Homes v Queensland Building and Construction Commission
[2014] QCAT 95
| CITATION: | Homes v Queensland Building and Construction Commission [2014] QCAT 095 |
| 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: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Oliver |
| DELIVERED ON: | 3 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Reasons for decision to grant a stay. |
| CATCHWORDS: | PRACTICE AND PROCEDURE – STAY – where respondent issued a direction to rectify – where alleged defective work – where water damage – where owner aware of defective work for some years – balance of conveyance – whether fair to issue the direction to rectify in the circumstances. |
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
On 12 December 2013, I granted a stay of the respondent’s decision to issue a direction to rectify to the applicant after an application to stay a decision was filed on 10 October 2013. The decision was made after both the applicant and the respondent had filed submissions in respect of the application.
The direction to rectify was issued on 30 August 2013, as a consequence of an inspection having occurred at the subject property at Bike’s Beach, which identified a water leakage problem in the main bathroom, which resulted in water damaging the vanity in the bathroom. The defect is classified as a Category 1 defect and, if it is not repaired, the concern is that the water egress in the bathroom will continue to cause damage.
After receiving the direction to rectify, Gemini Homes filed an application to review the decision on 20 September 2013 and, subsequently, filed the application for the stay.
Importantly, the report from Resolution Services indicates, as do the submissions, that the house was built in 2008/9 with the final payment being made on 27 February 2009 and work completed on 26 February 2009. Since that time, it seems from the evidence, that there had been some water problems from what appears to be degraded grout in the bathroom. In fact, the Resolution report indicates that the owner became aware of the problem on 6 April 2009. The complaint with the Commission, which resulted in the direction to rectify, was made in May 2013.
Therefore, knowing that the water was causing or had the potential to cause damage, the homeowner did nothing between April 2009 and May 2013 to address this issue. This does not, of course, relieve the applicant of primary responsibility. However, there is an obligation, obviously, on the homeowner to carry out proper maintenance.
In support of the stay application, the applicant obtained a report from a Mr Hull, who is the regional manager of the Master Builders Association. He states, quite categorically in his report, that the photographs that he has seen shows degraded grout in the tiles in the shower recess area, which ought to have been evident for some considerable time to the homeowner. There is no disputing that the egress of water in the shower has caused the damage.
The Commission opposed the application for the stay, principally on the grounds that this is a Category 1 defect. It is water, which is causing damage to the vanity and, incidentally, might create a health hazard in the bathroom.
There is not necessarily any factual dispute about that, but the question is whether the discretion should be exercised to grant a stay until the primary application for review is heard. One of the considerations in a stay application is, of course, prospects of success and, secondly, the balance of convenience.
The application to stay is made pursuant to s 22(4) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The section which also sets out some of the matters to be taken into account in sub-s (4), that is, the interests of the person that might be affected, any submissions made by the decision maker and the public interest.
None of those matters are directly relevant, although the Commission obviously has an interest in having the defective work rectified but if the decision of the Commission is set aside, it means that the applicant has been put to the time, trouble and expense to carry out this rectification work and would not receive any recompense for that. The main issue, as I see it is, firstly, whether there is defective work which might have been picked up in the defects liability period and could have been rectified then and, had Mr Stane the owner had brought this to the Commission’s attention or even Gemini Homes’ attention at an earlier point in time, it may have been rectified without the consequential damage.
The question here raised is not only in respect of whether Gemini is responsible for the damage as a consequence of what might be regarded as defective tiling or application of grout, but also whether, in all these circumstances, given the delay, it would be unfair to issue a direction to rectify under s 72(14) of the Queensland Building and Construction Commission Act 1991 (Qld). I therefore have come to the conclusion that it would be appropriate, in these circumstances, to grant the stay.
The photographs indicate that there is damage to the bathroom area. Now that Mr Stane is aware of the problem specifically, presumably he’s taking care to ensure that the damage does not worsen. I also made directions for the matter to proceed to a compulsory conference, which occurred on 28 January 2014. I’m unaware as to whether the matter has been resolved or not but, in accordance with the request made by the respondent, those are the reasons for the granting of the stay application.
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