Kehl v Queensland Building Services Authority
[2011] QCAT 54
•15 February 2011
| 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
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.
The Applicant began proceedings in the Commercial and Consumer Tribunal by an application filed 4 July 2008 for a review of that decision.
The Queensland Civil and Administrative Tribunal made orders on 22 January 2010. Those orders are set out in appendix A to these reasons.
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").
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.
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 NOT” directed to rectify this item.
It is sufficiently clear from the preceding paragraph that the damage to the ensuite was found by the Respondent not to be defective building work. It follows 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 2 of the Tribunal decision issued on 22 January 2010. For the sake of clarity therefore, 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.
Some basic parameters within which the Tribunal conducted the January 2010 hearing and moved to make its findings that day need to be recorded, otherwise it may be that the Applicant is concerned that her claims requiring the Respondent to exercise its jurisdiction in relation to the alleged consequences of building work were not properly assessed, either by the Respondent or the Tribunal.
This Tribunal cannot:
a)find, as a matter of law, that consequential damage arising from the carrying out of building works, is itself building work;
b)direct a builder to make good any such consequential damage.
[10] The Tribunal notes these aspects of the evidence:
a)For the Applicant, a statement dated 19 February 2009 of an eyewitness who declared having heard a sharp cracking noise contemporaneously with the raising of the house immediately to the left of a new block pillar that had been constructed. This evidence indicated this work occurred contemporaneously with other work being carried out on site by the builder.
b)For the Applicant, the report of Jeffrey Hills and Associates Pty Ltd contained in a report dated 6th February 2007 containing this passage:
4/ Jacking of House
It is observed that as part of the process for the installation of the additional support on the eastern side of the house is (sic) that the bearer has been jacked. Site observations indicate that the packer that has been placed under the bearer is too high. There is an observable bend over the support. For this packer to be installed the house would have had to have been jacked past the horizontal plane in which it would have been before the commencement of the works. It has been reported that when this was occurring that cracking to the tiled floor above has occurred. Based on the observations that the bearer is higher than it was originally the premise that the works have cracked the floor is consistent with the evidence.
c)The statement of Angus Ross, filed by the Respondent on or about 13 March 2009 referred, at paragraph 7.3, to the Applicant having advised him in terms that do not materially differ from the passage contained in the Respondent’s Statement of Reasons dated 16 September 2008 referred to at para 6 of these reasons.
d)The following passage then immediately appears in Mr Ross’s statement:
"Therefore, I concluded that as this item is not considered to be a defect for the purposes of the Queensland Building Services Board Policy Rectification of Building Work ("the Policy") and the provisions of the Queensland Building Services Authority Act ("the QBSA Act"), the Authority does not have the power to direct the Builder for these items and therefore, the Authority is unable to assist the Applicant in relation to this item.”
e)The Respondent did not seek to contradict the evidence of the witness referred to in the preceding paragraph (10.a).
f)The Respondent's representative at the January hearing cross-examined Mr Hill, and Mr Hill’s answers indicate that the ‘jacking’ to which he referred in his report might have occurred before the commencement of the works (proceedings transcript 1-70 at lines 50 to 60). There was however no further evidence led in support of a submission that might have come from the Respondent to suggest that the jacking hadn't occurred contemporaneously with the carrying out of the works or with the authority of the builder concerned.
[11] The submissions handed up to the Tribunal by the Respondent's representative at the end of the Respondent's evidence on 22 January 2010 referred at paragraph 3.13 to the definition of building work appearing at Schedule 2 of the QBSA Act, and the definition of ‘building work’ relevantly appears:
a)the erection or construction of a building;
b)the renovation, alteration, extension, improvement or repair of a building;
c)the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building;
d)…
e)any site work (including the construction of retaining structures) related to work of a kind referred to above;
[12] Under section 72 of the Queensland Building Services Authority Act 1991 the Respondent is empowered to give directions for rectification of building works. The Respondent was constrained by the legislative framework establishing criteria by which it may give directions, and this Tribunal is similarly constrained.
[13] Without wishing to labour the point, the important distinction is that the Respondent, and this Tribunal, had to consider when examining the nature of alleged defective building work, whether it is building work at all.
[14] Doubtless the installation of the masonry support pier was building work under the criteria stated in schedule 2 of the QBSA Act, either viewed as literally an ‘alteration’ or ‘improvement’. If there was doubt about that, it was conceivably ‘site work’ related to the central work that the builder was engaged to do.
[15] However the Respondent’s and this Tribunal’s discretion as to the giving of directions to the builder required identification of defective work as a threshold issue before, in an appropriate case, ordering its rectification. This might, in the instant case, have extended to requiring the knocking down and replacement of the masonry support pier. But the claim of the Applicant was that the Respondent should make good consequential damage to other parts of the Applicant’s built structure. That was not a claim that defective building work exists, but a claim that there was consequential damage.
[16] In a hearing of another Queensland tribunal, the Queensland Commercial and Consumer Tribunal, a similar issue arose. In that matter, the Member in fact found that the alleged consequential damage was not caused by the building work, so the homeowner failed at the threshold on the issue. However the Member remarked that had the causation be established, she would not have been able to issue a direction. The Member remarked:
“In view of the decision I have reached above, it is not necessary for me to further consider the matters which I raised. However, for completeness I should say that I was concerned about whether or not given the wording of section 72 of the Act, the Authority in any event has any power to direct a person to rectify consequential damage which arises as a result of established defective building work.
Stephenson PT & CA v Queensland Building Services Authority [2005] QCCTB 59 (14 April 2005)
[17] Similar considerations guided this Tribunal, and to have viewed the matter otherwise would have raised the prospect of the Tribunal making a jurisdictional error.
Annexure ‘A’ to Decision of Member Pennington issued 15 February 2011
DECISION
Case number: | QR154-08 |
Applicant: | Mrs Margaret Kehl |
Respondent: | Queensland Building Services Authority |
Before: | Mr Phillip Leon Pennington |
Date: | 22 January 2010 |
Initiating document: | QBSA Review – Tribunal Hearing Queensland Building Services Authority Act 1991 (QBSA Act) |
IT IS THE DECISION OF THE TRIBUNAL THAT:
The decision of the Queensland Building Services Authority (“the Authority”) is set aside and the matter is returned to the QBSA for re-consideration.
The Authority is to issue directions which are consistent with its original findings as to Defective Building Work.
The Authority issue a direction to the builder within 60 days of the date of this order subject to the proviso that where the builder is not licensed to carry out the required work then it must have the work carried out by a licensed contractor.
The relevant direction to the builder must require the works to be rectified within 120 days of the date the direction is issued or less as the Authority might consider appropriate.
Where it is demonstrated by the builder that it or an applicable licensed builder has been unable to obtain access to all requisite areas of the applicant’s property to inspect or carry out the works the subject of the preceding directions, provided reasonable notice had been given, which for these purposes shall be not less than seven (7) days, no further action shall be taken towards pursuit of the builder for an offence under section 72(10) of the QBSA Act until such time as this matter has been re-listed before this Authority for directions.
To the extent that this matter might need to be brought before the Tribunal for a further as mentioned in the preceding order number this matter is adjourned.
These orders do not affect the builder’s rights generally arising from these orders.
There is no order as to costs.
Signed
Mr Phillip Pennington
Member
Queensland Civil and Administrative Tribunal
Date: 22 January 2010
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