Ellis & Grosskurth v Queensland Building Services Authority
[2010] QCAT 273
•18 June 2010
| CITATION: | Ellis & Grosskurth v Queensland Building Services Authority [2010] QCAT 273 |
| PARTIES: | Jolyon Ellis & Doris Grosskurth |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR110-07 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | 06.02 2008; 07.02 2008; 17.05.2010; 18.05.2010 & 19.05.2010 |
| HEARD AT: | BRISBANE |
| DECISION OF: | Mr Alexander Crawford |
| DELIVERED ON: | 18 June 2010 |
| DELIVERED AT: | BRISBANE |
ORDERS MADE: | 1. The Authority’s decision as to items 1-4, 10, 11, 14 & 18 of the Applicants’ complaint is confirmed. 3. There are no orders as to costs. |
| CATCHWORDS : | Review of Respondent’s decision not to issue a direction to rectify; Queensland Building Services Authority Act 1991, Section 72. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Jolyon Ellis & Doris Grosskurth self represented |
| RESPONDENT: | Queensland Building Services Authority represented by Brendan Cole |
REASONS FOR DECISION
Introduction
Jolyon Ellis and Doris Grosskurth (“the Applicants’”) filed an application for review on 9 July 2007 seeking review of a decision dated 7 June 2007 of the Queensland Building Services Authority (“the Respondent”) to not issue a direction to rectify and/or complete to Gibb Constructions Pty Ltd, the builder which between 31 May 2005 and 17 May 2006 constructed the Applicants’ dwelling at 5 Hillview Court, Dayboro. (“the property”)
The Applicants’ items of complaint concern certain plumbing work carried out by a sub-contractor, Mr Ray Buckland, for the builder at the property.
The matter was part heard by Member Lohrisch on 6 and 7 February 2008. I have considered the materials filed and Exhibits in that part of the Hearing and also have considered what transpired at the Hearing.
I indicated to the parties before me at the Hearing on 17 May 2010 that Mr Lohrisch had noted at the Hearing before him that the Applicants had agreed that the flow-rate was not an issue that could be dealt with in the review proceedings as it was not part of the initiating complaint, nor, as a result, of the Respondent’s decision under review. Further, Member Lohrisch had explained that process to the Applicants.
At the Hearing on 17 May 2010 the Applicants attempted to include the issue of the flow rate as an item of complaint. However, I indicated to them their agreement as abovementioned by Member Lohrisch.
After some discussion, it was agreed between the parties that the items for determination at the review would be the items set out in Exhibit 4 which I set out hereunder:
Item Number Description of Item
1 Decision to not direct rectification of water hammer[1];
[1] Water hammer is helpfully defined at paragraph 11 (a) of Mr G Stick’s statement dated 12/04/2010 as follows:- AS/NZS 3500.0:1995 defines - (a) “water hammer” as - “Pressure surges in a closed pipe system as the result of sudden change in velocity of the liquid, e.g.,. by a valve closure or pump start or stoppage.”
2 Decision to not direct rectification of vent pipe;
3Decision to not direct rectification of valves not over safe tray;
4Decision to not direct rectification of installation of pipe passing through stud;
10Decision to not direct rectification of stormwater pipe (size);
11Decision to not direct rectification of overflow pipe (size);
12Decision to not direct rectification of overflow pipe (slope).
13Decision to not direct rectification of overflow pipe (Fixing).
14Decision to not direct rectification of overflow pipe (size);
16Decision to not direct rectification of storm water pipes to water tanks.
18Decision to not direct rectification of installation of “rain heads”;
As at 22 April 2010 the Respondent conceded that rectification of items 12, 13 & 16 was warranted.
The complaint made by the Applicants on 24 October 2006 contained 20 items. I set out below the details of the complaint made by the Applicants in respect of the remaining 8 items of complaint, the subject of the review proceedings.
Item Number Details of Complaint
1. (House)In April we went to clean the ensuite/spa area and were shocked at all the banging and knocking. Major problems still exist. Please refer to Michael Burch Plumbing Report and enclosed letters.
2. (Loft)Pipes not secure / clips loose
3. (Loft)Valves and compression fitting by water heater should be above safe tray.
4. (Loft) Pipes through timber studs not packed and touching timber. Some pipes silicon packed one side only.
10. (Water Tanks) After storm 16/12/05 and storms in Jan/Feb pointed out that stormwater input to tanks not of sufficient size.
11. (Water Tanks) Stormwater overflows - not of sufficient size.
14. (Water Tanks) Overflow pipes between tanks - insufficient - capacity - leading to overflow and erosion of tank slab.
18. (Rain Heads) Not fitted as per makers instructions - builder advised 23/10/06 and needs time to respond.
The Respondent’s letter to the Applicants dated 7 June 2007.
Annexure SOR-35 is the letter from the Respondent to the Applicants dated 7 June 2007.
It says in relation to the above items as follows:
Item 1 on the “Alleged defects” list, re: Throughout house including garden taps - In April we went to clean the ensuite/spa area and were shocked at all the banging and knocking. The reinspection of the works on the 30th May 2007 found that the water hammier issue has been rectified. During the meeting the BSA addressed the water flow rate per minute matter as advised by the Pine Rivers Council. The BSA found the flow to be sufficient to allow normal daily use. The BSA advises you seek legal advice to resolve this matter.
Item 2 on the “Alleged defects” list, re: Loft- Pipes not secure / clips loose. The BSA is satisfied with the rectification and found this matter to be fit for purpose.
Item 3 on the “Alleged defects” list, re: Loft - Valves and compression fitting by water heater should be above safe tray. The Pine Rivers Council inspector deemed the works compliant with the provisions of AS3500.
Item 4 on the “Alleged defects” list, re: Loft - Pipes through timber studs not packed and touching timber. Some pipes silicon packed one side only. The BSA is satisfied with the rectification and found this matter to be fit for purpose.
Item 10 on the “Alleged defects” list, re: Water tanks - After storm 16/12/05 + storms in Jan/Feb pointed out that stormwater input to tanks not of sufficient size. The BSA is satisfied with the rectification, however the BSA advises you monitor the tanks to ensure they are fit for purpose under normal operation.
Item 11 on the “Alleged defects” list, re: Water tanks - Stormwater overflows not of sufficient size. The BSA is satisfied with the rectification, however the BSA advises you monitor the tanks to ensure they are fit for purpose under normal operation.
Item 14 on the “Alleged defects” list, re: Water tanks - Overflow pipes between tanks insufficient capacity. The BSA is satisfied with the rectification, however the BSA advises you monitor the tanks to ensure they are fit for purpose under normal operation.
Items 17 & 18 on the “Alleged defects” list, re: Water tanks & gutters - Screws used to secure gutters to downpipes and overflow to tank too long, snagging leaves and twigs, overflow from tanks completely blocked by debris being caught. The BSA is satisfied with the rectification and found this matter to be fit for purpose.
10. The statement of Reasons for Decision is contained in Exhibit 8 of the hearing on 7 February 2008.
Evidence
11. At the hearing on 06/02/2008 Mr Jolyon Ellis gave evidence relying upon his statement dated 08/09/2007 and the documents with photographs by him (Exhibit 2). The report of Mr Mark Harnett, plumbing expert, dated 05/07/2008 was tendered as Exhibit 3 on behalf of the Applicants, and Mr Harnett gave evidence.
12. Mr Bob Clayton, a Board Inspector, and Mr Stephen Jennison, one of the Moreton Bay Regional Council’s inspectors and Mr Stokman, head of the Council’s plumbing section gave evidence. Mr Clayton relied upon his memorandum dated 31/05/2007 and Mr Stokman on his affidavit dated 31/01/2008.
13. After the initial part of the hearing, the Applicants wrote to the Queensland Police and also to the Crime and Misconduct Commission complaining about the evidence given by Mr Stephen Jennison and Mr Stokman.
14. They also wrote to the Chief Executive of The Moreton Bay Regional Council alleging that Mr Jennison and Mr Stokman had given false evidence to the Tribunal. The Applicants also required Mr Jennison and Mr Stokman to appear at the Tribunal to give evidence again.
15. Ms Fiona Chapman Solicitor from Thynne and McCartney sought leave to appear before the Tribunal on 17/05/2010 on behalf of Mr Bradley Hodgkinson, Team Leader Plumbing Services, Mr Jennison and Mr Stokman. The Tribunal granted leave.
16. Ms Chapman submitted that in respect of Mr Jennison and Mr Stokman they had already given evidence at the hearing earlier and had been cross-examined by the Applicants.
17. Having heard submissions in relation to Mr Jennison and Mr Stokman, the Tribunal ruled that it was not necessary for them to be called by the Applicants. However as Mr Hodgkinson had not given evidence it was appropriate that he give evidence at the hearing.
18. The Tribunal considered it was appropriate given the serious allegations made by the Applicants against Mr Stokman and Mr Jennison, that they be granted legal representation and further upon hearing the submissions from Ms Chapman, the Tribunal considered it inappropriate that the Applicants be allowed to call Mr Jennison and Mr Stokman as they had already given evidence and had been tested in cross-examination by the Applicants. [2]
[2] See section 95 - 2(a) and (b) of the Queensland Civil and Administrative Tribunal Act 2009.
19. On 17 May 2010 Mr Buckland, plumber and drainer, gave evidence on behalf of the Respondent and was cross-examined by the Applicants.
20. Mr Buckland said he installed a number of water hammer suppressors in the roof of the house following further complaints by the Applicants of water hammer. However the Applicants had the suppressors removed. Mr Buckland said that Mr Burch who wrote the report dated 28/08/2006 was not a licensed plumber.
21. It was put to him by Mr Jolyon Ellis for the Applicants when the Applicants complained to him about the rain heads having been glued in, he told them that he had never seen the instructions. Mr Buckland said this was not correct.
22. Mr Buckland said after he had installed more water hammer suppressors in the roof space of the dwelling as shown in Exhibit 10 that Mr Ellis directed Mr Buckland to remove those suppressors as in Mr Ellis’s view they decreased the value of the house.
23. Mr Bradley James Hodgkinson, co-ordinator of plumbing services Moreton Bay Council, gave evidence and was asked a number of questions by the Applicants about the inspection of the works by the Council. Mr Cole for the Respondent said whether or not the Council correctly passed the work inspection is not the point for the review. The point for the review is whether or not the items agreed upon by the Applicants and the Respondents in paragraph 6 above are defective.
24. Mr Hodgkinson was shown Exhibit 13 being the photograph of the Applicants’ hot-water system plumbing. Mr Hodgkinson said the photo depicted a non-return valve which he marked on the Exhibit. Mr Hodgkinson was asked if the non-return valve was a backflow prevention device. Mr Hodgkinson answered no.
25. Mr Gary Stick, Resolution Manager of the BSA gave evidence and relied upon his statement dated 12/04/2010.
26. Mr David Gibb, licensed builder, gave evidence. Mr Gibb said that there was an agreement to increase the pipe sizes in the shower and if this worked the builder and sub-contractors would increase the pipe sizes in the spa.
27. Mr Gibb further said that increasing the pipe size of the shower twice proved pointless. However changing the Applicants’ shower rose addressed their concerns.
28. Mr Gibb when asked was the original shower rose the cause of the water hammer, Mr Gibb said the cause was the taps supplied by the Applicants. Mr Gibb confirmed that some of the arresters were removed by Mr Ray Buckland at the instruction of Mr Ellis.
29. Mr G J Barrett, Building Inspector of the BSA, gave evidence and relied upon two statements dated 18/10/2007 and 10/01/2008.
30. Mr Barrett said he believed that by Mr Ellis slamming the taps he created the water hammer.
31. Mr Barrett said that although the builder wanted to implement means of rectification of the water hammer including soft operating taps and installing arrestors, the Applicants refused both methods of rectification.
32. Mr Christopher Boyle, QBSA Manager, gave evidence and relied upon his statement dated 16/12/2009[3].
[3] Exhibit 18
33. Mr Evan Woodruffe, QBSA Building Inspector, gave evidence and relied upon his statement dated 12/04/2010.[4] He was shown the photograph of the hot water plumbing[5] and when asked if the non-return valve depicted in Exhibit 13 was a backflow prevention device as defined in AS3500, he replied it was not.
[4] Exhibit 19
[5] Exhibit 13
34. On 19 May 2010 Mr Harnett, a licensed hydraulics services designer, licensed plumber and drainer and a previous Brisbane City Council plumbing inspector gave evidence as an expert witness for the Applicants. He relied upon his 3 reports dated 05/07/2007, 15/08/2008 and 24/04/2010.[6][7] Mr Harnett was shown Exhibit 13 and identified the relevant valve as a non-return valve.
[6] Exhibit 3 of day 1 - (06/02/2008)
Relevant Law
35. Section 72 of the Queensland Building Services Authority Act (1991) (The QBSA Act) relevantly provides as follows:
72 Power to require rectification of building work
(1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
(2) In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.
(8) A direction cannot be given under this section more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the authority, that there is in the circumstances of a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly.
(14) The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
Example for subsection (14)--
The authority might decide not to give a direction for the rectification of building work because of the amount payable but unpaid under the contract for carrying out the building work.
36. When determining a review application the Tribunal stands in the shoes of the decision maker.
37. Section 104 (1) of the Commercial and Consumer Tribunal Act 2003 is framed in very similar terms to section 24(1) of the Queensland Civil and Administrative Tribunal Act 2009.
38. Section 24(1) of the QCAT Act 2009 says as follows:
Section 24 Functions for Review Jurisdiction
(1) In the proceeding for a review of a reviewable decision the Tribunal may:(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision, return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.
The Applicants’ Submissions
39. In relation to Item 1, the Applicants submitted the following documents and propositions should be considered by the Tribunal:
Ref 42/1 - Fax of proposed offer from Starion Industries 17/11/2006
Ref 42/4 - Email to Todd Walters regarding the Tribunal’s evidence 03/09/2007
Ref 42/2 - Understanding of proposal Starion Industries 03/09/2007
Ref 42/3 - Email from Todd Walters (agrees with the Applicants regarding the proposal)
Ref 24 - Ensuite / shower update letter Ellis to Gibb 08/03/2007.
Exhibit 6 - Letter - Michael Burch Plumbing dated 28/08/2006
JMK8 referred at 95/5 and Ref 76.
Ref 30 - Letter - Ellis to Gibb Constructions / re: Shower and Spa 28/05/2007
Ref 78 -1 & 2 Starion Industries - Todd Walters letter 11/04/2008.
SOR 12 - BSA Inspection Report - G.Barrett 14/11/06
Ref 111 - Memo BSA - G.Barrett 12/12/2006
Building Code Queensland Building and Inspection 11/01/2008Exhibit 3 of the Hearing 06/02/2008
Exhibit 21 - Report from Mr Harnett 15/08/2008
Ref 81/ 1-4 - Mark Verrenkamp 28/08/2008 (Mr Verrenkamp did not give evidence at the Hearing.)
Ref 107/1-35 - Reply to C.Boyle Report 03.02.2010
Ref 103/1-28 - Proactive Plumbing Solutions Report 20/01/2010
Ref 153/ 1-9 - Ellis and Grosskurth Statement 23/04/2010Ref 152/1-13 - Reply to BSA - G.Stick 23/04/2010
Exhibit 22 - Third Report from Mr Harnett 24/04/2010
Ref 122 - Chart of inspection Re: water hammer dated 18/02/2010 by the Applicants.Exhibit 15 - The Applicants submitted that this document is of no relevance to the water diverters installed at their dwelling by Mr Boyle who collected all diverters from Plumbing Supplies on 13/09/2005. (Mr Cole submitted this proposition was not put to any witness by the Applicants during the hearing)
Letter Ellis to Gibb 29/11/2006
Ref 85/1-9 - Chronological order of events re: water hammer 14/07/2008
Ref 24 - Ensuite shower updated Ellis to Gibb 08/03/2007.
The Applicants stated the builder and the plumber said they had been waiting for Starion Industries to complete their proposal and if that was successful they would do the spa. As it was not successful they did not do the spa. The Applicants submitted they did not agree with this evidence from the builder and the plumber.
Ref 19/1 - Letter Ellis to Gibb 16/02/2007
Ref 64/8 - Letter Gibb to Ellis 12/12/2007 (item 1)
Document - plumbing newsflash - the Applicants submitted an unlicensed person can do simple work pursuant to this newsflash.
Exhibit 8 - Mr Buckland - Documents to the Tribunal.
Exhibit 9 - 2 page Compliance Assessment.
Ref 85/2-9 - (March only)
The Applicants submitted a letter from the CCT dated 13/03/2008 to the Applicants and a letter from the Applicants to Mr Lohrisch dated 10/03/2008 regarding Mr Jennison.
Ref 95/5
Item 70 soft closed taps
Ref 76 - Invoice
Items 2, 3, 4, 10, 11, and 14
40. In relation to items 2, 3, 4, 10, 11 and 14 the Applicants submitted the following documents shall be considered by the Tribunal:
Building Code Queensland 11/01/2008 - which was filed by order of the Tribunal.
Exhibit 3 of hearing 06/02/2008 - Mr Harnett’s Report dated 05/07/2007.
Exhibit 21 - Mr Harnett’s Report 15/08/2008.
Ref 86/1-4 - Mr Barrett 28/08/2008
Ref 107/1-35 -Reply to the inspection report of Mr Boyle 03/02/2010Ref 104/1-28 -Proactive Plumbing Solutions Inspection report dated 20/01/2010
Item 18
41. Regarding item 18 the Applicants submitted the following documents should be considered by the Tribunal.
Exhibit 3 - Letter from the Applicants to the Tribunal dated 23/04/2010
Exhibit 21 - Mr Harnett’s Report 15/08/2008
Ref 86/1-4 -Mr Verrenkamp’s Report dated 28/08/2008
Ref 107/1-35 - Reply dated 03/02/2010
Ref 104/1-28 - 20/01/2010
Ref 39.1 - Installation
Ref 39.2 - Rainheads
Ref 44 -Manufacturer of the leaf eaters
Ref 59 - Photo of the rain head
Ref 117/4 - Cleaning rain head
Ref 122 - Defect regarding rain head 18/02/2010
42. Regarding costs the Applicants said that they have been trying for 3 years to have the matters rectified. All the evidence was available prior to their engaging Mr Harnett. The Applicants are seeking costs. They said this matter has been unnecessarily lengthy.
The Respondent’s Submissions
43. Mr Cole for the Respondent said that on 17 May 2010 the Applicants accepted that items 1, 2, 3, 4, 10, 11 12, 16 and 18 were the only items at issue. The Respondent prior to the start of the hearing conceded that rectification in respect of items 12, 13 and 16 was warranted. That concession was given on 22 April 2010 (Exhibit 4) and in the accompanying letter dated the same date. That date was the first date that the Respondent accepted those items.
44. Regarding item 1 Re: water hammer, Mr Cole submitted that on 17 May 2010 Mr Buckland was asked by the Applicants if he recalled being informed by them shortly after they took possession of the house that there was water hammer. Mr Buckland answered yes but only in the laundry and that it was able to be remedied by installing soft closed taps. Mr Buckland asserted he later installed a number of water hammer suppressors in the roof space of the dwelling following other complaints by the Applicants of water hammer. Mr Buckland claimed that the suppressors / arrestors were effective but that the Applicants had the suppressers removed. Mr Buckland gave evidence of having seen on 22 September 2007 that the suppressors had been removed.
45. Mr Buckland went on to assert he later installed more water hammer suppressors in the roof space of the dwelling. Mr Buckland informed the Tribunal that they were of the type shown in Exhibit 10 and were effective. Mr Buckland claimed that he was subsequently directed by Mr Ellis to remove those suppressors and he did so. Mr Buckland claimed Mr Ellis told him that the suppressors devalued the house.
46. On 17 May 2010 Mr David Gibb, the builder, said in evidence that there was an agreement to assist with work to increase pipe sizes in the Applicants’ shower, to address the Applicants’ concerns regarding water hammer there.
47. Mr Gibb said the agreement was to increase the pipe sizes in the shower and if this worked the builder and sub-contractors would increase the pipe sizes in the spa. Mr Gibbs’ evidence was that increasing the pipe size of the shower twice proved pointless, and it was the changing of the Applicants’ shower rose which addressed their concerns.
48. On 18 May 2010 Mr Gibb gave evidence of having agreed to replace (“upgrade”) a section of the hot water pipe in the Applicants’ roof-space, with a pipe of a larger diameter. The Applicants suggested to Mr Gibb and in-fact asserted that this had been “very successful”.
49. On 17 May 2010 Mr G. Stick was called. A statement dated 12 April 2010 (Exhibit 14) was tendered. The Applicants elected not to question Mr Stick about his evidence.
50. In his document, “Decision Review” (Exhibit 22), Mr Harnett rejected Mr Woodruffe’s evidence at paragraph 9 of Mr Woodruffe’s Statement of Evidence (Exhibit 19) that Clause 4.6.2.1.(e) of the installation of backflow prevention devices provisions of AS3500.1.2:1998 is of no relevance. Clause 4.6.2.1(e) provides “where water hammer occurs it should be rectified by the installation of a surge protector or water hammer arrestor”.
51. Mr Woodruffe opined that clause 4.6.2.1(e) is of no relevance unless the builder had installed a backflow prevention device.
52. Without referring to any particular part of the Applicants’ hot water service at page 2 of his document (Exhibit 22) Mr Harnett claimed all storage of water systems incorporated backflow prevention devices. They are called non-return valves. The solar hot water system installed at the Appellants’ home is a storage hot water system.
53. On 19 May 2010 Mr Harnett was shown a photograph (Exhibit 13) and identified the circled valve as a non-return valve. Mr Harnett was asked how the valve fell within the definition in AS3500 of backflow prevention device, thus invoking clause 4.6.2.1(e). Mr Harnett was asked if he saw a polluted water supply in the Applicants’ roof area. Mr Harnett initially avoided answering the question and then reasoned that the valve had to be a backflow prevention device in case someone brought a bucket of poison into the roof area, or there was sludge in the tank. Mr Harnett’s understanding of the purpose of the valve (see Exhibit 13) was clearly at odds with that of Mr Hodgkinson and Mr Woodruffe who in their prior evidence left the Tribunal in no doubt that the valve was not a backflow prevention device.
54. On 17 May 2010 Mr Hodgkinson told the Tribunal that he was the plumbing co-ordinator of the Moreton Bay Regional Council. Mr Hodgkinson was shown Exhibit 13. Mrs Grosskurth helpfully conceded that Exhibit 13 was a photograph of the Applicants’ hot water system plumbing. Mr Hodgkinson said that the photo depicted a non-return valve which he marked on the exhibit. Mr Hodgkinson was asked if the non-return valve was a backflow prevention device. Unequivocally, according to Mr Cole, Mr Hodgkinson said that a non-return valve is not a backflow prevention device and supported his answer with reasons going to the operation and testing of such devices.
55. On 18 May 2010 Mr Woodruffe opined that the valve marked on Exhibit 13 was a non-return valve. Mr Woodruffe gave evidence (a) that a non-return valve was defined in AS3500 as a “valve to prevent reverse flow from downstream of a pipe to the section of the pipe upstream of the valve and (b) that a backflow prevention device is defined in AS3500 as “a device to prevent the reverse flow of water from a potentially polluted source into a potable water supply system.” Mr Woodruffe was asked if there was a potentially polluted source of water on either side of the non-return valve in Exhibit 13. He replied that the cold water downstream and the hot water upstream of the valve is considered potable (drinkable). Mr Woodruffe was asked if the non-return valve depicted in Exhibit 13 was a backflow prevention device as defined in AS3500. Mr Woodruffe answered it was not.
56. Mr Cole said that the Respondent accordingly (a) submits that Mr Harnett is mistaken in his belief that the Applicants’ hot water service incorporated a backflow prevention device and (b) maintains that clause 4.6.2.1(e) of AS3500.1.2:1988 cannot be relied upon by the Applicants as a basis for directing rectification of the water hammer complained of. Paragraph 8 of Mr Woodruffe’s statement observes that the applied standards set out in paragraph 6 of his statement (Exhibit 19) recognised that water hammer can be minimised or lessened but not always eliminated. That evidence was not challenged. (The Applicants said they replied to Mr Woodruffe’s statement and that was why they did not ask any questions of him).
57. Mr Cole said the Respondent therefore submits:
(a) That the builder, by its subcontractor Mr Buckland, has taken reasonable steps to address the Applicants’ complaints of water hammer.
(b) That the builder has been prevented by the removal of water hammer arrestors from resolving the Applicants’ complaints of water hammer.
(c) That there are no applicable plumbing standards requiring rectification of the water hammer complained of by the Applicants.(d)That having regard to section 72(14) of the Queensland Building Services Authority 1991 (the “QBSA Act”), it would be unfair, in the circumstances, to direct rectification of water hammer.
Vent pipe Item 2
58. Regarding the above Mr Cole said that on 18/05/2010 Mr Chris Boyle gave evidence:
(a)Of the builder’s readiness on 11 November 2009 to rectify the vent pipe; and
(b)Of having been advised by Mr Ellis that the Applicants would not permit rectification unless the builder received a formal direction.
59. Having regard to section 72(14) of the QBSA Act, it would therefore be unfair, in the circumstances, to direct rectification of this item.
Valves not over safe tray - item 3
60. Regarding the above Mr Cole said that on the 18/05/2010, Mr Boyle also gave evidence:
(a)Of the builder’s readiness on 11 November 2009 to rectify this item; and
(b)Of having been advised by Mr Ellis that the Applicants would not permit rectification unless the builder received a formal direction.
61. Having regard to section 72(14) of the QBSA Act, it would therefore be unfair, in the circumstances, to direct rectification of this item.
Pipe passing through stud - item 4
62. Regarding the above Mr Cole said on 18/05/2010, Mr Boyle also gave evidence:
(a)Of the builder’s readiness on 11 November 2009 to rectify this item; and
(b)Of having been advised by Mr Ellis that the Applicants would not permit rectification unless the builder received a formal direction.
63. Having regard to section 72(14) of the QBSA Act, it would therefore be unfair, in the circumstances, to direct rectification of this item.
Storm water pipe (size) - item 10
64. Regarding the above Mr Cole said the Applicants placed no evidence before the Tribunal that the size of the Applicants’ storm water pipes is inadequate and therefore defective.
Overflow pipe (size) - item 11
65. Regarding the above Mr Cole said the Applicants placed no evidence before the Tribunal that the size of the Applicants’ overflow pipes is inadequate and therefore defective.
Overflow pipe (slope) - item 12
66. Regarding the above Mr Cole said rectification of this item is warranted.
Overflow pipe (fixing) - item 13
67. Regarding the above Mr Cole said rectification of this item is warranted.
Overflow pipes between tanks (size) - item 14
68. Regarding the above Mr Cole said the Applicants placed no evidence before the Tribunal that the size of the overflow pipes between the Applicants’ storm water tanks is inadequate and therefore defective.
Storm water pipes to water tanks (bracing) - item 16
69. Regarding the above Mr Cole said rectification of this item is warranted.
Installation of ‘rain heads’ - item 18
70. Regarding the above Mr Cole said the installation instructions for the Applicants’ “Leaf Eater” rain head boxes are divided into three relevant sections - “installation at gutter”, “MID MOUNTED INSTALLATION” and “CLEANING”.
71. Step 4 of the ‘installation at gutter instructions’ directs the installer to “NOT Glue the Leaf Eater to the downpipe” for ease of replacement. The direction is not repeated in the ‘mid mounted installation’ instructions.
72. The cleaning instructions do not require or suggest dismounting of the entire Leaf Eater unit for cleaning. The instructions are –
“The primary screen of the Leaf Eater is mostly self cleaning, but from time to time, leaves may become jammed. Check the Mozzie Screen periodically to ensure it is clear, and hose or brush off if necessary.”
73. Mr Cole said the Respondent therefore submits that the builder did not depart from the Leaf Eater manufacturer’s instructions when installing the Applicants’ Leaf Eater ‘rain heads’ or install them in such a way as could be considered faulty or unsatisfactory.
74. Mr Cole submitted that the Tribunal should make the following orders:
(a)The Authority’s decision as to items 1-4, 10, 11, 14 and 18 of the Applicants’ complaint is confirmed.
(b)The Authority’s decision as to items 12, 13 and 16 of the Applicants’ complaint is set aside and returned for reconsideration to the Authority.
75. Mr Cole further submitted on 19 May 2010 Mr Harnett accepted that a plastic cup lug produced by the Applicants had no relevance to any item in this review. Mr Harnett accepted that the instructions about not gluing the rain heads is in the section about gutter mounting. Mr Harnett agreed that the Applicants’ rain heads were not gutter mounted. Mr Harnett told the Tribunal that he had formed his view about the size of the pipes at the Applicants’ rain water tanks as being inadequate on the basis of his experience and had formed his view from the photograph that he had seen but had not taken. He said he had not been present when the tanks were flooding. When asked, Mr Harnett also told the Tribunal he had not conducted any testing or modelling to determine if the pipe sizes were inadequate.
76. In re-examination Mr Harnett was taken by the Applicants to photo 104/14. Mr Harnett gave no evidence about the measurement of the gap between the screen and the downpipe in the case of any of the depicted rain heads. The Respondent submits the Tribunal was given no evidence as to whether any departure from the manufacturer’s recommended gap of 50mm was causing the rain heads to malfunction.
77. The Respondent further submitted that it was difficult to conceive how a maximum variance of 15-16mm (1.5 cm) would disrupt the operation of the rain heads rendering them defective.
78. Regarding costs, Mr Cole on behalf of the Respondent said that if the Tribunal makes the orders as sought by the Respondent that each party should bear its own costs up until 22 April 2010 being the date mentioned in Exhibit 14. After that date the Applicants should pay the Respondent’s cost to be assessed on the Magistrates Court scale of costs.
Observations and Findings
79. Having considered the evidence on behalf of the Applicants and the evidence on behalf of the Respondent, I prefer and accept the evidence on behalf of the Respondent to the evidence on behalf of the Applicants.
80. I find relevant evidence at the Hearing in respect of item 1, the subject of this review, was the evidence of Mr Buckland, Mr Gibb, Mr G Stick, Mr Woodruffe, Mr Barrett, Mr Boyle, Mr Hodgkinson, Mr Harnett and Mr Ellis.
81. Mr Harnett, an expert witness called on behalf of the Applicants, was less convincing in his evidence than the evidence from Mr Woodruffe and Mr Hodgkinson generally and in particular as to whether or not the valve shown in Exhibit 13 was a backflow prevention device.
82. I accept the submissions of the Respondent set out in paragraph 56 above, as in my view they correctly reflect the evidence in this case.
83. I found Mr Chris Boyle’s evidence helpful and persuasive with regards to the builder’s readiness on 11/2009 to rectify items 2, 3 and 4. Further I accept the evidence of his having being advised by Mr Ellis that the Applicants would not permit rectification of these items unless the builder received a formal direction (see the last paragraph on page 31 of Mr Boyle’s report - Exhibit 18).
84. Further I accept the submissions of the Respondent that the Applicants placed no evidence before the Tribunal that the size of the Applicants’ storm water pipes is inadequate and therefore defective (item 10), that they placed no evidence before the Tribunal that the size of the Applicants’ overflow pipes is inadequate and therefore defective (item 11), and that they placed no evidence before the Tribunal that the size of the overflow pipes between Applicants’ storm water tanks is inadequate and therefore defective (Item 14).
85. I also accept the submissions in relation to item 18 regarding the rain heads by the Respondent set out in paragraphs 69 -72 and paragraphs 74 - 76 above.
86. I find much of the material relied upon by the Applicants including their submissions was not relevant to the issues for determination of the review by the Tribunal. One example of this is shown at page 31 of the Applicants’ Reply to Mr Boyle’s report dated 14/12/2009, where they assert they told Mr Boyle that over the last 4 years they have experienced a great deal of subterfuge from Mr Gibb and Mr Buckland and that is why they could not trust them anymore. The Applicants stated they have also lost confidence in the BSA. These statements were made within a context of Mr Boyle suggesting a process of resolving between the Respondent and the Applicants the issues inspected none of which he considered appeared to be major in nature. Again, when commenting upon Mr Stick’s statement dated 12/04/10 the Applicants allege the Respondent has perverted the course of justice (see page 4 of Ref 152/4).
87. In all the circumstances of this case and having considered both the evidence and the submissions I consider the appropriate orders are the ones sought by the Respondent namely:
(a) the authority’s decision as to items 1 - 4, 10, 11, 14 & 18 of the Applicants’ complaint is confirmed;
(b) the authority’s decision as to items 12, 13 & 16 of the Applicants’ complaint is set aside and returned to consideration for the authority.
88. I make no orders as to costs bearing in mind section 100 of the QCAT Act.
[7] Exhibit 21 & Exhibit 22.
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