Jarvis v Queensland Building and Construction Commission
[2022] QCAT 404
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Jarvis v Queensland Building and Construction Commission [2022] QCAT 404
PARTIES:
CHRIS JARVIS (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
GAR194-21
MATTER TYPE:
General administrative review matters
DELIVERED ON:
9 December 2022
HEARING DATE:
23, 24 November 2022
HEARD AT:
Brisbane
DECISION OF:
Member King-Scott
ORDERS:
The decision of the Queensland Building and Construction Commission of 8 February 2021 to issue a Direction to Rectify in relation to:
1. Items 1, 2, 3, 4, 6 and 7 is confirmed;
2. Item 8 is set aside.
ADMINISTRATIVE LAW – ADMINISTRATIVE
TRIBUNALS – QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL - where review about
directions to rectify decision – failure to comply with Australian Standards – whether work defective – where some work carried out gratuitously – whether unfair to issue the direction to rectifyQueensland Civil and Administrative Tribunal Act 2009 (Qld)
Queensland Building and Construction Commission Act 1991(Qld)
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
S E Seefeld of Counsel instructed by Holding Redlich
REASONS FOR DECISION
Chris Jarvis operated a plumbing and bathroom renovation business.
On about 7 September 2020 Mr Jarvis and the homeowners entered into an HIA Kitchen, Bathroom & Laundry Supply and Install Contract[1] 2005 edition to renovate bathrooms and surrounding areas of the home.
[1]Exhibit 1 p.104
Work commenced on 23 July 2020 and continued to practical completion on 3 September 2020. The homeowners were not satisfied with the work and wrote to Mr Jarvis on 7 September 2020. Their complaint was that they did not consider the floor tiling to be level, grouting was too wide and inconsistent throughout the living and bathroom areas. The tiles in places also evidenced a hollow sound when tapped. They considered the job did not meet Australian Standards. The homeowners offered to resolve the issue by not paying for a component of the tiling.[2]
[2]Exhibit 3 Addendum 1
Mr Jarvis did not accept the offer and the homeowners obtained a report from All Trades Brisbane Pty Ltd[3] which was critical of the work. The report formed the basis of the complaints to the Queensland Building and Construction Commission (‘the Commission”)
[3]Exhibit 1 p.117.
Peter Doolan, a building inspector, employed, at the time, by the Commission inspected the work on 7 December 2020 and reported on the results of his inspection on 10 December 2020.[4]
[4]Exhibit 1 p. 7
The Complaints
There were nine complaints in total. One was found not to be a defect. Following internal review the number of complaints were reduced to 7. The original complaint number 5 that no puddle flange had been installed was found to be incorrect and abandoned.
Of the complaints confirmed on internal review five related to the quality of tilling, one to water proofing and one to painting. [5] They were:
1. The installation of the floor tiles to the living room, hallway and ensuite bathroom have not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that lipping between adjacent tile exceeds 2 mm resulting in an unsightly finish.
2. The installation of the tiles and the grout to the living room, hallways, bathroom and powder room have not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that grout is not finished to the depth of the cushion, the grout is not finished smooth and without low spots, the joint widths are not consistent and are larger than the recommended joint width resulting in an unsightly finish.
3. The installation of the tiles in the entry, living room, hallway and bathroom doorway have not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that numerous tiles have in excess of 20% of their surface area found to be drummy resulting in the longevity of the adhesion being compromised.
4. The installation of the tiles in the living room (behind the couch running between the entry to the living room and the hallway opening to the rear bedroom), the front entry (between the door and the back of the house) and the hallway (changing direction and towards the rear bed) have not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that the deviation in flatness is greater than =\- 4 mm over a 2 m plane resulting in an unsightly finish.
5. A water stop has not been incorporated into the waterproofing of the shower area within the main bathroom. Compliance with AS3740:2010, clause 3.13.4 has not been achieved in that water from the shower area is able to track into the bathroom area without adequate provisions to prevent damage to the adjacent fixtures and building elements.
6. The installation of the floor tiling in the hallway, living room and powder room have not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that, intermediate movement joints have not been installed resulting in the performance of the floor tiling being compromised.
7. The installation of the paint to the skirtings, door jams and door architraves in the living room, hallway bathroom, ensuite and powder room have not been completed in accordance with neither AS2311:2017 Guide to painting of buildings go to a standard expected of a contractor who holds a licence of the relevant class in that the paint is the incorrect colour, the paint does not have adequate cover and the paint has not been extended to blend in with existing finish resulting in an unsightly finished.
[5]Exhibit 1 p. 240.
On Internal Review on 12 February 2021, The Direction to Rectify (DTR) made by the Commission on 15 December 2020 was confirmed, except for original item 5.[6] I should interpolate here that Mr Jarvis did not comply with the DTR and the rectification work has now been carried out under the Home Warranty Scheme.
[6]Exhibit 1 p. 676
The Hearing
Mr Jarvis gave evidence on his own behalf and was cross-examined. For the Commission Mr Peter Doolan and Mr Evan Woodruffe gave evidence and were cross-examined.
Mr Jarvis applied to have the author of the All Trades Brisbane Pty Ltd available for cross-examination that was opposed by the Commission and refused by an earlier Tribunal. The Commission declared at the hearing that it was not relying on the report other than the historical part it played in the homeowners’ complaints. As the author was not available for cross-examination I intend to give little weight, if any, to the report.
No independent expert evidence was called by either party.
Mr Jarvis tendered material[7] that revealed him to have been a very successful tiler, in the past, having won numerous awards for excellence in tiling. He advised that he has held an unblemished builders’ licence for 22 years. He was assisted in his business by his sons but advised the tiling work the subject of criticism was work he performed.
[7]Exhibit 3
Mr Jarvis made it clear during the hearing, that the outcome of this matter could financially ruin him. He had made threats against Commission staff and had attempted to intimidate them by threatening to sue them personally.[8] Although the potential consequences of this matter may explain his conduct it does not excuse or justify it. However, I will view his evidence in that light.
[8]Exhibit 1 p.74
Mr Jarvis considered his work was not defective as he considered that the defects in the tiling were not visible to the naked eye or when viewed from a normal viewing distance (1500 mm or greater) pursuant to the Commission’s Standards and Tolerances Guide.
Mr Jarvis said that the Inspector Peter Doolan had an agenda. He says that the inspection and description of defects were unreasonable. He said that for the inspector to see examples of allegedly defective work he had to lie on the floor and take very close up photographs to demonstrate what he described as slight imperfections. He considered that compliance with Australian Standards and the Commission’s Standards & Tolerances Guide was a recommendation and failure to comply did not mean that the work was defective.
Mr Doolan denied Mr Jarvis assertion that the discrepancy in the tiling could not be observed at normal viewing distance. He conceded that in his words he was a little ‘OCD’ in relation to his observation of building work and was very aware of defects. I presume by that statement that he means that he may be a little more demanding than other inspectors. Nevertheless, I accept his evidence. I found him to be frank though meticulous in his evidence. I accept his evidence that the unevenness of the tiling, uneven grouting, misaligned joints and level defects were obvious to the casual observer. I also accept Mr Doolan’s evidence in relation to the druminess of the tiles.
I will now deal with Mr Jarvis’ response to the complaints in seriatim.
Lipping between adjacent tiles exceeding 2 mm.
Although the inspector had applied the word “numerous” Mr Jarvis says that there were only 11 items identified. That he says was only 0.8% of the total floor area. Only 9 of the items were only slightly (0.5 mm/1.5mm) above the AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles. He said 2 of the items were in low trafficable areas or where it was necessary to facilitate falls to waste. They were not visible to the naked eye and were not a trip hazard. It was a non-structural defect and did not pose a danger to health or safety of the homeowners.
In evidence, Mr Jarvis described the difference between cushion edge tiles and rectified tiles. Cushion edge tiles, which were used in this case, differ in quality, size and thickness and are sometimes difficult to match. Mr Jarvis said the client did not want steps which made it difficult to line up the existing tiles to the new tiles.
I cannot accept Mr Jarvis’ interpretation of the AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles as being merely a recommendation. Failure to comply with the Standards, in my opinion, is prima facie evidence of defective workmanship.
Mr Jarvis further submits that if the tiles were to be replaced that would involve the removal and replacement of virtually all tiles as it would be impossible to remove tiles without damaging the adjacent tiles. This, he submitted, would be costly ($40,000) and would take up to 30 days.
Finally, he relies upon s. 72(5) of the Queensland Building and Construction Commission Act 1991(Qld) that it would be unfair of the Commission to require him to rectify the work because of the cost involved.
Inconsistent grout joints
Mr Jarvis submitted that the majority of grout joints aligned, and he observed that for an area of 70 m2 which equated to 350 tiles or 1400 grout joints there were only 7 instances highlighted by the inspector.
He emphasised the Guide’s description which referred to terms such as ‘as far as practicable of consistent width”. He submitted that his work was the best outcome that could be reasonably achieved after consideration was given to the inconsistency of the tile sizes and different parameters of alignment demanded by the homeowners. He said that it was the homeowner who selected the tiles.
Photographs clearly depict the inconsistency in the size of the joints and the coarseness of the grout in places.
Mr Jarvis repeated his earlier submissions relating to the unreasonableness of the inspections and unfairness of the DTR.
Drummy tiles
Mr Jarvis submitted that Mr Doolan referred to numerous tiles but gave examples of only 6 tiles. He conceded that there were some drummy tiles but said that he checked tiles as he laid them and assured himself that there was good adhesive. He also pointed out that he gave a 10-year warranty on all his work.
Mr Jarvis said that the drummy tiles were not in a trafficable areas. The concern about the druminess is long term, in that it is whether the adhesive is sufficient to ensure the longevity of the tile installation.
He criticised the unscientific method of testing druminess of a tile by tapping it. I note that the method appears to be the accepted method in the industry.
Deviation in flatness
The deviation was greater than 4mm over 2 metres. Mr Jarvis criticised the inspection report in similar terms to the earlier issues. The deviation is quite clear on the photographs tendered.
Water Proofing
This related to the enclosed shower. The basis of the complaint was that there was no water stop inserted under the shower screen. It was also alleged that waterproofing did not extend under the bath. This was allegedly apparent from photographs taken by Mr Doolan through an access hole behind the bath. A photograph taken during the course of the works (the works photo)[9] depicts waterproofing to the whole of the bathroom including the area under the bath before it was installed. Mr Doolan conceded under cross-examination that it appeared that the whole room had been waterproofed. However, that was not the end of the matter.
[9]Exhibit 2 Photo 8
It was agreed that the shower was an enclosed shower. It is not controversial that no water stop was installed. The issue was whether the shower had a step down. Mr Doolan proceeded on the basis that it did not have a step down. Mr Woodruff agreed that if there was a step down and a membrane extended across the floor surface outside the shower area then a water stop was not necessary. The waterproof membrane extended across the whole of the bathroom. The issue is whether the step down depicted in the works photo was retained.
The works photo also depicts an obvious step down in the old shower area. Mr Jarvis says that the step down was maintained when the area was tiled. However, subsequent photographs do not clearly show a difference in height between the floor and the area of the step down.[10]
[10]Exhibit 1 p.17
The photographs are quite clear, particularly photo 5 in Exhibit 2 which was provided by Mr Jarvis. I cannot see any step down, certainly not to the extent of 15 mm.
Mr Doolan says that there was no step down. Indeed, he observed in his report that:
The respondent advised that a flush transition between the floor tiles of shower and the bathroom floor was installed with the shower screen bottom track installed on to the tiles.
Mr Jarvis says that the reference to flush transition was a reference to aligning the tiles and not to leveling the tiles.
I accept Mr Doolan’s report that no step down was in place, at least not to the extent of 15 mm.
Expansion joints
The allegation is that the installation of the floor tiling in the hallway, living room and powder room had not been installed in accordance with AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tiles in that intermediate movement joints had not been installed resulting in the performance of the floor tiling being compromised. Mr Doolan considered the length of the living room including the hall width totalled 12 m in length. Mr Jarvis said that it did not exceed 9 m which meant that the perimeter movement joints were adequate. Mr Jarvis attempted to calculate the distance from photographs by reference to the size of tiles. It was not a very satisfactory method of providing a reasonable estimate of the distance.
Mr Jarvis says that he installed perimeter movement joints which complied with the 5.45.5.2 (b) of AS3958.1: 2007 Ceramic Tiles Part 1 - Guide to the installation of ceramic tile.
I am not satisfied that appropriate movement joints have been installed.
Painting
The painting of the skirtings, door jams and door architraves in the living room, hallway bathroom, ensuite and powder room had not been completed in accordance with AS2311:2017 Guide to painting of buildings in that the paint was the incorrect colour, did not have adequate cover and had not blended in with the existing paint resulting in an unsightly finish.
Mr Jarvis said that the painting was not part of the contract and he had agreed to do it for the homeowners as a favour. The homeowners had some old paint which they provided. He said when he applied it, he thought it was alright but when he inspected it, sometime later, he agreed it was defective. Mr Woodruff said irrespective of the circumstances in which the work was done it was defective. I agree, and it is not really in dispute. However, I am of the opinion, that pursuant to 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld) it would be unfair for the Commission, in all the circumstances, to require Mr Jarvis to rectify the work.
Orders
In conclusion, I confirm the Commission’s decision to give to Christopher Jarvis a Direction to Rectify in relation to items 1, 2, 3, 4, 6 and 7 of its internal review decision dated 8 February 2021. I set aside the decision item 8 on the basis that it would be not be fair to issue a Direction to Rectify.
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