Delahunty v Queensland Building Services Authority - [2013] QCAT 639

CITATION:

Delahunty & Anor v Queensland Building Services Authority [2013] QCAT 639

PARTIES:	Mr Edmund Delahunty and Mrs Kathleen Josephine Delahunty (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR297–12

MATTER TYPE:

General administrative review matters

HEARING DATE:

23 August 2013

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

29 November 2013

DELIVERED AT:

Townsville

ORDERS MADE:

1. The decision made by the Respondent dated 1 August 2012 is confirmed.

2. The application is dismissed.

CATCHWORDS:

Consequential damage arising from building work – building work – direction to rectify consequential damage – competing interests of the parties

Queensland Building Services Authority Act 1991, s 3, s 72(1), s 72(2), s 72(14), s 86(1) and Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 ss 20, s 24

Gary Norwood Homes Pty Ltd v QBSA (unreported, Dist Crt, Bris, 20 June 1997) Forno QC DCJ
Stephenson v QBSA [2005] QCCTB 059
Kehl v QBSA [2011] QCAT 54
Sheldon v Queensland Building Services Authority (unreported, Qld Building Tribunal 14.11.94)

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Byrne Business Lawyers, Townsville

RESPONDENT:

Mr E.T. Bird, QBSA Legal Services Branch

REASONS FOR DECISION:

The Applicant owns a house in Pallarenda, a suburb in Townsville. In November 2011 the Applicant engaged a Builder[1] to install a new roof to their house. A contract was entered into and the work commenced on or about 28 November 2011.
[1] Tony & Jason’s Carpentry, Concreting Constructions, Townsville.

On 8 December 2011 the Queensland Building Services Authority (“the Authority”) wrote to the Builder confirming that an appropriate insurance premium had been paid by the Builder for the building work at the Applicant’s house. The work was described by the Authority as “1 X ALTERATION & / OR ADDITION & / OR REPAIRS”.[2] This description seems to fall within the definition of building work as provided for by the Queensland Building Services Authority Act 1991[3] (“the Act”).
[2] See BSA’s confirmation of insurance contained in the Authority’s Exhibit “SOR-9”.
[3] See Schedule 2.

On the evening of 14 December 2011 during a heavy thunderstorm, a large amount of water entered the roof area of the Applicant's house causing substantial damage to the interior of the dwelling. It appears that the roof, or least some portion of the roof, was missing from the dwelling and the Builder had not taken steps to properly waterproof the premises.

On 8 February 2012 the Authority received a complaint[4] from the Applicant outlining a number of defects to the building work carried out on their house. The property was inspected by the Authority on 2 April 2012. The Applicant and the Builder were present during that inspection.
[4] See document “SOR-4” of the Authority’s material.
In its initial inspection report,[5] the Authority identified a number of defects in the work carried out by the Builder. Notably there were Category 1 defects, such as the house not being covered after work was completed for the day and the glass wool insulation was wet from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Delahunty v Queensland Building Services Authority and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] QCAT 639
Decision Date

CaseChat Overview and Summary

In this matter, Mr. and Mrs. Delahunty sought a review of a decision made by the Queensland Building Services Authority (QBSA) regarding the rectification of consequential damage caused by a builder's negligence. The QBSA had issued a direction to the builder to rectify certain defects in the building work, but later amended this direction to exclude the consequential damage caused by the builder's failure to cover the roof during a storm. The applicants argued that the QBSA should have directed the builder to rectify the consequential damage as well. The legal issues before the Tribunal were whether the QBSA had the power to direct the builder to rectify consequential damage, and whether the QBSA correctly exercised its discretion in amending the direction.

The Tribunal found that the QBSA correctly exercised its discretion under section 72 of the Queensland Building Services Authority Act 1991 when it amended the direction to exclude the consequential damage. The Tribunal noted that the Act provides that the QBSA can direct a builder to rectify defective or incomplete building work, but it is not required to do so if it would be unfair to the builder. The Tribunal also found that the QBSA's decision not to direct the builder to rectify the consequential damage was consistent with previous cases that have held that consequential damage does not fall within the meaning of "building work" under the Act.

The Tribunal concluded that the QBSA correctly exercised its discretion under section 72 of the Act when it amended the direction to exclude the consequential damage, and that it was not unfair to the builder to exclude the consequential damage from the direction. The Tribunal also found that the QBSA's decision not to direct the builder to rectify the consequential damage was consistent with the objects of the Act and the legislative framework that established the criteria by which the QBSA may give directions.

The Tribunal confirmed the QBSA's decision and dismissed the applicants' application for review. The Tribunal ordered that the decision made by the QBSA on 1 August 2012 be confirmed and that the application be dismissed.

Orders