Holtham v Queensland Building and Construction Commission - [2018] QCAT 316

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Holtham v Queensland Building and Construction Commission [2018] QCAT 316

PARTIES:

KEITH ANTHONY HOLTHAM
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR254-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 September 2018

HEARING DATE:

21 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Burke

ORDERS:

1.   The decision of the Queensland Building and Construction Commission dated 4 August 2017 be set aside and returned to the Respondent with the following directions:

(a)   in relation to the building work carried out by the builder, Acecol Pty Ltd, at 1241 Eumundi-Kenilworth Road, Belli Park, the Queensland Building and Construction Commission is to instruct an independent structural engineer to:

(i)    confirm that the joist member size is adequate for a 3.9m span;

(ii)   measure the deflection of the joists;

(iii)    determine whether the ‘as-constructed’ members of the floor and floor framing are adequate for all applicable loads;

(b) the Queensland Building and Construction Commission is to issue a direction to rectify to the builder, Acecol Pty Ltd, pursuant to s 72 of the QBCC Act:

(i)    in relation to the defective items of work identified in the building inspection report dated 3 August 2017;

(ii)   in relation to the installation of the ‘as constructed’ members of the floor and floor framing, if necessary as a result of the report from an independent structural engineer in accordance with order 1(a) hereof.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – Building Dispute and General Administrative Review – Direction to Rectify not issued – whether error – Domestic Building Contracts Act 2000 (Qld) – cost-plus contract – whether items of work defective – whether fair to give direction to rectify

Domestic Building Contracts Act 2000 (Qld), s 55
Queensland Building and Construction Commission Act 1991 (Qld), s 72
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 24

Cowen & Anor v Queensland Building and Construction Commission [2017] QCAT 416
Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2
Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259
Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397
Dunmoor Pty Ltd v Queensland Building and Construction Commission & Anor [2016] QCATA 39 Ireland v Queensland Building Services Authority [1999] QBT 180

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568

APPEARANCES & REPRESENTATION:

Applicant:

J Raphael and A Brown, solicitors of Axia Litigation Lawyers Pty Ltd

Respondent:

C Hill, legal counsel of Queensland Building and Construction Commission

REASONS FOR DECISION

The Applicant, Mr Holtham, is the owner of premises at 1241 Eumundi-Kenilworth Road, Belli Park in the state of Queensland (‘the premises’).
On or about 28 April 2015, Mr Holtham entered into a building contract (‘the contract’) with a building contractor, Acecol Pty Ltd (‘the builder’) for the renovation and extension of the premises.
The contract entered…

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: [2018] QCAT 316
Decision Date: 10 September 2018

CaseChat Overview and Summary

The case of Holtham v Queensland Building and Construction Commission involved Mr Holtham, who engaged Acecol Pty Ltd, a builder, under a cost-plus contract to construct a home. Upon completion, the Queensland Building and Construction Commission (QBCC) conducted an inspection and identified several defects in the work. The QBCC issued a direction to rectify under the Domestic Building Contracts Act 2000 (Qld), which Mr Holtham contested. The dispute was brought before the tribunal to determine whether the QBCC erred in not issuing a direction to rectify.

The central legal issue was whether the tribunal was correct in not issuing a direction to rectify the defects identified by the QBCC. This involved considering whether the work was defective, whether the homeowner contributed to the defects, and whether issuing a direction to rectify would result in unfair circumstances. The tribunal had to weigh these factors against the whole factual matrix of the case, including the type of contract, the homeowner's contribution, and the conduct of both parties during the site inspection.

The tribunal found that while there was little dispute regarding the defective nature of the work, there was uncertainty about the structural adequacy of the flooring. An independent structural engineer was appointed to review the flooring's adequacy. The tribunal also considered the homeowner's contribution to the defects and the conduct of both parties during the site inspection. Ultimately, the tribunal concluded that the QBCC should have issued a direction to rectify for the identified defective work, and set aside the decision of the QBCC, directing it to issue the necessary rectification orders.

The final orders included setting aside the decision of the Queensland Building and Construction Commission and directing it to instruct an independent structural engineer to assess the adequacy of the flooring and issue a direction to rectify for the identified defective work. The tribunal's decision underscored the importance of considering the whole factual matrix in determining whether a direction to rectify should be issued.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated 4 August 2017 be set aside and returned to the Respondent with the following directions:

(a) in relation to the building work carried out by the builder, Acecol Pty Ltd, at 1241 Eumundi-Kenilworth Road, Belli Park, the Queensland Building and Construction Commission is to instruct an independent structural engineer to:

(i) confirm that the joist member size is adequate for a 3.9m span;

(ii) measure the deflection of the joists;

(iii) determine whether the ‘as-constructed’ members of the floor and floor framing are adequate for all applicable loads;

(b) the Queensland Building and Construction Commission is to issue a direction to rectify to the builder, Acecol Pty Ltd, pursuant to s 72 of the QBCC Act:

(i) in relation to the defective items of work identified in the building inspection report dated 3 August 2017;

(ii) in relation to the installation of the ‘as constructed’ members of the floor and floor framing, if necessary as a result of the report from an independent structural engineer in accordance with order 1(a) hereof.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In doing so, the tribunal is required to take into account the whole factual matrix in its entirety.[19][19]Ireland v Queensland Building Services Authority [1999] QBT 180.Relevant Considerations Each case must be determined on its own facts. It is not possible to list each and every relevant circumstance for every case. It will depend on the particular facts of each case as to whether there are relevant circumstances to be considered which support a decision whether a direction to rectify should issue. There are however a number of factors which must be considered in every case:(a)is the work defective?(b)did the home-owner cause or contribute to the defective work?(c)are there circumstances which exist which would result in unfair circumstances if a direction to rectify were given? In the present scenario, there is agreement that the works are defective except for some uncertainty regarding the structural adequacy of the flooring. This issue will be considered by the tribunal in this review process. Further, in the present case, the second issue relating to the home-owner’s contribution to the defective work is relevant in relation to the alleged defects regarding the laying of the tiles. There is uncertainty regarding the home-owner’s supply of a tile which it is alleged may have possibly contributed to the hairline cracks evident in the floor tiles. This issue will be addressed by the tribunal in this review process. Other circumstances which have been submitted to be relevant include the following:(a)the existence of a disputed invoice and an allegation that substantial amounts are still owing under the contract;(b)a response to the allegation that monies are owing under the contract that the contract is unlawful in that it was a cost-plus contract which was entered into between the parties in contravention of s55 of the Domestic Building Contracts Act 2000 (“DBC Act”);(c)the conduct of the home-owner at the site inspection of the defective work and threats made by the home-owner to the builder. Mr Brown, on behalf of Mr Holtham, submits that the following factors are relevant:(a)the type of contract and the degree to which the agreed work and price under the contract is fixed and certain;(b)the existence or otherwise, of a dispute regarding whether the contract was lawful;(c)the existence, or otherwise, of an allegation by the builder regarding monies said to be owing under the contract;(d)the supply of building materials to the builder by Mr Holtham;(e)the conduct of Mr Holtham at the site inspection with the QBCC representative. I will consider each of the factors in the context of the factual matrix relevant to the contract between Mr Holtham and the builder. There is little dispute that the work undertaken by the builder was defective. The QBCC report dated 3 August 2017 confirms this as fact. The main issue in dispute is the structural adequacy of the as-constructed flooring. Evidence was provided by Mr Dixon, a professional building consultant, on behalf of Mr Holtham. A dilapidation report was prepared by Mr Dixon on 30 November 2016.

CITATION:	Holtham v Queensland Building and Construction Commission [2018] QCAT 316
PARTIES:	KEITH ANTHONY HOLTHAM (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR254-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	10 September 2018
HEARING DATE:	21 May 2018
HEARD AT:	Brisbane
DECISION OF:	Member Burke
ORDERS:	1. The decision of the Queensland Building and Construction Commission dated 4 August 2017 be set aside and returned to the Respondent with the following directions: (a) in relation to the building work carried out by the builder, Acecol Pty Ltd, at 1241 Eumundi-Kenilworth Road, Belli Park, the Queensland Building and Construction Commission is to instruct an independent structural engineer to: (i) confirm that the joist member size is adequate for a 3.9m span; (ii) measure the deflection of the joists; (iii) determine whether the ‘as-constructed’ members of the floor and floor framing are adequate for all applicable loads; (b) the Queensland Building and Construction Commission is to issue a direction to rectify to the builder, Acecol Pty Ltd, pursuant to s 72 of the QBCC Act: (i) in relation to the defective items of work identified in the building inspection report dated 3 August 2017; (ii) in relation to the installation of the ‘as constructed’ members of the floor and floor framing, if necessary as a result of the report from an independent structural engineer in accordance with order 1(a) hereof.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – Building Dispute and General Administrative Review – Direction to Rectify not issued – whether error – Domestic Building Contracts Act 2000 (Qld) – cost-plus contract – whether items of work defective – whether fair to give direction to rectify Domestic Building Contracts Act 2000 (Qld), s 55 Queensland Building and Construction Commission Act 1991 (Qld), s 72 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 24 Cowen & Anor v Queensland Building and Construction Commission [2017] QCAT 416 Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2 Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259 Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397 Dunmoor Pty Ltd v Queensland Building and Construction Commission & Anor [2016] QCATA 39 Ireland v Queensland Building Services Authority [1999] QBT 180 JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568
APPEARANCES & REPRESENTATION:
Applicant:	J Raphael and A Brown, solicitors of Axia Litigation Lawyers Pty Ltd
Respondent:	C Hill, legal counsel of Queensland Building and Construction Commission