Pappas v Queensland Building Services Authority
[2002] QDC 290
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- Pappas v Queensland Building Services Authority[2002] QDC 290
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Pappas v Queensland Building Services Authority[2002] QDC 290
Pappas v Queensland Building Services Authority[2002] QDC 290
DISTRICT COURT OF QUEENSLAND
CITATION: | Pappas –v- Queensland Building Services Authority [2002] QDC 290 |
PARTIES: | George PAPPAS (appellant) V Queensland Building Services Authority (respondent) |
FILE NO/S: | 27 of 2002 |
DIVISION: | District Court |
PROCEEDING: | Appeal |
ORIGINATING COURT | Queensland Building Tribunal |
DELIVERED ON: | 23 October 2002 |
DELIVERED AT: | Townsville |
HEARING DATE: | 11 October 2002 |
JUDGE: | CF Wall QC |
ORDERS: |
1 and 2. Directions 1 and 2 are annulled5. The respondent is to pay 80% of the applicant’s costs. Those costs in accordance with Scale B of the Magistrates Court.3.Respondent to pay the appellant’s costs of and incidental to the appeal, assessed on the standard basis unless agreed. |
CATCHWORDS: | INFERIOR TRIBUNALS – BUILDING TRIBUNAL – APPEAL TO DISTRICT COURT BUILDING AND ENGINEERING CONTRACTS – PERFORMANCE OF WORK App from decision of Building Tribunal – Wh work defective – Discretion to not order rectification – Unfairness – Duty of Tribunal to give reasons Queensland Building Services Authority Act 1991 ss 72(1), (2), (14) R –v- Judge Miller and the Builders’ Registration Board of Queensland (1987) 2 Qd R 446 – Con. Greening –v- Queensland Building Services Authority and Beauchamp (2001) QBT 76, 22 May 2001 – App |
COUNSEL: | R. Quirk for the appellant C. Eyelander for the respondent |
SOLICITORS: | Alex Nelson and Associates for the appellant Queensland Building Services Authority for the respondent |
REVISED COPIES ISSUED
State Reporting Bureau
Date: 24 October, 2002
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE C F WALL QC
No D140 of 2002
GEORGE PAPPAS | Appellant |
and | |
QUEENSLAND BUILDING SERVICES AUTHORITY | Respondent |
TOWNSVILLE
DATE 23/10/2002
JUDGMENT
HIS HONOUR: This is an appeal from a decision of the Queensland Building Tribunal given on the 21st of March 2002.
On the 20th of September 2001 the respondent directed the appellant to rectify certain interior paintwork which he had carried out at a house situated at 38 Bristol Street, Gulliver, Townsville, owned by Wayne and June Lean.
The appellant applied to the Queensland Building Tribunal for a review of the decision of the Queensland Building Services Authority to direct him to rectify part of the work. The decision of the Authority was in the following terms:
- Rectify the defective paint film to the toilet ceiling.
- Rectify the defective paint film to the ceiling of bedroom 2.
- Rectify the defective finish to the surface of the southern wall in the toilet.
- Rectify the defective finish to the surface of the southern wall in bedroom 3.
The appellant asked the Tribunal to annul the directions. The Tribunal's decision was as follows:
- Directions 1 and 2 were confirmed "conditionally upon the homeowner first installing ceiling ventilation which, in the opinion of the Queensland Building Services Authority inspector, is no less effective than 'whirlybird' ventilation." The ventilation was to be installed within 60 days of the decision of the Tribunal, failing which Directions 1 and 2 were annulled. The appellant was to carry out the rectification work within 28 days of the installation of ventilation by the homeowner.
- Direction 3 was annulled.
- Direction 4 was confirmed.
- The appellant was ordered to pay one half of the respondent's costs on Magistrates Court Scale B.
The appellant has appealed against the first, third and fourth of these orders.
Directions 1 and 2
The appeal against these directions is somewhat academic as the homeowners did not install the ventilation, and the directions are therefore taken to be annulled. He is, however, concerned by their effect on his record.
Argument on the appeal centred around section 72(14) of the Queensland Building Services Authority Act 1991.
Section 72(1), (2) and (14) are in the following terms:
"72(1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
72(2)In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.
72(2)The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction."
Paragraphs 3, 4, 5, 16, 17, 23, 26 and 27 of the Tribunal's reasons for decision, so far as are relevant, are as follows:
"3.The cause of paint failure on ceilings is controversial. The authority's inspector, Milton Stennett, says paint adhesion has failed because of inadequate surface preparation.
- The applicant says the painting is not defective because it complies with the instructions of the homeowner. He says that paint has failed because of moisture retention in the ceiling and that the homeowner refused to install ventilation as recommended. He says that when he painted the ceilings he thought it 90% likely that the paint would fail. He blamed the problem on the refusal of the owners to ventilate the house. It is not disputed that the painter recommended ventilation and the owner rejected that advice.
- Before the house interior was painted ceilings were sound.
- I find the most likely cause of the paint failure to ceilings is moisture retention which has passed through the brittle original coating and caused the new system to fail. There was no evidence that persuaded me that the possibility of surface contamination was anything more than speculation. Ventilation through the top of the roof, particularly in the North Queensland climate, was a reasonable recommendation by the contractor.
- Mr Lean was insistent that a good job must be done, but appeared less than willing to pay extra costs.
- Both parties, the homeowner and the experts recognise that a difficult situation exists with the ceiling paint. If the cause of failure is contamination or poor preparation, further sanding and repainting will resolve the problem. If the problem is moisture retention, repainting and ventilation are the best option available on the evidence. There can be no guarantee that the finish will not fail and that mould will not reappear. I consider that in the circumstance where the contractor believed there was a very high risk that the ceiling paint would fail, that he should have insisted on the homeowner acknowledging the risk in writing, or alternatively installing ventilation as recommended, before he continued with the work.
- It appeared to the inspector that a proper standard had not been achieved in this case because paint was peeling from the ceilings shortly after it was applied. However, in view of the applicant's statements about his recommendation for ventilation, and the refusal of the homeowner to follow that recommendation, I consider the homeowners should have been joined in the proceedings.
- I acknowledge that the applicant took reasonable steps to deal with the problem, particularly by calling in Mr Saputo, a representative of Dulux, and Mr Marteene, a painting inspector, to advise regarding the problem with the ceiling. Nonetheless, the applicant's decision to go ahead and paint, whether Mrs Lean said 'Just paint it' or, as she says, 'Do what you have to do', was unwise."
The Tribunal thus accepted the evidence of the appellant. When he quoted for the work, the appellant does not appear to have been aware of the ceiling moisture problem, if his evidence at page 24 of the transcript of the Tribunal's proceedings is any indication. The paint failed after four days because of moisture.
In my view, the Tribunal was correct in finding that the painting work was defective. The appellant knew it was likely to fail because of moisture. The work was "faulty or unsatisfactory" in a relevant sense, notwithstanding that the appellant warned the owners of likely failure. See R v. Judge Miller and the Builders' Registration Board of Queensland (1987) 2 Queensland Reports 446, especially at page 458. In these circumstances, there was a discretion in the Authority to direct rectification work. The Authority exercised that discretion against the appellant, no doubt because of the opinion of its inspector, Mr Stennett. His evidence was not accepted by the Tribunal, and the Tribunal was, accordingly, required to exercise the discretion afresh.
Mr Quirk for the appellant submitted, correctly in my view, that relevant to section 72(14) is the absence of fault on the part of the painter. It is also the case that the Tribunal was asked to consider the application of section 72(14), and does not appear to have done so. It was clearly in error in not doing so.
Mr Eylander for the respondent conceded that the Tribunal did not directly refer to section 72(14), but submitted that the Tribunal effectively considered matters relevant to section 72(14). Reference was made to paragraphs 23 and 27 of the Tribunal's reasons. He further conceded, correctly in my view, that the Tribunal's reasons "could have been more expansive", and that the problem with the moisture and the direction of the owners that the appellant paint notwithstanding that moisture, were relevant considerations to the question of unfairness for the purposes of section 72(14).
In my view, once raised it was incumbent upon the Tribunal to consider whether or not the discretion conferred by section 72(14) should have been exercised in favour of the appellant, more so where the Tribunal had reached a decision different from the decision of the authority as to the cause of the paint failure.
The Tribunal's decision on Directions 1 and 2 must, for these reasons, be set aside. In deciding whether to remit the case to the Tribunal for further hearing or rehearing as to these directions, it is relevant to consider whether in fact the Tribunal should have determined that the Authority was not required to give them on the ground of unfairness within the meaning of section 72(14).
In this respect, the following considerations are relevant:
- The appellant was not aware of the moisture problem when he quoted.
- When the appellant became aware of the real potential for problems the Tribunal found that he recommended ventilation, and that the owners rejected that advice.
- The cause of the paint failure as found by the Tribunal.
- The finding of the Tribunal that ventilation through the top of the roof was a reasonable recommendation by the appellant.
- The irrelevance of the Tribunal's conclusion that the appellant should have insisted on the homeowners acknowledging the risk of paint failure in writing where the Tribunal had determined that the homeowners had, in fact, been so advised before the work commenced.
- The conclusion of the Tribunal that, for these reasons, the homeowners should have been joined in the proceedings.
- The ventilation condition added by the Tribunal to Directions 1 and 2.
- The statement by the Tribunal that costs might have been awarded against the owners if they had been a party to the proceedings.
- The fact that it was the owners who directed the appellant to "paint in the almost certain knowledge, (as a result of what the appellant said to them), that the paint would fail". (Tribunal's Reasons for Decision, paragraph 28).
A commonsense approach is required to section 72(14). Considerations of justice, fairness, equity and fault are involved, depending upon the particular circumstances.
This is analogous to the approach which Mrs O'Callaghan, Member, appears to have taken in Greening v. Queensland Building Services Authority and Beauchamp (2001) QBT76, 22nd May 2001, a decision with which I respectfully agree. It has some factual similarities to the present appeal.
In my view, the Tribunal should have determined that the Authority was not required to give Directions 1 and 2, because it would have been unfair to the appellant to do so. There is, thus, no point in remitting the case to the Tribunal for further hearing or rehearing. The appeal, therefore, succeeds so far as these directions are concerned.
Direction 4
Paragraphs 18, 19 and 20 of the Tribunal's reasons are as follows:
"18. As to the defective wall finishes, particularly in bedroom 3, I find the comments of Mr Hart in his report of 23 October 2001 to be persuasive. He said that the quality of workmanship displayed was good, with sharp cut-in lines and good even application of coatings but that the bedroom 3 southern wall was 'out of character with the remainder of the work in as much there was a large area where the paint had detached from the surface prior to repainting. This had not been sanded back to provide a 'feathered' surface and was easily identified, thus creating an unpleasant appearance'. I prefer the evidence of Mr Hart to that of Mr Baker who said that at 2 metres distance, the defect in bedroom 3 was not noticeable in normal light conditions so that the standard of painting meets Australian Standard 2311.
- The problem with bedroom 3 arises because there was no specification for the work, so that the extent of preparation was not stated in writing. AS2311 section 9 requires a painter to provide such a specification. The applicant was given the opportunity to quote for the job. It is unsatisfactory that once he had started work he complained about the pre-existing amateur paintwork and proposed an extra charge to strip the wall back.
- Having accepted the evidence of Mr Hart about the appearance of the wall in bedroom 3, I confirm Direction 4."
Mr Hart is a "coatings corrosion expert" who was retained by the Authority (paragraph 8). Mr Baker is an inspector for the Master Painters Association and had provided a report to the appellant (paragraph 10).
Mr Quirk submitted that the Tribunal gave no reasons for preferring Mr Hart to Mr Baker and that, having relied on Australian Standard AS2311 in paragraph 19, the Tribunal should have accepted Mr Baker's evidence based as it was on AS2311.
It is apparent, though, that the Tribunal determined that the work was defective because it had "not been sanded back to provide a 'feathered' surface" notwithstanding that at two metres' distance this may not have been "noticeable in normal light conditions". Further, different sections and not the same sections of AS2311 were referred to in paragraphs 18 and 19 respectively.
What Mr Baker said in his report was that "at 2 metres defect in bedroom 3 not noticeable at that time of day (normal light conditions)", and "In reference to AS2311 visual inspection, I believe the defects to wall areas are consistent with good trade practice".
In his statement, which was before the Tribunal, the appellant said in paragraph 38:
"In daylight from a distance of 2 metres there is no defect visible and such a result complies in all respects with AS2311."
It seems to be implicit in Mr Baker's report that there were in fact defects in the work, but that they were not apparent when looking at the wall from two metres away in normal lighting conditions. Mr Hart gave evidence before the Tribunal and was not cross-examined on this issue. Mr Baker did not give evidence.
In my view, it is sufficiently clear or apparent why the Tribunal preferred Mr Baker to Mr Hart. Mr Baker said the work was defective and why. Mr Hart said any defect was not noticeable from two metres in normal lighting conditions. In my view, there is no substance in this ground.
Costs
The costs order made by the Tribunal should be set aside. The appellant succeeded there on one of the four directions and should have succeeded on two others. He failed on the remaining direction.
Judging from the transcript and the Tribunal's reasons in paragraphs 18, 19 and 20 some, but not a great deal, of extra time was involved in considering the evidence in relation to Direction 4. Mr Hart gave evidence about Directions 1 and 2. He was not questioned about Direction 4. Mr Baker did not give evidence; the appellant merely relied on his report. Most of the hearing before the Tribunal was devoted to Directions 1 and 2. The appellant did, though, contest the validity of Direction 4 and the Tribunal was required to deal with that issue.
In general terms, the appellant was and should have been successful before the Tribunal. In my view, the respondent should pay 80 per cent of the appellant's costs of the hearing in the Tribunal. Costs should be assessed by reference to the Magistrates Court Scale B which appears to be the appropriate scale, having regard to the quantum involved.
So far as the costs of the appeal are concerned, the appellant has generally succeeded. In real terms, no extra time or very little was involved in the argument in relation to Direction 4, compared to that in relation to Directions 1 and 2. In my view, the appellant's failure in that respect has not increased costs. In my view, the costs of the appeal should follow the event.
I make the following orders:
- The appeal is allowed.
- Orders 1, 2 and 5 of the Tribunal are set aside and in lieu thereof the following orders are to be substituted for those made by the Tribunal:
"1 and 2.Directions 1 and 2 are annulled."
"5.The respondent is to pay 80 per cent of the applicant's costs, those costs to be in accordance with Scale B of the Magistrates Court."
- The respondent is to pay the appellant's costs of and incidental to the appeal to be assessed on the standard basis unless agreed.
...
HIS HONOUR: Further submissions, in my view, would not add to the matter or cause me to alter the view I have expressed as to costs below or in this Court.