Matthews v Queensland Building Authority
[2011] QCAT 345
•28 June 2011
CITATION: PARTIES: | Matthews v Queensland Building Authority [2011] QCAT 345 Applicant – Phill Matthews Pty Ltd |
| v | |
| Respondent - Queensland Building Services Authority |
| APPLICATION NUMBER: | GAR020/09 and GAR257/10 |
| MATTER TYPE: | General administrative review |
| HEARING DATE: | 16 & 17 June 2011 |
| HEARD AT: | Cairns |
| DECISION OF: | Peter Apel |
| DELIVERED ON: | 28 June 2011 |
| DELIVERED AT: | In Chambers |
ORDERS MADE: | 1. That Direction to Rectify and/or Complete number 33813 issued by the QBSA on 14 November 2009 be amended to Direct the Applicant to undertake rectification of the following defects: - (i) Internal doors throughout the dwelling have buckled/deflected and do not close in a trade like manner. These include doors to main bedroom, bedroom two, bedroom three and ensuite bedroom three. (ii) Exterior doors deflecting and buckled to the following areas and failed to prevent water ingress: entry, bedroom three, bedroom three ensuite and main entrance doors and fail to operate in a satisfactory manner. 2. That Queensland Civil and Administrative Tribunal Case number GAR 257/10 be listed for a mention for Directions on a date not before 31 August 2011; 3. There is no order as to costs. |
| CATCHWORDS : | Direction to rectify; Defective work; Cause of defect; Scope of Builder’s responsibility under the Building Contract |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Phillip John Matthews representing the Applicant Company, with the assistance of Mr Walton from Access Dispute Resolution Pty Ltd assisting the Applicant as a Mackenzie friend (by consent) |
| RESPONDENT: | Mr Robert Lovrincevic Solicitor |
REASONS FOR DECISION
This is a decision in matters GAR020/09 and GAR257/10.
The Applicant is seeking review of (in matter 020/09) a Direction to rectify issued by the Queensland Building Services Authority (“QBSA”) on 14 November 2009; and (in matter 257/10) a consequential scope of works issued for the purpose of calling tenders for rectification works.
The two matters arise from the one set of facts and appropriately should be and have been heard together.
I have been informed by the parties that it is accepted that matter 257/10 will be effectively determined by the decision in matter 020/09, that is if the finding in matter 020/09 is in favour of the Applicant, then the requirement for the scope of works will not arise. Conversely if the finding is in favour of the Respondent, the parties have indicated that they have reached substantial agreement on an amended wording for the scope of works such that they anticipate that the matter will be able to be resolved by consent in short order following this Decision. I will therefore be directing my attention to matter 020/09.
The Applicant seeks review pursuant to Section 86 of the Queensland Building Services Authority Act 1991 (“the QBSA Act”) and is to be heard in this Tribunal pursuant to Section 17 of the Queensland Civil and Administrative Tribunal Act 2009.
The parties acknowledged at the outset, and I find that the Direction issued by the QBSA on 14 November 2009 is a reviewable decision and that this Tribunal has jurisdiction to review that decision.
Under the Queensland Civil and Administrative Tribunal Act (Section 24) the Tribunal may in a proceeding for a review of a reviewable decision: -
confirm or amend the decision under review;
set aside the decision under review and substitute its own decision; or
set aside the decision under review and return the matter for reconsideration to the decision maker for decision, with directions the Tribunal considers appropriate.
The Tribunal stands in the position of the Authority and remakes the decision as at the date of the Hearing, and has effect from when the reviewable decision takes or took effect.
The Respondent has drawn my attention to the case of Dixon Projects Pty Ltd ats Queensland Building Services Authority [2009] CCT – QT104-07. That case outlines the principles to be applied by the Tribunal, those principles being: -
(1)The Tribunal in exercise of its discretion pursuant to Section 72 of the Act stands in the position of the Respondent;
(2)The Tribunal must consider the competing interests of the parties involved and factors such as the blameworthiness of the owners and the cause of the defective building work are relevant. The balancing interests of the Building Contractors and Consumers is specifically provided for in Section 3 of the QBSA Act;
(3)In exercising its discretion the Tribunal must give consideration to the circumstances mentioned in the Board’s policy (reference to the QBSA Defects Policy); and
(4)The Tribunal must take into account all of the evidence including the circumstances raised at the Tribunal Hearing.
The Direction issued on 14 November 2009 directed the Applicant to undertake rectification of the following defects within fourteen (14) days: -
(1)cracks occur to junction of the wall and ceiling to family room, main bathroom, bedroom three and bedroom three ensuite;
(2)internal doors throughout the dwelling have buckled/deflected and do not close in a trade like manner. These include doors to main bathroom, bedroom two, bedroom three and ensuite bedroom three;
(3)exterior doors deflecting and buckled to the following areas and fail to prevent water ingress: entry, bedroom three, bedroom three ensuite and main entrance doors and fail to operate in a satisfactory manner;
[10] In short, the factual matrix behind this matter is as follows:
(a)Michelle Castley-Wright (“the owner”) met Mr Phil Matthews, the Principal of the Applicant Company socially at some time during 2007. The owner was at that time looking to build on land situated at 34 Savannah Street Palm Cove. The Applicant invited the owner to look at work that Mr Matthews was doing at his own residence near Port Douglas. The owner liked the look of the work Mr Matthews had been doing and there were several visits by the owner to Mr Matthews residence resulting in Mr Matthews (through his company) agreeing to build the owners new home.
(b)During the lead up to the contract, there were discussions between the owner and Mr Matthews regarding the use of timber as a feature in the new home. The owner indicated to Mr Matthews that she liked the strong red colours seen in some timbers, and disliked the yellow or whiter shades seen in other timbers.
(c) Notwithstanding that the contract was entered into on 23 November 2007 by the owner, the owner’s husband (Noel Castley-Wright) became intimately involved with the building project, being present at the site regularly throughout the project, and undertaking much of the communication between (and on behalf of) the owner, and the builder.
(d) The construction specification required a number of bi-fold doors to be installed in the premises, some as internal doors, others for external use e.g. front entry, etc.
(e) The Builder selected the timber to be used for the doors, and had that timber transported to the site where it remained for some extended period of time during the construction project. It was subsequently removed from the site and taken to a joinery for manufacture into the required doors.
(f)During the latter stage of the building project, the relationship between the owner and the Builder broke down significantly, it being evident that communication and co-operation between the parties was extremely poor. Threats and defensive conduct characterised the relationship at that time.
(g)Prior to practical completion, the owner commissioned an independent Building Inspector to inspect the house, and from that inspection generated a list of defects to be addressed (“the Hewitt report”).
(h)Amongst the matters identified in the Hewitt report was cracking in the gyproc ceiling where it meets the walls in most rooms; and that there had been significant shrinkage of the timber in the doors throughout the house, the wood shrinkage being to the point that the doors had a gap between them and did not fit squarely or seal/close/lock correctly.
The Builder attended at the property, made repairs to the ceiling cracks through the application of sealant and touch up repainting as required, and to make adjustments to the doors by installing spacers at the door fittings, so that the doors all opened and closed effectively.
(j) Practical completion was effected on the 7 October 2008.
(k) On 2 December 2008 the Authority received a complaint from the owner in relation to alleged defective work at the property.
(l)On 7 January 2009 the Authority issued a letter to the Applicant advising that an inspection of the property would be conducted on the 15 September 2009, inviting the Applicant or a Representative to attend.
(m) Following that inspection of the property, the Authority issued a letter on 6 February 2010 detailing ten items for the Builder to rectify.
(n) On 19 and 28 May 2010 the Cairns area Manager of the Authority, (Mr Thomas Sargent) conducted further inspections of the property, and as a result of those inspections on 28th May 2010 caused a letter to be sent to the Applicant identifying an additional nine items to be addressed by the Builder. (the second request to rectify)
(o)On 12 June 2010 a further inspection was conducted by Mr Sargent with respect to second request to rectify.
(p)On 10 July 2010 the Authority issued the Applicant with a Direction to Rectify.
(q)On 27 August 2010 the Authority issued the Applicant with a Direction to Rectify in respect of different matters to those referred to in the Direction of 10 July 2010
(r) On 3 November 2010 Mr Sargent undertook a further inspection of the property and noted problems with movement cracks to the wall/ceiling junction, problems with the main lounge doors, and problems with the exterior doors to main bedroom and family room. As a result of this inspection and the items noted, the Direction of 14 November 2010 was issued to the Applicant.
Basis of Applicant’s Dispute regarding the Direction
[11] The Applicant disputes the Direction to Rectify on the following grounds: -
(a) Ceiling Cracks;
The building specification involves the gyproc ceiling abutting directly to the rendered concrete masonry walls. There is no cornice moulding and as such, the plaster ceiling is to abut directly to the wall. Given the differential movement in the structures (concrete masonry walls, steel roof trusses with steel batons affixed for attachment of the gyproc plaster board ceiling) it is inevitable that there will be movement between the wall and the plaster board and also, given that the walls have been rendered, the walls are not perfectly straight where they abut the ceiling, such that there are places where there are greater and lesser gaps between the wall and ceiling. The Applicant’s contention is that given this design, and the inevitability of differential movement between the ceiling and walls, some cracking is inevitable and that what cracking has occurred, is minor and well within accepted industry tolerances.
(b) Warping and deflection of timber doors internal and external
The contract specification required the Builder to coat/seal the timber doors with two coats of tung oil or intergrain. The Applicant contends that he did as required of him under the contract, but was aware right from the start that that would not be a sufficient final treatment for the doors, and to avoid deterioration of the timber thorough sealing of the doors was essential. Further, the Applicant asserts that notwithstanding the specification in the contract, it was clearly understood by the owner that additional treatment of the timber would be required (and regular treatments thereafter by way of maintenance) to avoid problems with the doors. In short, the Builder had done what he was obliged to do under the contract, and subsequent problems with the doors are as a result of the owner failing to further treat and maintain the doors.
Ceiling cracks
[12] The existence of cracking to the gyproc ceiling was identified in the Hewitt Report. Mr Matthews said he attended at the house, and addressed the issues in the Hewitt Report, which would by implication indicate that rectifying visible cracks in the ceiling/wall juncture were attended to at that time. Mr Matthews evidence is that at the time of practical completion, he specifically asked the owner to take a walk through the house, look carefully and tell him if there were any more matters that required his attention. His evidence is that the owner did so, and later that day accepted practical completion without notifying the Builder of any concerns or defect issues.
[13] The Builder did attend at the site and undertake rectification works prior to practical completion to address (amongst other matters) the ceiling crack issue.
[14] The only other evidence with regard to the ceiling cracking is that given by the witness Thomas Sargent on behalf of the Authority. Mr Sargent’s evidence with regard to the cracking was brief, confirming that the defect was cosmetic in nature and to the effect that the complaint of that defect was made within the time frame required by the Authority under its defects policy.
[14] Mr Matthews in his evidence stated that he attended at the house with Mr Sargent and Mr Sargent pointed out some cracks to him. Mr Matthews indicated that he told Mr Sargent that the cracking would be inevitable given the building design, and that it is of such a minor nature that it is within accepted industry tolerances. His evidence was that Mr Sargent appealed to him that it is such a simple and quick matter to address the cracking, why not do it and keep the home owner satisfied. This discussion was not put to Mr Sargent whilst he was giving his evidence and it would have been instructive to have heard his response on that point.
[15] I note that there has been no photographic evidence provided as part of the Respondent’s case showing the extent of the alleged cracking problem, and as such it is not possible for me to form a view as to the extent or seriousness of the alleged cracking. There is no evidence before me as to how many cracks are being referred to, in how many rooms the cracks may occur or the size of the cracks being referred to.
[16] The question of whether the cracking is of a level that is acceptable in the industry (as raised by Mr Matthews) has not been addressed at all in the Respondent’s evidence.
[20] I have no evidence to: -
(a)contradict the Builders assertion that the cracking is within accepted industry tolerances; and
(b) determine the quantity and magnitude of the cracking referred to.
[21] In the absence of such evidence, I am not prepared to make a Direction to do further works in terms that are as vague as those in the Direction under review, and neither do I have evidence before me to permit a more specific Direction to be made. Under the circumstances, I will not order rectification of the cracking to the ceiling.
[22]Timber Doors
Evidence regarding the timber doors occupied most of the Tribunal’s attention throughout this Hearing. The position stated by the Authority was that:
(1)the timber selected by the Builder was unsuitable for its purpose, such that the problems experienced with warping and deflection of the doors was inevitable;
(2)the ongoing problems the owner has had with the warping and deflection of the doors such that they are unable from time to time to be opened or closed properly constitutes defective building work within the terms of the authorities defects policy and the QBSA Act, and that the Builder was responsible for the defective building work. Given the circumstances that (on the owner’s evidence) the property could not be secured nor did the doors prevent water ingress, that the decision to direct rectification was reasonable.
[23] Placed into evidence at the Hearing was a copy of the contract dated 27 November 2007 for the construction of the dwelling at 34 Savannah Street Palm Cove. I have made a detailed examination of that contract, particularly the contract specifications.
[24] In the contract specifications, the requirement for the doors reads as follows:
“timber external and internal doors made from Australian hardwood to match window timbers etc. Final design to be discussed with client.”
“No architraves or skirtings allowed for”.
[25] On the next page of the specifications referring to the painting requirement, the specification provided (inter alia) for two coats of intergrain or tung oil to woodwork.
[26] It is accepted that the timber that was used in the doors was Kamerere. It is accepted by all parties that this timber came from New Guinea.
[27] On its face, this would indicate that the Builder has failed to supply the timber required by the Specification to the contract. The Builder’s evidence in this regard is however instructive. The Builder states that during the precontractual discussions with the owner, the owner identified the colour of the timber features she wished to have within her home. With this knowledge, the Builder attended upon an experienced timber merchant, where he sought out a hardwood timber suitable for joinery, containing a rich red colour. The Builder’s evidence is that the timber merchant pointed to a particular bundle of sawn timber, and stated that he would recommend the use of that timber, explaining it was a eucalypt species that grows in northern Australia. The Builder states that he took the timber merchant at his word, and referred to the timber as “Queensland Redwood”. The timber was subsequently purchased, and delivered to the Palm Cove site. At a later date the timber was taken to a joinery for manufacture into the bi fold doors for use throughout the residence.
[28] It was only at a much later date, after the doors had been built and installed, that a Building Inspector engaged by the Authority asked the owner what type of timber had been used. The owner indicated they understood it was “Queensland Redwood” and the Inspector stated that he did not know of a timber by that name. This sparked enquiries to the Builder who in turn contacted the timber merchant who had supplied the timber. At that time, the merchant informed him that the timber was called Kamarere, and the particular batch that had been supplied had been sourced from New Guinea.
[29] Evidence was called from Mr Matthew Dempsey, the timber merchant involved. He confirmed the timber had been sourced from New Guinea, but went on to say that it does also grow in Australia. He went on to say that it is a timber that he is aware is suitable for joinery work and he had used it himself quite successfully making timber windows for use in cottages. Mr Dempsey went on to state that it was critical for the timber to be comprehensively sealed against exposure to the outside environment as soon as possible after the manufacture of the timber (into windows or doors as required) had been completed. Mr Dempsey stated that all timbers will either absorb or lose moisture, causing them to swell or shrink to reach a balance with the humidity of the outside air to which they are exposed. Sealing the timber as soon as manufacture is complete stabilises the timber against shrinkage and swelling. Mr Dempsey was asked whether tung oil was an appropriate sealant, he responded that it is not a product that he uses himself and he doesn’t like using, mainly because he uses an alternate product which has proven itself to be very effective.
[30]The Authority called evidence from Colin MacKenzie, an expert working in the timber industry. Mr MacKenzie gave evidence as to the durability of different types of timbers, and their suitability for use in internal and external applications.
[31] Mr MacKenzie indicated that he had inspected the property at 34 Savannah Street and looked at the internal and external doors. He provided a report as a result of that inspection, which has been placed into evidence. In short, Mr MacKenzie indicated that kamerere is not a suitable timber for the application to which it has been applied in this case. He stated that at best, the timber would have a reliable durability of no more that seven years, though there was the possibility that that lifespan could be extended if the timber was chemically treated however the joinery works in this particular case were undertaken using the heartwood of the tree, and the heartwood could not be effectively chemically treated. He further confirmed that this timber was not chemically treated.
[32] The evidence of Mr MacKenzie as to the unsuitability of kamerere for the timber doors was responded to by the Applicant through the evidence of Mr Dempsey (who gave evidence that he has successfully used kamerere in external applications, i.e. windows) and also through evidence given by Marcus Johnston as the Manager of a business manufacturing joinery doors, being the company that supplies doors to the retailer Corinthian Doors. Mr Johnson’s evidence was that his company frequently used timbers of category four durability (as kamerere is alleged to be) and that they have a very low incident of failure in their door products. Mr Johnston emphasised however that appropriate sealing of the door promptly upon installation is critical.
[33] The argument raised by the Applicant in this regard is that there is accepted, wide spread established industry practice of using doors made of a low durability level, timber and that as such, the doors he supplied in this instance should be accepted as fit for their purpose.
[34] The question however of whether the failure of the doors was inevitable (as suggested by Mr MacKenzie) due to there being of a low durability grade of timber, or whether the failure of the doors has been the result of inadequate sealing and surface treatment, becomes academic. It is accepted that the doors have substantially warped and deflected, and consistent with the evidence of the Applicant, the timber merchant Dempsey, the door manufacturer Johnston and the expert Mr MacKenzie, prompt, comprehensive and effective sealing of the doors is a fundamental requirement if failure through warping and twisting is to be avoided.
[35] This is the substance of the dispute regarding the doors – the sealing of the doors, its adequacy and whose responsibility that was.
[36] The evidence of Mr Matthews is of importance in this regard. Mr Matthews stated that promptly upon the doors being hung they were sealed with a minimum of two coats of tung oil. Tung oil was identified as being an organic substance which is rubbed into the doors as a sealant, and also to bring out the timber colour. Mr Matthews indicated that tung oil was selected by the owner over the alternative, intergrain, because of the nice colour it brought out in the timber.
[37] The Applicant’s evidence is that he put the provision of two coats of tung oil or intergrain into the contract specification as he knew some sealing of the doors would be necessary to preserve them up to the point of practical completion, when they become the home owners responsibility. Mr Matthews stated that in precontractual negotiations, the owner had made it clear to him that she was working to a budget, and that she was willing to become personally involved in doing some of the work in the building process. Mr Matthews evidence is that he explained that additional treatments of the timber doors would be required to be attended to promptly by the home owner. In Mr Matthews evidence, he refers to various comments made to the effect that at least five more coats of tung oil would be required, possibly up to ten coats. In his evidence, Mr Matthews indicated that how much would be required would depend on the skill of the person applying it – how much oil was rubbed in, how thickly it was applied etc., and what final colour and level of finish the owner wanted however it was clear that significantly more than the applied two coats would be required. Mr Matthews evidence is that what he put in the contract specification was only intended to be sufficient to protect the doors up to the point of practical completion, and that the home owner knew that they would have to be promptly and thereafter regularly apply further coats.
[38] The owner conversely in her evidence stated that she had no recollection of any discussions of that nature at all, and that Mr Matthews did not tell her until about the time of practical completion, that he thought further treatments of the timber would be required. Furthermore the owner said that she had no input in respect of much of the contract specifications as she trusted the builder to put in what she considered “standard inclusions” and that the specification that the doors would receive two coast of sealant is an example of this.
[39] Mr Noel Castley-Wright also gave evidence, however I have not found his evidence to be of any real assistance, being argumentative and self-serving, which undermined any weight being given to it.
[40] Relevantly, the Builder stated in his evidence that after the doors had been hung, and well before practical completion he became aware that these doors were likely to become a problem very quickly if they did not receive a lot of sealing treatment. For this reason he instructed his workers (including his son who also gave evidence verifying this point) that numerous further coats of oil should be applied to the doors. The Applicant was unable to be specific about exactly how many coats had been applied and how they had been applied. At various times the evidence was that the doors had been completely coated, at other times it was indicated that the doors had been completely coated but perhaps not under the door handles and hinges. There was some question as to whether the doors had been painted on their tops and bottoms, given that some of the doors were fitted so close to the floor that it would not have been possible to paint the under edge. Mr Matthews then indicated that at least three of the doors had been removed during the re coating process, so that they could be thoroughly re coated. Evidence on this point was confused.
[41] Mr Matthews also stated that he continued to direct his workers to apply additional coats until he was satisfied with the finish.
[42] It appears to be accepted by all parties that it is the failure to adequately seal the doors against the environment that has led to the warping and twisting occurring. (the issue of the durability of the timber then only being a question of how soon the deterioration would have occurred) Mr Matthews acknowledged that now the doors may well be beyond salvage and repair, as he understands that other than for a coat of lacquer to outside of the exterior doors, the doors have now been untreated for over 18 months.
[43] If it is the case that the home owner knew and accepted that the finish being provided by the Builder at practical completion was not a finished product so far as the sealing of the doors is concerned, and that the sealing of the doors from that point was the owner’s responsibility, then the failure by the home owner to apply appropriate sealing must be the source of the defect identified by the Authority, in which case the Direction would be unreasonable.
[44] Conversely, if it was not the home owner’s responsibility under the contract to undertake further treatment, then it is reasonable for the owner to expect that the finished product at practical completion would have a reasonable level of durability such that immediate treatment and maintenance would not have been required.
[45] It is acknowledged that the Builder did from time to time up to (and for a short period after) practical completion attend at the premises, and adjust the doors to make them operational. The fact is though that they became inoperative again and remain in that condition to date.
[46] Looking at the contract, there is no clear statement at all alerting the home owner to the fact that the product at handover (so far as the sealing of the doors is concerned) was not a finished product. I observe at the contract specifications in the “doors and mouldings” provision, specifically identified “no architraves or skirtings allowed for”. Whilst that is not directly relevant to the present matter, it shows that the contract at least in that provision, pointed out to the home owner what was not being included. I would expect if final sealing of the doors had not been included, the contract would have said so.
[47] The Applicant has been unable to provide any documentary evidence by way of correspondence, emails, diary notes etc. of any communication to the home owner prior to or even for some time post practical completion, pointing out (as the applicant alleges) that the sealing of the doors is incomplete, and that it is the home owner’s responsibility to undertake those sealing works promptly and diligently.
[48] The Builder is in a better position of skill and knowledge than the owner to be aware of the risks posed by failing to properly treat the timber, and I would expect that if that risk is to have been shifted to be the owner’s responsibility rather than the Builders, that the contract, or at the very least correspondence between the parties, would very clearly have identified that. Prudent business practice would be that the home owner’s acknowledgement in that regard would also have been obtained. In the present case, we have none of this.
[49]The contract on its face does not indicate that this aspect of the works was to be incomplete, or not fully provided at the point of completion, and accordingly, I find it is the Applicant’s responsibility to have ensured the appropriate and correct treatment of the timber to a finished standard.
[50] Accordingly I find, taking into account the terms of the Authorities Defects Policy and the evidence I have heard, that the building works in so far as they are comprised by the interior and exterior timber doors at the dwelling are defective, I find that the contractor is responsible for the defective building work and I find that the Direction to Rectify is required.
[51] Consequently I Order
that Direction to Rectify and/or Complete number 33813 issued by the QBSA on 14 November 2009 be amended to Direct the Applicant to undertake rectification of the following defects: -
(i)Internal doors throughout the dwelling have buckled/deflected and do not close in a trade like manner. These include doors to main bedroom, bedroom two, bedroom three and ensuite bedroom three.
(ii)Exterior doors deflecting and buckled to the following areas and failed to prevent water ingress: entry, bedroom three, bedroom three ensuite and main entrance doors and fail to operate in a satisfactory manner.
That Queensland Civil and Administrative Tribunal Case number GAR 257/10 be listed for a mention for Directions on a date not before 31 August 2011;
There is no order as to costs.
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