G & R (Qld) Pty Ltd trading as Pools by Design v Queensland Building Construction Commission
[2024] QCAT 285
•2 July 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
G & R (QLD) Pty Ltd trading as Pools by Design v Queensland Building Construction Commission & Anor [2024] QCAT 285
PARTIES:
G & R (QLD) PTY LTD TRADING AS POOLS BY DESIGN (applicant)
v
QUEENSLAND BUILDING CONSTRUCTION COMMISSION (first respondent)
LISA PITTORI AND LOUISE PARRY
(second respondent)APPLICATION NO/S:
GAR040-21
MATTER TYPE:
Building matters
DELIVERED ON:
2 July 2024
HEARING DATE:
2 June 2023
HEARD AT:
Brisbane
DECISION OF:
Member Holzberger
ORDERS:
1. The decision under review is confirmed.
CATCHWORDS:
GENERAL ADMINISTRATIVE REVIEWS – BUILDING MATTERS – whether the defect is purely visual or structural.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22
Queensland Building and Construction Commission Act 1991 (Qld)
APPEARANCES &
REPRESENTATION:Applicant:
Darren Sutherland
First Respondent:
Ms. S. Tabaiwalu, in house lawyer
Second Respondent:
Ms. L Parry and Ms. L Pittori
REASONS FOR DECISION
On or about 6 October 2016, G & R (QLD) Pty Ltd trading as Pools by Design (‘Pools by Design’) entered a contract with Derek Chart for the construction of a swimming pool at Mr. Chart’s property (‘the property’).
Lisa Pittori and Louise Parry purchased the property from Mr Chart in December 2019.
Sometime later,[1] Ms Pittori and Ms Parry noticed what they described as ‘issues of pool shell cracking at water line the joint between pool shell and concrete bedding’.[2]
[1]Their subsequent complaint says the issue was first noticed on 20th January 2020.
[2]Hearing Book (‘HB’), page 343
After attempts to resolve the issues with Mr. Chart and Pools by Design failed, Ms. Pittori and Ms Parry made a complaint to Queensland Building Construction Commission (‘QBCC’) on or about 8 July 2020 in respect of four alleged items of defective work. The four complaint items were:
(a) … cracked pebble coat surface around the waterline of the pool ¾ of the way round
(b) … cracked shell of pool - showing severe cracking in the corner of shallow end that goes through to the shell again.
(c) … rough concreting inside skimmer box.
(d) … no expansion joints in Coping causing cracking of shell and surrounding tiles.
QBCC arranged an inspection at the property on 27 October 2020. The Initial Inspection Report issued on 27 October 2020 indicates that the meeting was attended by QBCC Inspector Ross Blumel, Pools by Design representative Gary Gaffney and Ms Parry.
On 29 October 2020, QBCC issued Pools by Design a direction to rectify item 4 (‘original decision’). No directions to rectify were issued in respect of items 1, 2 and 3, but the direction to rectify item 4 encompass the ‘consequential damage’ referred to in items 1 and 2.
On about 19 November 2020, Pools by Design applied for internal review of the original decision.
On 8 December 2020, a desktop review was carried out by QBCC technical officer Evan Woodruff. His report dated 9 December 2020 confirmed the original decision in the following terms:
There are no intermediate movement joints between the swimming pool coping tiles as required to satisfy AS 3958.1 - 2007 and consequently the movement and dislodgement of coping tiles has contributed to severe cracking and breaking away of the pebble coating around and above the water line of the swimming pool. (Pertains to complaint items 1, 2 and 4.)[3]
(‘the IR decision’)
[3]Ibid, page 292
Pools by Design applied to the Tribunal for a review of the IR decision on 15 January 2021. The Tribunal must hear and decide the review by a way of fresh hearing on the merits to arrive at the correct and preferable decision.[4]
[4]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 20.
The Tribunal conducted a hearing on 2 June 2023. Pools by Design filed in the Tribunal statements by Darren Sutherland, Pools by Design’s ‘representative’ and Jason Lindsay, engineer. QBCC filed its statement of reasons and a statement by the internal review decision maker Mr Evan Woodruff. Ms Pittori and Ms Parry filed a brief statement.
Mr Sutherland, Mr Lindsay, and Mr Woodruff gave oral evidence at the hearing.
Mr Lindsay is a registered professional engineer and owner and director of Lindsay Consulting Pty Ltd.
He was originally engaged by Pools by Design to do the design works for the pool in 2016.
Pools by Design engaged him again in November 2020 to inspect the pool following the complaint by Ms Pittori and Ms Parry. He prepared a report to Pools by Design on 19 November 2020. Mr Lindsay opines that ‘the crack’ around the pool is not a crack, but rather a joint between the pool shell and the bedding grout for the coping tiles. While noting that there are no expansion joints in the coping tile, he says this was not affecting the coping tiles. He noted some movement of the concrete and timber decks but says this is a separate issue. His report recommends sealing the joint between the tile grout and the pool shell with a waterproof product to prevent swelling between the shell and the grout because the joint is sometimes below the water line.
Mr Sutherland accepts Mr Lindsay's opinion. The copy of his report was provided to QBCC in the internal review process. Mr Woodruff did not agree with Mr Lindsay's conclusions.
Mr Woodruff's evidence and the basis of his internal review decision are:
(a)AS3958.1-2007, which applies to the construction of the pool, requires the installation of intermediate movement joints;
(b)intermediate movement joints were not installed;
(c)that failure is a contributing factor to the cracking of the pebble creek coating around and above the waterline and cracking of the shell;
(d)non-compliance with AS3958.1-2007 comes within the definition of defective building work.
Mr Sutherland confirmed that Mr Lindsay did the structural design work for the pool. He did not have any other involvement in the pool’s construction.
A number of photographs of the pool have been provided by all parties. While Mr Lindsay says the damage to the pool, which from the photographs appears to be significant, is not structural, he conceded in cross examination ‘it's a visual thing’.
I agree with Mr Woodruff that the failure to install intermediate movement joints cannot be excluded as a contributing factor to the damage.
I agree with his evidence in QBCC's oral submissions that such failure is defective building work.
It has not been contended that the complaint is outside the limitation period mandated by s 72A of the Queensland Building Construction Commission Act 1991 (Qld), and it is not known what the date of that is. There is no evidence nor submissions that the imposition of the direction to rectify is unfair.
Accordingly, the Tribunal confirms the decision under review.
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