Instal-Fix Pty Ltd v Queensland Building Services Authority
[2010] QCATA 45
•3 September 2010
| CITATION: | Instal-Fix Pty Ltd v Queensland Building Services Authority [2010] QCATA 45 |
| PARTIES: | Instal-Fix Pty Ltd (Applicant/Appellant) |
| v | |
| Queensland Building Services Authority |
APPLICATION NUMBER: APL023-10
| MATTER TYPE: | Appeal |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 3 September 2010
DELIVERED AT: Brisbane
Application for leave to appeal refused ORDERS MADE:
| CATCHWORDS : | DOMESTIC BUILDING DISPUTE – CONSTRUCTION WORKS – DIRECTION TO RECTIFY – APPLICATION FOR REVIEW REFUSED – LEAVE TO APPEAL – where applicant constructed a flat roof pergola attached to a residential premises – where owner of premises alleged water ingress where patio roof attaches to dwelling causing overflow from gutters – where respondent issued the applicant with a direction to rectify – where applicant sought a review of the direction to rectify – where application refused – whether refusal was against weight of evidence – whether error of law or fact Queensland Building Services Authority Act 1991, ss 72, 86(1)(e) Cachia v Grech [2009] NSWCA 232, cited |
REASONS FOR DECISION
In 2006 Instal-Fix Pty Ltd contracted to demolish an existing structure at the rear of a home at 3 Lilac Way, Gaven owned by Ms Norma Comuzzo, and to construct a new flat roof pergola attached to her residence. The new structure was manufactured by a company called Stratco.
After the work was completed and paid for Ms Comuzzo complained that water ingress was occurring where the patio roof was attached to her dwelling and that an increase in the catchment area was causing water to overflow from the gutters. Instal-Fix returned and attempted to rectify the problem but, when Ms Comuzzo was not satisfied, she referred the matter to the Queensland Building Services Authority.
Its officers inspected the site and on 27 March 2008 issued Instal-Fix with a direction to rectify the building work. Instal-Fix sought a review of that direction pursuant to s 86(1)(e) of the Queensland Building Services Authority Act 1991 (QBSA Act). The matter proceeded in QCAT’s predecessor, the Commercial and Consumer Tribunal, at an unsatisfactorily slow pace. After that Tribunal was absorbed into QCAT on 1 December 2009 the matter was promptly set down for a hearing on 1 February 2010, when both parties adduced oral and documentary evidence. The learned member gave her decision, with reasons, the following day. In those reasons, which are careful and comprehensive, she refused Instal-Fix’s application to review, and confirmed QBSA’s direction to rectify.
Instal-Fix has sought leave to appeal that decision. This Appeal Tribunal directed that the matter be determined on the papers by the filing and exchange of written submissions, which has occurred.
Instal-Fix’s grounds of appeal involve, primarily, assertions that the learned member made findings of fact which were erroneous, or unsupported by or against the weight of the evidence.
An appeal on a question of fact, or mixed questions of law and fact, can only be brought in the QCAT Appeal Tribunal with leave: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b).
As her reasons comprehensively disclose the learned member found, relevantly, that:
(a) Leaks are occurring in various places where the new patio installed by Instal-Fix meets the roof of the home;
(b) one of those leaks is occurring where there is a gap in the back channel of the new patio, and some occur directly beneath the area once covered by the flashing that Instal-Fix removed;
(c) leaks were not occurring in those places before the applicant installed the new patio; and
(d) a gutter on the new patio installed by the applicant overflows.
It was also accepted that QBSA’s decision to issue a direction to rectify involved, in those circumstances, an appropriate exercise of its discretion to do so.
In lengthy submissions prepared and signed by lawyers for Instal-Fix it is asserted, in particular, that the learned member’s findings are against the weight of evidence. A perusal of the transcript of the proceedings quickly reveals, however, that some of these submissions cannot stand scrutiny. It is alleged, for example, that when Instal-Fix’s work team arrived to construct the patio the owner had not completed all necessary demolition work. This is vividly contradicted by the oral evidence of Instal-Fix’s own Director that the company had demolished the existing patio, and the tender of an invoice for that very work.
In particular, it is also asserted that the learned member wrongly found that water is flowing from the newly erected patio roof back into the house, causing water damage inside the dwelling. Nothing in the transcript of evidence suggests, however, that water was flowing from the new patio back into the property, and no finding of that kind is apparent in the reasons.
It is said that a problem with water leaking from the roof of the house itself into the premises is caused by an accumulation of material in a valley pan located between gabled sections of the roof, behind which water is pooling, and an attempt has been made to adduce new evidence of this, with photographs[1]. The relevance of both the allegation, and the additional evidence, is unclear. The only question in issue before the Tribunal was whether or not leaking was occurring where the patio meets the roof. There is no basis upon which this further evidence should be admitted.
[1] Appeals are by way of rehearing: s 147(2)
It is said, for Instal-Fix, that the real source of the homeowners problem is water overflowing from the valley pan, and Instal-Fix is concerned that it will have to effect expensive roof repairs for a problem it has not caused. Again, the submission is misconceived. The issue specifically addressed in QBSA’s direction to rectify is water ingress where the patio roof is attached to the dwelling, said to be caused by inadequate apron flashing. The second direction apparently relates to external gutters in the vicinity of the patio. Nothing in the evidence suggests it has something to do with the valley pan.
It is also said, for Instal-Fix, that some of the building work it carried out was not performed under any contract. Section 72 of the QBSA Act provides, however, that if the QBSA is of the opinion that building work is defective or incomplete, it may direct the person who carried out the work to rectify it. It is not a prerequisite to the issue of a direction to rectify that the building work to which the direction relates be carried out under the contract.
The learned member’s findings were also consistent with other evidence presented to her. Another allegation by Instal-Fix – that leaks had been occurring before it began work – is contrary to uncontested evidence given by the owner that leaks only appeared later. The owner also gave evidence that the gutters on her pre-existing patio did not overflow, but do so now. As to the possibility of leaks associated with the valley pan Mr Dixon, a building inspector, observed that even if leaks are occurring in that vicinity that does not mean they are not, also, occurring where the patio meets the roof, as a consequence of Instal-Fix’s work. Both the homeowner and a director of Instal-Fix gave evidence establishing, persuasively, that leaks now occur where the new patio meets the roof, some of them directly beneath the area once covered by the apron flashing which Instal-Fix removed.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk LiquidNothing in Instal-Fix’s submissions or in the transcript of the hearing or the reasons of the learned member suggests any error of fact or law or, in particular, any finding which was not reasonably open and consistent with the weight of the evidence. Any appeal would, then, be doomed to fail. In the circumstances, the application for leave to appeal must be refused.
Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
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