Munro Homes Pty Ltd v Queensland Building Services Authority
[2013] QCAT 284
| CITATION: | Munro Homes Pty Ltd v Queensland Building Services Authority [2013] QCAT 284 |
| PARTIES: | Munro Homes Pty Ltd (Applicant) |
| v | |
| Queensland Building Services Authority (Respondent) |
| APPLICATION NUMBERS: | GAR420-10 GAR091-11 |
| MATTER TYPE: | General administrative review |
| HEARING DATE: | 27 July 2012 |
| HEARD AT: | Townsville |
| DECISION OF: | W Pennell, Member |
| DELIVERED ON: | 27 June 2013 |
| DELIVERED AT: | Townsville |
| ORDERS MADE: | 1. The decision made by the Respondent dated 31 January 2011 for the matter of GAR420-10 is confirmed. 2. The Applicant’s application for the matter of GAR420-10 dismissed. 3. The decision made by the Respondent dated 22 March 2011 for the matter of GAR091-11 is confirmed. 4. The Applicant’s application for the matter of GAR091-11 is dismissed. |
| CATCHWORDS: | ADMINISTRATIVE REVIEW – building work – whether reasonable direction given to rectify – decision to issue direction to rectify defective building work – responsibility for defective building work Building Services Authority Act 1991 |
APPEARANCES and REPRESENTATIONS:
| APPLICANT: | Mr Christopher Robin Munro for the Applicant |
| RESPONDENT: | Ms Cheriden Farthing for the Respondent |
REASON FOR DECISION
Introduction
The Applicant is Munro Homes Pty Ltd (“the Applicant”). The principle of that company is Christopher Robin Munro (“Mr Munro”).
In January 2006 the Applicant entered into contracts with the Defence Housing Australia (“the DHA”) to construct two (2) dwellings, one at 14 Farnham Court, Kirwan (“the Farnham Court dwelling”) and the other at 21 Chesham Drive, Kirwan (“the Chesham Drive dwelling”).
The Respondent is the Queensland Building Services Authority (”the QBSA”). The QBSA is a body corporate established by the Queensland Building Services Act 1991.[1]
[1] QBSA Act s 5.
On 31 January 2011 the Respondent issued the Applicant with a Direction to rectify defects of building work identified in the Farnham Court dwelling.
On 22 March 2011 the Respondent issued the Applicant a second Direction, this time to rectify the defects identified in the Chesham Drive dwelling.
The Applicant seeks a review of the decisions undertaken by the Respondent to issue the directions to rectify the defects at those dwellings.
In seeking a review of the Respondent's decisions, the Applicant denied responsibility for the defects to both dwellings and adopted the position that the dwellings were completed according to Australian Standards, all correct materials and products were used, the work was inspected by Engineers, the local Council and a Private Certifier employed by the DHA.
The QBSA Act
The objects of the Queensland Building Services Authority Act 1991 (“the QBSA 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.
The QBSA Act provides remedies for defective building work along with support, education and advice for those who undertake building work and consumers.[2]
[2] QBSA Act s 3.
Review Jurisdiction
A person affected by a reviewable decision of the QBSA 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[3] to review a decision made, or taken to have been made, by another entity under that Act.[4] 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.[5]
[3] The QBSA Act is an enabling Act.
[4] QCAT Act s 17(1).
[5] 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.[6]
[6] 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.[7]
[7] QCAT Act s 24(1).
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. 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.
[8] QCAT Act s 28.
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. 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] Both parties were given that opportunity.
[9] QCAT Act s 95.
Evidence given to the Tribunal on behalf of the Applicant in this matter was by Mr Munro. The Applicant sought to rely upon written statements as evidence from Mr Bradley Davis (“Mr Davis”) of B & L Davis Tiling and Mr Kerry Adams (“Mr Adams”), Director of NQ Consulting Pty Ltd.
Mr Davis and Mr Adams did not attend the Tribunal personally to give evidence or made themselves available for cross examination. The Applicant was not assisted when Mr Munro said that he did not know the current whereabouts of Mr Davis.
To support the Applicant's case, Mr Munro suggested that the watering system at both of the dwellings contributed to the movement in the floor slab, which could be a reason why the defects were detected in the tiles. This suggestion is not supported by any of the evidence provided to the Tribunal by the Applicant, and is at odds with the expert evidence provided by the Respondent.
Under cross-examination, Mr Munro said that the Applicant had 30 or 40 jobs operating at the same time that the dwellings were being constructed. He added that he had been using Mr Davis as his tiler for approximately 20 years.[10]
[10] See Tribunal Hearing transcript at p.30.
When shown photographs[11] of the toilet of the Chesham Drive dwelling, Mr Munro acknowledge that by looking at the photographs it appeared to him that there was not enough glue used on the tiles.[12] Mr Munro also told the Tribunal[13] that he discovered sometime after the completion of the dwellings that a tiler called John Rogers had laid the tiles at the Chesham Drive dwelling.
[11] Exhibit 3.
[12] See Tribunal Hearing transcript at p.31.
[13] See Tribunal Hearing transcript at pp.39-40.
Issues considered
In reviewing a decision of the QBSA, the issues for the Tribunal to determine are –
(a)Was the work building work?
(b)If so, was the work defective?
(c)Was the Applicant responsible for the defective building work?; and
(d)Was the decision of the authority to direct the Applicant to rectify the building work reasonable in the circumstances?
Building work
The Tribunal was required to examine whether or not the work carried out by the Applicant was building work.
The term “building work” is defined in Schedule 2 of the QBSA Act. The installation of the tiles at both dwellings was not a contentious point. Both parties accepted that the tiled areas within the both dwellings were “building work” within the definition.
Defective work
The Applicant sought to rely upon the unsworn written statements from Mr Davis and Mr Adams.
The statement purported to be from Mr Davis sets out that he was the tiler who laid the tiles for the Applicant at the Farnham Court dwelling. The statement goes on to say that the work was carried out in accordance with Australian Standards and “the highest tradesman like manner”.
The contents of this statement are inconsistent with the Respondent’s expert evidence which shows that an inadequate amount of glue was used on the surface of the tiles.
The Applicant also relied upon two reports purported to be under the hand of Mr Adams. Those reports are dated 14 March 2011 and 5 September 2011.
Both reports by Mr Adams provide a theory that there had been shrinkage of the tiles because they were not dried during the tile manufacturing process. The reports also indicate that the releasing of the tiles from the concrete floor slabs could be possible from the bending of the concrete slabs. Nothing was placed before the Tribunal to support the opinions expressed by Mr Adams and there was no other independent evidence produced by the Applicant to validate that any testing of the slabs had been carried out by Mr Adams.
The Applicant was afforded a reasonable opportunity by the Tribunal to call witnesses to support its case. Apart from Mr Munro's testimony, the only evidence relied upon is that of Mr Davis and Mr Adams. The QCAT Act provides that evidence at hearing may be given orally or in writing.
If the evidence of Mr Davis and Mr Adams was to be considered by the Tribunal, then it would be a denial of natural justice to the Respondent as this would deny the Respondent an opportunity to test the evidence of those witnesses.
The Tribunal must act fairly to all parties and the Tribunal does not consider that it would be fair to the Respondent if the evidence of Mr Davis and Mr Adams was considered. Therefore, no weight is placed upon their statements.
A consideration for the Tribunal was whether the tiling carried out on both dwellings was defective. The Applicant’s argument was that the watering system at both dwellings contributed to the movement in the floor slab, which could be a reason for the defective work. There was no evidence provided by the Applicant to validate this theory.
The Respondent commissioned two reports from Mr Cecil Johnstone. Mr Johnstone is a qualified structural engineer and a Director of LCJ Engineers Pty Ltd. He has substantial experience in the fields of geotechnical and structural engineering, and investigation of failed footing systems in residential constructions.
In October 2011 Mr Johnstone was engaged by the Respondent to carry out an inspection on both dwellings and provide an expert report on his findings.
Mr Johnstone's reports for both dwellings indicate that the footing system which had been designed on the sites are a stiffened raft design for a class M site. There were no defects observed in the designs. The soil moisture conditions around the sites were consistent and had contributed to minor movements of the slab.
It was Mr Johnstone’s opinion that the footing, the slab systems and the movements that have occurred did not adversely affect the structural adequacy and serviceability of the dwellings or their expected performance and functional use.
He considered that the original site classifications correctly estimated the maximum potential ground surface movement which may be expected to occur as a result of soil related movements under conditions of good site maintenance and drainage.
It was Mr Johnstone’s opinion that the building movement was minor and had not contributed to the problem of loose floor files in either dwelling.
The Respondent’s Building Inspector, Mr Colin Murdoch, compiled an “initial Inspection Report” for each of the dwellings. His reports indicated that there was minor movement in the slabs in both dwellings but this movement did not contribute to the dislodgement of tiles throughout the dwellings.
There was no evidence in either dwelling of tile shrinkage, slab heave or subsidence.
In relation to building work, schedule 2 of the Act defines the word “defective” to include “faulty and unsatisfactory”. The Tribunal is satisfied that the building work on both dwellings was faulty and unsatisfactory.
Was the Applicant responsible for the defective work?
An issue for consideration by the Tribunal is whether or not the Applicant was responsible for the defective building work.
In determining where the responsibility lies, the Tribunal is guided by section 75(5) of the QBSA Act. A person undertakes to carry out building work[14] if the person enters into a contract to carry it out, or submits a tender or makes an offer to carry out building work.
[14] QBSA Act ss 75 – 76 define what is Tribunal work.
The Applicant does not dispute that there had been contractual arrangements between itself and the DHA for the construction of the two dwellings.
The Tribunal is further guided by section 75(3) of the QBSA 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 Applicant does not dispute that Mr Davis was engaged to carry out the tiling work on the Farnham Court dwelling, and it was Mr Munro’s own testimony that he later found out that a Mr Rogers was engaged to carry out the tiling work on the Chesham Drive dwelling.
The Tribunal is satisfied that the Applicant carried out the building work and was responsible for the defects in both dwellings.
Was the Respondent’s direction to rectify reasonable?
After receiving two complaints in October 2010 from the DHA in relation to the building works carried out by the Applicant, requests were made for the Applicant to rectify those defects.
When those requests were ignored, the Respondent exercised its discretion to issue directions to the Applicant to rectify the defects.
The Applicant denied ever receiving any correspondence from the Respondent relating to the directions to rectify the defects. Mr Munro acknowledged that the addresses on the correspondence referred to in the Respondent’s evidence are the postal address is of the Applicant.[15] The Tribunal is satisfied that the Applicant received the directions.
[15] See Tribunal Hearing transcript at p.21.
A chronology of the events specific to these matters is –
8 October 2010
The Respondent received a complaint in relation to the building works at the Chesham Drive and Farnham Court dwellings.
13 October 2010
The Respondent advised the Applicant by letter of the complaint about the Farnham Court dwelling. The Applicant was further advised that an inspection was being carried out of that dwelling on 2 November 2010. The Applicant was invited to attend that inspection.
2 November 2010
The Respondent inspected the Farnham Court dwelling. The Applicant attended that inspection.
4 November 2010
The Respondent wrote to the Applicant requesting that the defects identified in the Farnham Court dwelling be rectified within 28 days.
1 December 2010
The Respondent advised the Applicant by letter that a complaint had been received about the Chesham Drive dwelling. The Applicant was further advised that an inspection was being carried out of that dwelling on 21 December 2010. The Applicant was invited to attend that inspection.
21 December 2010
The Respondent inspected the Chesham Drive dwelling. The Applicant did not attend that inspection. The Respondent carried out a second inspection of the Farnham Court dwelling and saw that the defects had not been rectified.
11 January 2011
The Respondent wrote to the Applicant requesting that the defects identified in the Chesham Drive dwelling be rectified within 28 days.
31 January 2011
The Respondent wrote to the Applicant and issued a Direction for the Applicant to rectify the defects in the Farnham Court dwelling.
17 February 2011
The DHA advised the Respondent that the defects in the Chesham Drive dwelling had not been rectified.
22 March 2011
The Respondent wrote to the Applicant and issued a Direction for the Applicant to rectify the defects in the Chesham Drive dwelling.
Prior to issuing a direction to rectify the defects, the Respondent was required to consider whether the Applicant was a person who carried out the building work.[16] The Respondent was able to satisfy the Tribunal that the Applicant carried out the building work personally, or directly or indirectly caused it to be carried out.[17]
[16] QBSA Act s 72(5(d).
[17] QBSA Act s 72(11).
If the Respondent was of the opinion that the building work at both dwellings was defective or incomplete,[18] the Respondent was at liberty to exercise its discretion to direct the Applicant to rectify the building works within a period stated in the directions.[19]
[18] QBSA Act s 72(1).
[19] QBSA Act s 72(3) - 28 days allowed for rectification of the defects at both dwellings.
Subject to specific conditions, a direction to rectify defects cannot be given to the Applicant more than six years and three months after the building work to which the direction relates was completed.[20] The completion date of both dwellings was 26 July 2006. The directions issued on 31 January 2011 and 22 March 2011 are well within that allowable time frame.
[20] QBSA Act s 72(8).
The Tribunal is satisfied that the Respondent acted reasonably within the provisions of the QBSA Act in reaching the decisions to issue the directions.
The Tribunal is further satisfied that it was reasonable for the Respondent to issue the Applicant the two directions.
ORDERS
The Tribunal is satisfied that –
(a) The defects identified in the tiles at the Farnham Court and Chesham Drive dwellings was building work;
(b) The building work at the Farnham Court and Chesham Drive dwellings was defective;
(c) The Applicant was responsible for the defective building work; and
(d) The Respondent’s decision to issue notices to direct the Applicant to rectify the defects was reasonable in the circumstances.
Accordingly the appropriate Orders are –
1. The decision made by the Respondent dated 31 January 2011 for the matter of GAR420-10 is confirmed.
2. The Applicant’s application for the matter of GAR420-10 dismissed.
3. The decision made by the Respondent dated 22 March 2011 for the matter of GAR091-11 is confirmed.
4. The Applicant’s application for the matter of GAR091-11 is dismissed.
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