Zhang v Serene Scene Landscapes - [2013] QCAT 568

CITATION:

Zhang v Serene Scene Landscapes [2013] QCAT 568

PARTIES:	Chris Zhang
v
Serene Scene Landscapes

APPLICATION NUMBER:

BDL187-13

MATTER TYPE:

Building matters

HEARING DATE:

29 August 2013

HEARD AT:

Brisbane

DECISION OF:

Mr Paul Favell, Member

DELIVERED ON:

7 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:	The applicant pays the respondent $3403.40 forthwith.
CATCHWORDS:	Contract for construction of retaining wall – Claim for payment – Whether breaches of contract – Whether defects rectified – Whether breach of legislation – Jurisdiction of Tribunal – Whether builder entitled to payment.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Chris Zhang

RESPONDENT:

Serene Scene Landscapes represented by Anthony Dwyer

REASONS FOR DECISION

In January of 2011 the timber retaining wall at a property owned by Mr Zhang collapsed during prolonged heavy rain. Mr Zhang had East Coast Geotechnical Pty Ltd draw a section for a replacement retaining wall. That section became part of what is agreed between the parties the contract between them for the construction of the replacement retaining wall.
That contract is identified as exhibit 2 in the material that has been filed on behalf of the respondent and is dated the 6 May 2011. The section was accompanied by a compliance certificate for building design or specification form 15, dated the 11 February 2011. The description of the component certified was ‘timber retaining wall design’ and the basis of the certification was said to be BCA 2010 and AS4678.
Mr Anthony Dwyer of Serene Scene Landscapes provided a quote which became the substantive part of the contract between the parties.
The wall was constructed. During the construction period, Mr Zhang questioned Mr Dwyer concerning whether notice had been given pursuant to note 2 on the retaining wall section.
Note 2 provides ‘engineer to be given 24 hours notice for inspections of – excavation prior to pouring concrete – posts, walers and drain in place prior to backfilling with aggregate’.
Mr Dwyer responded via an email dated 20 June 2011 in which he said:
Hi mate our engineer has come out and inspected the holes already and he is already booked to check the wall once built. Within the price of the quote we will provide the engineers report to you once bill has been settled. It will all be taken care of. Just to let you know the boys will be there Thursday – Friday to finish the wall off. The supplier dropped the wrong sleepers for the inserts and we have had to wait for new ones, this is what the hold-up has been. But all going well we will be finished there by the end of the week.
Subsequent to the work a certificate in form 16 pursuant to the Building Regulation 2006 sections 32, 43, 44, 46 and 47 was given on the 25th of July 2011 by Booth Engineers and Associates Pty Ltd. It described the components certified as ‘bored pier footings’ and the building description as ‘timber retaining wall. The basis of the certification was said to be AS2870-SAA Residential Slabs and Footing Code, AS1684.2 Residential Timber Frame Constructions Code, AS1170 Part 1 – SAA Loading Code Dead and Live Loads’.
On 9 July 2011, Mr Zhang discovered that ‘the ag drainage pipe behind the wall was 65mm diameter’. That was not what was specified in the drawing attached to the contract.
Mr Zhang complained by email and Mr Dwyer responded as follows:
The ag line used is within BSA allowances and the engineer was fine with it. The backfill of the wall which includes gravel is what is most important thing (sic) in regards to drainage. The ag line we used is 65mm and does exactly the same thing as 100mm AF pipe otherwise we would not have put it in. We send out the engineers report once the wall has been paid in full, this is our policy in regards to sending out reports and we do this for all our builders as well thanks.
Mr Zhang insisted that the 100mm ag pipe be installed. Mr Dwyer told me that the 100mm ag pipe was installed and that is agreed in paragraph 9 of Mr Zhang’s statement of evidence.
After 2 August 2011, when a demand was made for payment of $3,403.40, Mr Zhang went to the property and removed dirt covering the bottom part of the retaining wall and ‘noted that the 100mm ag pipe was installed under-size and outside the bottom wales’. Photographs were taken and they are on page 35-38 of the statement filed by Mr Zhang on 12 August 2013.
Mr Dwyer told me that subsequent to those photos being taken the issues raised were attended to and in that respect he has tended photographs which have as a bundle become exhibit 1. Part of that bundle is photographs taken 1 year after the installation and 2 years after the installation. They do not show any of the matters complained of and for all intents and purposes the retaining wall seems to be performing the function it was designed for.
After the hearing of this matter and without leave to produce further evidence Mr Zhang sent a letter dated 29 August 2013 to the Tribunal. It has not been served on the respondent. It enclosed two photographs dated 29 August 2013 said to show ‘the ag pipe is downside and outside of the bottom sleeper’. I do not know which ag pipe has been photographed or how it has been exposed.
In the material filed by Mr Zhang it is said that a “Mr Steve” from Serene Scene Landscapes met him at the property and was shown the drainage problems. Mr Steve added blue colour connectors to link sections of the ag pipe as shown in photographs on page 37.
On 19 August 2011, Mr Zhang gave a cheque to Serene Scene Landscapes so that he could get the engineer report spoken of. After he read it and formed the view that the certificate was not in respect of installation of drainage, walers and final inspection, he stopped his cheque.
Subsequently he made complaints about Mr Dwyer to the BSA such that the compliance office of the BSA found breaches relating to the failure to put a contract in writing, a failure to give the owner a contract information statement and receiving and depositing in excess of the limits of the Domestic Buildings Contract Act 2000. Those matters are not really relevant to anything I have to decide and indeed I don’t know what happened to those complaints.
On 4 November an inspection was carried out by the BSA and a report provided. After the inspection a notice was given by the BSA to Mr Dwyer. Mr Dwyer was requested to carry out work in relation to ‘items to rectify or complete’. The item was described as:
the completion of the sub-solid drainage system located to the earth side of the timber sleeper retaining wall does not comply with the engineer design drawings (East Coast Geotechnical Pty Ltd – reference number G11-033 dated 11 February 2011) therefore preventing the free flow of ground water to an appropriate point of discharge.
Mr Zhang had made other complaints to the Building Services Authority however the Building Services Authority advised
item 1 of your complaint form has been investigated and there was insufficient evidence to reveal any obvious defect of construction practices by Mr Anthony John Dwyer trading as Serene Scene Landscapes at the time of inspection. Therefore BSA is unable to provide you with any further assistance with resolution of this particular matter.
Mr Zhang has made an application for domestic building disputes and seeks to be relieved from paying $3404.40 to the respondent. Mr Zhang raises nine issues as follows:
(a)Mr Dwyer still has not put the sleeve around the pipe since the BSA inspection identified that the ag pipe was not socked. The report also pointed out the importance of the issue, which is consistent with section 3.6 in appendix g of the Australian Earth Retaining Structures (AS4678-2002) (see pages 22-25). The 100mm ag pipe underside the bottom wale does not work (see paragraph 22). The 65mm ag pipe is smaller than the size specified in the engineering drawing. According to Qld construction specifications C231 (sub-soil and foundation drains) the size of sub-soil drains is 100mm diameter. As a result Mr Dwyer must rectify the defect.
(b)The base of the retaining wall has a gap between 7cm to 10cm. This part of soil is not retained. Mr Dwyer used a large amount of dirt to conceal the gap.
(c)Mr Dwyer failed to arrange staged inspections for the installation of drainage and walers. He also fails to provide me with all copies of the inspections as per contract, the engineering design and sections 24 and 27 of the Building Regulation 2006 because he did not arrange the staged inspections. The engineer design drawing clearly stated the need for the drainage inspection prior to the back-filling with aggregate. In the letter to Mr Dwyer, I had also clearly stated that I wanted the wall built in accordance with the specifications of the engineer drawing (sic). Moreover, I reminded him about the staged inspections just before the construction started.
(d)Mr Dwyer failed to comply with section 28 of the Building Regulation 2006 in which it states: “prohibition on further building work until stage complies” and “the builder must not start the next stage of the work until the builder has been given the certificate of inspections for the relevant stage stating the stage complies with building development approval.”
(e)Mr Dwyer failed to arrange the final inspection has he had promised in his email. The final inspection was also required under section 99 of the Building Act 1975.
(f) Mr Dwyer failed to comply with the claims and specifications of the regulated contract therefore he breached s 45 of the Domestic Building Contracts Act 2000.
(g)Mr Dwyer failed to provide me the defects document after he finished the construction. This is in breach of section 67(4) of the Domestic Building Contracts Act 2000.
(h)Mr Dwyer demanded final payment from both my neighbour and me and received final payment from my neighbour while the construction had not reached practical completion stage as defined in section 67(6) of the Domestic Building Contracts Act 2000. His action breached 67(2) and 67(3) of the Domestic Building Contracts Act 2000.
(i)Mr Dwyer failed to put variations in writing. This is a breach of section 79 and 80 of the Domestic Building Contracts Act 2000. He did not inform me that he was going to change the size of the ag pipe from 100mm diameter to 65mm. he did not inform that he would build the retaining wall 7cm-10cm above the ground level instead of from the ground level as shown in the engineer design drawing.
Mr Zhang asked the tribunal to:
(a)Order the contractor to rectify the defects to the engineer design drawing.
(b)Impose disciplinary actions in the contractor for the breach of contract and multiple breaches of the Domestic Building Contracts Act 2000, Building Regulation 2000, Building Act 1975 and AS4678-2002 or order Building Service Authority to impose disciplinary actions on the contractor for breaches.
(c)Order the contractor to pay my legal costs.
(d)Relief from final payment demand
(e)Compensation for the failure to construct the retaining wall in accordance with the contract engineering design laws.
The application records that the work was commenced 16 June 2011 and completed 21 July 2011. The contract amount was $13,613.60 in respect of which payments of $10,210.20 have been made. Both parties were content to rely on the material they filed with the Tribunal.
In response to the claims made by Mr Zhang Mr Dwyer told me that:
(a)    He carried out the work under the contract during the period approximately 15 June 2011 to approximately 23 November 2011.
(b)    By 16 June 2013 the bored pier footings were completed and ready to pour. In accordance with the contract and the drawing Mr Dwyer arranged for Booth Engineers & Associates to inspect the footings and posts on 16 June and a form 16 certificate was provided on 25 July 2011.
(c)     Although a 65mm ag pipe was inadvertently installed Mr Dwyer, on or about 25 July, installed a 100mm ag pipe.
(d)    After Mr Dwyer received the BSA report and request, and on or about 15 November 2011, he returned to the site and completed the installation of the 100mm and 65mm ag lines to the existing storm water main. The 65mm ag line was not required by the drawing and Mr Dwyer never claimed a variation of payment for that additional ag line.
(e) On or about 17 November 2011 Mr Dwyer had completed all works in accordance with the contract and the drawings and intended to provide a further inspection by Booth Engineers for Mr Zhang to arrange pursuant to section 27 of the Building Regulations 2006.
(f)     On 2 December 2011 the BSA sent a letter to Mr Dwyer that stated ‘BSA has received confirmation that the required rectification work has been completed… your cooperation is appreciated and BSA will take no further action in regard to this matter’. Mr Dwyer has been informed by Booth Engineers that there is no legislative requirement for any further inspection and form 16 certificate. Exhibit 5 to the material filed on behalf of the respondent is an advice from Booth Engineers which states ‘based on the form 15 and plans by East Coast and our form 16 inspection certificate, you have all that is required – you do not need another form 15 or another form 16’.
(g)    The work has been completed in accordance with the contract, the drawing and relevant legislation in Australian standards.
(h)    All defects identified by the BSA inspection on 11 November 2011 have been rectified.
(i)     The 100mm ag line has been installed in accordance with the drawing.
(j)     In response to the concern that there is a gap between 7cm-10cm at the base of the retaining wall it is said
the drawing shows the final ground levels as abutting the bottom edge of the wale. The 70mm gap was left intentionally in order for others to install topsoil and turf to the final levels ending at the underside of the bottom waler. Mr Zhang’s existing levels were 70mm lower than that shown on the drawing because Mr Zhang had not installed the topsoil and turf at the time the retaining wall was completed. The BSA report did not identify the level of the bottom waler as a defect .
(k)    Section 28 of the Building Regulation 2006 does not apply as Mr Dwyer arranged for Booth Engineers to carry out an inspection of the bored piers and posts at the appropriate time. Further work continued after receipt of Booth Engineer’s approval.
(l)     Mr Dwyer denies that he has breached any of the provisions of the various legislation as claimed by Mr Zhang.

Jurisdiction

QCAT has jurisdiction to determine matters it is empowered to deal with under the Queensland Building Services Authority Act 1991 or enabling Act.
The Queensland Building Services Authority Act 1991 (QBSA Act) allows a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute. The term “building dispute” is defined in Schedule 2 of the QBSA Act as meaning, relevantly, ‘a domestic building dispute…’
“Domestic building dispute” means:
(a)a claim or dispute arising between a building owner and building contractor relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(b)a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work; or
(c)a claim or dispute in negligence, nuisance or trespass relating to the performance of reviewable domestic work other than a claim for personal injuries; or
(d)a claim or dispute arising between a building owner and building contractor in any one or more of the following, relating to the relating to the performance of reviewable domestic work, or a contract for the performance of reviewable domestic work-
(i) an architect;
(ii) an engineer;
(iii) a surveyor;
(iv) a quantity surveyor;
(v) an electrician or an electrical contractor;
(vi) a supplier or manufacturer of materials used in the Tribunal work.
“Reviewable domestic work” is defined in schedule 2 of the QBSA Act as:
domestic building work under the Domestic Building Contracts Act2000, except that for, applying section 8(8) of that Act the definition excluded building work in that Act, is taken not to mean anything mentioned in paragraph (b), (c) or (d) or the definition.
“Domestic building work” as the term is used in the QBSA Act is defined in section 8 of the Domestic Building Contracts Act 2000. Each of the following is domestic building work –
(a)the erection or construction of a detached building;
(b)the renovation, alteration, extension, improvement or repair of a home;
(c)removal or reciting work for a detached dwelling.
Relevantly, “domestic building work” includes ‘work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home’.
Section 8(4) without limiting subsection (3) of section 8 defines associated work as including –
(a)landscaping; and
(b)paving; and
(c)the erection or construction of a building or fixture associated with the detached dwelling or home.
The act gives examples of buildings and fixtures for section 8(4)(c) as ‘retaining structures, driveways, fencing, garages, car ports, workshops, swimming pools and spas’.
I am satisfied that the Tribunal has jurisdiction to consider an order that the contractor rectify the defects in the building of the wall but not to rectify ‘the defects to the engineer design drawing’.
The Tribunal does not have jurisdiction to impose disciplinary actions for alleged breaches of the Domestic Building Contracts Act 2000, the Building Regulation 2006 and the Building Act 1975. It does not have jurisdiction to order the Building Services Authority to impose disciplinary actions on the contractor.
The Tribunal does have jurisdiction to take into account alleged breaches of the contract.
The Tribunal does have power to order relief from payment of an amount claimed by one party from another and it has power to order the payment of an amount found to be owing by one party to another.
On the evidence before me I am not satisfied that there has been a failure to construct a retaining wall in accordance with the contract. I accept the evidence given by Mr Dwyer and I find that he has constructed the retaining wall in accord with the plans.
Insofar as there were defects, those defects were identified in the correspondence from the QBSA. I am satisfied that the defects have been rectified and I note that that was the view of the QBSA after inspection.
I accept the evidence from Mr Dwyer that the ag pipe was socked after the rectification work was done. I am not satisfied that the 100mm ag pipe does not work since the rectification of the defects took place.
The installation of the 65mm ag pipe was not required by the drawing. It was however installed and because the applicant would not accept it as a variation no claim has been made for it. In my view there has not been a breach of the contract because of its installation.
Nor has there been a breach of sections 79 and 80 of the Domestic Building Contracts Act 2000. That is because there was not a variation. The installation of the 60 mm ag drain was not in substitute to anything required by the contract nor was it a breach of any prohibition on what was to be done under the contract.
The term “variation” of a domestic building contract is defined by section 16 of the Domestic Building Contracts Act 2000 to be –
(a)an addition of domestic building work to the subject work; or
(b)an omission from the subject work.
A reading of section 79 which requires variations to be in writing makes it clear that when a “variation” is spoken about it is a variation of the contract agreed to between the building contractor and the building owner. In my view, the addition of the ag pipe in the circumstances did not constitute a variation of the contract between the parties. It was a gratuitous addition to the retaining wall which was not sought to be charged.

As to the gap claimed to be at the base of the retaining wall, I have observed what is said to be that gap in the photographs produced to the Tribunal. In that regard I accept the explanation given by Mr Dwyer. I am not satisfied that even though there is that gap the plans have not been complied with. The explanation given seems to me to be logical and I note that the QBSA did not regard that as a defect. In any event even if it were a defect it would not disentitle the respondent to payment for the work completed.
As to the claim that Mr Dwyer failed to arrange staged inspections for the installation of drainage and walers I am not satisfied that there was an obligation upon Mr Dwyer or the respondent to provide the applicant with notice of the inspections nor am I satisfied that there has been any breach of sections 24 or 27 of the Building Regulation 2006. The respondent has the benefit of a certificate which has been provided in the material. Section 27 requires the builder to ensure the building certifier is given a notice claiming that this stage has been completed. I am satisfied here that Booth Engineers and Associates Pty Ltd consulting engineers provided an inspection certificate in a form 16. That certified components described as bored pier footings with the building description being ‘timber retaining wall’. The basis of the certification was the standard applicable for Residential Slabs and Footing Code, residential timber frame constructions and the SAA Loading Code Dead and Live Loads. It was given on 25 July 2011. The obligation to give notice was expressed in note 2 in the retaining wall section. I am satisfied that obligation was complied with. Apart from making the assertion that there has been a breach of the obligation imposed by section 27 there was no evidence provided to substantiate that assertion. I accept the evidence from Mr Dwyer that notice was given. I accept that an inspection was carried out. I note that the certificate was signed on 25 July 2011. There is nothing on the certificate which indicates when the inspection was carried out.
I am not satisfied that there has been any breach of section 28 of the Building Regulation 2006 because I am not satisfied that the respondent did start the next stage of the work until before a certificate of inspection was given.
“Stage” of assessable building work means a stage of the work provided for under section 24 of the Building Regulation 2006 (schedule 4). “Assessable building work” means ‘building work that is not development requiring compliance assessment under the Planning Act, self-assessable building work or exempt development’.
In my view note 2 on the plan does not create a “stage”. Stages generally are all stages at which the building development approval states the work must be completed (section 24(2) Building Regulation 2006). Here, as has been pointed out by the applicant, no approval was required or obtained.
Insofar as arranging a final inspection is concerned I accept what Mr Dwyer has provided.
Section 99 of the Building Act 1975 as relied on by Mr Zhang requires the building certifier to ensure the owner of the building is within the required period given a final inspection certificate of the building work and a copy of any other inspection documentation for inspection of the building work if at the inspection of the final stage of building work, the building certifier is satisfied on an inspection carried out under the best industry practice, that the work complies with the building development approval. That implies that there was a final stage which required inspection. In my view that is not the case but even if it were the obligation is on the building certifier not the respondent to ensure that the relevant building certificate and documentation is given to the owner.
I am not satisfied that there has been any breach by Mr Dwyer or the respondent of section 45 of the Domestic Building Contracts Act 2000.
Nor am I satisfied that there is a breach of section 67(4) of the Domestic Building Contracts Act 2000. Section 67 only applied to a regulated contract for which the subject work consists of the erection or construction of a detached dwelling to a stage suitable for occupation or the renovation, alteration, extension, improvement or repair of a home to a stage suitable for occupation. In my view that is not the case here. In any event even if it were it would not, in my view in the circumstances here, effect the entitlement of the respondent to payment.
For the reasons I have articulated above, the applicant has not made out a case that he should be relieved of an obligation to make the final payment. I decline to make the orders sought for that reason and for the reasons I have earlier given.
The appropriate order is that the applicant pays the respondent $3,403.40 forthwith.