Jespersen v Queensland Building and Construction Commission

CITATION:

Jespersen v Queensland Building and Construction Commission [2017] QCAT 459

PARTIES:

Jan Jespersen
(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR284-16

HEARD AT:

Brisbane

DECISION OF:

Member Howe

DELIVERED ON:

19 December 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.   The decision of the Queensland Building and Construction Commission not to issue a direction to rectify defective building work to the contractor is confirmed.

2.   The application is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR

INCOMPLETE BUILDING WORK –  where owner claims defective building work – where Queensland Building and Construction Commission makes decision not to issue direction to rectify to contractor – guidelines under AS3727 – where finding of structural and non-structural defective building work – whether claim by owner to replace entire works unreasonable

Queensland Building and Construction Commission Act 1991 (Qld), s 72(5)
Queensland Civil and Administrative Tribunal Act (2009) Qld, s 20, s 21(1)

Burnett v Fergbilt Pty Ltd [2015] QCAT 328

APPEARANCES:

APPLICANT:

Self-represented  

RESPONDENT:

Ms E Ward, Inhouse Counsel

REASONS FOR DECISION

1. Mr Jespersen lives in Shailer Park in the Logan City Council catchment area.  In October 2015, he engaged Mr Kennedy, a concreter, to lay a concrete driveway.

2. Mr Kennedy did the work on 14 December 2015 and Mr Jespersen paid him for the job.  Over the period from 30 January 2016 to 15 February 2016, Mr Jespersen wrote to the contractor complaining about cracks in the concrete.  Mr Kennedy attempted to rectify some of the problems but not to Mr Jespersen’s satisfaction.

3. On 20 February 2016, Mr Jespersen complained to the Queensland Building and Construction Commission (the Commission).  There were initially four matters of complaint, which increased to nine on

   
   

   23 February 2016.  The complaints generally concerned cracks in the concrete, spalling, concrete thickness, general finish and a poorly formed post construction control joint.

4. On 14 March 2016, Mr Nicolson, a building inspector in the employ of the Commission, carried out a site inspection. Though he observed that there were cracks between 1mm and 2mm wide, there was some spalling and the depth of the concrete was in places less then the requisite 100mm, he determined it was not reasonable that a direction to rectify defective building work be issued to the contractor.

5. On 23 May 2016, Mr Jespersen sought internal review of that decision.

6. On 15 September 2016, Mr Matthews, another building inspector in the employ of the Commission, carried out another inspection of the property for the purpose of the internal review.  Both Mr Jespersen and Mr Kennedy were in attendance.

7. Mr Matthews found one crack at the bottom right corner of the driveway near the kerb measured between 1.25mm and 2mm.  He noted under Australian Standard AS3727 Guide to Residential Pavements that was outside the permitted tolerance of 1.5mm.  He also found the slab, in the area of the crack, was under the recommended thickness of 100mm for light traffic in AS3727.  He also found there was…