above doors, French doors and exterior chamferboards, that is the task that the painter took on. The owners may have legitimate claims for breach of contract against the painter, e.g., using the wrong colour or type of paint or not properly preparing the surfaces or not applying three coats of paint, but such claims are not the subject of these proceedings. The painter is not a party to these proceedings. These proceedings are administrative review proceedings concerned with reviewing the decision of the Commission not to direct rectification of certain items the subject of the complaint.
- [51]Nor are these proceedings about the quality of the rectification work undertaken by the painter. Although the Commission’s decision that rectification undertaken at the direction of the Commission was of a satisfactory standard, is capable of review[29] the owners did not file an application for such a review.
- [52]In these proceedings the tribunal stands in the shoes of the Commission. Just as the Commission was required to do, so too must the tribunal consider the objects of the QBCC Act to achieve a reasonable balance between the interests of building contractors and consumers.
Defects identified as ‘everywhere’ in the complaint
- [53]The Commission has a detailed complaint form on its website designed to assist consumers to provide details of the building work the consumer considers to be defective. The contents of the owners’ complaint form was the subject of considerable scrutiny in these proceedings. The Commission argues that it was insufficiently detailed to meet the requirements of section 71J. The requirement for sufficient detail serves two purposes: to direct a contractor’s attention to the items of complaint and to provide a list of defects which can be used by the Commission’s inspector when undertaking the site inspection.
- [54]In cross-examination Mr Keep acknowledged that the Complaint Form states:
It’s important that you tell us about every item when filling out this form. Only items listed on this form will be considered.
List every item individually…
- [55]He explained that he used the word ‘everywhere’ in items 8, 17 and 18 of his complaint because when he walked into every single room, he saw cracks and gaps. He said that he could have prepared a spreadsheet with thousands of line items or he could have said ‘everywhere’, as he did.
- [56]In his statement Mr Kirby explained that the Commission’s process is that an assessment officer reviews the complaint form and clarifies items where the description is too vague.[30] In giving his oral evidence he observed that in this case the assessment officer missed what subsequently became the most significant issue in these proceedings: the use of the word ‘everywhere’ to describe the location of defects.
- [57]The Commission’s role is not that of an auditor.[31] However, nor is a consumer obliged to prepare a detailed spreadsheet identifying every gap.
- [58]Mr Kirby explained that his usual practice at an inspection, if a complaint item is too vague, is to ask the consumer to clarify and to show him the specific work the subject of the complaint.[32] He followed that practice in this case. In cross-examination he said that it was not necessary for the owner to identify every gap or crack between boards in a wall, it was sufficient for the purpose of his inspection for the owner to identify the room and then the wall within the room. I am satisfied that Mr Keep was offered the opportunity to direct Mr Kirby to portions of any room that he thought showed defective workmanship. As is clear from the inspection report, Mr Kirby did not always agree that areas pointed out by Mr Keep were defective.
- [59]I note Mr Appleby’s opinion that ‘it is not beyond reason to expect that the house will require a full repaint’.[33] While he is qualified to express that opinion, his focus was on the interests of the owners taking account of the amount of money they had paid for the work. Mr Kirby was obliged to focus on achieving a reasonable balance between the interests of the painter and the owners. The result was the experts were like ships passing in the night. The consequence is that, standing in the shoes of the Commission as I must, I find Mr Appleby’s opinion of little assistance.
- [60]It would not be fair to the painter to direct him to rectify ‘everywhere’. The recipient of a direction needs to know where their work has fallen below the required standard and where to direct their efforts of rectification. In the case of painting defects that should be by reference to the room in the house and relevant surface requiring rectification.
Defects not identified in the complaint
- [61]The Commission argues that if the complaint does not make specific reference to an alleged defect, it is beyond the power of the tribunal to include that defect in a direction to rectify. This argument is based on ensuring fairness to the potential recipient of the direction. While it may be the case that in some circumstances this is a valid argument, it does not apply in this case. In some cases, although the indicia of underlying defects are visible, e.g., cracks in concrete or cracks in walls, the defect which causes the crack is not visible. This is not such a case. The defects in the painting resulting from poor preparation or poor workmanship were visible.
- [62]The painter was given comprehensive notice of the owners’ complaints by the owners, first on 28 June 2022[34] and further on 19 February 2023.[35] The Commission also provided a list of complaint items with the invitation to attend the inspection.[36] The painter was present during the inspection on 20 March 2023 when Mr Keep directed Mr Kirby’s attention to the work about which he complained. I will deal with each of the items in the agreed list of issues.[37]
- [63]The decisions referred to by the solicitor for the Commission are each distinguishable:
- Chelbrooke Homes Pty Ltd v Queensland Building and Construction Commission[38] was a case in which the Commission included matters in its direction which had not been the subject of any complaint by the homeowners where rectification could have caused other issues for the homeowners;
- Hall v Queensland Building and Construction Commission[39] was an application in which the Commission’s argument, that the Direction to Rectify necessarily defined the scope of the tribunal’s power to review the Scope of Works issued after the contractor had failed to rectify the work as directed, was rejected;
- Interlink Developments Pty Ltd v Queensland Building and Construction Commission[40] deals with how the tribunal should deal with an application to review directions to rectify in circumstances in which those defects had been rectified after the period for rectification had elapsed.
Cracks on walls/ceilings in the main bedroom and windows above French doors do not open (Item 1)
- [64]The painter was directed to rectify the walls in the main bedroom and the window over the French door that was stuck. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [65]The only issue is whether the painter should be directed to rectify cracks in the ceiling in the main bedroom. The only specific reference in the evidence to cracks in the ceiling in the main bedroom came from Mr Kirby who said that he did not observe defective building work on the ceiling lining. Absent specific evidence of cracks in the ceiling in the main bedroom there is no basis for a direction to be given.
En-suite (Item 2)
- [66]The painter was directed to rectify the ceiling and cornice above the shower in the en-suite. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [67]The only issue is whether the painter should be directed to rectify cracks on the walls and ceiling in the en-suite. Absent specific evidence of the location of any cracks on the walls and ceiling not addressed in the DTR there is no basis for a direction to be given.
Cracks and gaps in the walk-in robe walls and ceiling (Item 3 and Item 20)
- [68]The painter was directed to rectify gaps in the walls and ceiling linings of the walk-in robe. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [69]There is no issue to be addressed.
Living room (Item 4)
- [70]The painter was directed to rectify gaps and cracks in the wall lining and skirting boards in the living room. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [71]There is no issue to be addressed.
Kitchen (Item 5)
- [72]The painter was directed to rectify gaps and cracks in the ceiling lining in the kitchen. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [73]The owners also complain about incomplete paintwork on the windows. That complaint was not listed on the complaint form. Mr Keep attached photos of the poorly painted kitchen windows to his statement.[41] There is no evidence that this defect was brought to the attention of Mr Kirby or the painter at the inspection. It would not be fair to the painter to give a direction to rectify a defect that was not identified in the complaint or during the course of the inspection.
Linen cupboard/ walkway (Item 6)
- [74]The painter was directed to rectify gaps to the VJ wall lining in the linen cupboard/ walkway. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
- [75]The owners also complain of peeling paint on the inside of the cupboards. Mr Kirby did not recall being directed to the inside of the cupboards. However, he said that having looked at the photographs produced by Mr Keep[42] the defective work was covered by the DTR. I am satisfied that as the direction identified the unsatisfactory appearance of the wall it was sufficient to cover peeling paint as well as gaps.
- [76]The owners also complain about incomplete paint on the window frame above the French doors. At the time the complaint was made the window above the French doors did not open because it had been painted shut. By the time of the inspection Mr Keep had used a knife to open the window which had been painted shut. Mr Kirby said that he did not give a direction regarding the window as the defect complained of no longer existed as the window was open at the time of the inspection. Mr Keep provided photographs of the opened window.[43] It is obvious from the photographs that before the window was painted shut the frame had not been painted. The work is defective. I reject the Commission’s submission that a direction should not be given because the complaint item refers to the window being painted shut, not to incomplete paint on the windows above the French doors. The painter should have been directed to rectify the painting of the window frame as the defect was visible at the time of the inspection.
The front entry steps (Item 7)
- [77]The owners complain about the paintwork on the front stairs. The issue is not whether the work is defective: Mr Kirby and Mr Appleby both say it is and Mr Keep’s evidence that during the inspection the painter offered to repaint the front steps supports an implication that the painter thought it was defective. The issue is whether the painter should be directed to rectify the defective painting work on the front entry steps.
- [78]Despite observing that there was paint missing from the centre area of the bottom three front entry steps at the time of the inspection, Mr Kirby concluded there was insufficient evidence to reveal any obvious defective construction practices by the painter. However, Mr Keep stated that, as instructed by the painters, the owners stayed off the front stairs for 7 days.[44] He says that the bubbling started after those 7 days had elapsed.
- [79]Mr Kirby stated that in his experience inadequate preparation would have resulted in more widespread bubbling than just in the centre high traffic areas.[45] There is evidence of inadequate preparation on the front stairs in other locations. As well as the bubbled paint in the centre area of front entry steps there are also gaps and bubbles where the tread met the stringer seen in a photograph supplied by the owners.[46] Mr Kirby says there was no evidence that the painter did the work in this area, it may have been pre-existing. If that is so, then the pre-existing failing paintwork should have been removed before the steps were re-painted.
- [80]I accept Mr Keep’s evidence that the owners stayed off the front stairs for 7 days as directed. Given the generally poor quality of the workmanship at the front stairs in particular, I conclude that the blistering was more likely attributable to poor workmanship than to the steps having been walked on too soon. The painter should have been directed to rectify the paintwork on the front stairs.
Incomplete paintwork outside the kitchen window (Item 7)
- [81]The internal reviewer decided that a direction should be given to address the incomplete paintwork to the kitchen windows. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
Gap fill cracks in all rooms around the house (Item 8)
- [82]Mr Kirby stated that when item 8 of the complaint was reached, he told Mr Keep that the description ‘everywhere’ was too general and asked for clarification which specific rooms were complained about. Mr Kirby asked whether he could say that the issue had already been addressed in the rooms already inspected and Mr Keep responded in the affirmative.[47] Mr Kirby proceeded on the basis that the issues itemised in items 1 to 6 were the details of the location of the concerns that the cracks were ‘everywhere’.
- [83]Mr Keep states that he told Mr Kirby that he wanted the whole house inspected and that the painter should be directed to rectify every crack in every room of the house.[48]
- [84]The issue to be resolved is whether a direction should be issued requiring the entire interior of the house to be repainted following preparation by attending to gaps. In order to do so it would be necessary for me to form an opinion that none of the internal painting complied with applicable Australian Standards (in particular AS 2311 – Guide to Painting of Buildings) or the Commission’s Standards and Tolerances Guide. I do not have sufficient evidence to allow me to reach that conclusion. Mr Kirby, the only witness who testified who was qualified to express an opinion on the quality of the work did not reach that conclusion. Mr Keep is not qualified to express such an opinion and Mr Appleby’s conclusion does not go that far.
Gap fill VJ walls and ceiling junction in the laundry (Item 10)
- [85]The painter was directed to rectify gaps to the VJ walls and ceiling junction in the laundry. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
Paint finish to the top architraves on the door surrounds in the entry hallway (Item 11)
- [86]The painter was directed to rectify the paint finish to the top architraves on the door surrounds in the entry hallway. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
Gaps and cracks on the walls in the walkway (Item 11)
- [87]Mr Kirby did not see any cracks in the walls of the hallway. However, at the hearing the Commission conceded that the photograph provided by Mr Keep with his statement shows a crack on the front wall above the entry door.[49] The Commission conceded that the painter should have been directed to rectify the crack on the front wall above the entry door.
Paintwork on the front door (Item 11? Item 17?)
- [88]The Commission submits that the complaint did not refer to paintwork on the front door and hence this issue cannot be the subject of these proceedings. Mr Keep says that during the inspection Mr Kirby made comments about the poor condition of the front door and that he thought it would be covered in item 11 of the DTR.
- [89]There is no specific reference to the front door in the complaint, although one of the photographs provided by Mr Keep on 20 March 2023 shows the poor paintwork on the front door.[50] In cross-examination when asked to comment on the photograph of the front door taken by Mr Appleby, Mr Kirby noted that the work was defective.
- [90]If the defect in the painting of the front door falls within the ‘everywhere’ claim, I do not have sufficient evidence to allow me to reach the conclusion that a direction should have been issued. However, given the concession made by the Commission based on photographic evidence, not Mr Kirby’s observations, regarding the crack on the front wall above the entry door, I cannot see any reason that the Commission should not have included rectification of the poor paintwork on the front door.
Paintwork on the doorway to the main bedroom (Item 1? Item 11?)
- [91]The Commission submits that the complaint does not refer to paintwork on the doorway to the main bedroom and hence this issue cannot be the subject of these proceedings. Mr Keep says that it was included in either item 1 or item 11. Neither item 1 nor item 11 in the complaint expressly refer to the doorway to the main bedroom.
- [92]However, Mr Keep had provided photographic evidence of the poor finish to the door of the main bedroom with his complaint.[51] Given the Commission’s concession about the crack on the front wall above the entry door based on a photograph supplied with the complaint, not Mr Kirby’s observations, it would be inconsistent not to conclude that the direction should have included reference to the poor finish to the door of the main bedroom.
Paintwork on the walls and ceiling of the basement (Item 12)
- [93]The owners complained about gaps and incomplete paintwork in the basement. At the commencement of the hearing the Commission conceded that the painter should have been directed to rectify the paintwork on the underside of the floor above and the walls in the basement.
Paintwork on the hardwood bearers in the basement (Item 12)
- [94]The internal reviewer decided that a direction should have been given to address the incomplete painting of the hardwood bearers in the basement. The painter carried out rectification work. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
Windows above the French doors painted shut (Item 16)
- [95]The painter was directed to rectify the breezeway window that had been painted shut. The painter carried out rectification work. The owners’ argument that the rectification was not well done is not the subject of these proceedings.
Support beams to the rear deck (Item 17?)
- [96]In Mr Keep’s statement made on 20 March 2023 a complaint is made about severe cracking around the support beams to the rear deck. The Commission submits that the complaint does not refer to paintwork on the support beams to the rear deck and hence this issue cannot be the subject of these proceedings.
- [97]There is no specific reference to the rear deck support beams in the complaint, nor was there a photograph of the area. There was no evidence that Mr Kirby’s attention was directed to the support beams to the rear deck. In the circumstances, I am not satisfied that the direction should have included reference to the rear deck support beams.
Paintwork on the top of the skirting boards of the entire internal house (Item 17?)
- [98]In Mr Keep’s statement made on 20 March 2023 a complaint is made about cracking at the top of all skirting boards. The Commission submits that the complaint does not refer to cracking at the top of all skirting boards and hence this issue cannot be the subject of these proceedings.
- [99]There is no specific reference to cracking at the top of all skirting boards in the complaint. There is no evidence that Mr Kirby was directed to cracking at the top of skirting boards in every room of the house. In his statement Mr Keep concedes that some of the cracks were very small. In the circumstances, I am not satisfied that the direction should have included reference to cracking at the top of all skirting boards.
Paintwork on the VJ sheeting in the patio downstairs (Item 7? Item 17?)
- [100]Mr Keep refers to cracks near the VJ sheeting in his statement filed 7 March 2024.[52] In his statement in reply Mr Keep did not challenge Mr Kirby’s assumption that the complaint was covered by DTR 7.
Poor preparation (Item 17)
- [101]The owners claim that poor preparation contributed to all the issues complained about. This is a slightly different claim from the claim about gaps and cracks being visible ‘everywhere’. Poor preparation cannot be visible at an inspection, but the effects of it will be. Logically a direction to rectify can only relate to observed effects of poor preparation. Accordingly, this item of complaint has already been addressed.
Not painting 3 coats of paint (Item 17)
- [102]The owners claim that the painter did not apply three coats of paint. This is a contractual matter which is not the subject of these proceedings.
Discolouring of skirting boards (Item 19)
- [103]The owners complained that the skirting boards in the downstairs bathroom and laundry were not white. Mr Kirby inspected them and formed the opinion that the issues appeared to be caused by moisture, not painting defects. This item was not the subject of the internal review application.
- [104]It appears that the issue relates to the colour of the skirting boards which is a contractual matter which is not the subject of these proceedings.
Would it be fair to amend the direction?
Achieving a balance between the interests of the consumer and the painter
- [105]There is no doubt that the decision to issue a direction to rectify involves the exercise of a broad discretion.[53]
- [106]Throughout this decision I have identified work that the Commission has conceded should have been the subject of a direction and work that I found should have been the subject of a direction in the following locations:
- on the front door;
- on the window above the French door in the linen cupboard/ walkway;
- above the entry door;
- on the walls in the walkway;
- on the door of the main bedroom;
- on the front stairs; and
- on the underside of the floor above and the walls in the basement.
- [107]If the painter is directed to rectify that defective work, given that Mr Keep remains ‘totally unsatisfied with all the works’, I have no doubt that the owners would not be satisfied with the result.
- [108]The relationship between the painter and the owners had broken down before the owners complained to the Commission. The painter did not want to return; he offered the owners ten thousand dollars rather than return. When the DTR was issued, the owners did not want to allow the painter to return to address the defects, however they did so on the advice of the Commission. They are not satisfied with the result. When the owners filed this application, they made it clear that they did not want the painter to rectify the defects; they wanted the house to be repainted by another painter. As explained above, the tribunal has no power to direct that the house be repainted by another painter.
- [109]If the Commission’s decision was varied to direct the rectification of defective work conceded by the Commission as being required, and to direct the rectification of work I have found should have been included in the direction, it will not achieve the outcome desired by the owners. The entire house will not be re-painted by another painter.
- [110]Standing in the shoes of the Commission, taking account of the object of the QBCC Act to achieve a reasonable balance between the interests of the owners and the painter, I have decided that it is not in the interest of either the painter or the owners to force either of them into a situation that will produce a result that would be unsatisfactory to both of them.
- [111]As the painter has rectified the work which was the subject of the direction to the satisfaction of the Commission there is no utility in confirming the original direction. Nor is there any utility in amending the DTR as it would not be in the interest of either the painter or the owners.
Footnotes
[1] QBCC Act s 3.
[2] Ibid s 71J(1).
[3] Ibid s 71J(3).
[4] Ibid s 72.
[5] Hearing book, p. 41-45.
[6] Ibid p. 196-255.
[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 24.
[8] Hearing book tab 2.
[9] Ibid tab 4.
[10] Ibid tab 6.
[11] Ibid tab 15.
[12] Ibid tab 3.
[13] Ibid tab 5.
[14] Ibid tab 14.
[15] Ibid p. 291.
[16] Ibid p. 62-74.
[17] Ibid p. 90.
[18] Ibid p. 97.
[19] Ibid p. 127-128.
[20] Ibid p. 429 [21(d)].
[21] Ibid p. 136.
[22] Ibid p. 160-163.
[23] Ibid p. 168.
[24] Ibid p. 174 – 182.
[25] Ibid p. 183.
[26] Ibid p.394 – 403.
[27] Ibid p 405-422.
[28] Ibid p. 441 [136].
[29] QBCC Act s 86(1)(f).
[30] Hearing book p. 426 [16(b)].
[31] Shilleto v Queensland Building and Construction Commission [2024] QCAT 137, [18].
[32] Hearing book p 429 [21(d)].
[33] Ibid p. 419.
[34] Ibid p. 291.
[35] Ibid p. 95.
[36] Ibid p. 123-128.
[37] Ibid tab 6.
[38] [2022] QCAT 83.
[39] [2020] QCAT 379.
[40] [2020] QCAT 480.
[41] Hearing book p. 312-314.
[42] Ibid p. 307.
[43] Ibid p. 314.
[44] Ibid p. 278.
[45] Ibid p. 456.
[46] Ibid p. 309.
[47] Ibid p. 437 [85].
[48] Ibid p. 759.
[49] Ibid p. 308.
[50] Ibid p. 102.
[51] Ibid p. 98.
[52] Ibid p. 279.
[53] Rosecove v Queensland Building and Construction Commission [2023] QCAT 101.