Matrix Projects (Qld) Pty Ltd v Queensland Building Services Authority and Body Corporate for the Beach Club Palm Cove Apartm
[2010] QCAT 321
•30 June 2010
CITATION: PARTIES: | Matrix Projects (Qld) Pty Ltd v Queensland Building Services Authority and Body Corporate for The Beach Club Palm Cove Apartm [2010] QCAT 321 Matrix Projects (Qld) Pty Ltd |
| v | |
| Queensland Building Services Authority and Body Corporate for The Beach Club Palm Cove Apartm |
| APPLICATION NUMBER: | OCR058-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION ON THE PAPERS OF: | J Bertelsen |
| DELIVERED ON: | 30 June 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Applicant’s application that the Tribunal invite the First Respondent pursuant to section 23 of the Queensland Civil and Administrative Tribunal Act 2009 to reconsider its direction to rectify of 25 November 2009 is dismissed. |
| CATCHWORDS : | Section 23 of the Queensland Civil and Administrative Tribunal Act 2009; inviting decision maker to reconsider decision |
APPEARANCES and REPRESENTATION (if any):
| Decision on the papers. |
REASONS FOR DECISION
Application
This is an application by the Applicant for an invitation to be made by the Tribunal pursuant to section 23 of the QCAT Act that the First Respondent reconsider its decision to issue direction to rectify and/or complete number 33861.
Background
On 25 November 2009 the BSA issued a direction to rectify and/or complete number 33861 to Matrix Projects (Qld) Pty Ltd (“Matrix”), namely:
“site address: stages 2, 3 and 4 – Beach Club Apartments, 123 Williams Esplanade, Palm Cove, QLD 4879
(1) Air conditioning refrigerant line/piping installation is not compliant with the air conditioning manufacturers manual and installation instructions, including by:
(a)Insulating the liquid and gas lines/piping separately; and
(b)Using pipe insulation 20mm or thicker”
An application to review that decision was filed by Matrix on 22 December 2009 seeking:
(1) Decision to issue the direction be set aside
(2) BSA to pay costs.
The assertions were:
(1) QBSA had no discretion to issue the direction
(2) QBSA failed to exercise its discretion in accordance with accepted principles
(3) The building work was not defective or incomplete
(4) Alternatively, if the building work was defective or incomplete, the QBSA ought not to have exercised its discretion to issue the direction where rectification would not solve the problem i.e. condensation complained of.
The same day Matrix filed an application to stay QBSA’s decision of 25/11/09 stating, inter alia, an application to review had been filed and that the applicant would be adversely affected if not granted. The application to stay was set down initially for hearing on 7 January 2010 and in due course for 25 January 2010. In the meantime the parties by consent agreed to an order staying the operation of QBSA direction of 25 November 2009. The QBSA as Respondent requested particulars of the air conditioning installed and copies of manuals used by the Applicant to install that air conditioning at the subject premises given the Applicants assertion that QBSA had been supplied and relied on installation manuals not applicable to the air conditioning system actually installed. The QBSA then by letter dated 5 February 2010 provided a copy of its statement of reasons for the 25 November 2009 decision.
On 15 February 2010 the Body Corporate for the Beach Club Palm Cove Apartments CTS 350537 filed an application to be joined as a party to the proceeding. The QBSA did not object. On 8 March 2010 the Tribunal directed that the Body Corporate be joined as Second Respondent. At the same time the Applicant was directed to file and serve its application for miscellaneous matters with the Second Respondent to respond and thereafter for such application to be determined on the papers.
The Applicants application for miscellaneous matters is effectively its application that the Tribunal invite the QBSA to reconsider its decision of 25 November 09 i.e. the direction to the Applicant to rectify. The First Respondent, QBSA, by letter dated 9 February 2010 stated as follows:
“The Authority consents to an order being made… the Authority be invited to reconsider its decision pursuant to section 23(1) of the QCAT Act”
It was only necessary for the Second Respondent, the Body Corporate, to respond. It asserted that the primary application to review ought to proceed and be determined by the Tribunal: that no useful purpose would be served by inviting the first Respondent to reconsider its decision.
Evidence
At issue is whether the First Respondents conclusion that “air conditioning refrigerant line/piping installation is not compliant with the air conditioning manufacturers manual and installation instructions, including by:
- Insulating the liquid and gas lines/piping separately; and
- Using pipe insulation 20mm or thicker
ought to be reconsidered by the First Respondent.
The air-conditioning issue was the subject of prior proceedings as follows:
a. In April 2008, the Body Corporate complained to the BSA about the air conditioning and particularly water damage.
b. On 5 May 2009 the First Respondent QBSA decided not to issue a direction to rectify
c. In August 2009 the Body Corporate applied for review of that decision (matter QR129-09)
d. On 14 July 2009 the First Respondent QBSA filed its statement of reasons for its decision not to issue
- On 16 October 2009 the Body Corporate review application was withdrawn and the First Respondent issued direction to rectify number 33861 which ultimately gave rise to proceedings in this Tribunal.
10. The First Respondent, QBSA, has thus far made a decision not to issue a direction to rectify, filed its reasons in the former Tribunal, been the subject of an application to review it’s decision, consented to that application to review being withdrawn and subsequently issued a direction to rectify number 33867. In these current QCAT proceedings the First Respondent has agreed to a stay of its 25 November 09 direction to rectify and more recently consented to an order being made to the effect that it reconsider its own decision.
11. The First Respondent, in its decision of 14 July 2009 (“initial decision”) reasoned that the design and installation of the air conditioning system complied with the intent that it not be operated, essentially, 24 hours a day and that such operation was causative of damaging condensation. The First Respondent in making that initial decision had access to and the benefit of its own inspection of 24 June 2008, report of GDH dated 3 April 2009 and reference to Daikin installation manual, page 46, “refrigerant pipe work” and Emailair installation manual page 3, “refrigerant lines”. In its decision of 25 November 2009 (“subsequent decision”) the First Respondent again relied on the same inspection, report and manuals but on that occasion also had the benefit of further material supplied by the Body Corporate.
12. In its August 2009 application for review the Body Corporate attacked the initial decision stating that the technical specification for air conditioning did not state that air conditioning was not to operate for 24 hours a day or suggesting periodic use only. It asserted refrigerant pipes had not been installed in accordance with required and good building practice and manufacturers instructions; that flow and return refrigerant lines were incorrectly insulated; that consequently the air conditioning inverter units were not operating at their correct design levels; that the allegation that condensation was caused by constant use was irrelevant; that even if such allegation were true condensation formed elsewhere under normal circumstances.
13. Additionally the Body Corporate provided statements by the complex General Manager and Office Manager stating it was common practice to operate air conditioners in accommodation units constantly, particularly during November to April and that a majority of guests leave air conditioners on constantly even when not in their units.
14. The Applicant in its current application suggests firstly that the installation manuals (Daikin and Emailair) relied upon by the First Respondent in making its subsequent decision were incorrect in that no Emailair air conditioners were ever installed and that the Daikin manuals used were not the proper Daikin manuals in any event and secondly that both brand manuals did not require the works directed in the subsequent decision to rectify.
15. These assertions are an over simplification. Firstly the Second Respondent deposed in the affidavit of Anthony Angelides sworn 18 August 2009 to the effect that “all air conditioning, plant and equipment installed at the beach club are Daikin products”. The inclusion of a reference to Emailair installation manual in confirming the view that the Applicant had failed to install the air conditioning correctly does not vitiate that view. Moreover, GDH report of 3 April 2009 states “the practice of installing both the refrigerant liquid and gas line within the same tube installation (which is what was done here) is not in accordance with the air conditioning plant manufacturers installation instructions, as gas and liquid pipes are required to be insulated independently”. There was no suggestion or assertion that GDH referenced the wrong manuals.
16. Secondly the Applicant’s suggestion that neither Daikin or Emailair manuals would require the directed work to be done is not borne out by the GDH’s report as quoted above.
17. It is clear the First Respondent has based its subsequent decision on sufficient evidence to enable it to make that decision. The Applicant’s assertions regarding possible reliance on incorrect installation manuals do not proffer any reasoning as to how that might have led the First Respondent to a flawed conclusion.
18. The Applicant was well aware of the commercial application of the air conditioning in a tropical location. To that extent it had a responsibility to provide a soundly engineered and reliable installation. That is clearly not the case. There is no omission, inclusion or lack of deliberation in the First Respondent’s subsequent decision such as to warrant its reconsideration of that decision. The First Respondent made a second decision based on all that material available to it at the time of making it’s initial decision as well as material subsequently provided to it particularly by the Body Corporate and then proceeded to make its subsequent decision. Both the First Respondent’s decisions disclose consideration of a large volume of evidence. There would appear to be no useful purpose served by having the First Respondent consider the circumstances for yet a third time. The Tribunal ought properly review the First Respondent’s decision in its entirety and make a final determination. The application that the Tribunal invite the First Respondent to reconsider its decision is dismissed.
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