Regen Property Services Pty Ltd t/as Regan Resurfacing v Queensland Building and Construction Commission
[2023] QCAT 455
•28 November 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Regen Property Services Pty Ltd t/as Regan Resurfacing v Queensland Building and Construction Commission [2023] QCAT 455
PARTIES:
REGAN PROPERTY SERVICES PTY LTD T/AS REGAN RESURFACING (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO:
GAR171-22
MATTER TYPE:
General administrative review matters
DELIVERED ON:
28 November 2023
HEARING DATE:
20 November 2023
HEARD AT:
Brisbane
DECISION OF:
Member McVeigh
ORDERS:
1. The Commission’s decision of 4 April 2022 that the rectification work had not been completed to a satisfactory standard by 22 June 2022 is set aside.
2. The decision of the tribunal that the rectification work listed in direction to rectify 108888 had been completed to a satisfactory standard by 22 June 2022 is substituted.
CATCHWORDS:
ADMINISTRATIVE LAW – Queensland Civil and Administrative Tribunal – whether decision of the Queensland Building and Construction Commission should be set aside
PROFESSIONS AND TRADES – Builders – Statutory powers to require rectification of defective or incomplete building work – whether rectification work had been completed to a satisfactory standard within the time nominated
Queensland Building and Construction Commission Act1991 (Qld), s 3, s 72
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 20, s 24
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Gadens Lawyers
REASONS FOR DECISION
What the applicant wants
Regen Property Services Pty Ltd (applicant) was given direction to rectify 108888 by the Queensland Building Services Commission (Commission). The applicant was given until 22 March 2022 to address the items on the list attached to the direction. Each item on the list identified an unsatisfactory finished appearance in paintwork. The applicant arranged for a licensed contractor to address all the items on the list. The re-painting was done to the satisfaction of the owner by 18 March 2022.
On 4 April 2022 the Commission decided that the rectification work had not been completed to a satisfactory standard. Not surprisingly, given the applicant had arranged and paid for a licensed contractor to address all the items identified in the list, and given that that work had been completed to the satisfaction of the owner by 18 March 2022, the applicant seeks a review of that decision.
Facts
The applicant contracted with the owner to etch, prepare, prime and apply finish coats of gloss paint over wall tiles in the bathrooms and laundry.[1]
[1]Exhibit 2.
The owner was not happy with the result and complained to the applicant. The applicant made a number of attempts to patch and correct the work. For health reasons the applicant could not complete the rectification. In June 2020 the applicant refunded $1670 to the owner. [2]
[2]Hearing book, p 61.
The applicant maintains that the money was paid to resolve the owner’s complaints. The applicant believed that the owner would use the money to affect the repairs. However, the arrangement was not clearly documented.
On 29 June 2021 the owner lodged a complaint with the Commission.[3]
[3]Hearing book, p 54 - 65.
On 1 November 2021 an officer of the Commission inspected the work. He reported that the complaint related to peeling paint finish on tiles in the WC, main bathroom and laundry. He noted clearly visible paint defects. He referred to both Appendix C4 of AS 2311:2017 and the QBCC Standards and Tolerances Guide, Section 13, Painting, Part 13.2. He decided that the installation of the internal applied paint finish to the wall tiles in the WC, main bathroom, vanity area off the main bathroom and the laundry were not in accordance with either AS 2311:2017 or the QBCC Standards and Tolerances Guide because there were areas of cracking, blistering and paint peeling from the wall tiles.[4] His report makes no reference to waterproofing or silicone.
[4]Hearing book, p 73 - 82.
The Commission issued direction to rectify 0108597.[5]
[5]Hearing book, p 83 - 85.
On 14 December 2021 the applicant lodged an application for an internal review of the decision to issue direction to rectify 0108597. The applicant argued that it was not fair to issue the direction as it had compensated the owner by payment of $1670 in exchange for being relieved from its obligations to complete the defect rectification. It also argued that as the owner had made her own attempts at rectification there was no means of knowing whether the observed defects were in the original work or in the work done by the owner. The reviewer was not satisfied that any unfairness was outweighed by the Commission’s statutory obligation of providing remedies for defective building work.[6]
[6]Hearing book, p 86 - 93.
The Commission issued direction to rectify 108888 dated 15 February 2022.[7] The defective work list was identical to the list in direction to rectify 0108597.
[7]Hearing book, p 94 - 96.
While maintaining that it should not have been directed to rectify the paintwork, the applicant decided, in the interest of customer satisfaction, to do as it had been directed. The applicant took immediate steps to attempt to obtain quotes for the resurfacing works from a licensed contractor, but experienced difficulty in finding any licensed contractor prepared to take on the work.[8]
[8]Hearing book, p 99.
On 4 March 2022 the applicant obtained a quote from a licenced contractor to rectify the work by completely stripping and repainting the tiled areas.[9]
[9]Hearing book, p 115.
The owner was not prepared to allow access until:
(a)she had answers to queries about:
(i) whether the contractor would warrant his work;
(ii) whether the contractor would remove and reinstate silicone, remove and reinstate taps, light switches, etc;
(iii) whether the contractor’s quote included home warranty insurance; and
(b)she was released from hospital.[10]
[10]Hearing book, p 114.
The applicant spoke to the Commission officer about these queries and relayed the conversation to the owner.[11]
[11]Hearing book, p 112.
The licensed contractor started the rectification works on 10 March. On 11 March he stopped work. There was a disagreement between the owner and the applicant regarding removal and replacement of silicone. The applicant said that the licenced contractor could cut in to the silicone. The owner and the applicant sought guidance from the officer of the Commission who had inspected the work. He reminded them that the Commission does not tell a licensed trade contractor exactly how to rectify the works and urged them to work together to fix the paintwork. Having stated the Commission’s position, he added a warning regarding possible water ingress if the silicone seal was lost during the rectification of the paintwork and noted that the silicone would need to be reinstated after the new paintwork was done.[12]
[12]Hearing book, p 102.
Despite maintaining the view that the painter could cut in to the silicone that had been applied by the owner, the applicant decided, in the interests of keeping its client happy and so as not to lose the only licensed contractor who was prepared to do the work, that the contractor would remove all the silicone as part of his preparation work and that the applicant would arrange someone to reinstate the silicone after the painting was complete.[13]
[13]Hearing book, p 101.
On 17 March the owner advised the applicant that she was happy with the work of the rectifying contractor and also happy for Cheryl to complete the silicone work, but not on the proposed date as it was not convenient.[14] The alternative proposed date was not convenient either.[15]
[14]Hearing book, p 117.
[15]Hearing book, p 168.
On 29 March the applicant advised the owner that Cheryl had been asked to liaise direct to find a mutually convenient time to do the work, noting that Cheryl was booked up for the next two weeks.[16]
[16]Hearing book, p 119.
On 5 April the owner advised the Commission that the silicone work had been booked for 13 April 2022.[17]
[17]Hearing book, p 138.
On 13 April 2022 the silicone work was completed.[18]
[18]Hearing book, p 169.
Role of this tribunal
The tribunal stands in the shoes of the original decisionmaker to review the decision the subject of the application, i.e., the decision that the applicant had not completed the rectification directed in direction to rectify 108888 to a satisfactory standard by 22 March 2022. The tribunal must deal with matters in a way that is fair and just.[19]
[19]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3.
As the applicant did not avail itself of its statutory right to seek external review of direction to rectify 108888, any reasons it might have had to challenge the direction are not relevant to determining this review application.
The purpose of the review is to produce the correct and preferable decision based on a fresh hearing on the merits.[20] The only orders that that can be made are to, either:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute my own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with appropriate directions.[21]
[20]Ibid, s 20.
[21]Ibid, s 24(1).
When standing in the shoes of the original decisionmaker regard must be had to the Commission’s regulatory role. In regulating the building industry, the Commission must ensure the maintenance of proper standards in the industry to achieve a reasonable balance between the interests of building contractors and the interests of consumers.[22]
[22]Queensland Building and Construction Commission Act1991 (Qld), s 3.
If the Commission is of the opinion that building work is defective or incomplete it has the power to direct the person who carried out the building work to rectify the building work. If the Commission is of the opinion that consequential damage has been caused by, or as a consequence of, carrying out building work, it has the power to direct the person who carried out the building work to remedy the consequential damage.[23]
[23]Ibid, s 72.
Consideration
There is no doubt that all the items expressly listed in direction to rectify 108888 had been attended to by 18 March 2022. The issue to be determined is a narrow one: in order to have completed the rectification work to a satisfactory standard, was the applicant required not only to rectify the paintwork by 22 June 2022, but also to reinstate the silicone which had been removed in order to carry out that rectification?
The rectification work did not happen in a vacuum. The inspector had identified sections of AS 2311:2017 and the QBCC Standards and Tolerances Guide regarding the standard of finish to be expected when painting tiles. Specific areas of blistering, cracking and peeling paint were listed in the direction to rectify. The work plainly did not meet the required standard. Whether the below-standard work was work originally done by the applicant or by the owner in attempting to effect repairs is not relevant to these proceedings.
The Commission argues, and I accept, that it does not have an obligation to direct a contractor how to rectify a defect, save for requiring the rectification to be carried out by a licensed contractor. The licensed contractor engaged to carry out the rectification did what he thought was required to achieve a standard of finish that met the requirements of AS 2311:2017 and the QBCC Standards and Tolerances Guide. He removed the all the paint and the silicone that the owner had applied over the paint applied by the applicant. He repainted the tiles and recommended that the paint cure for a week before the silicone was re-applied.
Direction to rectify 108888 makes no reference to reinstatement required as a consequence of the rectification of the defects. No mention of silicone was made in the inspection report, the original direction to rectify or in direction to rectify 108888, perhaps because the inspector did not think that all the paint would be removed. The Commission could have directed the applicant to rectify consequential damage, but did not do so. The first time the Commission expressed any opinion about the need to reinstate the silicone was on 11 March and even then, it did so in the context of being careful not to direct the applicant how to carry out the rectification, while urging the parties to co-operate.
I find that as the directions to rectify made neither a specific reference to reinstating the silicone nor a general reference to repairing consequential damage that the applicant was required to rectify the defective paintwork by 22 June 2022, but was not required to reinstate the silicone by 22 June 2022.
I accept the applicant’s submission that it made arrangements with a silicone applicator known to the owner to apply the silicone at a mutually convenient time, not because direction to rectify 108888 expressly required the silicone to be replaced, but because it wanted to satisfy its customer. The applicant did what it had been told to do, i.e. work co-operatively with the owner. Had the owner been available on the first date the applicator was available (25 March) the silicone would have been applied 3 days after 22 March 2022 and before the Commission enquired about progress of the rectification.
I am satisfied that the rectification of the paintwork, which was all the direction required, had been completed to a satisfactory standard by 22 June 2022.
In considering the balance between the interests of the owner and the interests of the applicant, confirmation of the decision would weigh heavily against the applicant. The owner has received a refund of $1670, has had all the walls repainted by a licensed contractor and has had the silicone reinstated by a contractor of her choosing, at a time convenient to her. The applicant at all times co-operated with the Commission and the owner despite disagreeing with the fact the direction was issued, despite the difficulties it faced in finding a licensed contractor prepared to take on the work, and subsequently disagreeing about the scope of work required to comply with the direction.
I accept the applicant’s argument that it did not think it necessary to seek an extension of time as the painting was finished before the deadline. If I am wrong, I turn to the question of the possibility of the grant of an extension of time to carry out the rectification pursuant to section 72B of the Queensland Building and Construction Commission Act1991 (Qld). I accept the Commission’s argument that the applicant could have requested an extension of time to carry out the rectification pursuant to section 72B of the Queensland Building and Construction Commission Act1991 (Qld). Had the application been made, given that the applicant had at all times co-operated with the Commission and the fact that the need for the extra time was to find a date convenient to the owner to reinstate the silicone, it seems likely that had the request been made, it would have been allowed.
Order
The Commission’s decision of 4 April 2022 that the rectification work had not been completed to a satisfactory standard by 22 June 2022 is set aside and substituted with a decision that the rectification work listed in direction to rectify 108888 had been completed to a satisfactory standard by 22 June 2022.
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