Smyth v Queensland Building and Construction Commission
[2014] QCAT 208
| CITATION: | Smyth v Queensland Building and Construction Commission [2014] QCAT 208 |
| PARTIES: | Roy Smyth (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR094-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 10 February 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 12 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Direction to Rectify No. 38662, issued by the Queensland Building and Construction Commission to Mr Roy Smyth is set aside. 2. There will be no Order as to costs. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – review of Queensland Building Services Authority decision to issue direction to rectify – where it is agreed that construction is defective – where builder submits that he followed directions of owner builder. Queensland Building and Construction Commission Act 1991 (Qld), s72, s 86(1)(e), s 87, Schedule 2 Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | In-house Counsel for the Queensland Building and Construction Commission, Ms Sheridan Farthing |
REASONS FOR DECISION
The applicant, Mr Roy Smyth, seeks review of the 3 April 2013 decision of the Queensland Building and Construction Commission, directing him to rectify work that he had completed at a home located on Evelyn Street, in the Grange. The Direction to Rectify, No. 38662, reads as follows:
The building works carried out that included enclosing in under the existing southern rear deck to create a habitable room is defective in that it has not been constructed in accordance with requirements of the Building Code of Australia, resulting in water ingress occurring into the dwelling – Pertains to item 1 on the BSA complaint form.
At the time that Mr Smyth completed the work, the home was owned by Konrad and Carolyn Litfin. Following renovations by the Litfins, the home was sold to Alison Reynolds on 16 May 2012. Shortly after moving into the home, Ms Reynolds discovered that the room to which the Direction to Rectify relates was not waterproof. Ms Reynolds made a complaint to the Commission on 23 November 2012.
The parties in this matter agree in a number of respects:
· The work in question was completed in early 2011;
· The work is building work as defined by the Domestic Building Contracts Act 2000 (Qld);
· The work in question is defective; and
· The work in question was performed by Mr Smyth.
In considering whether the Commission has made the correct and preferable decision, as required by s 20(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal must consider whether it was reasonable for the Commission to issue the Direction to Rectify to Mr Smyth.
Here, a subsequent homeowner, Ms Reynolds, has found herself in circumstances where the building work performed by Mr Smyth for the previous homeowners, has failed. Ms Reynolds has no contractual relationship to Mr Smyth. Although she quite sensibly had a pre-purchase inspection report conducted before finalising her purchase from the Litfins by “BuildingPro,” the BuildingPro report did not identify any defect of the nature described in the Direction to Rectify.
I note that the Building Pro report is titled “Visual Building Inspection Report”. However, it is not open for the Tribunal to determine whether BuildingPro should have been capable of identifying the defect at issue in these proceedings. The point that I wish to make is simply that Ms Reynolds has found herself in a position where she has suffered a loss, through no particular fault of her own. That does not, in my view, necessarily lead to a conclusion that it is reasonable for the Commission to issue Mr Smyth with a Direction of Rectify.
The Commission explains that the work in question was defective in a number of respects. I accept, in its entirety, the evidence given by the Commission’s Building Inspector, Mr Michael Hulme. Mr Hulme indicates that inappropriate waterproofing materials and methods were utilised.
Mr Smyth, in an email sent to the Commission, explained the reasons for the choice of waterproofing materials. In short compass, Mr Smyth’s evidence was that he did not choose the waterproofing materials, but was directed by the then owners, Mr and Mrs Litfin, to specifically utilise the type of fibro sheets and methodology that was ultimately employed. Mr Smyth explained in both his statement, and oral evidence before the tribunal, that the Litfins were owner builders, for whom he had performed carpentry work on previous occasions. In his email to the Commission dated 3 January 2013, Mr Smyth explained that:
Caroline and myself decided that as there was an existing roof over the deck, and in fact that not much water came through (her words) that we could attach fibro strips to the joists underneath the decking and seal the outside with 25mm timber beading. I then proceeded to sheet ceiling as per quote and my contract was complete, my client satisfied.
A week or so later, after a huge storm, I was contacted by Ms Litfin to say that rain had come through the deck. I went to meet her and we discussed what measures to take. I suggested compressed fibro and tiling the deck but she wanted to keep the timber look.
After discussing things with her husband (also an engineer and developer) they then agreed on an extra scope of works to rectify the problem. It was agreed to lift old decking boards, laying 8mm fibro sheets to existing joists (400mm centres on joists) then waterproofing the fibro. I then nailed through boards, fibro and into joists. This is the reasons 8mm fibro was used.
The waterproofer, who no longer lives in Australia, but can be contacted for a statement, also advised them to use a heavier board and tile prior to waterproofing. They reneged.
I then proceeded, as per their requests. I lifted the decking boards, laid fibro sheets and they paid the waterproofer who did the job on a weekend for $500. I felt obligated to help these people to a satisfactory end, giving my labour for free for this extra work. Caroline paid for all extra materials but no labour. If you take the total cost for extra works ie: $500 for waterproofer, $650 for fibro sheets, hardware $120, decking boards $1,250 you will note the total is $2,420 with my labour free.
Mr Smyth explained that at the point in time that he was discussing the waterproofing methodology with the Litfins, he was owed a significant amount of money by them. He says that they were insistent, both of the Litfins being engineers, that he employ this particular methodology.
As might be expected when nailing through a waterproofing layer, there was evidence of significant leakage in a number of locations at the time the Commission opened up the ceiling to inspect. As the nature of the defect should be apparent to even the most novice of builders, the Commission argues that it was reasonable for it to issue the Direction of Rectify to Mr Smyth. There may be times that this is indeed the case, however, here there are other mitigating circumstances that cause the Tribunal to think otherwise.
The evidence before the tribunal is that the Commission was unable to conclude, as suggested by Mr Smyth, that the Litfins were in fact owner builders. According to Mr Smyth, the Litfins now reside in Peru. They were not available for cross examination. In a letter to the Commission, the Litfins place all responsibility for the choice of materials at the feet of Mr Smyth. I prefer, and accept, the evidence of Mr Smyth over the evidence of Mr and Mrs Litfin.
I find that the Litfins were owner builders, despite not having obtained the proper permit. Mr Smyth’s evidence is consistent with such a finding. He explained that the project was managed by Mrs Litfin. Further, it is not in dispute that the Litfins had on prior occasions obtained the proper permit for work that they did as owner builders at the same property.
In a letter to the Commission dated 31 December 2012, Mr Litfin advises that neither he, nor Mrs Litfin, paid anyone apart from Mr Smyth for work performed in relation to the room at issue. This evidence not only conflicts with the evidence given by Mr Smyth, it also conflicts with the evidence annexed to Mr Smyth’s submissions. This evidence includes a letter from JML Flooring, dated 2 August 2013, indicating that Mr Smyth contacted Mr Jonathan Lockley from JML Flooring in regard to a job sanding floors at the Evelyn Street residence. Mr Lockley says that the job was discussed with the “lady of the house” (presumably Mrs Litfin), and that Mr Smyth had no further involvement in any of those discussions.
Additionally, there is a statement signed by Mr Ronald Douglas indicating that he assisted Mr Smyth on the Evelyn Street job. Mr Douglas says that ‘each morning when we arrived, the lady of the house (Caroline) would let us into the dwelling. She and Roy would have a conversation which Roy would then convey to me. This is how I was advised of my jobs for the day’. I construe this to mean that Mr Smyth was receiving his instructions from Mrs Litfin, who was project managing the job.
Finally, there is a letter from Michael Flanagan of Michael Flanagan Electrical, indicating that he was instructed by Mrs Litfin in relation to the electrical fittings installed in the room in question.
The failed waterproofing membrane was installed by a Mr John Howe, over the fibro cement sheeting. Mr Smyth frankly admits that the waterproofer, who no longer resides in Australia, was chosen by him. However, he says that the waterproofer was paid directly by the Litfins. Again, this evidence conflicts with the evidence annexed to the Commission’s Statement of Reasons, specifically Exhibit 5, wherein Mr Litfin alleges that he made no payment to any contractors save for Mr Smyth.
In all of the circumstances, I prefer the evidence of Mr Smyth, whom I found to be a frank, unembroidered witness, who made appropriate concessions, such as the building work being both defective and performed by him.
The Commission has pointed me to my earlier decision in Glen Williams Pty Ltd v Queensland Building Services Authority,[1] wherein I said:
The QBSA Act is quite specific in making the builder responsible for any defective work, despite the involvement of other professionals. Here, for reasons of consumer protection, the intent of the parliament is to clearly lay responsibility for defective building works squarely at the feet of the builder. As unsettling as this may be for builders, particularly, in circumstances where the professionals Mr Williams relied upon arguable have more specialist training and expertise than does he, it remains the clear intent of the QBSA Act.
[1][2012] QCAT 127.
I don’t consider the circumstances in Mr Smyth’s case to be on all fours with those present in Glen Williams. In Glen Williams, Mr Williams was relying on architectural plans that had been prepared, and which did not indicate the correct span for the joists on a deck that he was building. However, there was no issue relating to the existence of an owner builder in Glen Williams. In circumstance where an owner builder is in a position of power vis-a-vis the builder, and simultaneously owes the builder significant funds, and then specifically requires based on their purported expertise that the builder perform the work in a particular manner, the owner builder should be held accountable for their actions.
Here, Mr and Mrs Litfin owed Mr Smyth a significant sum of money. During the hearing, the Tribunal invited the parties to make submissions in relation to whether it would be reasonable to expect Mr Smyth to have pursued the Litfins for the money owed, rather than simply keeping them happy and hoping for payment. Whilst such a proposition seems sensible at first, it is well known that the litigation process takes time – and money. In circumstances where many small trades people rely upon cash flow, in order to avoid falling into circumstances that might result in their becoming an excluded individual under the Queensland Building and Construction Commission Act, I do not think it is reasonable to necessarily expect this to happen. Overall, it is my view that the Commission did not act reasonably in issuing the Direction to Rectify to Mr Smyth in this particular set of circumstances.
The law does not provide perfect solutions for every problem. It is most unfortunate that Ms Reynolds has found herself in this set of circumstances, but that does not mean that a Direction to Rectify to Mr Smyth should follow. As the Tribunal has found that, despite their not having obtained the proper permit, the Litfins were operating as owner builders, and in that capacity issued specific instructions to Mr Smyth to employ the methodology used, they should be held accountable.
For these reasons, the Tribunal finds that Direction to Rectify No. 38662, should not have been issued to Mr Smyth, and the Tribunal sets aside the 3 April 2013 decision of the Commission.
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