Taouk v Queensland Building Services Authority - [2013] QCAT 508

CITATION:

Taouk v Queensland Building Services Authority [2013] QCAT 508

PARTIES:	Mr John Taouk (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR330-11

MATTER TYPE:

General Administrative Review Matters

HEARING DATE:

3 June 2013

HEARD AT:

Brisbane

DECISION OF:

Michael Howe, Member

DELIVERED ON:

25 September 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The direction to rectify No. 36798 is set aside save with respect to item 17 the applicant is directed to rectify the falls to the eve gutters above units 8, 14, 13 and 5 so as to comply with the requirements of AS 3500.3.

CATCHWORDS:

Review of decision to direct rectification of defective building work - exercise of discretion – fault – termination of building contract by builder – failure to advise Authority of termination – person appropriately responsible for defective work – builder responsible for defective work whilst supervisor - – whether builder at fault or defective work attributable to builder – whether it would be unfair in the circumstances to direct builder to rectify work

Queensland Building Services Authority Act 1991 ss 72, 75

R v Miller; ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446
QBSA v O’Brien & Ors [2002] QDC 329
De Luchi v QBSA [2002] QBT 66
Garbutt-Cuttiford v QBSA [1999] QBT 80
Parry & Anor v Ewart [2000] QDC 54

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms CM Muir of Counsel, instructed by JHK Legal, Solicitors

RESPONDENT:

Ms E Roberts, Solicitor, Queensland Building Services Authority

REASONS FOR DECISION

Background

Mr Taouk is a builder. Around January 2006 he was engaged by owner developers APJ Pty Ltd and Fadi Tarabay, to supervise the construction of 16 residential apartments in Holland Park.
Mr Taouk says he was paid a weekly wage for that work. He was overseeing the work of other contractors.
His evidence is he became concerned that the developers were cutting corners with the project. He had a number of disagreements but on 16 February 2007 he had a final disagreement with Mr Tarabay over funding of the project and he terminated his employment. He walked off site and never came back. He told Mr Tarabay to get another builder to finish the job. Mr Tarabay said he would get another builder. Mr Taouk says he had no further involvement with the project.
It remains a mystery who, if anybody, then took over responsibility as builder supervisor. On about 21 March 2007 a completed certificate of classification was lodged with the Brisbane City Council. The signature on the certificate was a forgery.
In May 2008 the true certifier, not having heard from the developers, gave notice to the Brisbane City Council and the developers that his engagement as certifier was ended.
In June 2008 the body corporate managers for the development advised the owners of the units about the fraudulent certificate of classification and then complained to the Authority about that.
Mr Taouk was interviewed by the Authority in August 2008 about the certificate.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] QCAT 508
Decision Date

CaseChat Overview and Summary

The applicant, Mr John Taouk, sought review of a decision made by the Queensland Building Services Authority (QBSA) to issue a direction to rectify defective building work in respect of 16 residential apartments in Holland Park. Mr Taouk was engaged as a builder to oversee the construction of the apartments. The dispute arose when the QBSA issued a direction to rectify to Mr Taouk in relation to numerous building defects. The key legal issues were whether Mr Taouk was appropriately responsible for the defective building work and whether it would be unfair to direct him to rectify the defects. The Tribunal found that Mr Taouk was not responsible for defective building work that occurred after he left the project on 16 February 2007, as it would be unfair to hold him responsible for work done after he left. However, the Tribunal found that Mr Taouk was responsible for defective building work occurring during his oversight, specifically the incorrect fall of the gutters. The Tribunal set aside the direction to rectify save with respect to the gutters, which Mr Taouk was directed to rectify to comply with AS 3500.3.

The Tribunal considered the discretion of the QBSA to issue a direction to rectify and held that the innocence of the builder should be accorded appropriate weight. The Tribunal found that Mr Taouk left the project before completion and other parties completed the building work. The most appropriate parties to have been directed to rectify the defective work were the developers, who were not amenable to direction. The Tribunal held that it would be unfair to direct Mr Taouk to rectify defects that occurred after he left the project, as there were no compelling circumstances to do so. However, in respect of the gutters, the Tribunal found that the defect most probably occurred during Mr Taouk’s supervision and he should be responsible for remediation.

Orders