Carloss v Queensland Building and Construction Commission - [2022] QCAT 262

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Carloss v Queensland Building and Construction Commission [2022] QCAT 262

PARTIES:

CARLY CARLOSS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR306-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

6 July 2022

HEARING DATE:

18 May 2021

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

1. The decision of the Queensland Building and Construction Commission made on 13 August 2018 to not give a Direction to Rectify or Remedy under Section 72 of the Queensland Building and Construction Commission Act 1991 is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where decision made to not issue a direction to rectify to the builder – where the owner filed an application to review the decision – whether the builder was responsible for the work in question – whether items of work are defective work – whether it was fair and reasonable for a direction to rectify to be issued to the builder – whether a wall was a solid wall, or a retaining wall – whether the wall complied with the relevant requirements

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

APPEARANCES & REPRESENTATION:

Applicant:

M Campbell of Hearthstone Legal

Respondent:

R Ensbey of Gadens

REASONS FOR DECISION

Carly Carloss (the owner) filed an application on 7 September 2018 to review a decision of the Queensland Building and Construction Commission (QBCC).
The decision in question is an internal review decision of the QBCC made on 13 August 2018, to not give a Direction to rectify or remedy under section 72 of the Queensland Building and Construction Commission Act 1991 (the QBCC Act) to a builder, Mr Miladin Vukolic (the builder) in relation to work done on a house at Norman Park in Brisbane, Queensland.
The builder had conducted works on the house for Mr Bitomsky under an agreement for alterations and/or additions to the house on or about 10 August 2013.
The house has been sold twice since the works were conducted, and Ms Carloss is the current owner. The chain of ownership is as follows:[1]
a)Mr Bitomsky and Ms Birkan sold the property to Mr Pusztay and Ms Pusztay on or about 18 November 2014;
b)Mr Pusztay and Ms Pusztay sold the property to Ms Carloss on or about 18 March 2016; and
c)Ms Carloss is the current owner.
[1]Statement of Reasons for the Decision of the QBCC dated 26 November 2018, [32].
The owner submitted a complaint on 19 October 2017 with the QBCC in relation to alleged defective work carried out by the builder at the property as to water ingress related to a wall in the undercroft of the premises.
The QBCC conducted an inspection, and made a decision not to issue the builder with a Direction to Rectify.
The owner made a further complaint in March 2018, and after a further inspection, the QBCC advised on 29 June 2018 that a Direction to Rectify and/or complete work No. 0103574 would be issued for the following item:[2]
The application of the waterproofing to the rear of the undercroft area retaining wall of the dwelling has not been done in accordance with the BCA NCC Volume 2 section 2.2.2 weatherproofing in that the retaining wall does not prevent the egress of water into the dwelling laundry and passageway of the premises. The licensee is responsible to rectify this item - Pertains to item 1 of the complaint.
[2]Ibid [48].
The builder requested an internal review of the Direction on 17 July 2018. The internal review decision given on 13 August 2018 decided not to give a Direction to Rectify or Remedy to the builder.
I heard the matter on 18 May 2021 and gave directions for the filing of closing submissions at the conclusion of the hearing. Final submissions were filed on 2 August 2021. These are my reasons in the matter.

History and issues

There are several issues in this matter:
a)Was the builder responsible for the work in question?
b)Was the work in question defective?
c)Was it fair and reasonable for a Direction to Rectify to be issued to the builder?
The owner asked her father, Neil Dixon, to undertake a building inspection in early February 2016 as she was interested in purchasing the property. Her father is a registered builder, has performed work as a building inspector for the QBCC, and has been called as an expert witness in matters in the Tribunal.[3]
[3]Statement of Carly Carloss filed 6 August 2019 (Exh 1) [3]
The owner stated that there was a period of intense storms and rainy weather in early 2017, and that by May 2017 rising damp or water damage to the timber floorboards on the lower level between the tiled laundry and powder rooms was noticed.[4]
[4] . Ibid [9]
She stated that the builder attended the site in late June 2017 and had a discussion with her husband about the damage and the issues;[5] and that on 29 August 2017 the builder stated that he was not accepting responsibility for the storm damage and/or negligence from previous owners and stated that he believed that landscaping, which had been done by a third party, contributed to the damage.[6]
[5]Ibid 12]
[6]Ibid [14]
The owner made a first complaint to the QBCC in 2017, and the QBCC advised on or about 1 March 2018 that there was insufficient basis upon which it would consider it appropriate to issue the builder with a Direction to Rectify.[7]
[7]Ibid [20]
The owner then made a second complaint to the QBCC in late March 2018 in relation to water ingress related to a wall.[8] The QBCC initially issued a Direction to Rectify in relation to that complaint on 29 June 2018.
[8]Ibid [23]
An Internal Review, requested by the builder, decided to not issue a Direction to Rectify, on the basis that the builder had provided information to indicate that he had left the wall without any fill against it, and that someone else had installed crusher dust against it which was causing the issue.[9]
[9]Ibid [29]

The masonry wall

The matter focused on a masonry wall which the builder had constructed adjoining an external wall of the house in an area described as an ‘undercroft’. The undercroft was an open space below the lounge and bedroom 2 of the house. At some stage fill, using crusher dust, was placed against the wall to a height below the top of the wall, but extending up much of it, and the fill was finished at an angle.
The effect of the fill being placed appeared to be to make the undercroft area easier to walk into, and perhaps use as a storage area.
The builder stated that in about August 2013 he entered into an agreement with Mr Bitomsky for renovation and addition to the home including raising the existing home and building a new addition at the rear, and the work was started in approximately September/October 2013.[10]
[10]Statement of Miladin Vukolic filed 25 June 2019 (Exh 8) [5]-[6].
The builder described the wall construction as follows:[11]
10. As part of the renovation, a masonry wall was constructed in the undercroft of the home. The wall was core filled. The approved plans required a 4.5mm fibre cement sheeting to a timber framed wall. Whilst the timber framed wall remained as a structural element to the home, the masonry wall was built adjacent to the timber framed wall, and was not on the approved plans.
Annexed hereto and marked ‘MV-2” is a copy of approved plans of the undercroft area.
11. I recall that the masonry wall was built to reduce excavation costs, as the material in the undercroft was hard shale rock. I recall that another block wall was being built at the same time, so the construction of the wall in the undercroft was easily done and at minimal cost.
[11]Ibid [10].
The builder stated that he did not place any soil or crusher dust against the masonry wall, or give instruction to any subcontractor to do this at any stage during or after the renovation work.[12]
[12]Ibid [17].
The builder believed that the crusher dust was placed there by a person likely engaged by Mr Bitomsky to make the undercroft area more usable for storage underneath the home.[13]
[13]Ibid [18].
The builder stated that the first time he saw the crusher dust was when the second owner, Mr Pusztay, called him to look at flooding damage at the home after a massive storm, and that it was evident to him that the damage was worsened by the crusher dust fill, which had been put up against the wall so high that it covered the ant capping.[14]
[14]Ibid [19].
The builder stated that he dug down and removed some fill against the wall to prevent any further water from passing through the wall, and installed an additional drain at the right hand side of the site.[15] He stated that he recall there was ‘blackjack’ (a bituminous sealing paint-like material) already on the wall, which was not applied by him or any of its subcontractors, and he assumes it was supplied by whoever placed the fill against the wall.[16]
[15]Ibid [20].
[16]Ibid [21].
The builder stated that the continuation of the masonry wall beyond the undercroft and to the outside of the dwelling[17] was not constructed by him, and was done after he had constructed the masonry wall in the undercroft.[18]
[17]Shown in the photograph which is below paragraph 28 of the building report by Chris Boyle dated 18 July 2019.
[18]Further statement of Miladin Vukolic filed 13 April 2021 (Exh 9) [7].
Mr Bitomsky, the owner between 2000 and 2014, stated that the crusher dust was spread as part of landscaping works by external contractors and himself, and was spread such that it covered the full extent of the undercroft area and the area levelled off to the block wall, and was performed as a cosmetic measure for the sale of the property.[19] He confirmed that the installation of the crusher dust was not completed by the builder, and that the landscaping works were performed after the completion of the renovation works by the builder.[20]
[19]Statement of Robert Bitomsky filed 26 March 2020 (exh 4) [8]
[20]Ibid [9]
Mr Pusztay, who was a beneficiary of a Family Trust that owned the property between 2014 and 2016, said that following a large storm, water had entered the house, and in particular had poured out of the laundry and from behind the cupboards in the downstairs hallway.[21]
[21]Statement of Paul Pusztay filed 26 March 2020 (Exh 5) [8]
Mr Pusztay said that he contacted the builder who conducted some remedial works, and no further water problems were experienced:[22]
10. I subsequently contacted Mr. Vukolic and engaged him to perform some remedial works to prevent water from entering the house on future occasions. I believe that Mr Vukolic dug down approximately 3 feet (or 90 cm) along the length of the masonry wall and installed an agricultural pipe with a hydro stocking to commute water to the side wall where a drainage hole was also cored. Mr Vukolic was not paid for this work.
11. Following this work performed by Mr Vukolic, no subsequent water ingress occurred during the time that I lived at the property.
[22]Ibid [10]

Experts’ views

A joint experts report was filed on 9 September 2020 by Chris Boyle, Neil Dixon, and Steven Noble.
Chris Boyle had prepared a building report dated 18 July 2019 at the request of the Owner. Mr Neil Dixon is the father of the Owner, as previously noted. Steven Noble is a principal technical officer with the QBCC who provided statements in the matter.
The joint experts report takes the form of individual responses to a series of issues. There is considerable difference of opinion between the experts as to multiple aspects of the issues.
I will refer specifically to the first two issues and responses.

Issue one: If the wall was built on the basis that it was to be a retaining wall, is the wall defective? If so, please describe the defect.

Chris Boyle responded that:[23]
[23]Joint Report as to subject Wall, Boyle 1(1) to (5)
1)If it is a retaining wall, and it is a retaining ground over 1m high, it requires engineering design and certification – neither which have been done to the best of his knowledge.
2)It would also require a proper waterproofing system which would include, amongst other things:
a)a waterproofing system; and
b)adequate subsoil drainage with an invert below the internal floor level; and
c)free draining material as backfill
d)a step down in the floor slab to accommodate the start of the retaining wall
3)If it was built as a retaining wall it is defective as it lacks the elements he referred to.
4)If it had been constructed in the manner he described, he considers there would be no water ingress. If the wall complied with AS3700 then it would require a cavity with a minimum width of 40mm to drain the water away.
Neil Dixon agreed with Chris Boyle’s comments, but thought there was an alternative method that did not need the wall to be tanked, and required a rebate in the slab edge to accommodate the retaining wall and a cavity. He said that if built as a retaining wall, it is defective, and noted:
5)The subject wall comprises backfill being placed to a single leaf free standing concrete filled masonry wall with a timber framed wall running parallel to subject, with no cavity, no slab rebate, no waterproofing certificate, no engineer design.
Steven Noble said that if the wall was built as a retaining wall then it is defective, but noted that soil activation of the wall would be the trigger for it being a retaining wall, but without it, it is a solid wall in which case no cavity would be required:
6)I consider that no cavity is required as it is a solid wall as defined in AS3700 Sec 1.5.2.36(e). AS3700 Sec 4.7.1 refers to cavities of 40mm in cavity walls and masonry veneer walls being resistant to the passage of moisture. The definition of a solid wall is that it is self-supporting, and does not rely on lateral support such as the adjoining timber frame to maintain verticality. AS3700 Sec 4.7.4 acknowledges that a solid wall does not always need to resist moisture penetration. However, in circumstances where this is required, it specifies the application of a weather resistant coating to the external part of the wall, to assist in weatherproofing.
Issue two: If the wall was built on the basis that it was not to be a retaining wall, whether it is defective or not. If defective, please briefly identify the defect/s
Chris Boyle responded that the way the block work has been constructed on the site with three sides to the wall – the side that abuts the habitable area, and two returns, one on the eastern side and one on the western side – creates a potential for water to pool at the bottom of the block wall under the building like a swimming pool, the deepest area of which is near the building.
He also queried why the builder installed the masonry wall at all, especially if it is not a retaining wall:[24]
There was no need for any masonry structure adjacent to the structural timber frame of the house. The timber framed wall could have been clad from floor-to-ceiling with Building Code of Australia compliant provisions for drainage and to prevent water pooling. It is a mystery as to why the builder would construct a masonry wall if it were not intended to be a retaining wall.
[24]Ibid Boyle 2(7).
Neil Dixon said that the subject wall is 190 thick, and the element used is a 190 wide masonry unit, so that upon his understanding of the definition in AS3700 – 2011 of a single leaf wall, it fits the definition. [25]
[25]Ibid Dixon 2(2).
He said that protection goes on the outside of the wall when it is a single leaf wall or a solid wall. He said that if the wall was not a retaining wall, it was defective.[26]
[26]Ibid Dixon 2 (11).
Steven Noble considered that the wall did have weatherproof protection outside of the wall, and on the internal wall:[27]
(6) I disagree. AS3700 Sec 4.7.1 requires a weatherproofing protection to resist the ingress of water into the building, in circumstances where this is required. The invasive inspection undertaken by ND has identified an application to the internal face of the solid wall. This, in my view supersedes the requirements of AS3700 insofar as it provides additional protection between the two building elements, through an application to the internal face of the solid wall. AS3700 Sec 4.7.4 footnote 3 explains that coatings may also be used to protect the outer leaf and cavity space of a cavity wall. When I inspected the wall, I observed a black bitumen application to the outside of the wall, which serves this external weatherproofing function in accordance with BCA 2013 Vol 2 2.2 Damp and Waterproofing. Further, after my inspection, there is evidence of an application on the internal wall. The only way the application could have been installed is prior to installation of the internal framing which currently adjoins that wall.
[27]Ibid Noble 2(6).
He went on to re-iterate that in his view the application of a bituminous weatherproofing to the internal face of the solid wall supersedes the requirements of AS3700 Sec 4.7.4 insofar as it provides additional protection between the timber wall frame and solid wall, through an application to the internal face of the solid wall.[28]
[28]Ibid Noble 2 (3) in response to ND.
The joint experts report went on to consider a number of further questions, as follows, which I will not canvass in detail:
Issue 3: If the wall had of been properly constructed as a masonry wall (with adequate waterproofing), what is the effect of the placement of the crusher dust on the functionality of the wall?
Issue 4: If there is disagreement about views, please discuss and identify the points of difference and the reasons for the differing views.
Further question 1: Did the licensee provide fall away from the lower ground slab and/or another method to prevent ponding below the undercroft.
Further question 2: How was the subject wall finished to the western elevation?
1)   Did it finish level with the building?
2)   Or did it extend perpendicular towards the Northern elevation?
3)   Or did it extend towards the Western boundary?
4)   Did parties other than the licensee extend the subject wall, and what was extent of these works?

Submissions of the Owner

The owner submitted that there is no question that the builder undertook the construction of the subject wall, and noted that neither the builder or the former owner. Mr Bitomsky, could recall whose suggestion that it was to build the wall.[29]
[29]Written submissions for the Applicant, dated 7 June 2021, [34]-[35].
The owner referred to the significant work done by others as to the provision and installation of fill and crusher dust against the wall; application of weatherproofing/waterproofing membrane to the external face of the wall; and other general landscaping and betterment works in the area; and submitted that all of those allegations ‘should be disregarded when determining the application’, as it was ‘uncontroversial that the builder constructed the wall and the construction of such resulted in water pooling from inadequate drainage’.
The owner noted that the wall was not shown on the original approved plans.[30]
[30]Ibid [41].
The owner referred to the differences of opinion between the experts as to what the correct description of the wall was, and noted these as follows:[31]
45. The experts have been unable to agree as to the appropriate classification of the wall. Both Chris Boyle and Neil Dixon consider that the wall has retaining properties (since the addition of fill against the wall) but that it was likely originally designed and constructed to be a free-standing masonry veneer wall. Steven Noble of the QBCC did not agree that the wall was a masonry veneer on the basis that there was no lateral support that he could see, but considered that it could be a single leaf structure however he had not done enough investigation to know for sure. Mr Noble considered the wall to be a solid wall in accordance with the definition provided for in Australian Standard AS 3700, Part 1.5.2.36(d).
[31]Ibid [45].

The owner submitted that if:
a)the tribunal accepts that the wall is a masonry veneer wall, then it follows that the tribunal can consider it appropriate to determine that the builder has undertaken defective building work in the construction of that wall;[32] or
b)in the alternative, if the tribunal prefers the evidence of Mr Noble that the wall is a solid wall, that the builder did not construct the wall in compliance with requirements for a solid wall, as section 4.7.4 of AS37007 requires that a solid wall be protected on the outside face with a suitable weather resistant coating, and the builder in his evidence said that the wall was left exposed and that a waterproofing substance had been applied after he left the site.[33]
[32]Ibid [49].
[33]Ibid [50].
The owner further submitted that the existence of the extensive water ingress into the internal part of the dwelling and saturation of the timber framework and flooring is indicative of a lack of drainage at the base of the wall; and that it is open to the tribunal to determine, on the balance of probabilities, there is no drainage installed at the base of the wall and that the builder has engaged in defective building work.[34]
[34]Ibid [52].
The owner refers to the remedial work undertaken by the builder after being contacted by a former owner, Mr Pusztay, and submits that this work was also defective as it has not prevented water ingress into the property.[35]
[35]Ibid [56].
The owner submitted that it would not be unfair and unreasonable to issue a Direction to Rectify to the builder, notwithstanding the actions of Mr Bitomsky and Mr Pusztay (if any, either directly or through the actions of contractors engaged) as those actions would not have impacted the structural integrity of the wall, such that it allowed water ingress into the property.[36]
[36]Ibid [66].

Submissions of the QBCC

It was submitted for the QBCC that the experts all agreed, during the course of giving their concurrent evidence, that it was not clear exactly how the builder constructed the wall and the nature and extent of drainage he installed; and that the tribunal should not determine work to be defective where it is not clear how that work is carried out and whether in fact it is, or is not, defective.[37]
[37]Submissions by the Respondent filed 21 July 2021, [10]
The QBCC submitted that it would have been open for the owner to have undertaken invasive investigation to determine the nature and extent of the drainage:[38]
[11] In that context, the tribunal will recall that at one stage during the experts giving concurrent evidence, Mr Dixon complained that the QBCC had not undertaken an invasive investigation during its investigations to determine exactly how the wall had been constructed and the nature and extent of drainage that had been provided. Mr Dixon indicated it would have been a simple and cheap matter for the commission to have done this. Mr Ensbey pointed out to Mr Dixon that in fact neither he nor the applicants had carried out an investigation that would have clearly indicated how the wall had been constructed and what drainage had been undertaken, despite the fact that they had had a number of years since the applicant’s first complaint to the QBCC to undertake these investigations.
[12] As a matter of practice and policy, the commission does not, as a rule, undertaken invasive investigations to determine whether building work is defective when undertaking its investigations…
[38]Ibid [11]-[12]
The QBCC submitted that if the tribunal was satisfied that the building work was defective, that the tribunal should find that a substantial cause of the building work undertaken by the builder being defective was the placement by others of a substantial amount of crusher dust against the wall, and that it has not been demonstrated that had the crusher dust not being placed against the wall, that ingress of water still would have occurred by the wall.[39]
[39]Ibid [17].
The QBCC submitted that it would be unfair to direct the builder to rectify the building work, as the placement by others of crusher dust against the wall, and the evidence of the landscaping works in the garden areas by Mr Bitomsky’s contractors (which on the evidence of Mr Boyle would have created a ‘bath tub effect’ in relation to water flowing into the undercroft area) is also a significant factor to take into account.[40]
[40]Ibid [18].

Submissions in Reply by the owner

The owner rejected the submissions of the QBCC that it had not undertaken invasive investigations and submits that water testing has been undertaken, cladding has been removed to determine whether there had been a cavity constructed, digging had been done by the wall to identify the existence of any agricultural line drainage, and slab and frame moisture testing has been done through floor core holes.[41]
[41]Reply submissions for the applicant filed 2 August 2021, [6].
The owner submitted that the placement of crusher dust against the wall is not a defect, and that the construction of the wall by the builder in the first instance must be assessed, and that the placement of the crusher dust against the wall has magnified the water ingress issues that would have happened at the property regardless.[42]
[42]Ibid [7] and [8].

Discussion

This matter is marked by a great deal of factual uncertainty as to what has occurred with the property, and by significant difference of opinion between three experts.
The original work was conducted in 2013. The property has had three owners in all in that time. It is unusual that what is said to be significant defects have not been identified, addressed and resolved since the construction.
The central issue is as to whether a wall located at the undercroft of the property was intended to be a retaining wall or something else, and how the wall should be properly categorised.
The categorisation of the wall is important, as it leads to the application of different provisions of the Building Code of Australia and the Australian Standards. If the wall is built as a cavity wall, then one set of requirements apply. If the wall is built as a retaining wall, then a different set of requirements apply. If the wall cannot be clearly categorised as either of those two types of wall, then it remains as a masonry construction which may attract other provisions, and general building principles.
It is not in dispute that no wall was provided for in the original plans of the construction work in 2013. Further no plans, or documentation of any sort, have been put forward by any person as to the construction of the wall. Added to this lack of information is the unclear recollection by the original owner and the builder as to what transpired.
The Application is for the tribunal to make a finding as to whether a Direction to Rectify should issue against the builder, requiring that the wall be rectified to prevent the ingress of water into the house.
The evidence of the owner at the hearing[43] was that there has been no recent ingress of water, after certain concreting and drainage works were completed at the front area of the house in 2019. The owner submits that the basic alleged defect in the construction remains, and requires rectification, notwithstanding that no recent problems have been experienced.
[43]As noted in the Submissions by the Respondent filed 21 July 2021, [9]
The builder cannot clearly recall how the wall came to be built in the first place. The original owner is unable to assist. The builder suggested in evidence that the question of a wall must have come up, and that it was convenient to do so as materials were on-site, and as rock had been struck in excavating, it was thought useful to build such a wall.
It is peculiar that a wall could be built with no clear apparent purpose, authorisation, or agreement by the builder and the owner as to what the requirements for the wall were, and what the scope of works was. Nevertheless, that appears to have been the case, and a wall was built.
The hearing revolved substantially around discussion and consideration of the various experts’ opinions as to what probably happened, and as to how the situation should be viewed.
I agree with the submission of the owner that the overall situation as to the experts’ views could be described as follows:
Whilst there was some agreement between the experts, there was also significant difference in classification of the wall and interpretations of the construction requirements and whether or not the builder had constructed the wall appropriately.[44]
[44]Written submissions for the applicant dated 7 June 2021 [27]
Overall, I generally prefer the evidence of Mr Noble in this matter, where it conflicts with the evidence of the other two experts.
After the builder completed the wall, at some stage further walls were attached to it, which has had a result of creating a structure that could be seen as acting as a collector of water flowing into the area, or what was described as a ‘bath tub effect’. Also, fill in the nature of crusher dust was placed against the wall at some time – it appears that this was done at the direction of the original owner by a contractor, but was certainly not done by the builder, and this would be saturated by any water flow onto it.
A further puzzling aspect is that it is clear that at some stage somebody applied ‘blackjack’, which is a bituminous sealing compound, to the outside of the wall. The builder cannot recall doing so. There is no evidence as to who may have applied the blackjack.
A curious, and telling, piece of evidence is that of Mr Noble, who said that his investigations revealed a bituminous weatherproofing application on the inside of the wall. It was not challenged that this is the case.
Mr Noble said that the weatherproofing on the inside of the wall would have had to have been placed at the time of construction, as it would have had to have been installed prior to installation of the internal framing which currently adjoins that wall.
This observation of Mr Noble leads to a strong suggestion that the builder did in fact apply weatherproofing to the inside of the wall in the course of construction, and before the completion of the internal framing which adjoins the wall.
If the builder did apply weatherproofing to the inside of the wall, then it would be a logical anticipation that it was the builder, having those materials on hand, who would have applied similar weatherproofing to the outside of the wall at around the same time.
So, despite the builder not recalling having done so, there is a strong suggestion that the builder did in fact apply a waterproof material to both sides of the wall at the time of construction.
It is a significant factor if the builder did in fact apply waterproofing to the inside or both sides of the wall at the time of construction, as this has ramifications as to the classification of the wall.
Mr Noble expressed the view that the wall should be classified as a solid wall as defined in AS3700 Sec 1.5.2.36(e), and that no cavity would be required[45]. He also expressed the view that the bituminous weatherproofing to the internal face superseded the requirements of AS3700 Sec 4,47.4 for a cavity wall in any case, as it provides an additional protection between the two building elements.
[45]Joint Report Noble 2(6).
If it is accepted that the wall has been weatherproofed on the outside, then this supports the view of Mr Noble that the wall was built as, and should be considered now, as a solid wall, and the black bitumen application to the outside of the wall serves as an external weatherproofing function in accordance with BCA 2013 Vol 2 2.2 Damp and Waterproofing.
Much of the evidence of the other experts revolves around the requirements of the wall as a retaining wall.
There is no evidence that the wall was ever intended to be, or was built as, a retaining wall. At the time of its construction, there was nothing for it to retain.
The owner says that the crusher dust was placed for cosmetic reasons prior to sale. The effect of placing the crusher dust was to make the undercroft area more accessible, more usable, and available for storage. Before placing fill against the wall, the original owner, and his contractor, should have satisfied themselves that the wall was suitable and sufficient to act as a retaining wall for the fill.
The builder however cannot be held liable for the function of the wall as a retaining wall after his contract was completed, when it was not requested as, specified as, or built as, a retaining wall.
The placing of crusher dust against the wall is said to have added to the retention of water. The owner submits that this is not a relevant consideration, as a wall should not allow water to pass through it.
The owner submitted, and I accept, that ‘the tribunal should apply logic and common sense when considering all the evidence and determining what, on the balance of probabilities was constructed at the property’.[46]
[46]Written submissions for the applicant op. cit.[30]
In my view, the logical observation is that the wall was constructed as a solid wall. I accept that it should be classified as a solid wall, as described by Mr Noble. I further accept Mr Noble’s evidence that, given the presence of the bituminous application on the outside of the wall, that the wall does in fact comply as to weatherproofing of a solid external wall.
I therefore do not accept that the wall was defective in its construction as a solid wall.
Even if it were considered that the categorisation of the wall should be such that it is seen as not complying with a relevant Australian Standard or some other requirement, I do not consider that it would be fair and reasonable to issue a Direction to Rectify to the builder some nine years later, during which time the property has had three owners, has had significant landscaping involving the placement of fill, and construction effected of concrete paths, and masonry walls, by persons other than the builder, and in relation to which no evidence has been provided as to the nature or compliance of that subsequent work.
I do not consider that it is appropriate that a Direction to Rectify should issue to the builder.
I confirm the decision of the QBCC made on 13 August 2018 to not give a Direction to Rectify or Remedy under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld).