Kimlin v Mirvac Constructions (Qld) Pty Ltd
[2014] QCAT 74
| CITATION: | Kimlin v Mirvac Constructions (Qld) Pty Ltd [2014] QCAT 74 |
| PARTIES: | Mr Robert John Kimlin (Applicant) |
| v | |
| Mirvac Constructions (Qld) Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL347-12 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 6 & 7 February 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member JC Carey |
| DELIVERED ON: | 28 February 2014 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The Mirvac Constructions (Qld) Pty Ltd must rectify the defective courtyard tiles within 30 days of the date of this decision and arrange for Queensland Building and Construction Commission to inspect the rectification work within 14 days after its completion. 2. Mirvac Constructions (Qld) Pty Ltd will pay Robert John Kimlin’s costs of $275.00 within 14 days of the date of this decision. |
| CATCHWORDS: | Building – Defects – jurisdiction of tribunal – rectification - claim for damages |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self |
| RESPONDENT: | Mr Moran on behalf of the Respondent |
REASONS FOR DECISION
The Applicant purchased a unit from the Respondent in June 2009. He complains that since shortly after that time there have been a number of defects and has sought orders that they be rectified and compensation be paid by the Respondent.
Both parties provided the Tribunal with a list of witnesses they intended to call and filed material and reports as a consequence of Tribunal Directions. Not all those witnesses were called at the hearing. The Tribunal has had regard to the material and reports provided as a consequence of previous Tribunal directions. Whilst it is not ideal for authors of reports not to attend and speak to them at a hearing, the Tribunal is not bound by the rules of evidence. The Tribunal has had regard to the evidence presented by both parties either as a result of a direction or presented orally at the hearing. Neither party was legally represented and no conclave of experts was held prior to the hearing.
The Applicant has the burden of proving his claim to the civil standard on the balance of probability. The civil standard is not applied as a mathematical or scientific exercise, but as a reasonable search for the truth in the circumstances of each particular case[1]. As Dixon J (as his Honour then was) explained in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 – 2, ‘…when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found… reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved’.
[1]TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
It is also important to keep in mind that in cases like these the standard test for weighing and applying the evidence is not one of mathematical or scientific exercise, but based on a reasonable search for the truth in the circumstances of each particular case[2].
[2]TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.
The Applicant’s complaint concerns 4 issues:
a) Installation of a cover over the fan ventilation system on the outside of the unit.
b) The courtyard tiles are drummy, water has seeped under the tiles due to “lipping” and failure to waterproof a nearby garden bed, and failure to install expansion joints. The Applicant submits the tiles should be replaced.
c) A sewage odour coming from the bathroom.
d) Compensation is claimed as a consequence of these defects.
The Applicant gave evidence himself and called the following witnesses:
a) Michel O’Neil – Superintendent, Director of Business Development, Queensland Authority Emergency Services.
b) William Watson – Connectors, Plumbing People. He is also Chairman of the Master Plumbers Association.
c) Simon Jackson – Qualified builder.
d) Wayne Benson – Engineer, Ashburner Francis.
The Applicant is a qualified plumber and has many years experience in that trade.
Jurisdictional Issue
The Respondent submitted that the Tribunal has no jurisdiction to hear the dispute because it does not concern “reviewable domestic work”.
“Building dispute” is defined under Schedule 2 of the Queensland Building and Construction Commission Act (‘QBCC Act’) as a “domestic building dispute”. A domestic building dispute means a claim or dispute arising between a building owner and a building contractor relating to the performance of “reviewable domestic work” or a contract for the performance and reviewable domestic work.
The Respondent submits that as the work the subject of the complaint does not fall within these definitions, the Tribunal has no jurisdiction.
Section 75 of the QBCC Act relevantly provides that the following is “tribunal work”:
(a) erection or construction of a building.
(c) provision of electrical work, water supply, sewage or drainage or other like services for a building…
(e) any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool related to Tribunal work of a kind mentioned in paragraphs (a) – (d).
Section 76 provides what is not “tribunal work”. None of the exclusions in section 76 is work of the kind that is the subject of this Application.
Section 77 provides that a person may apply to the Tribunal to have the Tribunal decide the dispute.
In Section 77(2) the Tribunal has power, at subsection (g) to “award rectification or completion of defective or incomplete “tribunal work”.
It has been held that a 27 storey home unit development is a building which involves “building work related to a home”. The fact that construction is carried out as part of a commercial venture does not affect that position[3].
[3]per Williams Jane RE Watpac Australia Pty Ltd [1996] 1Qd R 229.
The Tribunal has jurisdiction to hear the complaint.
Installation of the cyclone cover
This was installed after Cyclone Yasi and in the Applicant’s opinion, does not allow the ventilation to operate properly. Mr Benson gave evidence that:
a) He took measurements with a wind vane anemometer which “fluctuated around 0.6m per second”. He calculated that there was an exhaust airflow rate of around 23 litres per second.
b) In his report Mr Benson states that the weather protection cover had been retro-fitted over the existing external wall mounted weather proof discharge louvre. This resulted in reduced performance of the fan.
c) Mr Benson’s report and his oral evidence draws the conclusion that it is the installation of the cover that affects the performance of the exhaust fan.
d) Although Mr Benson drew this conclusion, he also gave evidence that he did not remove the cover to see if this affected the fan performance.
e) On the balance of probabilities, the Tribunal is not satisfied that it would be reasonable to order rectification of this alleged defect.
Courtyard tiles
The Applicant gave evidence that within 12 months of occupation the courtyard tiles became drummy and were damaged. Rectification work has been attended to by the Respondent. The Applicant complains that there are no expansion joints and there is moisture getting under the tiles which is the cause of the problem. The Applicant seeks an order that the tiles be replaced.
Mr Jackson’s evidence was:
a) tiles must be fitted to avoid water ingress.
b) Mr Jackson said that the failure to waterproof the garden bed and failure to install weep holes would result in ingress of water.
Mr Cameron of the QBCC gave evidence. He acknowledged that this could be the source of the problem with the tiles but stated that in his opinion it was not a category 1 defect. He also said that the cause of the problem was the Respondent’s attempt to rectify the defect, not the original work.
a) The QBCC policy in respect of category 1[4] defects states at clause 5 that category 1 defective building work is defined to mean, relevantly:
Defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following: …
(c) Adversely affects the functional use of a building;
(d) Allows water penetration into a building.
b) Schedule 2 of the QBCC Act defines a building to include “any fixed structure”. The courtyard attached to the building is a fixed structure.
c) Mr Jackson states that the cause of the defective tiling work is because of lipping, ingress of water and lack of expansion joints in the original work.
d) The Tribunal is satisfied that the tiling installed by the Respondent is defective and that it is a category 1 defect.
e) This defect was notified to the builder shortly after the unit was purchased, and in any event, within the time period outlined in the QBCC policy document (within 3 months after the defective work became apparent to the Applicant).
f) The Respondent has made previous attempts to rectify these problems. That has been unsuccessful.
g) The Tribunal orders the Respondent to rectify the defect.
[4]Adopted by Queensland Building Services Authority (as it then was) on 1 July 2010.
Sewage Odour (Grate Mate)
The Applicant is a licenced plumber. The Applicant is concerned about the smell and listed a litany of attempts to locate the source of the odour, accurately identify what is causing the odour and rectify the problem.
The Respondent had been assisting in all of those endeavours, but is now not.
Clause C.1 of the Plumbing Code of Australia, under the heading ‘Sanitary Plumbing Systems’ C.1.1 relevantly provides:
a Sanitary Plumbing System using water-borne waste disposal must be designed, constructed and installed in such a manner as to …
c) avoid the likelihood of the ingress of inappropriate water, sewerage, sullage, foul air and gases from the system into the building.
The wording states that they must be designed, constructed and installed so as “to avoid the likelihood” of the odour.
None of the witnesses in this matter could:
a) Definitively state the cause of the problem.
b) State that the design, construction and installation of the plumbing system was not done so as to “avoid the likelihood” of there being a foul odour.
c) Not one of the witnesses could fault the attempts to rectify the matter, nor the design or construction of the system. There was some speculation as to what may have been the cause of the problem but no cause was identified to the required standard.
d) A camera has been inserted into the system which shows “ponding” but does not disclose that it is the source of the odour.
e) The Respondent provided expert reports which stated that the odour was not sewage and could not locate a definitive design or construction defect.
f) Mr Watson stated that the Grate Mate, a product installed by the Respondent in order to reduce the odour, does not comply with relevant standards. There is no requirement for Townsville City Council approval for this product.
g) In the circumstances the Tribunal is not satisfied that the design and construction of the sewerage system has been negligently installed to the standard required. In any event, there is no evidence before the Tribunal that a solution to the problem exists.
Compensation
The Applicant claims compensation for:
a) Time off from work for the Applicant and his partner to allow access to the unit. The Applicant estimated that a 4 or 5 month period has been wasted at approximately $80 per hour in attending to these inspections. He stated that they took two (2) about hours each time.
b) He also claimed compensation for the inability to stay at the unit because of the smell on numerous occasions from July 2009 – 2011. On those occasions the Applicant stated that he stayed at his partner’s unit and that there may be some loss of rent occasion because his partner could not rent out the unit at that time. No value was given for this item.
c) He also claimed the diminution of the value of the unit when he sells it. This was based on his perception that he would have to disclose the odour and that could be in the vicinity of $50,000 - $100,000.
Whilst the QCAT legislation provides that compensation of this nature can be awarded in some circumstances, the Tribunal is not satisfied that:
i) The value of any compensation has been accurately quantified.
ii) There is no evidence from an independent valuer or other person to assess the Applicant’s claim for loss of value; and
iii) No evidence was put before the Tribunal to establish, by reference to receipts or actual costs paid by the Applicant, that losses have actually been incurred.
Costs
The starting position pursuant to section 102 of the QCAT Act is that each party bear its own costs unless there is some reason to award costs against a particular party.
The Respondent:
a) Failed to attend the QBSA (as it then was) arranged inspection as directed by the Tribunal; and
b) Consistently failed to comply with deadlines and directions imposed by the Tribunal.
Therefore, the Tribunal directs that the Respondent pay the Applicant’s costs. The Respondent will pay the filing fee of $275.00.
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