Goldfield Projects Pty Ltd v Queensland Building and Construction Commission

[2014] QCAT 552

CITATION: Goldfield Projects Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 552

PARTIES:	Goldfield Projects Pty Ltd (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBERS: GAR073-14 and GAR460-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Howe

DELIVERED ON: 28 October 2014

DELIVERED AT: Brisbane

ORDERS MADE:		The interlocutory applications of the applicant made seeking final and interim orders setting aside the directions to rectify issued 3 December 2013 and 13 February 2014 and to disqualify the appointment of an expert by the Commission and set aside the expert’s report and challenging the jurisdiction of the Commission to direct rectification of building work that is plumbing work are dismissed.
CATCHWORDS:	Interim orders – effectively an application for summary judgment – right to a hearing -compliance with Practice Direction – untested allegations of tampering with evidence – plumbing work that is building work – discretion not to direct rectification of defective building work

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Background

GAR073–14 - 33 Doulton Street

1. The applicant builder constructed a number of homes in Doulton Street at Calamvale. One of those was at 33 Doulton Street. The owner complained to the Queensland Building and Construction Commission (the Commission) about defective building work. After an inspection the QBCC issued a direction to the builder to rectify a leak in a bathroom shower in September 2013. Initially the builder sought review of that direction in the Tribunal but the matter was resolved between the parties and the application to review withdrawn. There was a further complaint however by the owner about a leaking toilet. Another inspection occurred on 11 February 2014 and a direction to rectify the leaking toilet was issued on 13 February 2014. The builder filed an application to review that decision on 26 February 2014 in proceeding GAR073–14. That is yet to be heard.

2. In the meantime by an Application for Miscellaneous Matters filed 17 July 2014 (the first miscellaneous application) the builder seeks an order that the Tribunal make a final decision in the proceeding setting aside the direction to rectify issued 13 February 2014 on the basis of section 48 of the QCAT Act. Alternatively (rather than additionally) an order disqualifying the appointment of the Commission’s expert witness and dismissing his report as an expert report.

3. By a further Application for Miscellaneous Matters filed 21 July 2014 (the second miscellaneous application) the applicant also seeks an “interim” decision confirming that the Commission has no power under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to require rectification of “plumbing work inside a building”; an “interim” decision confirming it was unfair to issue a direction to rectify to the builder; and on these bases an order setting aside the direction to rectify of 13 February 2014.

4. It appears the builder filed an identical miscellaneous matters application to the second miscellaneous application on 5 August 2014 seeking identical relief.

GAR460–13 - 31 Doulton Street

1. The builder also built a house at 31 Doulton Street, Calamvale and the owner of that property complained to the Commission about defective building work.  A direction to rectify tiling of the shower recess in the ensuite and main bathrooms was issued to the builder on 3 December 2013.  The builder filed an application to review that decision on 24 December 2013 in GAR460–13.  That is yet to be heard.

2. By an Application for Miscellaneous Matters filed 22 July 2014 the builder seeks the identical orders to those sought in the first miscellaneous application but final orders setting aside the direction to rectify of 3 December 2013.  Again the builder filed an identical miscellaneous application on 5 September 2014

The Applications for a Final Decision

31 Doulton Street

1. The builder’s complaint is that when one of the Commission’s building inspectors inspected the tiles at 31 Doulton Street on 2 December 2013 he used a knife to cut through grout to try to remove a tile by force.  The accusation is the inspector may have cut through the waterproofing membrane using the knife.

2. Subsequently on 14 January 2014 a further inspection was made by an expert engaged by the Commission, Mr Moebus, who attended 31 Doulton Street with the same inspector.  After that the expert prepared a report for the Commission.  In the report he described how it was decided to partially remove a tile to investigate why it was moving up and down as a consequence of applying light pressure.  Whilst doing that it appears the tile broke.

3. The inspector has sworn an affidavit.  He denies using a knife to cut through grout.  He maintains he used a car key to remove some loose grout between tiles.  He found the tiles “drummy” indicating the tiles had debonded from either the substrate or the adhesive.

4. In Mr Moebus’ report he says the purpose of his inspection was to assess the installation of the tiles in the bathroom and provide a report on his findings (though I note he uses the expression “advice on the likely causes”).  His conclusions were that tiles near the entry had debonded from the substrate.  He says “(to) properly investigate the possible reasons for this installation failure, it was decided to partially remove the tile.”  His conclusion when that was done was that the adhesive was probably not suitable and was applied too thickly.

5. Additionally he found the tiles in the shower could move up and down and water was expressing from the grout lines when downward pressure was applied.  He says this also indicated the tiles were not bonded properly and it was highly likely the tiles had debonded from the adhesive.  He also thought the waterproofing membrane seemed very thin though no leaks were discovered to adjoining rooms.

6. In an addendum to the Application for Miscellaneous Matters filed 22 July 2014 the builder says the Commission has acted in a way that has unnecessarily disadvantaged it.  The essence of the complaints seem to be the Commission’s appointment of the expert witness is unlawful; the expert witness and the inspector have tampered with and damaged the subject tiles in the builder’s absence and they have fabricated evidence; they have created a health and safety issue by exposing broken tiles; they have created costly repairs and damaged the waterproofing and voided the waterproofing warranty.  It is unreasonable that the Tribunal confirm the direction to rectify because that will require rectification of damage caused by the expert and inspector. 

7. The applicant says those “actions” are against natural justice and causes the builder unnecessary disadvantage and constitutes deceptive use of an unqualified inspection report as an expert report which misleads both the builder and the Tribunal.

8. The builder seeks an order pursuant to section 48 of the QCAT Act which provides that if the Tribunal considers a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding the Tribunal may make a final decision in the proceeding in the applicant’s favour.

9. To succeed in an application under section 48 there should be clear and cogent evidence of contemptible or disruptive behaviour by a party aimed at intentionally or recklessly interrupting or preventing the appropriate adjudication on the merits of a matter before the Tribunal. Generally both parties to a dispute have a right to be heard and to present their cases as they see fit without inappropriate interference. It will rarely be the case that that right to be heard is truncated without very clear evidence of a party’s contumelious disregard of their obligations as a party before the Tribunal or the opponent’s rights to a fair hearing.

10. There is no such sufficient evidence here, merely suspicions and untested assertions made by the builder. 

11. The complaint of the builder is really that from its perspective no direction to rectify the tiling work should have been issued from outset.  The builder’s stand is that there was nothing wrong with the tiles but there may be now and if there is that is because of the interference by the inspector and expert.

12. If the evidence at hearing, presented and tested in an appropriate fashion, shows that the tiling work and waterproofing was not defective as at date of initial inspection by the inspector, then any  subsequent damage to the tiling or substrate and costs of rectification associated with that damage cannot be sheeted home to the builder.

13. But that should be a matter for the Tribunal at hearing, not determined in a summary fashion with untested evidence by way of interlocutory applications. A hearing enables both parties to fully present their evidence and test the opponent’s assertions and material. Should the Tribunal exercise powers under section 48 of the QCAT Act at this stage that testing and examination process will be forestalled. That would not be fair.

14. It is not only the defective building work at issue but now the veracity of the inspector and the expert.  The allegations of the builder as to deception, conspiracy and tampering by the inspector and expert are serious.  It is not appropriate that they not be tested and the Commission (and the gentlemen concerned) given an opportunity to answer them.

15. The submission that the builder is in some way disadvantaged by the engagement of Mr Moebus and his provision of an early report to the Commission is hard to understand.  Nor, leaving aside the allegations about tampering, how it can be argued a report prepared directly for the Commission is an attempt to deceive either the builder or the Tribunal. The builder is entitled to instruct its own expert to prepare a report in these matters, just as the Commission has.  That expert may comment on both the alleged damage caused by the inspector or Mr Moebus or both and about the allegations of defective work associated with inappropriate adhesive and appropriate scope of work to rectify suggested defects.  It will then be a matter for the Tribunal at hearing to decide what expert or other evidence should be followed or rejected and what appropriate conclusions should then be drawn.

16. The builder claims the Uniform Civil Procedure Rules (UCPR) apply to the conduct of matters before the Tribunal. They do not. Even if they did however, it is hard to understand in what way the request by the Commission of Mr Moebus to give them a report breaches rule 428 of the UCPR. There is no indication the report prepared by Mr Moebus will be the final statement of evidence relied on by the Commission at hearing. The builder will also, perhaps, obtain an expert’s report. If the experts meet in conclave they will prepare a joint report. That joint report shall form their statement of evidence. The requirements of the Practice Direction shall have to apply to that document not the individual earlier reports. In any case, the affidavit sworn by Mr Moebus addresses the significant requirements of UCPR rule 428 incorporated into the practice of the Tribunal by Practice Direction 4 of 2009, should no conclave occur. The builder’s assertion that in some way the engagement of Mr Moebus and his early report is a denial of natural justice is not made out.

17. In large part the objections of the builder are probably associated with his reluctance to engage and pay for his own expert.  That is understandable, given the costs involved, and it will be up to him to do that or not, but the system of engaging independent experts is the best system in the circumstances of building disputes where many conclusions are based on qualitative observations and complex assessments of construction law applied  to a vast canvas of circumstances.

18. The experts engaged by the different parties are required to meet and attempt to resolve their different points of view prior to hearing.  That is explained in Practice Direction 4 of 2009.  The Practice Direction does not require parties to agree on the appointment of experts before experts are engaged.  It limits and controls the number of experts that may be independently engaged and manages and directs best use of their evidence after engagement.  That Mr Moebus concludes that the inspector’s findings are correct does not amount to Mr Moebus failing in any duty to the Tribunal.

19. The reviews to be conducted in both files are full merit reviews which will mean all the evidence about the merits of the Commission’s decisions will be considered anew and the Tribunal will make the correct and preferable decision on all the evidence to hand as at date of hearing from a fresh perspective.

20. I conclude there are no grounds disclosed sufficient to end the proceedings now, early, by final orders under section 48 of the QCAT Act. Nor is there any justification to order Mr Moebus not to be involved as an expert engaged by the Commission, nor to deny use to the Commission of his report.

33 Doulton Street

1. Similar reasoning disposes of the application for final orders under section 48 in GAR073-14. Given the arguments about tampering with tiles only applies to the facts associated with GAR460-13, this argument could not have applied to the direction to rectify the defective toilet work at 33 Doulton Street in any case.

Plumbing Work Not Reviewable - Unfair to Require Rectification

1. The builder also seeks “interim” decisions in GAR073-14.  First it wants the Tribunal to confirm that the Commission was not entitled to require the builder to rectify “plumbing work inside a building”.  Second the builder seeks an “interim” decision that it was unfair on the part of the Commission to issue a direction to rectify where the plumbing works have been inspected and passed by the local government and the builder had tested the plumbing work and reasonably discharged its duties before completion.  The builder claims the defective plumbing work could well be a maintenance issue.

2. The interim orders sought are in reality final orders.  The relief sought is again to set aside the direction to rectify in GAR073-14.  That will finally dispose of the litigation if the orders are made. 

3. These matters are also appropriately the subject of evidence and submissions at hearing. The application for interim orders is in truth an application for summary judgement. There is no provision for that in the QCAT Act. Had there been, in any case, the applicant would have to show there was no real prospects of success to the respondent’s case. The Commission alleges the builder was a licensed contractor nominated in the insurance notification form for the subject building work. That would suggest the builder is identifiable as a person who carried out building work as prescribed by s72(5)(bb) of the QBCC Act and amenable to an order to rectify it.[1] 

   [1]QBCC Act s 72(1).

4. As to the argument that plumbing work is not building work for the purposes of s72, the exclusion from the concept of reviewable building work of “(c)onstruction, extension, repair or replacement of a water reticulation system, sewerage system or stormwater drain”[2] cannot be read in isolation from the following rider to those words “other than work connecting a particular building to a main of the system or drain.”  That seems to clearly stipulate that headworks may not be building work but the work typically done by plumbers connecting water services and toilets in a home to the reticulation and sewerage systems respectively enjoys no such exclusion.

   [2]QBCC Regulations 2003 s11, Schedule 1AA.

5. The matter may be more fully argued by the builder at hearing, but prima facie and for the purpose of these “interim” applications that argument cannot succeed.

6. As to the unfairness of issuing the directions to rectify, by ss72(1) and (14) of the QBCC Act there is a discretion granted the Commission not to issue a direction to rectify defective building work if the Commission is satisfied that in the circumstances it would be unfair to the person to give the direction. The submission may be made at hearing by the builder that that discretion was not appropriately exercised by the Commission. This is not an unusual application. It is only after hearing all evidence and considering submissions that the Tribunal may conclude that in the circumstances shown at hearing that the discretion should have been exercised and appropriately at that stage make orders then exercising the discretion.

7. At this point in time however, it is not appropriate to issue any interim orders setting aside the direction to rectify in GAR073-14 on the basis it was unfair to issue it.

8. The interim applications for the relief claimed must fail.  The various applications for miscellaneous matters are dismissed.