Birrell v Queensland Building Services Authority
[2013] QCAT 56
•29 January 2013
| CITATION: | Birrell v Queensland Building Services Authority [2013] QCAT 56 |
| PARTIES: | Alan Birrell (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR015-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 10 February 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | Keta Roseby, Member |
| DELIVERED ON: | 29 January 2013 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The Tribunal sets aside the Authority’s decision and substitutes that decision with a decision that the Authority issue a direction to rectify to the Builder in respect of the Category 2 defects referred to in items 2, 3, 5 and 7. |
| CATCHWORDS: | Application by homeowner to review decision of the Authority not to issue a direction to rectify – failure to lodge complaint for defective building work within time referred to in the Authority’s policy – exercise of discretion – whether lodgement of complaint outside of time frame referred to in policy automatically renders a direction to rectify unfair Queensland Civil and Administrative Tribunal Act 2009, ss 17, 18, 24, 33 Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] CCT QT104-07 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Alan Birrell |
| RESPONDENT: | Ms Kristie Heywood, Lawyer, Building Services Authority |
REASONS FOR DECISION
Mr Birrell[1] entered into a contract with Bawden & Associates Pty Ltd, trading as NQ Pool Warehouse, (the Builder) for the supply and installation of a fibreglass swimming pool at the Birrell’s home in Douglas (the Property), on 25 September 2009.
[1] Together with Tara Birrell.
Following unsuccessful attempts by Mr Birrell to have the Builder rectify alleged defects, Mr Birrell lodged a complaint with the Building Services Authority (the Authority). After inspection the Authority resolved not to issue a direction to rectify to the Builder.
Mr Birrell has applied to the Tribunal for a review of the decision of the Authority not to issue a direction to rectify to the Builder.[2]
[2]The application is made pursuant to ss 17, 18 and 33 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) and ss 86(1)(e) and 87 of the Queensland Building Services Authority Act 1991 (the QBSA Act).
Work commenced at the Property on 4 November 2009 and was completed in or around January 2010.
Mr Birrell first notified the Builder of alleged defects by email dated 9 November 2009.[3] A further email followed on 18 November 2009.[4]
[3] “SOR-5” to Exhibit 4.
[4] “SOR-6” to Exhibit 4.
Mr Birrell says that he contacted the Authority in or about April 2010 and was advised by a representative of the Authority ‘to put his request in writing to the Builder and allow them a period of six months to rectify’ before he could lodge formal complaint with the Authority.[5]
[5] Exhibit 1, page 1, paragraph 3.
Mr Birrell forwarded a further email to the Builder dated 7 April 2010. This email referred to a (then) recent site visit and that the Builder had offered no rectification solution or apology in respect of alleged defects. Mr Birrell went on in the email to say that he was ‘not prepared to accept the defects as they are, and will accordingly not fulfil my obligation to complete payment until such time as they are rectified’.[6]
[6] “SOR-7” to Exhibit 4.
Mr Birrell subsequently lodged a complaint[7] dated 14 September 2010 which was received by the Authority on or about 17 September 2010[8].
[7] Residential and Commercial Construction Work Complaint Form.
[8]Though it is stamped “Queensland Building Services Authority 20 September 2010 Brisbane”: “SOR-8” to Exhibit 4.
On 27 October 2010, Mr Colin Murdoch of the Authority carried out an inspection at the Property in relation to the items complained of by Mr Birrell (the Inspection). Those items are listed on the complaint form as follows[9]:
a) Item 1: Pool not seated level and was left with a raised edge on the main step closest to house.
b) Item 2: Main step was left with a hollow section underneath of about 1 metre on back fence side. This has now extended to about 2.5 metres. A hollow section has developed on house side.
c) Item 3: Shallow end of pool has developed hollow sections under the floor.
d) Item 4: Corner of shallow end is ‘popping’ upwards.
e) Item 5: Crack has developed in tile grouting at shallow end of pool. Tiles are ‘popping’, probably caused by pool lifting upwards.
f) Item 6: Pool has bow in it along longest edge. Bow has got progressively worse over time.
g) Item 7: Pavers slope towards pool at main step closest to house. Runoff should be away from pool.
[9]As per the Initial Inspection Report, by Colin Murdoch, dated 27 October 2010 and annexed as “SOR-13” to Exhibit 4.
By letter dated 9 November 2010, the Authority advised Mr Birrell that the defects at the Property were category 2 defects but that as he did not notify[10] the Authority within the required time period, the Authority would not be issuing a direction to rectify to the Builder in respect of the items complained of (the Decision). The Decision was received by Mr Birrell on 15 November 2010.
[10]Mr Birrell’s evidence was that he did in fact ‘notify’ the Authority, though not with the lodgement of a complaint form, within the time frames referred to by the Authority. This does not need to be further explored given the Tribunal’s decision.
Specifically, the Authority made determinations in the respect of the items complained of as follows[11]:
a) Items 1, 4 and 6 were not defective work. The variances complained of were within the tolerances provided for within the relevant Australian Standard[12] and, accordingly, no action would be taken by the Authority.
b) Items 2, 3, 5 and 7 were category 2 defects. However, because they related to works completed more than 7 months prior to Mr Birrell lodging his complaint to the Authority, it would be unfair to the Builder to give a direction in relation to those works.
[11] Exhibit 4, page 9, paragraph 34.
[12]Item 1: AS/NZ 1839:1194, 7.5, Item 4: AS/NZ 1839:1194, 7.5, Item 6: AS/NZ 1839:93, 7.1.2.
The Authority can require rectification of building work pursuant to s 72 of the Queensland Building Services Authority Act 1991 (QBSA Act), which relevantly provides:
Power to require rectification of building work
(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.
(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 in, the contract for carrying out the building work.
...
(8)A direction cannot be given under this section more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the authority, that there is in the circumstances of the a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly.
...
(14)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.
The current Rectification of Building Work Policy (the Policy)[13], as formulated by the Queensland Building Services Board (the Board), relevantly provides:
[13]“SOR-2” to Exhibit 4. Commenced operation and took effect on and from 1 July 2010, replacing the previous policy which was repealed on 12 March 2010.
(1) Rectification of defective building work
(3)It is a guideline policy of the Queensland Building Services Board that a building contractor who carries out category 1 or category 2 defective building work should be required to rectify that work, unless in the circumstances rectification is unfair or unreasonable.
...
(3) Notification of defects
(1) It is a guideline policy of the Board that if a consumer wants the Queensland Building Services Authority (BSA) to issue a direction to a building contractor to rectify defective building work, the consumer should not delay making their application for a direction if the delay would result in the issue of the direction being unfair or unreasonable in the circumstances.
(2) For section (1), it may be unfair or unreasonable, for example, to issue a direction if any of the following apply:
(a)For category 1 defective building work or residential construction work causing subsidence, the delay exceeds 3 months after the defective work became apparent; or
(b)For category 2 defective building work, the delay exceeds:
(i) 6 months after the building work was completed or left incomplete; or
(ii) 7 months, if the owner notified the contractor of the defect within 6 months after the building work was completed or left incomplete.
Category 1 defects are those defects which, relevantly, adversely affect the structural performance of a building, the functional use of a building or constitute a health or safety issue.[14]
[14] “SOR-2” to Exhibit 4.
Category 2 defects are those defects which, relevantly, do not otherwise meet a reasonable standard of construction or finish expected of a competent licensed contractor.[15]
[15] “SOR-2” to Exhibit 4.
In his statement, Colin Murdoch said: ‘In particular, I resolved that ... as a result of the Applicant’s failure to notify the Authority [sic] prescribed time frame, the Authority would not issue a direction to rectify to the Builder.’[16]
[16] Ibid at paragraph 17.
Mr Murdoch went on to say ‘In my opinion it was not reasonable or appropriate in the circumstances to issue a direction to rectify with respect to the alleged defective work the subject of the Complaint’[17] without giving reasons as to why it was not reasonable or appropriate,[18] or more correctly, why it was unfair.
[17] Ibid at paragraph 22.
[18] Similarly again in paragraph 37.
Mr Murdoch noted that the Authority’s website contained a fact sheet with respect to the making of a complaint in relation to defective work. Interestingly, the fact sheet states, twice, that consumers should not lodge a complaint form until the expiration of the six month statutory warranty period.[19] This is, of course, at odds with the Authority’s submission that the complaint form had to be lodged within six months and corroborates Mr Birrell’s evidence about what he says he was told by a representative of the Authority regarding what was required.
[19] “CM-1” to Exhibit 3.
In his statement, Mr Murdoch conceded that he had made an error in that the letter stated that the Authority would not be issuing a direction to rectify as the delay had exceeded 6 months when it should have been 7 months (from the completion of the building work) given that Mr Birrell had notified the Builder within the 6 month period after the building work was completed.[20]
[20] Exhibit 3, paragraph 34.
The Authority referred the Tribunal to relevant case law. In particular, the following passages are noteworthy.
In the matter of Dixon Projects Pty Ltd v Queensland Building Services Authority,[21] Member Schaffer stated[22]:
In determining this matter, the Tribunal must be satisfied that:
1.there was defective building work and;
2. in all the circumstances that are reasonably necessary and in the exercise of the Tribunal’s discretion, should the notice to rectify be issued?
[21] [2009] CCT QT104-07.
[22] Ibid at paragraph 27.
In the matter of Feoderoff v Queensland Building Services Authority,[23] Member Spender stated[24]:
A direction to rectify in a legal sense is not given solely for the benefit of the homeowner, but rather to ensure proper standards in the industry.
[23] [2005] CCT Q035-05.
[24] Ibid at paragraph 32.
In its submissions, the Authority suggested that, when conducting a review of the Decision made by the Authority, the Tribunal is limited to determining:
a) whether the work is ‘building work’;
b) whether the building work is ‘defective’; and
c) whether it is fair, in all the circumstances, to direct the Builder to rectify the building work.[25]
[25] Exhibit 5, page 11, paragraph 8.
There was no dispute that the installation of a fibreglass swimming pool is ‘building work’.
Whether the building work in items 1, 4 and 6 is defective
The Authority determined that these items were not defective because they were within tolerances allowed by the relevant Australian Standards.
Mr Birrell, however, submitted that the methods of inspection used by Mr Murdoch were ‘largely unscientific’[26] and ‘ignore the possible causes of the problems’[27]. Mr Birrell was concerned that the alleged defects were dynamic and possibly symptomatic of a much bigger issue. Mr Birrell did not provide the Tribunal with any expert evidence in this regard.
[26] Exhibit 1, page 5, paragraph 2.
[27] Exhibit 1, page 6, paragraph 6.
Mr William Ronald (Bill) Piper, the Area Manager for the Authority, also gave evidence at the hearing. Mr Piper told the Tribunal that he would have used the same methods of inspection as Mr Murdoch and that he believed Mr Murdoch had carried out his job correctly.
In respect of the various items, Mr Murdoch gave evidence as follows:
a) Item 1: ‘The difference in the height between the ends of the pool is only 25mm which is well within the accepted tolerance of 45.3mm.’
b) Item 4: ‘The difference in height between the ends of the pool is only 25mm which is well within the allowable tolerance of 45.3mm.’
c) Item 6: ‘I observed a bow inwards of approximately 20 to 30mm which is well within the accepted tolerance of 40.8mm.’
Mr Murdoch went on to say, in respect of these three items, ‘I believe that the cost of rectification of these items would far outweigh the aesthetic gain to the Applicant and ... it would be unfair to the Builder to give a direction in respect of these items’.[28]
[28] Exhibit 3, page 9, paragraph 68.
Mr Birrell pointed out that the Authority, in its Initial Inspection Report, provided no actual measurements or details as to the tolerances provided for within the Standards. This is a valid point raised by Mr Birrell. This information would greatly benefit the homeowner and provide increased transparency in these types of matters.
In the event that Mr Birrell is correct, and these issues develop and impact on the structural integrity of pool or its functional use, then, provided it is within 6 years and 3 months[29], Mr Birrell can lodge complaint with the Authority again claiming a Category 1 defect. If after inspection the Authority agrees, the issue will be dealt with, and rectified, as a Category 1 defect.[30]
[29] Subject to s 72(8) QBSA Act.
[30]Mr Murdoch acknowledged in cross examination that it was possible that these items could be a Category 1 in the future.
The Tribunal appreciates that the issues raised may well be visually ‘irritating’ to Mr Birrell however, if they are only visual or aesthetic in nature and within the tolerances provided for within the relevant Standards, then there is no further recourse for Mr Birrell at this time.
Therefore, in the absence of expert evidence as to the impact of these issues on the structural integrity of the shell or use of the swimming pool, the Tribunal does not propose to adjust the determination made by Mr Murdoch and confirms the Authority’s decision in respect of these items.
Whether the building work in items 2, 3, 5 and 7 is defective
The Authority determined that these items were Category 2 defects.
Mr Birrell submitted that these items should be recategorised as Category 1 defects though Mr Birrell did not provide the Tribunal with any expert evidence in this regard.
The Authority did not consider that they impacted upon the structural integrity of the shell or use of the swimming pool and, in the absence of expert evidence to the contrary, the Tribunal does not propose to adjust the determination made by Mr Murdoch in this regard.[31]
Whether it is fair, in all the circumstances, to direct the Builder to rectify the building work in respect of items 2, 3, 5 and 7
[31] Given the ultimate decision of the Tribunal, this becomes less important in any event.
The Authority says that it would be unfair to issue a direction to rectify to the Builder in circumstances where Mr Birrell lodged his complaint with the Authority 8 months after the work was completed in January 2010 and therefore outside of the time frames referred to in the Policy.[32]
[32] Exhibit 5, page 12, paragraph 8.8.
As Mr Birrell correctly points out, the Authority gives no specific explanation as to why it would be unfair, save that a guideline time frame has passed.[33] Importantly, depending on the date in January the work was completed,[34] Mr Birrell could, at best, have lodged his complaint by the end of August 2010 and still been within the time frames referred to by the Authority; therefore leaving him short by only 17 days.[35]
[33] Exhibit 1, page 3, paragraph 4.
[34] Which neither party was certain of.
[35] 17 September 2010 being the date the Authority received Mr Birrell’s complaint form.
In response to direct questioning by me, Mr Piper initially had difficulty in giving the Tribunal examples of when he had exercised the discretionary power before conceding that he was not aware of any occasion where a direction to rectify had been given to a builder if the complaint had not been lodged within the time frames referred to in the Policy. He told the Tribunal that he considered that doing so would be ‘outside Board Policy’ and that he would have to refer the matter to the Brisbane office.
Similarly, Mr Murdoch told the Tribunal that once the lodging of the complaint exceeded the 6 or 7 month time frame, he would not issue a direction to rectify.
From the evidence of Mr Piper and Mr Murdoch, it is clear to the Tribunal that they are strictly applying the time frames referred to in the Policy without giving further consideration to whether the extended time actually renders the issuing of a direction “unfair”.
The question therefore is whether lodgement of a complaint with the Authority, outside of the time frames referred to in the Policy, automatically renders a direction to rectify ‘unfair’ for the purposes of s 72(14) of the QBSA Act.
At the hearing, the legal representative for the Authority conceded that there was an element of discretion and that it was necessary because each property and inspection were different, though it was a useful guideline.
Section 72 of the QBSA Act gives the Authority a broad power to require rectification of building work. Relevantly, the only limiting factors contained within the section are:
a) the requirement that a direction cannot be given by the Authority more than 6 years and 3 months following completion of the building work; and
b) that the Authority is not required to give a direction if the Authority is satisfied, in the circumstances, it would be unfair to the person to give the direction.
The addition of the Policy into the equation simply adds the example that it may be unfair or unreasonable to order the direction if the complaint is lodged outside of the time frames referred to but that, by the very use of the word ‘may’ requires the Authority to consider whether or not the time frame within which the home owner has lodged their complaint impacts on the fairness or otherwise of the direction. There is no predetermined unfairness by reason of the time frame the complaint is lodged – that is a matter for determination by the Authority in the exercise of its discretion.
Furthermore, the fact that the time frames are referred to ‘examples’ illustrates that there are other factors which can and will impact on the fairness or otherwise of issuing a direction, the timing of the complaint being but one example.
The answer then, to the question whether lodgement of a complaint with the Authority, outside of the time frames referred to in the Policy, automatically renders a direction to rectify ‘unfair’ for the purposes of s 72(14) of the QBSA Act, is no.
Therefore, is it fair, in all the circumstances, including the timing of the complaint, to direct the Builder to rectify the defective building work?
The circumstances considered by the Tribunal include:
a) Mr Birrell’s evidence that he contacted the Authority seeking guidance as to how to proceed and Mr Birrell did what he says he was told;
b) Mr Birrell had previously notified the Builder, and it was requested to rectify them, within the time frames referred to by the Authority;[36]
c) the Authority subsequently determined that the items complained of by Mr Birrell were defects;
d) a very short time had elapsed following the 7 month time frame and, therefore, the likelihood of prejudice to the Builder is highly unlikely;
e) the need to ensure proper standards in the industry;
f) Mr Birrell’s apparent reasonableness in his quest to have the defects rectified.
[36]Exhibit 1, page 4, paragraph 4. At the hearing, Mr Birrell told the Tribunal that he had definitely brought item numbers 2, 3 and 7 to the attention of the Builder (despite the dates referred to in his complaint form) though he was unsure about item 5. Nevertheless, the Builder admitted in its Contractors Statement that the alleged defects had been brought to its attention in writing: Exhibit 4, Annexure “SOR-12”.
It was also noted by the Authority that, even in the event that Mr Birrell had lodged his complaint with the Authority within the time frames referred to in the Policy, the Authority would still have determined that it was unfair to issue a direction to rectify because money was outstanding under the contract in the amount of $9,105.00.
It is difficult to imagine a scenario in which it would seem reasonable for a homeowner to pay a builder the full contract price when faced with a refusal to rectify alleged defects that are later confirmed as defects by the Authority.
In response to direct questioning by me, Mr Birrell confirmed that, if the Builder rectified the defects then, he would have no choice but to pay the full amount of the contract.
The Tribunal, after considering all the evidence, is satisfied that it would not be unfair to the Builder to issue the direction to rectify in respect of the Category 2 defects identified by the Authority.
Accordingly, the Tribunal sets aside the Authority’s decision and substitutes that decision with a decision that the Authority issue a direction to rectify to the Builder in respect of the Category 2 defects referred to in items 2, 3, 5 and 7.[37]
[37] Pursuant to QCAT Act, s 24.
9
0
2