Gemini Homes (Qld) Pty Ltd v Queensland Building and Construction Commission
[2014] QCAT 481
•30 September 2014
| CITATION: | Gemini Homes (Qld) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 481 |
| PARTIES: | Gemini Homes (Qld) Pty Ltd (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR343-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 16 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 30 September 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Direction to Rectify and/or Complete Number 39356 is set aside, and the following substituted in its place: The Direction to Rectify: 1. The shower enclosures in the main bathroom and the ensuite do not meet the requirements of the BCA 2008 Volume 2 as water is exiting the enclosure causing damage to the vanity units, wall linings and wall frames. 2. Repair the wall linings removed by Gemini Homes in the bedroom adjacent to the main bathroom and repair shower enclosures in the main bathroom and ensuite to prevent water escaping the shower enclosures, including any necessary waterproofing and tiling work, but not including replacement of skirting, architraves, the vanity base, and any painting required. |
| CATCHWORDS: | OCCUPATIONAL REGULATION – BUILDING – Direction to Rectify issued to builder in relation to water leakage from shower set aside and new Direction to Rectify substituted in its place – delay by homeowners in making complaint means that builder should be responsible only for defective work and not consequential damage Queensland Building and Construction Commission Act 1991 (Qld), s 72, Schedule 2 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Darren Sekac of Macrossan & Amiet Solicitors |
| RESPONDENT: | Emily Roberts, in-house solicitor |
REASONS FOR DECISION
Background to Review Application
The Applicant, Gemini Homes (Qld) Pty Ltd (‘Gemini Homes’), entered into a contract to perform domestic building work at the home of Andrew and Jacqueline Steane, located in Blacks Beach, in 2008. The work reached completion in February 2009.
More than 4-years later, on 10 April 2013, Mr and Mrs Steane sent an email to Gemini Homes advising it of a water leakage problem in the main bathroom and ensuite, which had caused damage to the adjoining bedroom walls, and asking if they would have a look.
Gemini Homes arranged for one of its supervisors, Allan Parker, to inspect the property. Mr Parker concluded that the damage was the result of a lack of owner maintenance, and therefore not the responsibility of Gemini Homes.
In May of 2013, Mr and Mrs Steane complained to the Respondent, the Queensland Building and Construction Commission (‘QBCC’) in relation to the work performed by Gemini Homes in the bathrooms of their home.
Following the Steanes’ complaint to the QBCC, Gemini Homes sent Graham Stritzke (director) and Jeremy Stritzke (supervisor) out to conduct a more invasive inspection. A section of plasterboard along the wall of bedroom 2 (adjoining the main bathroom) was removed in an effort to try to identify whether there was a leak coming from the either the back of the vanity or waste pipe, however, no leak was found. Gemini Homes concluded, after removing the silicone bead between the wall tile and floor tile, and conducting a water flow test, that the cause of the leak was degraded grout between tiles in the shower.
The QBCC’s inspector, Johnathan Cherry, inspected and determined that the cause of the leakage could not be degraded grout, and concluded that there must be a defect.
On 30 August 2013, Gemini Homes received a Direction to Rectify from the QBCC in relation to this property in which it was directed to remedy the following:
The Direction to Rectify:
1.The shower enclosures in the main bathroom and the ensuite do not meet the requirements of the BCA 2008 Volume 2 02.4.1 as water is exiting the enclosure causing damage to the vanity units, wall linings and wall frames.
2.Repair the wall linings removed by Gemini Homes in the bedroom adjacent to the main bathroom and the consequential damage caused by the water escaping the shower enclosures in both the ensuite and main bathrooms.
Gemini Homes has now filed an Application for Review of the QBCC’s 30 August 2013 decision to issue a Direction to Rectify to it. In a review of this nature, the Tribunal stands in the shoes of the QBCC, and has powers to confirm, amend, or set aside the decision and substitute a new decision.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.
Was the work performed defective?
Pursuant to the QBCC Act, a direction to rectify may be issued if the Commission is of the opinion that the work is defective or incomplete.[2] The term “defective” is defined in Schedule 2 to the Act and includes ‘faulty or unsatisfactory’ building work.[3]
[2]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) s 72(1).
[3]Ibid Schedule 2.
The Building Code of Australia (“BCA”) requirements for ‘wet areas’ are satisfied if the area is waterproof or water resistant. The showers at the Steane’s property were (1) an enclosed shower with a hub, and (2) an unenclosed shower. Gemini Homes’ evidence is that the waterproofing in the bathrooms exceeded the requirement contained in the BCA (enclosed shower with hub requires waterproof 150mm above the shower floor substrate and 40mm width either side of the junction) and both showers were constructed using compressed fibre cement sheeting – an acceptable water resistant substrate.
Whilst the Tribunal accepts that the showers were constructed in this way, the obvious difficulty is that the water is escaping nevertheless – despite neither party being able to establish exactly why. From a policy perspective, and bearing in mind the intent of the QBCC Act, it is preferable to find that the work is defective, rather than expect the homeowner to be stuck with a shower that has been built in accordance with design, yet leaks. Otherwise, the policy in relation to defective work is about as useful as a luxury megayacht 50 nautical miles from the nearest seaport with an unlocatable leak.
At the review hearing, significant attention was given to whether there was, or was not, a water stop installed, which may have prevented water from escaping. The tiler who actually did the work at the Steanes’ property was contacted by telephone during the hearing to give evidence. Unfortunately, that evidence failed to clarify exactly what he did (or did not) do in the bathrooms in relation to installing (or not installing) a water stop. The Tribunal is therefore left, at the end of the hearing of this matter, with no clarity about the steps actually taken to ensure water could not escape the shower recesses – despite the general method of construction employed – from the one person who would have been able to provide it.
Although the arguments raised by Gemini Homes that the QBCC must identify non-compliance with some aspect of the Building Code or Australian Standards in order to demonstrate that work is defective are initially attractive, they do not logically fit with the definition of defective work contained in Schedule 2 of the QBCC Act. Defective work includes faulty or unsatisfactory work. It is unsatisfactory for water to escape from a shower recess. It is simply not possible to legislate for, or codify, every aspect of a builder’s work.
Was the complaint made within three months of noticing the defect?
Under the QBCC Act, a builder is responsible for defective building work for six years and three months from the date the work is completed.[4] Gemini Homes submits that the Steanes were required to lodge the complaint form with the Respondent within three months of noticing the defect – the time limit referred to in the QBCC’s insurance policy and the QBCC’s defect policy.
[4]Ibid s 72(8).
A formal complaint was made by the Steanes to the QBCC in May 2013. There is no evidence of alternative complaints made prior to that in 2013. Although the Steanes suggested that they first became aware of the water issue when a friend, Michael Hulme (himself a QBCC Building Inspector), came to stay for a visit in April 2013, during Mr Steane’s oral evidence, he admitted that he noticed signs of the water damage much earlier than this. Continual pooling of water and discolouration should be a clear indication of trouble to a homeowner.
Certainly, the Steanes may not have appreciated the consequences of failing to complain when they first noticed signs of water leakage. Having viewed photographs of the damage, the Tribunal considers that signs were apparent at a much earlier juncture than April 2013, and the Steanes should have investigated the matter then. The Tribunal finds that the Steanes did not complain within the 3-month period required.
Given the lengthy delay in complaint, it would be manifestly unfair to Gemini Homes to require it to rectify all of the damage consequential to the water leakage, which includes cabinetry, wall materials, and painting. If the complaint had been made earlier, and not some 4-years following practical completion, it is likely that some of the subsequent damage would have been avoidable.
One of the main objects of the QBCC Act is to achieve a balance between the interests of building contractors and consumers. The Tribunal considers that this means neither party should be unfairly disadvantaged.
Direction to Rectify
The Tribunal considers that the following Direction should be issued in place of that given by the QBCC:
The Direction to Rectify:
1.The shower enclosures in the main bathroom and the ensuite do not meet the requirements of the BCA 2008 Volume 2 as water is exiting the enclosure causing damage to the vanity units, wall linings and wall frames.
2.Repair the wall linings removed by Gemini Homes in the bedroom adjacent to the main bathroom and repair shower enclosures in the main bathroom and ensuite to prevent water escaping the shower enclosures, including any necessary waterproofing and tiling work, but not including replacement of skirting, architraves, the vanity base, and any painting required.
Gemini Homes is not responsible for any further consequential damage to the Steanes’ property, if further damage is uncovered at the time of compliance with the Direction to Rectify in the terms as substituted by the Tribunal.
Decision
Direction to Rectify and/or Complete Number 39356 is set aside, and the following substituted in its place:
The Direction to Rectify:
1. The shower enclosures in the main bathroom and the ensuite do not meet the requirements of the BCA 2008 Volume 2 as water is exiting the enclosure causing damage to the vanity units, wall linings and wall frames.
2. Repair the wall linings removed by Gemini Homes in the bedroom adjacent to the main bathroom and repair shower enclosures in the main bathroom and ensuite to prevent water escaping the shower enclosures, including any necessary waterproofing and tiling work, but not including replacement of skirting, architraves, the vanity base, and any painting required.
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