Queensland Building Services Authority v Wilson
[2011] QMC 55
•29 November 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Queensland Building Services Authority v Wilson [2011] QMC 55
PARTIES:
QUEENSLAND BUILDING SERVICES AUTHORITY
(prosecution)
v
GEORGE KEVIN WILSON
(defendant)
FILE NO/S:
MAG237153/10(3)
DIVISION:
Magistrates Courts
PROCEEDING:
Complaint
ORIGINATING COURT:
Magistrates Court at Innisfail
DELIVERED ON:
29 November 2011
DELIVERED AT:
Innisfail
HEARING DATE:
1 September 2011, 31 October 2011
MAGISTRATE:
Brassington JM
ORDER:
Defendant convicted
CATCHWORDS:
TRADE PRACTICES – OFFENCES – fail to rectify building work
Queensland Building Services Authority Act 1991, s 72(10)
COUNSEL:
Lovrinevic for prosecution
Weston for defendant
SOLICITORS:
George Kevin Wilson, the Defendant, is charged that on or about the 29th day of May 2010 in East Innisfail in the Magistrates Court District of Innisfail he failed to rectify building work, as required by Direction to Rectify and/or Complete No. 34784, in contravention of section 72(10) of the Queensland Building Services Authority Act 1991.
To that charge Mr Wilson pleaded not guilty.
The trial proceeded before me on 1 September 2011 with final submissions received on 31 October 2011. These are the reasons for my decision. In these reasons I will refer to some of the evidence to explain my decision but I have of course considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight, nor because matters have been mentioned does it follow they have been given undue weight. In determining matters of credit I have been assisted by seeing and hearing the witnesses and observing their demeanour in giving evidence.
Before turning to the substantive issues I will briefly touch upon some legal and procedural matters concerning how I should instruct myself in reaching a verdict in this matter. During the trial the prosecution called three witnesses. The defendant, who was legally represented, both gave and called evidence. By doing so he assumed no burden of proof. The defendant is entitled to the presumption of innocence. The burden rests on the prosecution to prove his guilt. There is no burden on him to establish any fact, let alone his innocence. He may only be convicted if the prosecution establishes that he is guilty of the offences charged. For the prosecution to discharge its burden of proving his guilt they are required to prove beyond reasonable doubt he is are guilty. This means that in order to convict him I must be satisfied beyond reasonable doubt of every element that goes to make up the offences charged.
THE LAW TO BE APPLIED
Section 72(10) of the Queensland Building Services Authority Act 1991 (QBSA Act) provides
A person who fails to rectify building work as required by a direction under this section is guilty of an offence.
Maximum penalty—250 penalty units.
Rectify building work is defined in the dictionary[1] of the QBSA Act to mean to remedy defective building work or to complete incomplete building work. Defective is also defined in schedule 2 to include, in relation to building work, faulty or unsatisfactory. Remedy (used as a verb) is not defined but I rely both on the definition in the Oxford English Dictionary[2]:
to put right, reform (a state of things); to rectify, make good
and the similar definition in the Macquarie Concise Dictionary[3]:
[1]Schedule 2
[2] accessed 7 November 2011
[3]2nd Edition, 1988 at p. 826
to make, put or set right; remedy or correct
to interpret the phrase to mean “to put right defective building work”. Building work is defined in schedule 2 to include relevantly the erection, construction, alteration, improvement or repair of a building.
In the context of this case there is no dispute that the defendant carried out building work for Inder Jeet Singh and Amar Jeet Kaur for the erection of a bathroom extension. The contract for those works and the statement of agreed facts is exhibit 1 in the proceeding.
Accordingly the Prosecution must prove beyond reasonable doubt:
(1) The Defendant was given a Direction to Rectify and/or Complete No. 34784 (the DTR) building work
(2) That on or about 29 May 2010 he had failed to remedy defective building work as required by that DTR.
I turn then to the first element of the offence.
WAS THE DEFENDANT GIVEN A DTR?
Melissa Rasmussen, at the Queensland Building Services Authority (QBSA) prepared and posted a DTR 34784 to Mr George Wilson at 5 Corinda Street East Innisfail on 30 April 2010. This DTR was signed by Kerry Maggs. Exhibit 2 is a copy of that DTR. The original was tendered by the Defendant in a bundle of exhibits. The first page of the DTR sets out the site address and information as to rights of review to QCAT and the consequences of a failure to comply. The third page contains the relevant direction which I set out in full:
You are directed to rectify the following defective or incomplete building work within the Time Period for Completion:
1. Tanking of that part of the wall below ground level is to be rectified to prevent moisture penetrating through masonry block wall.
2. Moisture Barrior (sic) for that part of the masonry block wall above ground level will need to be rectified to prevent moisture penetrating through masonry block wall.
3. Any consequential damage to internal side of masonry block wall plus floor tiles.
Section 72(1) of the QBSA Act sets out the power for the Queensland Building Services Authority (QBSA) to give a DTR:
If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
How the direction is given is not addressed in the section but section 109A of the QBSA sets out how a document may be served under the Act:
(1) A document may be served under this Act on a licensee by leaving it at, or sending it by post, telex, facsimile or similar facility to, the address of the licensee in the register of licensees kept by the authority.
(2) Subsection (1) does not limit the Acts Interpretation Act 1954, section 39.
I am satisfied to the requisite standard by the sworn evidence of Ms. Rasmussen that the DTR was given to the Defendant. The Defendant admits receiving the DTR albeit he does not give a day he received it and denied knowing about the QCAT rights of appeal.[4] I accept also Mr Maggs account of the meeting with the Defendant at the Punchard Street house on 6 May 2010. This meeting related directly to the Defendant’s disagreement with Mr Magg’s assessment and consequent direction and provides strong corroboration of the receipt of the DTR in the ordinary course of post after 30 April 2010 and before 6 May 2010.[5]
[4]Transcript p 122
[5]Transcript p. 39 – 40
Mr Weston submits that the formal direction to rectify was allegedly issued on 30 April 2010. It is important to note that the document is undated – there is no date on the initial page of the document (as there was on the informal direction to rectify) and indeed there is no date on page three. For this reason the direction to rectify could be held to be incomplete.[6] I cannot accept this submission. The DTR is dated on page 3 albeit the date is on the next line:
[6]Defence submission para. 25.
Site Address: 12 Punchard St. East InnisfailDate:
30 April 2010
If you are not satisfied with this decision you may, within 28 days apply to QCAT for a review of the decision. Contact the QCAT Registry on 3247 3333 for more information
DIRECTION TO RECTIFY AND/OR COMPLETE No. 34784
Time Period for completion: 28 days from Date above
What follows is then the body of the DTR set out in paragraph 10 above. The document is also dated on page 2 below the signature of Ms Rasmussen indicating the document was posted on 30 April 2010. Exhibit 2, the QBSA tendered copy of the DTR, accords in every particular with that tendered by the Defendant. I am satisfied that the DTR is complete and amounted to a direction given under the QBSA Act.
DID THE DEFENDANT FAIL TO REMEDY DEFECTIVE BUILDING WORK IN ACCORDANCE WITH THE DTR
The Defendant’s primary submission is that he did rectify the building work. To determine this issue it is necessary to consider both the evidence called by the Prosecution and the Defendant. Although the Defendant has called evidence on this matter he of course assumes no burden of proof. It remains for the Prosecution to prove this element beyond reasonable doubt.
The Prosecution Evidence
To prove its case the Prosecution primarily relied upon the evidence of Kerry Maggs who was formerly a Building Inspector with the QBSA. Mr Maggs had been an inspector with the QBSA for five years. He has been involved in the building industry since 1967 when he commenced his apprenticeship. Before moving to Innisfail to work with the BSA he had spent 17 years working for the Cairns Regional Council as a Building Inspector.
On 4 March 2010 Mr Maggs did a building inspection at 12 Punchard Street Innisfail. The owner of that property, Anjit Singh, had complained about defective building work. The complaint related to mildew on the walls of the bathroom, the tiling on the floor not giving sufficient fall to the waste outlet, guttering on the shed and other defects that were determined not to be the responsibility of the builder.
Upon inspection he found an ensuite that had three masonry block walls that had had white set plaster applied to them. On the southern wall, as you entered the ensuite, was a blank wall, on the western wall there was a row of shelving and on the eastern side and shower and pedestal:
· There was mildew on the white set plaster around the pedestal and the window on the eastern end of the room.[7]
[7]Transcript p. 16
· The shelving was rotted out from moisture. The shelving was made from chip board
· The tiles were dark from mildew and he found a “gleam of moisture on the tiles”.[8]
· On the southern wall damaged to the white set “consistent with moisture”[9]
[8]Transcript p. 18
[9]Transcript p. 18 l. 30
It was Mr Magg’s opinion that the condition of the white set plaster was consistent with water coming from the external part of the masonry block wall through to the internal wall. The external part of the masonry block wall was underground. Mr Maggs testified that the mildew on the southern wall did not wipe off which was consistent with mildew growing from the back.[10] He testified he felt dampness on the southern wall and corner of the eastern southern wall.[11] He clarified that the dampness was ‘an impression of dampness’[12] as no moisture was visible.
[10]Transcript p. 19 l. 31
[11]Transcript p. 23 l. 20
[12]Transcript p. 23 l. 42
As the wall was partially underground his experience was that inadequate tanking[13] had allowed water to penetrate the wall. He could not check the tanking because outside there was a concrete path outside the southern and western wall which acted as a retaining wall to a garden.
[13]The term used to describe the waterproofing of the wall
After the inspection Mr Maggs prepared a BSA Initial Inspection Report.[14] That report had the relevant items of concern as:
[14]Exhibit 5
· Complaint number 1: moisture penetration of the internal wall of the bathroom.
· Complaint number 3: ponding of rainwater in the right hand gutter caused by it not being straight.
· Complaint number 5: moisture penetration on the internal side of the external wall behind toilet.
Complaints 2 and 4 were found not to be the licensee builder’s responsibility.
Mr Magg’s next step was to make a request to rectify to the licensee:
“the procedure was that you gave out a request to rectify which is friendly, giving the licencee a period of time to go back, rectify the work and we close the file. If the work is not rectified, we then go to direction from there on. At the time, there was a change being put in place where you phoned the builder and notified him that there would be, or there was defects; was he prepared to go back and rectify the work. Now, I can't honestly say whether Mr Wilson was rung up or not. I can't honestly say that. That may have come in at a later date. However, if he was not rung up, the next step in the procedure would be to notify the licencee that rectification was required by a request to rectify letter.”[15]
[15]Transcript p. 31
The request to rectify letter was sent on 4 March 2010. The items to rectify or complete were to be done in 28 days. These items were:
Tanking of that part of the wall below ground level is to be rectified to prevent moisture penetrating through masonry block wall.
Moisture barrior (sic) for that part of the masonry block wall above ground level will need to be rectified to prevent moisture penetrating through masonry block wall.
Any consequential damage to internal side of masonry block walls plus floor tiles.
Gutter on the right hand side of shed to be rectified to prevent ponding.
On 27 April 2010 Mr Maggs met with Mr Wilson. Mr Maggs could not recall whether he was called by Mr Wilson to check the rectification work or to discuss certain modifications to the outside that Mr Wilson considered had enhanced the problem of moisture been forced against the wall. Mr Maggs did not believe the construction of the garden bed contributed to water penetration.
Mr Maggs was aware some rectification work had taken place as he was told by Mr Wilson that he had administered some waterproofing or tanking along the junction of the concrete path on the junction of the concrete and the southern wall. There was an indication of a black product being put along there. Mr Maggs said this was not adequate and that the concrete path near the back wall would have to be excavated and the tanking on the part of the wall below ground rectified.
Mr Maggs believed the black product was called Pabkote. He then made inquiries as to the correct application of Pabkote:
it says three to five coats are to be applied, but in this documentation here on the second page, number 1, which he brought to my attention, was that the surface should be filled with concrete and sand mortar where necessary, meaning any cracks, any joints which would bring in the joint between the bottom masonry block and the slab should be - have a fill-it of three-in-one sand and cement, and it should be covered over the joint so that the joint of there or any cracks in the wall are protected prior to the Pabkote being applied.[16]
[16]Transcript p. 35 l. 35
Further the material said any large cracks and corners should be treated in this manner. Then at pages four and five the instructions directed the Pabkote to be applied using horizontal strokes brushing on a heavy coat of Pabkote type 3, approximately one millimetre thick and allowing to dry the next coating was then applied with vertical strokes.[17] Mr Maggs said he was told by Mr Wilson he had put it along the crack and that he believed this would stop the moisture.
[17]Transcript p. 36 l. 1
It was after this inspection that Mr Maggs then initiated the DTR (exhibit 2).
On the 6 May 2010 Mr Wilson again called for a re-inspection. Mr Maggs took with him for the inspection a moisture meter that measured moisture. He said the moisture metre gave a high reading near the bottom of the wall where it was underground and towards the top of the wall, while it still indicated moisture, there was a much lesser reading.
Mr Wilson disagreed with the reading and the DTR. Mr Maggs said the DTR would stand and advised him to take the matter to Queensland Civil and Administrative Tribunal (QCAT).[18]
[18]Transcript p. 41 l.12
Mr Singh then requested a BSA inspection of the work carried out by Mr Wilson. This inspection took place on 15 June 2010. In the ensuite bathroom the white set plaster had been removed from the walls and the shelves taken off the wall. The plaster and shelves had not been replaced. While there was evidence of internal coating to the walls Mr Magg’s considered there was no evidence of the path being taken up or any excavation being done and concluded the required external tanking could not have been done. He also testified there was no evidence of any outside tanking.
On the 23 June 2010 Mr Maggs completed the paperwork to initiate the issuing of an infringement notice for failing to comply with a DTR.
The next part of the process is explained by Mr Maggs in testimony:
With the process of the BSA, we can ask for work to be rectified. We do not tell the licensee how to rectify. We just say that it must be rectified to comply. We do not do inspections of work to see that the work is being carried out in a compliant manner or in a workmanlike manner. All right? So, in the case of this, because there was a failure to rectify given to the licensee, it was then signed off as a complaint form and taken over or sent over to insurance who then assessed it to see if it was eligible to be rectified under Building Services insurance, which a licensee pays a fee for on each job. It went over to insurance and insurance assessed it and said that it was eligible to be done under insurance. So, it was put out to tender. The tenders come in. The person who was awarded the tender does the work. Now, he is responsible to get any council or building approvals or any inspections, if required by the person giving the approval, which can be a council or a private certifier. We do not go onto the job to inspect the job. However, I can say to the builder who is doing the rectification work, as you go through your job, can you supply me with photos so that I can keep up with the procedure of the job.[19]
[19]Transcript p. 48 l. 44
The photos referred to are exhibit 10.
In cross-examination Mr Maggs conceded he had no evidence that after Mr Wilson did some rectification work the complained of problems continued. [20]
[20]Transcript p. 73 l. 3
Mr Brady, an experienced builder, submitted a quote for a scope of work for rectification of property and was successful in getting the work. During the rectification work he testified he excavated the external walls (southern, western and part of the eastern wall) and observed the application of Pabkote and said it was sporadically applied[21] with some areas of the wall with no application. He characterised the installation of waterproofing as “very poor”.[22] In cross-examination Mr Brady denied his excavation could have removed any waterproofing. He also did not accept that the placing of the garden near the retaining wall would contribute to the moisture problems. He testified “Well, the garden bed should have no effect on the wall if the wall has been waterproofed properly”[23] Mr Wilson in his evidence rejected Mr Brady’s assertions that no waterproofing had been applied.[24]
[21]Transcript p. 79
[22]Transcript p. 80
[23]Transcript p. 83
[24]Transcript p. 53
In response to the Prosecution case the Defendant both gave and called testimony. Mr Wilson testified that he had been a builder since the 1960s’. This matter was his first serious complaint. As to the relevant complaints he testified when constructing the external walls he applied what they call a 40, 30, 30 which is a mix of cement, bondcrete and a sand slurry that is made into a paintable mixture. This was painted below the level of the solid window on the wall prior to any backfill being laid. He testified this application is normal on block work and in concrete work.[25] He further testified that the ‘slurry’ is a recognised waterproofing. Once that the slurry was put on the wall he then applied a plastic like a poly cover to the whole of the wall and backfilled it and then poured a concrete slab of 600 hundred on top of that. The plastic was present not as a waterproofing, as Mr Brady testified, but only to hold the waterproofing in place so it doesn’t get damaged when the wall was backfilled. He testified that the photographs of damaged plastic indicated the plastic was damaged in excavation.[26]
[25]Transcript p. 87
[26]Transcript p. 88-89
Once he completed the wall in 2007 he was confident that water could not come through the wall.[27]
[27]Transcript p. 89
The first complaint he received from the owner was in December 2009 about water coming in through a window. He addressed this by directing the glazier who had fitted the windows to return and rectify the problem with the window.[28] He received no other complaints.
[28]Transcript p. 90
On 4 March 2010 he was notified by Kerry Maggs of the problem with moisture. He testified that it was his firm belief that the design of the garden had exacerbated problems. However, he also conceded there were some leakage problems and some defective work.[29] However, as of 4 April 2010 he moved to rectify the problem. The rectification included the hire of a mini-excavator that he used to excavated 80% of the wall and applied slurry to a crack where the water was coming in which was where the brick sat on the rebate.[30] He also applied some Pabkote as an extra measure but this was not the primary waterproofing.[31] Mr Wilson testified that on the second occasion he concentrated his slurry on where the water was coming in.[32] The fact of excavation work was done was also sworn to by Mr Wilson’s son who observed the excavation.[33]
[29]Transcript p. 92
[30]Transcript p. 97 - 98
[31]Transcript p. 99
[32]Transcript p. 110 l. 40
[33]Transcript p. 150
Mr Wilson was asked his opinion of Mr Brady’s work. He thought that his work was no different to what he did only that it looked cleaner as it was newer.[34] With respect to the application of Pabkote he explained he had poured the Pabkote as an experiment to see if it would remedy the job. He testified that this had not worked hence the excavation and the application of the slurry.[35] He later supervised the Pabkote being painted on as an extra safeguard.
[34]Transcript p. 101
[35]Transcript p. 103
Mr Wilson also testified he did rectification work on the inside of the bathroom. He removed the plaster and said that while there was mould on the outside of the plaster near the toilet and cistern he considered this was because of the window leaking. There was no mould on the walls when the plaster was removed.[36] He originally had not plastered the wall and was emphatic in his testimony that he would not plaster a bathroom with the type of plaster used. Further he said the plaster had not adhered properly and had just come off in slabs.[37]
[36]Transcript p. 105 l. 8
[37]Transcript p. 105 l. 55
In summary, Mr Wilson asserted he complied with the first two limbs of the DTR by, in addition to the external excavation and tanking referred to previously, by removing all the plaster inside the bathroom and with a grinder cut a groove below the depth of the tiles around the whole perimeter of the wall and filled that groove with two-pack epoxy. He then painted the wall from floor to ceiling on all three sides of the work. He gave three coats which would be about 2.5mm thick. He testified the result was “that in itself is a water tank. It will withstand any amount of water.”[38] With respect to the third limb of the DTR (any consequential damage to internal side of masonry block wall plus floor tiles) he testified, correctly, a later inspection of the house by a BSA Inspector Billy Courtney deemed the tiles not to be defective and this scope of works was withdrawn. As to the consequent damage to the plaster Mr Wilson testified that the original application of the plaster (by a person engaged by the owner) was totally wrong and that he found it laughable[39] to be asked to do reapply plaster where the original application was so flawed. He was aware the shelves were not put back but his position was that the shelves should be replaced after the BSA inspected the room and ruled how the rendering was to be reapplied. The only successful method would be totally different to what was actually used.[40]
[38]Transcript p. 110 l. 1
[39]Transcript p. 112 l. 33
[40]Transcript p. 112 l. 45 and Transcript p. 113
In cross-examination Mr Wilson conceded he did not do any further rectification work from the giving of the DTR to 30 May 2010.[41]
[41]Transcript p. 124 l.27
Thomas Sargent, the Area Manager of the BSA, was called as a witness by the defence. Mr Sargent had inspected the property subsequent to the rectification work by Mr Brady. The owner was still complaining of leaks in the bathroom. Despite extensive checks Mr Sargent was unable to discern any water leak. Mr Sargent had also agreed with Mr Courtney’s assessment that there was no defect in the tiled floor.[42]
[42]Transcript p. 139 – 140.
Mr Sargent also testified that he was aware of the situation with the plastering of the walls. He stated the render in the bathroom was a white set plaster. This is a very porous material and it sucks up moisture. This type of brick to plaster, or white set plaster, is not used in a wet area situation especially in a basement area.[43] When he inspected the bathroom it had been re-rendered but there were still marks. He could not find a leak and speculated that there might be other causes for moisture penetration such as condensation.[44]
[43]Transcript p. 140 l. 40 - 50
[44]Transcript p. 141 l. 10 - 30
Mr Sargent’s opinion of the inappropriateness of the application of plaster was supported by Mr Bowden, an experienced plasterer, who testified for the defendant. Mr Bowden described the samples of plaster he had seen, taken from the walls of the bathroom by Mr Wilson, as cornice cement.[45] To apply it correctly to a concrete rendered wall would require a bonding agent such as Boncrete. Without a bonding agent it would just peel off. Once applied in this manner it could not simply be peeled off the wall.[46] Mr Bowden inspected some of the plaster samples held by Mr Wilson and testified there was no evidence of moisture on the samples.
[45]Transcript p. 157 l. 9
[46]Transcript p. 158
Mr Sergeant conceded that a Boncrete mix could be used as a waterproofing but it was not his preferred choice given it was prone to cracking if there was movement.[47]
[47]Transcript p. 145
DISCUSSION
The Prosecution, in their submissions, put their position as to why the DTR was not complied with as follows:
(1) Mr Brady stated that the Pabkote waterproofing membrane coat was both sporadic and incomplete in places
(2) The defendant stated that he did not attend the property during the rectification period. The Authority respectfully submits that the Defendant could not have rectified the defective or incomplete tanking (Pabkote) to that part of the external wall that was below ground in compliance with the Direction.
Item 2 requests that the moisture barrier for that part of the masonry wall above ground level will need to be rectified to prevent moisture penetration.
The Defendant stated that he did not attend the property during the rectification period. The Authority respectfully submits that the Defendant cold not have rectified the defective or incomplete tanking to that part of the external wall that was above ground in non-compliance with the direction.[48]
[48]Prosecution submissions paragraphs 20 and 21
With respect to the third direction they submit there was a failure to comply as the consequent damage to the internal wall (the plastering and the shelves) was not restored as required and on the Defendant’s own admission he did not go to 12 Punchard Street after the giving of the DTR.
For the Defendant Mr Weston submits that the Defendant went to extraordinary lengths to comply in full with what was in the circumstances ill-advised and incorrect directions and decisions of the BSA. Further Mr Weston submits that it is irrelevant that the completed rectification works came after the initial informal direction but before the DTR was issued.
As I understand the Prosecution submission, while they don’t accept ‘adequate’ rectification work was done prior to the giving of the DTR, they submit that even if I were satisfied that work was done this work cannot amount to compliance with the DTR as it was not done in the rectification period. The rectification period is from 30 April 2010 until 28 May 2010.
With respect to the Prosecution I find this a troubling submission.
The prosecution of Mr Wilson is a criminal prosecution. However, the conduct of the investigating authorities does not accord with what would be expected in an ordinary prosecution. Importantly, the Defendant was never given the opportunity to be interviewed and state what was exactly done in rectification. Rather, Mr Maggs proceeded on the basis of hurried conversations with the Defendant where certain assumptions were made. These assumptions were that no excavation had taken place and Pabkote had been poured down the walls as the primary tanking agent.
The evidence of Mr Maggs, who gave the DTR, was that he met with the Defendant briefly to discuss the work with the main discussion being about the problems been created by the garden. Mr Maggs had no notes of this conversation. However, the effect of his evidence is that as of 27 April 2010 the only rectification that he believed had been performed by the Defendant was that black Pabkote had been put poured along the junction of the concrete and southern wall[49] with no other action done to any other wall.[50] On 27 April 2010 he did not believe there had been any other rectification work and had not gone into the bathroom.[51]
[49]Transcript p. 33 and 34
[50]Transcript p. 34 l. 22
[51]Transcript p. 44
The next inspection was on 15 June 2011 at the behest of the owner. There he saw the white set plaster had been removed and the shelving taken out. He testified there was no evidence of excavation so the tanking could not have been done. In respect of this issue he was relying on what Mr Singh had told him that no excavation work had been done.[52] Mr Singh was not called by the Prosecution as a witness. This finding was also recorded in the re-inspection report (exhibit 7):
On entering the room it was evident that the white set plaster had been removed from all the surfaces of the internal walls. The wall had been coated with a form of water proofing and then painted. The shelving had been removed and dumped but not replaced.
An inspection was carried out on the outside of the structure at Mr Singh’s request to witness that non (sic) of the work required in the direction to prevent water penetrating the Masonry Block wall had been attempted apart from the waterproof coating used on the inside being painted onto the concrete path at the end of the structure.
[52]Transcript p. 43 l. 30 - 40
From the evidence heard in the trial a compelling case has been presented that indeed Mr Wilson did excavate the western and eastern walls to their footings[53] and the southern wall to as far as the stairs.[54] Mr Wilson presented as an impressive and frank witness. In particular, while he made no attempt to disguise his ongoing disagreement with Mr Maggs’s assessment of the cause of the damage he also conceded that some of his work might have contributed to the problem. At p. 126 he testified:
I acknowledge that there was moisture coming in partly due to my part in the business. Like, there was water coming in between the block and the concrete. I admitted that. I did rectify that.
[53]Transcript p. 116
[54]Transcript p. 117
His evidence as to excavation was supported by his son and a detailed description of hiring a mini-excavator. Further he gave a detailed description of how he rectified the tanking (or waterproofing) with the slurry mix and additional application of Pabkote as a back up.
Mr Magg’s conceded under cross examination that he could not say if the problem of leaks were rectified by the defendant’s work:
Is there any proof at all that the problem continued after he did his initial works? As I said under the Building Services policy, I don’t do inspections. I was never called back there to see and unless it was raining, you would never know whether problem existed still or not.
Sure. But - okay. But you did do inspections on the property? I went back on a visual inspection to see after a request by the owner to look at the work that George Wilson had carried out. I did not go back there to see if water was still coming through. As far as I went back there, as far as I was concerned and still concerned is that the direction that George Wilson was given and the 28 days that George was given to do it, was not complied with. That is what we are here for.[55]
[55]Transcript p. 72
Further the visual inspection he performed did not include any excavation.
The evidence of Mr Brady, the rectifying builder, was focused on the application of the Pabkote being sporadic and incomplete. He did not, and unfortunately was not asked to comment upon, the other waterproofing application of the slurry. However, his evidence as to the application does provide some corroboration for the evidence of the defendant as he testified that the application of Pabkote, while sporadic, went in some places “right down.”[56] As Mr Brady excavated to the floorings I take his meaning to mean in some places the Pabkote extended down to the floorings. For this to occur it must mean that Mr Wilson excavated down to the floorings as he testified.
[56]Transcript p. 79
With respect to Mr Brady’s assertion that there was no waterproofing I reject this assertion. The Prosecution submits with respect to resolving the conflict between Mr Brady’s evidence and the Defendant I should apply the Rule in Browne and Dunn and essentially be reluctant to dismiss the evidence of Mr Brady when he did not have the opportunity to deal with the matter in cross-examination. I raised the matter of the application of Browne and Dunn in the hearing after the conclusion of Mr Wilson’s evidence when it became apparent that little of what Mr Wilson testified to as his actions had been put to Mr Brady or, perhaps less significantly, given he did no excavations, to Mr Maggs. The Prosecutor was clear that the Authority’s case revolved around the failure to comply being based on the admitted failure during the rectification period to comply with the DTR[57] and did not seek that he be permitted to re-open his case to allow the witnesses to be called to respond to the allegations of Mr Wilson. Nor was it put to the Defendant that he was not been truthful about his evidence of rectification. The authorities are clear that the Court should be cautious as to the application of Browne v Dunn in criminal proceedings[58] especially where the decision not to cross-examine may be that of the legal practitioner rather then the defendant. In this case I am satisfied that any infringement of the rule can be accommodated by noting in assessing Mr Brady’s evidence that the specific acts of rectification were not put to him. I don’t accept the Defence allegations Mr Brady was biased because of some purported irregularity in the tender process. This allegation was also not put to him. Rather the more probable explanation is that the concentration of Mr Maggs was on the application of the Pabkote rather then the existence of another waterproofing medium. While not accepting Mr Brady was as a biased witness I found some of his evidence less reliable then that of the other witnesses. For example, he related the dampness in the tile grounding to moisture penetration[59] when Mr Courtney upon a reinspection considered there was no fault with the tiling relating to the work of Mr Wilson. He also testified that apart from the application of Pabkote there was no other sign of any rectification work performed.[60] This I am satisfied was incorrect. There was upon the evidence of Mr Wilson and his son a significant amount of rectification work done before Mr Brady entered on the property. As I have already noted Mr Brady was perhaps concentrating on the application of Pabkote as directed by Mr Maggs rather then the application of other water proofing agents. I prefer the evidence of Mr Wilson on the basis that he was explicit that the waterproofing was done originally as specified and then redone to stop leaks with the application of slurry and of Pabkote. Mr Brady reported accurately the state of the Pabkote he observed but did not make any observation of the slurry with Boncrete underneath the Pabkote.
[57]Transcript p. 131
[58]R v Foley[1998] QCA 225
[59]See Transcript p. 80 l. 32
[60]See Transcript p. 81 l. 40 -50
Mr Brady also testified as to moisture coming through the grout lines of the tiles. However, this testimony cannot support a finding that the tanking applied by Mr Maggs was inadequate given the evidence of Mr Courtney (another BSA inspector) who found that Mr Wilson, had not performed defective works in any form in relation to the tiles. As a result of that finding directions regarding the tiles were withdrawn.[61] Mr Brady does not comment upon the sealing of the internal walls.
[61]Transcript p. 134 p. 20
I accept Mr Brady’s evidence that the application of Pabkote he observed was not adequate in that it did not comply with the accepted method of application. However, the Defendant’s evidence was that Pabkote was not the primary tanking agent but was used firstly as an experiment that was not successful and then as an added assurance. With respect to the issue of compliance the DTR does not specify that Pabkote should be used for the tanking. As Mr Maggs explained the purpose of the DTR is not to tell the builder how to rectify but what he should rectify. The DTR requested rectification of tanking to that part of the wall that is below ground to prevent moisture penetrating through the masonry brick wall. The actions of the Defendant prior to 27 April 2010 impressed me as meeting the requirements of the rectification. While his choice of slurry as a waterproofing may not be every builder’s choice the weight of evidence was that it was perfectly acceptable as a waterproofing agent. Mr Sargent, from the BSA, conceded that the slurry could be used but that he would prefer a bitumen type compound such as Pabkote.[62] Mr Sargent’s reasons seem perfectly acceptable but the Defendant also gave his reason, as an experienced, builder for his choice.
[62]Transcript p. 142 - 143
With respect to the second item the Prosecution does not argue that the actions of the Defendant in rectifying the moisture barrier internally were inadequate. The defendant’s testimony as recited previously was that he cut a groove below the depth of the tiles around the whole perimeter of the wall filled that groove with two-pack epoxy. He then painted the wall from floor to ceiling on all three sides of the work. He gave three coats which would be about 2.5mm thick.
In the circumstances that Mr Maggs himself was unable to say whether the defendant had remedied the defect by his actions prior to 27 April 2010 or not I cannot find beyond reasonable doubt that the Defendant’s actions did not remedy the defect.
That finding would indicate that the grounds of giving the DTR were flawed. However, that issue is essentially irrelevant to the determination of this matter.
A DTR may be given under s 72(1) of the QBSA Act. That section provides
If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
Section 72 (15) of the QBSA Act provides that a direction given under this section need not be complied with if—
(a) a proceeding for a review of the authority’s decision is started in the tribunal; and
(b) the tribunal orders a stay of the decision.
The decision to direct a rectification of defective building work is a reviewable decision pursuant to s 86(e) of the QBSA Act and the QCAT is the reviewing tribunal. As no review was ever applied for then the question for the Court in this prosecution is not whether the DTR was correctly made but whether the DTR was complied with.
Strong support for that proposition is found in the case of Semmens v Thomas [2002] QDC 333 where Judge Wilson (as he was) considered an appeal from a decision of a Magistrate at Southport to acquit the Defendant on a complaint that under s 72 of the QBSA Act he failed to rectify defective or incomplete building work. The basis of the acquittal was the Magistrate determined the Defendant was a “worker” and not a “contractor” and he was employed for wages. His Honour said at paragraph 14:
The scheme of that legislation is clear. The Authority issued a DTR, as s 72 empowered it to do. The respondent was, whether a simple employee or not, a proper recipient of that notice: s 72(2) (d). If he was unhappy, he was entitled to submit a review application under s 99. A failure to do so effectively constitutes an acknowledgement of the DTR, and is an offence of strict liability.
The purpose of the prosecution under s 72 was to establish and, if appropriate, punish the respondent for his failure to comply with the DTR, not for his alleged poor performance of the work, or involvement in its poor performance at the hands of others. S 72 provides the Authority with a remedy which balances the completing interests of the disadvantaged consumer of building services, and the respondent. Had the respondent informed the Authority within the statutory time frame of the matters raised at his trial, a DTR could have issued to his employer and the Authority might have been able to attend more swiftly to resolving the consumer’s complaint. Clearly, s 72 and prosecutions under it are directed to this mischief.
The decision in Semmens is consistent with the decision of Parrella Enterprises P/L v Cannavan [2006] QCA 35 where the Court of Appeal considered the issue of whether upon a charge of displaying for sale an objectionable film the Defendant could cross examine on the issue of the process of classification. Classification was determined under Commonwealth legislation. That legislative scheme included a review process. The Chief Justice held (at para. 8):
The classifications were established by the production and tendering of the certificates in reliance on the evidentiary provisions of the Queensland Acts. As I have said, there was no objection to that tender. The certificates did not establish the classifications conclusively: it might, for argument’s sake, be open to a defendant, in an appropriate case, to establish that a certificate was produced fraudulently, or that it was a forgery, or that the signatory was in fact not authorized. But it did not fall to the prosecution, relying on the certificates, to establish compliance by the classifying authority with the process and the criteria for classification established by the legislation.
In the context of this case it would be always open to the Defendant to raise the issue that the DTR was a forgery but like in Parella Enterprises I am satisfied that the Prosecution does not have to prove that the DTR was properly given. If the Defendant wanted to contest that issue he had to avail himself of the appropriate review mechanism to QCAT. By his failure to take a review of the DTR to QCAT Mr Wilson was compelled to comply with the DTR.
As I understand the Defendant’s submission he does not contest that it would be improper for me to determine the matter on whether the DTR was properly given. His submission is that the direction was “ill advised and incorrect” but the Defendant went to great lengths to comply and that the Prosecution has not proved its case. The Prosecution upon their submissions concede that they must prove that the Defendant failed to rectify the building work as required by the Direction. In that respect this case is different to Semmens where there was no dispute that the rectification work had not been done. Where Semmens speaks of an offence of ‘strict liability’ this cannot extend to the very essence of the prosecution case that the Defendant failed to rectify building work as required by the direction. The offence provision provides that a person who fails to rectify building work as required by a direction under this section is guilty of an offence. The gravamen of the offence is that the person fails to rectify building works as required by a direction. The failure to rectify must be a matter for proof by the Prosecution. That is, the Prosecution must prove is that the Defendant did not put right defective building work in accordance with the DTR.
The giving of a DTR cannot be regarded as conclusive proof that the prior inspection or opinion of the giver, in this case Mr Maggs, was correct. In this case the evidence compels the finding that his opinion as to what had been done to rectify was quite wrong. Rather the giving of a DTR, that is not overturned on review or withdrawn, requires that it be complied with whether or not it is correct. As the Prosecution submit[63] the sole issue before the Court is whether the Defendant complied with the direction.
[63]See p. 2 para 6 of Prosecution submissions
I can find nothing in the authorities to compel the conclusion that the Prosecution submits that because the actions to rectify were done before the giving of the DTR then the builder in not redoing the same actions after the giving of the DTR is in breach of the DTR if the trier of fact concludes that the original actions did indeed put right defective building works.[64]
[64]See p. 4 para 16 of Prosecution submissions
The logical conclusion of the Prosecution’s submission must be that if I am satisfied that the Defendant did not attend the premises after 27 April 2010 then he must be convicted. It is irrelevant that his actions before that date amounted to rectification of the problem. It also must follow that if I am satisfied that the Defendant did rectify the problems prior to 27 April 2010 to comply with the DTR he would have had to re-do his work after 27 April 2010 to comply with the DTR. If he had redone his work in exactly the same manner as he had done prior to 27 April 2010 then he would have complied with the DTR.
With respect to the Prosecution’s submission the question of when the rectification work is done is not the determinative factor in fixing criminal liability rather the determinative factor must be whether as of 29 May 2010 the Prosecution can prove beyond reasonable doubt that the Defendant had failed to rectify building work in accordance with the DTR.
With respect to the first two items discussed, the external tanking and the internal moisture barrier, I am satisfied that the Prosecution have not proved beyond reasonable doubt that as of 29 May 2010 the Defendant failed to comply with the DTR. My reasons for that finding are summarised from my discussion above:
(1) I accept Mr Wilson as a witness of truth and an experienced and careful builder. His account of the rectification work undertaken by himself with respect to external tanking and internal moisture prevention was persuasive as to its effectiveness in treating the problem that he observed by excavation.
(2) Mr Wilson’s evidence as to excavation was corroborated by his son and to a more limited extent Mr Brady.
(3) The weight of the evidence was that the boncrete slurry mix applied could be used as a tanking agent.
(4) Mr Maggs was unable to say whether the original rectification work remedied the defect.
(5) I prefer the evidence of Mr Wilson to that of Mr Brady. While it was not put to Mr Brady that there existed on the walls he excavated waterproofing (the slurry boncrete mix).
I then turn to consider the final component of the DTR: the rectification of consequent damage to the internal wall. The two aspects of consequential damage of the rectification work referred to in the evidence are the plaster render and the shelving. The Defendant admits he removed the plaster and the shelving and that neither were replaced by himself. As I understand the case for the defendant is that the consequent damage to the plaster was not caused by water penetration but rather the substandard application of plaster by another person. That is the plaster was improperly laid and any moisture/mildew came from a) wet season humidity in a below ground room, b) pooling water due to uneven tiles or c) small water leaks from an improperly glazed window.
The DTR is not entirely clear whether the term ‘consequent damage’ is consequent damage from the original defective building work (i.e moisture penetration) or consequent damage from the rectification process. Consequent has the meaning when used as an adjective of “following as an effect or result; resulting”[65] and its use in the DTR following the first two directions must be read to mean damage resulting from both the original defective building work and the rectification of that building work. The words of the DTR are You are directed to rectify the following defective ..building work…“Any consequential damage to internal side of masonry block wall plus floor tiles”[66] As I understand Mr Maggs evidence the consequent damage referred to both damage from the ingress of water and damage from the process of rectification. That is while the process of rectification could not see the owner in a better position he was entitled to not receive a lesser standard because of the need for the licensee to rectify defective building works.[67]
[65]Oxford English Dictionary accessed 23 Nov 2011.
[66]The floor tiles were subsequently removed from the DTR as discussed previously.
[67]Transcript p. 42 - 43
Upon the defendant’s own admission there were some leaks in the wall that allowed water into the bathroom. Those leaks were the focus of his rectification works. To permit rectification the plaster and shelves were removed and a moisture barrier applied. This barrier could not have been applied without the removal of the plaster and the shelves. Once he completed rectification of those matters the DTR required him to rectify consequent damage.
The binding effect of the DTR, which I have accepted, simply does not permit me to find that there were reasons why the consequent damage should not be fixed. That issue was one to litigate upon a review of the DTR. Given the evidence of the Defendant, Mr Sargent and Mr Bowden as to the issues with the original application of plaster it may have been that the Defendant would have had a powerful argument that either the damage to the plaster was not consequent upon water penetration or that effective rectification was simply not possible given the original flawed installation and it would be unjust to order him to replace the plaster. That however is not an argument I can entertain because it goes to the merits of the DTR.
The evidence compels the conclusion that the internal rectification process undertaken by the Defendant required the removal of the render and shelves. To comply with the direction this consequent damage should have been remedied. It was not. I have noted the Defendant’s reasons for not replacing the shelving and plaster: with respect to the plaster he thought that was simply “laughable” given the original application[68] and with respect to the shelving he was essentially waiting for the BSA to advise him who was responsible for the render before replacing the shelving.[69] I accept his reasons as truthful. However, the focus of these criminal proceedings is not, as I have emphasised, on the correctness or otherwise of the DTR but on whether the Defendant complied with the DTR. As Judge Wilson said in Semmens with respect to the failure to seeks a review of a DTR that failure to do so effectively constitutes an acknowledgement of the DTR, and is an offence of strict liability.
[68]Transcript p. 112 l. 32
[69]Transcript p. 113 l 35 - 40
With respect to item 3 the only finding possible on the evidence is that the Prosecution have proved beyond a reasonable doubt that the Defendant did not remedy the defective building work being consequent damage as required by the DTR. Although I have found in the Defendant’s favour with respect to the first two limbs of the DTR the failure to comply with the final direction constitutes I am satisfied a failure to remedy defective building work as required by the DTR.
Accordingly, as I am satisfied that the Prosecution has proved both elements of its complaint beyond reasonable doubt I convict the Defendant.
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