Hall v Queensland Building and Construction Commission - [2020] QCAT 379

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379

PARTIES:
STEPHEN HALL

SZILVIA AGOSTON

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR309-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 October 2020

HEARING DATE:

13 March 2020

Further written submissions filed on 3 April 2020 and 24 April 2020.

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
The scope of works decision made by the Queensland Building and Construction Commission dated 13 August 2018 is amended as follows:

(a) amendments to items S2, S3, S4, S8, S10 and S17 in the terms provided in these Reasons;

(b) the addition of S23 in the terms provided in these Reasons; and

(c) the addition of S24 in the terms provided in these Reasons.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where review about scope of works decision – where scope of works depends upon the wording of the policy terms of the statutory insurance scheme – whether works “reasonable and necessary” or otherwise “necessary” to rectify defects – where Part 4 of the Policy indemnifies the reasonable cost of necessary works to remedy the residential construction work – whether defective pier installation a cause of an identified defect - whether correct and preferable decision on review to include works which address the defective pier installation – where both experts agree works to address defective pier installation only required if stabilisation works unsuccessful in addressing differential movement.

Queensland Building and Construction Commission Act
1991 (Qld), s 71, s 71A, s 74, s 75, s 86, s 87
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 19, s 20, s 24Queensland Building and Construction Commission “Insurance Policy Conditions, Edition 8”

Col Jenkins & Associates v Queensland Building and

Construction Commission [2019] QCAT 117
Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Tadc Pty Ltd v Queensland Building Services Authority [2004] QCCTB 503-03

APPEARANCES & REPRESENTATION:

Applicant:

L Watt, solicitor, Becker Watt Lawyers Pty Ltd

Respondent:

G Phillips, solicitor, QBCC Legal Services

REASONS FOR DECISION

This is a review by Mr Stephen Hall and Ms Szilvia Agoston of a decision by the Queensland Building and Construction Commission (the Commission) of 13 August 2018, about the scope of works to be undertaken under the Queensland Home Warranty Scheme (statutory insurance scheme) to rectify ‘tribunal work’ at a lowset duplex property in Birkdale.
Mr Hall, the first applicant, owns Unit A of the duplex property and Ms Agoston, the second applicant, owns Unit B. Ms Agoston was joined as a party to the review proceedings on 22 March 2019.

Relevant statutory framework

Under s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) a person affected by a reviewable decision may apply to the Tribunal for a review of the decision.
Section 86(1)(g) of the QBCC Act provides that the following decision of the Commission is a reviewable decision:
a decision…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 379
Decision Date: 9 October 2020

CaseChat Overview and Summary

The parties involved in the case were Hall and the Queensland Building and Construction Commission. The dispute centered on the scope of works required to rectify defects in a residential property, specifically whether the works were "reasonable and necessary" or merely "necessary" under the terms of the statutory insurance scheme. The matter was heard by the Queensland Civil and Administrative Tribunal.

The legal issues that the court needed to decide were whether the defective pier installation was a cause of the identified defects in the property and whether the correct and preferable decision on review was to include works that addressed the defective pier installation. Both experts agreed that works to address the defective pier installation were only required if the stabilisation works were unsuccessful in addressing the differential movement.

The tribunal found that the scope of works decision made by the Queensland Building and Construction Commission was not correct and preferable, as it failed to include works that addressed the defective pier installation. The tribunal considered the evidence presented by the experts and concluded that the defective pier installation was a cause of the identified defects in the property. The tribunal further found that the correct and preferable decision on review was to include works that addressed the defective pier installation. The tribunal therefore amended the scope of works decision made by the Commission to include the necessary works.

The tribunal ordered that the scope of works decision made by the Queensland Building and Construction Commission be amended to include the necessary works that addressed the defective pier installation. The tribunal also ordered that the Commission pay the costs of the proceedings.

Orders

Orders of the court

The scope of works decision made by the Queensland Building and Construction Commission dated 13 August 2018 is amended as follows:

(a) amendments to items S2, S3, S4, S8, S10 and S17 in the terms provided in these Reasons;

(b) the addition of S23 in the terms provided in these Reasons; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The report stated:· The property falls from the front right to the rear left. · The footing and slab inspection reports by Morgan Consulting Engineers describe that the footing system was constructed as a ‘waffle raft’ footing system.· Evidence of ongoing moisture ingress was noted with ingress most obvious in the form of salting to slabs, moisture ingress and efflorescence around the building - most notably around perimeter sections of the building (although were advised that items within some cupboards located more centrally also are subjected to moisture related issues).· Compared to other properties affected by SED, we would consider moisture ingress symptoms …to be ‘moderate’.· Excavation reveal[ed] that a moisture membrane has been installed. This reflects BCA/NCC and AS2870 requirements…with barrier terminated under external footing edge.· Generally the moisture readings recorded indicated a high moisture is present.· Recommend additional moisture tests be carried out following rectifications - this would thus allow for a ‘relative’ moisture content to be established which could be used to establish if moisture conditions were improving or worsening.Conclusion We recommend the following rectifications be considered as measures aimed at addressing the complex problems affecting this property:Stage 1: Ensure no plumbing leaks are present and upgrade site drainage conditions around building and property. During removal of gravel walkways to the sides of building, consideration could also be given to the application of waterproofing to exposed footing edge noting however that this will not address moisture issues noted elsewhere around building. Consider the use of a moisture barrier/cut off wall around the front of the property. Such a moisture barrier would be used to attempt to divert subsurface water from the underside of the building pad and footing system. Monitor moisture content levels and possible improvements.Stage 2: Consider the use of proprietary sealing products such as ‘Xypex’, ‘Sureseal’, ‘Sika’ etc to be applied externally and internally – apply to the concrete footing/slab edge to manufacturers recommendations (this could also be applied internally around perimeter areas for best results). …Monitor moisture content levels and possible improvements. On 18 July 2018 Mr Colin MacKenzie provided a report to the Commission primarily as to whether the timber in the wall cavities at the slab level had been affected by mould, decay or high moisture levels due to ingress of slab edge moisture. The moisture content of the wood was below 20% which is when wood will start to deteriorate due to moisture. However the results were much higher than normal for dry internal situations where moisture content results would be expected to be 12% to 13%. Results ranging from 17% to 21% were found in seven out of 12 locations following an extended dry and low humidity season. The report stated that ‘higher readings may be found to occur during the wet season.’

Ratio Decidendi

Legal Principle Established

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