Turner v Queensland Building Services Authority
[2012] QCAT 229
•7 June 2012
| CITATION: | Turner v Queensland Building Services Authority [2012] QCAT 229 |
| PARTIES: | Wayne Turner |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | GAR376-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 11 April 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Peter Walker, Member |
| DELIVERED ON: | 7 June 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. That the decision of the Authority not to issue a Notice to Rectify be confirmed. 2. That the parties have liberty to apply for any further orders, including costs orders, within 7 days. |
| CATCHWORDS: | Application to review decision not to issue notice to rectify – Category 1 and Category 2 defects – matters relevant to exercise of discretion Queensland Building Services Authority Act 1991, s 72 Queensland Building Services Board Defects Policy |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self (by telephone) |
| RESPONDENT: | Mr Eden Bird, Solicitor |
REASONS FOR DECISION
Background
On or about 3 September 2003 the Applicant (Mr Turner) and Catherine Turner entered into a contract with Chelbrooke Homes Pty Ltd ABN 41 082 723 635 (“the Builder”) for the construction of a home at Reedy Creek, Queensland.
There has been something of a history of complaints regarding the construction of the home, most of which have been resolved in one way or another.
There was a further complaint, however, received by the Respondent Authority on or about 26 August 2010. The full particulars of that complaint are contained in the Statement of Reasons of the Authority filed in these proceedings on 02 March 2011.[1]
[1] See paragraphs 3.12 and 3.13.
On 18 October 2010 Mr Peter Campbell, a Building Inspector employed by the Authority, conducted an investigation of the complaints and he completed a report detailing his findings.[2]
[2] See annexure PC-1 to the statement of Peter Campbell dated 19 October 2011.
The primary issue for consideration, so as the investigation was concerned, related to the tiles finish, and the levels thereof. This subsequently appears to have been expanded to include the floor support and levels underlying the tiles.
On 19 October 2010 the Authority wrote to the Applicant noting that it would not be issuing a Notice to Rectify.[3]
[3] See annexure 13 to the Statement of Reasons.
An Application to Review that decision was lodged by the Applicant and received by the Tribunal on 17 November 2010.
Legislative Framework
The power to order rectification of defective building work is conferred by Part 6 of the Queensland Building Services Authority Act 1991. Specifically it is contained within section 72 which includes the following:
Power to require rectification of building work
(1)If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.
(2)In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work.
(8)A direction cannot be given under this section more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the authority, that there is in the circumstances of a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly.
I am satisfied that the work complained of was, for relevant purposes, building work. The question of whether it was “defective” involves a consideration of the Defects Policy formulated by the Queensland Building Services Board pursuant to Section 9 of the QBSA Act.[4]
[4] See annexure SOR-1 to the Statement of Reasons.
The Evidence
The evidence presented in this case was entirely written supplemented by oral submissions by the parties. I should note that the Applicant notified the Tribunal at approximately 7:30am on the morning of the hearing that due to work difficulties he was not able to attend in person. Fortunately I was able to contact him by telephone and gave him the opportunity to make submissions to me. During that discussion he informed me that he wished to proceed with his application but that he did not wish to supplement the written evidence provided by way of statement by him a report of Jason Lenac, Director of Odyssey Consulting Group dated 10 October 2011.
I should note that the Applicant conceded having received an email from the Authority dated 5 April 2012 requiring Mr Lenac for cross examination at the hearing. He further conceded that he made no attempt to have Mr Lenac appear. In the overall context of the matter I consider that this was most unfortunate as Mr Campbell had made certain observations about that report in his statement.[5] It would have been preferable to have been able to have had Mr Lenac respond to the statements made, but unfortunately it was due to the Applicant’s own decision that this was not able to be done.
[5] See paragraphs 18 and 19 of statement dated 19/10/2011.
The evidence of the Authority consisted primarily of the Statement of Mr Campbell and Statement of Reasons, both already referred to.
Manner in which Review to be Conducted
In making my decision I am bound by the provisions of section 20 of the Queensland Civil and Administrative Tribunal Act 2009 which states as follows:
Review involves fresh hearing
(1)The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
(2)The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
In my view the proceedings are intended to be conducted in an inquisitorial, rather than in an adversarial manner. It should be noted, however, that it is not the reasons of the Authority that are important, but, because of section 20 of the QCAT Act, the information, evidence and matters available to the Tribunal.
Discussion
The first decision that I am required to make is whether the building works in question are defective for the purposes of the legislation and the policy. In this respect it should be noted that the policy recognises two separate types of defects, known as category 1 and 2.[6] It is common ground in this matter that the Authority would only, at the point in time of the complaint, be empowered to order rectification of Category 1 defects.
[6] See SOR-1.
It should be noted that Mr Campbell, in his initial report[7] and as a result of his second inspection, did not note any significant lipping of the tiles and concluded that any problems were visual in nature only and hence were category 2 defects. At the time of his third inspection he did note what was described as “a sharp exposed edge creating a safety issue for the occupants of the building”.[8]
[7] See PC-1.
[8] See PC-7.
During submissions the Authority conceded that at this point the lipping was considered to be a category 1 defect. This is consistent, at least to a degree, with the position of the Applicant who takes the view that the defect must be considered category 1 because of the relevant safety issues that arose. He in fact included in his statement, second hand evidence that actual injury had occurred as a result of the lipping.[9]
[9]See Statement of Applicant and annexed photographs alleged to be showing blood on the floor.
It needs to be considered then whether this is sufficient to justify an order to rectify within the provisions of section 72 of the QBSA Act.
It was submitted to me, on behalf of the Authority that it does not and that the builder should have the benefit of the discretion conferred by this section. It is plain from the section itself that such discretion exists and I am given some guidance as to the manner in which the discretion should be exercised in R v His Honour Judge Miller and the Builders Registration Board of Queensland ex parte Graham Evans & Co (Qld) Pty Ltd.[10] This case makes it clear that I should consider the builder’s position in this regard.
[10] O.S.C. 27/19986.
Hence, as a corollary to this, and as an aid to determining whether an order to rectify should be made, it is necessary to determine the cause of the problem and whether it is due to default on the part of the builder.[11] In this respect there is a clear divergence of opinion between the Applicant and the Authority. While it is not clearly set out in the report of Mr Lenac he appears to conclude that the problems in question may relate to insufficient support under the wooden floor.[12] Mr Campbell on the other hand was clearly of the view that the problems identified related solely to wood expansion and contraction caused by moisture variations. This, he says, is simply a normal product of the use of timber in these situations.[13]
[11]See Gary Norwood Homes Pty Ltd v Queensland Building Services Authority (District Court Brisbane, 20 June 1997).
[12] See report recommendations.
[13] See paragraph 19 of his report.
In view of the fact that Mr Campbell has had the benefit of a number of inspections and had the opportunity to consider Mr Lenac’s report, and further that Mr Lenac was not available for cross examination I am forced to conclude that I prefer the evidence of Mr Campbell in this regard.
I am further pointed to the fact that, as a result of the identification of the problem the Authority issued a request to rectify to the builder by letter dated 17 October 2011[14] and that the builder clearly indicated a willingness to rectify the problem by the insertion of a cover strip.[15] It is equally clear that the Applicant was not prepared to accept the method of rectification proposed by the Builder and hence declined to let the proposed rectification work proceed.
[14] See PC-7.
[15] See exhibit 2.
From the point of view of the Authority, and in particular the decision as to whether or not the relevant discretion should be exercised this is a most important fact as it is abundantly clear that while the Authority has the power to order rectification it does not have the power to order how that rectification work will be carried out.[16] In my view then the attitude of the builder and the decision of the Applicant are both relevant to the question of whether a Notice to Rectify should be issued.
[16]See R v His Honour Judge McGuire and Hanlon Homes Pty Ltd, ex parte Builders Registration Board of Queensland [O.S.C. 29/1984].
Finally it was conceded by the Applicant that he has done at the least a significant amount of the work that he considers necessary to rectify any problem. I am told that this includes reversing the direction of the tiles along the expansion gap in question. At least in the view of Mr Campbell this has resulted in the creation of 2 sharp edges rather than one and has significantly altered the nature of the problem. It was submitted to me that to order the rectification of the Applicant’s own work, if I have the power to do it, would be an injustice.
Findings
I therefore find:
a.At least at the time of Mr Campbell’s third inspection the issue of lipping created a safety issue and amounted to a category 1 defect.
b.For the purposes of section 72(2) of the QBSA Act I should take into account:
i. the fact the cause of the lipping is at best unclear and in all likelihood is the result of timber shrinkage and expansion caused by variable moisture levels;
ii.that the Builder has offered to rectify the safety issues raised by this problem; that the Applicant has declined to let him proceed with that rectification; and
iii.that the Applicant has done significant rectification works himself.
c.Having regard to these factors it would be inappropriate to require the Builder to rectify the problem despite it categorisation.
I therefore affirm the decision of the Authority not to issue to the builder a notice to rectify the defect.
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