McCarthy v Queensland Building and Construction Commission
[2023] QCAT 365
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
McCarthy v Queensland Building and Construction Commission [2023] QCAT 365
PARTIES:
MARIA LOUISE MCCARTY (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
GAR263-22
MATTER TYPE:
General administrative review matters
DELIVERED ON:
14 September 2023
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Richard Oliver
ORDERS:
1. The decision of the respondent is set aside.
2. The matter is returned to the decision maker for reconsideration in accordance with the following directions:
(a) The Commission must carry out a further inspection and provide a further report as to the following matters:
(i) whether the subfloor upon which the tiles are fixed, is particle board flooring or tongue and groove;
(ii) determine the type of adhesive used to fix the tiles to subfloor;
(iii) whether the adhesive used to fix the tiles to the subfloor, if a particle board subfloor, complies with the manufacturers specifications and produce a copy of the specification;
(iv) whether the adhesive used to fix the tiles to the subfloor, if a tongue and groove subfloor, complies with the manufacturers specifications and produce a copy of the specification
(v) if a tongue and groove subfloor is it proper building practice to fix tiles directly to the tongue and groove floor;
(vi) if a tongue and groove floor whether any underlay should have been used upon which the tiles were to be laid;
(vii) whether the flooring in the wet areas should have underlay;
(viii) whether flooring in the wet areas are waterproofed and whether the builder obtained a Form 15 from the waterproofer.
(b) The report to be prepared and a copy provided to the applicant by 30 November 2023;
CATCHWORDS:
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COMPLAINT ABOUT BUILDIG WORK - REVIEW OF DECISION – REJECTON OF COMPLAINT – where applicant purchased a newly constructed house from the respondent builder – where movement of the flooring system causing tile grout to break out of the joints in the ceramic floor tiles – where floor exhibited signs of movement – where ceramic floor tiles fixed directly to timber subfloor – where complaint made to the respondent about the movement in the floor causing grout to break out – where complaint rejected by the respondent – whether subfloor consisted of particle board flooring or tongue and groove – whether underlay should have been used between the subfloor and the ceramic tiles – whether adhesive used to fix the tiles complies with good building practice and manufacturers specifications.
Queensland Civil and Administrative Tribunal Act 2009 sections 20 and 24
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
In December 2020 the applicant and her partner purchased a residential property on Russell Island in Moreton Bay. The house was constructed in 2019 by the builder from whom the applicant purchased the house, Mr Sutherland. The builder and/or his son lived in the house until it was sold to the applicant.
Except for the three bedrooms, the remainder of the internal floor surface was tiled with ceramic tiles. They were glued directly to what was thought to be particle board sheet flooring system using a 10mm notched trowel.[1] This was to ensure there was sufficient adhesive under the tile to fix it to the floor. This is an acceptable practice according to the manufacturer’s specification.[2] The flooring system is then fixed directly to the metal subfloor joist. Once fixed and dried, the tiles are grouted.
[1]Statement of Reasons, page 133 – Resolution Services Report dated 02.06.2022
[2]Ibid.
After moving into the house, the applicant had a number of personal and family trauma’s with which she had to cope as well as settling into the new home. Within about six months of moving in she noticed the tiling grout from the tiles starting to crack and break in various areas. She also notice “creaking” in the floor when walking on it suggesting movement of the flooring system.
She contacted the vendor/builder to discuss the issues with the grout, sent photographs and a floor plan of the problem areas.[3] Despite these communications with him, the builder did not respond in any meaningful way, inspect the floor, or take any action to remedy the problem.
[3]Statement of Reasons page 42
On 29 November 2020 the applicant lodged a Complaint about the floor tiling and grout with the Queensland Building Construction Commission. In a letter accompanying the complaint she made the following points:
·she noticed creaking of the tiles and the floor under carpeted areas;
·movement of the tiles gives a sense of the tiles not properly adhered to the subfloor;
·grout finish is very uneven and varying colours of grey over the entire floors and no evidence of tiles being sealed;
·complaints about flashing around the window.
The Commission engaged Resolution Services to provide a report to the applicant’s specific complaints. There were six complaints identified for inspection and report as notified to the builder. They were:
Item
Date Noticed
Item Location
Item Description
1
01/02/2021
Living room
Creaking of tiles & start of grout break down.
2
01/01/2021
Living room, dining room
Creaking of tiles & start of grout breakdown.
3
01/02/2021
Bathroom ensuite
Ensuite shower grout breakdown
4
01/03/2021
Kitchen
Grout breakdown
5
01/03/2021
Laundry
Grout breakdown
6
01/01/2021
Windows
Unfinished window trims
Mr Ratcliffe of Resolution Service conducted an inspection of the works on 1 June 2022. He has provided a statement filed on 5 April 2023 confirming the content of this report provided to the Commission and the applicant.
His report address each of the applicant’s complaints listed above. Importantly, as already mentioned, he seemed to be satisfied that the method of fixing the tiles directly to the particle board subfloor is permissible under the manufacturers specifications. He examined the tiles in the problem areas as directed by the applicant, used a taping device to determine if they were fixed firmly to the subfloor and checked for loose tiles. In respect of each of the complaint areas he did not find any dislodged or loose tiles. He did not find any with sharp edges which might cause a hazard to health. He did not note any creaking or movement of the floor when walking around on it.
He inspected the ensuite and noted some loose grout to the floor tiles. The floor of the shower is on a raised bed with the balance of the bathroom the same as the rest of the house. Again using the tapping device and there were no loose tiles or tiles dislodged.
He did notice grout breaking out in various places but the tiles all seemed to be fixed in place, with none dislodged. The same was for the kitchen. Furthermore, the gap between the tiles, the grouted area, were all within tolerances.
He checked the outside window with the unfinished window trim and noted that the “sheeting has been completed to fit around the window and has been allowed a small expansion joint”. When inspected he did not see any evidence of water entry.
Overall, Mr Ratcliffe, although noting the grout problem, could not find any structural defects. Accordingly, relying on that report the Commission made a decision not to take any action in respect of the complaint or issue a direction to rectify to the builder.
It also relied on the fact that as the complaint was not made within 12 months of the date of practical completion. It would therefore not be reasonable to direct the contractor to rectify the complaint items.[4]
[4]Statement of Reason page 11 [41] also Queensland Building and Construction Commission Act s 72(5)
On 23 June 2022 the applicant filed an application to review the Commission’s decision. Under s 20 of the Queensland Civil and Administrative Tribunal Act 2009 the role of the Tribunal is to have regard to all of the evidence and produce the correct and preferable decision.
The applicant and her partner have limited resources as they are aged pensioners. They bought the house on Russell Island because the purchase price of a house there is much cheaper than on the mainland. Her evidence in respect of the floor tiles and grout breaking is comprehensive and attached to the complaint. She has included the diagram of the problem areas. Her evidence demonstrates that there is movement in the floor, not only causing the “creaking” noise but also the breaking out of grout, in a house that was barely two years old when purchased. Common sense suggests that this should not be occurring in a newly constructed house.
In support of her own evidence about the floor, she has provided statement from Sam Cronin of Highbury Tiling on Russell Island. Although he does not say so, I will proceed on the basis he is a qualified tiler. In his statement he says:
·Upon entering the house he could immediately hear the creaking of the floor;
·He immediately notice grout breaking out of the joints;
·He noted there was no underlay upon which the tiles were laid;
·He opines that the incorrect adhesive was used on “tongue and grove” flooring;
·He noticed tiles lifting up and down;
·He did not see any tile underlay in the bathroom and therefore was uncertain if it was fully waterproofed.
Mr Cronin is of the opinion that an underlay should have been used rather than lay the tiles directly onto the subfloor, particularly if it is tongue and groove. Also, it is particularly concerning that it might be the case that the bathroom is not waterproofed and there is no tile underlay. There was no mention of this is in Mr Ratcliffe’s report.
Although Mr Ratcliffe refers to the subfloor being particle board sheeting, and he refers to the manufactures specifications, they are not specifically included in this report or identified in any way. This leaves a gap in the evidence which is important to determine whether there are structural issues if the flooring system is continually going to move and break out grout in the tiles. Also I note in the QBCC Standards and Tolerance Guide in respect of Floor and Wall Tiling it states where the contract supplies and lays tiles:
Where the supply and laying of tiles is by the contractor as part of the building contract, the failure of the tiles, substrate, adhesive or grout is a defect
There are a number of uncertainties here. If the subfloor is tongue and groove, and presumably Mr Cronin inspected this from underneath the house, then the manufacturers specification referred to by Mr Ratcliffe may be irrelevant. Again, common sense would suggest that a tongue and groove floor will have much more movement that particle board sheets. If it is particle board sheeting, then the specification should be produced to ensure the fixing of the tiles to the floor is appropriate and complies with the specification. There is no evidence about the adhesive used to fix the tiles. Also, there is no evidence from the builder about how the floor was prepared for the tiles. He didn’t engage with the applicant in any meaningful way to assist.
Although not a specific complaint, Mr Cronin raises a concern that there is no underlay in the wet areas. It goes without saying that waterproofing is essential to prevent damage to the subfloor. Because there is an obvious problem with the floor, causing tile grouting to break out from normal everyday, this issue should be investigated as well.
The Commission’s statement of reasons relies only on the Resolution Services Report. It makes no reference to the evidence of Mr Cronin. There is clearly a problem with this floor because if the manufacturer’s specifications had been followed and the subfloor prepared in accordance with it, then the floor should be stable and the grout would not be breaking out of the joints. Furthermore, if securely fixed to the supporting steel supporting structures, the floor should not move, or only move within tolerances. Once the cause of the movement in the floor has been determined and whether the floor is laid either in accordance with the manufacturers specification or proper building practices, depending on the type of floor, a decision can be made as to whether the defect is structural or non-structural.
In my view this complaint requires further investigation. Under s 24 of the QCAT Act the Tribunal may:
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate
I therefore propose to proceed under s 24(1)(c) and set aside the Commission’s decision and return the matter for reconsideration with the following directions:
(a)The Commission must carry out a further inspection and provide a further report as to the following matters:
(i) whether the subfloor upon which the tiles are fixed, is particle board flooring or tongue and groove;
(ii) determine the type of adhesive used to fix the tiles to subfloor;
(iii) whether the adhesive used to fix the tiles to the subfloor, if a particle board subfloor, complies with the manufacturers specifications and produce a copy of the specification;
(iv) whether the adhesive used to fix the tiles to the subfloor, if a tongue and groove subfloor, complies with the manufacturers specifications and produce a copy of the specification
(v) if a tongue and groove subfloor is it proper building practice to fix tiles directly to the tongue and groove floor;
(vi) if tongue and groove whether any underlay should have been used upon which the tiles were to be laid;
(vii) whether the flooring in the wet areas should have underlay;
(viii) whether flooring in the wet areas are waterproofed and whether the builder obtained a Form 15 from the waterproofer.
(b)The report to be prepared and a copy provided to the applicant by 30 November 2023;
Upon the receipt of the report and any further evidence from the applicant the Commission reconsider its decision in respect of the applicant’s complaint.
There will be orders accordingly.
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