Crafter v Jared Nichol Builder Pty Ltd
[2023] QCAT 88
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Crafter v Jared Nichol Builder Pty Ltd [2023] QCAT 88
PARTIES:
FIONA CRAFTER (applicant)
v
JARED NICHOL BUILDER PTY LTD (respondent)
APPLICATION NO/S:
BDL013-22
MATTER TYPE:
Building matters
DELIVERED ON:
10 March 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Adjudicator Stroud
ORDERS:
The application is dismissed.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DEFECTIVE WORKS – where power failure to property caused damage to electrical items _ whether the works carried out by the builder were defective – whether the works carried out by the builder were the cause of the power failure to the property.
Queensland Building and Construction Commission Act 1991 (Qld) s 75, s 77(1), Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10, s 28
Briginshaw v Briginshaw (1938) 60 CLR 336
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
What is this application about?
Fiona Crafter contracted with Jared Nichol Builder Pty Ltd (builder) to build a wheelchair accessible bathroom (works) at her property. The works included some electrical wiring to the bathroom. Fourteen months after the works were completed Ms Crafter notified the builder that there had been an electrical failure at her residence resulting in damage to several electrical items. Ms Crafter claims the electrical failure was a result of defective work carried out by the builder and seeks an order that the builder compensate her for the cost of replacing the damaged items.
Does the Tribunal have Jurisdiction?
This is a domestic building dispute. The Tribunal has original jurisdiction to hear and decide ‘building disputes’.[1] The definition of building dispute includes a ‘domestic building dispute’. [2]
[1]Sections 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and s 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
[2]QBCC Act, Schedule 2 (definition of ‘building dispute’).
A domestic building dispute includes a claim or dispute arising between a building owner and a building contractor related to the performance of ‘reviewable domestic work’ or a claim or dispute in negligence related to the performance of ‘reviewable domestic work’.[3]
[3]QBCC Act, Schedule 2 (definition of ‘domestic building dispute’).
‘Reviewable domestic work’ means ‘Tribunal work’.[4] Tribunal work includes the renovation, alteration, extension improvement or repair of a building as well as the provision of electrical work for a building.[5]
[4]Section 75(2) of the QCAT Act.
[5]Section 75(1)(b) and (c) of the QCAT Act.
I am satisfied that the Tribunal has jurisdiction to hear this dispute.
The relevant facts
On 9 June 2020 the parties entered into a QBCC Level 2 Renovation, Extension and Repair Contract for the works for a contract price of $50.071.20. The works reached practical completion on 24 August 2020.
The works included some electrical work which was carried out by the builder’s electrician, Joshua Dunchue, of Electromec Electrical Contractors Pty Ltd.[6]
[6]Refer Affidavit of Jared Nichol sworn on 28 June 2022.
Mr Dunchue has been a qualified electrician since 2010.[7]
[7]Refer Affidavit of Joshua Dunchue sworn on 27 June 2022.
Ms Crafter claims that, on 1 June 2021 everything that was turned on down the southern side of her dwelling blew. Whilst no explanation is provided in relation to what items were damaged, Ms Crafter’s material includes a quote from Harvey Norman for several electrical items in the amount of $3,790.95.[8] I am assuming these are the damaged items Ms Crafter is seeking compensation for.
[8]Refer attachment 7 to the Affidavit of Ms Crafter sworn 1 June 2023.
No further steps were taken by Ms Crafter in response to the incident on 1 June 2021 until after August 2021, when Ms Crafter engaged an electrician, David Grundy, to replace lighting in her kitchen. Ms Crafter claims then whilst replacing the lighting Mr Grundy discovered and reported to her that:
(a)the smoke alarm hardwire had been disconnected; and
(b)a combination safety switch/circuit breaker had not been added to the electrical board.
Ms Crafter says that Mr Grundy explained to her that when adding new wire, a combination safety switch/circuit breaker must be used. He also explained the work had to be rectified by him before leaving the premises.
It seems that, based on Mr Grundy’s comments, Ms Crafter formed the view that these items of work identified, were defective works by the builder and were the cause of the electrical failure at her property on 1 June 2021.
Ms Crafter then:
(a)Lodged a complaint with the Queensland Building and Construction Commission (QBCC);[9]
(b)Sent an email to the builder stating:[10]
Notice of defects
- No safety switch added with extra wiring
- Disconnected hardwired smoke alarm.
(c)Lodged a complaint with the Electrical Safety Office[11] that, (in summary),
(i) while doing the bathroom they (builder/electrician) cut the power wire for the smoke alarm and left the wire loose in the ceiling.
(ii) power was installed to the septic pump and they just cut into a wire underneath the house
(iii) the power trips in the house and it has damaged her electrical equipment.
(iv) an electrician told her it should have been on its own circuit.
[9]By letter dated 29 October 2021, the QBCC subsequently informed Ms Crafter of its decision not to direct the builder or provide cover under Queensland Home Warranty Scheme, as the works the subject of the complaint were not considered to be building work.
[10]Email dated 6 October 2021 from Ms Crafter to the builder titled ‘Jared’s Mess’.
[11]Refer to Electrical Safety Compliance Respondent Assessment File Cover Sheet which indicates complaint lodged 14 October 2021.
Mr Nichol states he has been using his electrician Joshua Dunchue from Electromec Electrical Contractors Pty Ltd since 2016.
Following receipt of the email from Ms Crafter he contacted Mr Dunchue who assured him all the electrical works where compliant, and any electrical faults would have presented themselves immediately, not a year later.
Mr Dunchue, who filed a statement in the proceeding, states that he was contracted to disconnect the electrical in the old bathroom, rewire as per the plan and scope of work and fit off the new bathroom.[12]
[12]Refer Affidavit of Joshua Dunchue sworn on 27 June 2022.
He says when the bathroom electrical fit off was completed, he performed all required mandatory tests as per section 8.3 of the AS3000:2018. All connected items were working as intended and the electrical work was safe and compliant.
In response to Ms Crafter’s complaints regarding the cable labelled ‘unknown wire’, he says when carrying out the works to the bathroom a cable that was not physically connected to the electrical supply was identified near the bathroom light switch. The cable was labelled ‘unknown wire’ and was left as it was found, safely disconnected from the supply and taped behind the light switch at fit off.
In relation to the failure to install a safety switch, he states a safety switch/circuit breaker was installed and both the power and light circuits were protected by it. He refers to the photo included in Ms Crafter’s affidavit of the Hager ADC910T (which is alleged to have been removed from the electrical board by Mr Grundy) and says this is in fact a combination safety/switch circuit breaker.
In response to the complaint to the Electrical Safety Office that a wire supplying a smoke detector was left cut and loose in the ceiling and also that the power to a septic pump was jointed into power under the floor, Mr Dunchue states that at no point did he leave a loose wire in the ceiling or perform any work under the floor as the pump supply was run in conduit on the surface of the building to a nearby weatherproof power point and the join was made inside the power point not under the floor.
Both Mr Nichol and Mr Dunchue rely upon the findings by the the Electrical Safety Office following a full investigation carried out by them, that the electrical works carried out by Mr Dunchue were electrically safe and compliant.[13]
[13]Refer to Electrical Safety Compliance Respondent Assessment File Cover Sheet.
Were the works defective?
As the applicant to the proceeding, Ms Crafter bears the onus of proof, namely, she needs to satisfy the Tribunal that the more probable inference supports the case alleged.
Though the strict rules of evidence do not apply in the Tribunal, the Tribunal applies the usual civil standard of proof, namely proof on the balance of probabilities.[14]
[14]Briginshaw v Briginshaw (1938) 60 CLR 266, per Dixon J.
Whilst Ms Crafter has filed several statements in the proceeding, most of the information contained in the statements relate to previous complaints made by her in relation to the builder and her overall dissatisfaction with the way the works were carried out. Very little evidence has been provided to support Ms Crafter’s allegation that the electrical works performed were defective or that such defects were the cause of the power failure to her property.
It seems the only evidence adduced is the comments she says were made to her by Mr Grundy as set out in paragraphs 10 and 11 above. Whilst hearsay evidence may be presented in the Tribunal it is subject to the requirement that the Tribunal act fairly and according to the substantial merits of the case.[15] The weight given to evidence is important. If hearsay evidence is relied upon one must consider (and ask) why has the maker not been called.
[15]Refer s 28(3)(c) of the QCAT Act.
No statement by Mr Grundy has been filed in the proceeding corroborating what was alleged to have been said or, and more importantly, providing context to the conversation. This is problematic for Ms Crafter because even if the Tribunal were to accept that Mr Grundy identified defective work as Ms Crafter says, there is no evidence to support that these ‘defects’ had anything to do with, or were the cause of, the power surge to Ms Crafter’s property on 1 June 2021.
This lack of evidence is in contrast to that of the builder, and in particular the statement by Mr Dunchue, which provides sufficient explanation as to why the items alleged are not defective. Also of considerable weight were the findings by the Electrical Safety Office confirming the works carried out by Mr Dunchue were fully compliant.
In the circumstances, there is simply no evidence that the work carried out by the builder was defective. Even if I found the works were defective (which I have not), there is insufficient evidence that would lead the Tribunal to making a finding that this was the cause of the electrical issues experienced by Ms Crafter on 1 June 2021.
In the absence of sufficient evidence, Ms Crafter has failed to establish her claim to the requisite standard of proof and as a result the application must fail.
Orders
Application is dismissed.
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