Queensland Building Services Authority v Kondra
[2013] QCAT 244
•16 May 2013
| CITATION: | Queensland Building Services Authority v Kondra [2013] QCAT 244 |
| PARTIES: | Queensland Building Services Authority (Applicant) |
| v | |
| Daniel John Kondra (Respondent) |
| APPLICATION NUMBER: | OCR014-12 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 April 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr David Paratz, Member |
| DELIVERED ON: | 16 May 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS A DECISION OF THE TRIBUNAL THAT:
|
| CATCHWORDS: | Residential construction – house severely damaged in storm – house required to be demolished – windows not properly fitted and tie-downs not properly installed – inadequate supervision – disciplinary proceeding – builder accepted breach and penalty – appropriateness of penalty – costs agreed Queensland Building Services Authority Act 1991 s 43A(2), 89(i), 91 QBSA v Nelson, A. [2006] QCCTB 131 |
[1] Decision amended by order of the Tribunal on 30 May 2013.
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland Building Services Authority represented by Ms A C Freeman of Counsel |
| RESPONDENT: | Daniel John Kondra represented by Mr T Adames of Gadens, Solicitors |
REASONS FOR DECISION
Mr Kondra was a young builder starting off in his own business. In November 2003 he entered into a contract to build a two-storey home high on the side of a hill at The Gap in Brisbane. The house was finished in late 2004, and the owners were apparently happy with their home.
On the 16 November 2008 however, the suburb of The Gap was hit by a storm of great savagery. The storm caused extensive damage.
The house that was built by Mr Kondra suffered catastrophic failure. Photographs depict a scene that looks like a bomb had exploded on the upper level of the house. The damage was so severe that the entire house had to be demolished.
Investigation after the event revealed that aluminium and glass window and door sections of the façade at the front had simply blown inwards under the force of the wind, the house had then become internally positively pressurised, then the rear windows had been sucked out, the roof structure lifted off, and some external walls collapsed.
The reasons for the failure principally related to improper fixing of the window and door frames, and a lack of proper tie-downs of the roof.
The conclusion of Mills Engineers who inspected the premises after the failure was that[2]:-
The damage to the dwelling from the storm event on the 16/11/08 occurred because of a combination of an underestimation of the design wind speed and corresponding undersizing of framing, connections, bracing and tie down; building variations from the original specified design; inadequate fixings of windows and doors; and inadequate inspection of the framing, bracing and tie down.
[2] Report Mills Engineers, 22 November 2008, Appendix 6, p 3.
The QBSA have brought disciplinary proceedings against Mr Kondra.
The Application for disciplinary proceeding was filed on 19 January 2012. Two grounds were initially raised. Firstly that Mr Kondra was negligent or incompetent in carrying out tribunal work under his licence pursuant to section 89(i) of the Queensland Building Services Authority Act 1991 (the Act); and secondly that he failed to ensure that building work he carried out was adequately supervised in accordance with section 43A of the Act.
When the matter came on for hearing, the parties advised that certain matters were not disputed, and proposed orders were put to the tribunal for consideration and determination.
Mr Kondra accepted that there were proper grounds for taking disciplinary action against him as a licensee on the basis that he had contravened section 43A(2) of the Act, being that he failed to ensure that building work carried out was adequately supervised.
The Authority did not press the additional ground of incompetent work.
The contract was entered into on 6 November 2003. The contract price was $460,000.
The house was designed by an architect, and full plans and specifications were prepared. The frame and final works were certified by a qualified certifier. In addition, the frame was inspected by a registered engineer.
The architect’s plans note on the front page that the wind rating is stated to comply with N2 wind loadings. The engineer’s design provided for an N3 wind rating. Mills Engineers concluded that having regard to the position of the house on the upper third of a hill with minimum shielding, that it should have been designed to an N5 rating.
The ultimate wind velocity for N3 is 50m/s (180 km/h) compared to the ultimate wind velocity for N5 of 72.4m/s ( 266 km/h).
The N3 rating means that the structure was designed to withstand winds of up to 180 kilometres per hour. Peak wind gusts of 176 kilometres per hour were recorded near The Gap on the day.
The thunderstorm that affected The Gap was described by the Bureau of Meteorology as a “microburst” which is “ a very localized column of sinking air, producing damaging divergent and straight-line winds at the surface that are similar to but distinguishable from tornadoes which generally have convergent damage.”[3]
[3] Report Mills Engineers, 22 November 2008, Appendix 4, p 1.
Mills Engineers comment that the peak wind speed recorded by the Bureau of Meteorology was only an instantaneous reading determined by examination of the Doppler radar data, and may have reached higher unrecorded speeds.
Mr Kondra engaged sub-contractors to perform works on the house. Particularly he engaged carpenters, being Greg Court of GMC Constructions, to frame the top level of the house.
GMC completed the first floor frames including some set-out, nailing frame together and erecting the first floor frames; installed lintel beams, bracing sheets, tie down rods, strapping and triple grips to first floor, tie-down rods and some bracing to lower frame; erected eaves, roof trusses, and rafters to front steel portal.
On a site inspection which Mr Kondra conducted with the engineer, he says he noticed that there was no 3/8 tie-down rod to W2.16 corner.[4] He discussed that with Glen from GMC, and it was agreed that the jack studs would have to be removed and a 3/8 rod placed in position. Inspection after the failure revealed that there was no evidence of that being done. Mr Kondra was disappointed when he learnt of that, as he had been advised by GMC that it had been finished.
[4] Submission to QBSA by Daniel Kondra 23 January 2009, para 38.
Mr Kondra says that he installed the windows with the owner’s labourer, John. They were levelled, packed and they tacked them with a nail gun. The reason for tacking in the windows was to allow the bricklayers to move the windows from side to side so they could match their block work up more accurately to the mortar joints. He says that he instructed DNL Constructions to complete the nailing off of the windows.[5]
[5] Statement of Daniel Kondra 8 June 2012, para 8.3.
He says as to the fixing of the windows:-
44. At the end of the block laying or around two months later the windows should have been nailed off. This was noted on an onsite jobs board list for all trades to see. The jobs list was for all jobs that needed to be done during the course of the job and by all trades. I use this method when many trades are onsite particularly when the roof goes on as there are many trades with any questions and jobs to be attended. The jobs board helps keep a check list of work that needed to be completed or notes specific to a trade.
45. During the course of a job the list got refreshed and rewritten many times. My final inspection did not reveal windows to be inadequately fixed as they were painted.
Mr Kondra relied on his sub-contractors to do work properly in accordance with the specifications, and relied on his system of using the jobs board for communication. Unfortunately, this reliance proved to be unsatisfactory and inadequate.
As the builder, the primary responsibility fell on Mr Kondra to properly supervise the conduct of the work, and to satisfy himself that the work was actually done to the appropriate standards and as required by the specifications, and to cause immediate rectification if that was not the case.
The examination of the structure after the failure reveals that there were significant failures in the fixing of the windows and doors and the roof tie-down in particular. These defects should have been observed and been directed to be rectified by Mr Kondra in the course of the construction. They failed to be detected and rectified because of a failure by Mr Kondra to properly supervise the works.
The failure to supervise breaches s 43A of the Act. There are therefore proper grounds for taking disciplinary action under s 88 of the Act against Mr Kondra.
The tribunal may make a range of orders under s 91 of the Act if it decides that appropriate grounds exist for taking disciplinary action.
The Authority submitted, through its Counsel, in a written submission that:-
26. This is the first time that the Respondent has come to the adverse attention of the Applicant.
27. It is submitted that in light of the particular factors in this case, it would be appropriate to impose a monetary penalty upon the Respondent; one that reflects the seriousness of the failure to supervise in light of the number of aspects of the failure and the ultimate outcome, being the demolition of the dwelling but also one that also recognises the respondent’s culpability in light of the other responsible parties involved.
28. It is submitted that a fine in order of $8,000 is appropriate in all the circumstances (See QBSA v Nelson, A. [2006] QCCTB 131 (8 August 2006) and QBSA v Rutherford, W. J. [2004] QCCTB 59 (17 March 2004). This is not opposed by the Respondent.
29 It is also open for the Tribunal to consider, in addition to a monetary penalty, a suspension of the respondent’s licence in the order of 3 months.
30. The Applicant also seeks costs fixed in the amount of $3,000 which the respondent agrees to pay.”
The QBSA did not seek a reprimand.
The Solicitors for Mr Kondra made the following written submission in relation to the imposition of a licence suspension:-
2. Should the Tribunal be considering the imposition of a licence suspension, the respondent submits that this is not warranted in this case for the following reasons:
(a) The offending conduct occurred approximately 10 years ago.
(b) This is the only disciplinary action taken against the Respondent who has held a building licence of some description continually since 1995;
(c)Outside these proceedings, the Respondent has not been convicted of any offence, had any penalty imposed or had any formal complaints about his work during the past 17 years;
(d) A significant monetary penalty has been imposed which in itself will act as a sufficient deterrent to other licence holders;
(e) The fact that the Respondent has been disciplined will be noted on his licence history and will remain on the history for a period of 5 years;
(f) The Respondent has cooperated with the Authority and accepted that there are grounds for disciplinary action thus avoiding the need for a full hearing;
(g) The respondent is married with a young child and is the sole income earner for the family; and
(h) The Respondent has been diagnosed with depression as a direct result of this case which has been ongoing since late 2008.
I accept the submissions of the Solicitors for the Respondent in relation to the imposition of a licence suspension. I do not see any utility in now imposing a 3 month suspension, some 9 years after the event. Mr Kondra has had several years since the failure to reflect upon all these events, and learn lessons from them. I also note that Mr Kondra has accepted responsibility, and does not oppose the submissions of the QBSA as to penalty otherwise. I therefore will not impose a suspension.
No closely similar case has been identified. QBSA v Rutherford is of some assistance as a guide. In that case, the builder was disciplined for negligent and incompetent work and failing to comply with a direction to rectify. The structure, which was at frame stage, was required to be demolished to foundation level. The builder had failed to perform works which he undertook to the engineer to perform. A penalty of $10,000 was applied.
This matter involves a greater quantum of damage, but the misconduct is of a lesser severity, and Mr Kondra has not knowingly failed to comply with any direction of the Engineer. I therefore consider that a similar, but lesser penalty, would be appropriate, and that the proposed amount of $8,000 is appropriate.
The costs of the QBSA are agreed at $3,000.
Counsel for the QBSA submitted that it considered a period of up to 12 months to pay would be appropriate in the circumstances. This was submitted as sufficient by the Solicitor for the Respondent. I accept this period as appropriate.
Accordingly, I order that the respondent, Daniel Kondra is to pay the amount of $11,000 to the QBSA on account of penalty and costs within 12 months of the date of this decision.
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