JPD Concreting Specialists Pty Ltd v Queensland v Building and Construction Commission
[2020] QCAT 453
•24 November 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: JPD Concreting Specialists Pty Ltd v Queensland v Building and Construction Commission [2020] QCAT 453
PARTIES: JPD CONCRETING SPECIALISTS PTY LTD (applicant) v BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S: GAR447-19
MATTER TYPE: General administrative review matters
DELIVERED ON: 24 November 2020
HEARING DATE: 13 October 2020
HEARD AT: Brisbane
DECISION OF: Member King-Scott
ORDERS:
The Direction to Rectify is set aside.
CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – Direction to Rectify – defective work – no relevant standards or guidelines – competing expert views as to whether the work was satisfactory – whether unfair to give direction to rectify.
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s. 24
Queensland Building and Construction Commission Act 1991 (Qld) ss. 72 and 86(1)(e)
APPEARANCES & REPRESENTATION: Applicant: Self -represented
Respondent: G Phillips for Commission
REASONS FOR DECISION
The Applicant, JPD Concreting Specialists Pty Ltd, seeks a review of the Respondent Commission’s internal review decision to give a direction to rectify for alleged unsatisfactory work by the Applicant in the application of a stencilled resurfacing compound known as ‘Covacrete’ to the patio and external areas at the home-owner’s property at Margate.
On 15 February 2019, the Applicant entered into a contract with the home-owner to carry out certain works which included, in part, the application of Covacrete. The coating is a cheaper method of creating a tiled finish to a concrete surface. By the use of stencils, a pattern can be created that gives the appearance of a tiled or paved area. The work was carried out between 28 February 2019 and 24 March 2019.
The home-owner emailed the Applicant on Friday 29 March 2019 complaining of ‘a large amount of white faded areas throughout’. She said she noticed these ‘marks’ on Tuesday but hoped they would fade with time. The Applicant responded the same day. The Applicant’s Sales and Marketing Manager Abbie Williamson spoke to the company’s principal, she then emailed her as follows:
He said he knows what it is and, it is easily fixed!
There must have been a bit of moisture in the night air when the sealer was applied. It looks like it has been trapped in the sealer causing the ‘milkiness’.
What he will do is he will reactivate the sealer and it will dry as normal.
…
It seems that the Applicant attempted to rectify the patches of discolouration. Mr Benjamin Dykstra gave evidence that he attended the property on 4 occasions. He made it clear, in the course of his evidence, that it was not a colour issue but what appeared in the photographs as white patches was in fact a difference in texture which at certain angles gave the white appearance. That is not disputed by the Commission.[1]
[1]According to the evidence of Mr Scott Hayman, the Commission’s Building Inspector.
Mr Dykstra also gave evidence on his first visit that he warned the homeowner that stripping back and reapplying the sealant could make it worse, he advised the homeowner not to touch it. He could not see the problems that she saw. He was of the opinion that the homeowner was disappointed with her choice of colour as she kept comparing it with her neighbours, which was of a different colour. He agrees that the texture differences are more apparent now than they were when he first inspected it. That is, that the attempts to rectify it have made it worse but, essentially, the difference in colour was due to the difference in texture. I found Mr Dykstra to be an impressive witness who gave his evidence frankly and honestly. I accept his evidence. The home-owner was not called as a witness and Mr Dykstra’s evidence in relation to his conversations with the home-owner are not rebutted.
Application to review
The application is brought under s 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which provides that a direction to rectify is a reviewable decision. The Applicant is entitled to apply to the Tribunal for a review of that decision under s 87 of the QBCC Act.
The functions of the Tribunal in a proceeding to review a reviewable decision are set out in s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). The Tribunal can:
(a)Confirm or amend the decision; or
(b)Set aside the decision and substitute the Tribunal's own decision; or
(c)Set aside the decision and return the matter to the Commission to reconsider the Decision with directions that the Tribunal considers appropriate.
Particulars of the unsatisfactory work
The principal witness was a Mr Scott Hayman who has been employed as a building inspector by the Commission since 2014. His current role, at the time of hearing was as an Internal Review Officer.
He inspected the property on 23 October 2019. He took numerous photographs of the alleged unsatisfactory work. He frankly admitted that he was not experienced in the application of covacrete, he had not applied it himself nor had he seen it applied. Nevertheless, he was familiar with the product and his opinion was informed further by discussions with the manufacturer/supplier.
He noted the following aesthetic defects:
(a)A circular portion of colour, texture and finish variation adjacent the air-conditioning unit at the entrance to the area. The defect is visible from a normal viewing position. That is, when standing directly above the area and at a reasonable distance.
(b)Inconsistent surface texture to central areas of the pavement in the form of smaller circular positions which are of smoother texture and appear to have been affected during or directly after the application of the product. The defects are visible from a normal viewing position. That is, when standing directly above the area and at a reasonable distance.
(c)A large portion of inconsistent surface texture in the form of smoother areas to the outer panels. The defect is visible from a normal viewing position.
(d)Excessive application size (noticeably larger than the adjacent areas), of the cream/white coloured compound. The defect is visible from a normal viewing position.
(e)Inconsistent application of black to white coloured compounds. That is, the black compound is prevalent in areas where no white compound is present, and the white compound is excessive in areas creating a poor appearance. The defects are visible from a normal viewing position and are consistent throughout the pavement.
(f)An area between the two air-conditioning units against external wall of the dwelling includes no stencil or coloured compound; only base compound resulting in an inconsistent appearance. The defect is visible from a normal viewing position.
(g)Edges of the base compound are chipped and damaged adjacent to the stencil in areas reported to have been the subject of attempted rectification works. The defects are visible from a normal viewing position.
(h)Inconsistent and incomplete coloured compound application to the rear of the decorative finish adjacent to the pedestrian gate and timber fence. The defect is visible from a normal viewing position.
(i)Expansion joints to the pavement are filled with base compound. The defect is visible from a normal viewing position.
In addition to the specific defects identified above, Mr Hayman opined that the overall appearance of the decorative finishes was inconsistent and generally poor when observed from a normal viewing position.
Mr Hayman observed that there was not a relevant Australian Standard to assess the appearance of the pavement and he relied upon the following publications/materials to establish criteria:
(a)the QBCC Standard and Tolerances Guide 2016 Part 1.2 "Finish to external concrete paving"
(b)the Avista Resurfacing Coloured Compound Technical Data Sheet dated August 2019
(c)images of the intended appearance of the products supplied by the manufacturer/supplier by way of email to 29 October 2009.
It should be observed that the QBCC Standard and Tolerances Guide 2016 also does not address this type of decorative compound. Part 1.2 of that document relied upon by Mr Hayman states:
Concrete paving finish is defective if, within 12 months from date of completion of the work, it is not consistent in colour, texture and general appearance. Minor variations in finish may occur and are not considered to be defective.
Mr Hayman’s report was supported by many photographs that did not, always depict, to my eye, the defects complained of.
Witnesses
The Applicant made a number of witnesses available for cross examination including Benjamin Dykstra whose evidence I have already referred to.
Mr Tylor Sokolov was a concrete labourer who worked for the Applicant on the job. He stated that the job took 12 hours and that they finished at 8.00 pm. I infer that he was referring to the covacrete part of the job. He was proud of the job, in his words, he thought it was ‘fantastic’. He took photos of the work, which unfortunately, he did not retain. He said on leaving, the homeowner expressed her satisfaction with the job.
Abbie Williamson was the Sales and Marketing Manager. On the night the works were finished she said the home-owner advised that she was very pleased with the job. A week later she called Ms Williamson and complained of a couple of things she was not happy with. Ms Williamson attended the site on 2 April 2019. She was shown some white patches and, subsequently, advised by email the possible reasons for this and that it would be fixed. The email is referred to above.
Another, issue related to her complaint that the texture was not normal it was too rough. She was expecting a finish similar to her neighbour’s covacrete. She expected it to be a ‘little bit spongy and smooth’.
Ms Williamson agreed that she saw the white patches in the photographs in Mr Hayman’s report. She had not seen the ‘milkiness’ prior to this occasion. Subsequently, she has seen it on a number of jobs and advised that if left untreated then 9 out of 10 occasions it will disappear. She now advises customers that this may occur.
The Commission’s building inspector Steve Toonen, who was the first to inspect the work for the Commission on 27 August 2019 prepared a report and made the following findings:
(a)The overall colour of the applied finish was consistent throughout the entire slab area.
(b)The homeowner pointed out two areas of concern, she believed the areas were noticeably different when sighted back from a distance across the entire slab area.
(c)When standing back at one end of the slab area and sighting across the floor there appeared to be some areas that seem to have a different sheen or texture, it was my opinion at the time of the inspection that this was also the case in other areas not just the two areas as identified by the homeowner.
(d)The areas of concern by the homeowner when inspected closer noted (sic.) that the colour was consistent however, the texture of the applied product may be less rough and this may be giving a different shine to the finish when natural light applied.
(e)The Contractor has been back on several occasions to attempt to rectify the areas of concern and engaged the services of the supplier for suggestions on how to rectify the areas of concern.
(f)The supplier suggested to remove the sealer in these areas and re-apply a new sealer, this was undertaken and the finish was the same.
(g)The homeowner was unhappy with the two areas, but it was explained that as this product is applied with a spray gun the texture of the applied product could at times be different due to the thickness of the application and other application variances.
(h)The contractor had agreed to return to retreat the areas as suggested by the supplier but the homeowner was only accepting of this if they could guarantee the outcome. The contractor acknowledge that they could not guarantee that this would result in the areas being fully rectified and it may actually cause the areas that have been touched up becoming more noticeable after the works have been done.
Mr Toonen’s opinion was that the contractor has been trying to resolve the areas of concern by the homeowner and had made several attempts to resolve it. It was also his opinion that the overall appearance of the slab was that it was in good condition and the overall finish was consistent, therefore, it was his opinion that it would not be reasonable to direct the contractor to remove the surface material and respray the entire floor area for what was some minor textual inconsistencies in a couple of indicated areas.
Mr Toonen had considerable experience in the use of covacrete and its application. In oral evidence he said that on first inspection the alleged defects were not readily noticeable, although there was a slightly different sheen. It was when the homeowner asked him to look from a certain angle that it became noticeable. He also advised that the process lends itself to some inconsistencies because of the nature in which it was applied. He said when looked at from above the work looked consistent.
The manufacturer’s Technical Data Sheet advised that the compound should be sprayed evenly across the surface in a circular motion holding the hopper approximately 600mm from the ground. Obviously, in my opinion, there may be differences in the skill levels of the operator and, consequently, the result. That is, the results between a competent operator and a highly skilled operator may differ but both would fall within the work being within acceptable limits.
The discretionary power to issue a direction to rectify derives from s 72 of the QBCC Act. Section 72(1) provides:
(1) This section applies if the commission is of the opinion that –
(a) building work is defective or incomplete; or
(b) …
(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction-
(a)for building work that is defective or incomplete - rectify the building work;
(b) …
Further, s 72 provides that:
(3) In deciding whether to give the direction the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).
(5) The commission is not required to give a direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
The word ‘defective’ is defined in the QBCC Act as ‘faulty or unsatisfactory’ building work.
“Defective building work” is defined in the Commission’s Rectification of Building Work Policy to mean:
Building work that is faulty or unsatisfactory, and includes, for example, work that:
(a) does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard
(b) involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.
The Applicant relied upon a letter from Mr Andrew Grech, Account Manager for the product supplier, Parchem Construction Supplies Pty Ltd. In an email dated 15 April 2020 to the Applicant he stated, inter alia, -
I did visit (the homeowner) - at … Margate last year onsite to inspect recently laid covercrete, where their (sic.) appeared to be some "water whitening" which had occurred on edge of covercrete area which was not a product issue
There were also some minor defects in covercrete (due to poor masking) near sidewall.
I spoke to you Joh after my initial visit and we discussed the rectification of these issues, & from my understanding Joh you revisited the site to attend to "water whitening" & "masking" defects & rectified these issues
The remaining covercrete have been applied consistently and was within industry standard.
Have not been on-site again and have assumed that the issue had been resolved, and I have nothing further to add to this issue.
It is not disputed that the Applicant offered to rectify the defects due to poor masking by hand painting the area but the home-owner declined the offer.
Mr Grech was not required for cross-examination.
Conclusion
I am not satisfied that the building work was defective. The Commission concedes that there is no Australian Standard relevant to this sort of application. The Commission’s own Standard and Tolerances Guide 2016 Part 1.2 does not address the issue and the application of the product has been applied in accordance with the product manufacturer’s instructions. The Applicant offered to rectify minor defective work, which was refused. In addition, a very experienced building inspector formed the opinion that the work was not defective.
If in the event that I am wrong in my opinion that work is not defective, then in my opinion it would be unfair to give a direction to rectify and in the exercise of my discretion I decline to do so.
Orders
The Direction to Rectify is set aside.
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