Buglar v Queensland Building and Construction Commission & Anor [2025] QCAT 371

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Buglar v Queensland Building and Construction Commission & Anor [2025] QCAT 371 PARTIES: ANDREW JAMES BUGLAR (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) ANASTASI KOTIS (second respondent) APPLICATION NO/S: GAR454-23 MATTER TYPE: General administrative review matters DELIVERED ON: 26 September 2025 HEARING DATES: 19 May 2025 HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: The decision made by the First Respondent on 2 June 2023 to give a direction to rectify Items 1 and 4 of the Second Respondent’s complaint of 31 May 2022 is set aside and is substituted with a decision not to give a direction to rectify Items 1 and 4 of the Second Respondent’s complaint of 31 May 2022. Any party seeking an order for costs must file in the Tribunal two (2) copies of, and give to the other parties one (1) copy of, written submissions in support of a costs order, no longer than five (5) pages, within 14 days of the date of receipt of the Decision. If written submissions as to costs are filed pursuant to Order 2 above, the party or parties against whom an order for costs is sought must file in the Tribunal two (2) copies of, and give to each other party one (1) copy of, written submissions in response, no longer than five (5) pages for each response, within 14 days of receipt of the written submissions. Each party that receives written submissions pursuant to Order 3 above may file in the Tribunal two (2) copies of, and give to each other party one (1) copy of, written submissions in reply, no longer than -- 1 of 21 -- 2 three (3) pages for each reply, within 14 days of receipt of the written submissions. If no written submissions are filed pursuant to Order 2 above, there will be no order as to costs of the proceeding. If written submissions as to costs are filed, the application for costs will be determined on the papers without an oral hearing. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where homeowner made complaint about alleged defective residential building work – where complaint included complaints about water ingress in relation to main bedroom window and stairwell window – where Queensland Building and Construction Commission (‘QBCC’) decided to give a direction to rectify to the builder – where the builder carried out rectification in accordance with the direction – where homeowner made subsequent complaint about the same windows – where QBCC decided to give a second direction to rectify to the builder – where builder applied to QBCC for internal review of that decision – where QBCC decided to give a direction to rectify in the same terms – where builder applied to the Tribunal for external review of decision – whether defective building work – whether unfair, in the circumstances, to issue the direction to rectify Acts Interpretation Act 1954 (Qld), s 38 Queensland Building and Construction Commission Act 1991 (Qld), s 71J, s 72, s 86, s 86B, s 86C, s 86E, s 87, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24 Murphy v Queensland Building and Construction Commission [2024] QCATA 27 APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: Second Respondent: N. Congram instructed by First Respondent’s legal department Self-represented -- 2 of 21 -- 3 REASONS FOR DECISION Introduction [1] By an Application to review a decision filed on 6 July 2023 (‘the Review Application’), the Applicant (‘Mr Buglar’) applied to review a decision of the First Respondent (‘the QBCC’) made on 16 March 2023 (‘the original decision’) to give a direction to rectify to Mr Buglar. By a Decision of the Tribunal dated 25 August 2023, it was ordered that (unless otherwise ordered by the Tribunal) the Review Application was taken to be an application to review the internal review decision of the QBCC dated 2 June 2023 (‘the Review Decision’).1 [2] By the original decision, Mr Buglar was directed to rectify defective work comprising the installation of the main bedroom window and the stairwell window at the residential property (‘the Property’) of the Second Respondent (‘Mr Kotis’). The Property is located in a suburb of Brisbane, Queensland. The complaints leading to the Review Decision concerned water entry into the main bedroom and stairwell during rainy weather. [3] By the Review Decision, the decision-maker decided to give a direction to rectify Items 1 and 4 of the complaint made by Mr Kotis dated 31 May 2022 (‘the second complaint’). The Review Decision was, materially, the same as the original decision. A direction to rectify dated 5 July 2023 was issued to Mr Buglar in respect of Items 1 and 4 following the Review Decision. Jurisdiction [4] By s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) a person affected by a ‘reviewable decision’ of the QBCC may apply to the Tribunal, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), for a review of the decision. [5] There is no dispute that, and I find that, the Review Decision is a ‘reviewable decision’ and that the Tribunal has jurisdiction to decide the matter.2 [6] The purpose of the review of a reviewable decision is to produce the correct and preferable decision.3 [7] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.4 [8] Section 24 of the QCAT Act provides, relevantly: (1) In a proceeding for a review of a reviewable decision, the tribunal may— (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or 1 This was the position taken by the QBCC at the hearing: T1-6 lines 10-41. 2 See QBCC Act ss 86E(b), 86(1)(e), 86B, 86C, 86D. 3 QCAT Act s 20(1). 4 Ibid. -- 3 of 21 -- 4 (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. (2) The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision— (a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and (b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect. … Chronology of events [9] In April 2018, Mr Kotis and his wife entered into a written building contract with Mr Buglar in relation to the Property. Item 3 of the contract contained a description of works which identified that a quote provided on 23 February 2018 outlined the ‘specifics’ but, in summary, the existing house would be relocated and a new residence would be built on the previous building as per plans prepared by the Kotis’ architect. [10] At the relevant times, Mr Buglar held a contractor’s licence issued pursuant to the QBCC Act in the class of ‘Builder – Low Rise’ and ‘Carpentry’. [11] Work pursuant to the contract commenced in April 2018 and ceased on or about 13 September 2019. It appears that the building works were not complete at that time and there was a dispute in respect of an outstanding amount claimed by Mr Buglar. [12] On 13 February 2020, the QBCC received a complaint (‘the first complaint’) from Mr Kotis regarding the work undertaken by Mr Buglar. [13] The complaint items included, relevantly: (a) Item 35: Master Bedroom: Windows are leaking in rainy weather: Date first noticed: 11 December 2019; (b) Item 46: Stairwell landing: Windows are leaking in rainy weather: Date first noticed: 11 December 2019. [14] On 11 May 2020, Mr Barrett, a building inspector with the QBCC, undertook an inspection of the complaint items in the presence of Mr Buglar and Mr Kotis. [15] Mr Barrett subsequently prepared a report dated 3 June 2020. [16] By letter dated 12 June 2020, the QBCC notified Mr Buglar of its decision to issue a direction to rectify a number of complaint items. In respect of Items 35 and 46 it was stated: (a) ‘The inspection found that the Bed 1 window has not been installed in accordance to [sic] the minimum requirements of the BCA and Manufacturers -- 4 of 21 -- 5 [sic] recommendations, in that a head flashing has not been installed to prevent water ingress, resulting in damage to internal linings and unhealthy conditions.’5 (b) ‘The inspection found that the stairwell window has not been installed in accordance to [sic] the minimum requirements of the BCA and Manufacturers [sic] recommendations, in that a head flashing has not been installed to prevent water ingress, resulting in damage to internal linings and unhealthy conditions.’6 [17] A direction to rectify in the above terms dated 12 June 2020 was given to Mr Buglar. [18] On 9 July 2020, Mr Buglar applied for an internal review of this decision. [19] A report entitled ‘Internal Review Site Inspection Report’ dated 21 August 2020 was prepared by Mr Whitecross of the QBCC based on a site inspection undertaken by Mr Whitecross on 17 August 2020 and a desktop assessment of the information contained in the QBCC’s files. [20] The findings by Mr Whitecross in respect of the main bedroom window and the stairwell window were as follows: (a) Main bedroom window: (i) Findings/Comments: 1. A head flashing had been installed at the time of the inspection. 2. No evidence of damage or unhealthy conditions was present. (ii) Conclusion: Head flashing installed as per Direction Wording. This complaint item is determined not to fall within the meaning of defective building work under the QBCC Act and Board Policy. (b) Stairwell window (relevantly): (i) Findings/Comments: 1. A head flashing had been installed at the time of the inspection. … (ii) Conclusion: Head flashing installed as per Direction Wording and damage to plasterboard rectified by [Mr Kotis]. This complaint item is determined not to fall within the meaning of defective building work under the QBCC Act and Board Policy. [21] As is evident from the terms of the report, Mr Buglar had installed a head flashing above the respective windows following the initial direction to rectify. 5 This was Direction Item 13. 6 This was Direction Item 17. -- 5 of 21 -- 6 [22] On 31 May 2022, the QBCC received a complaint (‘the second complaint’) from Mr Kotis. [23] Mr Barrett reinspected the Property on 11 January 2023 and prepared a further inspection report dated 13 March 2023. In respect of each of the windows, the report referred to a ‘QBCC Decision’ which stated that the installation of the respective bedrooms ‘by way of weatherproofing the opening with a flexible sealant, does not meet the minimum requirements of the BCA [Building Code of Australia] for timber framed construction Class I structures, in that the opening has not been adequately flashed to prevent water from entering the interior of the building, resulting in water ingress, undue dampness and deterioration of building elements, and unhealthy conditions for the occupants.’ [24] A direction to rectify in these terms dated 16 March 2023 was given to Mr Buglar. [25] On 13 April 2023, Mr Bugler sought an internal review of the decision to give the direction to rectify. [26] An Internal Review Desktop Report dated 25 May 2023 was prepared by the QBCC. The technical officer of the QBCC set out various findings in respect of each of the windows and concluded ‘… I uphold the findings of the original decision-maker’. [27] A Decision Notice was issued which contained a Decision made by a Senior Review Officer of the QBCC on 2 June 2023, being the Review Decision. The Decision was stated as follows: I have decided to give a direction to rectify (DTR) for items 1 & 4 of the affected party’s complaint of 31 May 2022. [28] As noted above, a direction to rectify dated 5 July 2023 was issued to Mr Buglar following the Review Decision. Issues for determination [29] There is no dispute that, and I find that: (a) the installation of the windows was ‘building work’ within the meaning of the QBCC Act;7 (b) if there was defective building work, Mr Buglar is the person responsible for the that work (noting that this finding is only in relation to the installation of the respective windows). [30] In my view, the following further issues arise for consideration: (a) whether the second complaint was made within 12 months after Mr Kotis became aware of, relevantly, the building work Mr Kotis considered to be defective or incomplete (see s 71J(4) of the QBCC Act); (b) if the second complaint was made outside the 12 month period, whether the QBCC has power to issue a direction to rectify; 7 See sch 2. -- 6 of 21 -- 7 (c) subject to (a) and (b) above, whether the building work comprising the installation of the main bedroom window and the stairwell window constituted defective building work and, if so, whether it was structural or non-structural; (d) whether the discretion under s 72 of the QBCC Act should be exercised in favour of giving the direction to rectify including, in particular, whether, in the circumstances, it would be unfair to Mr Buglar to give the direction to rectify (see s 72(5) of the QBCC Act). Was the second complaint made within the 12 month period? [31] As at the date of the Review Decision, s 71J of the QBCC Act provided (and still does provide): (1) A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete. (2) The owner or occupier of a residential property adjacent to a building site may ask the commission to give a direction to remedy any consequential damage to the property. (3) A person making a request under subsection (1) or (2) must give the commission— (a) details of— (i) for a request under subsection (1)—the building work the consumer considers is defective or incomplete; or (ii) for a request under subsection (2)—the consequential damage to the property; and (b) other details the commission reasonably requires to consider the request; and (c) the fee prescribed by regulation. (4) Also, a request under subsection (1) or (2) must be made within 12 months after the person becomes aware of— (a) for a request under subsection (1)—the building work the person considers is defective or incomplete; or (b) for a request under subsection (2)—the consequential damage to the property. [32] Under s 71J(1), a consumer may ask the QBCC to give a direction to rectify building work the consumer considers is, relevantly to this case, defective. Under s 71J(4), in the case of defective building work, a request to give a direction to rectify must be made within 12 months after the person becomes aware of the building work the person considers is defective. [33] As at the date of the Review Decision, s 72 of the QBCC Act provided (as it still does): (1) This section applies if the commission is of the opinion that— (a) building work is defective or incomplete; or -- 7 of 21 -- 8 (b) consequential damage has been caused by, or as a consequence of, carrying out building work. (2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction— (a) for building work that is defective or incomplete—rectify the building work; (b) for consequential damage—remedy the damage. (2AA)A regulation may prescribe a period within which the commission must make the direction. (2A) If a period is prescribed under subsection (2AA), the commission must make the direction during the prescribed period. (3) In deciding whether to give the direction, the commission 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 the contract for carrying out the building work (including the terms of any warranties included in the contract)). (4) The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period— (a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or (b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally. (5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Example for subsection (5)— The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home. (6) The commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work. (7) In subsection (3), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work. (8) To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J. -- 8 of 21 -- 9 [34] There is no dispute that in relation to the first complaint, Mr Kotis noticed that the windows were leaking in rainy weather on 11 December 2019. The ABSIR report forming part of the complaint documents referred to the ‘Window Installer’ in respect of these items, but there is no doubt that Mr Kotis knew that it was Mr Buglar, as builder, who installed the windows. I am satisfied that on 11 December 2019 Mr Kotis became aware of the building work (namely the installation of the windows) that he considered to be defective. [35] The first complaint was made within the required 12 month period. [36] The second complaint states that the main bedroom and stairwell window items were first noticed on 26 February 2022. However, the description of the complaint item in relation to the main bedroom was as follows: WATER ENTERING WINDOW – Original date noticed 11/12/2019 when water entered. [Mr Buglar] rectified back in August 2020 after QBCC ordered a ratification [sic] work as he failed to install flashing. Since then more water has come through the same window. (emphasis added) [37] The description of the complaint in relation to the stairwell window was as follows: Original date noticed 11/12/2019 when water entered. [Mr Buglar] rectified back in August 2020 after QBCC ordered a ratification [sic] work as he failed to install flashing. Since then more water has come through the same window causing damage to the window frame (emphasis added) [38] I find that, on the basis of Mr Barrett’s evidence, the defective building work identified by Mr Barrett in relation to the second complaint was the same defective building work identified by Mr Barrett in relation to the first complaint. [39] Having regard to the above matters, in respect of the second complaint, I find that Mr Kotis became aware of the building work considered to be defective on 11 December 2019; the second complaint was made approximately 2 years 5½ months after that date. Does non-compliance with s 71J(4) preclude the issue of a second direction to rectify in relation to the same alleged defective building work? [40] The QBCC submitted that s 71J is not a precondition to the QBCC’s power to issue a direction to rectify under s 72 and the QBCC can issue a direction under s 72 when a complaint is made out of time (citing various authorities).8 [41] Relevantly to the present case, I accept that the making of the second complaint out of time does not preclude the QBCC from issuing a direction to rectify.9 [42] The QBCC submitted that the fact that the request has been made out of time under s 71J may be a relevant factor to consider in determining whether it would be, in the 8 QBCC’s outline of submissions dated 19 May 2025, [30]. 9 See e.g. MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408, [21]; Rosecove Pty Ltd v Queensland Building and Construction Commission & Anor [2023] QCAT 101, [37]–[38]; Cristiano v Queensland Building and Construction Commission & Anor [2024] QCAT 451, [24]. -- 9 of 21 -- 10 circumstances unfair to the person to give the direction (se s 72(5)).10 I accept this to be the case. Did the installation of the two windows constitute defective building work and if so, was it structural or non-structural? [43] The term ‘defective’ is defined in the QBCC Act as follows: defective, in relation to building work, includes faulty or unsatisfactory. [44] Under the QBCC’s Rectification of Building Work Policy (‘the Policy’) made pursuant to the QBCC Act, ‘Defective building work’ is defined to mean building work that is faulty or unsatisfactory, and includes, for example, work that: (a) does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard; (b) involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions. [45] The windows the subject of the Review Decision were architect specified, custom- made, steel windows. [46] Mr Kotis and his wife signed a ‘Shop Drawing Sign-off Agreement’ provided by the window manufacturer dated 20 February 2019. Item 12 which was ticked by the Kotis’ was headed ‘Flashings and Caulking’ and provided: Do you understand that [the manufacturer] does not supply or install any flashings to your windows/doors? [The manufacturer] does not undertake caulking between the edge of any side of the frames in the surrounding fabric of the building. [47] Mr Buglar undertook the installation of those two windows which were supplied to him. [48] Prior to installing the two windows, Mr Buglar obtained an instruction from the window manufacturer in relation to installation. The manufacturer provided a construction detail which, in summary, provided for a 5 mm gap to be left between the window and the frame of the walls with the gap to be filled with silicone sealant pumped in around all four sides of the windows with a ‘tool off’ to all four sides. [49] Mr Buglar states that he installed the windows in accordance with that instruction. This was accepted by Mr Barrett who stated in the 2023 inspection report:11 The QBCC acknowledges that [Mr Buglar] has installed the windows in accordance to Manufacturers [sic] recommendations, however the QBCC considers that a competent Licensed Class Holder would have referred to the minimum requirements of the BCA for residential timber framed construction, and consulted with the Manufacturer for compliance methods of installation. [50] No evidence was led by the QBCC or Mr Kotis as to whether the window manufacturer would have provided an alternative method of installation had it been 10 QBCC’s outline of submissions dated 19 May 2025, [31]. 11 Hearing Book, p 883. -- 10 of 21 -- 11 consulted as suggested by Mr Barrett. Mr Buglar installed the windows in accordance with the manufacturer’s instruction. Had Mr Buglar disregarded the manufacturer’s instructions and installed the windows by an alternative method, by the express terms of the QBCC Policy, that would have amounted to ‘defective building work’ because it would have involved the use of a manufactured product (the custom-built windows) which would have been installed in a way that did not comply with the manufacturer’s instruction. [51] The conclusions reached by Mr Barrett in the report are set out at paragraph [23] above. [52] I accept the evidence of Mr Barrett that a flexible sealant is not regarded as a long- term flashing in accordance with AS2904-1995. On the basis of this evidence, I find that the building work performed by Mr Buglar was not satisfactory. It constituted defective building work. [53] However, the further issue is whether the defective building work was structural or non-structural and this turns on the question of water ingress as a result of an absence of flashings. Given the nature of the evidence concerning the water ingress issue, I consider it convenient to deal with this issue in considering the question of whether it is unfair to issue a direction to rectify to Mr Buglar. Exercise of discretion [54] In Murphy v Queensland Building and Construction Commission, it was said by Senior Member Brown:12 The power to give a direction to rectify conferred by s 72 of the QBCC Act is discretionary. Section 72(3) sets out what the commission may take into consideration in deciding whether to give a direction. The discretion is a broad one, permitting the commission to consider all the circumstances it considers are reasonably relevant. Specifically, the commission is not limited to a consideration of the terms of the contract for carrying out the building work. The commission may decide to give a direction to rectify or not give a direction to rectify. Each are reviewable decisions. [55] Subsection 72(5) of the QBCC Act provides that the QBCC is not required to give a direction (in this case, a direction to rectify) if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction. The language of ‘is not required to give the direction’ in s 72(5) suggests that the QBCC may still give a direction even if satisfied that it would be unfair to do so. However, in my view, the circumstances in which the QBCC would give a direction to rectify where it is satisfied that it would be unfair to the contractor to do so would be limited. On the other hand, I consider that even if the QBCC concluded that it would not be unfair to the contractor to issue a direction to rectify, the QBCC would still retain a discretion under s 72 not to do so if the particular circumstances of the case warranted such a decision. [56] In the present case, I consider that the issue of whether it would be unfair to give a direction to Mr Buglar is the decisive issue on the exercise of the discretion under s 72. 12 [2024] QCATA 27, [28]. -- 11 of 21 -- 12 Would it be unfair to Mr Buglar to give the direction? [57] Mr Buglar raised a number of issues upon which he relied to contend that it would be unfair to issue a direction to rectify in relation to the two windows. [58] I will commence with two issues which I reject as providing any basis for a conclusion of unfairness. [59] First, Mr Buglar raised the fact that money was still owing by Mr Kotis under the contract. However, this was ultimately subject to a settlement between the parties and, in final addresses, I understood that Mr Buglar accepted that the settlement amount of $5,288.00 had been paid by Mr Kotis.13 [60] Second, Mr Buglar contends that, by virtue of the settlement agreement, Mr Kotis agreed to resolve any issues concerning the alleged defective work. The terms of the settlement agreement are not included in the evidence as far as I can ascertain. In those circumstances, I cannot be satisfied that the parties purported to settle the matters complained of. In any event, as submitted by the QBCC, a person cannot contract out of the provisions of the QBCC Act;14 and an agreement (other than a domestic building contract) is void to the extent to which it seeks to exclude, change or restrict a right conferred under the Act in relation to a domestic building contract.15 It follows that even if the settlement agreement purported to exclude the right of Mr Kotis to make the second complaint, such a provision would be void. [61] However, there are other matters which I consider to be material to the question of unfairness. [62] The windows in question were custom-designed steel windows which Mr Buglar was required to install. As part of that process Mr Buglar obtained instructions from the window manufacturer. Construction details were provided by the window manufacturer to Mr Buglar. These were not generic instructions; they were specifically directed at the installation of the windows in question. There is no dispute that Mr Buglar complied with the manufacturer’s instruction. In those circumstances, Mr Buglar complied with that part of the Policy requiring installation to be performed in accordance with the manufacturer’s instruction. Whilst I accept Mr Barrett’s evidence that the method adopted did not comply with the Building Code of Australia, I consider that the facts of the present case created a tension between compliance with the Building Code of Australia and the express instruction of the manufacturer of the windows. [63] Whilst there is no dispute that there was water ingress at the location of each of the windows, both initially and leading up to the making of the second complaint, there is a question as to the extent, if any, to which the water ingress was attributable to the absence of flashing, in relation to the second complaint. [64] In Mr Barrett’s statement dated 1 October 2024, Mr Barrett stated: (a) in paragraph 18: ‘By Complaint Item 1, [Mr Kotis] identified that water was leaking through the window of the main bedroom at the Property’; 13 Transcript T1-75 lines 1-18. 14 QBCC Act s 108D(1). 15 Ibid s 108D(3). -- 12 of 21 -- 13 (b) in paragraph 19: ‘By Complaint Item 4, [Mr Kotis] identified that water was leaking through the window located in the stairwell of the Property’. [65] In relation to the main bedroom window (or perhaps both windows) Mr Barrett gave the following evidence in examination-in-chief:16 So at paragraph 18, you say that water was leaking through the window of the main bedroom?‑‑‑Yes. Could I just ask you to explain where you identified water was leaking through?‑‑‑Um – damage to the plasterboard – um – down the bottom. I – sorry – my question was more directed to, was the water leaking through the window itself, or through the flexible sealant that ‑ ‑ ‑?‑‑‑The – when investigating leaks – um – there’s essentially a product that’s been purchased. Um – a lot of the times, the product is certified, so, as a builder, I would purchase that product, say, an aluminium for argument sake. I fit that window in accordance to manufacturer’s recommendations – um – and then, you know, follow the manufacturer's recommendations for cladding, rah – rah – rah, build the whole thing. Is the window product defective? So the assembly of the window, the design of the window, is that defective? I have had cases where I have found that the assembly as actually defective, which was why the window – um – why, at the end of the day, the Commission found that that was not defective building work by the builder but a ‑ ‑ ‑ Okay. So I’m ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ product issue. ‑ ‑ ‑ just – if I could ask you just to think about these specific windows ‑ ‑ ‑?‑‑‑Yeah. ‑ ‑ ‑ and my question is whether, what you observed indicated that the leaking water was as a result of the window itself or ‑ ‑ ‑?‑‑‑Yeah. ‑ ‑ ‑ as a result of the use of flexible sealant?‑‑‑Well, that’s what I mean. I – when I was hosing the window, I’m looking to see if the window frame itself is leaking in places to result in water ingress. And did you see any water ingress?‑‑‑No. Okay?‑‑‑Only inside the wall. Okay. And, so, just to confirm, you didn’t see any water leaking through the frame of the window?‑‑‑No. It was through the wall?‑‑‑Yes. And what does that indicate to you?‑‑‑A flashing issue. Okay. And so does that indicate – does that – is that relevant to whether you think that the issue could be due to defective building work or a manufacturer’s warranty issue?‑‑‑That’s what I had to establish, yes. So you turned your mind to that?‑‑‑Yes. And what did you conclude?‑‑‑Uh – I didn’t really have a problem with the product itself. 16 T1-40 lines 2-49. -- 13 of 21 -- 14 (emphasis added) [66] Mr Barrett earlier gave the following evidence in relation to the re-inspection:17 Did you run any testing on the windows?‑‑‑Did water testing on the windows. Um – I started to notice a little bit of water coming in – uh – inside where the – the timber frame was in the steel window. This time, I had a – a hole that I could see in, so I – that’s when I started questioning how these windows have been flashed. Um ‑ ‑ ‑ (emphasis added) [67] The above evidence needs to be considered in the context of other evidence, including evidence Mr Barrett gave in cross-examination. [68] In the Inspection Report dated 13 March 2023 (following the second complaint) the complaint item for the main bedroom was set out including ‘WATER ENTERING WINDOW’ and that since the initial rectification work ‘… more water has come through the same window’. (emphasis added) [69] At page 3 of the Report,18 Mr Barrett stated: A water test was conducted on the window which noted water entering via the horizontal bars between the frames, which tracked sideways behind plasterboard sheeting and damaging the plasterboard at the base of the wall. [70] At page 10 of the report,19 Mr Barrett included a photograph of the main bedroom window with the caption: ‘View of water entering between frames and then entering inside the wall cavity’. The photograph contained two blue arrows, the first of which indicated the direction of water entering from the exterior of the window through to the top of the bottom section of the window, with the second arrow pointing along that section towards the internal wall of the bedroom. [71] The language of the report and the photographic evidence indicates that water ingress was entering through the horizontal bars in the main bedroom window. [72] Further, I am satisfied that Mr Barrett accepted this to be the case during cross- examination, although at times Mr Barrett tended not to provide a direct answer to the question.20 [73] In addition, Mr Kotis obtained an Assessment Report Mould and Moisture dated 21 October 2021. Included in that report is a photograph at page 10,21 containing a section headed ‘UPPER LEVEL MASTER BEDROOM’ and containing a photograph with the notation: ‘Water was found leaking through the window frame near the bed’. The photograph is of a portion of the window and it appears to be the bottom section of the window frame of the window adjacent to the timber flooring. There are two blue arrows which appear to be referencing the water found leaking through the window. The top arrow appears to be pointing towards a small amount of water on the floor immediately adjacent to the corner of the window frame. The second arrow is pointing 17 T1-38 lines 18-21. 18 Hearing Book, p 1045. 19 Ibid. 20 T1-52 lines 23-36; T1-53 lines 36-43; T1-53 line 45 – T1-54 line 20; T1-56 line 22 – T1-57 line 3. 21 Hearing Book, p 1038. -- 14 of 21 -- 15 towards what appears to be the middle of that section of the window indicating water on the inside lip or edge of the window frame. [74] When it was put to Mr Barrett in cross-examination that the ingress point for the water was the window frame itself rather than the areas where silicone had been placed, as best I understood Mr Barrett’s evidence, Mr Barrett seemed to suggest that had the flashing been installed water entering through the window frame would have prevented the water from entering behind the plasterboard and damaging the plasterboard. During the course of cross-examination the following exchanges occurred on this topic: (a) MEMBER: But, Mr Barrett, have you assumed that the water entry has resulted from a lack of a physical flashing or is there something you saw on your second inspection that – based upon which you conclude that it was the absence of a physical flashing that has caused the water entry?‑‑‑I can’t accept silicone as a long-term flashing. I understand that?‑‑‑It’s ‑ ‑ ‑ I’m dealing just with the water ingress at this ‑ ‑ ‑?‑‑‑Water ingress. Yes. Yep. And going out there and pumping – pumping more silicone in before I get there, yeah, I’m not going to rep – replicate that leak. But through hosing this, the water – the – I think the window came in two pieces. The water tracked along there and came down inside the wall. It shouldn’t be seen inside the wall. The window frames – the flashings go from the window out. So are you saying that the – what you’ve shown at the top-left photograph on page 1045, even if there’s water entry there, the flashing would have stopped the water entering into the ‑ ‑ ‑?‑‑‑That’s where your flashing would be. Yeah. Into the cavity ‑ ‑ ‑?‑‑‑Yeah. ‑ ‑ ‑ of the wall?‑‑‑Yeah. From there on. All right. Thank you?‑‑‑That’s m --- yeah.22 (b) Mr Buglar put a series of propositions to Mr Barrett but the essence of them was that, first, the window itself leaked and that the water would be behind the flashing and, second you cannot flash a window that sits on top of another window and with the design of two windows on top of each other, there are no flashing guidelines.23 (c) MEMBER: That’s all right. Let’s just take it step by step. Mr Barrett, just starting with that photograph that ‑ ‑ ‑?‑‑‑Yes. ‑ ‑ ‑ Mr Buglar took you to?‑‑‑Yep. This is on the second inspection?‑‑‑Yes. And this photo is taken after the windows were hosed from the outside?‑‑‑Yes. 22 T1-55 lines 5-28. 23 T1-55 line 30; T1-56 line 13. -- 15 of 21 -- 16 And as a result of doing the hosing, your note seems to indicate that water was coming through – entering between the frames of the windows themselves; is that correct? MR BUGLAR: Correct. WITNESS: I think the – by memory, the frames, being steel, being heavy, I think they came in two pieces and were screwed together. I imagine screwed together on-site. I don’t know whether the manufacturer said to put silicone through there before they were screwed together. I don’t know. Uh – what – uh – flashing should go on this window? I don’t know. I haven’t looked at the windows out – out of – uh – in front of me. So where am I going to flash this? I don’t know. I know where they put flashings on aluminium windows, ‘cause they make them specifically for that, but these are a one- off window. I’ve got no idea how the manufacturer wanted these windows to be flashed.24 (emphasis added) (d) [MR BUGLAR]: Would you accept the fact that if we had multiple flashings there, the water leaking between the windows was never going to change the fact that a flashing would do anything at that point, because it’s not in line with where a flashing would be?‑‑‑Well, I don’t know how I can answer that, but if – if I was looking at how it was flashed and it failed, we could talk about it, but there’s no flashing. I can’t argue – I’m not here to tell you how to flash a window. Like I said, I have not seen these windows out of the opening and how you would attach a flashing to it. I don’t know. You know, you know with aluminium windows there’s a – a big, long fin that comes out. That’s where the flashing goes. Yep?‑‑‑Um – but yeah, when there’s no flashings whatsoever – um ‑ ‑ ‑ And in a commercial fitting ‑ ‑ ‑ MEMBER: Sorry. Just let Mr Barrett finish. MR BUGLAR: Sorry. WITNESS: Yeah, well that’s what I – that’s about it, really. There’s no flashing there whatsoever apart from a bead of silicone, which I do not accept as a flashing. 25 (emphasis added) [75] In the 2023 inspection report, the only mention of water entry is through the horizontal bars of the window. It is wholly unclear where the ‘hole’ could have been. Having regard to the various photographic evidence, I cannot see any evidence of a hole in the surrounds of the main bedroom window. The photographic evidence in relation to the stairwell window does show quite a bit of damage to the plasterboard and it is possible that there may have been a hole in it. However there is a question as to whether the stairwell window was hosed at the time of the reinspection. Having regard to the whole of the evidence, I cannot place any weight on this particular evidence of 24 T1-55 lines 5-28. 25 T1-57 lines 30-49. -- 16 of 21 -- 17 Mr Barrett. In my view, the evidence does not establish that water was penetrating the main bedroom window at the location where the window was sealed with silicone. [76] I have also had regard to the various provisions extracted in in Mr Barrett’s 2023 report at pages 6-8.26 On my reading of the respective requirements, they are directed at preventing the penetration of water from the exterior to the interior of a building or ‘from the outer skin to the inner skin of the building envelope’. There is no indication, on my reading of this material, that a flashing is designed to provide protection to the interior of the building from water that has already entered into the interior of the building through a different entry point. Mr Barrett did not suggest any possible means of applying flashing that would have had any impact on water that has entered through the window frame. Further, having regard to the photograph contained in the mould report, it is evident that water was pooling (albeit relatively minor at the time the photo was taken) as a result of entry through the window frame. [77] Having regard to all of the evidence, I find that the only evidence of water ingress to the interior of the main bedroom was through the horizontal bars of the window. To this extent, the water ingress was a product issue, not an installation issue. That is, water penetrated into the interior of the main bedroom through the window frames, regardless of the absence of flashing. [78] On the whole of the evidence, I am satisfied that, in relation to the second complaint, it is more likely than not that the ingress of water from the exterior to the interior of the main bedroom was through the horizontal bars in the main bedroom window. Further, I am not satisfied that any particular flashing that ought to have been affixed would have had any measurable impact on any consequential damage resulting from water having entered through the horizontal bars of the main bedroom window. I am not satisfied that, in relation to the second complaint, the defective building work in relation to the main bedroom window was structural defective building work as defined in the Policy. [79] With respect to the stairwell window: (a) as noted above, the description of the defect in relation to the first complaint was: ‘Windows leaking in rainy weather’; (b) the 2020 inspection report noted: ‘[Mr Kotis] expressed concerns that during a rain event water entered the window and ran down the wall;27 (c) the description of the defect in the second complaint included a reference to the original date the defect was noticed (in 2019) of ‘when water entered’ and that since then ‘more water has come through the same window …’; (d) in cross-examination, Mr Barrett stated that he did not remember hosing the stairwell window.28 However, earlier in examination-in-chief, Mr Barrett stated that there was water testing of both windows.29 In the evidence extracted at paragraph [66] above, Mr Barrett was asked about both windows but referred to the hosing of ‘the window’. It is unclear whether, at the second inspection, Mr 26 Hearing Book, pp 1041-1043. 27 Hearing Book, p 484. 28 T1-54 lines 31-34. 29 T1-38 lines 8-18. -- 17 of 21 -- 18 Barrett hosed the stairwell window and, if he did, what was the particular result of hosing the stairwell window. (e) I have had regard to the photographic evidence provided by Mr Kotis of the stairwell wall frame.30 The location and extent of the damage suggests that a lack of flashing on the bottom sill (and perhaps the side sills) has possibly led to or at least contributed to the ingress of water and consequential damage shown. [80] I consider that the evidence in relation to the water ingress in respect of the stairwell window and the contribution of the lack of flashing to such water ingress is unsatisfactory. Had I concluded that this evidential issue was decisive of whether the discretion should be exercised in favour of giving a direction to rectify in relation to the stairwell window, I would have been minded to set aside the Review Decision in that respect and return the matter to the QBCC for reconsideration in relation to the issue. However, I consider that having regard to all the circumstances, it would be unfair to Mr Bugler to give a direction to rectify in relation to the stairwell window even if it were concluded that the water ingress was attributable to a lack of flashing and this had resulted in the consequential damage. [81] Another factor in relation to the question of fairness, and an important one in my view, involves the content of the first direction to rectify and the fact that it was rectified by Mr Buglar. [82] The first direction to rectify required Mr Buglar to ensure that ‘the following defective or incomplete building work is rectified’. Of the items listed, the relevant ones were Items 13 and 17 (ultimately identified as Items 1 and 4). In respect of the two windows, it was stated that the inspection found that each had not been installed ‘in accordance to the minimum requirements of the BCA and Manufacturers [sic] recommendations, in that a head flashing has not been installed to prevent water ingress, resulting in’ (with respect to main bedroom window, damage and unhealthy conditions’, and with respect to the stairwell window ‘damage to the internal linings and finishes’). [83] In each case, the specific defective or incomplete building work was identified as a failure to install head flashing. As noted above, the QBCC report dated 21 August 2020 concluded that head flashing had been installed as per the direction wording (and the damage to plasterboard had been rectified by Mr Kotis in relation to the stairwell) and that each complaint item was determined not to fall within the meaning of defective building work under the QBCC Act and the Policy. Plainly, Mr Buglar would have incurred time and expense in complying with the direction to rectify in relation to each window. The second direction to rectify would require the same windows to be rectified again in order to rectify, on the QBCC’s case, the same defect. [84] In my view, it is not material to the question of unfairness to explore the reason for Mr Barrett to specifically direct rectification by way of installation of head flashing only rather than flashing around the other sides of the window. However, the QBCC led evidence in examination-in-chief on this point, and I will address it. Mr Barrett gave the following evidence: 30 Hearing Book, pp 1092, 1098. -- 18 of 21 -- 19 And so is your evidence that the three remaining sides of these windows are – or needed to be flashed?‑‑‑Yes. And is your evidence that, during the first inspection, you did not become aware that the remaining three sides of the window were flashed using silicone?‑‑‑The – the top head flashing is physical. You can see it. Yes?‑‑‑You – you know whether it’s there or not. Yes?‑‑‑The rest are inside the wall. I can’t see them. Right?‑‑‑I don’t know if they’re there or not. No. Okay?‑‑‑I just assume they are.31 [85] In cross-examination, Mr Barrett accepted that he knew that there was silicone around the rest of the window but said he did not know there were not any flashings ‘in there’.32 [86] It is unclear why Mr Barrett assumed that the remaining sides of the window were flashed in circumstances where there was no head flashing. I also observe that whether the balance of the window was flashed or not was easily ascertainable by asking Mr Buglar that question. Regardless, the assumption made by Mr Barrett does not alter the fact that the direction to rectify expressly required the installation of head flashings and this direction was complied with. Conclusion [87] In summary, I am satisfied that, in the circumstances, it would be unfair to Mr Buglar to give the direction to rectify the two windows. The relevant circumstances are as follows: (a) the windows were custom made, steel framed windows supplied by the manufacturer at the request of the Kotis’; (b) Mr Buglar complied with manufacturer’s instruction for installation by applying silicone in accordance with the instruction (as was accepted by the QBCC); (c) the Policy requires that where building work involves the use of a manufactured product, the product must be, relevantly, installed in a way that complies with the product manufacturer’s instructions; (d) despite this, the method of installation adopted (insofar as it involved weatherproofing) did not comply with the Building Code of Australia and this rendered it unsatisfactory and, therefore, defective building work; (e) in February 2020, Mr Kotis made a complaint to the QBCC in relation to various items including water entry in relation to the two windows in question, which was said to have been first noticed in December 2019; (f) the QBCC issued a direction to rectify in June 2020 which expressly directed rectification by way of installation of head flashing to each window; 31 T1-39 lines 18-31. 32 T1-51 line 48; T1-52 line 9. -- 19 of 21 -- 20 (g) it was through no fault of Mr Kotis that the direction to rectify, requiring installation of head flashings only, was (on the QBCC’s case) inadequate to remedy the identified defect; (h) however, Mr Buglar rectified each window by installing a head flashing above each one and the QBCC found that he had complied with the direction and that each complaint item was determined not to fall within the meaning of ‘defective building work’; (i) the first complaint was within the 12 month provided for by s 71J(4) of the QBCC Act, but the second complaint was made well outside that period33 (although this does not preclude the issue of a direction to rectify); (j) the second complaint concerned the same defective work the subject of the first direction to rectify; (k) there would necessarily be an additional cost to Mr Buglar in having to rectify the windows a second time, having complied with the QBCC’s previous direction to rectify. [88] There is an additional element of unfairness in relation to the main bedroom window, namely, my conclusions in relation to the evidence of water ingress at paragraphs [77] and [78] above. [89] Having regard to the evidence as a whole, I consider that the correct and preferable decision is that: The decision made by the First Respondent on 2 June 2023 to give a direction to rectify Items 1 and 4 of the Second Respondent’s complaint of 31 May 2022 is set aside and is substituted with a decision not to give a direction to rectify Items 1 and 4 of the Second Respondent’s complaint of 31 May 2022. [90] Given this decision and that Mr Buglar was self-represented it is not evident that the making of a costs order would be warranted. However, in the event that one of the parties wishes to seek a costs order, I will make the following orders: 2. Any party seeking an order for costs must file in the Tribunal two (2) copies of, and give to the other parties one (1) copy of, written submissions in support of a costs order, no longer than five (5) pages, within 14 days of the date of receipt of the Decision. 3. If written submissions as to costs are filed pursuant to Order 2 above, the party or parties against whom an order for costs is sought must file in the Tribunal two (2) copies of, and give to each other party one (1) copy of, written submissions in response, no longer than five (5) pages for each response, within 14 days of receipt of the written submissions. 4. Each party that receives written submissions pursuant to Order 3 above may file in the Tribunal two (2) copies of, and give to each other party one 33 The second complaint was made approximately 2 years 5½ months after the water ingress was first noticed, and approximately 1 year 9 months after the QBCC found that the first direction to rectify had been complied with (although I note that the 6 years 6 months’ time limit in s 72A(4) of the QBCC Act has not yet elapsed). -- 20 of 21 -- 21 (1) copy of, written submissions in reply, no longer than three (3) pages for each reply, within 14 days of receipt of the written submissions. 5. If no written submissions are filed pursuant to Order 2 above, there will be no order as to costs of the proceeding. 6. If written submissions as to costs are filed, the application for costs will be determined on the papers without an oral hearing. -- 21 of 21 --