Seitz v Queensland Building and Construction Commission - [2023] QCAT 440

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Seitz v Queensland Building and Construction Commission [2023] QCAT 440

PARTIES:

ARMIN SEITZ

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR281-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 November 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   Leave is given for evidence to be put before the tribunal despite not being in a hearing book.

2.   QCAT Practice Direction No 4 of 2009 (Expert Evidence) shall not apply to this matter.

3.   The decision made by the Queensland Building and Construction Commission of 6 June 2022 not to issue a direction to rectify is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the Queensland Building and Construction Commission decided not to issue a direction to rectify – where the homeowner asks the tribunal to review this decision relying on further evidence of the defects – whether the decision should be confirmed, amended, or set aside and a new decision substituted

Queensland Building and Construction Commission Act 1991 (Qld), s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is a review of a decision made by the Queensland Building and Construction Commission on 6 June 2022 not to issue a direction to rectify.
On 14 January 2022 Mr Seitz complained about certain items of building work done by the builder Win Constructions Queensland (WCQ) in constructing a new house which he purchased on 25 May 2021.
After an amendment to the complaint on 7 March 2022, the QBCC treated the complaint as being about three pieces of work:
Item 1 – Small bluish scrape marks on various areas of the garage ceiling noticed by Mr Seitz. He said that this was attended to multiple times by Lindsay (WCQ’s foreman) and another worker from WCQ over many months. He said that the issue could not be seen easily from pictures and that the whole ceiling needed to be repainted now.
Item 2 –Back garage door had warped badly with 7mm to 8mm gaps in certain areas which was way over the 2mm allowable gap.
Items 3 and 4 – Grout in both bathrooms stained with a whiteish colour. Attempts to clean have not corrected this defect.
In this review I need to find the correct and preferable decision by way of a fresh hearing on the merits.[1] This entails deciding whether the work was defective or incomplete and if so, having regard to the objects of the Queensland Building and Construction Commission Act 1991 (Qld), a direction to rectify should be issued to the builder.[2] In doing so I have taken into account all the evidence and submissions made by Mr Seitz, and I have been assisted by the material provided by the QBCC.
[1]Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[2]Under section 72 of the QBCC Act.
On the question whether the work was defective, Mr Seitz has provided much material including various emails, text messages, photographs and video footage. This was provided to the QBCC for its internal review,[3] and further material was provided for the external review in the tribunal,[4] including statements from a licensed tiler and a licensed painter.
[3]Page 115 of the Statement of Reasons.
[4]In the applications in various forms.
On 12 April 2022 a QBCC building inspector attended the property and produced a report about whether the work was defective.[5] Mr Seitz has said that the QBCC’s inspection was partial and unfair, and the QBCC preferred to protect the builder.[6] However Mr Seitz offers no evidence which would lead me to think that this is the case.
[5]The best version of this on the tribunal file was provided by Mr Seitz in electronic form. Using this version it is possible to see the photographs taken by the inspector clearly.
[6]Emails of 23 June 2023 and 4 October 2023.
For item 1, it is not clear from the evidence how the marks arose, the builder saying it was because removalists used the garage as entry to the house. Despite that, the builder’s foreman Lindsay McDowell did repaint the ceiling to remove the marks. Mr Seitz says that this repainting was done badly because a ‘blocker’ paint was used under the finish paint causing inconsistencies in the final result. In a statutory declaration the foreman says that he did the repainting as a ‘personal favour’ for Mr Seitz and not on behalf of the builder.[7] Mr Seitz disputes this and says that this ‘false affidavit’ was the builder’s doing.[8] It is unclear therefore whether the builder assumed responsibility for the repainting work or whether it was work done for Mr Seitz by Mr McDowell as a favour. If this issue had been conclusive then it would have required an oral hearing to resolve one way or the other because on the papers it is difficult to reach a conclusion about this.
[7]Statutory Declaration of Lindsay McDowell made on 11 April 2022, page 85 Statement of Reasons.
[8]Email of 2 October 2023.
Either way however, it is my finding that the work was not defective, so an oral hearing is not necessary.
There is a difference of opinion about whether the painting of the garage ceiling was defective. The QBCC inspector could see a slight variation to the ceiling finish when viewed with ‘the aid of critical/reflective lighting’, but it was not clearly discernible from a distance of 1½ metres when viewed under normal lighting conditions, which was the necessary test to apply.[9] On that basis, the inspector formed the opinion that it was not defective work.
[9]As specified in paragraph 13.2 of the QBCC Standards & Tolerances Guide 2019 and Australian Standard 2311-2017 Guide to the Painting of Buildings – Appendix C4.
Mr Seitz says that the lighting conditions on the day of the QBCC inspection made it difficult to see the marks which can in fact be seen from several metres away. In support of this he relies on a statement from a licensed painter who said that the difference in finish was caused by doing two touch-ups with rollers and that the inconsistency was quite obvious from all angles and from a distance of beyond 3 metres.[10]
[10]Statement of 6 June 2023.
Whether or not the work is defective depends on whether the inconsistency was clearly discernible from a distance of 1½ metres when viewed under normal lighting conditions. Mr Seitz and the licensed painter say it was, but the QBCC inspector says it was not.
This conflict of evidence and opinion can be resolved from the photographic evidence. The inspector provided photographs and Mr Seitz also provided some still photographs and video footage in electronic form. The areas of inconsistency are just visible on the video footage when the light shines from particular angles, but not when viewed normally. This tends to confirm what the inspector said on a physical visual inspection, that any inconsistency was so minimal it cannot be said to be defective work.
The QBCC’s decision not to issue a direction to rectify for item 1 is confirmed.
For item 2, it is common ground that this item has been rectified by the builder and is not the subject of this review.[11] The QBCC’s decision not to issue a direction to rectify for item 2 is confirmed.
[11]Email from Mr Seitz dated 14 March 2022 page 86 Statement of Reasons.
For items 3 and 4 Mr Seitz says that in the two bathrooms concerned, the grout looks stained and filthy and this can be seen ‘from several metres away’. Mr Seitz described this as white stains on the grout which he thought was calcium, but it was something else which could not be cleaned off. In one email which Mr Seitz relies on, the builder has acknowledged the presence of the discolouration of the grout.[12] He also relies on the evidence of a licensed tiler who opines that the grout discolouration was caused by not letting the grout ‘slake’ - that is to rest for 5 to 10 minutes so that the chemicals can bond - and that excessive water was used in the mix. The tiler also says that he could see the grout discolouration easily from beyond 1½ metres in both bathrooms.[13]
[12]Email of 15 November 2021 page 169 of the Statement of Reasons.
[13]Statement of 29 April 2023.
In his inspection the QBCC inspector could not see any obvious discrepancies in colouring from a normal viewing position but could see slight white blemishes when viewed up close. On that basis he said that there was no defective work.
The inspector was also concerned that there could be various reasons for such slight variation in the grout which were not because of defective work, such as natural cementitious characteristics, or the use of household cleaning products. So on that basis too, he thought it was not defective work. Mr Seitz disputes this, saying that he only used normal floor cleaner and no one had any success in removing the white blemishes.
Whether or not the work is defective depends on whether there are visual defects from a normal viewing position. Mr Seitz and a licensed tiler say there were, but the QBCC inspector says there were not.
Again, this conflict of evidence and opinion can be resolved from the photographs provided by the QBCC inspector and from the photographs and video footage provided by Mr Seitz. From these it can be seen that the inspector was right that the slight white blemishes can only be seen when viewed up close. From a normal viewing position they cannot be seen. So I am of the view that the inspector was correct to reach the conclusion that this was not defective work.
The QBCC’s decision not to issue a direction to rectify for items 3 and 4 is confirmed.
I have given leave for the evidence to put given to the tribunal without a hearing book as previously directed as it appears from the correspondence with the tribunal that there was some difficulty in creating the hearing book. Also the tribunal’s expert practice direction would cause difficulty if it applied to the expert evidence adduced in this matter, so I direct that it does not apply.