Bourne v Queensland Building Services Authority

[2012] QCATA 102

CITATION: Bourne v Queensland Building Services Authority [2012] QCATA 102

PARTIES:	Elizabeth Anne Bourne (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: APL279-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Mr John Jerrard QC, Member

DELIVERED ON: 8 June 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.        Leave to appeal is refused.

2.        The appeal is dismissed.

CATCHWORDS: Whether grounds exist to overturn a strike out order

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. This matter is an application for leave to appeal from, and an appeal against, a decision of a member of this Tribunal, made on 14 July 2011, ordering that both Application GAR089-11, filed on 7 April 2011, and Application GAR105-11, filed on 23 March 2011, be struck out, as no reviewable decision had been made out by the applicant.

2. Applications GAR089-11 and GAR105-11 had been filed by Elizabeth Bourne in this Tribunal, in which Ms Bourne applied for a review of what she described in each application as a “decision” of the Building Services Authority (the ‘BSA’), which decisions were communicated to her by letters respectively dated 23 February 2011 and 22 March 2011.  Those two letters conveyed an offer by the BSA to return the parties to the position existing on 14 April 2010.  That position was that the BSA had issued a notice to licensed contractors, inviting them to tender for rectification work on premises owned and occupied by Elizabeth Bourne.  She had been dissatisfied with the wording of the tenders, and the manner in which the BSA proposed to proceed with that rectification work, and had demanded the BSA stop “all tenders and actions regarding my property”.  The BSA did so stop, and then on 12 February 2011, Elizabeth Bourne contacted the BSA, complaining of the condition of her home, and requesting various specified rectification works be carried out.

3. To appreciate the nature of the works suggested in 2010 by the BSA, and the works requested in 2011 by Ms Bourne, it is necessary to have regard to the history of the dealings between the two parties from mid 2008 onwards.  That general history appears in the documents which comprise a large lever arch folder submitted to this Tribunal by Elizabeth Bourne, and helpfully paginated and indexed by her.  Those documents include a copy of a quotation dated 11 February 2008 from a company Weirkids Pty Ltd, for various building work to be performed on Elizabeth Bourne’s home at 63 Mount View, Drive Coolum, Queensland.  The contract, reproduced at pages 140-143 of Elizabeth Bourne’s evidence folder, when read with the quote, provides for the supply and installation of Shadowclad sheeting to specified walls of a house at 63 Mount View Drive.  It provides for the work to start on 25 March 2008, and that it should be practically completed by or on about 4 April of that year.

4. Elizabeth Bourne returned to Mount Coolum on 17 June 2008, after some three weeks in Victoria.  She was dissatisfied with the appearance of the work on her house, which she understood was only being finished in mid May; and on 26 June 2008 received a quotation from a Sunshine Coast builder for stripping back 1 square metre of damaged Gyprock ceiling lining, and installing new Gyprock lining.  The quotation also provided for the repairing of some minor damage to a wall area above a shower recess in the bathroom, and an accompanying letter from the proposed contractor describes the contractor being told that damage to her property had occurred during torrential rain in recent storms, on 2 June 2008.  That letter informed her that the contractor had noticed that a TV antenna on the roof area was located above the bathroom ceiling and, in the contractor’s opinion, wind driven rain was able to access a gap that existed in the roof sheeting, apparently where the pitched roof of the house adjoined a skillion roof above the bedroom ceiling.  The contractor also remarked that an inspection of the roof space (particularly the ceiling of the bedroom) showed that the sarking had fallen away below that area, and debris was evident in the ceiling space.  The contractor’s opinion was that water entry had allowed debris to access the roof space and onto the ceiling, causing the damage.  The contractor also remarked that in the contractor’s opinion, the water entry to the bathroom had occurred as a result of the sarking also becoming displaced and allowing debris and water entry to occur.

5. Then followed correspondence between Elizabeth Bourne and the builder from Weirkids, who appeared to accept that there was a leak on the southern side of the house, and described the cause of the problem of being “the gable roof flashings”.  Mr Weir of Weirkids explained further that “we removed the gable flashing directly over the area of leak and where the external sheet cladding was warped and found the water entry point where the first of the tv dishes coaxial cable was ran under the gable flashing”.  He wrote that “the tv dish installer had cut a section out of the roof flashing so as to let the cable run through.  The problem with this is that it also let water running down roof gain access to underneath flashing and down space to between external building paper and external wall cladding.  Thus causing the wet floor in bedroom and the warping in the three external wall sheets”.  He continued “While we were there we temporarily sealed up problem areas so as to stop further leakage and damage”.  He added:

   “if you recall me saying that the flashing did need some attention as on the inspection was found that they were too small and were cut too short where pitch of roof changes, thus allowing the water entry”.

6. He had worked out a quote for

   “removing existing flashings to both sides of the roof area and supply and fit new wider covering flashings to solve water problem”.

7. He added (in a communication sent 2 October 2008) that

   “I would say that the reason why the existing weatherboard on house were in such poor condition was the ongoing water entry through poor fitted flashings fitted when the house was first built and installation of tv dish.  In regards to the external wall sheet, it was evident that the sheets did not warp as a fault of supplier or installer but rather as of water entering roof and water soaking the rear surface of wall sheets.  Which would steer further towards an insurance claim as Weirkids building and design cannot be held responsible for particulars regarding the roof area of house”.

8. In a further letter 3 October 2008 he repeated the opinion that there was “clearly a home insurance claim”, because “The problem here is that the water leaked through roof and then penetrated the inside face of sheet which made it warp”.

9. Elizabeth Bourne’s reply to the builder’s suggestions and observations was to state (on 13 October 2008) that she held the company Weirkids fully responsible to the damage to the cladding, for “not adhering to installation guides, and waterproofing of the product,” and to make the point that the damage to the house was so immediate (within weeks) and so major, that “it is not the fault of the product, but the workmanship, and installation of the product and or waterproofing the area, by your company Weirkids.”  She also complained of having being told, in response to a query by her, that there was no warranty for the work done by Weirkids, and refused to claim on her insurance, as suggested by Weirkids.  (I understand the insurance which Mr Weir had suggested be the subject of complaint related to the installation of the TV antenna).  Elizabeth Bourne’s position, expressed in her letter to Weirkids of 13 October 2008, was that the AusStar dish had been installed 3 years earlier by a tenant, and had created no problem internally, no matter how badly it was installed.

10. On 10 November 2008 the damage claims administrator for Access Television Services wrote to Elizabeth Bourne, responding to a claim she had recently made against Access Television Services, in respect of a claim that the installation of a television service in 2006 had caused the water damage to her property at 63 Mountain View Drive.  The letter advised that Access had arranged for a supervisor on the Sunshine Coast area, and a quality technician, to assess the complaint, and the supervisor had made a report.  The supervisor advised the main point surrounding the decision was due to the fact that the leak was in a different location to where the dish was installed 2 years earlier, and there was no water trail internally following the leak.  The supervisor also stated that had the dish been installed incorrectly, it would have caused a leak a lot sooner, as opposed to 2 years later, and that the supervisor had confirmation that within the last 2 years there had been various other work in the vicinity, replacing cladding and completing renovations directly where the AusStar cables had been installed.  Accordingly, Access Television asserted to Ms Bourne that their supervisor had confirmed that the AusStar installation was not the cause of the damage in question, and had been completed to AusStar standards.

11. On 10 November 2008 Ms Bourne complained to the BSA about Weirkids, including a complaint that Weirkids had asked her to claim on her insurance whereas she had asked Weirkids to use its insurance on her claim against them.  On 3 December 2008 an inspector from the BSA attended her premises and that same inspector filed a report dated 5 December 2008, in which he expressed the opinion that the roof flashing was leaking before the installation of the Shadowclad ply cladding.  That inspector, Mr Blumel, inspected the roof in company with Mr Weir, and accepted that Weirkids had not removed or altered the roof or the roof flashing during installation of the exterior cladding, and that it had simply been slid up behind the existing flashing.  That acceptance meant Mr Blumel said to Elizabeth Bourne, and wrote to Elizabeth Bourne to say, that “the builder is not responsible for the cause of the water penetration or the consequential damage”.  Mr Blumel also accepted Mr Weir’s statements to him that Mr Weir had, as he agreed he had promised with Ms Elizabeth Bourne to do, applied three coats of paint to the building, rather than only 1 coat, which Elizabeth Bourne complained was all he had applied.

12. On an unspecified date in the first half of 2009, Elizabeth Bourne made a lengthy complaint to the BSA about Mr Blumel, in which she principally contended that Mr Blumel had been motivated to protect Mr Weir from adverse findings and criticism.  Her complaints included that it was Mr Blumel who had volunteered the suggestion that Mr Weir had not unscrewed the flashings, to install the new cladding, but had simply “slipped it up and under”.  She also contended that Mr Weir had said to her that “you are just after free flashings” during the course of that inspection, on 3 December 2008.  She had previously learnt from Mr Weir himself, when he had worked on her house, that he occasionally performed inspections for the BSA.  She said in her complaint about Mr Blumel, that Mr Blumel and Mr Weir had colluded against her interests and in Mr Weir’s favour.

13. Regarding the condition of her house, quite soon after the report of 5 December 2008 was given to her, she had arranged for an inspection of her premises by a Mr Taverner, from Carter Holt Harvey Wood Products Australia, the providers of Shadowclad wall cladding.  That inspection resulted in an report of 10 February 2009 from Mr Taverner to Elizabeth Bourne, in which Mr Taverner said:

    §  The correct nailing pattern and nail location, as detailed by Carter Holt Harvey’s installation manual, had not been followed, which may have contributed to excessive movement within the sheets.

    §  There did not appear to have been any primer applied to laps, cut edges, or the underside of the sheets, during installation.

    §  Inadequate or no expansion gaps had been provided for horizontal flashings.

    §  The sisalation paper used did not appear to be “breathable/vapour permeable”.

14. Mr Taverner added that “it is foreseeable that the long term performance of the Shadowclad may well be compromised due to correct installation procedures not being followed”.

15. Ms Bourne supplied a copy of that report to Weirkids, which, on 12 February 2009, replied contending that the correct procedures had been followed.  Mr Weir said that Weirkids did in fact use the correct sisilation paper, had followed the correct fixing guidelines, did allow for an expanding gape (both vertical and horizontal), that all cut edges and laps had no exposure to external conditions, and that while as a builder of 20 years experience he agreed that that under some circumstances the incorrect fixing might cause immature breakdown of external cladding, in the case of the Shadowclad at 63 Mountain View Drive, “it is on record that after an inspection by Ross Blumel, that the warping of the Shadowclad external sheeting was caused by the entry of rain water through the poor condition of flashings and poor installation of TV dish”.

16. On 2 March 2009 Elizabeth Bourne made a further complaint to the BSA about the work done at the premises by Weirkids, this time complaining of defective installation of the full exterior house cladding.  She attached the report by Mr Colin Taverner of CHH Wood Products Australia.  That resulted in communications passing between Mr Weir, Mr Taverner, and Mr Blumel, from which it emerged that Mr Taverner had not been told by Elizabeth Bourne of the water leakage to the area behind the cladding.  Mr Blumel also made a further inspection of the premises on 10 March 2009, and recorded that “I inspected the nailing in general which appeared to be holding the ply up on the wall satisfactorily”.  He added that “all exposed edges that I could see are painted” and that “the builder advised that the expandable gaps are in fact and sealed over with a flexible sealant”.  He added that “I could see sisalation paper at the bottom of the ply and the builder confirmed it was in fact a breather type paper”.

17. It appears from those comments of Mr Blumel’s that he was prone to disagree with Mr Taverner’s description of the installation as defective.  On 20 March 2009 he wrote to Mr Taverner, advising the latter

    “I agree that if a builder does not follow the manufacturers installation recommendation and things go wrong they leave themselves open to having to carry out rectification which can be a cost.  However in this instance the bowing is limited to the area where the water entry has been detected and the rest of the ply cladding is performing satisfactory to date. …In this instance the water entry was leaked via the defective roof which was not part of this builders work.”

18. Mr Taverner replied on 15 April to Mr Blumel, saying he had amended his report.  He added the following paragraph (to Mr Blumel).

    “Unfortunately, it is not possible to ascertain if water ingress was the single contributing factor to the sheets warping.  If the exact installation details for Shadowclad were followed and the sheets were still warped then it may well be attributed water ingress, however, I have seen instances where Shadowclad sheets have warped with no presence of water behind the sheets but correct installation procedures were not followed.”             

19. On 31 March 2009 Elizabeth Bourne sent to Mr Blumel some more evidence relevant to her complaint about the allegedly defective installation cladding, saying another area was warping, with a big gap, at the far end of the house.  She asked Mr Blumel to inspect the area and enter her photos and relevant information into the file.  Mr Blumel responded by asking Mr Weir to investigate “and rectify if necessary”, adding that “If it relates to the roof then obviously that was not part of your contract.”  Thus advised, Mr Weir made an inspection on 31 March 2009, and informed Mr Blumel that “it is the roof what is to blame and not that shocking builder”.

20. Then on 15 April 2009 Mr Taverner submitted a written report to Mr Blumel, repeating verbatim the matters raised in his report to Elizabeth Bourne of 10 February 2009, but adding the statement that “Further documentation provided to me by yourself, indicates an existing water ingress issue above the affected Shadowclad sheets.  The presence of water behind the back face of the Shadowclad and sisalation paper may also contribute to the ‘warping’ of the sheets’”.  Mr Blumel wrote to Elizabeth Bourne on 17 April 2009, regarding her complaint made on 31 March 2009.  He wrote that

    “It is conceded that the ply may not be installed precisely in accordance with the manufacturer’s recommendations.  However, the only area that has demonstrated any ill affects to date is where water penetration has occurred from the vicinity of the roof and associated roof flashings.  The builder did not remove or alter the roof or the roof flashings during installation of the exterior cladding.

    Due to the fact that this water entry is NOT a consequence of the builder’s work and the ply is only showing ill affects where this roof water has entered behind the ply cladding, it is now considered appropriate for BSA to close this file.”

21. Somewhere around that time Elizabeth Bourne made her undated complaint to the BSA about Mr Blumel.  Mr Col Wright, the Deputy General Manger of the BSA, wrote to Mrs Bourne on 19 May 2009, advising her that a Senior Building Inspector Bob Clayton, would be making an independent assessment of the work on her house, relative to her complaint about Mr Blumel.  Mr Wright also received a 3 page report from Mr Blumel, in which Mr Blumel defended his actions, and repeated his opinion that the roof flashing was leaking prior to the installation of the ply cladding.  Someone has written, next to that expression of opinion in that report, “why wasn’t this observed by builder when board stripped” (apparently written by either Mr Clayton, or Mr Wright, on the receipt of Mr Blumel’s report).  Elizabeth Bourne has received a copy of that report (apparently under freedom of information), and makes much of that comment.  In Mr Blumel’s defence, the point should be made that his opinion is consistent with the very first report which Elizabeth Bourne received in this matter, from the builder who quoted to repair the damaged Gyprock wall in June 2008.

22. Mr Clayton inspected the premises on 29 May 2009 and reported on 10 June 2009.  He came to a different opinion from Mr Blumel, and an exchange of emails shows that they have agreed to differ.  Mr Clayton’s opinion, expressed at page 2 of his report (paragraph 1), was that the exterior cladding was not able to disperse water away or from the sheeting joints, as required by the manufacturer.  He went on “The fact is that the material has not been installed as per the manufacturer details in the installation manual”.  Mr Clayton wrote with respect to the complaint about defective installation of the cladding, that the issues of concern were that the construction of the horizontal joints was incorrect as there was no drainage gap at the junction of the sheeting and the metal flashing.  The exposed edges of the sheets have not been sealed as required to prevent water entry.  He considered it could be deduced that if exposed external edges were not coated as required (as he thought was the case) then the concealed cut edges and ends were in a similar condition.  He wrote that a failure to install a horizontal joint as detailed in the manufacturer details would result in moisture being trapped and not dispersed away from the sheeting.  Another defect observed was that excessive sealant had been applied to the juncture of the roof sheetings and flashings.  He accepted advice by Elizabeth Bourne that Mr Weir had applied that sealant in those locations, and considered that that was confirmed in the documents supplied by Mr Weir.  He also concluded that he would not require Mr Weir to replace the flashings because “it is not apparent that the flashings were damaged and minor repair of alignment might be required during the rectification of the cladding”.  However if the flashing required replacement through no fault of Mr Weir, Elizabeth Bourne would need to pay for that replacement.

1. On 22 June 2009 Elizabeth Bourne emailed Mr Clayton, informing him that water was now leaking into 2 places in her house.  She made similar complaints in an email to Weirkids on 23 June 2009.  On 23 June 2009, the BSA issued a notice described as a “request to rectify” to Weirkids Pty Ltd, requiring it to rectify items specified in the rectification of completion direction, which request stated that the installation of the Shadowclad wall grooved exterior wall cladding to all elevations of the building has not been in accordance with the manufacturing installation details in regard to the inadequate provision of horizontal joints, at junction of sheets and metal flashing, inadequate application of appropriate coating to ends of sheets and laps, and fixing spaces in several locations being inadequate.  There was also a description of excessive deflection of Shadowclad grooved exterior wall cladding being evident on these elevations, and excessive use of sealant at the juncture of roof sheeting and flashing was evident.  

2. Next there was an inspection at Elizabeth Bourne’s property, on 25 June 2009, with those present being Mr Weir (the builder), Mr Taverner of Carter Holt Harvey, and Elizabeth Bourne.  Her later correspondence discloses that she was disappointed with the attitude demonstrated by Mr Taverner at that meeting, in that she considered he did not criticise the installation of the Shadowclad sufficiently strongly, appeared to her to approve the method of installation which he had previously criticised to her, and spoke sometime alone with the builder.  In an email sent by her on 25 June 2009 (apparently to Mr Weir) she described how she had said to Mr Taverner (in response to his failure to criticise the appearance of the Shadowclad) “would you like a picture of this put on the internet as an advertisement for your product and company?”  Her email asserted that Mr Taverner said in reply “your credibility is in question now” (“with a nasty look”), and all of this distressed Elizabeth Bourne.  She was also concerned that faulty installation may have resulted in her warranty with Carter Holt Harvey being voided.

3. After that Mr Weir communicated with Elizabeth Bourne, reporting an undertaking by Carter Holt Harvey to issue a 25 year warranty for the Shadowclad, so long as a few “small issues” were rectified.  Mr Weir describes those, and suggested he commence the work on 20 July, if that suited Ms Bourne.  He also undertook to arrange with Mr Taverner to inspect the work after completion, and to put the promised 25 year warranty in writing.

4. It appears from later communications that between 20 and 22 July 2009, Mr Weir purported to carry out the requested rectification work at her home.  On 23 July 2009 she complained to him, and to the BSA, of damage done to her house during the performance of that rectification work, and informed him that she had taken photographs of it.  On 24 July 2009 she received correspondence from APIA Home Insurance, advising that, in respect of her claim for warping of the external wall cladding, made on her home insurance policy, that it had been assessed by a Mr Hoskins, who had reported to APIA that:

   §    The wall cladding sheets were not quite completely nailed as directed by the manufacturer, which had resulted in movement of the wall cladding;

   §    That movement was allowing moisture to penetrate resulting in the nails at the joints being pulled at the east and west walls;

   §    The cladding had no damp proof course at the lower edge or ant capping to prevent infestation of termites or the progression of water;

   §    Water had not penetrated into the cladding from the roof, or through the cables from the disc (now removed) on the roof;

   §    Had the material been installed in accordance with the manufacturer’s requirements, it would have been water tight and therefore sealed;

   §    Penetration was not due to storm and tempest but the occurrence that the sheets were incorrectly installed.  The letter advised that there had been no storms/rainwater damage to her home, and her claim was rejected.

5. Next, on 29 July 2009 she received a report from Mr Dalla Via of Wood Products Australia, reporting his findings from a visit “last Thursday” (presumably on 23 July 2009) from which he concluded that the inspection that day had demonstrated that the Shadowclad at her property had still not been installed in accordance with Carter Holt Harvey product installation literature.  The report advised of 8 specific matters, in which installation was still not in accordance with the Carter Holt Harvey literature, and that to ensure the long term durability, structural adequacy and aesthetics of the project, those items must be addressed.

6. On 2 August 2009 Elizabeth Bourne complained to the Premier about the conduct of the BSA, and on 3 August 2009 BSA Inspector Geoffrey Barrett reported on an inspection of Ms Elizabeth Bourne’s house, carried out on 31 July 2009 by Mr Barrett, in company with Bob Clayton of the BSA.  Mr Barrett’s report noted that Mr Weir complained that he had performed the rectification works in accordance with verbal instructions from Mr Taverner, and that Mr Taverner’s apparent satisfaction with what was done conflicted with Mr Dalla Via’s subsequent inspection.  Mr Barrett’s report recorded that he had told Mr Weir that the installation of the Shadowclad was not in accordance with the manufacturer’s manual, and Mr Barrett’s report concluded that Mr Weir had not rectified the cladding installation as required, to satisfy the request to rectify issued by the BSA.  He noted that Mr Weir proposed to speak to the manufacturer, and get back to the BSA.

7. On 4 August 2009 the BSA issued a direction to rectify, to Weirkids Pty Ltd, in direction number 33357, (presumably under the power given by section 72 of the Queensland Building Services Authority Act 1991).  That direction asserted that:

   “The installation of the Shadowclad Grooved exterior wall cladding to all elevations of the building is not in accordance with the manufacture installation details in regard to:

   §  Inadequate provision of horizontal joints at junction of sheets and metal flashings; and

   §  Fixing spacings in several locations is inadequate.”

8. It also asserted that “Excessive Deflection of Shadowclad Grooved exterior wall cladding is evident on various elevations”.

9. On 19 August 2009 Bob Clayton swore an affidavit filed in proceedings being conducted in the Commercial and Consumer Tribunal in application QR114-09.  Those included applications to review the decisions of the Authority, respectively dated 5 December 2008 and 17 April 2009, not to issue directions to rectify Elizabeth Bourne’s home to Mr Weir.  Mr Clayton’s affidavit describes how, having read a statement of reasons of the BSA dated 3 August 2009, he had determined that the BSA needed to reconsider its position, and to issue Weirkids Pty Ltd with a formal direction to rectify, due to the nature of the defective building work.  Mr Clayton’s affidavit swore that he had the opinion that the first and second decisions in the matter (those on 5 December 2008 and 17 April 2009) were incorrect, that the installation of the ply cladding was faulty and defective, and that it was not installed in accordance with the manufacturer’s instructions with regard to the inadequate provision of horizontal joints at juncture of sheets and metal flashing, and fixing spaces in several locations being inadequate, and that the ply cladding installation was “category figure 1 defective building work”.

10. On 8 September 2009 Mr Clayton established, after email exchanges with Elizabeth Bourne, that Mr Weir of Weirkids Pty Ltd had not complied with the direction to rectify issued on 5 August 2009, and had neither attended at the site, nor done any work.  He had made no contact at all.  Mr Clayton advised Elizabeth Bourne that accordingly her claim would now be assessed under the BSA’s statutory insurance scheme.  Mr Clayton likewise advised Mr Weir, of Weirkids Pty Ltd, that Weirkids might have 2 demerit points placed upon its licence, and that the BSA reserved its right to take further action to limit any loss incurred by BSA in having the works rectified. 

11. On 11 September 2009 Mr Clayton informed Elizabeth Bourne that her claim under the statutory insurance scheme had been accepted, and that the next step was to arrange a tender meeting for the proposed rectification. Although he did not explain this to her, presumably he had in mind the BSA exercising its powers under section 74 of the Queensland Building Services Authority Act 1991, empowering the BSA to invite tenders from licensed contractors to carry out unrectified building work.  Elizabeth Bourne responded by email, asking about “what is not included”, such as “underlying damage, uncovered when work does happen”.  She also asked about her rights or options “about change of products”, describing how the manufacturer, Carter Holt Harvey, was refusing to deal directly with her, and only would do so through the BSA.

12. Then followed correspondence between Elizabeth Bourne and the BSA, and in which a document described as “Scope Of Works For Defective Building Work” dated 11 September 2009, was provided to her, with an attached explanation that it was a tender for the reasonable cost of rectification by licensed contractors for the work required to rectify the defective residential construction work detailed in the complaint form.  Elizabeth Bourne queried both the file number appearing in the document, and its content, contending that the “scope of work” should specify that any Shadowclad linings removed should be replaced by new Shadowclad exterior wall linings.  Eventually, on 25 September 09, Mr Wright of the BSA caused a second scope of work to be issued, dated 24 September 2009, specifying (as requested by Elizabeth Bourne) that removed Shadowclad exterior wall linings be replaced by new Shadowclad exterior wall linings and (as had the earlier scope of work issued on 11 September 2009), asking for quotes to “remove roof flashings to ends and store for future use”, and further quotations to “replace roof flashings in accordance with acceptable building practice”.  The new document had both old and new file numbers.

13. Elizabeth Bourne then applied to the Commercial and Consumer Tribunal in proceedings numbered QR257-09 to review the “second scope”.  This was despite having been advised on 25 September 2009 by Mr Wright, of the BSA, that because the scope of work was to be provided to tendering contractors, its only attachment would be the manufacturer’s specifications for installation, and that prior reports were not relevant, as the work which they related to was being removed in its entirety.  He disputed Elizabeth Bourne’s contention, previously made to the Authority, that it was hiding information from potential tenderers, replying that “BSA has not included previous reports with tender documents as they have no meaning to rectifying builders who will be removing the defective work to which they relate”.  On 18 January 2010, Elizabeth Bourne complained to the Premier that the BSA legal team had learnt that she had previously made accusations to the Premier of misconduct and fraudulent activities by the BSA (in her complaint to the Premier sent Sunday 2 August 2009).

14. On 25 February 2010, a compulsory conference was held in five matters which had consolidated into one matter numbered QR114-09, that conference being held in this Tribunal.  That conference resulted in a direction in these terms:

    “1.     Leave is granted for the applicant to withdraw her application.

    2.     The Queensland Building Services Authority will not ask the applicant to contribute any monies for the performance of work under the scope of works for defective building work attached to the Queensland Building Services Authority decision of 25 September 2009 as varied by the Queensland Building Services Authority in accordance with the relevant edition of the Queensland Building Services Authority policy conditions.

    3.     The Queensland Building Services Authority will perform a final inspection of the rectification works and provide a written copy of the report to the applicant.”

1. This agreement was not an end to the problems between the BSA and Elizabeth Bourne.  On 18 March 2010 Elizabeth Bourne agreed to site access being granted, to tenderers on 25 March 2010, but complained to the BSA that Bob Clayton was involved in the process, which she considered inappropriate, and complained that she considered he had mislead “the Tribunal”.  On 30 March 2010 she complained to Mr Wright of  the manner in which Mr Clayton had conducted a meeting on her property on 25 March 2010 with 3 potential tenderers.  Her complaints included that Mr Clayton had stated to the tenderers that he had sent letters to Carter Holt Harvey, and that “if they don’t inspect”, he will.  (In fact, unknown to either Mr Clayton or Elizabeth Bourne on that date, Carter Holt Harvey had replied on 25 March 2010 to the BSA, declining an invitation to inspect the rectification works to be undertaken by one of the BSA’s rectifying builders).  She also complained that Mr Clayton had “fail to inform the tenderers of all known damage” to include in the quotation, and had told the tenderers that anything (any further damage found on the removal of the cladding) must be “written up as variations”.  She apparently feared that the BSA would argue that damage discovered when cladding was removed would be identified by the BSA as “new” damage when, Elizabeth Bourne considered, “they are already reported as Defective and known”.  She also complained that Mr Clayton had told the tenderers not to include for “sarking and not to remove or replace the sarking”.  She said that Mr Clayton had specified that tenderers were not to quote for any new flashings, and “no action on any of the roof or flashings, if it is too short”.  She considered that that was an invitation to potential tenderers to hide damage, and an attempt to conceal from them previous views expressed about the flashings being too short, and concealing from potential tenderers existing and known defects in the roof.

2. In a separate communication that same day (30 March 2010) she gave Mr Wright and the BSA 14 days to respond to the issues she had raised.  She complained the BSA were defrauding her, and that Mr Clayton had fraudulently tampered with his own reports, and hid incriminating evidence from “the Tribunal”.  The BSA responded, via Mr Wright, by letter dated 7 April 2010, noting that Carter Holt Harvey had no obligation or legislative requirement to inspect the (rectified) work, and that they had declined an invitation from the BSA that they do so.  The letter advised that because the work performed by Weirkids Pty Ltd did not include the roof of the home, the roof was not part of the claim.  The letter went on to say that Weirkids’ work “did involve the removal and replacement of flashings.  Flashing will be reinstated in a workmanlike manner”.  That letter seems to be the first time the BSA accepted that Weirkids had removed (and replaced) the flashings, when installing the Shadowclad, which point Elizabeth Bourne had repeatedly asserted.  Regarding the sarking, the letter advised that sarking

   “can not be viewed at present as it is under the current cladding.  The material used should be a perforated sarking that allows the space between the sarking and cladding to breathe.  If it is not perforated it will be replaced, if it is perforated it will be left in place unless it is torn or damaged.  A few nail holes created by the original claddings installation will not affect the sarkings performance.”

3. Elizabeth Bourne replied on 11 April 2010, contending that Mr Wright was a party to deliberate negligence, and she was satisfied that the BSA did not intend to remove all defective work in its entirety.  She instructed the BSA to immediately stop all tenders and actions regarding her property, and not to accept any quotes or make any decisions.  Mr Wright replied on 14 April 2010, accepting her instructions that no further action be taken on the matter, unless subsequently advised otherwise.

4. That appears to have been the end of communications until 12 February 2011, when Elizabeth Bourne wrote to Jason Smith of the BSA, complaining of further water entry into her home, through the first reported defective roof/cladding area at the back of her house.  She also contended that Mr Wright had been guilty of fraud, contended that the manufacturer’s staff had colluded with the BSA officers Wright, Clayton and Blumel, and accordingly requested a change of product, and compensation for that.  She also asked for a full inspection immediately of the water entry area.

5. In a further email dated 13 February 2011 she specified that she wanted a product called Bluescope/Lysaght Custom Orb, rather than Shadowclad “or any product from Carter Holt Harvey – who have acted dishonestly against their product, myself and my property.”  She asked to be “renumerated for the difference between the two products – costings and full quotes”, and made various other requests.

6. This resulted in the first letter from the BSA to Elizabeth Bourne, which is the subject of the present application for leave to appeal or appeal, namely a letter dated 23 February 2011 (GAR105-11).  In that letter the author, Jason Smith, writing on behalf of BSA, advised that although 10 months had passed since Mr Wright had sent his letter dated 14 April 2010 confirming her instructions to the BSA to stop work on her claim, the BSA was willing to tender the scope of work dated 24 September 2009 again.  The letter advised that

   “any damage to your property as a direct result of the defective installation of the Shadowclad exterior will be rectified by the BSA under insurance.  This will be done by variations to your scope of work and subsequent approvals to insurance claim.  The extent of this damage and the reasons behind it can not be known until the rectifying builder commences rectification on the cladding.”

7. The letter also advised that BSA was willing to change the scope of work from requiring the installation of new “Shadowclad”, and instead to require “Custom Orb” be installed, but would not be paying her for the increase in costs.  The letter explained why.  Regarding Elizabeth Bourne’s requests for an itemised list of all the work to be performed, the letter advised that

   “any damage to her home as a direct result of the defective installation of the Shadowclad cladding system, such as water penetration, will be identified by works commenced on the rectification of the cladding.  Such work would be approved by BSA through variations to the scope of work.”

8. The letter advised that BSA would issue the scope of work to 2 of its rectifying contractors from its approved panel, and that if she wished to use her own Builder, she was welcome to provide the scope of work to that builder and ask the builder to quote as well.  It advised “at the end of the day it is your decision on which contractor you wish to engage to complete the rectification”.

9. Regarding her request for an independent inspection of all work, to be done other than by building inspectors, she was advised that she was welcome to engage any professionals she wanted to review the information given to her by the BSA, or the work of the rectifying contractor; however, the BSA would not pay for that. 

10. On 13 March 2011 Elizabeth Bourne informed the BSA that Custom Orb was cheaper than Shadowclad, and asked for an explanation from the BSA as to how damage underlying the sarking could be assessed without removing the sarking.  She contended that she had stopped the last tender process for the reason that Mr Clayton had given strict instructions to the tenderers not to remove any sarking, which, Elizabeth Bourne argued, was an attempt to hide or not uncover known damage.

11. The BSA replied on 15 March 2011 by Jason Smith, advising that quotations it had received from both Shadowclad and Custom Orb satisfied BSA that their prices were comparable, but that one supplier offered Custom Orb at a discounted price.  The letter advised that if Custom Orb cladding was cheaper than Shadowclad, that she was not entitled to a refund, because the BSA would still itself incur a cost in installing it.  Using either system involved a cost that the insurance scheme would pay for.  She was entitled to have new Shadowclad installed, as that was the product specified in her contract.  If she wanted an alternative product, that was her choice, but she was not entitled to relief if it was a cheaper product.

1. The letter continued with the advice that it was impossible to scope the full extent of the damage caused by the defective installation of the cladding system, until the cladding was removed.  It was not possible to remove the existing cladding and inspect the building and if further defects were found “scope the extra work and then reinstall the defective cladding”.  It advised that

   “BSA will produce a scope of works for the damage we can see.  The scope of works will refer to the fact that further defects may exist in the wall once the cladding is removed and that the rectifying contractor is to identify these and submit variations to the BSA if this is the case.  If it is found there is damage to the sarking or water damage to the inside of your home and these defects were as the result of the defective cladding installation, BSA will approve these variations and your insurance claim will increase accordingly.  The rectifying contractor will then rectify this work as well before they install the new cladding.  It is simply not possible to do it any other way.  We cannot scope works or defective works that we can not see.  It is not feasible to remove the existing defective cladding, inspect and then reinstate the same defective cladding, and remove it again so it can all be rectified.”

2. The letter continued, “I again reiterate to you that any internal damage to your home that was caused as a direct result of the installation of the cladding system will be included in your claim and will be rectified by your rectifying contractor.”  The letter suggested that a further site meeting be conducted at the property at which Mr Smith would attend with Mr Clayton, the Manager of Technical Resources, who had extensive experience in the matter.  Mr Smith also proposed to bring along another building inspector, who could verify Mr Clayton’s advice.

3. Elizabeth Bourne responded advising that there was no need for any more inspections of the cladding and that the proposed need for it was “totally off the planet, and didn’t make any sense.” 

4. On 22 March 2011 Mr Jason Smith of the BSA advised (this letter was the basis of GAR089-11) that the offer to inspect the property had been made because Elizabeth Bourne had made numerous complaints about further defects to her home over the last few weeks, and it had been over 12 months since the last inspection by the BSA.  The letter continued that if further defects had been found on that inspection the BSA would have had the opportunity to update the scope of work, and an inspection would have given Mr Smith an opportunity to see the defects first hand and discuss the complaints with Elizabeth Bourne in person, and that the offer to bring along another inspector with Mr Clayton had been made to allay Elizabeth Bourne’s fear or bias against or within Mr Clayton, which fears the BSA had always rejected.  It stated that since the BSA was unable to undertaken any such inspection, it had no choice but to use a previous scope of work, which in its final form had been dated 12 March 2010.  He repeated the advice that Elizabeth Bourne was entitled to ask for a Shadowclad system to be installed, and that the BSA was prepared to change the scope of work to refer to a cheaper metal made cladding system, if that was what she wanted, but because the BSA was still required to pay for that item, then Elizabeth Bourne would not get compensated for the fact that she chose a cheaper product.  He further advised that apart from the removal and reinstatement of the flashings to the roof, which had to be reinstalled as part of the installation of a new cladding system, the BSA insurance scheme would not be paying for any rectification work on her roof.  She was invited to accept the scope of works dated 12 March 2010 and to advise which cladding system she would like referred to in the scope.  The BSA would then retender the scope of works to members of the rectification panel, and she would be given the opportunity to provide the scope of work to contractors of her choosing.  The BSA said it would review the tenders and provide her with an approval amount, and would advise which contractor had provided the cheapest quote.  She would then be able to sign a contract with that contractor and work would begin on rectifying her defective cladding.  The letter repeated that if damage was found to internal walls or sarking, caused by the original defective cladding, that would be rectified by the rectifying contractor by way of BSA approved variation.

5. Elizabeth Bourne’s response on 1 April 2009 described her as being in a state of disbelief and total shock.  This was said by her to be due to the refusal to tender for repairs to the flashing.

6. Elizabeth Bourne’s contention in this proceeding is that the letters dated 23 February 2011 and 22 March 2011 each contained decisions reviewable by this Tribunal.  I agree that the letter dated 23 February 2011 contains decisions such as that:

   §    The BSA would retender for the “scope of works” issued on 24 September 2009;

   §    And would rectify all and any damage to the house happening as a result of the defective installation of Shadowclad;

   §    Elizabeth Bourne could get a builder to quote for that rectification work;

   §    Elizabeth Bourne would have to pay any extra costs for a different cladding that she elected to have used.

7. Likewise on 22 March 2011 decisions can be discerned:

   §    That the only roof work to be done by the tenderers under insurance was to remove and replace the flashings (in an workmanlike manner);

   §    BSA would not pay Elizabeth Bourne the difference if she chose a cheaper cladding then Shadowclad.

8. Other than those, the “decisions” in those letters are decisions which have been made earlier, and have already been made the subject of applications to review conducted by or prosecuted by Elizabeth Bourne in the Commercial and Consumer Tribunal. In particular, the scope of works issued on 25 September 2009 was the subject of the application to review numbered QR257-09 in that Tribunal, and ultimately consolidated in review QR114-09, which had been withdrawn on 25 February 2010, at the compulsory conference. That withdrawal was confirmed in a decision issued on 1 March 2010 in this Tribunal. An application under section 138, to reopen the proceedings which were QR114-09 and QR257-09, was heard and determined on the papers on 16 November 2010, and refused. The QBSA contends, in its written submission in this appeal, that Elizabeth Bourne is attempting to have this Tribunal conduct, in this appeal, a de facto review of those earlier review applications, settled by consent in February, but not reopened in November 2011. There is some force in that submission, but the difficulty with this appeal is that the learned Member, who struck out applications GAR081-11 and GAR105-11, gave no reasons other than that “no reviewable decision had been made out” by Elizabeth Bourne. The respondent, in its written submission in this appeal, argues that the learned Member could be understood as exercising the power in section 47(3) of the Queensland Civil and Administrative Tribunal Act 2009 to, on the Member’s own initiative, strike out a proceeding the Member considers to be lacking in substance (that power is given by section 47(1)(b)). 

9. There is force in that submission as well.  Elizabeth Bourne’s constant advocacy to the BSA has resulted over time with her obtaining a direction to rectify, and then a decision to issue a tender, for rectification by licensed builders other than Weirkids Pty Ltd, to rectify the installation of the cladding which Mr Clayton has determined to have been defectively installed.  Elizabeth Bourne has been very critical of Mr Clayton, and has complained about him, and some of her complaints have been referred to the CMC.  If Weirkids were correct in Mr Weir’s opinion that the flashings originally installed were defective, then that is not a fault for which Mr Weir is responsible.  Elizabeth Bourne describes herself as a pensioner, and it is clear that she has considerable distrust of the BSA.  Much of that seems to derive from the different opinions that have been expressed by different inspectors who have seen her home, and the work done by Weirkids.  Different inspectors can ultimately hold different opinions, and a disagreement between Mr Clayton and Mr Blumel about the installation of the cladding is not evidence that either of them is dishonest or corrupt.

10. The two applications lodged in this Tribunal (GAR105-11 and GAR89-11) do not identify any specific decision or decisions which Elizabeth Bourne wants reviewed. Instead, those applications merely identify each respective letter as a decision, and each application asks, as the first request, for this Tribunal to “Issue a Direction for Roof – move to Insurance Claim”. I understand this to be an application that this Tribunal (exercising its powers under section 77(g) of the Queensland Building Services Authority Act 1991), order rectification of defective or incomplete work to the roof.  This is not a direction the BSA has been empowered to give at any time, because of an absence of evidence of any work having been done by Weirkids Pty Ltd on Elizabeth Bourne’s roof, or any damage caused to that roof by their work.  The same observation applies to the second order requested in both applications for review, namely an order that “work for both the Cladding and Roof can be quoted done together, being the full exterior of two story home”.  That again assumes defects in the roof can be traced to the consequences of conduct by Weirkids Pty Ltd, which has yet to be established by evidence.  Those two orders, sought in similar terms in these applications, appear to be lacking in substance.

11. In application GAR105-11 the third statement by Elizabeth Bourne, of what she wants to happen, requests “compulsory inspection of the structure”.  I understand this to mean an inspection for the scope of works to be issued to potential tenderers, and this is something which has already been offered by the BSA, and rejected by her as unnecessary.  The fourth description of what she wants to happen is that the scope of work include all known defects listed clearly, and that quotations be given without leave for verbal instruction.  I understand this to be a request that all defects identified by any prior inspection be included in the scope of work issued to tenderers, and described, so that no further verbal instructions can be given on site by, for example Mr Clayton or any other inspector from the BSA.  But I consider that while Elizabeth Bourne’s anxiety is understandable, the BSA have rather persuasively asserted in their letters to her, that the history of the inspections and opinions given by others is irrelevant to the task to be performed by the tenderers, namely to remove the defective cladding and replace it with new cladding.  Likewise her description that she wants an “independent inspection – of underlying damage” is an outcome which has been rejected already by the BSA, who, rather reasonably, make the point that they cannot ask for tenderers to quote to repair defects which their inspectors have not seen.  There may or may not be underlying damage beneath the defectively installed cladding; but until it is found, it is unreasonable to expect the BSA to invite tenderers, and unrealistic to expect tenderers to be able to do so, to quote to repair.

12. Both applications, in their description of what Elizabeth Bourne wants to happen, include that “all defective work of this builder – to be actioned to builder Weir Kids, not a new builder.”  I do not understand why Elizabeth Bourne wants Weir Kids to perform the repair of the defective work carried out in 2008, when that same company has not complied with a request to rectify, issued on 23 June 2009, nor a direction to rectify on 5 August 2009.  Further, the voluminous file prepared by Elizabeth Bourne demonstrates that Mr Weir’s presence at her property usually results in disagreement.

13. This examination of each of the matters that Elizabeth Bourne wants to have happen points to her outcomes being little more than a combination of wishful thinking, and distrust of the BSA, inspired by a determination to respond to the points made by BSA in the two letters to her, defending the terms of the scope of work and the decisions which underlay its terms.  That also identifies her applications as lacking in substance.  Other outcomes she asked for or wants to have happen include to have the “the Tribunal make all decisions, and make the BSA be accountable and clear, of action or defects”.  This Tribunal has a review function, which is much more limited in scope than the powers of the BSA.  It is impracticable to expect that this Tribunal can make all the decisions that might be needed to be made on the site, and in respect of the advice to be given to each tenderer, and the BSA, by and large, has been responsive and accountable to Elizabeth Bourne in its dealings with her.

14. Accordingly I am satisfied that the learned Member was entitled to conclude on the material that the proceedings in GAR089-11 and GAR105-11 were lacking in substance, and should be struck out.  To the extent that this appeal is on questions of fact, no facts have been raised which would support granting leave to appeal.  The only issue of fact to be settled, identified by the lengthy dealings between the parties, is whether the roof flashings (whether originally defective or not) have been damaged in consequence of Weirkids’ work.  If so, Elizabeth Bourne can fairly argue that the scope of works (requiring the flashings to be replaced in accordance with acceptable building practice) entitles the tenderers to be paid by the BSA for the cost of installing proper flashings.  If not, Elizabeth Bourne is obliged to pay that cost.  But the answer to that question cannot be given by this Tribunal in a review of the scope of works.  It depends on what is found when the cladding is removed.  The terms of the existing scope of work, which requires the flashings be replaced in accord with acceptable building practice, prevent damaged or “too short” flashings being installed.  Elizabeth Bourne’s current position will not be improved on any review of those terms.

15. Additionally, there may be a problem for Elizabeth Bourne, caused by the provisions of section 86(2)(c) of the Building Services Authority Act 1991.  That provides that this Tribunal must not review a decision of the Authority about the scope of works under the statutory insurance scheme, if 28 days have elapsed since a decision was served on the building contractor and the contractor has not, within that time, applied to review the decision.  The material in Elizabeth Bourne’s lever arch evidence file discloses that Weirkids Pty Ltd (the building contractor) was informed on 8 September 2009 of BSA’s decision to assess the matter under the home warranty insurance scheme, and advised that decision might be reviewed within 28 days by application to the (Commercial and Consumer) Tribunal.  It appears that it made no application to review.  If that section applies, this Tribunal is forbidden from reviewing the two decisions which Elizabeth Bourne wishes it to review.

16. Elizabeth Bourne’s written submissions received by this Tribunal on 5 December 2011 show that she read the provision of s 86, and she did make submissions about s 86(2)(c).  I agree with the obiter comments made in Kirtley v QBSA [2007] QCATB 157 at [28], that the better view is that s 86(2)(c) has effect only on a builder who has failed to apply in time to review a scope of work, and does not apply to an application by a home-owner, whose right to apply has been given in s 86(1)(g).

17. To the extent that this is an appeal on a matter of law, no error of law has been shown to exist.  For those reasons I am satisfied that the appropriate order in this matter is that leave to appeal is refused and the appeal dismissed.