Bridge v Queensland Building and Construction Commission
[2025] QCAT 219
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- Unreported Judgment
- Bridge v Queensland Building and Construction Commission[2025] QCAT 219
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Bridge v Queensland Building and Construction Commission[2025] QCAT 219
Bridge v Queensland Building and Construction Commission[2025] QCAT 219
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Bridge v Queensland Building and Construction Commission & Anor [2025] QCAT 219 |
PARTIES: | Elizabeth BridGe (applicant) v Queensland Building and Construction Commission (first respondent) and Geoffrey Douglas Rewald (second respondent) |
APPLICATION NO/S: | GAR430-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 5 June 2025 |
HEARING DATE: | 19 February 2025 20 February 2025 |
HEARD AT: | Townsville |
DECISION OF: | Member Taylor |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – a homeowner sought review of a decision of the Queensland Building and Construction Commission not to direct rectification of building work – the homeowner was subject to water ingress through a bank of windows in her house – the homeowner contracted a building company to remedy the water ingress problem – the water ingress problem continued after the building work was done – the building contractor went into liquidation – the home-owner made a complaint to the Queensland Building and Construction Commission asserting defective work in the remedial work undertaken by the building contractor – the Queensland Building and Construction Commission inspected the works but was unable to replicate the water ingress during the inspection – the Queensland Building and Construction Commission then decided, in the absence of being able to identify the defect by way of observing water ingress, that the work was not defective and so would not issue a direction to rectify and closed its file – whether the Queensland Building and Construction Commission should have maintained its file open awaiting further adverse weather events to inspect any water ingress occurring at that time – whether the Queensland Building and Construction Commission should have directed an invasive investigation to be carried out to ascertain the existence of any defective work causing or permitting water ingress – where the investigation performed in response to the complaint was inadequate – where the decision was remitted to the Queensland Building and Construction Commission for further consideration with directions Queensland Building and Construction Commission Act 1991(Qld), s 3, s 31(2)(b), s 71I, s 71J, s 72, s 86(1), s 86A, s 86C, s 86E, Schedule 1 s 76, Queensland Civil and Administrative Act 2009 (Qld) s 17, s 20, s 21(2)(a), s 24 Henderson v Queensland (2014) 255 CLR 1 Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 Murphy v QBCC [2024] QCATA 27 QBCC ‘Rectification of Building Work Policy’ |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
First Respondent: | Counsel - Mr W.D. Evans Solicitor – QBCC In-house legal |
Second Respondent: | Self-represented |
REASONS FOR DECISION
Overview
- [1]The applicant (Mrs Bridge) owns a house on Castle Hill in Townsville. It is elevated and so exposed to the effects of adverse weather conditions. One side of her house contains a bank of windows which provides her with views from that elevated position, but because of its elevation it is at the mercy of those adverse weather conditions.
- [2]For many years, during such adverse weather conditions, she had been experiencing water ingress in the vicinity of these windows. She contracted RRR Civil Pty Ltd (RRR), a building contractor, to remedy this water ingress problem. The second respondent (Mr Rewald) was the nominee of RRR for the purposes of s 31(2)(b) of the Queensland Building and Construction Commission Act 1991(Qld). (the QBCC Act)
- [3]RRR performed the work. Mr Rewald supervised the work. The water ingress did not abate, rather as reported by Mrs Bridge it got worse. Attempts were made by RRR and Mr Rewald to remedy the problem, but to no avail. Later RRR went into liquidation and thus nothing further was done.
- [4]Mrs Bridge raised a complaint to the first respondent (the QBCC) about the continued water ingress. She asserted that RRR’s work was defective given it did not fix the problem. The QBCC investigated the complaint by way of its inspector merely spraying water on to one part of the windows. He was not able to replicate the ingress and so, notwithstanding the several photographs Mrs Bridge had of the water ingress, his decision was that because he could not identify that the work was defective, he would not issue a direction to rectify.
- [5]Mrs Bridge sought internal review of that decision. On internal review the QBCC confirmed the original decision on the basis it was said there was insufficient evidence to determine the complaint fell within the definition of defective building works carried out by RRR.
- [6]Mrs Bridge applied to this Tribunal for external review of that internal review decision.
- [7]She succeeds in part on that application. For the reasons I discuss herein, having considered the evidence as it was put before me in the hearing, whilst I could not reach the conclusion that a direction to rectify should issue, I formed the view that the QBCC’s decision was flawed, that flaw having its genesis in the original investigation the results of which were effectively adopted in its internal review. In my opinion that investigation was entirely inadequate to determine the existence or non-existence of defects in the work performed by RRR under the supervision of Mr Rewald. To the extent the information was before the QBCC, whilst it was correct that such was insufficient to determine the complaint fell within the definition of defective building works carried out by RRR, it was equally insufficient to determine that it fell outside the definition of defective work to then reach a conclusion that a direction to rectify should not issue.
- [8]QBCC’s internal review decision-maker made a leap too far. The evidence presented in terms of the subject of the complaint did not go far enough to be able to rule out issuing a direction to rectify. More investigation must be performed. For this reason, the decision under review was returned to the QBCC for reconsideration together with directions I considered appropriate.
Relevant Facts and Circumstances[1]
- [9]In or around July 2020, Mrs Bridge contracted with RRR, as contractor, for it to perform certain building works for her, as owner, on her house situated on Castle Hill in Townsville. As described by Mrs Bridge, that building work was to “rectify window area water penetration in my home”.[2] The contract price was $35,970.00 (the Contract)
- [10]In the preamble to its quote, which is the only document evidencing the Contract, RRR described it in this way:[3]
Investigation was undertaken at the property in relation to the existing front facing windows allowing water ingress during events of heavy or wind driven precipitation. The client has given an overview of the symptoms experienced during these events and shown the resultant damage caused to window reveals, skirting and time to the internal areas of the house. … This quotation has been compiled with the most complete and accurate scope of works required in assessing and resolving the issues that have been identified on ground level, level one, and level two, respectively.
- [11]It continued within its quote providing a detailed description of the work to be performed as ‘remedial works’ in terms of each of the following categories of work items:[4]
Sealant removal: All front levels + left windows.
External sealing: All front levels + left windows.
Window sill mechanical rubber seal: All front levels + left windows.
Sealant Application to installed mechanical seals: All front levels + left windows.
Surface preparation for coating installation: (…. all windowsills … external walls …).
Surface protective coating Duluxe (sic) external primer: (Entire window sill areas ….).
Top Coating. Dulux External Wash and Wear: (Installation of … external paint to the building window sills including all trims).
Removal of existing double glazed window.
Window penetration water proofing.
Supply and installation of new single pane window.
- [12]The second respondent (Mr Rewald) was RRR’s Nominee under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act).
- [13]RRR performed work under the Contract in July and August 2020. Mr Rewald supervised that work. It was common ground in this proceeding that the completion date of the work was 1 September 2020.
- [14]In December 2020, and in January and February 2021, Mrs Bridge observed water ingress into her house through the work which had been performed by RRR, in response to which RRR performed some remedial work.[5]
- [15]In September 2021 RRR’s licenced under the QBBC Act was cancelled, it going into liquidation in October 2021. This resulted in Mr Rewald’s licence under the QBCC Act also being cancelled.
- [16]In May 2022 Mrs Bridge continued to observe water ingress. She believed that the work undertaken by RRR did not fix the problem.
- [17]
…RRR… was engaged by me to carry out repair work at my home …
The scope of works included, to rectify water ingress problems that occur when we experience heavy storms or cyclonic conditions. …
…
… the builders have failed to “rectify the problems”, in fact they have made matters worse as, prior to my contracting with them, water ingress would only occur as explained above. Now we have a situation where water is coming through when its just heavy rain and not necessarily that windy. The builders were called back on numerous occasions to fix the problems, but they have failed miserably. In an Unusually (sic) rainy April and May this year, it became very clear that the ingress problem had not been fixed and may have deteriorated further. …
I have paid RRR a considerable amount of money to achieve very little as they have failed to rectify water ingress which was the whole purpose of engaging them.
- [18]
- [19]Mrs Bridge sought internal review of the Original Decision. On 21 September 2022, the QBCC issued its decision on that review, upholding the Original Decision, it being said to be based on a comment by its Principal Technical Officer for internal review that:[10] (the Internal Review Decision)
… there is insufficient evidence to determine this complaint item falls within the definition of defective building works carried out by RRR …
- [20]On 18 October 2022, Mrs Bridge applied to this Tribunal for a review of the Internal Review Decision.
- [21]It was against this background that the proceeding came before me for hearing.
The Issues
- [22]Put simply, there are only two issues arising in this proceeding, namely:
- Is the work performed by RRR under the Contract defective?
- If yes, should Mr Rewald be directed to rectify it?
Relevant Law
The QBCC Act
- [23]The starting blocks are found in the QBCC Act, and the objects of that legislation being as laid out in s 3 therein, namely as relevant to this proceeding:
- 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
- [24]Under s 71J of the QBCC Act, a consumer may ask the QBCC to give a direction to rectify building work the consumer considers to be defective. The term ‘defective’ is defined in Schedule 2 of that Act to mean:
in relation to building work, includes faulty or unsatisfactory.
- [25]The QBCC is then in turn empowered under s 72 of the QBCC Act, if it is of the opinion that inter-alia building work is defective, to direct the person who carried out the building work to rectify the defective building work. As is relevant in this proceeding, under s 71I(m) of the QBCC Act Mr Rewald is such a person.
- [26]Under s 72(3) of the QBCC Act, in deciding whether to give the direction, the QBCC may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the building work. In addition, s 72(5) of the Act provides that 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.
Rectification of Building Work and Remediation of Consequential Damage
- [27]Since June 2014, as provided for in the QBCC Act the QBCC has published a ‘Rectification of Building Work Policy’.[11] Relevantly, that policy contains the following references:
- Rectification of defective building work
- It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to carry out that work.
…
- …
- Notification of defects
- It is a policy of the Board that if a consumer is seeking the assistance of the Queensland Building and Construction Commission (QBCC) to issue a direction to a building contractor to rectify defective building work, the consumer must lodge a formal complaint with the QBCC of defective building work as soon as possible but no later than within 12 months of becoming aware of the defects.
- The QBCC will then consider the issuing of direction to rectify to a building contractor:
a. for structural defective building work, within 6 years and 3 months of the building work being completed; or
b. …
- …
- Definitions
In this policy -
Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that:
a. does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard;
b. ….
Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:
- …
- adversely affects the health or safety of persons residing in or occupying a building;
- adversely affects the functional use of a building;
- allows water penetration into a building.
This Tribunal’s jurisdiction and the Respondent’s role in this proceeding
- [28]This Tribunal is empowered with a review jurisdiction conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that enabling Act. Such arises under s 17 of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).
- [29]As is relevant in this proceeding, the enabling Act is the QBCC Act. A decision by the QBCC not to give a direction to rectify is a reviewable decision under the QBCC Act. It may be the subject of an internal review by the QBCC or an external review by this Tribunal, the former also able to be the subject of external review to this Tribunal.[12]
- [30]The extent to which this Tribunal may in turn grant relief is then governed by the provisions of Chapter 2 Division 3 of the QCAT Act, more particularly s 20 and s 24(1) therein. Such require this Tribunal to hear and decide a review by way of a fresh hearing on the merits for the purposes of producing the correct and preferable decision by doing one of the following:
- confirming or amending the decision;
- setting aside the decision and substituting its own decision; or
- setting aside the decision and returning the matter for reconsideration by the decision-maker, together with directions (if any) the Tribunal considers appropriate.
- [31]In doing so the Tribunal has all the functions of the decision-maker in terms of the decision to be made. It is not necessary for the Tribunal to consider whether the respondent’s decision-maker had made an error in making the decision under review, rather the focus was on the cogency of the applicant’s case as presented in the hearing.
- [32]A review hearing is not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time, it is not an inquisitorial process such that requires the Tribunal to delve into the detail. The ultimate decision the Tribunal is required to make must turn on the material presented to it in a hearing, both documentary and oral. In that regard, the respondent was not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role is to use its best endeavours to help the Tribunal in making its decision on the review.
The Evidence
From Mrs Bridge
- [33]The documentary evidence from Mrs Bridge was extensive. She tendered three statements, an ‘opening statement’, and a bundle of documents and photos.[13] It was prolix, in many instances somewhat repetitive. It was not necessary for me to lay it out in detail within these reasons, it being sufficient to summarise it in the following manner:
- There was a substantial number of photographs showing inter-alia what on its face appeared to be sealant work around windows, and water ingress in the vicinity of the windows and walls, those windows being that which was the subject of the works performed by RRR under the Contract.
- She stated therein:[14]
These photos should prove to all parties that a problem does exist.
What is concerning about this matter, is that the QBCC has apparently chosen to totally ignore this evidence which was forwarded to it at the outset.
HOWEVER, More of concern is that the QBCC seems to have totally ignored or overlooked the fact that the builder RRR was engaged for the SOLE PURPOSE of locating the source of water ingress whatever the cause, (i.e.: around the sill area) and to rectify whatever was necessary.
- In terms of that last comment, Mrs Bridge also made this statement later therein:[15]
The builder prepared a quotation / scope of works which I agreed to, not because I understood it, I am not a builder, but because the builder assured me that the scope of works was necessary to achieve the required result of leakage prevention. It failed to do this. It didn’t do what it was supposed to do. It was not fit for purpose. It was defective.
Clearly, as I still have water penetration, either the remedial works undertaken under the scope of works were defective, or the builder wrongly assessed the scope of works necessary to do the job, with the result that the scope of works were inadequate to achieve the required result. If QBCC insists that the works undertaken were not defective, then the scope of works must have been inadequate. They didn’t address what needed to be address. They didn’t do what they were intended to do. They were defective.
This is the inescapable truth, it must be one or the other or both, and if the scope of works is inadequate or ineffective or defective, them, as the scope of works determines what remedial works are undertaken, it follows that those remedial works will be inadequate or defective. …
- [34]Mrs Bridge was cross-examined by the QBCC’s Counsel at the hearing. It was extensive. Much of it went beyond that which was necessary for the purposes of me addressing the issues as I noted them earlier herein, and accordingly I identified here that which I considered to be the relevant probative parts thereof.
- [35]In response to questions posed of her, Mrs Bridge stated the following:
- Water ingress had been a problem for a while, commencing approximately two (2) years after she purchased the house, however then it was minor but increasing since;
- Since RRR’s involvement the water ingress had become worse;
- When Mr Auditore from the QBCC attended to carry out his inspection following her complaint to the QBCC, the focus was on only one location in the window bank; and
- She accepted that the water testing Mr Auditore carried out during his inspection could not replicate a leak during rain.
- [36]When asked whether she accepted that the QBCC cannot direct rectification of a defect if it could not identify the defect, her answer was:[16]
No – this will require me to do invasive investigation.
- [37]Mrs Bridge was also cross-examined by Mr Rewald. There was nothing contained therein which I considered relevant to the issues I was being asked to decide.
- [38]Mrs Bridge did not present any other witnesses as part of her case.
From the QBCC
- [39]As it was required to do, the QBCC provided relevant material to this Tribunal, namely its ‘Statement of Reasons for the Decision’.[17] It also provided:
- a written statement by its inspector Mr Auditore, he being the inspector who performed the initial inspection and made the initial decision not to direct rectification;[18] and
- a written statement by its Mr Ferguson, who at the time of giving the statement was the Acting Principal Technical Officer within the QBCC’s Internal Review Unit, he being the person who undertook the internal review which was the foundation for the Internal Review Decision.[19]
Statement of Reasons
- [40]The ‘Statement of Reasons’ document was a compilation of relevant documents to which the QBCC’s decision-maker had regard, the primary ones being the report by each of Mr Auditore and Mr Ferguson, each of which were subsequently also covered in their respective statements. Save only for one part of that document, I did not see anything in the Statement of Reasons that needed to be extracted in these reasons, the relevant parts thereof coming from those respective statements and accompanying reports.
- [41]That one part was an audio recording made by Mr Auditore during his inspection. Having listened to the full recording I noted the following exchanges between he and Mrs Bridge which I considered to be relevant, such concerning what I understood to be a section of the windows that was not the subject of a water test by Mr Auditore:[20]
Mrs Bridge Is that switched on – I’m just going to put it on that other wall over here?
Mr Auditore Yeah Yeah – But these windows aren’t leaking on this side.
Mrs Bridge At this stage they haven’t but I’m terrified.
…
Mrs Bridge See on these ones he did do an extra piece that came up the wall.
Mr Auditore Oh Yeah.
Mrs Bridge See - all of the sealant is starting to break up. I’m terrified – I was hoping we would get a cyclone to test it ….
Mr Auditore Yeah to test it.
Mrs Bridge … because I have no idea as to whether these are going to stand up to it.
Peter Auditore
- [42]In his statement, Mr Auditore explained in detail what occurred during his inspection at Mrs Bridge’s house in response to the Complaint. He expressed these conclusions following that explanation:[21]
From my inspection and from what the Applicant had advised me, I could tell that the Contractor had removed the original windows and installed a sill flashing at the bottom of the windows and installed a metal angle serving as a drip rail along the top edge of the masonry above the windows. The original windows were then re-instated. The building work undertaken by the Contractor was compliant with all relevant Performance Requirements and/or Deemed to Satisfy Provision in that water has been prevented from entering the Property.
I did not issue a direction to rectify to the Contractor as there was insufficient evidence that the building work undertaken by the Contractor was defective. That is, I could not reasonably apportion responsibility to the Contractor as I could not rule out for instance produce (sic) failure (of the original window).
- [43]Accompanying his statement was a copy of his Initial Inspection Report. Therein the following appears in the Preamble to the Report:[22]
Method of Determination
When conducting an inspection, the QBCC Building Inspector will carry out a visual inspection only. This will involve visually observing each complaint item. Invasive investigations are not undertaken by the QBCC to determine the cause of an alleged defect. Examples of invasive investigations include cutting a hole in a wall to look at damage behind the wall. …
- [44]Mrs Bridge cross-examined Mr Auditore. There was only one aspect of that cross-examination which was of assistance to me in considering the issues in this proceeding. It was as follows:
Mrs Bridge You tested for only 20 minutes. Had more intense testing been done might leaks have shown up?
Mr Auditore It might have, but the question is – Is the work done building work and is it defective? – When I was there, there was no defective work. I used a hose, and I could not see anything.
- [45]Mr Rewald also cross-examined him. There was nothing arising out of that cross-examination which was of any assistance to me.
- [46]Following the completion of the cross-examination, I asked Mr Auditore some questions. The following is that short exchange:
Me You were told that the contractor removed and reinstalled the windows. Did you check compliance with weatherproofing of the windows under the 2019 National Construction Code?
Mr Auditore No – I did not check it.
Me Did you check if water was penetrating through the blockwork surrounding the windows?
Mr Auditore No – paint was not peeling.
- [47]I concluded my questions of Mr Auditore by referring him to the audio recording of his inspection, particularly the discussion between Mrs Bridges and him at approximately 39 minutes into the recording, which I extracted in paragraph [41] herein, wherein Mrs Bridge informed Mr Auditore of what she considered to be cracked sealant near the windows. I asked him if he inspected that sealant. He stated that he did not inspect it, and moreover he did not see it.
Stephen Ferguson
- [48]In his statement, Mr Ferguson explained that his consideration of the Complaint on internal review was nothing more than a desktop study of the original complaint material and Mr Auditore’s report. He made these statements therein:[23]
As noted in my IRU Desktop Report, a review of the scope of work found that the remedial building work consisted of generally removing the glazing seals and reinstalling new seals and sealant and resealing the junction between the glazing unit and masonry walls.
It is my opinion that regardless of the work carried out by the Contractor, in the circumstance, the original window units were leaking.
It is my opinion that only removing and reinstalling the glazing seals may not necessarily remedy any leaks to the window units in general.
I consider that the water ingress is most likely the result of a manufacturing issue in relation to the original window unit frame components.
It is my opinion that if the window seals were causing the leaking, in isolation of the aluminium components or window frame design, the water testing carried out by Mr Auditore would have most likely caused ingress to occur. …
There is insufficient evidence to determine the Complaint Items fall within the definition of defective works …
That is. I could not reasonably apportion responsibility to the Contractor as I could not rule out for instance product failure (of the original window). As such, a direction to rectify cannot be given to the Contractor (pursuant to section 72 of the QBCC Act).
- [49]Mr Ferguson was also cross-examined by Mrs Bridge, as well as by Mr Rewald. Save only for one aspect of it there was nothing contained therein that was of any assistance to me. That one aspect was a question by Mrs Bridge to which Mr Ferguson responded clarifying that his reference to ‘glazing seals’ was as to the seal that should be installed between the glass and the aluminium window frame. That was in reference to the first paragraph from his statement which I referred to in the last paragraph herein. With that having been clarified, the following short exchange between Mr Ferguson and me occurred:
Me Was this done?
Mr Ferguson I hope it is in the Auditore Report.
- [50]What then followed were a few more questions I had of Mr Ferguson related to the remainder of that which I extracted in that paragraph. The following is what I considered to be relevant and probative arising therefrom, during which in part Mrs Bridge interjected:
Me If the glazing seals to the existing windows were not removed and replaced would this give rise to some prospect of leaks?
Mr Ferguson Yes.
Me Are you saying the leaks are due to rotten seals?
Mr Ferguson Not just that – it could be many causes at different times.
Mrs Bridge You made a decision based on assumption – is that correct?
Mr Ferguson Always make decisions on many assumptions.
Me What facts was your decision based on?
Mr Ferguson Old windows.
Me It is a fact – the windows were removed and replaced.
Mr Ferguson Yes – I considered this, but I could not find any defective work.
Me Did you consider any issue with the use of sealants – Sikaflex and the like – in the work done?
Mr Ferguson I did not consider sealant issues?
Me If sealant work was cracked, could it be a contributing factor to leaks?
Mr Ferguson Yes – possible, but the caveat is what is the purpose of the seal – what is behind the seal.
From the Second Respondent
- [51]Mr Rewald also gave evidence in the hearing. It was a written statement by him. He also tendered without objection a written statement shown thereon to have been given by a Dion Hammond, an estimator in the employ of an aluminium glazing repair business.[24] None of that evidence was of any assistance to me.
- [52]Mr Rewald was cross-examined by Mr Evans for the QBCC, and by Mrs Bridge. There was only one aspect of it which I considered relevant and probative. It was when he was asked about the ‘glazing seals’, as that component of the windows was referred to by Mr Ferguson, to which he responded with this comment:
I did not replace these because the windows are too old. You cannot get replacements. I used a clear silicone over the entire gasket.
The Submissions
From the QBCC
- [53]The closing submissions given by Mr Evans were extensive. They had their foundation in a written ‘Outline of Submissions’ tendered,[25] which was supported by detailed oral argument.
- [54]As Mr Evans argued, the relevant point in time was that when the Internal Review Decision was made, namely 21 September 2022, such that the relevant question was whether the work in issue was defective at that time, and so whether a direction to rectify should have been issued then. He argued it was not permissible to consider any evidence which may have arisen since then which indicated the existence of defective work.[26]
- [55]He continued and submitted that there was little to no evidence about this, and at best it was mere speculation that work was defective. As to the existence of photographs relied on by Mrs Bridge to show water ingress, whilst he accepted on behalf of the QBCC that there was water ingress, he submitted that these photos had limited probative value absent any supporting independent expert opinion evidence. He argued that at its highest the evidence was that there was water ingress at the time of Mrs Bridge raising her complaint to the QBCC. But that is insufficient to establish that there was defective work. It would require inferential reasoning to get there.[27]
- [56]He said that there was limited evidence from which the inference could be drawn to reach the conclusion that there was defective work performed by RRR such as to reach a higher probability that the alternative should be rejected, namely the windows themselves were leaking.
- [57]Finally, as to the argument made by Mrs Bridge that the scope of works was defective because, if it was performed correctly, it did not fix the problem, he submitted it was not necessary to consider this. He said that even if there was evidence that the scope was defective, at best it could only lead to a direction to rectify the specification for the work, that being the ‘scope’ as it is written, not to do the work that would be added as specified in the remedied scope.
From Mr Rewald
- [58]Mr Rewald’s closing submission was short. He submitted that the evidence does not show the work was defective and he should not be subject to a direction to rectify.
From Mrs Bridge
- [59]Mrs Bridge’s closing was also short. In response to the submission for the QBCC that she did not have any evidence, her submission was:
The evidence is – I still have water ingress – therefore the work must be defective.
Discussion on the Contest
- [60]There cannot be any doubt on the evidence as it was before me that water ingress had been occurring into Mr Bridge’s house in the vicinity of the work performed by RRR. The QBCC accepted such in the closing oral argument presented by Mr Evans.
- [61]It is the presence of that water ingress, and the evidence of it, all existing at the time the Internal Review Decision was made, that is the relevant material. Any evidence which Mrs Bridge might have of water ingress post-dating that decision was not relevant to the issues which I was required to decide in this proceeding.[28]
- [62]The relevant question was thus whether this evidence established the existence of defective work by RRR. Mrs Bridge said it did. The QBCC said it did not.
- [63]In consideration of that question I identified a fundamental threshold issue arising from the evidence and submissions presented to me. That was the extent to which the QBCC had gone to identify the existence or non-existence of defective work. The extent to which it did go was entirely inadequate. The cogency of Mrs Bridge’s case satisfied me that to be so.
- [64]As I noted it in paragraph [35](c) herein, Mr Auditore inspected only one location in the window bank where he sprayed a hose onto it. However as I also noted it in paragraph [44] herein, he accepted under cross-examination that more intense testing might have shown up leaks, but yet he went on to say that the question was solely whether the work done was defective and because he could not see anything then it was not defective.
- [65]The question that arise from this is - what is the extent of ‘more intense’ testing that would have been required - was it merely a higher pressure of water testing or was it something more? If I was to follow what Mr Auditore stated is the QBCC policy, it being that invasive investigations are not undertaken by the QBCC to determine the cause of an alleged defect, then it could only be the former. But that is simply not enough.
- [66]Mr Auditore accepted that RRR had removed and reinstalled the windows. It seemed to me that such could have caused something to be done in the work that was not visible on the surface as he inspected it, and such which would only be visible by way of an invasive investigation. In the absence of further detailed investigation, he could not have determined in any way whether the reinstallation of the windows complied with the weatherproofing of the windows under the 2019 National Construction Code, it being something as I noted it in paragraph [46] herein he confirmed he did not check.
- [67]Such is surprising in the circumstances of a complaint about water ingress into a building in the vicinity of work in which windows were removed and replaced. As I noted it in paragraph [27] herein, under the QBCC’s Rectification of Building Work Policy, building work is defective if it does not comply with inter-alia the Building Code of Australia, it being the name by which the National Construction Code was known when this Policy was created. Thus, prima-facie the QBCC should have considered this and satisfied itself that the work did so comply before it concluded that no direction to rectify should be issued.
- [68]Also, as he admitted on questioning from me, nor did he check if water was penetrating through the blockwork surrounding the windows.
- [69]Those two facts alone, each being a failure by Mr Auditore and thus in turn the QBCC to have properly investigated the Complaint in circumstance where the issue was ‘water penetration into a building’, it being part of the definition of ‘structural defective building work’, leave open the question – how could the QBCC determine the work performed by RRR was defective or not defective in that circumstance when the compliance with the Code was never checked.
- [70]Additionally, Mr Auditore also confirmed that, notwithstanding Mrs Bridge had raised her concerns with him about the sealant that was starting to break up, and that she was ‘terrified’, which in the context of the conversation I infer was terrified about more leaks showing up in areas where it had not previously, he did not inspect the sealant, and moreover he did not even see it. He should have done so.
- [71]For these reasons, overall Mr Auditor’s investigation was flawed. He could not have properly reached the conclusion that the work was not defective given those flaws. Simply because he could not recreate a leak in the area where he tested the work, it should not have led to the conclusion that there was no defect in the work. Moreover, even if his water testing resulted in water ingress into the house, it of itself would not be sufficient for him to be able to identify defective work. More would have been required to identify what it was within the work that was defective – for example was it failed sealant, or was it a failed or absent requisite flashing, or was it some other failure to have reinstalled the windows in a manner that complied with the Code.
- [72]That flawed investigation then flowed through to Mr Ferguson’s desktop internal review which in turn infected the Internal Review Decision. But moreover, Mr Ferguson’s assessment was itself infected with another flaw. As I noted it in paragraph [48] herein, on his understanding of what the works were as performed by RRR it was to inter-alia remove and replace the glazing seals but, notwithstanding this, his opinion was that the original window units were leaking and merely removing and replacing these seals might not have been enough. That being so, what Mr Ferguson failed to properly identify was whether this work was done, and if not done what was done if anything in its place. When I asked him about this, his response was that he merely hoped it was covered by Mr Auditore in his report. That response was meaningless.
- [73]As the evidence subsequently showed, the glazing seals were not replaced and all that RRR did was to have placed a sealant (which Mr Rewald described as a clear silicone) over the top of the seals. Yet as Mr Ferguson confirmed on questioning from me, he did not consider the use of sealants in his desktop study, and he accepted that if sealants were cracked then this could be a contributing factor. But as Mr Auditore confirmed in his evidence, he did not inspect any sealant work, nor did he even see it. Whilst that discussion with him was not specifically directed to the use of a sealant, be it clear silicone or otherwise, over the top of the glazing seals but was more directed towards the use of sealant in general it was sufficient to inform me that this was one aspect of RRR’s work which was not considered by the QBCC at any time. Moreover, it is one aspect of the work that might be defective and so at the very least contributed to the water ingress which Mrs Bridge experienced and had identified to the QBCC.
- [74]In all respects, on the evidence as it was put before me, I simply could not accept the finding by the QBCC that there was no defect in the work and so no need to issue a direction to rectify, to be the correct one. The QBCC had not ruled out all possibilities. Moreover, it seemed to me that it could not rule out all possibilities without conducting an invasive investigation, one which at the very least could be done by removing and replacing at least one of the windows within the window bank to ascertain what was done behind the frame where it cannot be seen from a surface inspection. Such is a necessity to determine whether RRR’s work complied with the Code. The defective work might be hidden. As Mr Ferguson stated when asked about the sealant – part of his response was “what is behind the seal”.
- [75]It seemed to me that the QBCC’s position in not doing invasive investigations is to only identify defective work, from the manifestation of an event from which it may be said that work is defective, by way of an inspection on the ‘outside’ and not consider in any way that which may be hidden on the ‘inside’, and in turn leave it to a contractor who is directed to rectify that defect to carry out the invasive investigation so as to work out what had gone wrong and in turn what is required to be done to remedy it. Whilst that may be an acceptable approach when a contractor is still in business and viable in terms of having him/it perform such work, such is not an adequate approach to take in circumstances, such as occurred with Mrs Bridge, when the contractor is no longer in existence.
- [76]It also seemed to me the QBCC expects the homeowner to carry out such investigation to prove the existence of defective work. That is another flaw in the approach taken by the QBCC in response to the Complaint. Such an approach fails to ensure a reasonable balance between the interest of contractors and consumers. It is contrary to the objects of the QBCC Act. Moreover, where a contractor no longer exists, such being the case here concerning RRR, that balance is lost entirely where it is left to the homeowner, in this case Mrs Bridge, to carry out that invasive investigation. Such is an entirely inadequate and unacceptable position for the QBCC to take.
- [77]The QBCC should direct a relevant person to carry out that invasive investigation, namely a person who may be liable to a direction to rectify, or the QBCC should engage its own specialist contractor to carry out such work. Where the work in question is residential construction work covered by the Queensland Home Warranty Insurance such could be a cost met from insurance and then recovered from a relevant person where defective work is identified.
- [78]The evidence before this Tribunal is overwhelming that there is an unexplained issue with the work performed by RRR on Mrs Bridge’s house in purporting to fix the water ingress she has been plagued with. As I read the documentary material tendered as evidence, and listened to the witnesses before me, on its face the work performed by RRR appeared to me to be at the very least unsatisfactory, if not faulty. It thus appears to be defective. There is clearly water penetration into the building, and with the water ingress Mrs Bridge had been experiencing up to the time of the Internal Review Decision it would, at the very least, adversely affect the functional use of her house. That of itself is enough to indicate, again at the very least, the possibility of a structural defect.
- [79]But what is the issue in the work? It is unknown. The QBCC concluded that it must be the windows themselves. But that is a leap too far to have made on the material as it was put before me. Once again turning to the cogency of Mrs Bridge’s case, it showed that there remain unanswered questions, such which must be answered before such can be said with any definitive basis and in turn be able to rule out that there is no defective work in that which was performed by RRR.
- [80]What this all then leads to is it being open for the QBCC to have held the opinion, in the manner contemplated by s 72 of the QBCC Act, that the work is defective. That opinion does not need to go as far as a definitive finding that the work is defective, rather it is enough that on the material before the QBCC it is able to conclude that in its opinion it is defective, at least to the extent it is unsatisfactory without the need to find that it is faulty. I found that to be the case.
- [81]It thus follows that the QBCC must consider the issues further and carry out a comprehensive investigation of all aspects of the work performed by RRR. As the Board’s policy provides for, as I noted it earlier herein, upon notification of a defect the QBCC is empowered to consider issuing a direction to rectify for structural defective building work within 6 years and 3 months from when the work was completed. That means it can continue to consider the Complaint throughout that period. On the common ground that RRR’s work was completed 1 September 2020, that period expires 1 December 2026.
- [82]In all respects, the way the QBCC dealt with Mrs Bridge’s Complaint was entirely inadequate. For that reason, based on what I have discussed herein, the matter should be returned to the QBCC for further consideration. I discuss the detail of that under the next heading. However, before doing so, for completeness I should make a comment on two other issues which arose in this proceeding.
- [83]The first is the argument Mrs Bridge ran about the scope of work being inadequate to rectify the leak. I accept the submissions from Mr Evans for the QBCC as I noted them in paragraph [57] herein. They were properly and correctly made. To the extent it may be accepted that RRR’s production of the scope of work is a ‘specification’ that falls within ‘the preparation of plans and specifications’ and in turn ‘building work’, at best all Mrs Bridge could hope for is rectification of the scope of work. It would not flow on to the performance of other work required that arises in satisfaction of that amended scope of work. The argument that Mrs Bridge was running was one more properly one that would fall within a ‘breach of contract’ action, it being one which would have its own challenges for Mrs Bridge.
- [84]The second is the question of whether it would be unfair on Mr Rewald to issue him with a direction to rectify. Given the conclusions I have reached in this proceeding and the orders I have made, it was unnecessary for me to consider that issue.
Conclusion
- [85]It was entirely inadequate for the QBCC to have determined the Complaint by deciding the work was not defective simply because Mr Auditore could not replicate water ingress, and then closed its file telling Mrs Bridge that if a leak shows up again then all she had to do was make another complaint.
- [86]At the very least, based on Mr Auditore’s inspection, what the QBCC should have done was to say that it could not find the work to be defective and so would not be directing rectification at that time, but also that it could not conclude that the work was not defective so would not be deciding that it would not be directing rectification at all, and accordingly that it would keep the file open and all Mrs Bridge needed to do was to notify it when water ingress occurred again and it would then respond with a further inspection. That further inspection, it being one that should be performed promptly and so contemporaneous with the event of that further water ingress, could be enough to identify the existence of defective work and so form the proper basis for a direction to rectify.
- [87]That approach would then serve two purposes, namely:
- It would satisfy the QBCC Rectification of Building Work Policy that a building contractor who carried out the defective work should be required to carry out the rectification work; and
- It would meet the objects of the QBCC Act, being to not only maintain proper standards in the industry but to achieve the requisite balance between contractors and consumers.
- [88]For all the reasons, I concluded that the matter should be remitted to the QBCC for reconsideration with appropriate directions. My orders reflect this.
Footnotes
[1] This information is drawn from the documentary evidence as it was before this Tribunal. The relevant Exhibit received during the hearing is footnoted.
[2] Ex 2 pg 2.
[3] Ex 2 pg 86. Mrs’ Bridges evidence was that there was no formal contract document signed by the parties.
[4] Ibid pg’ 87 to 90. The quote continued and included remedial work internally to the house in terms of water affected surfaces including skirtings and gyprock plastering. I have not detailed that work in this summary of the relevant facts and circumstances because none of it is the subject of any issue arising in this proceeding.
[5] Ex 1 pg 39.
[6] Ex 1 pg 29.
[7] Ex 1 pg 43.
[8] Ex 1 pg 206.
[9] Ex 1 pg 217.
[10] Ex 1 pg 19. See the Conclusions in the Internal Review Report at Ex 1 pg 223.
[11] That was originally published pursuant to s 19 of the QBCC Act as it then was in force. That section was repealed by s 255 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), but under the relevant Transitional Provisions for that Act as laid out in the QBCC Act, namely Schedule 1 s 76, that policy presently remains in force.
[12] QBCC Act s 86(1)(e), s 86A, s 86C, s 86E.
[13] Ex’s 2 to 7. Attachments to her originating application were also tendered as evidence during the hearing – Ex 11.
[14] Ex 2 pg 1. Emphasis as bold and/or capitals is as per the original.
[15] Ex 2 pg 2.
[16] The words stated here as attributed to Mrs Bridge is not taken from a transcript and so is not to be read as being verbatim. It is as per the notes I took during the hearing. Wherever similar references are made in these reasons to statements by her or other persons when giving oral evidence, the same applies.
[17] Ex 1. Such is as required under QCAT Act s 21(2)(a).
[18] Ex 12.
[19] Ex 13.
[20] Ex 1 Annexure SOR-9 at time approximately 38:40 to 39:32
[21] Ex 12 para’s 24 and 30. The reference to being ‘that switched on’ is, as I understood the context of the conversation, a reference to a moisture testing meter.
[22] Ex 12 – Annexure PJA-6 – Pg 2 of 11 in the Report.
[23] Ex 13 para’s 16, 19, 25 to 28, 32 and 33.
[24] Ex 14 being his statement. Ex 15 being the statement of Dion Hammond.
[25] Document marked for identification ‘A’.
[26] Referring to Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 at [40] and [41], affirmed in Murphy v QBCC [2024] QCATA 27 at [19].
[27] Referring to Henderson v Queensland (2014) 255 CLR 1 at [88].
[28] See Footnote 26.