Young v Queensland Building Services Authority - [2014] QCAT 75

CITATION:

Young v Queensland Building Services Authority [2014] QCAT 75

PARTIES:	Deborah Young (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR060-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

1 November and 29 November 2013

HEARD AT:

Townsville

DECISION OF:

Member Browne

DELIVERED ON:

24 February 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority dated 28 November 2012 to not issue a direction to rectify is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW –RECTIFICATION OF BUILDING WORK – decision to not direct builder to rectify – alleged defective work – complaint lodged by home owner – whether explanation for delay in making complaint provided – whether discretion to issue a direction to rectify should be made

Queensland Building Services Authority Act 1991 (Qld) s 72

Queensland Building Services Authority v O’Brien & Ors [2002] QDC 329, cited
Taouk v Queensland Building Services Authority [2013] QCAT 508, cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Deborah Young, self represented

RESPONDENT:

Queensland Building Services Authority represented by Shane Budden, Manager, Legal Services for the QBSA

REASONS FOR DECISION

Ms Young purchased a fully constructed residential ground floor unit to live in at 41 Oonoonba Street, Idalia on 28 November 2007. The unit contained 2 bathrooms with a shower in both the ensuite and main bathroom.
The unit was one of many other units housed within a complex constructed by the builder Glenwood Homes Pty Ltd. Construction of the complex was completed no later than 24 July 2008.[1] Glenwood Homes went into liquidation on 15 April 2011 and no longer holds a builder’s licence.[2]
[1]The date of Certificate of Classification, see Statement of Reasons, p 6.
[2]The builder’s licence was cancelled effective 7 June 2011.
Ms Young made a complaint on 4 October 2012 to the Queensland Building Services Authority (QBSA) about issues she had with some of the building work inside her unit. The complaint made to the QBSA referred to 3 items: discolouration in the floor and wall tiles and water flowing out of the shower door, in both the ensuite and main bathrooms; plaster strip peeling in the ensuite bathroom; and 2 cracked tiles in the dining room.
The outcome that Ms Young was effectively seeking to achieve by lodging the complaint with the QBSA was to have the alleged defective works, in particular the shower and tiles in her ensuite and bathroom, rectified.
After receiving the complaint, Kevin Cameron, building inspector for the QBSA inspected Ms Young’s unit and a report was prepared by the QBSA dated 6 November 2012. The QBSA later determined on 28 November 2012 that it would not issue a direction to rectify to the builder, Glenwood Homes Pty Ltd.
Ms Young exercised her rights under the Queensland Civil and Administrative Tribunal 2009 to review the decision made by the QBSA before the Queensland Civil and Administrative Tribunal. The Tribunal, on review, has the same powers as the QBSA decision maker under the Queensland Building Services Authority…

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: [2014] QCAT 75
Decision Date: 24 February 2014

CaseChat Overview and Summary

The matter in Young v Queensland Building Services Authority was heard in the Queensland Civil and Administrative Tribunal. The dispute involved a complaint by Ms Young regarding alleged defective building work in her unit, and the Tribunal was tasked with reviewing the decision of the Queensland Building Services Authority (QBSA) not to direct the builder to rectify the work. The primary issue before the Tribunal was whether the falls in the showers and bathrooms constituted category 1 defects, which would warrant a direction for rectification under the Building Act 1975. Additionally, the Tribunal had to consider whether Ms Young provided sufficient explanation for the delay in lodging her complaint and whether the QBSA exercised its discretion appropriately in deciding not to issue a direction to rectify.

The Tribunal examined the evidence provided by Mr Cameron, a QBSA building inspector, who testified that the showers in Ms Young’s unit were enclosed and therefore only required compliance with the fall to floor levels within the shower cubicle. Mr Cameron argued that the fall to floor levels in both bathrooms were compliant and that any ponding of water in the ensuite could be attributed to the flow rate from the shower head. The Tribunal also noted that while there was some water ponding observed in the ensuite, it did not meet the criteria for excessive water flow over the sills and into the doorway as stated by Mr Surman. Ultimately, the Tribunal found that the evidence did not support the existence of category 1 defects and upheld the QBSA’s decision not to issue a direction to rectify.

The Tribunal concluded that the evidence did not establish that the falls in the showers and bathrooms constituted category 1 defects. The Tribunal found that Mr Cameron’s inspection and report, which included photographs and measurements, adequately demonstrated that the building work complied with the relevant Building Codes of Australia. Furthermore, the Tribunal was satisfied that the delay in Ms Young lodging her complaint was sufficiently explained and did not prejudice the QBSA’s consideration of the matter. Therefore, the Tribunal confirmed the QBSA’s decision dated 28 November 2012 not to issue a direction to rectify the building work.

Orders

Orders of the court

1. The decision of the Queensland Building Services Authority dated 28 November 2012 to not issue a direction to rectify is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

During the inspection of Ms Young’s unit, the Tribunal did not observe water to flow over the sills and out of the bathroom. I did observe water to pond in certain areas in the ensuite bathroom after several minutes. The water was not, however, excessive and did not flow over the sills and into the doorway as stated by Mr Surman.The evidence of Mr Cameron, QBSA Mr Cameron has approximately 41 years in the building industry as well as being a building inspector for the QBSA. Mr Cameron gave evidence at the hearing about the showers and tiles in both the ensuite and bathroom. Mr Cameron refers the Tribunal to the Building Codes of Australia in relation to the definition of an “enclosed” shower area.[13] Mr Cameron states that the showers in Ms Young’s bathroom and ensuite are “enclosed” because they are sealed at the doorway and intersection of wall tiles and on the inside of the step-down. Mr Cameron stated that because the showers are enclosed showers there are only requirements for the fall to floor levels within the shower cubicle.[13]Exhibit marked “13”, Building Codes of Australia 2006 Volume Two, page 372. During cross-examination by Ms Young, Mr Cameron disagreed that he only took 2 levels from each corners of the floor waste in the bathroom. Mr Cameron states that in his opinion the fall to floor levels in the shower recess in both bathrooms are compliant. He relies on his report in relation to the “fall to drain” measurements taken by him. The report contains photographs that show the measuring instrument used by Mr Cameron, commonly referred to as a “bubble level”.[14] [14]Exhibit marked “12”, SOR filed by the respondent, p 27. Mr Cameron refers the Tribunal to the Building Code of Australia that requires drainage to a floor waste for a bathroom “located at any level above a sole-occupancy unit” where Ms Young’s unit is a class 2 building for the purposes of the relevant clause.[15] Mr Cameron states that Ms Young’s unit is a ground floor unit so there is effectively no requirement for a floor waste to enable water to drain – this is a requirement for occupiers of units above other occupancies. [15]Exhibit marked “14”, Building Code of Australia 2005 Volume One, F1.11. Mr Cameron gave evidence about the ponding of water seen in Ms Young’s ensuite. He stated that the flow rate from the shower head in the shower is possibly greater than the rate at which the water will drain away into floor waste. He stated that changing the shower head or rose inside the shower may result in an improvement in the performance of the shower. Mr Cameron also gave evidence at the hearing about the tiles in Ms Young’s bathroom. He stated that the discolouration of the tiles is caused by water “getting in” behind the glazing via the biscuit and that this is not causing any failure of the tiles to perform. Mr Cameron stated that he did not think further investigation of the tiles was warranted.Are the “falls” in the showers and bathrooms category 1 defects?

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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