Guitar Buildings v Queensland Building Services Authority & Meznaric
[2013] QCATA 260
•25 September 2013
| CITATION: | Guitar Buildings v Queensland Building Services Authority & Meznaric [2013] QCATA 260 |
| PARTIES: | Mr Michael Gregory Leo t/as Guitar Buildings (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority Mr Joseph Peter Meznaric (Respondents) |
| APPLICATION NUMBER: | APL035-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 13 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Ms Susan Gardiner, Acting Senior Member |
| DELIVERED ON: | 25 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application for leave to appeal or appeal is refused.1. |
| CATCHWORDS: | APPEAL – where builder appeals a decision to confirm a direction to rectify issued by Queensland Building Services Authority – where builder had claimed his method of building met performance requirements – where no certification or engineering certificates had been issued – section 4C of QBSA Act in relation to excluding contract administration from the schedule of the definition of “building work” and therefore from s 72(1) of the same Act examined –tribunal decision on costs confirmed Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 2, 4C, 72 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Leo in person |
| RESPONDENT: | Mr B. Turnbull, solicitor representing the Authority |
REASONS FOR DECISION
Mr Leo is a registered builder. He entered in to a residential building contract to build a house for Mr Meznaric in the Currumbin Valley on 20 October 2008. Work commenced on the house on 30 January 2008 and continued until Mr Leo stopped work on 3 March 2010. At the time he stopped work the house was incomplete and parts of the building work were defective. The parties fell into dispute.
In the latter part of 2010 Mr Meznaric complained to the Queensland Building Services Authority about the quality of the building work carried out by Mr Leo. After inspecting the work on 4 November 2010 and 28 January 2011 the Authority issued a Direction to Rectify to Mr Leo on 14 February 2011. The Direction listed 33 items of work that required rectification.
Mr Leo exercised his rights under s 86 of the Queensland Building Services Authority Act 1991 (QBSA Act) and filed an application in the Tribunal to review the Authority’s decision to issue the direction to rectify. The review application proceeded to hearing in May 2012 and on 12 December 2012 the Tribunal made a decision confirming the Authority’s decision of 14 February 2011 to issue the Direction to Rectify.
On 18 January 2013, Mr Leo filed an application for leave to appeal or appeal the Tribunal’s decision. Although a little confusing, the appeal seems to be limited to a small number of discrete issues. The first is that the Tribunal fell into error in confirming direction 33 of the direction to rectify which says:
No certifications of any of the structural elements of the dwelling have been provided. This is a requirement of building process.
Mr Leo seems to be contending that this is contract administration and therefore not something for which the Authority can direct rectification.
The second issue raised is in respect of the learned members findings about contract termination. Mr Leo is saying that her findings about this issue are inconsistent with the written terms of the contract.
The third issue relates to the learned Member’s findings of creditability in preferring the evidence given by Mr Campbell, the Authority’s building inspector, as opposed to the evidence of Mr Leo. In essence Mr Leo challenges the reliance on Mr Campbell’s experience and qualifications set out in his affidavit in contrast to his experience as a builder.
Some further issues were raised in Mr Leo’s written submissions, procedural fairness and costs, which are dealt with below.
Contract Administration and the application of section 4C of the QBSA Act
Direction 33 of the directions under review required Mr Leo to, in effect, provide structural certifications for the structural elements of the building. There is nothing novel about this and in all domestic buildings certification is required under the Building Code of Australia. It is the builder’s obligation to obtain certification for various stages of the construction, such as footing and foundation, frame and final etc. Mr Leo says he does not have to do that because this falls within contract administration under s 4C of the QBSA Act and therefore the direction to rectify should not have issued.
The definition of “building work” in Schedule 2 to the QBSA Act includes ‘contract administration carried out by a person in relation to the construction of a building designed by the person’[1]. The Authority has the power under s 72(1) of the QBSA Act to direct builders to rectify incomplete or defective work.
[1] QBSA Act Sch 2 ‘building work’ (fa).
Section 4C of the QBSA Act provides:
Certain building contractors not bound
Parts 5 and 6 do not bind a building contractor to the extent the business carried on by the building contractor consists or includes—
(a) carrying out completed building inspections; or
(b) contract administration carried out in relation to work designed by the building contractor.
Section 72 falls within Part 6 of the QBSA Act and therefore the Authority cannot issue a direction to rectify to a building contractor if the business carried on by the contractor consists of or includes carrying out completed building inspections or contract administration carried out in relation to “building work” designed by the building contractor. Here the building work was designed by Mr Leo.
Mr Leo says s 4C therefore exempts contract administration from the definition of “building work” in schedule 2 to the QBSA Act. It follows, Mr Leo submits, that as he falls within the exemption the learned Member should not have confirmed item 33 of the Direction to Rectify but rather set is aside.
The question then is does section 4C exclude contract administration from the schedule of the definition of “building work” and therefore from s 72(1)? On a careful reading of s 4C the answer must be “no” because of the definition in subparagraph (fa) of the definition of “building work”.
The s 4C exemption excludes ‘contract administration carried out in relation to building work designed by the building contractor’ (our emphasis added).
The schedule 2 definition (fa) refers to ‘contract administration carried out by a person in relation to the construction of a building designed by the person’ (again our emphasis added).
The definition of building work in schedule 2 in ss (fa) was added as an amendment to the QBSA Act at the same time as s 4C was added to the Act (again our emphasis) which is in different words[2]. Because the wording is different it must have different application and had the legislature intended they the same meaning as s 4C, the words it would have used would have been the same. They are not. It is clearly intended to impose an obligation on a contractor undertaking building to obtain the necessary certifications as part of the contract administration in relation to the construction work.
[2]Queensland Building Services Authority and Other Legislation Amendment Act 2003 (Qld).
It is readily apparent then, that s 4C does exclude certain works from the operation of s 72(1), but it is limited to contract administration carried out in relation to building work designed by the building contractor and not in relation to the construction of a building.
Item 33 of the Direction to Rectify concerned the requirement for certification on completion of specified stages of construction by a registered structural engineer or approved person, to be arranged by Mr Leo. This item is properly in relation to the construction of a building and we are satisfied is not exempted by s 4C.
We are satisfied that is was open to the learned member to include this item in the Direction to Rectify even though the building was designed by Mr Leo.
Contract Termination
Mr Leo contends that as the homeowner Mr Meznaric did not strictly comply with s 90(4) of the Domestic Building Contracts Act 2000 (Qld) on the grounds that the contract time exceeded the due completion date.
For the section to be relied upon the home owner must give a notice: in writing; signed by the building owner; state that the building owner is ending the contract under the section; state the ground on which the contract is being ended and state the ground for ending the contract. Here the notice used the word “terminated” rather than “end” and “pursuant” to rather than “under”. Mr Leo contends by not following the strict wording of the subsection, and given the use of the word “must” the notice is invalid and therefore the termination unlawful.
The complaint can only go to form rather than substance. We agree with the leaned Member that despite not using exactly the same words as the subsection the intention is clear that the termination is under the section and therefore a valid termination.
Creditability
Mr Leo’s compliant here is that in respect of building and technical issues the Tribunal preferred the evidence of the Authority’s building inspector, Mr Campbell to the evidence of Mr Leo. The learned Member was quite particular in explaining why she preferred the evidence of Mr Campbell. She accepted that both Mr Campbell and Mr Leo were both builders with similar qualifications. However, the stark differences she identified and made specific findings about were:
a) despite his experience, Mr Leo was unfamiliar with his obligations under the Building Act 1975 and the Building Regulations 2006;
b) Mr Leo did not obtain any engineering advice about structural elements of a building before construction but rather sought recommendations after the construction from an engineer to achieve structural integrity subsequent to it; and
c) Mr Leo did not accept that the Australian Standards, the Building Code of Australia and manufacturer’s specifications were applicable to his “guitar building system”.
In addition to these findings the learned Member also found that he was evasive when responding to questions, frequently did not answer the questions but rather made statements, many of which were self serving. Examples of this conduct were provided in the reasons and supported by transcript references. After referring to the transcript references, the conclusions reached by the learned Member as to these matters, was clearly open to her.
Mr Leo says that the Tribunal failed to have regard to some key aspects of Mr Campbell’s evidence. These include learned Member’s failure to recognise that Mr Campbell was not familiar with the Guitar Building “Mez” model “engineered whole house” system. He was also critical of some of Mr Campbell’s evidence because he did not spell “Trimdek” correctly which should have informed the Member that he was not familiar with this common building product. Mr Campbell’s terminology was also inconsistent with the manufacturer’s definition and use of the product again indicating his lack of knowledge.
Mr Leo was also critical because Mr Campbell could not tell the difference between a 90mm and a 70mm stud from photographs. Another area of criticism is Mr Campbell’s lack of understanding of the structural utility of structural plywood as a tie down due to its tensile capacity and, overall, the lack of understanding by both Mr Campbell and Mr Van de Hoff (the engineer who provided reports). These complaints, even if accepted are not sufficient to warrant an adverse finding when clearly on Mr Leo’s own admission by accepting that many of the defects identified by the Authority warranted rectification.
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[3]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
Here, the conclusions reached by the learned Member were open on the evidence before her and we see no reason to interfere them.
Procedural Irregularity
Mr Leo raises here a question of procedural fairness. The hearing process was new to Mr Leo. He expected that he would be able to cross examine the respondent’s witnesses first and then the home owner. However, as he was the applicant to the review application, he was called as the first witness in the proceeding and was cross examined for most of the first day. He considers this was unfair.
Soon after the hearing commenced the learned Member informed the parties how she proposed to conduct the hearing. That is, Mr Leo would be called first to affirm his written statements, she would ask him some questions and he would be available for cross examination. She then went to say how the balance of the hearing would proceed[4]. Appreciating of course that Mr Leo was unfamiliar with the process, the only suggestion of objection to the course proposed by the Member is that he wanted to make arguments based on his grounds for review. It was made clear to him that he could make his arguments once the evidence was concluded. After some further discussion about procedure, which the transcript indicates Mr Leo understood, he was sworn in to give evidence.
[4]Transcript page 8.
He was cross examined well in to the second day and at the conclusion of the questioning Mr Leo was given an opportunity to give further evidence by way of clarification of any of the responses he gave during cross examination or anything further he wished to say about the matter. He then gave some further evidence[5]. He then questioned the witnesses for the Authority.
[5]Transcript page 33-37.
Finally, at the conclusion of the evidence, which was late on the second day of the hearing, rather than press on with final submissions, the hearing was adjourned to a further day, 24 May 2012 for the submission to be given. This gave the parties sufficient time to reflect on the evidence given, both in the statements and orally, in order to prepare for the oral submissions.
Overall, the transcript does not suggest that Mr Leo did not get a fair hearing, even though he may have felt under considerable pressure because of the time spent being cross-examined. His arguments were made and his evidence is set out in the written statements and documents filed by the parties.
We are not satisfied that there has been a denial of procedural fairness in the hearing of this application.
Costs
Mr Leo was ordered to pay Mr Meznaric’s costs fixed at $14,690.21. This was because Mr Leo had raised issues about the termination of the contract between himself and Mr Meznaric. He contended in his application that the contract was unlawfully terminated by Mr Meznaric. Because of this serious allegation the Tribunal, on the application of the Authority, joined Mr Meznaric as a party to the proceeding. The Member observed that Mr Leo did not lead any evidence about termination of the contract and therefore she found that the joinder of Mr Meznaric was unnecessary. She considered that in the interests of justice Mr Meznaric should have his costs.
The awarding of costs in the Tribunal is discretionary. The basis of the order was explained in detail in the reasons for the decision. It was not based on any wrong principle, nor did the learned Member fail to take into account any relevant consideration[6].
[6]House v R (1936) 55 CLR499.
Mr Leo, in his appeal submissions relies on his impecunious state to justify the Tribunal making a different order rather that identify any error on the part of the learned Member. Although the financial circumstance is one of the matters to be taken into account under s 102(3)(e) of the QCAT Act it is not sufficient to persuade us that the learned Member fell into error in making the decision she did about costs.
Conclusion
Mr Leo has not made out any of his grounds of appeal. As this was an appeal of mixed fact and law, leave to appeal is required under s 142(3) of the QCAT Act. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Mr Leo has not raised any question of law and nor has any question of general importance been identified. Having regard to the factual circumstances of this case, the extent of the defective work acknowledged by Mr Leo we are not satisfied there has been any substantial injustice.
Leave to appeal is refused.
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