Theresa Braithwait t/as Copper City Tennis Club Incorporated v Nortask Pty Ltd
[2013] QCAT 637
| CITATION: | Theresa Braithwait t/as Copper City Tennis Club Incorporated v Nortask Pty Ltd [2013] QCAT 637 |
| PARTIES: | Theresa Braithwait t/as Copper City Tennis Club Incorporated (Applicant) |
| v | |
| Nortask Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL351-12 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | 11 and 12 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Browne |
| DELIVERED ON: | 28 November 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent is directed to attend to rectification of the external ceiling of the Copper City Tennis clubhouse located at 47 Rebecca Street, Mount Isa, Queensland. |
| CATCHWORDS: | BUILDING – where alleged defective building work – whether works are defective – whether contract provided for completion of works outside manufacturer’s guidelines – whether discretion should be exercised to direct the builder to attend to rectification of the defective work Queensland Building Services Authority Act 1991 s 77 Fontain v QBSA [2004] QCCTB 163, cited R v His Honour Judge Miller QC & Anor; ex parte Graham Evans & Co. (QLD) Pty Ltd [1987] 2 Qd R 446, cited. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Theresa Braithwaite t/as Copper City Tennis Club Incorporated represented by Mr Matthew McGrigor, President of the Copper City Tennis Club Incorporated |
| RESPONDENT: | Nortask Pty Ltd legally represented by Mr Ben Gouldson, Solicitor, Clifford Gouldson Lawyers |
REASONS FOR DECISION
The Copper City Tennis Club Incorporated is a not for profit organisation located in Mount Isa, Queensland. The Tennis Club used funds raised from the local community and other contributions received, including funding from Queensland Government and local councils, to upgrade the tennis court and to build a clubhouse and carpark. The clubhouse was to be used by members of the Tennis Club and other people living in the local community.
The Tennis Club, after calling for tenders, engaged Nortask to build the clubhouse at 47 Rebecca Street, Mount Isa. The Tennis Club and the builder entered into an agreement (contract) for the construction of the clubhouse and carpark on 5 July 2009 and construction of the clubhouse commenced on 6 July 2009.
The Tennis Club appointed Mr Ricardo Marino as a project manager and he was responsible for preparing special conditions that form part of the contract. Mr Marino regularly attended the construction site to inspect the works. He is also referred to as a superintendent under the contract.
The representative from Nortask responsible for the construction of the clubhouse from the early stages, when approximately 10% of the work had been completed, was Mr Willy Castro and he commenced in the role of representative for the builder in late July 2009.
On 25 August 2009 there was a variation to the contract in relation to replacement of material to be used for the construction of the external ceiling of the clubhouse from Gyprock to Villaboard (the variation). The change in material (to Villaboard) for the construction of the external ceiling was recommended by the builder.
The construction of the clubhouse was completed on 10 November 2009 and a certificate of practical completion was issued on 14 December 2009. In about February 2012 cracks began to appear in the external and internal parts of the ceiling and the sheeting material began to come away from the external ceiling. The Tennis Club made a complaint to the Queensland Building Services Authority (QBSA) about the building work on 27 June 2012.
The QBSA inspected the works on 23 August 2012 and prepared a report dated 17 September 2012. The report contains photographs of the external and internal ceiling taken at the time of inspection.
On 18 September 2012 the QBSA issued to the builder a direction to rectify as follows:
1) Rectify the defective installed exterior ceiling sheeting system not installed to the manufacturer’s recommendations resulting in extensive cracking being a health and safety issue for the building owners. Pertains to item 1-6 on the BSA complaint form.
2) Rectify the defective installed interior ceiling sheeting system to the building not installed to the manufacturer’s recommendations resulting in extensive cracking being a health and safety issued [sic] for the building owners. Pertains to item 7, 9, 10 and 11 on the BSA complaint form.[1]
[1] Exhibit marked “2”.
On 27 November 2012 the Tennis Club filed in the Tribunal an application for a commercial dispute alleging defective work in relation to the installed exterior and interior sheeting systems to the building (clubhouse). The Tennis Club seeks an order from the Tribunal that the builder be directed to attend to rectification of the alleged defective works.
The application proceeded to a hearing before the Tribunal over 2 days and evidence was heard at the hearing on behalf of both parties. The Tennis Club relies on the evidence of Theresa Braithwaite, the Tennis Club secretary, Ricardo Marino the project manager and superintendent appointed by the Tennis Club and Kevin Cameron, building inspector from the QBSA. The builder relies on the evidence of Wilhelmino Castro, representative for the builder who has experience as a civil engineer.
What are the issues to be determined by the Tribunal?
The power to direct the builder to rectify the alleged defective works requires an exercise of discretion by the Tribunal under s 77 of the Queensland Building Services Authority Act 1991 (QBSA Act).
The builder contends that the Tribunal should not exercise the discretion under s 77 of the QBSA Act on the basis that it would not be fair to the builder in all of the circumstances to direct the builder to rectify the alleged defective works. The builder argues that there is evidence before the Tribunal, in relation to the external ceiling, that the builder has performed its contractual obligations in constructing the ceiling as directed by Mr Marino on behalf of the Tennis Club and in accordance with the plans that form part of the contract.
In relation to the internal ceiling the builder contends that there is no evidence before the Tribunal that the internal ceiling is defective and that the ceiling has not otherwise been installed in accordance with manufacturer’s guidelines. In this regard the Tribunal is invited to accept the evidence of Mr Castro who provides an explanation for the cracking (in certain areas) in the internal ceiling.
The Tribunal has identified the following issues to be determined:
1) Is the building work for the external and internal ceiling defective?
2) Is the builder responsible for the defective work?
3) Is it reasonable in all of the circumstances for the Tribunal to exercise its discretion to direct the builder to rectify the defective work?
Is the building work to the external ceiling defective?
It is not disputed that the external ceiling of the Clubhouse is unsatisfactory and the reason for the ceiling sheets hanging down is because expansion or control joints were not installed in the ceiling at the time of installation.
Mr Cameron, building inspector from the QBSA, gave evidence at the hearing that the installation of control or expansion joints is necessary to limit the amount of movement transferred from members or elements or to limit the amount of cracking or distortion in building elements or materials. Mr Cameron gave evidence at the hearing that the installation of control joints can be a method and a product and it essentially breaks up the wall or ceiling into shorter distances. Control joints are installed between the ceiling sheets and depending on the product there are manufacturer’s guidelines that provide for the installation of the control joints.
Evidence was given by Mrs Braithwaite, Mr Marino and Mr Castro about a conversation or discussions that took place on or about 27 August 2009 about the installation of control joints. The builder contends that Mr Castro raised the issue of control joints with Mrs Braithwaite and Mr Marino during a site visit and advised them that the control joints would cost extra money by way of a variation.
The builder contends that the control joints were not installed in the external ceiling because the variation to change the ceiling material from Gyprock to Villaboard did not provide for the installation of control joints, there is no requirement or specification in the plans for the installation of control joints; and the Tennis Club project manager, Mr Marino, otherwise directed the representative from Nortask, Mr Castro, to not install control joints in the external ceiling at the time of installation by stating (to Mr Castro) that he should construct the ceiling in accordance with the plans.
Mr Castro gave evidence at the hearing that the reason for the external ceiling sheets “hanging down” is due to the absence of control joints. During cross-examination at the hearing Mr Castro was referred to the manufacturer’s guidelines for the installation of the Villaboard material. It was not contested by Mr Castro that the external ceiling was not installed as per the manufacturer’s guidelines. Mr Castro gave evidence that the builder used carpenters to install the Villaboard and control joints were not installed notwithstanding the guidelines that provide for the installation of control joints. Mr Castro stated that the reason for not installing the control joints was because they were not included in the plans and he (Mr Castro) was otherwise directed by Mr Marino and Mrs Braithwaite that there would be “no more variations”; and Mr Marino instructed him to install the ceiling as per the plans.
Mr Castro’s evidence about there being “no more variations” is consistent with the evidence of Mrs Braithwaite also corroborated by the evidence of Mr Marino. I am satisfied that Mr Castro was advised by Mrs Braithwaite in late August 2009 that there would be no more variations.
I accept Mrs Braithwaite’s evidence about the discussions that took place between her and Mr Castro in relation to the installation of control joints. I also accept Mrs Braithwaite’s evidence that Mr Castro did not advise her that the installation of control joints was a requirement and that, without the installation of control joints, the external ceiling would be unsafe in 2 to 3 years time.
I found Mrs Braithwaite in giving her evidence to be honest and I draw no adverse inference from Mrs Braithwaite’s evidence given during cross-examination that because she had previous experience in relation to building work being completed in respect of her own personal dealings, the building of which involved the installation of control joints, that she therefore had knowledge of the importance or purpose of control joints when constructing a ceiling. Mrs Braithwaite was at the time the building work was being completed by the builder a secretary for the Tennis Club and was not a building expert.
Mr Marino gave evidence at the hearing about his experience as a civil engineer and project manager of contracts. Mr Marino stated that there were a lot of variations and that every variation must be in writing and approved. Mr Marino agreed during cross-examination that the Tennis Club could not afford any more variations and that he told Mr Castro to follow the drawings and specifications at the time of installing the external ceiling. Mr Marino did not agree, during cross-examination, that, when he stated to Mr Castro that the ceiling should be installed as per the plans and specifications, that he had consented to Mr Castro installing the ceiling without control joints. Mr Marino gave evidence, during cross-examination that he did not issue a direction to Mr Castro to install control joints in the external ceiling. Mr Marino’s evidence is that the control joints should have been installed because they were installed by the builder in the internal ceiling without a variation being issued.
I am satisfied based on the evidence before me including the QBSA report and the evidence given at the hearing by Mrs Braithwaite that the external ceiling is a health and safety risk. The QBSA report dated 17 September 2012 contains photographs of the external ceiling. The photographs clearly show that the external ceiling is falling down in parts. I am satisfied that the external ceiling is defective work for the purposes of s 77 of the QBSA Act.[2]
[2]Schedule 2 of the QBSA Act provides “defective” in relation to building work includes “faulty or unsatisfactory”.
Is the building work to the internal ceiling defective?
The builder installed control joints in the internal ceiling at the time of installation without issuing a variation. I accept the evidence given by Mrs Braithwaite that the Tennis Club did not purchase materials in order for Mr Castro to install control joints in the internal ceiling. Mrs Braithwaite gave evidence that she would have a receipt if materials were purchased and that there is an audit of expenses paid by the Tennis Club every year.
The builder contends that the control joints were installed internally notwithstanding the fact that the plans do not provide for the installation of control joints because the cost of installation was negligible. Notwithstanding the cost of the control joints as being negligible at the time of installation, the fact remains that the control joints were installed in the internal ceiling without a variation.
The Tennis Club relies on the report prepared by the QBSA in relation to the internal ceiling works as being defective. The report refers to “cracks in ceiling” in relation to certain areas of the internal ceiling. There is, however, no independent expert evidence before me in relation to the installation of the internal ceiling to otherwise support the assertion made on behalf of the Tennis Club that the work is defective and that the ceiling has not been installed in accordance with manufacturer’s guidelines.
Mr Castro gave evidence at the hearing that the reason for the cracking to the ceiling internally is due to insufficient ventilation in that there is no air-conditioning and “heat gets trapped in that area”.[3] There is no evidence before me to contradict the evidence given by Mr Castro that there is another reason for the cracking to certain parts of the internal ceiling. I cannot be satisfied having considered all of the evidence that the internal ceiling in the clubhouse is defective and that it is otherwise reasonable in all of the circumstances to exercise the discretion under s 77 of the QBSA Act to direct the builder to rectify the building work to the internal ceiling.
[3] Statement of Wilhelmino Castro dated 5 April 2013, Exhibit marked “7”.
Is the builder responsible for the defective external ceiling work?
The building work to the external ceiling is defective because it was constructed without the installation of control joints. The builder is clearly responsible for the defective work. The builder at the time of installing the external ceiling had a responsibility to ensure that any work was completed in accordance with relevant regulations and building standards including manufacturer’s guidelines.
There are several authorities referenced in the decision of Glen v Williams Pty Ltd v Queensland Building Services Authority[4] that refer to the builder’s responsibility. In the decision of Fontain v QBSA[5], the member stated:
The law is well established that a builder cannot be excused from the responsibility to comply with manufacturers or regulatory body specifications simply because the architect’s drawings were wrong.[6]
[4] [2012] QCAT 127.
[5] [2004] QCCTB 163.
[6] Ibid, at [19].
The builder was responsible for recommending a change in material to the external ceiling and there are manufacturer’s guidelines for the installation of this material (Villaboard) that require control joints to be installed. Mr Castro knew, at the time of installation of the ceiling, that the manufactuer's guidelines required the installation of the control joints to the external ceiling.
I do not accept Mr Castro’s evidence that he was directed by Mr Marino to install the ceiling without control joints particularly in circumstances where Mr Castro had, prior to installing the external ceiling, installed control joints to the internal ceiling without issuing a variation; and in circumstances where Mr Marino knew that the installation of control joints was necessary. Mr Marino in giving his evidence at the hearing was clearly aware of the necessity for the installation of control joints. It would be illogical to make a finding that Mr Marino, knowing that control joints were necessary in the installation of the ceiling, would agree either directly or indirectly to the external ceiling of the clubhouse being installed without control joints.
Is it reasonable in all of the circumstances to direct the builder to rectify the defective work?
Mr Gouldson relies on the decision in R v His Honour Judge Miller QC & Anor; ex parte Graham Evans & Co. (QLD) Pty Ltd[7] as being a relevant authority in determining whether the Tribunal should exercise the discretion to direct the builder to rectify the defective works. The decision in Miller involved a contractual requirement imposed by the owner to use a certain product in an attempt to save costs. It was determined by the Queensland Court of Appeal that the owner after expert independent advice “deliberately took the risk in his choice of the material for the sake of a cheaper price”.[8]
[7] [1987] 2 Qd R 446.
[8] Ibid, per Derrington J.
The decision in Miller’s case can be distinguished from the present circumstances before me. In this case the builder (Nortask) recommended a change in material for the installation of the external ceiling. At the time of installing the external ceiling there were manufacturer’s guidelines in place that required the installation of control joints.
I do not accept Mr Gouldson’s submission that Mr Marino has effectively directed Mr Castro to not install the control joints for the installation of the external ceiling by instructing him to install the ceiling as per the plan and by otherwise stating there would be no more variations, also stated by Mrs Braithwaite. The manufacturers guidelines provide for the installation of control joints and Mr Castro in giving his evidence at the hearing was clearly aware of the manufacturer’s guidelines that required the installation of the control joints. There is also evidence before me that the builder did, prior to installing the exterior ceiling, install control joints in the internal ceiling without issuing a variation.
Mr Gouldson, in his closing submissions, has asked the Tribunal what more should the builder have done. I have considered all of the evidence before me and in circumstances where there was a change in the material on the builder’s recommendation and there were in place at the time of installation of the external ceiling, manufacturer’s guidelines that required the installation of control joints and in circumstances where the builder has previously installed control joints in the internal ceiling without variation, the builder should have installed the control joints at the time of installation. The appropriate order is that the builder is directed to rectify the defective external ceiling of the clubhouse.
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