McBain v Queensland Building Services Authority
[2014] QCAT 574
•10 November 2014
| CITATION: | McBain v Queensland Building Services Authority [2014] QCAT 574 |
| PARTIES: | Jamie Robert McBain (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBER: | GAR384-13, BDL077-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 13 June 2014 |
| HEARD AT: | Townsville |
| DECISION OF: | Member Pennell |
| DELIVERED ON: | 10 November 2014 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The decision made by the Queensland Building and Construction Commission dated 4 March 2013 is set aside. 2. The Queensland Building and Construction Commission issue a direction to the Builder to rectify the Category 2 defect referred to in Complaint Number 1. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – defective building work – decision not to issue a direction to rectify defective building work – whether decision was reasonable Queensland Building and Construction Commission Act 1991 s 3, s 72(14), s 75(3), s 75(5), s 76 Pappas v Queensland Building Services Authority [2002] QDC 290 |
APPEARANCES and REPRESENTATIONS:
| APPLICANT: | Ms Casey Jayne McBain for the Applicant |
| RESPONDENT: | Mr Shane Budden for the Respondent |
REASON FOR DECISION
INTRODUCTION
The Applicant is Jamie Robert McBain (“the Applicant”). The Respondent is the Queensland Building and Construction Commission (“the QBCC”).
In 2010 the Applicant and his wife entered into a contract with G J Garner Homes of Townsville to build their home. The house is situated in the Townsville suburb of Bushland Beach. The franchisee for G J Garner Homes was G & J Ruddell Pty Ltd (“the Builder”).
The house was completed on 25 November 2010. A number of building defects were identified by the Applicant and the Builder, including various painting issues.
Over the next two (2) years, the Applicant and the Builder exchanged emails regarding the rectification of the defects to the painting of the house, during which time the Builder told the Applicant that the original painter went bankrupt and another painter that had been engaged ‘pulled out’.
By 19 November 2012 the painting defects had not been rectified. At this point the Applicant made a complaint to the Respondent.
The Respondent inspected the house on 21 February 2013. Present at that time was the Builder. The Respondent identified the defects to the paintwork of the house as Category 2 defects.
The Respondent determined that because the Applicant became aware of the defects in November 2010, and his complaint was not made within the period as provided for in the defects policy, then the making of a direction to rectify the painting defects would be unfair to the Builder because of that delay.[1]
[1]See Respondent’s Statement of Reasons for the Decision at page 8, paragraphs 22(f) – 22(g).
The Applicant seeks a review of the Respondent’s decision and an order that the Respondent direct the Builder to rectify the defects to the painting of the house.
REVIEW JURISDICTION
A person affected by a reviewable decision of the QBCC may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), to the Tribunal for a review of that decision.
The Tribunal’s review jurisdiction is conferred on the Tribunal by an enabling Act[2] to review a decision made, or taken to have been made, by another entity under that Act.[3]
[2]The QBCC Act is an enabling Act.
[3]QCAT Act s 17(1).
The Tribunal may exercise its review jurisdiction if a person has, under the QCAT Act applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.[4]
[4]QCAT Act s 18(1).
The Tribunal must hear and decide a review by way of a fresh hearing on the merits of the application. The purpose of the review is to produce the correct and preferable decision.[5]
[5]QCAT Act s 20.
In carrying out its functions to produce the correct and preferable decision, the Tribunal may either confirm or amend the decision; or set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the Tribunal considers appropriate.[6]
[6]QCAT Act s 24(1).
THE LEGISLATION
The Applicant’s application originally fell under the now repealed Act, the Queensland Building Services Authority Act 1991 (“QBSA Act”). The QBSA Act has since been replaced by the Queensland Building and Construction Commission Act 1991 (“QBCC Act”).
The objects of the QBCC Act are to regulate the building industry to ensure the maintenance of proper standards within the industry and to achieve a reasonable balance between the interests of building contractors and consumers.
Remedies are provided for in the QBCC Act for defective building work, along with a provision for the support, education and advice for those who undertake building work, as well as consumers.[7]
[7]QBCC Act s 3.
EVIDENCE AT THE HEARING
The procedure for a proceeding is at the discretion of the Tribunal. The Tribunal is not bound by the rules of evidence[8]; however the Tribunal must act fairly and according to the substantial merits of the case.
[8]QCAT Act s 28.
In observing the rules of natural justice, the Tribunal may inform itself in any way it considers appropriate. The Tribunal must also ensure, as far as practical, that all relevant material has been disclosed so that the Tribunal is able to reach a decision on the relevant facts.
Evidence in a hearing may be given orally or in writing; and if the Tribunal requires must be given on oath or by affidavit.[9]
[9]QCAT Act s 95.
The Tribunal must allow a party a reasonable opportunity to call or give evidence; and examine, cross-examine and re-examine witnesses; and make submissions to the Tribunal. Both parties were given that opportunity.
ISSUES CONSIDERED
In reviewing the Respondent’s decision, the issues for the Tribunal to determine were –
(a) Was the work building work?
(b) If so, was the work defective?
(c) Was the Builder responsible for the defective building work?
(d) Was the Respondent’s decision not to direct the Builder to rectify the building work reasonable in the circumstances?
Was the work building work?
The Tribunal was required to examine whether or not the work carried out by the Builder was building work.
The building work complained of was the painting of the interior of the house. The parties had entered into a contract for the construction of the house and a provision of the contract was that the interior of the house was to be painted.[10] The Builder had engaged a painter to paint the house.
[10]See Exhibit 1 – Colour Selection and Variation Form.
The Respondent took no issue with the evidence before the Tribunal that the Builder had the interior of the house painted, however the issue was not whether the interior had been painted, but rather that the painting of the interior was defective.
The Respondent’s Initial Inspection Report[11] made reference to the finding of the investigation and concluded that ‘Because of the information as above described by the owner in item 1, sub items A and B can only be categorised as (a) NOT BUILDING WORK and (b) contractual’.
[11]See SOR-7.
The term “building work” is defined in Schedule 2 of the QBCC Act and includes the erection and construction of a building. A building includes any fixed structure.
Schedule 1AA of the Queensland Building and Construction Commission Regulation 2003 (“the Regulation”) provides a clear description of the types of work or related activity which is not building work. The Regulation further provides for the scope of work for a person licensed to carry out painting or decorating. That scope of work includes preparing surfaces for the application of paint and the application of paint or other substance for protective, decorative or technical purposes, including colour matching.[12] This type of work is not part of the exclusion prescribed in Schedule 1AA.
[12]See Part 41, Painting and Decorating License.
The Tribunal does not accept the Respondent’s comments in SOR-7 that the work (painting) was not building work as provided for in the QBCC Act or Regulation.
The Tribunal is satisfied that the work carried out by the Builder was building work.
Was the work defective work?
In relation to building work, schedule 2 of the QBCC Act defines the word defective to include “faulty and unsatisfactory”.
The Applicant relied upon the findings of a report from Master Painters Australia which indicated that an extensive amount of repainting and rectification was required in order to bring the painting of the interior of the house to an acceptable standard. The Tribunal accepts this evidence and is satisfied that the building work was faulty and unsatisfactory.
Was the Applicant responsible for the defective work?
An issue for consideration by the Tribunal is whether or not the Builder was responsible for the defective building work. In determining where the responsibility lies, the Tribunal is guided by section 75(5) of the QBCC Act.
A person undertakes to carry out building work[13] if the person enters into a contract to carry it out, or submits a tender or makes an offer to carry out building work. The Respondent did not dispute that there had been contractual arrangements between the Builder and the Applicant for the construction of the house.
[13]QBCC Act ss 75 – 76 defines what Tribunal work is.
The Tribunal is further guided by section 75(3) of the QBCC Act which provides that a person carries out building work if the person carries it out personally, or directly or indirectly causes it to be carried out.
The Tribunal is satisfied that the Builder carried out the building work and was responsible for the defect in the house.
Was the Respondent’s decision not to issue a direction to the Builder to rectify the defect reasonable?
A brief chronology of the events of this matter are –
25/11/2010
Handover date. Possession of the house passed from the Builder to the Applicant. The inspection report indicated that part of the defects noted were ‘various painting issues’.
15/06/2011
The Applicant and the Builder exchanged emails. The Builder informed the Applicant that the painter ‘has done a runner on us and not taking responsibility for his work. He has refused to rectify another property as well’. The Builder went on to say ‘I will now officially write to him in regards to attending the property again - (we have to do this for BSA) and so that if he doesn't and we get someone else to rectify, we can sue him back through QCAT proceedings. We are currently sorting out the other property at the moment and once this is completed - next week, I will organize yours from there. I apologise for the time this is taking’.
22/07/2011
A report from Master Painters Australia was completed which expressed an opinion that an extensive amount of repainting and rectification was required in order to obtain a project which is finished to an acceptable standard.
22/11/2011
The Builder emailed the Applicant advising that the ‘Painter that was organized has pulled out (surprise surprise) - Graham has organised our current painter to contact you now to organise the paint as soon as possible - his name is Aaron and we will be paying him to do it and recovering the funds from the original painter as he had his chance to rectify’.
13/03/2012
The Applicant emailed the Builder enquiring when the house could be painted.
19/11/2012
The Applicant's complaint was received by the Respondent.
21/02/2013
A site inspection of the Applicant's house was carried out by the Respondent. The Builder attended this inspection but did not enter the house.
28/02/2013
The Respondent completed an Initial Inspection Report.
04/03/2013
The Respondent advised the Applicant that a direction would not be issued to the Builder as the items listed in their complaint form were not building work.
7/03/2013
The Builder emailed the Applicant advising that a ‘our painter has organized with you to carry out the work as per instructions tomorrow at 12pm’.
11/03/2013
The Applicant emailed the Builder confirming that the painter did organise with the Applicant that they would attend the Applicant's residence, however the painter did not come to the house.
The Respondent said that the Applicant was aware of the defects for at least 18 months before making the complaint. Because it was a Category 2 defect, there was an onus upon the Applicant to report the matter as provided for in the defects policy.
The Respondent determined that because of the lapse of time before the Applicant brought the defects to the Respondent’s attention, it would be unfair to direct the Builder to rectify the defects. It appears that the only reason the Respondent adopted this position was because the Applicant made a complaint outside the limitation period as provided for by the defects policy.
The defects policy is a guide when determining whether or not a direction to rectify should be given if a consumer makes an application for such direction outside the time frames as provided for in the policy.
The use of the words may issue in the defects policy places an onus upon the Respondent to consider whether or not the time frame within which the Applicant lodged the complaint impacted upon principle of fairness to the Builder.
The reference to timeframes within the defects policy as examples would appear to illustrate that there are other factors which can and will impact on the fairness of issuing a direction. The timing of the making of the complaint being one example.[14]
[14]Birrell v Queensland Building Services Authority [2013] QCAT 56.
However, the Respondent does not dispute that for a 28 month period after the Builder handed over the occupancy of the house to the Applicant (November 2010 – March 2013) there had been distinct communication between the Applicant and the Builder in a number of emails. The defective painting of the house was a live issue in those emails.
Furthermore, the Respondent does not dispute that the Builder was completely aware of the need to rectify the defects and the delay experienced by the Applicant in having the defects rectified had been because of the acquiescence of the Builder.
Having regard to all the circumstances, the Tribunal is not satisfied that the giving of a direction to rectify would have been unfair or unreasonable to the Builder.
CONCLUSION
The Builder was aware of the Applicant’s desire to have the defects rectified as early as 25 November 2010. The emails between the Builder and Applicant suggested that the Builder was not only aware of the defect, but had an intention to carry out the rectification.
What followed appears to be a concoction of errors, delays and excuses by the Builder, none of which can be attributed to the Applicant. It was the Builder’s own delay that stretched the rectification beyond six (6) months limitation period for the reporting of a Category 2 defect.
In coming to its decision not to direct the Builder to rectify the defect, the Respondent relied upon the length of time which elapsed prior to the Applicant making the complaint. Because of that delay the Respondent says that it would be unfair to give the Builder a direction to rectify the painting.[15]
[15]See Respondent’s Statement of Reasons for the Decision at page 8, paragraph 22(g).
Although the Respondent was not compelled to issue that direction, a commonsense approach was required along with considerations for justice, fairness, equity and fault. In matters such as this, it is incumbent upon the Tribunal to consider whether or not the discretion conferred in section 72(14) of the QBCC Act should be exercised, more so where the Tribunal has reached a decision different from that of the Respondent.[16]
[16]Pappas v Queensland Building Services Authority [2002] QDC 290.
The Tribunal is satisfied that in exercising its discretion, the Respondent erred by not considering all of the relevant circumstances, particularly the exchange of emails and the continued acquiescence of the Builder.
In all the circumstances, the Tribunal is not satisfied that the Respondent giving the Builder a direction to rectify the defects would be unfair to the Builder.
ORDERS
The Tribunal Orders –
1. The decision made by the Queensland Building and Construction Commission dated 4 March 2013 is set aside.
2. The Queensland Building and Construction Commission issue a direction to the Builder to rectify the Category 2 defect referred to in Complaint Number 1.
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