Galletta v Queensland Building and Construction Commission and JC Concreting Pty Ltd
[2023] QCAT 268
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | Galletta v Queensland Building and Construction Commission and JC Concreting Pty Ltd [2023] QCAT 268 | |||
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APPLICATION NO/S: | GAR509-20 | |||
MATTER TYPE: | General administrative review matters | |||
DELIVERED ON: | 17 June 2023 | |||
HEARING DATE: | 17 June 2022 | |||
HEARD AT: | Cairns | |||
DECISION OF: | Member Pearce | |||
ORDERS: | 1. The decision of the first respondent is set aside. 2. The second respondent, JC Concreting Pty Ltd, is ordered to pay the applicant the sum of $35,100.00. | |||
APPEARANCES & REPRESENTATION: | ||||
Applicant: | Michael Galletta, self-represented | |||
Respondent: Second Respondent: | Suliana Tabaiwalu, QBCC in house legal representative John Cook, JC Concreting Pty Ltd |
REASONS FOR DECISION
The Background
On 18 March 2019 The applicant entered into a contact with pool builder John Cook of JC Concreting (Pty Ltd) for the construction of a new swimming pool at his home. The pool was completed on 18 June 2019.
On 25 May 2020 the applicant became aware of defects in the pool and notified the pool builder. The applicant was not satisfied with the action of the pool builder and made a complaint to QBCC.
A site inspection by QBCC was carried out on 27 July 2020. QBCC engaged an engineer to provide a report. QBCC determined it was reasonable to direct the pool builder to rectify the works and the applicant has made an application to QCAT.
The matter was heard on 17 June 2022.
On 21 February 2023 the applicant made further application to file additional material.
Both the substantive hearing and the application for additional material will be dealt with here.
By decision dated 20 November 2020, the Queensland Building and Constructions Commission (QBCC) notified the applicant, of the Commission’s decision not to issue a direction to rectify pursuant to section 72(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to the second respondent, JC Concreting Pty Ltd.
The applicant applied for a review of this decision pursuant to section 86(1)(e) and 87 of the QBCC Act. The final orders that can be made by the Tribunal, in exercising its review jurisdiction, are outlined in section 24(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and are as follows:
(a)The decision is confirmed or amended; or
(b)The decisions is set aside and substituted with the Tribunal’s own decision; or
(c)The decision is set side and the matter returned to the Commission to reconsider the decisions with directions the Tribunal considers appropriate.
The following legislative provisions were in force when the decision was made:
(a)The QBCC Act current as at 2 October 2020; and
(b)The Queensland Building and Construction Commission Regulation 2018 (QBCC Regulation) current as at 1 October 2020.
Section 3(a)(ii) of the QBCC Act states, that one of the objects of the QBCC Act is to achieve a reasonable balance between the interests of building contractors and consumers.
Section 3(b) of the QBCC Act provides that another object of the QBCC Act is to provide remedies for defective building work.
Part 6 of the QBCC Act entitled “Rectification of building work and remediation of consequential damage” comprises sections 71H to 74 (inclusive), which includes provisions for the rectification of building work.
Specific provisions providing for the rectification of building work are contained in Division 2 of Part 6 of the QBCC Act, entitle direction to rectify or remedy”. It comprises of sections 71J to 72B(inclusive).
Section 71J of the QBCC At provides that requests may be made to the Commission to give a direction to rectify building work considered to be defective or incorrect. It enacts as follows:
71J Requests for rectification of building work or remediation or consequential damage
(1)A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete.
(2)The owner or occupier of a residential property adjacent to a building site may ask the commission to give a direction to remedy any consequential damage to the property.
(3)A person making a request under subsection (1) or (2) must give the Commission.
(a) details of –
(i)For a request under subsection (1) – the building work the consumer considers defective or incomplete; or
(ii)For a request under subsection (2) – the consequential damage the property; and
(b) other details the commission reasonably requires to consider the request; and
(c) the fee prescribed by regulation.
The commission’s power to issue a direction to rectify building work is provided under section 72 of the QBCC Act. A direction to rectify building work may be issued by the Commission to the person who carried out the work, if the commission is of the opinion the that the building work is defective or incomplete.
The terms “building work” and “defective” are defined in Schedule 2 of the QBCC Act as follows:
Building work means-
(a)The erection of construction of a building; or
(b)The renovation, alteration, extension, improvement, or repair of a building, or
(c)The provisions of lighting, heating, ventilation, air conditioning, water supply, sewerage, or drainage in connection with a building; or
(e)Any site work (including the construction of retaining structures) related to work of a kind referred to above; or
(f)The preparation of plans or specifications for the performance or building work, or
(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or
(g)Fire protection work; or
(ga) mechanical services work; or
(h)Carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
(i)Carrying out a completed building inspection; or
(j)The inspection or investigation of a building and the provision of advice or a report for the following–
(i)Termite management systems for the building;
(ii)Termite infestation in the building;
But does not include work of a kind excluded by regulation from the ambit of this definition.
“defective” means “in relation to building work, includes faulty or unsatisfactory.”
[The Commission cannot issue a direction to rectify more than 6 years and 6 moths after the building work was completed or left in an incomplete state.[1]
[1]QBCC Act section 72A(4).
In considering whether to issue a direction to rectify, the Commission is also guided by the “Rectification of Building Work Policy” (Rectification Policy).
The rectification policy was made by the Queensland Building and Construction Commission Board (The Board), under its function of deciding strategies and the operational, administrative and financial policies which are to be followed by the Commission.[2]
[2]QBCC Act section 11. The Board is established by section 10 of the QBCC Act.
The Rectification Policy relevantly provides as follows:
1) Rectification of defective building work
1. It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to rectify that work.
2. To remove any doubt, (1) applies despite the building contractor failing to comply with the contracted plans and specifications for the work.
Defective building work means building work that is faulty or unsatisfactory, an includes for example, work that:
(a)does not comply with the Building Act 1975 (Qld), Building Code of Australia or an applicable Australian Standard.
(b)involves the use of a manufactured product and that product has been used, constructed, or installed in a way that does not comply with the product manufacturer’s instructions.
Non-structural defective building work means defective building work (other than structural defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because:
(a)it does not mean a reasonable standard of construction or finish expected of a competent holder of a contractor’s license of the relevant class; or
(b)it has caused a settling in period defect in a new building.
Structural defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:
(a)adversely affects the structural performance of the building.
(b)adversely affects the health or safety of persons residing in or occupying a building;
(c)adversely affects the function use of a building;
(d)allows water penetration into a building.
The Commission’s decision to give a direction to rectify or remedy or not to give the direction is a reviewable decision.[3]
[3]QBCC Act section 86(1)(e).
Review of the Commission’s decision may be by way on internal review within the Commission or external review by the Tribunal.[4]
[4]QBCC Act Div 3 Part 7 – sections 85A, 86, 86A and 86E.
For the Commission to issue a direction to rectify building work under section 72 of the QBCC Act, the Commission must e satisfied that:
(a)“building work” has been undertaken or caried out for the purposes of the QBCC Act.
(b)The “building work” is defective and/or incomplete for the purpose of the QBCC Act and Rectification Policy;
(c)the person to be issued with the direction is responsible for the defective and/or incomplete “building work” for the purpose of the QBCC Act;
(d)The statutory timeframe for issuing a direction for defective building work has not elapsed under QBCC Act; and
(e)It is reasonable, in all the circumstances, for the QBCC to exercise the discretion to issue a direction to the person who is responsible for the building work.
BACKGROUND AND DOCUMENTS
Brief background to current proceedings
There are 2 previous complaints lodged by the applicant with the Commission in regard to the contractor. The third complaint relates to these proceedings.
The first complaint was lodged on 19 July 2019 (First Complaint) in regard to 11 complaint items relating to the pool and timber deck at 14 Sixth Avenue, South Townsville in the state of Queensland (the Property). The first complaint was ultimately progressed as a claim under the Queensland Home Warranty Scheme (Statutory Insurance Scheme) for the rectification of one item. The item approved under the Statutory insurance scheme relates to the leaking of the pool through the pool shell. Rectification of same is to include the application of a waterproofing membrane to the internal surfaces of the pool.
The second complaint lodged on 31 December 2019 (second Complaint) was in regard to six (6) items where item two (2) was in regard to the base slab of the pool. No defective building work was found with respect to item two (20 of the second complaint.
The Complaint and Original Decision
On 1 July 2020 the Commission received from the applicant by email, a residential and commercial construction complaint form (Complaint), for defective work regarding the base slab of the pool undertaken by the contractor at the property. Amongst a whole host of other issues with the pool, it was leaking at an above normal rate. The applicant had concerns with the integrity of the shell/base, including that it was not poured to the required thickness.
An inspection was arranged for 27 July 2020 at 9:00am.
The Commission engaged LCJ Engineers Pty Ltd to provide a desktop audit for the Commission proper to the inspection of the property.
An audio recording of the property inspections sent the LCJ Engineers on 27 July 2020.
The Commission’s decisions not to issue a direction to rectify to the contractor was based on LCJ Engineers report, and the Applications report from Fortis EM, any water leaks will be rectified by the installation of a flexible waterproofing membrane.
The applicant requested an internal review of this decision.
The internal review resulted in the decisions to not give the Contractor a direction to rectify.
The issues in dispute
The Commission found that there was in fact water in the base of the pool during the concrete pour and that this may impact on the concrete permeability if it is not removed. It found it was accepted the contractor introduced concrete powder to the deep end of the pool which would have absorbed the residual water but may lead to crazing of the concrete. The Commission argued that this would not have led to structural or serviceability issues and provided this is sealed, this is acceptable in accordance with AS27883;
The commission also argued that although the base slab does not comply with AS3600 it does comply with AS2783 for a minimum slab thickness of 125mm. They concluded that although slab thicknesses tended to vary the application of the waterproofing membrane will comply with the serviceability provisions of AS2783.
The applicant highlighted for the tribunal a number of issues of frustration experienced in dealing with the complaints regarding the pool he has had installed. Due to the excessive leaking the applicant is of the opinion it has not been built to specification and the slab is indeed not of adequate thickness. One definitive method to resolve the issue of the slab thickness post construction is core sampling. All parties agreed this would resolve the debate. It is accepted by the Tribunal that this would have simply resolved the issue. The core sampling was considered a destructive process by the respondent and if carried out the rectification works regarding the waterproofing membrane that were to be completed would not be done.
The applicant’s introduction of expert evidence was accepted by the Tribunal however the slab depth issue remained in contention without definitive core sampling. The Tribunal does accept that there are discrepancies with the construction of the slab and it does not comply with AS3600 as required.
It is also noted that the applicant had received a Form 61 – Non Compliance Notice – Reinspection Required which stated:
“Pool showing visible signs of leaking in several locations. Site inspection and form 16 from RPEQ engineer required to determine the structural adequacy of the pool structure and foundations”
The applicant advised at the date of the hearing that the pool had still not been certified.
It is clear from the information supplied in totality that it cannot be denied that there are issues with the integrity of the pool slab/concrete shell. The reliance by the respondent on the ability of a waterproofing membrane to solve all issues as described is the key reason for the respondent not issuing a direction to rectify.
New Material
On 26 February 2023 filed an Application for Miscellaneous Matters which contained further information which the Tribunal finds material in this decision.
The new material contains information that in the process of the rectification works being carried out to install the waterproof membrane the tiles and pebble surface of the pool has been removed to expose the bare concrete shell of the pool. The contractor has discovered the structure is “drummy” in places and as such no warranty for the waterproofing membrane can be supplied. They state the block work has deteriorated to such an extent that it cannot be patched and/waterproofed and will have to be replaced completely.
It is to be noted that one reason for the decision made by the respondent was that they found:
“no cracking or evidence of failure to the pool slab has developed throughout all investigations undertaken to date. It is determined that the pool slab floor has not been installed in accordance with the engineering design however, the pool is performing with the exception of the waterproofing membrane.”[5]
[5]Steven Noble, QBCC Galleta Desktop Report 921405 at page 3.
The Tribunal finds this position is now untenable in light of the new information supplied. Heavy reliance was placed on a waterproofing membrane acting to offset or negate any faults found with the pool construction. Given the preliminary works have revealed this is not possible it is the Tribunal’s opinion that the works are defective.
There may be arguments regarding the impact of the time delay on the integrity of the pool structure and whether this delay has contributed to the state of the pool. It is the Tribunals finding first, the applicants cannot be held responsible for any delay caused. Second, that after considering all evidence supplied in totality, had the pool been built to correct standards in the first place and not been reliant upon the rectification works of a waterproof membrane being carried out this deterioration, if time dependent, would not have occurred.
It was established during the hearing the relation between the second respondent and the applicant has broken down to such an extent that to order the second respondent return and rectify the works would not be practical.
It has been established at the hearing through documentation that the applicants paid the second respondent the sum of $35,100.00 under the contract to construct their pool.
Orders
The decision of the first respondent is set aside.
The second respondent, JC Concreting Pty Ltd, is ordered to pay the applicant the sum of $35,100.00.
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