Melski Pty Ltd v Queensland Building and Construction Commission

[2014] QCAT 256

CITATION: Melski Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 256

PARTIES:	Melski Pty Ltd (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER: GAR223-13

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Dr Cullen, Member

DELIVERED ON: 13 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The decision of the Queensland Building and Construction Commission dated 4 June 2013 to issue Melski Pty Ltd with a direction to rectify and/or complete number 39057 is confirmed.

CATCHWORDS:

DOMESTIC BUILDING WORK - Direction to Rectify – defective building work – delay in complaint – Rectification of Building Work Policy – applicant should not benefit from its conduct in declining to contact home owner - it was reasonable to issue direction in circumstances

Queensland Building and Construction Commission Act 1991 (Qld), s 72

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. In this application, Melski Pty Ltd seeks to review a decision made by the Queensland Building and Construction Commission (‘the Commission’) on 4 June 2013 to issue it with a direction to rectify and/or complete number 39057 pursuant to s 72(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’).

2. The direction to rectify required that the applicant, or another licensed contractor nominated by it, attend to the rectification of the following:

   1.The weatherproofing to the upper Balcony located above the living room and kitchen area has failed, which is allowing water to penetrate the dwelling causing damage to surrounding building elements, which has failed to comply with the requirements of the Building Code of Australia 2009 Volume 2, PART 2.2 DAMP AND WEATHERPROOFING, OBJECTIVE, O2.2 The Objective is to (a) safeguard occupants from illness or injury and protect the building from damage caused by (ii) external moisture entering a building; and (iii) the accumulation of internal moisture in a building and AS 4654.20 – 2009 Waterproofing membrane systems for exterior use – Above ground level Part 2 Design and Installation, section 1.5.15 Waterproof Material property that does not allow moisture penetration.. – Pertains to item 1 on the BSA complaint form.

3. The direction to rectify was in relation to building work performed at 67/2 Queen Street, Cleveland, which included waterproofing and retiling an upper balcony and replacing a water damaged ceiling beneath the balcony. This work was carried out by the applicant in or around July 2009.

4. In April 2010, Astrid Wit entered into a contract to purchase the property. On 22 February 2013, Ms Wit filed a complaint with the Commission in relation to the work that the applicant had performed in July 2009, which was prior to her ownership. At that point in time (July 2009) the applicant was known as Crocker Builders Pty Ltd. The applicant’s business name was changed to Melski Pty Ltd on 8 January 2013 according to ASIC records.

5. In her complaint to the Commission, Ms Wit indicates that it was in July 2010 that she first noticed leaking through a down light located in the dining room. Thereafter, the problem progressively became worse, culminating in parts of the ceiling in the lounge room falling in late January 2013.

6. There is no question that the work performed was defective, nor is there any question that the work would properly be categorised as ‘category 1 defective building work’ pursuant to the Commission’s policy relating to the rectification of building work.

7. The rectification of building work policy is annexed to the Commission’s statement of reasons as Exhibit 1. In short, the guideline policy requires that an owner (Ms Wit) should not delay in reporting the defect to the Commission. If the owner reports the defect within a timeframe that ‘exceeds 3 months after the defect became apparent,’ the Commission must consider whether it is reasonable to issue a direction to rectify. Further, under the Act, a direction cannot ordinarily be given more than six years and three months after the building work was completed.

The delay in issuing the direction to rectify was not unreasonable

1. The only issue for determination by the Tribunal in this matter is whether it was reasonable, in view of the policy outlined above, for the Commission to issue a direction to rectify to the applicant. In its submissions, the applicant argues that Ms Wit has been unreasonable in waiting to complain for a period of approximately 31 months from when she first noticed the leak in July 2010. The Applicant suggests that this is a basis upon which the Commission should have declined to issue the direction to rectify. During the timeframe between 2010 and 2013 the extent of the defect worsened.  In July 2010, there was a reasonably minor leak, but by the time of Ms Wik’s complaint in January 2013, had resulted in ceiling collapse. Self evidently, this means that the corresponding scope of rectification work is now considerably larger than it would have been if the Commission had issued the applicant with a direction to rectify back in July 2010, or within approximately three months thereafter.

The Applicant did not respond to any of Ms Wit’s concerns

1. Whilst this initially appears to be a sensible submission by the applicant, it must be viewed in conjunction with the evidence that has been provided to the Tribunal by Ms Wit. That evidence paints a significantly different picture as to the reasons for the delay. At paragraphs 8 through 17 of her affidavit, Ms Wit outlines the frustration that she experienced in attempting to contact the applicant.  Ms Wit outlines in some detail the Applicant’s failure to return her telephone calls or take any steps toward rectification. I accept Ms Wit’s evidence in these respects.

2. In circumstances where it is apparent to the Tribunal that Ms Wit endeavoured to resolve the issue now before it directly with the applicant, it would be unfair to allow the Applicant’s own dilatory conduct to form a basis upon which the Tribunal would consider setting aside a direction to rectify.

3. For the reasons outline above, I consider that the direction to rectify was properly issued, and entirely reasonable in the circumstances.

Order

1. The decision of the Queensland Building and Construction Commission dated 4 June 2013 to issue Melski Pty Ltd with direction to rectify and/or complete number 39057 is confirmed.