Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2022
  4. Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission - [2022] QCATA 95

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission[2022] QCATA 95

Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission[2022] QCATA 95

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission [2022] QCATA 95

PARTIES:

MADDEN DEVLOPMENTS PTY LTD T/AS STROUD HOMES

(applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL121-20

ORIGINATING APPLICATION NO/S:

GAR076-19

MATTER TYPE:

Appeals

DELIVERED ON:

5 July 2022

HEARING DATE:

14 December 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. Leave to appeal is refused.
  2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – INTERFERENCE WITH DISCRETION OF COURT BELOW – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where tribunal confirmed decision by QBCC to issue direction to rectify to builder – where builder asserted that alternative building solution had been adopted in respect of subject work – whether tribunal considered alternative building solution – where builder asserted unfairness in giving direction to rectify – whether tribunal considered all relevant matters in confirming decision of the QBCC to issue direction to rectify – whether tribunal discretion miscarried

Building Act 1975 (Qld), s 14(2), s 68A

Queensland Building and Construction Commission Act 1991 (Qld), s 72(5)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(1), s 142(3)(b), s 146, s 147(1), s 147(2), s 147(3)

Cachia v Grech [2009] NSWCA 232

Ericson v Queensland Building Services Authority [2013] QCA 391

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Harrison & Anor v Meehan [2017] QCA 315

House v The King (1936) 55 CLR 499

Laidlaw v. Queensland Building Services Authority [2010] QCAT 70

Madden Developments Pty v Queensland Building and Construction Commission [2020] QCAT 97

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348

Queensland Building and Construction Commission v Group Kildey Pty Ltd; Queensland Building and Construction Commission v JM Kelly (Project Builders) Pty Ltd [2016] QCATA 10

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145

APPEARANCES &

REPRESENTATION:

 

Applicant:

J Hewson instructed by Hearthstone Legal

Respondent:

R de Luchi instructed by Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    Madden Developments (the builder) constructed a townhouse for Mr and Mrs Pickering (the homeowners). The homeowners subsequently complained to the Queensland Building and Construction Commission (QBCC) about defective building work. The QBCC decided to issue a direction to rectify to the builder relating to the failure by the builder to seal exterior masonry walls. The relevant walls were the side walls of the townhouse. The builder applied to the Tribunal to review the decision by the QBCC. The Tribunal confirmed the reviewable decision.[1]
  2. [2]
    The builder has appealed the decision of the Tribunal.

The decision of the Tribunal at first instance

  1. [3]
    Before turning to the findings by the learned member it is appropriate to say something about the relevant requirements in respect of the particular building work the subject of the direction to rectify.
  2. [4]
    The Building Code of Australia (BCA) is a uniform set of technical provisions for the design and construction of buildings and other structures. A building solution must meet performance requirements. A building solution is an alternative solution, or a solution which complies with the ‘deemed-to-satisfy provisions’ or a combination of the two.
  3. [5]
    An ‘alternative solution’:
    1. (a)
      must comply with performance requirements; or
    2. (b)
      the solution is at least the equivalent to the deemed-to-satisfy provisions. 
  4. [6]
    An ‘alternative solution’ must be shown to comply with relevant performance requirements through one of, or a combination of, assessment methods one of which is ‘expert judgement’.
  5. [7]
    Section A2.3 of the BCA provides:

Deemed-to-Satisfy Solution

(1) A solution that complies with the Deemed-to-Satisfy Provisions is deemed to have met the Performance Requirements.

(2) A Deemed-to-Satisfy Solution can show compliance with the Deemed-to-Satisfy Provisions through one or more of the following Assessment Methods:

(a) Evidence of suitability in accordance with Part A5 that shows the use of a material, product, plumbing and drainage product, form of construction or design meets a Deemed-to-Satisfy Provision.

(b) Expert Judgement.[2]

  1. [8]
    Under Schedule 3 of the BCA, Expert Judgement means:

… the judgement of an expert who has the qualifications and experience to determine whether Performance Solution or Deemed-to-Satisfy Solution complies with the Performance Requirements.[3]

  1. [9]
    Performance Requirement P2.2.2 of the Building Code of Australia (BCA) provides that a roof and external wall must prevent the penetration of water that could cause unhealthy or dangerous conditions or loss of amenity for applicants or undue dampness or deterioration of building elements.[4]
  2. [10]
    Part 3.3.4.0 of the BCA provides, inter alia, that performance requirement P2.2.2 is satisfied for weatherproofing of masonry if it is carried out in accordance with Australian Standard (AS) 3700 or AS 4773 Parts 1 and 2. This is the ‘deemed-to-satisfy solution’.[5] 
  3. [11]
    Where an alternative waterproofing system is proposed as an ‘alternative solution’ to that described in Part 3.3.4, the proposal must comply with Performance Requirement P2.2.2.
  4. [12]
    The learned member made the following findings:
    1. (a)
      The rendering and painting of the side walls of the dwelling was not within the contractual scope of works;[6]
    2. (b)
      The development approval for the townhouse provided as standard conditions that masonry construction comply with Part 3.3 of the Building Code of Australia (BCA), which part extends to waterproofing requirements;[7]
    3. (c)
      The builder had adopted an alternative performance solution to prevent water ingress in the form of the installation of furring channels on the inside of the block walls;[8]
    4. (d)
      Compliance with performance requirements for external masonry walls can be achieved either by using the deemed to satisfy solution or another performance solution – referred to by the learned member as an ‘alternative performance solution’;[9]
    5. (e)
      The power of the QBCC to issue a direction to rectify arises in circumstances where the QBCC is satisfied that building work is defective or incomplete[10] and is not confined to circumstances where an evident failure is first manifested;[11]
    6. (f)
      BCA Part 2.2.2 is satisfied for weatherproofing of masonry if it is carried out in accordance with a number of Australian Standards, none of which included the solution adopted by the builder;[12]
    7. (g)
      In the absence of appropriate expert evidence, the use by the builder of furring channels between the masonry walls and plasterboard was not an acceptable alternative performance solution;[13] 
    8. (h)
      It was unnecessary for the Tribunal to determine whether the builder had suggested to the homeowners that a waterproofing product, Xypex, be added to the concrete filler of the masonry blocks as this solution would not have prevented moisture from passing through the blocks and through the mortar joints between the blocks;[14]
    9. (i)
      The builder understood it had waterproofing obligations in respect of the block walls;[15]
    10. (j)
      The builder knew its statutory obligations and failed to address those obligations, first in drawing up the contract and then in carrying out the building work;[16]
    11. (k)
      It was not unfair to issue a direction to rectify to the builder;[17]
    12. (l)
      The offer by the builder to return to seal the walls was not made until well after the internal review decision by the QBCC directing rectification.[18]

The grounds of appeal

  1. [13]
    The builder relies upon three grounds of appeal:
    1. (a)
      Ground 1 – the Tribunal erred in finding that the alternative solution relied upon by the builder was inadequate. This ground of appeal has a number of sub-grounds:
      1. The Tribunal failed to consider the merits of the alternative solution given that there have been no performance issues with water ingress or any other kind of water damage into the walls;
      2. The Tribunal placed too much weight on the evidence of the QBCC Senior Technical Officer when considering the alternative solution;
      3. No opportunity was provided to the builder to provide additional expert evidence regarding the alternative solution;
      4. The Tribunal failed to inform itself on the alternative solution and relied upon the submission by the QBCC which did not consider the alternative solution;
    2. (b)
      Ground 2 – the Tribunal erred in finding that the builder knew and failed to appropriately address its statutory obligation;
    3. (c)
      Ground 3 – the Tribunal erred in failing to find that discretion should not have been exercised in issuing a direction to rectify to the builder. This ground of appeal has two sub-grounds:
      1. The Tribunal erred in its findings that the actions of the builder as a whole did not warrant the application of s 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld) in favour of the builder;
      2. The Tribunal did not place adequate weight on the attempts made by the builder notwithstanding its contractual obligations to fulfill its obligations in accordance with the Australian Standards.
  2. [14]
    In respect of ground 1, the builder says that the learned member failed to engage in a consideration of the merits of the alternative solution, placed insufficient weight on the builder’s evidence, placed too much weight on the evidence led by the QBCC and failed to afford the builder natural justice.
  3. [15]
    In respect of ground 2, the builder says:
    1. (a)
      The finding that the builder could have addressed its statutory obligations when drawing up the contract was mere speculation and failed to give appropriate weight to the builder’s evidence;
    2. (b)
      The learned member failed to take into consideration the various offers made by the builder to the homeowners to render and paint the walls once it became apparent that the walls would be exposed;
    3. (c)
      The use of furring channels was an acceptable alternative performance solution.
  4. [16]
    In respect of ground 3, the builder says that the exercise by the learned member of the discretion whether or not to issue a direction to rectify miscarried.

Appeals – the statutory framework

  1. [17]
    An appeal to the Appeal Tribunal on a question of law is as of right.[19] An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal.[20]
  2. [18]
    In deciding an appeal on a question of law, only the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.[21]
  3. [19]
    Subject to leave to an appeal being granted, if an appeal is against a decision on a question of fact only, or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[22] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.[23]
  4. [20]
    The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[24] is there a reasonable prospect that the applicant will obtain substantive relief?;[25] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[26] is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage?[27]
  5. [21]
    If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the Tribunal for reconsideration.[28]
  6. [22]
    If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted, then the appeal must be decided by way of rehearing and all of the matters which are the subject of the grounds of appeal should be dealt with in the rehearing although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[29] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.[30]
  7. [23]
    The grounds of appeal relied upon by Madden Developments raise questions of law, questions of fact, and questions of mixed law and fact.

Consideration

Ground of appeal 1 - the Tribunal erred in finding that the alternative solution relied upon by the builder was inadequate to weatherproof the walls.

  1. [24]
    Central to the proceedings below and this appeal is whether the builder adequately addressed the issue of weatherproofing the external walls of the dwelling.
  2. [25]
    It cannot be contentious that the builder’s solution to the issue of weatherproofing the exterior walls of the dwelling was not a ‘deemed to satisfy solution’. A building solution, in this case the weatherproofing of the external block walls, was required to be either a deemed to satisfy solution or an alternative (or performance) solution.[31] For the builder to establish a deemed to satisfy solution it was required to demonstrate that the furring channel solution complied with AS 3700 or AS 4773 Parts 1 and 2. The evidence of the QBCC’s expert, Mr Blackman, was that the furring channel solution was not a deemed to satisfy solution. It does not appear that the builder led any evidence to the contrary. Accordingly, for the builder to establish that the building solution was compliant it was required to demonstrate that the furring channel was an alternative solution.
  3. [26]
    Earlier in these reasons I referred to the requirement for an alternative solution to comply with performance requirements through one of, or a combination of, assessment methods.
  4. [27]
    The builder argued below that the installation of a furring channel between the block wall and the internal wall, creating a cavity between the two walls, was an alternative solution.
  5. [28]
    The learned member found:

[46]   There is no evidence that an appropriate expert, such as the certifier, has approved the alternative performance solution suggested by the builder. In the absence of evidence of independent expert approval of an alternative solution, the builder’s use of furring channels between masonry and plasterboard was not an acceptable alternative performance solution.[32]

  1. [29]
    It is not contentious in this appeal that the learned member was correct in approaching the determination of the issue whether the furring channel solution was an alternative performance solution by reference to Part A2.3 of the BCA.
  2. [30]
    The evidence of Mr Chapman, the builder’s nominee, was that the alternative performance solution had been installed ensuring the performance provisions of ‘p2.2.2 of the National Construction Code’.[33] This was effectively the extent of the builder’s evidence on the issue.
  3. [31]
    In written submissions the builder said of the furring channel solution:

The construction … is an appropriate alternative solution was (sic) has met the performance requirements of P2.2.2 of the BCA.[34]

  1. [32]
    It is of note that the issue of the furring channel solution as an alternative performance solution was not raised by the builder until late in the proceeding. The matter had been listed for hearing. The parties filed consent orders that the proceeding be determined on the papers after the parties filed written submissions. As events transpired, in addition to filing submissions, the builder filed two further statements of evidence of Mr Chapman, the second of which raised for the first time the furring channel solution. This somewhat belated approach to the issue of an alternative performance solution is of relevance in the determination of the appeal, as these reasons will explain.
  2. [33]
    Following the filing of the late evidence by the builder, the Tribunal directed the QBCC to file any further evidence and submissions in response and the builder was directed to file any reply submissions. Thereafter the matter was to be determined on the papers.
  3. [34]
    There is no burden of proof in the type of merits review proceedings the subject of this appeal.[35] Having said this, in circumstances where the QBCC has decided to issue a direction to rectify, the builder will seek to place before the Tribunal all relevant evidence to enable the Tribunal to make a different decision. This will generally be evidence that building work is not defective or that it is unfair for a direction to rectify to be given or both.
  4. [35]
    In the end result, the outcome of the proceeding below was in large part the result of the failure by the builder to place before the Tribunal sufficiently cogent and compelling evidence about the alternative building solution.
  5. [36]
    There can be no doubt that the evidence of the QBCC’s witness, Mr Blackman, was more comprehensive than Mr Chapman’s in relation to the technical aspects of the alternative solution.[36]  Mr Blackman’s evidence was that the builder had not complied with the requirements of the Building Act 1975 (Qld) (BA) in respect of the alternative solution.[37] Mr Blackman said that the installation of a furring channel to the inside of external walls was consistent with industry practice for the type of construction involved. Mr Blackman’s evidence was however that the cavity was neither drained by appropriate flashing and weep holes nor continuous and unobstructed for an acceptable minimal width. Mr Blackman did not consider that the alternative building solution complied with the requirements of AS 3700. The evidence of Mr Blackman was that the installation of the furring channels was not correctly identified as an alternative solution nor was it, of itself, an acceptable method of preventing water entry into habitable buildings. Mr Blackman’s evidence detailed how the installation of furring channels would be incorporated within an alternative solution.[38]
  6. [37]
    At reasons [46] the learned member referred to the absence of evidence from the builder regarding its having obtained the appropriate approvals for the furring channel solution. It is implicit in the reasons that the learned member was here referring to the evidence of Mr Blackman regarding the requirements of the BA. It is also implicit in the reasons that the learned member preferred the evidence of Mr Blackman in relation to the suitability of the furring channel solution as an alternative building solution and the steps required to be undertaken to incorporate the furring channel solution within an alternative solution.
  7. [38]
    There was no error by the learned member in preferring the evidence of Mr Blackman over Mr Chapman.  It is not an appellable error to prefer the evidence of one witness over another. It is understandable that the learned member preferred the evidence of Mr Blackman’s evidence. It was considerably more comprehensive than Mr Chapman’s evidence and addressed the specific issues relevant to whether the furring channel solution was a deemed to satisfy solution or an alternative building solution.
  8. [39]
    The builder says that it was not afforded the opportunity to provide additional expert evidence regarding the alternative solution. The builder says that the learned member formed a view that evidence from an independent expert was needed to establish whether the builder had shown compliance for the purposes of the BCA by way of ‘expert judgment’.
  9. [40]
    Mr Blackman’s evidence was that the builder had not complied with the requirements of the BA in relation to the furring channel solution. Mr Blackman referred to the requirement for the building certifier to comply with s 68A of the BA which sets out what a certifier must do if the certifier approves a performance solution (i.e. an alternative building solution).
  10. [41]
    Seen in the context of the evidence to which I have referred, it seems reasonably clear that it was this aspect of the evidence of Mr Blackman to which the learned member was referring to at reasons [46][39] when he stated:

There is no evidence that an appropriate expert, such as the certifier, has approved the alternative performance solution suggested by the builder.

  1. [42]
    At reasons [46] the learned member went on:

In the absence of evidence of independent expert approval of an alternative solution, the builder’s use of furring channels between masonry and plasterboard was not an acceptable alternative performance solution.[40]

  1. [43]
    It is not entirely clear in making this finding whether the learned member was referring to the absence of evidence that the alternative solution had been approved as required by the BA or the absence of evidence of an appropriate assessment method in the form of an ‘expert judgement’ as referred to in the BCA. Either way, there was no error by the learned member. It cannot be contentious that there was no evidence the builder had complied with the requirements of the BA in relation to the furring channel solution. I am not persuaded by the builder’s submission that the evidence of compliance with the BA was not relevant. It was necessary for the builder to establish on the evidence that the alternative solution either complied with the relevant performance requirements or was at least the equivalent to the deemed to satisfy provisions. Either way, evidence of expert judgement in relation to the alternative solution was required in the absence of compliance with any other assessment method.
  2. [44]
    The builder says that the building certifier did not consider it necessary for the wall to be waterproofed. The builder says that compliance with the BA did not therefore arise during the course of the build as it was unnecessary for the certifier to consider the furring solution. That may be so. However, the submission by the builder must be considered in context.
  3. [45]
    The learned member found that the builder conceded the failure to seal the external masonry wall was defective building work if left unattended to and unsealed.[41] This finding is not appealed. In its submissions below, the builder said that it had adopted the furring channel solution as an ‘extra protective measure(s)’ after the homeowners refused to agree to a variation of the contract to seal the external block walls. The builder referred to the evidence of Mr Chapman in this regard. However, this was not Mr Chapman’s evidence. Mr Chapman said that that he obtained a quote for the furring channel solution to be undertaken 10 days after the contract was signed and that ‘Even though I was entitled to charge a variation for this additional cost no variation was ever charged to the clients.’[42]  Mr Chapman’s evidence was silent on why the furring channel solution was in fact implemented. Indeed, the late submission by the builder about the furring channel being an alternative building solution is at odds with the case the builder had earlier run below. There is an inconsistency between the builder’s submission that it was unnecessary to consider the requirements of the BA in the course of the build and the builder’s submission below that the furring channel solution was an alternative building solution, at least in the absence of evidence as to why the furring channel solution was implemented. In neither his initial statement of evidence[43] nor his supplementary statement of evidence[44] did Mr Chapman make mention of the furring channel solution. In his supplementary statement of evidence Mr Chapman makes specific reference to the method the builder intended to adopt to rectify the defective building work. Suffice it to say, that method did not make mention of the furring channel solution.
  4. [46]
    Against this background, and in light of the dearth of evidence led by the builder regarding the alternative solution, it is hardly surprising that the learned member preferred the evidence of Mr Blackman. Mr Blackman’s evidence dealt comprehensively with the furring channel solution and its suitability as an alternative building solution. It is implicit in the reasons that, in preferring the evidence of Mr Blackman, the learned member engaged with the specifics and suitability of the furring channel solution and found that it was not an alternative building solution.
  5. [47]
    The builder says it was not afforded the opportunity to adduce expert evidence about the alternative solution. This is a curious submission. The parties consented to the matter being determined on the papers. Both parties were given the opportunity to file submissions. The builder went further, filing additional evidence by Mr Chapman. Presumably, the builder had turned its mind to the evidence it needed to place before the Tribunal. By that stage of the proceeding, the issues had been identified. The builder was legally represented. Any deficiency in the builder’s evidence was the result of the actions of the builder, not the absence of procedural fairness.
  6. [48]
    As to the submission by the builder that the learned member failed to inform himself on the alternate solution and relied upon the submission by the QBCC which did not consider the alternate solution, for the reasons set out above, that submission cannot be accepted. It is clear the learned member accepted the evidence of Mr Blackman which he was entitled to do.
  7. [49]
    The builder says that the learned member failed to consider the merits of the alternative solution given that there had been no performance issues with water ingress or any other kind of water damage into the walls. Mr Blackman addressed this issue in his evidence.[45] Mr Blackman’s evidence was that water would, at some stage, accumulate within the masonry block external wall and penetrate through the wall into the building. There was no error by the learned member in accepting the evidence of Mr Blackman.
  8. [50]
    Ground of appeal 1 is not made out.

Ground of appeal 2 - the Tribunal erred in finding that the builder knew and failed to appropriately address its statutory obligation.

  1. [51]
    This ground of appeal relates to the learned member’s finding that it would not be unfair to give a direction to rectify to the builder.
  2. [52]
    The learned member found at reasons [56]:

This matter does not involve a builder following erroneous plans drawn by somebody else upon whom the builder relied believing all statutory obligations were met in doing so. Rather it involves a builder who knew his statutory obligations and despite that failed to appropriately address those obligations, first in drawing up his contract, and then in carrying out the building work. It appears, despite the contract, the builder tried to waterproof the walls but used inadequate means (furring channel) to achieve that.

  1. [53]
    Ground of appeal 2 is in some respects a no evidence ground and in other respects an assertion that the learned member failed to consider relevant evidence. I approach the consideration of ground of appeal 2 on this basis.  
  2. [54]
    In oral submissions at the appeal hearing, counsel for the builder observed that the QBCC Rectification of Building Work Policy does not require a finding of defective work in every instance where there has been non-compliance by a builder. This submission is somewhat at odds with the concession by the builder that the work the subject of the direction to rectify was defective.
  3. [55]
    There was no evidence below regarding the point in time at which the builder formed the view that the failure to waterproof the external walls was defective work. Nor was there any evidence below that there was anything about the particular build that would have caused the builder to form the view from the time of the formation of the contract that the external walls of the building were not required to be suitably weatherproofed. 
  4. [56]
    The QBCC says that it was not necessary for evidence to be led about how the builder may have addressed its statutory obligations at the time the contract was entered into. The basis of this submission is that the learned member was entitled to take judicial notice of matters which are common knowledge and specifically that, in the building industry, it is common knowledge that the builder should have allowed for weatherproofing the external walls in the contract despite the builder being uncertain as to the extent it was necessary. This, says the QBCC, could have been achieved by way of a provisional sum. The builder says that these are matters of pure speculation.
  5. [57]
    In Woods v Multi-Sport Holdings Pty Ltd [46] McHugh J stated:

As a general rule, facts in issue or relevant to a fact in issue must be proved by admissible evidence. The doctrine of judicial notice is an exception to this rule. A court may judicially notice a fact whenever it “is so generally known that every ordinary person may be reasonably presumed to be aware of it”. The information which the court acquires by taking judicial notice of facts is not “evidence strictly so called”. Facts that may be judicially noticed fall into two categories: facts that can be judicially noticed without inquiry and facts that can be judicially noticed after inquiry. Facts that can be judicially noticed also fall into two other categories: (1) adjudicative facts and (2) legislative facts.

  1. [58]
    However, for the reasons that follow it is not necessary for me to decide whether the learned member’s findings were based upon judicial notice.
  2. [59]
    The learned member stated:

[28] The development approval for the townhouse provided as standard conditions that masonry construction comply with BCA Part 3.3, which Part extends to waterproofing requirements.

…

[55] At minimum, what is clear is that the builder understood he had waterproofing obligations in respect of the block walls. He was well aware of those obligations before development approval was given and it was reinforced in the development approval.[47] (emphasis added).

  1. [60]
    The findings at reasons [28] and [55] are not appealed. The evidence before the Tribunal was that the development approval was dated 14 November 2017.[48] The parties entered into the contract on 17 October 2017.[49] The development approval referred to approved drawings and specifications ‘Job No. 17L124CH Sheets 1-10 Issued: 2 Dated: 24/10/2017 – By Stroud Homes.’[50]  The approved plans were dated 24 October 2017.[51]
  2. [61]
    The contract was dated 17 October 2017. The contract documents included ‘Plan Set 17L124CH PICKERING Prelim issue 5 121017’.[52]
  3. [62]
    The finding by the learned member that the builder understood its waterproofing obligations in respect of the block wall before the development approval was given must ostensibly have been on the basis of the plans that formed part of the contract documents. It was reasonable for the learned member to proceed on the basis that the two sets of plans to which I have referred were not materially different, certainly not in relation to the external masonry. That there was no such material difference appears apparent from the absence of any appeal against the findings at reasons [55]. This is also consistent with the builder’s concession that the failure to seal the external masonry walls was defective building work ‘if left unattended to and remain [sic] unsealed.’[53]
  4. [63]
    The learned member found that the building work required compliance with the BCA and, by s 14(2) of the BA, building work complies with the BCA only if it complies with all relevant performance requirements under the BCA.[54] It follows from the foregoing that the learned member was entitled to find that the builder knew its statutory obligations both at the time the contract was entered into and subsequently when undertaking the building work, those statutory obligations including the weatherproofing of the masonry block walls.
  5. [64]
    The evidence of Mr Chapman was that the rendering of the external walls was not included in the contract on the basis that it was not known where adjoining houses would be built and therefore it was not possible to determine how much of the block work would be exposed.[55] However the evidence of Mr Chapman did not specifically address the issue of the builder’s obligation, at the time the contract was entered into, to ensure that the walls were weatherproofed. Rather, Mr Chapman’s evidence addressed the discussions that took place between the builder, the homeowners and the QBCC once the dispute in relation to the block walls had arisen. The focus of the builder’s evidence was upon the contractual issues and not the builder’s statutory obligations. Knowing that it had a statutory obligation to ensure that the external block walls were weatherproof, the builder failed to ensure that the contract reflected this obligation.
  6. [65]
    The learned member was entitled to conclude, in light of the findings to which I have referred and particularly at paragraphs [46] and [59] of these reasons, that the builder failed to appropriately address its obligations to waterproof the external block walls at the time the contract was entered into and when carrying out the works.
  7. [66]
    The builder raises two further sub grounds relating to ground of appeal 2. The builder says that the learned member failed to take into consideration the various offers made by the builder to the homeowners to render and paint the walls once it became apparent that the walls would be exposed. The builder also says that the use of furring channels was an acceptable alternative performance solution.
  8. [67]
    In respect of the furring channel solution as an alternative solution, this has been addressed in ground of appeal 1.
  9. [68]
    In relation to the offers by the builder to render and paint the walls, these offers must be seen in context. The focus of the builder in its communications with the homeowners was upon contractual issues, not the discharge of its statutory obligations to ensure that the walls were weatherproofed. The learned member addressed the evidence of the parties about the offers at reasons [51] and [52]. The learned member found that it was not necessary for him to form a concluded view on whose evidence was to be preferred. It is clear from the reasons that the learned member considered the contractual issues to be subsidiary to the builder’s statutory obligations. The submission that the learned member failed to take into consideration the evidence of the offers by the builder cannot be accepted.
  10. [69]
    Ground of appeal 2 is not made out.

Ground of appeal 3 - the exercise by the learned member of the discretion whether or not to issue a direction to rectify miscarried.

  1. [70]
    The builder says that the learned member did not place adequate weight on the attempts by the builder to fulfil its waterproofing obligations even when such works did not form part of the contractual scope of works in deciding that it would not be unfair to give the direction to rectify.
  2. [71]
    Section 72(5) of the QBCC Act provides that the QBCC is not required to give a person a direction to rectify if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Whether or not to give a direction to rectify involves the exercise of a discretion. The relevant principles in determining an appeal against an exercise of discretion are:
    1. (a)
      The decision maker acts upon wrong principle;
    2. (b)
      The decision maker takes into consideration irrelevant considerations;
    3. (c)
      The decision maker mistakes the facts;
    4. (d)
      The decision maker fails to take into consideration a material consideration;
    5. (e)
      The decision is otherwise unreasonable or plainly unjust.[56]
  3. [72]
    The following passage from the decision of the QCAT Appeal Tribunal in Queensland Building and Construction Commission v Group Kildey Pty Ltd; Queensland Building and Construction Commission v JM Kelly (Project Builders) Pty Ltd [57] is a useful starting point in considering the exercise of the discretion to give a direction to rectify:

[19]   R v Judge Miller and Builders Registration Board of Queensland; ex parte Graham Evans and Co (Qld) Pty Ltd is the leading authority in this area. That case concerned the exercise of power analogous to s 72(1) of the QBSA Act now the QBCC Act. The builder was ordered to remedy faulty or unsatisfactory waterproofing and a retaining wall. The waterproofing material was specified in the building contract. The retaining wall problem was caused by defective design to which the builder was not responsible.

[20] The issue was whether the builder who met all contractual obligations was nevertheless liable to rectify.

[21] Derrington J (with whom McPherson J agreed) said at [458] faulty or unsatisfactory building work in itself does not impose any liability on the builder but merely enlivens the discretion of the board to order him to rectify it.

[22]  Where adherence to the contract must mean defective work, the answer to the builder’s dilemma is that the legislature has reposed confidence in the Board to determine the specific case as a matter of discretion recognising the builder’s innocent position and affording him protection through a favourable exercise of discretion.

[23]  In some circumstances there is obvious need for protection of the building owner even though the builder may be able to point to a term of the contract justifying or explaining the unsatisfactory result. In others, the builder may be perfectly justified in conforming with the specifications and should not be required to remedy the defect. It is therefore in conformity with the plain and ordinary meaning of the terms in s 72(3)(b) to find that they apply because of the reality of the defect but if the result derives from the builder’s strict compliance with the contract then the Board, pending on the circumstances, has a discretion not to direct rectification.

[24]  His Honour found that the primary judge had failed to exercise any discretion at all and it was a clear case for favouring the builder. Not only was it acting properly in conformity with the contract without any fault in his performance of the work, but the owner after expert independent advice deliberately took the risk in his choice of material for the sake of a cheaper price.

[25] If a discretion had been exercised below it must have miscarried in the result.

[26]  In that case the discretion was approached on the basis of whether it was “right” in the circumstances to require the builder to rectify the work. In Gary Norwood Homes Pty Ltd v QBSA Forno DCJ referred to the judgment in Miller and noted that whether the builder was at fault or not is not decisive and proceeded to re-exercise the discretion because the tribunal had made a finding of fact not open on the evidence and therefore exercised the discretion on the wrong factual basis.

[27]  In Queensland Building Services Authority v O'Brien & Anor, McGill DCJ after noted (sic) that it was inappropriate to fetter a discretion by any rule or policy it is clear from the decision in Miller that the fault of the builder is irrelevant consideration and it logically follows that whether the defective work amounts to a breach of any contractual obligation of the builder to the owner or breach or duty to take care are aspects of whether the builder is at fault but is not necessarily determinative. McGill DCJ found an error of principle involved in the exercising of the discretion on the basis that the tribunal member applied “the highest civil standard” which does not exist.

[28] In re-exercising the discretion, His Honour found it necessary to decide whether it is appropriate that the particular defective work be rectified and, if so, by whom.

  1. [73]
    In its submissions the builder says that the learned member’s decision was so plainly unjust or unreasonable, involving a clear misapplication of the discretion that the appeal should be allowed. The builder does not assert that the learned member failed to take into consideration a relevant matter or took into consideration an irrelevant matter or that he was mistaken as to the facts or acted upon wrong legal principle. Rather, the effect of the builder’s arguments is that the learned member’s decision was so unreasonable that it was plainly wrong. 
  2. [74]
    In relying upon the unreasonableness ground, the builder must establish that the learned member’s decision lacked an evident and intelligible justification.[58] In determining whether the decision was unreasonable, it is necessary to look to the reasoning process of the learned member to identify the factors in the reasoning said by the builder to make the decision legally unreasonable.
  3. [75]
    The builder relies upon a number of circumstances, established on the evidence, it says lead to the conclusion that the exercise of the discretion miscarried:
    1. (a)
      The builder recognised that it had an obligation to waterproof which required it to apply a paint sealant to the external wall;
    2. (b)
      The builder was aware that the homeowners had an obligation under the estate covenant to render the external wall;
    3. (c)
      The rendering of the wall was not within the contractual scope of works;
    4. (d)
      Sealing the wall would have been contrary to the homeowners instructions;
    5. (e)
      The application of a paint sealant directly to the external blockwork would likely have resulted in the need for further significant works;
    6. (f)
      The conduct of the homeowners caused or contributed to the defect;
    7. (g)
      The denial of access by the homeowners to allow the builder to undertake further works was a relevant consideration notwithstanding that the builder’s request for access was made after the internal review of the reviewable decision;
    8. (h)
      The learned member failed to place adequate weight upon the attempts by the builder to fulfil its obligations to waterproof the external walls even when such works did not form part of the scope of works under the contract.
  4. [76]
    The evidence of the builder was that it offered to apply a paint sealant to the external walls. This offer however post-dated the expiration of the time for compliance with the direction to rectify by approximately 2 months. The learned member took into consideration the builder’s offer to seal the walls.[59] The learned member also noted that the homeowners were obliged by an estate covenant to render the walls.[60] The learned member found that the waterproofing of the walls was not within the scope of works[61] however found that the builder understood its obligations to waterproof the walls before the development approval was given, which obligation was reinforced when the development approval was issued.[62] As has been referred to earlier in these reasons, it is clear that the learned member took into consideration the builder’s belated attempts to waterproof the walls, however clearly considered that the builder’s concerns with its contractual obligations were secondary to the obligation on the part of the builder to discharge its statutory obligations. Finally, as to the submission that the sealing of the wall would have been contrary to the homeowners’ instructions, the evidence does not support such an assertion. As has been referred to, the attempts by the builder to take remedial steps in respect of waterproofing the block walls significantly post-dated the period to rectify allowed in the direction.
  5. [77]
    Taking all of these matters into consideration, there was an evident and intelligible justification for the learned member’s decision.
  6. [78]
    Ground of appeal 3 is not made out.

Conclusion

  1. [79]
    The builder has failed to establish any of the grounds of appeal.
  2. [80]
    Insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed.

Footnotes

[1]Madden Developments Pty v Queensland Building and Construction Commission [2020] QCAT 97 (Reasons).

[2]Ibid, [44].

[3]Ibid, [45].

[4]Appeal Book, page 705.

[5]Appeal Book, page 705.

[6]Reasons, [23].

[7]Ibid, [28].

[8]Ibid, [38], [39].

[9]Ibid, [40].

[10]Ibid, [36].

[11]Ibid, [37].

[12]Ibid, [43].

[13]Ibid, [46].

[14]Ibid, [53].

[15]Ibid, [55].

[16]Ibid, [56].

[17]Ibid, [57].

[18]Ibid, [58].

[19]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(1).

[20]Ibid, s 142(3)(b).

[21]Ibid, s 146.

[22]Ibid, s 147(1), (2).

[23]Ibid, s 147(3).

[24]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[25]Cachia v Grech [2009] NSWCA 232, [13].

[26]Op cit 6.

[27]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[28]Ericson v Queensland Building Services Authority [2013] QCA 391.

[29]Harrison & Anor v Meehan [2017] QCA 315.

[30]Ibid, per McMurdo JA at [50].

[31]I will refer in these reasons to an ‘alternative solution’ which has the same meaning as a ‘performance solution’.

[32]Op cit 13.

[33]Appeal book, p 131.

[34]Appeal book, p 764.

[35]Sun v Minister for Immigration and Border Protection [2016] FCAFC 52; Laidlaw v. Queensland Building Services Authority [2010] QCAT 70. The position is different in disciplinary proceedings – see Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348.

[36]Statement of Wayne John Blackman, Appeal book, page 730.

[37]Appeal book, pages 732-734.

[38]Appeal book, page 735.

[39]Ibid.

[40]Ibid.

[41]Reasons,[32]; Appeal book page 739.

[42]Appeal book, page 131.

[43]Appeal book, page 21.

[44]Appeal book, page 113.

[45]Appeal Book, pages 708 – 709.

[46](2002) 186 ALR 145.

[47]Reasons.

[48]Appeal book, page 560.

[49]Reasons, [1].

[50]Appeal book, page 561.

[51]Appeal book, page 610

[52]Appeal book, page 173.

[53]Reasons, [32].

[54]Reasons [26].

[55]Appeal book, page 9.

[56]House v The King (1936) 55 CLR 499.

[57][2016] QCATA 10.

[58]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.

[59]Reasons,[32].

[60]Ibid.

[61]Ibid, [23], [48].

[62]Ibid, [55].

Close

Editorial Notes

  • Published Case Name:

    Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission

  • Shortened Case Name:

    Madden Developments Pty Ltd t/as Stroud Homes v Queensland Building and Construction Commission

  • MNC:

    [2022] QCATA 95

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    05 Jul 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Harrison v Meehan [2017] QCA 315
2 citations
Jump To
Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Madden Developments Pty v Queensland Building and Construction Commission [2020] QCAT 97
2 citations
Jump To
Cite 1 - [2020] QCAT 97
Cite 2 - [2020] QCAT 97
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Officer JGB v Deputy Commissioner Gollschewski and Anor [2016] QCAT 348
2 citations
Jump To
Cite 1 - [2016] QCAT 348
Cite 2 - [2016] QCAT 348
Queensland Building and Construction Commission v Group Kildey Pty Ltd; Queensland Building and Construction Commission v JM Kelly (Project Builders) Pty Ltd [2016] QCATA 10
2 citations
Jump To
Cite 1 - [2016] QCATA 10
Cite 2 - [2016] QCATA 10
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
2 citations
Jump To
Cite 1 - [2016] FCAFC 52
Cite 2 - [2016] FCAFC 52
Woods v Multi-Sport Holdings Pty Ltd (2002) 186 ALR 145
2 citations
Jump To
Cite 1 - (2002) 186 ALR 145
Cite 2 - (2002) 186 ALR 145

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.