Jarvis v Queensland Building and Construction Commission - [2014] QCAT 693

CITATION:

Jarvis v Queensland Building and Construction Commission [2014] QCAT 693

PARTIES:	Christopher Andrew Jarvis t/a Chris Jarvis Plumbing and Bathroom Renovations (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR055-14

MATTER TYPE:

General administrative review matters

HEARING DATE:

19 August 2014

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

19 December 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Decision of the Queensland Building and Construction Commission dated 3 February 2014 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – review of Queensland Building and Construction Commission decision to issue Direction to Rectify – where builder claims it was unreasonable to issue direction – decision confirmed

APPEARANCES:

APPLICANT:

Christopher Andrew Jarvis

RESPONDENT:

Queensland Building and Construction Commission

EX TEMPORE DECISION

The decision of the Tribunal is to confirm the decision of the Queensland Building and Construction Commission that was made on 3 January 2014 to direct the rectification or completion of Tribunal work, Direction to Rectify number 39794. The reasons for confirming the decision to order Mr Jarvis to rectify the work in question now follow.
The work arises out of a contract that was entered into between Mr Jarvis and Ms Joycelyn Windus for work conducted at 95 Bunya Park Drive in Eatons Hill. The work included renovation of a laundry area. The Direction to Rectify required that Mr Jarvis repair areas where water damage had occurred as a result of the way that he had constructed the floor in the laundry room. In short, the water flowed away from the floor outlet and through a wall into the bedroom that adjoined the laundry room and had ruined the carpet in the adjacent room. It is the case that Mr Jarvis indicated to Queensland Building and Construction Commission that he didn’t actually waterproof the floor in the laundry. The photographic evidence appears to indicate that this is the case.
It was Mr Jarvis’ position that the laundry room did not need to be waterproofed but merely needed to be water-resistant. I do not accept this. The issues that the Tribunal needs to consider in a review application such as this are firstly whether the work was building work – it is agreed that this was building work, and therefore, the Tribunal doesn’t need to further consider this issue. Secondly, the Tribunal must consider whether the work was defective; thirdly, whether the applicant was responsible for the defective building work; and fourthly, was it reasonable for the Commission to direct Mr Jarvis to rectify the work performed in the circumstances. It is agreed that Mr Jarvis was responsible for the building work in question.
The only two issues that are not agreed between the parties are whether the work was defective, for the reason that Mr Jarvis argues that the performance requirements that are contained within the Building Code of Australia, specifically those set out at 3.8.1.1, have been misinterpreted by the Commission, and whether it was reasonable for the Commission to direct Mr Jarvis to rectify the building work in the circumstances. In summary, Mr Jarvis’s arguments focus upon two issues only, that is, the proper interpretation of 3.8.1.1, and the impact of what he calls a vendetta that the homeowner for whom the work was performed has against him and his family-run business, in the context of whether it was reasonable for the Direction to Rectify to issue.
It seems quite clear that, pursuant to 3.8.1.1, that it was necessary for the laundry to be waterproofed to 25 millimetres above the finished floor level, sealed to the floor, and then for the wall junctions and joints to the laundry also to be waterproofed. Because of the fall in this particular floor, there is the additional complication that the water actually ran back toward the room that sustained the damage. As is often the case in reviews of this nature, Mr Jarvis indicated that he was willing to rectify some of the work that he considered was within the scope of work he had been contracted to perform, but was unwilling to repair any of the consequential damage. That is not an option for contractors in circumstances like this where the work that they have performed results in consequential damage to adjoining areas as a consequence of their noncompliance with either the Building Code of Australia or general building principles that result in the work being considered to be defective.
Mr Jarvis’ reading of 3.8.1.1 is that it is possible to use a combination of water-resistance methods in order to create a waterproof membrane. If he had actually done that here, then perhaps the Tribunal would not have been called upon to review this decision. It is readily apparent that whatever method of waterproofing or water resistance was utilised by Mr Jarvis, it was ineffective. Regardless, looking at 3.8.1.1, it is clear that the walls need to be waterproofed to not less than 25 millimetres above the finished floor level sealed to the floor. It is not simply possible to achieve this with a bead of silicon, which is what was suggested by Mr Jarvis during the hearing. The Tribunal does not accept that Mr Jarvis’s interpretation is either the correct or preferable interpretation of 3.8.1.1, and it is frankly nonsensical in the circumstances.
Turning then to the only remaining issue, having found that the Commission’s interpretation of the requirements are the correct interpretation, the Tribunal must consider the arguments raised by Mr Jarvis in terms of whether it was reasonable for the Commission to issue the Direction to him in these circumstances. He argued during the hearing that the homeowner in question was simply driving an unreasonable vendetta against him and creating difficulties for him and his company where none are warranted. He considered the scope of work and the price for which he did the work to be constrained, and therefore was resentful of the requirement contained in the Direction that he repair the adjoining areas of damage as well.
Having had it drawn to my attention by Mr Jarvis himself that there were other Tribunal decisions that had been made in relation to the work in question at these premises, I located and have considered the decision made by Member Favell in OCR171-13, insofar as it relates to the validity of Mr Jarvis’ argument that this home owner had a vendetta against him. That decision is a disciplinary decision in which Mr Jarvis apparently conceded that there were proper grounds for the Commission to take disciplinary action against him arising out of his charging a deposit that was more than the amount that could be charged for the dollar value of the contract for work that was entered into between himself and Ms Windus. In other words, he took too great a deposit for the work performed.
Turning back to the issue of whether it was reasonable for the Commission to issue the Direction to Mr Jarvis, I have concluded that none of the material supplied by Mr Jarvis suggests that there is any reason for the Tribunal to consider that it was anything but reasonable. He has been disciplined in relation to his conduct in this matter, and presumably part of the utility of the disciplinary proceedings would be to discourage other contractors from engaging in the same sort of conduct that Mr Jarvis found himself part of in the disciplinary proceedings in question. It is difficult, given the written decision by Member Favell, to give any real regard to there being any merit to an argument that the complaint made by Ms Windus to the QBCC, that led to this Direction issuing, was unwarranted.
From the Tribunal’s perspective, in this proceeding, the simple fact is that the work in question resulted in water ingress to the bedroom in circumstances where the Building Code of Australia for laundry walls was not complied with in that it was not waterproofed. It was merely water-resistant.
The final thing that I wish to say is to just draw Mr Jarvis’ attention to the fact that although he has filed considerable material in this proceeding, all of the material merely replicates the material that has been supplied to him by the Commission. There is no material before the Tribunal that is capable of suggesting that the Commission has made an incorrect decision in this matter. There is no independent evidence that is capable of suggesting that the work was not defective. For these reasons, the Tribunal confirms the decision that was made by the Commission on 3 January 2014 in relation to this Direction to Rectify.