Queensland Building Services Authority v Menso
[2011] QMC 12
•20 June 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Queensland Building Services Authority v Menso [2011] QMC 12
PARTIES:
QUEENSLAND BUILDING SERVICES AUTHORITY
(complainant)
v
MARIO MENSO
(defendant)
FILE NO/S:
MAG-00184789/10(8), MAG-00194244/10(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Townsville
DELIVERED ON:
20 June 2011
DELIVERED AT:
Townsville
HEARING DATE:
1 June 2011
MAGISTRATE:
Ryan K
ORDER:
MAG-00184789/10(8) – Counts 1 and 3 – guilty
MAG-00194244/10(0) – Counts 1 and 3 – guilty
CATCHWORDS:
PROFESSIONS AND TRADES – BULDERS - PROSECUTION – whether defendant carried out “building work”; whether defendant required contractor’s licence where carried out work of composite technician; whether Directions to Rectify given in accordance with legislation.
Queensland Building Services Authority Act 1991 (Qld)
COUNSEL:
R Lovrincevic for the prosecution
Defendant on his own behalf with M Biebieck as McKenzie Friend
SOLICITORS:
The Queensland Building Services Authority (QBSA) have taken out two Complaints & Summonses against Mr Menso for carrying out building work (or, in the alternative, undertaking to carry out building work) and failing to rectify building work as required by Directions to Rectify issued by the QBSA at both 23 Macquarie Street, Jensen and 32 Munbilla Drive, Kelso, in breach of s 42(1) and s 72(10) of the Queensland Building Services Authority Act 1991 (the “Act”).
The hearings for both Complaints and Summonses were heard together as they involved the same facts and the same witnesses were to give evidence. Mr Menso was not legally represented and appeared with a McKenzie Friend, Mr Malcolm Biebeick.
There was a statement of agreed facts with regard to the complaint relating to 23 Macquarie Street, Jensen, and the prosecution called three witnesses from the QBSA to support its case. Those same three witnesses as well as Ms Monique Slade (one of the owners of the property) gave evidence with regard to the complaint relating to 32 Munbilla Drive, Kelso.
Mr Menso also gave evidence in his defence and called Mr Malcolm Biebeick, a qualified composite technician.
During the hearing, Mr Menso spent some time questioning witnesses with regard to the quality of the work undertaken. This evidence is not relevant to the matters presently before the court, as Mr Menso had the opportunity to apply for a review to the Queensland Civil and Administrative Tribunal when he was served with the Directions to Rectify. I understand that he did not avail himself of this opportunity.
The matters for consideration by this court are the charges brought by the QBSA pursuant to the QueenslandBuilding Services Authority Act 1991. Such charges are criminal in nature and the Act provides for monetary penalties for breaching its provisions.
The objects of the Act are set out in section 3 and are –
“(a) to regulate the building industry –
(i)to ensure the maintenance of proper standards in the industry; and
(ii)to achieve a reasonable balance between the interests of building contractors and consumers; and
(b)to provide remedies for defective building work; and
(c)to provide support, education and advice for those who undertake building work and consumers.”
Provisions of the Act also provide that where the value of building work exceeds $3,000, a builder must hold a licence issued by the QBSA.
Carrying out (or undertaking to carry out) building work while unlicensed
The Statement of Agreed Facts with regard to 23 Macquarie Street, Jensen, was tendered (Exhibit 1) and includes a quotation given by Mr Menso for the refurbishment of an inground swimming pool. The quotation was sent to GAB Robins, insurance assessors, as the refurbishment work was to be undertaken as a result of an insurance claim made by the homeowners.
The quotation detailed the work to be undertaken and this included –
· “Repair all issues in infrastructure/fractures etc and color pool with materials as per discussions.
· Repair all osmosis in pool
· Removal of all materials from site involved in completion of works.
· Remove existing damaged concrete paths around pool.
· Expose ….. all pipe work plumbing of pool features ie: from pump shed to pool fittings to check for cracks, leaks etc from flood water rise. (Dig depth approx 450 ml for pipe exposure). Any pipe work will be refitted/replaced if required.
· Bed, sand @ recover pipework, along side of pool in accordance for concrete foot path to be formed around pool.
· Supply mesh @ a 1 metre wide concrete path including bond beam around entire pool.
Labour/Disposal of all materials associated with rebuild.”
By signing the Statement of Agreed Facts, Mr Menso also agreed that he carried out the work between 4 August 2008 and 6 October 2008 and received payment of $19,800 for that work.
Exhibit 9 is a quotation dated 6 December 2009 given by Mr Menso to Glen & Monique Nipperess with regard to 32 Munbilla Drive, Kelso. That quotation related to the “refurbishing” of the pool located at the home. The quote includes –
·“travel to and pump out pool
·To grind/blast out pool.
·To repair all issues with pool osmosis
·To replace all jet face plates
·Reskin whole pool and recolor with color choice.”
Ms Monique Slade gave evidence with regard to the works carried out. She stated that whilst she was married to Mr Nipperess, she retained her maiden name. She further stated that she was present whilst the work was undertaken. Whilst she was quite angry with Mr Menso as a result of her dealings with him, her evidence was given clearly and honestly. At first, an employee of Mr Menso’s commenced the grinding of the surface of the pool, but was put off by Mr Menso as he did not have any experience in undertaking the work. Mr Menso continued doing the grinding down of the pool. He also cut a hole in the bottom of the pool which was sealed over, after which fibreglass and resin was applied. There was more sanding before the pool was painted blue.
Ms Slade described the problems she had with the pool. I will not comment further in this regard, given that the quality of the workmanship is outside the scope of this decision.
Exhibit 3 is a Participant Profile for Mr Menso, being details of a contractor’s profile as held in the records of the QBSA. This document shows that Mario Menso of 364 Forrestry Road, Bluewater does not hold and has never held a licence pursuant to the Act.
Mr Menso admitted in evidence and his submissions that he did not hold a licence. It is his defence to this charge that he is not required to hold such a licence as he is not a builder, but a manufacturer and that the work undertaken at both 23 Macquarie Street, Jensen and 32 Munbilla Drive, Kelso, was not building work, but manufacturing work.
Mr Menso gave evidence, supported by Mr Biebeick that Mr Menso is a qualified composite technician, having received his nationally recognised training through the Plastics and Rubber Technical Education Centre (PARTEC), a Queensland Department of Education and Training registered training authority. His further evidence was that the work of resurfacing the swimming pools was a form of manufacturing, not building work and that he therefore did not require a QBSA licence to undertake the work.
Mr Menso submitted to the court that he had had a long-running issue with the QBSA with regard to the licensing issue, and indeed has had this very issue mentioned in Parliament by his local member. A copy of the relevant extract from Hansard was handed up during submissions as an aid to the court.
I accept that Mr Menso is a trained composite technician. I am also satisfied that this qualification comes within the manufacturing trades and not the construction trades. It would appear that composite technicians (coming as they do under the manufacturing trades) cannot be regulated by the Queensland Building Services Authority Act 1991. This is something for the legislature to address.
However, I have looked carefully at the work undertaken by Mr Menso with regard to both of the pools in question. At 23 Macquarie Street, Jensen, he carried out works which included removing all concrete paths around the pool, exposing all pipe work and plumbing and refitting and replacing such pipe work if required, providing and placing bedding sand around the pool for construction of a path and supplying and pouring concrete.
At 32 Munbilla Drive, Kelso, Mr Menso carried out grinding work and repair to the pool to address issues of osmosis. It would also appear that the cutting of a hole in the pool base also altered the configuration of the pool.
The meaning of the word “manufacture” is defined in The Australian Concise Oxford Dictionary as meaning where used as a noun –
Making of articles by physical labour or machinery, especially on a large scale; branch of such industry
and as a verb –
bring (material) into form fit for use; produce (articles) by labour, especially by machinery on large scale.
None of the activities described above as having been undertaken at the respective properties (other than possibly the “reskinning” or the application of a composite to the pool linings) could therefore be described as manufacture or manufacturing.
But was the work undertaken by Mr Menso at the properties “building work” as defined in the Act? If so, then such work is subject to the provisions of the Act.
Pursuant to Schedule 2 of the Act building work means –
“(a) the erection or construction of a building; or
(b) the renovation, alteration, extension, improvement or repair of a building;….”
The definition of building includes any fixed structure an example of which is “an inground swimming pool or an aboveground pool fixed to the ground”.
In both cases, I find that the respective swimming pools are buildings as defined in the Act. I also find that the work (apart from the “reskinning” or the application of the composite to the pool linings) constitutes “building work” as defined.
As a defence to the charge relating to work undertaken at 23 Macquarie Street, Jensen, Mr Menso has put to the court that the cost of the concreting done was less than $3,000 (indeed he put the cost at $1,200), therefore not requiring him to hold a licence under the Act. The total quotation and amount paid for the work done was $19,800. I am unable to split this amount into any components. As held above, the building work at this address not only included the concrete pathways, but the excavating of the pipes and their replacement. Mr Menso gave evidence as to the extensive work undertaken by him in constructing extra areas of pathways (for which he stated he did not charge). On this basis, I am satisfied that the cost of this building work was in excess of $3,000.
I therefore find the defendant Mr Menso guilty of the charges that he carried out building work whilst not the holder of a licence pursuant to the Act.
Failure to Rectify Building Work
Exhibit 4 is Direction to Rectify number 35062 issued by the QBSA to Mr Menso with regard to the building work carried out at 23 Macquarie Street, Jensen, while exhibit 7 is Direction to Rectify number 35197 issued to Mr Menso with regard to the building work carried out at 32 Munbilla Drive, Kelso.
Each of those Directions to Rectify gave Mr Menso notice that should he disagree with the direction of the QBSA, he could apply to have the direction reviewed by the Queensland Civil and Administrative Tribunal within 28 days. Mr Menso did not apply in either case to have the directions reviewed.
By his own admission, Mr Menso has not carried out any rectification work in accordance with either Direction.
Mr Menso questioned whether protocols had been followed with regard to complaints being made about workmanship. He put to witnesses that the protocol that complaints should be put in writing to the contractor to give an opportunity for the complaint to be dealt with before an official complaint is made to the QBSA, was not followed. He submitted that he did not receive any complaint in writing and did not have the opportunity of addressing any concerns in relation to either property.
However, entered in evidence (Exhibit 17) is a letter from Mr Menso to “to whom it may concern” (which he stated in evidence was sent to the Insurance Assessors) in response to “a so called complaint that has been made by Sue Kowalczyk’s regarding work I carried out her property at 23 Macquarie st Jensen.” It is clear that some sort of complaint was made on behalf of the home owner to Mr Menso and I find his submission that the protocol was not followed to be unsubstantiated.
Mr Menso led evidence that Ms Slade was not the registered proprietor of the property at 23 Munbilla Drive, Kelso, and that she therefore had no standing to make a complaint to the QBSA. Ms Slade agreed that her name did not appear on the Certificate of Title, but that she was indeed a co-owner, having the joint responsibility for the property with her husband. Whilst it was not put in submissions, I took this questioning to mean that Mr Menso wished the court to find that as Ms Slade did not have standing to make a complaint to the QBSA, then the charge of failing to rectify details following the issuing of the requisite Direction which was the result of the complaint, should fail.
I am satisfied that Ms Slade was a person in a position to lodge the complaint with the QBSA on behalf of herself and her husband.
Mr Menso also gave evidence that he at no stage received a written letter of compla int from either Ms Slade or Mr Nipperess in accordance with the protocol. Ms Slade gave evidence that she telephoned Mr Menso about the problems she had detected and that she followed the telephone call up with an email detailing those concerns. I accept this evidence. In these circumstances, I find that Mr Menso did have notice of the complaints made.
On the evidence before me, I find Mr Menso guilty of the two charges of failing to comply with the Directions to Rectify.
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