Kehl v Queensland Building Services Authority

CITATION: Kehl v Queensland Building Services Authority [2011] QCAT 54

PARTIES:	Mrs Margaret Kehl
v
Queensland Building Services Authority

APPLICATION NUMBER:   QR154-08

MATTER TYPE: Occupational regulation matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Phillip Pennington, Member

DELIVERED ON: 15 February 2011

DELIVERED AT:      Brisbane

ORDERS MADE: It is ordered that the items referred to in paragraph 1 of part C of the application filed 9 July 2010 do not fall within the original findings as to defective building work referred to in Order No 2 of the Tribunal dated 22 January 2010.

CATCHWORDS :  defective building work: consequential damage

APPEARANCES and REPRESENTATION (if any):

Decision on the papers.

REASONS FOR DECISION

1. On 25 September 2007, the Applicant filed a complaint form with the Respondent with reference to domestic building work carried out by a licensed builder.  The Respondent's decision in respect of the matters raised was communicated to the Applicant by way of a letter dated 10 June 2008.

1. The Applicant began proceedings in the Commercial and Consumer Tribunal by an application filed 4 July 2008 for a review of that decision.

1. The Queensland Civil and Administrative Tribunal made orders on 22 January 2010.  Those orders are set out in appendix A to these reasons.

1. On 19 July 2010, using "Form Number 41", which is entitled "Application for interim order or injunction", the Applicant sought an order in these terms:

That the Tribunal issue an order that the broken ensuite floor and cracked floor tiles and toilet pan constitute "defective building work" and must be part of rectification/ a BSA insurance claim.

(for convenience I will refer to this as "Proposed Order No 1").

1. On 2 September 2010 this Tribunal ordered the parties to file in the Tribunal and serve on each other submissions on whether the items referred to in Proposed Order No 1 fell within the original findings this Tribunal made as to defective building work in the second of the January 2010 orders.

1. The Respondent’s original findings as to defective building work were contained in an inspection report annexed to its Statement of Reasons dated 16 September 2008.  That annexure contains this passage:

Defect Item No: (3) CAT 2

A visual inspection noted there is cracking evident to the tiled floor & the toilet pan in the ensuite above the lower floor support pier.

(Four coloured photographs with date stamps 19 11 2007 appear)

Found

THE OWNER NOTED;

This item is damage caused as a result (sic) actions of the contractor, in lifting the wall from of (sic) the pier to remove the STEEL ACRO PROP from under the bearer & place the weight of the building onto the masonry support pier.

Found

§  This matter is not defective building work

§  The contractor is required to have in place constructions work insurance policy to deal with such issues as damage.

Conclusion

A Direction To Rectify is not able to be issued to the Licencee in regard to this matter.

The contractor “IS…