Van Dorssen v Queensland Building and Construction Commission
[2014] QCAT 594
•24 October 2014
| CITATION: | Van Dorssen and Ors v Queensland Building and Construction Commission [2014] QCAT 594 |
| PARTIES: | David B Van Dorssen, Jill Van Dorssen, Kylie J Houlihan and Carl D Houlihan (Applicant) |
| v | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR121-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 6 March 2014, 15 July 2014 and on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 24 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The miscellaneous application of the applicants seeking to reopen the hearing is dismissed. 2. The decision of the Queensland Building and Construction Commission is confirmed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – DIRECTION TO RECTIFY – where complaint by homeowners that building work is defective – whether defective building work-whether it is unfair in the circumstances to require rectification GENERAL ADMINISTRATIVE REVIEW – APPLICATION TO REOPEN HEARING – whether it is in the interests of justice to do so – where no new evidence or any change since the applicants’ agreed to limit hearing to 3 issues – where applicants now seek further hearing about another issue Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 87, Schedule 2 Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Ms Jill Van Dorssen and Ms Kylie Houlihan appeared for the applicants. |
| RESPONDENT: | Ms Emily Roberts, in-house legal officer, appeared for the Queensland Building and Construction Commission. |
REASONS FOR DECISION
Homeowners, Jill and David Van Dorssen and Kylie and Carl Houlihan, have reviewed decisions of the Queensland Building and Construction Commission (the QBCC) to refuse to issue a direction to rectify to the contractor who completed building works at their property at Haigh Crescent, Samford Valley in respect of some items which they claimed were defective.
There were been a significant number of complaints made by the homeowners. Some have been the subject of directions to rectify. Some others are still being investigated and discussed by the homeowners with the QBCC.
By agreement, the hearing on 6 March 2014 related only to three items: part of item 8; item 12; and item 20 of complaint. They are as follows:
a) The relevant part of item 8: Brick face appears to be decaying. General brick flaking residue continual (sic) visible on timber deck;
b) Item 12: Evidence of brick efflourescence;
c) Item 20: Honeycombing to slab.
The applicants’ evidence filed in the Tribunal on 13 January 2014 stated that the hearing was limited to these three issues. Also, at the commencement of the hearing on 6 March both parties confirmed that this was so.
It was therefore surprising that once the evidence had concluded and the provision of written submissions was being discussed, that the applicants’ representative raised the issue of deck staining. There was some discussion about it. The QBCC representative reiterated that she understood the hearing (and therefore the review in this proceeding) was confined to the three issues identified earlier. Ms Van Dorssen referred back to a report of Mr Chris Boyle from QBCC, then confirmed that the deck staining was not part of the hearing, and apologised.
The QBCC handed up some written submissions prepared in advance of the hearing. The applicants requested time to consider and reflect upon the evidence before making submissions. I reserved my decision. The QBCC was directed to provide any further submissions it may wish to make consequent upon the evidence received at the hearing shortly afterwards. The applicants, upon request, were allowed some extended time to provide their written submissions. They were to hand by late April.
The later miscellaneous application to include deck staining
However, in June 2014 (before I had published reasons for the March hearing), the homeowners filed a miscellaneous application (it appears there was an earlier miscellaneous application in April 2014 which was not proceeded with and which was apparently amended by the June application) seeking to reopen the hearing to include the deck staining.
I held a directions hearing and it was agreed that there would be some exchange of documents and further discussion between the parties, following which the applicants were directed to advise the Tribunal and the QBCC in writing whether they sought to proceed with the miscellaneous application.
There was some delay but the applicants subsequently advised that they wished to proceed and filed submissions in support of the miscellaneous application. In essence they contend that they only agreed to exclude the deck staining from the hearing because QBCC had previously undertaken to require that it be rectified. The QBCC has not required rectification. Therefore, the applicants argue that the hearing should be reopened.
Upon receiving the applicants’ submissions in support of their miscellaneous application, I directed the QBCC to file and serve submissions in response and for the hearing of the miscellaneous application on the papers without an oral hearing. The QBCC’s submissions erroneously appear to consider that the miscellaneous application seeks to reopen the proceedings.[1] However, it is an application to reopen the hearing because an item was excluded on the basis of alleged undertakings to the applicants, which the applicants say the QBCC has failed to honour.
[1]An application to reopen proceedings is available only after a proceeding has been heard and determined: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 136. This proceeding had not been determined at the time of the application.
From the documentation provided by the parties, it is apparent that the QBCC had earlier indicated that it was prepared to direct rectification of the deck staining. However on 21 November 2013, it advised the applicants in correspondence that it was not. It seems it decided not to direct rectification because it accepted that the applicants instructed the work to be done in a particular manner. It apparently formed this view based on documentation from the builder. QBCC considered the problem complained about is the direct result of this instruction.
The applicants say they discussed the issue again with the QBCC at a meeting on 6 December 2013. They contend that upon them providing further evidence, the QBCC again agreed to direct rectification of the deck staining. QBCC does not appear to respond directly to that allegation. However, a direction to rectify did not issue for it.
The applicants filed their statements of evidence to be relied upon in these proceedings on 13 January 2014, confirming that the hearing was limited to the three issues identified earlier (although in context saying this was because the QBCC was to direct rectification of various other items including the deck staining). No material was filed in respect of the deck staining issue. As discussed earlier, at the outset of the hearing on 6 March 2014, both parties confirmed that only the three items identified in the witness statement of the applicants were in contention.
The applicants seem to say that the QBCC’s material filed in the proceeding supports their claim that there was an undertaking given by the QBCC to direct rectification of the deck staining, referring to a building inspection report of Mr Chris Boyle in which he refers to the deck staining as a category 2 defect. However, that report of 9 July 2013 predates the later correspondence and events in November and December 2013. Therefore, it does not give any indication about whether the QBCC is prepared to direct rectification, and certainly provides no undertaking to that effect.
As the High Court has said, the resources of courts (and by analogy, tribunals) serve the public, not only the parties to proceedings.[2] It is therefore incumbent on parties to take care in progressing proceedings and act in their own interests. Parties cannot expect, after a hearing has been held, to reopen it unless there are compelling reasons to do so. Significant public resources are involved in holding a hearing. It seems to me that as a general principle, at the very least there must be some new information or evidence which was not reasonably available at the time of the hearing to the party seeking the tribunal’s indulgence which means that the interests of justice require the reopening of the hearing.
[2]Aon Risk Services Australia Limited v Australian National University [2009] 239 CLR 175.
That is not the case here. The hearing was not held until March 2014. Following the events of November and December 2013, the applicants filed material confirming that the deck staining was not among the issues to be agitated at the hearing. Nothing had changed since, it seems, 6 December 2013. If the applicants believed that a direction was to issue following the meeting about the deck staining, there was ample opportunity for them to raise it with the QBCC before they filed their material in mid-January 2014, and certainly well before 6 March when the hearing was held.
The applicants filed no material about deck staining. They did not raise the issue at all in the intervening months, it seems either with the QBCC directly, or in the proceedings, until after the evidence had concluded in the Tribunal hearing. The applicants failed to take the care they should have in progressing their application. They had adequate opportunity to do so.
I am satisfied that the interests of justice do not require the reopening of the hearing, and in effect the holding of another day of hearing, in respect of the deck staining issue. The miscellaneous application is dismissed.
The review
The purpose of the Tribunal’s review is to produce the correct and preferable decision, having regard to the evidence and the applicable legislation. The Tribunal, in effect, stands in the shoes of the decision-maker for the review and makes the decision afresh. There need not be an error identified in the original decision-maker’s reasoning for the Tribunal to reach a different conclusion. The Tribunal may confirm or set aside the decision of the QBCC. If it sets the decision aside, it may substitute its own decision or return the matter to the QBCC for reconsideration (with directions if appropriate).
A decision made by the QBCC to direct or not direct rectification may be reviewed in the Tribunal[3] by a person affected by the decision.[4]
[3]QBCC Act s 86(1)(e).
[4]Ibid s 87.
Section 72 of the Queensland Building and Construction Commission Act 1991 (QBCC Act) provides that if the QBCC (or on review the Tribunal) considers that building work is defective or incomplete, it may direct the person who carried it out to rectify it.[5] Defective is defined to mean ‘faulty or unsatisfactory’.[6]
[5]Ibid s 72(1).
[6]Ibid Schedule 2 Dictionary, defective.
In deciding whether to give a direction, the QBCC (and the Tribunal) may take into consideration all the circumstances it considers are reasonably relevant.[7] Generally, a direction to rectify must be given within 6 years and 3 months after the building work is completed or left incomplete.[8] The QBCC is not required to give a direction if the QBCC is satisfied, in the circumstances, that it would be unfair to give the direction.[9]
[7]Ibid s 72(2).
[8]Ibid s 72(8).
[9]Ibid s 72(14).
The QBCC gazetted a policy entitled, ‘Rectification of Building Work Policy’ on 12 March 2010. It includes that defects which are structural (category 1 defects) and defects which do not otherwise meet reasonable standards of construction (category 2 defects) should be required to be rectified unless rectification is unreasonable. It defines defective building work to include work that does not comply with the applicable Australian Standards and the Building Code of Australia. That said, it is a guideline policy only to be applied having regard to all relevant circumstances.
In determining the review, the essential issues for consideration are whether the work was building work; whether it is defective; whether a contractor was responsible for it; and whether it is reasonable to require rectification.
In this case, there is no issue between the parties that the work was building work and that a contractor was responsible for it. The real issues are whether the work is defective, and if so, whether it is (reasonable or) unfair to require rectification.
The background
Following construction, handover of the two lowset light-coloured brick homes concerned occurred on 30 November 2011. Final certification was obtained.
The part of item 8 which is included before the Tribunal and item 12, are related. The homeowners are concerned about their brickwork primarily below the damp proof course (DPC). A DPC is installed horizontally through the brick work at or below floor level to act as a barrier to moisture, both coming down the house towards the foundations and slab, and also from moisture underground coming upwards.
Above the DPC the bricks are almost white in appearance. Below it they are a cream brown and many have a white substance on them. The owners have observed small particles of brick to flake and come off. In more technical terms, to fret and spall off. Fretting occurs when salt builds up on the face of the brick and causes it to become loose and fall away. Spalling is similar, but occurs when larger pieces of brick come away.
The white salt-based substance is efflorescence. This occurs when both salts and water are present. The salts are brought to the surface by the presence of water. Some efflorescence was present on the bricks at the time they were delivered and during construction. The bricks are exposure grade bricks which are designed to have greater resistance to salt attack, although the evidence is that some were observed to have a white substance on them even before they were laid.
Item 20 concerns the slab. The homeowners complain that it has a pitted appearance which is described as honeycombing. They also relate this to the efflorescence issue, suggesting that a well-compacted base would reduce voids to restrict the travel of elements necessary for efflorescence to appear.[10]
[10]Exhibit 1, page 19.
The evidence, the experts and the joint expert report
The applicants rely upon a witness statement which was unsigned. At hearing, Ms Jill Van Dorssen clarified that it was her statement and confirmed its contents under oath. Attached to the statement is a significant volume of ‘supporting documents’. Some are specifically related to this proceeding. However, some are publications and general information issued by various bodies about building issues (including efflorescence).
Although the Tribunal is not bound by the rules of evidence, it must observe the rules of natural justice.[11] Information from unknown persons who were not available for cross-examination at the hearing is generally given no weight by me in deciding the proceeding, with one exception which is discussed later. This is because I consider the evidence of experts who inspected the property is more relevant and compelling. That said, some of the general information in the attachments is not dissimilar in nature to the evidence of the experts, for example, about efflorescence generally.
[11]QCAT Act s 28.
An experts conclave was attended by Mr Reid, Mr Neilsen and Mr Gill. Mr Reid has been a structural engineer since 1972. His practice includes about 25-35% residential construction. Mr Neilsen has been a structural engineer since 1996. His practice is exclusively in complex design, and includes no residential work. He said however that he ‘understood the fundamentals’ and had read the specifications. Mr Gill has 33 years experience in construction rectification as an employee/supervisor at TA Taylor Group, but from his explanation, no formal qualifications. He was previously a brick layer. His expertise is experience-based.
A joint report records that there was agreement at the experts conclave by these three persons as follows:
a) that the edges of the slab are honeycombed, the concrete being poorly compacted and not in compliance with the Building Code of Australia (BCA) and Australian Standard (AS) 3600;
b) that the mortar in the external brickwork is unduly soft;
c) that the bricks below the DPC are damp causing considerable efflorescence;
d) the source of the excess moisture is unknown;
e) the excess moisture is the primary cause of the efflorescence and fretting of the brickwork;
f) there is no direct impairment to the structural capacity of the house at this time.
g) that it would be premature to begin rectification measures before the source of the moisture is identified and corrected.
The joint report records that there are no areas of disagreement.
Mr Peter Mardiste provided a letter/statement[12] (which was filed in the days immediately before the conclave) and gave evidence despite his non-participation at the conclave (without objection by the QBCC) at the hearing. He did not attend the conclave, presumably because of the lateness of his statement.
[12]Exhibit 5, although the letter/statement is unsigned, Mr Mardiste confirmed its contents at the hearing.
Peter Mardiste is employed by PGH Bricks. He has worked with the company for 30 years. Although he does not have specialist qualifications other than in management, he has worked extensively in the industry including in research and development. His is not an expert in the usual sense, but there was no objection to his brief evidence based on his experience. In any event, it is generally consistent with the other (expert) evidence given. His evidence was limited to issues relating to the efflorescence.
A number of inspection reports were also prepared by building inspectors employed by the QBCC, the most recent having been prepared by Mr Chris Boyle, a builder since the late 1970’s. Mr Boyle was cross-examined at the hearing.
Brick efflorescence and decay
The joint expert report set out significant agreement about the efflorescence related issues. Mr Mardiste and Mr Boyle were not participants in the experts conclave. However, they both also agree that there is efflorescence and that the source of the water is unknown.
Mr Mardiste considers the efflorescence, which he describes as a natural phenomenon, below the DPC to be excessive, but not above it. He said that exposure grade bricks are designed to be more resistant to salt attack, but if water was present, efflorescence can still occur. He considers that the DPC is functioning as intended. In his experience, with a new construction, it is reasonable for efflorescence to dissipate within 6 months to 5 years in normal conditions. In his opinion, if there was prolonged efflorescence, the affected bricks were likely to continue to fret and spall small pieces.
Mr Reid confirms that much of the brickwork around the house below the DPC is exhibiting efflorescence which in his opinion may take up to 5 years to cease when it occurs continuously. (In his opinion and experience, if efflorescence occurs repeatedly, rather than continuously, it may reoccur over a much longer period). He says the efflorescence is unsightly, and that the crystals growing within the brick pores are ‘tending to disrupt the brisks’ causing small particles to spall off the brick facing. He considered the problem of the efflorescence should be temporary, although acknowledged that it could be deleterious if it continued for a long time. Further, for the problem to exist, he says that there must be a source of water at the base of the brickwork.
In his report he advanced a hypothesis that moisture (including groundwater) from the uphill side of the home which is built on a cut surface in weathered rock, is being held in the excavations into the rock made for the house footing beams. If correct, he considers that some drainage may be beneficial. He considers that even if it persists, ‘the efflorescence should cease when all available mineral salts are leached from the mortar and/or concrete at the base of the walls’.[13]
[13]Exhibit 8, JR 8 page 2.
Mr Neilsen understands that Mr Reid’s hypothesis about groundwater was tested and was inconclusive in determining the source of the water. He also says that he believes there is fill on the north-eastern side of the house, but that the efflorescence is uniformly distributed around the house, rather than on the cut side. He therefore considers that there is no ‘identifiable correlation’ between potential groundwater and the moisture (and associated efflorescence and spalling) in the bricks. He suggests that other reasons for the moisture require investigation. He suggests that as the geotechnical classification for the site is class H, AS 2870-2011 must be complied with and says he is unaware of whether it has been. He queries whether all required certifications have been obtained.
While acknowledging that the issues raised do not affect the structural capacity of the house, he suggests that they may affect durability.
Mr Gill described the DPC as working very well and the bricks below it as very dark in colour because of the presence of water. He inspected the concrete floor in the garage which he reports has some cracks. He says this is related to the efflorescence because he considers the cracks are caused by pressure induced by the retention of excessive moisture under the slab. He says this has the potential to cause concrete cancer (which he says can develop if there is sufficient water and salt). Because of his belief that there is water below the DPC, he is concerned about durability. He recommends that a co-polymer sealant could be applied to the mortar and brickwork to create the durability expected of a brick house. Although Mr Gill’s evidence does not appear to specifically address the timing of application, the homeowner’s evidence is that it has been suggested that sealant should only be applied once the efflorescence has cleared.[14]
[14]Exhibit 1, page 23.
Mr Boyle says that once the salt is dissipated, the efflorescence will stop as both salts and moisture must be present for it to occur. He suggests that because the bricks are of a very light colour, any dampness is more obvious.
He considers the fretting and spalling minor and of no significance. If the brick manufacturer considers it a problem, he considers it should be monitored to see if it becomes an issue. He acknowledges that a topical coating could be applied to the brickwork and mortar if the homeowners are concerned. However, he does not consider the builder responsible for it. He says application while the bricks are moist may exacerbate the issue.
He thinks the moisture is probably from general wet weather conditions at the time of construction, but in the event it is not, he thinks more time should be allowed to pass before anything is done, as he thinks the efflorescence and therefore the fretting and spalling may resolve itself. His inspection did not reveal evidence, such as subsidence, to suggest that drainage was inadequate during construction.
The evidence about a relationship between the softness of the mortar and the efflorescence is somewhat limited. General information published by the Masonry Institute of Australia[15] attached to Ms Van Dorssen’s witness statement assists to contextualise the expert evidence about this issue. It suggests that dense mortar joints reduce the porous nature of masonry wall, making it more difficult for salts to migrate and hence may assist to minimise efflorescence.[16]
[15]Exhibit 1, attachments pages 63 – 66.
[16]Exhibit 1, attachments pages 63 – 66, at page 64, 2nd column, ‘Controlling Efflorescence’, paragraph [4].
Discussion of the evidence and my conclusions
It is uncontroversial that there is efflorescence, a naturally occurring phenomenon, which had persisted at the time of the hearing for several years since construction was completed (and had been present on the bricks to some extent when delivered). It is most prevalent below the DPC where the bricks are damp. I accept that as a result of the efflorescence, there has been, and will continue to be while the efflorescence persists, some fretting and spalling of brick particles. I accept the evidence of Mr Reid and Mr Mardiste that if this continued over the long term it may be deleterious. However, at this stage, based on the evidence before me, the extent is minor.
Although it is agreed by the experts that the mortar in the external brickwork is unduly soft, they are also agreed that this is not a structural issue. Concerns are nevertheless expressed by Mr Gill and Mr Neilsen about durability in the longer term.
There are various hypotheses amongst the experts about the source of the moisture in the brickwork which is facilitating efflorescence. However, again accepting the evidence of Mr Mardiste and Mr Reid, I accept that it would be typical for it to take up to 5 years for efflorescence to dissipate.
Mr Neilsen expresses some reservations about whether AS 2870-2011 has been complied with and whether all certifications have been obtained. In doing so, he raises possibilities, not probabilities. In determining whether the items before the Tribunal are defective building works, the experts’ evidence about their inspections, observations and opinions about the issues complained about are more helpful and are given greater weight.
The homeowners are, perhaps understandably, concerned that the property is affected by efflorescence which is clearly visible on the brickwork. It no doubt detracts from the aesthetic appeal of the property from their perspective. However, the presence of efflorescence of itself does not make the brickwork defective. It is a naturally occurring phenomenon. On the evidence, it is reasonably expected to take up to 5 years for (constant) efflorescence to dissipate.
If it continues for a long time, although it is not clear on the evidence how long that would be, the fretting and spalling which occurs as a result of the efflorescence, may have a deleterious effect on the brickwork. At this stage, I accept that it is minor.
I am not satisfied that the evidence presented establishes on the balance of probabilities that the brick efflorescence and minor decay constitutes defective building work. Once the water and/or salts dissipate, it is expected to cease. I am not satisfied that the affected brickwork is either faulty or unsatisfactory. It has not been established that as a result of the efflorescence and minor decay that it fails to meet the applicable standards and the Building Code of Australia.
I make the observation that even if I had been satisfied that it was defective, that I would in any event have been satisfied that it is unfair to give a direction to rectify at this point in time. This is because the experts agree that it would be premature to commence any rectification measure until the source of the moisture is identified. There are differing views about this. If Mr Boyle is correct, and it is attributable to the wet weather conditions at the time of construction, then it is expected the efflorescence and fretting and spalling will simply resolve over the next couple of years. Mr Gill suggests the application of the copolymer sealant, but to enhance durability, rather than to rectify a defect. In any event, it should not be applied until the efflorescence has dissipated.
Therefore, I make the further observation that to issue a direction at this point would appear to require the builder to take steps to rectify an issue which may well resolve naturally with the effluxion of time over the next couple of years. Even the co-polymer sealant, if a reasonable step, should not be applied until the efflorescence has dissipated. If a direction was issued, at least 28 days must be allowed for compliance,[17] and although a longer period could be provided for, any timeframe nominated would be arbitrary.
[17]QBCC Act s 73(3).
Slab
Agreement was reached at the expert conclave that the edges of the slab are honeycombed, the concrete being poorly compacted and not in compliance with the BCA and AS 3600. Mr Boyle agrees that it is honeycombed at the edges.
As discussed above, Mr Gill inspected the concrete floor in the garage which he says has cracks of 1.5 – 2mm in width in places. He believes this is caused by excessive moisture under the slab. He says this has the potential to cause concrete cancer (which he says can develop if there is sufficient water and salt). In his opinion, this slab is going to deteriorate more quickly because of water below the DPC and he is concerned about durability. Water from car tyres can also drip down the cracks to exposed reinforcing. That said, he considers the slab is currently performing, and that there is currently no evidence of edge decay, but the volume of honeycombing suggests to him that there will be future problems.
Mr Reid’s visual inspection of the slab noted visual blemishes involving shallow voids confined to the exposed slab edge which are non-structural in nature. He explained that air bubbles trapped in the concrete cause the honeycombing, observing that almost every house slab he has inspected has had this to some extent. He considers the severity of the honeycombing to be normal, while acknowledging that the extent of it is greater. He says that he believes it doesn’t extend into the slab because he can see concrete behind the air bubbles, although without excavation this can not be verified.
Mr Neilsen saw the floor slab shortly after it was poured and says he observed patches of what he considered to be poorly compacted concrete and/or segregation of material. He also considers that there is a possibility that there is a poorly bonded and sealed horizontal pour joint. In his opinion, the slab was not constructed in accordance with good building practice, the BCA and the AS.
Mr Boyle says that most residential slabs are 100mm thick, sit on a prepared surface and reinforcing. He says that it is common that they are not as well compacted as they could have been. He says this is because it is difficult to use mechanical compaction on 100mm slabs. Also, if over-vibrated he suggests that segregation (separation of the components in concrete, that is, course gravel, fine gravel and mortar) occurs. Therefore, he suggests that for domestic construction, most often the slab is manually compacted, by walking on it.
He does not consider this slab unusual. He acknowledged it is poorly compacted on the edges but does not consider this means it is inadequate for its purpose. He considers it has either been over-vibrated or not vibrated. He says that the honeycombing is not a structural issue and will not affect the structure for the lifespan of the building, which he said was 50 years. He saw no evidence that the slab was failing.
In respect of the cracks in the garage floor, he said not unusual to have minor cracks (which he considered up to 1.5mm) and this not affect structural integrity. He did not observe any as large as 2mm, but did not recall if he saw the garage. He did not consider it would be significant in a garage. He also said cracks can appear larger at the top, because small pieces break off.
Discussion of the evidence and my conclusions
It is uncontroversial that the slab is honeycombed and the concrete poorly compacted which is not in compliance with the BCA and the AS3600. That said, it is also uncontroversial that there is no current concern about the structural integrity of the slab. Mr Gill’s and Mr Neilsen’s concerns are about the potential for its durability to be compromised in the long-term as a result of the honeycombing.
Mr Boyle is a builder who is very experienced with domestic building work. In his opinion, the slab is not unusual and he does not expect its structural integrity will be affected for the lifespan of the building. Mr Reid whose experience includes a very considerable residential component, gave a compelling explanation, which I accept, about why he considers the honeycombing does not extend into the slab.
On the other hand, Mr Gill has no formal qualifications, although some considerable experience working for a company which is involved in construction rectification. Although his experience includes some residential rectification work, it is primarily in the area of concrete cancer and waterproofing. Indeed, he raised the possibility of the development of concrete cancer, which no other expert did. Mr Neilsen, although a qualified and experienced engineer, has no experience in residential work.
In my view, Mr Reid and Mr Boyle are more experienced with issues such as those arising with this slab than either Mr Gill or Mr Neilsen. Mr Gill’s concern about concrete cancer is not consistent with the evidence of any of the other experts, all of whom are in my assessment better qualified than he is to give evidence about likely or possible future issues. For this reason, I have given less weight to his comments than to Mr Boyle and Mr Reid’s evidence. I also place less weight on Mr Neilsen’s evidence than Mr Boyle’s and Mr Reid’s because of his lack of experience with residential construction.
For these reasons, I am satisfied that the honeycombing is confined to the edge of the slab, that it currently does not impair the structural capacity of the house, and that it is unlikely to do so for its expected lifespan.
Having regard to the facts as found by me concerning the slab, I am satisfied that the slab is defective to the extent of the honeycombing and poor compaction and its non-compliance with the BCA and AS3600.
However, in view of my findings that the structural capacity of the slab is unaffected and is not likely to be affected for the life expectancy of the building, I am satisfied that it would be unfair to issue a direction to the builder to rectify the defect.
Orders
In view of my findings, I am satisfied that the correct and preferable decision is to confirm the decision of the QBCC to refuse to issue a direction to rectify in respect of the three items which are the subject of this review.
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