Carter v Queensland Building and Construction Commission & Ors [2025] QCAT 339

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carter v Queensland Building and Construction Commission & Ors [2025] QCAT 339 PARTIES: LOUISA CARTER (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) MAXCON CONSTRUCTIONS PTY LTD (respondent) THE BODY CORPORATE FOR THE JOHNSON CTS 49098 (respondent) THE BODY CORPORATE FOR THE JOHNSON APARTMENTS CTS 49099 (respondent) APPLICATION NO/S: GAR 259-19 MATTER TYPE: Building matters DELIVERED ON: 8 September 2025 HEARING DATE: 24 October 2024 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: The decision of the Queensland Building and Construction Commission dated 10 May 2018 to give a direction to rectify is confirmed. The application by the Queensland Building and Construction Commission to extend the timeframe within which to issue a direction to rectify is dismissed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the Queensland Building and Construction Commission made a decision to give a direction to rectify to a builder for rectification of building work and then issued the direction to rectify to the builder to rectify – where the direction to rectify assertedly not complied with – where the applicant sought review of the initial direction to rectify -- 1 of 20 -- 2 given by the Queensland Building and Construction Commission – whether it is fair and reasonable to issue a further direction to rectify – consideration of extension of time application by the Queensland Building and Construction Commission to issue a further direction to rectify in respect of defective or incomplete building works required to be rectified – whether it is fair and reasonable to extend time to issue direction to rectify Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A Queensland Building and Construction Commission Regulation 2018 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 21 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission [2020] QCATA 6 Turner v Queensland Building Services Authority [2012] QCAT 229 APPEARANCES & REPRESENTATION: Applicant: Dr Louisa Carter self-represented Respondents: Ms Nean in house lawyer Queensland Building and Construction Commission with Mr Srivastava in house lawyer. Mr Kidston of Counsel instructed by Diakou Faigen lawyers for Maxcon Constructions Pty Ltd. Mr Robinson of Robinson Locke lawyers for the Body Corporate for the Johnson CTS 49098 and the Body Corporate for the Johnson Apartments CTS 49099. REASONS FOR DECISION [1] By application filed 2 July 2019 the applicant Dr Louisa Carter (‘Dr Carter’) sought external review of the decision of the Queensland Building and Construction Commission (‘Commission’) (‘QBCC’) of 10 May 2018 to give a direction to rectify to Maxcon Constructions Pty Ltd (‘Maxcon’) (‘contractor/licensee’) in respect of works at the Johnson 477 Boundary Street, Spring Hill. Background and Evidence [2] The multi-story building at 477 Boundary Street, Spring Hill was formerly the Queensland Main Roads Building. It was purchased by a property developer Asia Pacific Group which contracted Maxcon to repurpose the building as a combined hotel and residential apartment complex. Works were completed on about 9 September 2016 when a certificate of classification was issued for the whole of the building complex. Dr Carter purchased residential unit 1510 in the complex in 2017. -- 2 of 20 -- 3 [3] On 21 February 2018 Dr Carter complained to the Commission about defective building work and consequential damage at the complex and at and within unit 1510. There were numerous complaint items. Consequent on inspection by Commission inspector Cornelius Koen on 9 April 2018 the Commission made the decision on 10 May 2018 to give a direction to rectify to Maxcon. The decision was notified to Dr Carter the same day. On the same day a direction to rectify was issued to Maxcon for five items from Dr Carter’s numerous complaint items. Specifically, items one to five stated. 1. The Queensland Building and Construction Commission finds the licensee responsible in that the installation of the rainwater drainage system at the top units were not installed in accordance with the relevant Australian Standards and or the BCA FFI.2 and 3.5.2 (gutters and downpipes) resulting in water being directed to the units below and caused extensive damage to the adjacent building elements including carpets - Pertains to item one of the QBCC complaint form. 2. The QBCC holds the licensee responsible to rectify the damage which occurred at the time of the splash back installation in that (it) does not meet a reasonable standard of finish expected of a competent holder of a contractor’s license of the relevant class, resulting in visual defect. 3. The QBCC holds the licensee responsible in the installation of the paint work in bedroom 2 in that (it) has not been done in accordance with AS/NZS 2311:2009 Guide to painting of buildings appendices C, in that there is an uneven surface finish which does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence resulting in a visual defect. 4. Inspection of the timber platform revealed that the sharp unfinished plywood edges do not adversely affect the structural integrity or performance of the building, but does constitute a safety issue, therefore Queensland Building and Construction Commission hold the licensee responsible in rectifying this issue to prevent any danger or injury to the owner or occupants of the unit. 5. The QBCC hold the licensee responsible in the re-seal and silicon of the bath surround to prevent water ingress and cause damage to the adjacent elements and the lower unit. [4] Works the subject of the direction to rectify were to be completed by 12 June 2018. On 11 June 2018 the Commission undertook a site reinspection and confirmed by notification dated 14 June 2018 that Maxcon had attended to the items in the direction to rectify dated 10 May 2018. No further action would be undertaken by the Commission in relation to the direction to rectify. In early 2018 Dr Carter had notified the Body Corporate insurer Chubb Insurance Australia Ltd (‘Chubb’) about water ingress and damage. Chubb inspected and tested unit 1510 and found mould to be in excess of habitable levels. That resulted in Chubb in late April and early May 2018 enacting its emergency protection measures to arrest mould infestation. Specialist contractor New Life Restorations carried out mould removal/remediation which included removal of ceilings and wall linings skirtings and floor coverings necessary before any repairs could be commenced. By the time the Commission’s direction to rectify was issued on 10 May 2018, Chubb, through New Life Restorations, had completed its emergency protection works. Of the five items constituting the -- 3 of 20 -- 4 Commission’s direction to rectify item one the rainwater drainage system and water ingress into unit 1510 was of primary concern for Dr Carter. [5] On 10 October 2018 Dr Carter sought confirmation from the Commission as to whether it undertook a compliance review of the full roof/rain water drainage system. By same day return the Commission confirmed that it did not undertake a full review of the roof water drainage system stating that its role was to determine the cause of the water penetration into the dwelling. The source of water entry was located, and the contractor directed to rectify that area only. A Commission reinspection found rectification to that area was satisfactory and met the requirements of the National Construction Code (‘NCC’). Statements and evidence of Dr Louisa Carter at hearing [6] Dr Carter stated she purchased unit 1510 on level 15 at the Johnson on 31 January 2017. During the first storm that occurred subsequent to purchase there was water ingress. She approached the body corporate, the developer, and the builder Maxcon. Some inspections took place and some work undertaken. Some damaged plasterboard, ceilings and carpets were replaced but were subsequently damaged again. Aris Margaritis project manager for Maxcon attended. Maxcon accessed the unit for about a year. There seemed to be little progress. [7] Mould had begun to appear in the summer of 2017/2018. Dr Carter applied to the Commission in February 2018 listing numerous defects and consequential damage. She contacted the body corporate insurer Chubb which arranged for inspections/reports which documented ongoing water ingress. Chubb under its body corporate insurance contract emergency repair powers arranged for removal of mould infested areas through Asta Group Chartered Loss Adjusters which retained New Life Restorations which undertook mould remediation at unit 1510 but did not undertake any structural remediation work. A report from Mould Lab confirming “normal mould ecology level” accompanied Asta Group’s fourth report of 10 May 2018. In that same month Dr Carter stayed in her unit for a week to ten days as she had nowhere else to go and it was at least temporarily safe. In the meantime, unit 1601 directly above on level 16 was sold by the developer. New balcony membrane and tiles were applied to unit 1601. [8] In October 2018 Asta Group provided its eighth report wherein it confirmed through New Life Restorations that mould samples taken were within acceptable levels. Queried about having stopped living at her unit Dr Carter said she was aware it was going to leak again. Nor was Chubb going to replace the ceiling or otherwise reinstate until the cause of damage had been addressed. [9] Unit 1510 had been abandoned by Dr Carter since June 2018 and was still so abandoned to date though she had returned/entered/stayed on a few occasions. She understood that the only work done by Maxcon was installation of a pipe spreader. A QBCC inspector Cornelius Koen had attended unit 1510. The assessment method adopted by the QBCC was inadequate and failed to identify all possibilities with respect to water ingress. [10] In the course of giving evidence Dr Carter was referred to Newsky Constructions’ report of 1 February 2020 prepared for the QBCC regarding water testing of the balcony of unit 1601 directly above unit 1510 and the invasive investigation of the ceiling space of unit 1510. Newsky Constructions retained Leakless Plumbing which carried out flood tests to the balcony of unit 1601 resulting in water leaking into unit -- 4 of 20 -- 5 1510 indicating firstly a leaking puddle flange1 connection to the drain at unit 1601, and secondly an issue with the balcony waterproofing membrane at unit 1601. During the course of testing water was heard dripping onto the ceiling of bedroom 4 of unit 1510. Water pooling was observed. There was moisture in the ceiling above the lounge room with removed lagging from the lagged stormwater line being saturated. There was moisture and water dripping onto the ceiling of bedroom 1 with water dripping from a lagged stormwater line. [11] On 25 March 2020 Dr Carter filed an application in the Tribunal seeking an order to “direct the QBCC and respondent parties to desist any building and rectification works to the Johnson roof drainage system pending the Tribunals review under GAR259- 19”. The application was refused on 7 December 2020. [12] It was put to Dr Carter that this water ingress was further back 1.5 metres in from the area where water ingress that occurred in 2017/2018 (which was beneath the rainwater drainage system). Dr Carter confirmed that where new openings were cut in bedroom 4, the lounge room and bedroom 1 “water poured through”. [13] In cross-examination Dr Carter was asked whether she had a copy of the GHD Engineering Consultants (‘GHD’) report dated 16 October 2024 authored by Bruce Clarke with commentary by Dale Lovett. She answered she had only received it last week (prior to hearing) and that it described some remaining unrectified items. She was asked whether she accepted the possibility that if works targeting water penetration had been carried out (as described in the GHD expert report dated 16 October 2024) then the issue of water penetrating her property may have already been addressed. Dr Carter answered that she was denied information. She did not know whether the issue of water penetration had been addressed or not. [14] Given that GHD’s report of 16 October 2024 stated that there had been no further leaks at the unit would Dr Carter be in a position to settle her insurance claim with Chubb, Dr Carter answered that Chubb required a form 162 before proceeding further. Despite requests the body corporate had not furnished her or Chubb with a copy of any form 16. [15] It was put to Dr Carter that following the Commission’s direction to rectify and prior to the work so directed being undertaken Chubb carried out works (in unit 1510) in respect of fixtures and fittings that Maxcon was directed to undertake. Dr Carter answered yes. Of the five items listed in the Commission’s direction to rectify dated 10 May 2018 Dr Carter did not dispute (apart from item one) that minor items two, three and five were generally repaired with item four, inspection of timber floor not actioned. Dr Carter was aware of the principal body corporate’s Supreme Court proceeding against Maxcon for defects which included a complaint about water penetration at unit 1510. 1 A puddle flange is a component installed around, here, a posts penetration point in a concrete structure to create a waterproof seal preventing water from seeping through the walls or floor and causing damage. It connects the water proofing to the drainage system ensuring water flows into the drain and not under the floor. Here it was where balustrade posts met tilework. 2 Form 16 – Inspection Certificate/QBCC Licensee Aspect Certificate under the Building Act 1975 (Qld) and Building Regulation 2006 (Qld). -- 5 of 20 -- 6 Evidence of Herbert John Muller [16] Mr Muller chartered professional engineer/mechanical engineer certified the level 15 siphonic drainage system3 as part of the overall rainwater drainage system for levels 16 and 15 at the Johnson complex in 2016. His involvement was limited to design and installation of the siphonic roof drainage system. He provided a form 16 for the system design. He relied, in part, on his plumber confirming that the job of installing was completed according to plans. He explained that Aqualogical specialist hydraulic designer was the overall hydraulic engineer for the Johnson project and that Beavis & Bartels was the plumbing contractor he was working for. He did not sight a form 15 for hydraulic design by Aqualogical. He did not personally inspect completed drainage works (though he was there during construction) relying rather on his plumber telling him that the system had been installed to his design. Mr Muller signed off on a form 154 dated 24 February 2016 for the Valsir siphonic roof drainage system /rainwater drainage system from box gutter level 12 (redesignated as level 15 for the Johnson repurpose project). [17] When asked about the siphonic flange (intake) sitting proud of the box gutter base Mr Muller answered the “siphonic head – the flange is obviously fitted in the gutter, and it is sealed into the gutter”. Mr Muller went on to confirm that the Johnson project level 15 and the newly created top floor level 16 utilised unusually both a traditional box gutter downpipe gravity system and a siphonic system. Level 16 used a downpipe gravity system to feed into the level 15 siphonic system. As part of the siphonic head in the box gutter there was a blue coloured baffle plate designed to hold a water column intact to stop any air from being sucked into the system thereby preventing a vortex from occurring. When presented with a photo of the siphonic head as now installed he confirmed that was how it was meant to be. Any provision for overflow would be located in the box guttering. Even without provision for overflow the siphonic system was sufficient to allow for the discharge of the volume of water he had calculated, and which included discharge from level 16. As far as he was aware there had never been since installation a complaint or an issue with the siphonic drainage system since his involvement. Evidence of Peter McLean [18] Mr McLean mechanical and electrical engineer of McLean Consulting Engineers was a consulting engineer who was involved in the initial stage of the Main Roads/Johnson project as a design engineer. He provided forms 15 for mechanical, electrical, fire protection, and hydraulics. His hydraulics form 15 dated 5 November 2015 did not include the additional three sixteenth level top floor units nor the siphonic drainage system installed. His engagement was then discontinued by the builder. 3 Here a Valsir siphonic roof drainage system was installed. It is a stormwater management system for generally flatter roofs that uses a siphon effect to rapidly draw water at high-speed allowing for smaller pipework. It efficiently removes water from roofs by using negative pressure to create vacuum effect in the vertical pipes allowing rainwater to be carried away (in this case from the level 15 box guttering) through smaller diameter pipes. Here the siphonic drainage head is the point where the water gets away from the box gutter into the downpipe. 4 Form 15 – Compliance Certificate for Building Design or Specification for the purposes of section 10 of the Building Act 1975 (Qld) and/or section 46 of the Building Regulation 2006 (Qld). -- 6 of 20 -- 7 Inspections and Evidence of Cornelius Koen [19] Cornelius Koen Senior QBCC Building Inspector inspected unit 1510 on 9 April 2018 consequent on a number of complaints by Dr Carter. His job was to visually inspect only that which was included in the complaint items. He confirmed he did not conduct incline tests on the balcony tiles of the level 16 units. With respect to water ingress in unit 1510 the issue was more about flashing that was not properly sealed and absence of a downpipe spreader. He confirmed that there was nothing wrong with balustrading on level 16 balconies where balustrade posts met tile work. Balustrading was never an issue nor was balustrading the subject of a complaint item. He confirmed, “we only went for the gutters and the downpipes and the flashings because we clearly could see after that I test it from the top with the pipe hose (an orthodox approach) where the water came in”. Mr Koen went on to say, “We checked your unit, and we look where the water ingress (is). There’re multiple areas at that unit at the top there that might be defective. But that was not part of our investigation. We only looked at where your water came into your (unit)…...and we could see where it came from the flashings”. [20] In his inspection report of 15 April 2018 Mr Koen stated, “evidence of water ingress directly underneath the downpipes was evident in the form of water staining, mould and drip marks to the painted plasterboard ceiling”. At the time he observed water ingress directly under the box gutter which he reasoned was due to there being no (downpipe) spreader or flashings. Nor did he observe water ingress from under the balcony area of unit 1601. He did not consider there were other areas that needed to be inspected to identify the source of water ingress. [21] On 11 June 2018 at the time of reinspection to determine direction to rectify compliance Mr Koen said Maxcon had installed the roof tile flashing and spreaders to the drainage system in the lower roof. It was hose tested and there was no water ingress into unit 1510. There was no one in a hundred rain event test conducted because that was a design issue and the QBCC was not there for design issues. Nor did the QBCC look at certification, engineering matters, architectural matters or drawings. What was looked at was defective material if that had been installed and water ingress to the property. Maxcon issued a form 15 or perhaps a form 16 sent by Asbuilt Constructions to Aris Margaritis project manager of Maxcon but Mr Koen did not sight it. [22] With respect to the box guttering not working it was to look to see if it was not draining properly and look at the downpipes or the slope or rivet joints separation. The box gutter was hose tested and “the water was draining to the downpipes from the spreader – from the gutter flashing to the gutter”. Mr Koen was asked did the hose test show water falling away from the siphonic drainage head. He said no. With the siphonic drainage head being the point where the water gets away from the box gutter how did he know whether the box gutter fell to that point. Mr Koen answered to the effect that on visual inspection all the water got away. He said long edge box guttering had been replaced such that when tested there was no backflow. Mr Koen was asked did he notice that the siphonic drainage head seemed to be above the level of the base of the box guttering by maybe 20 ml. He answered no. [23] Mr Koen was queried about the painting of the replaced Colorbond box guttering and the use of Sikaflex as a box guttering sealant. Mr Koen said rectification work was tested. If it works and it is new building work, it is guaranteed for six years and six months. Mr Koen was asked about overflow spouts off the box guttering and whether they were correctly installed. Mr Koen answered they were placed two thirds on the -- 7 of 20 -- 8 top (of the box gutter) and were there for a safety reason in case the box gutter overflowed. [24] Mr Koen was queried about other complaint items addressed in his initial report of 15 April 2018 including nonfunctionally of a steam extraction fan, joinery being non moisture resistant board, glazing frame finish, external membrane and paint finish to external balustrade, weight allowances on glass doors leading to the balcony and fire inadequate separation between units 1509 and 1510. Mr Koen’s answers included insufficient evidence of defective construction, reasonability of issuing a direction to rectify, absence of defective construction practices, and withdrawal of complaints. Complaint withdrawals referred to in Mr Koen’s initial report of 15 April 2018 were never questioned by Dr Carter at least not prior to hearing. [25] Mr Koen acknowledged that other sources of water leaks may come into existence over time and that maintenance programmes may apply to membranes and sealing of parts of buildings. He agreed that the direction to rectify items fell into two categories those which Maxcon contended were rectified and those unable to be complied with due to intervening factors which in the present case was removal of damaged unit internals by Chubb. Mr Koen in his reinspection report of 11 June 2018 stated, “the licensee was unable to rectify the consequential damage due to the fact that the insurance company of the body corporate undertook the rectification of this work. Confirmation with the owner is that the insurance company will finalise the rectification of the consequential work”. Reports and evidence of Rathlin Trohear [26] Mr Trohear was formerly a senior building inspector and currently director Building and Technical Inspectorate at the QBCC. Mr Trohear conducted four inspections at levels 15 and 16 at the Johnson on 30 July 2019, 16 August 2019, 26 August 2019 and 17 September 2019. He discerned there was potential for water entry through the balcony of level 16-unit 1601 and in particular through puddle flanges. There were “watermarks on the ceiling that were not in the vicinity of the small roof and gutter (drainage system) above unit 1510…...there was a likelihood that there was another water entry point.” He said he could not see evidence of an ongoing leak beyond the work that had been done by Maxcon and that he formed the view it was most likely that water was entering from another source (other) than the small box gutter and the small roof above unit 1510. He did not see any evidence of a leak in the (box) guttering though some ponding was observed. Waterproofing works to unit 1601 balcony were not undertaken by Maxcon but by another contractor engaged by the unit owner (of unit 1601) who had engaged with the QBCC. [27] In unit 1510 he observed primarily at the outermost part of the unit underneath the box guttering system some plasterboard watermarks. There was no mould damage. Mr Trohear formed the view that fire separation between unit 1601 and unit 1510 was not defective. In cross-examination Mr Trohear confirmed that the balustrading and the aluminium columns forming part of the balustrading system (on level 16) when flood tested did not leak. Observationally they were compliant. [28] With respect to fire separation between units 1601 and 1510 Mr Trohear considered the plasterboard and vermiculite that had been installed as well as the full passive fire system reaching the conclusion that there was no sufficient evidence to identify defective building work by Maxcon. Nothing he had been taken to since or had learnt about since had altered his opinion. He understood that since Maxcon had carried out -- 8 of 20 -- 9 its rectification work that the owner of unit 1601 had engaged a contractor to carry out waterproofing works in respect of its balcony. As for linings/plasterboard in Dr Carter’s unit he understood those were removed by the insurer Chubb. [29] Mr Trohear said his review was against the decision made by the previous inspector Cornelius Koen about whether or not the (box) gutter was now leaking. In his view there was not a sufficient change to the extent that the Commission could exercise a new power. He said QBCC inspectors primarily rely on the defect definition in the rectification of building work policy given effect by the Building Regulation. For something to be defective it first must be faulty or unsatisfactory. He said there are times where something (building element) does not comply with a relevant code or standard but performs reasonably such that there is no evidence that it is faulty or unsatisfactory. A performance-based assessment formed a large part of the investigation method. [30] At his site attendance on 17 September 2019, it was not clear to Mr Trohear that the box guttering was leaking. Though he formed the view that the box guttering was not leaking the decision was made to engage GHD. Within unit 1510 there was evidence of water entry further back inside unit 1510 below the balcony of unit 1601. GHD was not able to confirm that the box guttering was in fact leaking. He said considering all the material that there were no grounds for him to exercise a new power. Nothing had changed since the original matter was under review. He was of the view that there was a separate issue relating to the balcony above and that a significant degree of water damage to unit 1510 (at that time) was the result of the balcony above unit 1510 allowing water to enter through puddle flanges. Evidence of Stephen Baird [31] Mr Baird of Set Tiling in liquidation was referred to a form 16 dated 28 June 2016 which he signed for waterproofing including external balconies on level 16 at the Johnson. A waterproof membrane was applied and then tiled over. He was also referred to a form 16 dated 26 March 2018 for waterproofing over all existing balcony tiles and perimeter flashing on level 16. He thought it must have been with respect to rectification work “for works over the top”. He was not aware of any other work that needed to be done to make level 16 external balconies waterproof. They were remediated and watertight. He had not “heard anything about it (level 16 waterproofing) in a long time”. Reports and evidence of John Steven Mayer [32] On 9 November 2018 a visual inspection was conducted by NJA Consulting Pty Ltd structural civil forensic engineers (John Mayer) (‘NJA’) instructed by NPS Commercial on behalf of Chubb to assist in determining the effectiveness of the water ingress remediation works previously undertaken to prevent water ingress at the site with its report being made on 11 December 2018. [33] The report confirmed steel framed units 1601 to 1603 were located on the added upper level with unit 1510 on the second top floor directly below upper (top) level unit 1601. Tiled balcony areas extended around the perimeter of the upper-level units with unit 1601 balcony set above the bedroom and living areas of unit 1510. It was noted that at the time of inspection there was evidence of water staining and mould growth to several areas of exposed lining to the balcony underside. Leakage into the bedrooms appeared to have occurred from the ceiling areas above the internal sides of external glazed doors during heavy rain events. However, it could not be confirmed if it was -- 9 of 20 -- 10 recent or historical. Nor could it be visually confirmed if there had been recent water ingress to the unit since remediation works had been carried out. There were no further indications of potential (water) ingress. The unit appeared dry with no mouldy smell. [34] The report concluded that the QBCC work list indicated water ingress into unit 1510 was related to plumbing installation to the upper-level units and given that recent water ingress had not occurred at times of recent wet weather it appeared rectification work had been successfully undertaken. If further water ingress was found to occur in unit 1510 additional testing could be undertaken to attempt to isolate any additional source of water ingress to unit 1510. [35] A further visual inspection was conducted by NJA on 21 June 2019 attempting to identify and assess any further damage or defects that may have occurred since the November 2018 inspection with its report being made on 26 June 2019. Mr Mayer observed the extent of water staining marks to the exposed areas of lining to the balcony underside above the internal bedroom areas to unit 1510 did not appear to have increased since the initial November 2018 inspection. There was no indication of significant water ingress adjacent to the balcony sliding glass doors or ceiling in the interim. Some other minor items were identified such as lifting of joinery tape above the entry but there was no indication of excessive moisture and were in any event in areas other than those initially reported. It was suggested that might be the subject of further investigation. [36] In a revision report of 13 September 2019 Mr Mayer referred to his inspection of 21 June 2019 concluding “the location and extent of the recently noted defect items are inconsistent with the location and extent of the noted defect items from our initial inspection and as such would appear to have ingressed or developed independently of the initial ingress related defects. Notwithstanding the above it is possible that the moisture from each instance may have resulted from the same general moisture entry source (ie; from above the unit)”. Report and evidence of Peter John Blain [37] Mr Blain a QBCC multilicensee prepared a report dated 15 August 2019 based on an inspection and photographs taken by two of his employees reviewing fire separation issues at unit 1510. He stated the (ceiling) plasterboard, due to mould, and being water affected was damaged beyond repair rendering it non-compliant and requiring replacement. His report did not consider whether there was a concrete slab above the plasterboard separating unit 1510 from the unit above. But his report indicated a requirement to have a fire rated ceiling. [38] It was put to Mr Blain that unit 1510 did not require a plasterboard fire rated ceiling because there was a concrete slab and sprinklers installed. But he was unsure because no destructive testing was done. He only commented on what he (his employees) saw. He did not know what was above the fire rated ceiling. If there were other separation issues, then a fire rated ceiling may not be required. Nor was there any inspection of box guttering. Report and evidence of Andrew Corrigan [39] On instruction from Chubb, Gould Development Solutions (‘Gould’) (Andrew Corrigan director) was retained to inspect and report on the water leak from the box gutter and roof drainage system into unit 1510. A site inspection was carried out on 6 August 2019 with Gould furnishing its report on 19 September 2019. The report -- 10 of 20 -- 11 helpfully clarified that Dr Carter’s unit 1510 is situated on level 15 of the complex with level 16-unit 1601 above that includes a balcony/terrace that is above the roof of the interior of unit 1510. A box gutter is located outside the balcony/terrace of unit 1601 and above the ceiling level of unit 1510. Adjacent to the box gutter is a narrow width roof that extends the length of the box gutter which conveys water runoff from level 16 and level 17. The water runoff is collected and conveyed in downpipes which discharge through a downpipe spreader onto the narrow width roof and then into the box gutter which has overflows. But if the box gutter capacity is exceeded or leaks the water run off may penetrate the interior of unit 1510. [40] The QBCC considered such a defect and issued a direction to rectify to Maxcon. Some rectification work was carried out which led to the QBCC advising rectification work had been carried out and no further action would be taken. Mr Corrigan was of the view the rectification work was not sufficient and that the QBCC should not have concluded that Maxcon had completed rectification of defects. [41] Mr Corrigan attached a report from BG Group Qld Pty Ltd (‘BG Group’) which concluded the box gutter did not have the capacity required by the relevant Australian Standard nor did it comply with the requirements of that Australian Standard. Mr Corrigan stated it appeared the QBCC had not previously considered that the box guttering was not of sufficient capacity. In concluding that Maxcon had installed roof tray flashing and spreaders to the drainage system to the lower roof the QBCC did not consider installation defects of the box gutter other that discharge from the higher levels of the complex into the box gutter. Hence water ponding, lack of fall, lack of sumps and incorrectly located overflows were not considered by the QBCC and could be reported as new defects. Installation of roof tray flashing, and spreaders did not rectify the (water ingress) defect. [42] Mr Corrigan considered Beavis & Bartels, Maxcon’s plumbing subcontractor, which issued the form 16 inspection certificate and QBCC licence aspect certificate dated 24 August 2016 which included installation of stormwater and rainwater downpipes certified in compliance with AS3500 had done so incorrectly. The Beavis & Bartels form 16 referred to the form 15 for the design of hydraulic services by Aqualogical, a specialist hydraulic designer. He considered issues of design could be directed ultimately to Aqualogical. The siphonic drainage system designed and installed by Siphonic Solutions appeared to operate satisfactorily. The absence of prolonged heavy rain since 2018 meant the capacity of the box guttering had not been tested. Finally, whilst the previously leaking balcony/terrace membrane of unit 1601 may have contributed to water ingress into unit 1510 the evidence indicated the box guttering as the primary cause. [43] In evidence Mr Corrigan said a box gutter without sumps was unusual though he had seen siphonic systems with and without sumps; that for a box gutter to discharge properly particularly where a siphonic system was utilised a sump was usually installed to create a sufficient depth of water to the (siphonic) head to discharge/force water into the downpipe. But he had not been to unit 1510 since 2019. [44] Mr Corrigan was taken to a report by GHD of 11 November 2019 which reached a different conclusion to his about the capacity of the box guttering because it seemed each had different data about the dimensions of the box guttering involved possibly due to box guttering dimensions being taken in different locations. Mr Corrigan said the devil was in the detail with those sorts of things. He had relied on/adopted capacity calculations provided to him by BG Group. -- 11 of 20 -- 12 [45] Mr Corrigan was also taken to the list of works undertaken and photographs in GHD’s report of 16 October 2024 and was asked did such works address his concerns. Mr Corrigan said, “I can see that the type of work in those photos is directed at the nature of those defects”. But he could not be definitive. He confirmed that the water staining he observed in unit 1510 tended generally to be in locations near the box gutter. He concentrated on the box gutter being the primary cause of water ingress not any issues connected to the balcony above unit 1510. Whilst the first QBCC direction to rectify seemed to pick up on all the issues he believed his inspection indicated that there were still some defects. The indicator of that was water ponding in the box gutter. Newsky Constructions Pty Ltd report [46] Newsky at the request of the QBCC provided an invasive investigation report dated 1 February 2020 (on site 29 January 2020) in respect of units 1510 and 1601. Newsky’s plumbers Leakless Plumbing Pty Ltd conducted flood tests to the balcony of unit 1601. Puddle flange leaking was identified as well as an issue with the water proofing membrane. There was water dripping into the ceiling of bedrooms one and four as well as moisture and saturation in the lounge room ceiling space of unit 1510. Evidence of Kristopher Steven Asher [47] Mr Asher director of Specialty Roofing stated his firm was initially to be engaged by Maxcon to rectify issues at the Johnson but in the event was engaged by the body corporate directly instead. Specialty Roofing worked with GHD as supervising engineers which provided the scope of works and which inspected works in the persons of Bruce Clarke and Nick de Jonge of GHD. Works carried out included non- compliant level 15 box gutters not having sufficient fall to the sumps and round overflows (guttering overflow spouts) not fully engaging. Major works involved building scaffolding on the balcony. Box gutters were adjusted to create adequate fall, joins were redone, new box gutter flashings installed, spreader made compliant as well as core drilling through the existing wall to install rectangular overflows. That necessitated cleaning every joint, resealing those joints, cleaning joints not undersealed, checking rivet spacings, repairing joints to the effect that the box guttering was fully compliant. The works were carried out recently in September/October 2024. [48] Mr Asher said, “our business is all about rectification works” and was “carried out in accordance with the relevant Australian Standards”. There were no unremedied sources of ingress of water to unit 1510 that he was aware of. Nor had he received any complaints about further leaks in unit 1510. Evidence of Aris Sylvio Margaritis [49] Mr Margaritis, former site manager/project manager for Maxcon at the Johnson and qualified builder, confirmed Beavis & Bartels as the plumbing contractor and hydraulic consultant for installation of the rainwater drainage system for levels 15 and 16 at the Johnson. A subcontractor Set Tiling pressure and water tested the balcony drains on level 16 and rectified some balcony panel flanges to unit 1601. He referred to the form 16 dated 26 March 2019 from Set Tiling for waterproofing over all existing balcony tiles and perimeter flashing on level 16. [50] GHD’s 2024 report indicated additional flashings and new rectangular overflows when compared to Maxcon’s repair work in 2018. Asked whether he considered that to be additional work in 2018 he said no because it was engineer compliant at the time. -- 12 of 20 -- 13 He recalled that at the time of carrying out rectification works the body corporate insurer Chubb had come through and removed plasterboard and floorboards. [51] With respect to unit 1510 emergency measures undertaken by New Life Restorations (for Chubb) Mr Margaritis said more than the quantum of works that was fair and reasonable was removed because too much building fabric was removed. Maxcon’s position was that it would remove and replace the ceilings and all carpets only as directed by QBCC. But the opportunity never arose due to New Life’s removal of unit internals. [52] In cross-examination Mr Margaritis confirmed Beavis & Bartels as a DNC (design and construct) hydraulic and plumbing company that designed and installed the roof guttering and drainage system at the Johnson. When the direction to rectify was received Beavis & Bartels as specialised contractor inspected the works. Suggestions and advice were followed. A flood test of the box guttering was conducted to identify any leaking anywhere. No leaks were identified. Spreader and flashing work were carried out. The roof and drainage system were rectified. No other sources of leaking were identified. [53] All the tiles on level 16, unit 1601 were changed. The whole system all the way to the flashing on the edge. That involved complete removal of tiles, screed, and membrane with replacement of membrane, screed, and new tiles. The interior of unit 1510 was inspected as part of the direction to rectify to identify internal damage remediation necessary before engaging a contractor. On a subsequent attendance and in the interim Chubb through its contractors had carried out internal demolition work which he considered excessive because it was carried out in areas where there was no water ingress and because damaged internals such as floorboards could be salvaged, repaired or individually replaced. He added the norm in commercial construction was to obtain three quotes select one and proceed. Due to Chubb’s intervention opportunity to do so was lost. [54] Mr Margaritis was also asked which of the four elements of the drainage system did he identify as leaking. He answered the roof then possibly the puddle flange on level 16. [55] Subsequently unit 1601 was sold to a private person in 2020 and all tiling was changed (again) at that time by another builder. Report and evidence of Dale Lovett [56] Mr Lovett technical director – hydraulic and fire services at GHD/hydraulic services designer was initially engaged by the QBCC in 2019. In a GHD report dated 11 November 2019 he stated that since the initial water ingress event (in 2018) a pipe spreader and roof flashing had been installed. However they were not fully compliant. Wider flashing needed to be installed. He subsequently provided a response to hydraulic issues as part of GHD’s report of 20 April 2022. He said while he could look at the box gutters and their compliance with the relevant Australian Standard, he could not calculate the siphonic drainage system. In his investigation he found box gutter fall was insufficient, provision for overflows insufficient, the spreader or the gravity drainage from the upper most roof level was not compliant in that it was not broad enough and there was not sufficient sealing of the roof sheeting itself for the size and discharge of the downpipe coming from the upper roof. -- 13 of 20 -- 14 [57] Mr Lovett considered the rectangular overflow pipes even as built by Specialty Roofing in October 2024 as still non-compliant because they needed to be coordinated with a sump. Because it was not necessary to have a sump within a siphonic drainage system it was not possible to design an overflow to comply with the relevant Australian Standard. Any overflow would have to be certified as an alternative solution. [58] Asked, if so instructed, could he carry out the work necessary to say whether the overflow met Australian Standards or not he said that was something an engineer would need to do. He was not aware of the present overflow system resulting in any leaks. Nor did the lack of fall in the box gutter identified by him. [59] Mr Lovett was referred to spreader and flashing installed in 2018 and his opinion subsequently that the spreader and flashing needed to be wider. But he could not say definitively whether leaks were post or pre the “installation of the flashing”. It was put to him that when he opined that the width of the flashing and spreader needed to be increased it was not necessary to prevent any further water ingress; it was just to make it strictly comply with the applicable Australian Standard. He answered yes. He was unaware of any leaking from the point where the flashing and spreader were installed. [60] Mr Lovett was last on site in 2022 and though aware of the works carried out in October 2024 he had not sighted them and could not comment on their effectiveness. When asked of the three main elements identified with the guttering system namely insufficient fall, overflow location and the downpipe spreader which did he consider may have caused or were causing water ingress he answered the inappropriate design of the spreader and flashing. When referred to GHD’s 2024 report did he still have concerns about compliance Mr Lovett said he still had concerns about overflow provision. [61] As an overall observation Mr Lovett recalled unit 1510 was in a bit of a mess. Water was dripping through from a stack in the corner that was leaking where the balcony (of unit 1601) had been flooded. He said, “we flooded the balcony and water was coming down through the stack in the corner”. The building element causing the issue was the seal between the riser through to the penetration in the slab. Evidence of Anthony Elzain [62] Mr Alzain was the construction director of Maxcon Constructions for the Johnson project. Maxcon’s involvement was construction only and renovation of an old building converted into an hotel and apartments. It was a design and construct contract. He said when informed there was a leak, he spoke to management on site in Brisbane to immediately address any issues. He added, “we were just unfortunately never allowed to get in ……to investigate the leak”. With respect to the QBCC direction to rectify he instructed Mr Margaritis to conform and do exactly what was required by the QBCC. He believed Mr Margaritis would not have done anything without the QBCC accepting it (he was speaking with a gentleman Cornelius at QBCC). [63] He recalled there were issues with the roofing and a membrane which were repaired. Maxcon installed a new downpipe and spreader system and flashing over the level 15 roof. He recalled that unit 1601 balcony was remembraned and retiled. He said, “we did predominately, most of the balconies again because I believe body corporate started doing something, which was incorrect, and we had to come in and assist at that -- 14 of 20 -- 15 time”. A form 16 from Set Tiling was delivered. He could not remember anything else about what was causing or may have been causing water ingress. During construction he would fly in every two or three weeks for two or three hours. [64] It was only after QBCC issued its direction to rectify that Maxcon was able to gain access. He said, “once the insurer came in no one was allowed to do anything after that. It made things very difficult for us”. GHD water damage repairs progress report of 15 October 2024 and GHD Expert Witness Report of 16 October 2024 [65] Both reports were prepared for the purpose of the body corporate for the Johnson CTS 49098 Supreme Court action against Maxcon. The 15 October 2024 progress report stated roof work as 100% complete. The level 15 balcony roof repairs had been completed in the first week of October (2024). The works included the installation of new box gutters and box gutter flashings above each balcony. Flashing and parapet seals were cut back and resealed. The overflows on the gutters were core drilled and widened to a rectangular shape to improve water flow. A level 16 ceiling water leak had been identified and was in the process of being rectified. Invoices issued and to be issued by Specialty Roofing indicated rectification costs at the Johnson of which roof works affecting level 15 were a part would be in the vicinity of $265,000.00. Evidence of Luke Doyle [66] Mr Doyle body corporate chairperson confirmed GHD’s report of 15 October 2024 regarding progress of repairs at the Johnson. GHD was the job superintendent and Specialty Roofing the contractor. That report in particular was the current report from which the bodies corporate were working. They relied on GHD as their expert consultants to complete roof works. Though questioned about various aspects of recent rectification work he was only able to reference GHD as the expert consultants. He was able to say that through GHD the bodies corporate engaged a contractor to carry out roof repairs. He confirmed those works had been completed save for defects or warranty periods. He confirmed that GHD’s report of 15 October 2024 noted some rainwater penetration of the level 16 ceiling but that did not concern unit 1510. [67] Mr Doyle further confirmed that the cost of engaging GHD and the contractor to carry out rectification work at the Johnson formed the body corporates (CTS49098) claim against Maxcon in its ongoing Supreme Court action. When asked about Dr Carter’s requirements for a form 15 for work carried out for the bodies corporate Mr Doyle said there was a request for a form 15 in May 2023 but otherwise Bruce Clarke (the primary author of the GHD reports) was the person more likely to be involved. Mr Doyle expressed reservations about any return by Maxcon to undertake building work. Application to amend. [68] During the course of the proceeding Dr Carter sought to amend her initiating application to have the Commission’s subsequent decision, to the effect that rectification work required by the direction to rectify of 10 May 2018 had been satisfactorily completed, reviewed. [69] Dr Carter argued that there was no prejudice/detriment to Maxcon because as builder it should have fixed unit 1510 roof and consequential damage in the first place. She said section 19(b) and (c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) allowed the Tribunal to perform the functions of the -- 15 of 20 -- 16 Commission and issue a direction to rectify. Whilst she was notified of certain works having been undertaken at her unit in the week or two prior to hearing she had no trust in the bodies corporate. Nor was the Commission fulfilling its duty to assist the Tribunal by opposing the amendment. It was in the public interest that the amendment be allowed. [70] Ms Nean for the Commission argued that Dr Carter’s review application was made about a year out of time and that an extension was granted. The Alto Gladstone5 decision was a Tribunal appeals decision to the effect that there can only be one decision reviewed by a single application. Whilst the Tribunal may have power to amend an application the review application could still only relate to one decision. It was not possible for the application to be amended to review both the direction decision and the satisfactorily rectified decision. Even if the Tribunal was to set aside the decision of Mr Koen that the rectification work was satisfactorily undertaken at the Commission’s direction there was no consequence that would lead to a remedy for Dr Carter such as referral for assessment under the statutory insurance scheme because there was no entitlement to insurance. Nor would it be likely to lead to any prosecution of Maxcon due to effluxion of time. Nor would it lead to another direction to rectify being issued. [71] It was not acceptable practice for the Tribunal nor supported by the QCAT Act that the decision under review could be changed after years of litigation and after over half a hearing had elapsed. Examining the decision about whether work undertaken at the direction of the Commission was satisfactorily rectified was a different exercise to whether there was defective work somewhere at the property after that. Consistent with the Alto Gladstone decision allowing parties to change the decision under review particularly at an advanced proceeding stage did not lead to the effective administration of the merits review scheme. Nor did the Commission’s duty to assist the Tribunal include consenting to an application of this nature. [72] Counsel for Maxcon reiterated the applicability of Alto Gladstone that there be a single decision the subject of review. Whilst the application as originally made was a reviewable decision namely a decision to give a direction to rectify or not to give a direction the Commission’s notification set out in its 14 June 2018 letter confirming that Maxcon had attended to the items listed in the direction of 10 May 2018 was not a decision that the work undertaken was or was not of a satisfactory standard. It just stated such work as completed. To that extent it was never a reviewable decision and as such could not be added to the application. The Tribunal did not have jurisdiction to review that decision. Additionally given the delay, the stage of the hearing reached, and prejudice suffered by the parties in the disruption of the hearing, it would be unfair to now give a direction to rectify. [73] The Tribunal considered that Dr Carter’s original application was clear enough at part B which was about the direction to rectify decision. Alto Gladstone was applicable in that there be one separate review application for each reviewable decision. The resultant delay in allowing the amendment at such a late stage was unacceptable. 5 Body Corporate for Alto Gladstone v Queensland Building and Construction Commission [2020] QCATA 6. -- 16 of 20 -- 17 Application by the Commission to extend. [74] Latterly on 24 October 2024 (the fourth day of hearing) the Commission made application for the time frame within which to issue a direction to rectify to Maxcon under section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) in respect of work undertaken at unit 1510 and the rainwater drainage system at 477 Boundary Street, Spring Hill be extended in accordance with section 72A(4) of the QBCC Act. Such direction was sought conditionally upon the Tribunal determining that a further or alternate direction to rectify should be given. The Tribunal stated the application would be addressed as necessary as part of the consideration of the substantive application. Conclusions [75] At hearing the Tribunal stated that an expansive approach was to be taken in view of the protracted nature of the proceeding. All witnesses called were given the opportunity to have their say and be cross-examined. Evidence of witnesses has been summarised, as opposed to quoted, at some length and given the number of persons involved over the intervening years in some semblance of chronological/logical order. Statements and evidence of witnesses overlap and on occasion contradict one another. A number of issues/events over the years led to the proceeding becoming protracted including the commencement of a Supreme Court action by the principal body corporate CTS 49098 against Maxcon on 6 September 2022. On 26 June 2023 Maxcon’s application for a stay of the subject proceeding, pending determination of the Supreme Court proceeding, was dismissed. [76] The direction issued 10 May 2018 by the QBCC regarding installation of the rainwater drainage system clearly relates only to the roof works. That was because Mr Koen identified water ingress in the area beneath the box guttering and flashing. There was no water ingress identified in the area beneath unit 1601 balcony. The power to issue a direction to rectify, a limited statutory remedy, resides in section 72 of the QBCC Act and could only be given to the entity that carried out/performed the building work which in this case was Maxcon. Section 72A (4) of the QBCC Act provides that a direction to rectify cannot be given more than six years and six months after building work to which the direction relates was completed unless the Tribunal is satisfied, on application by the Commission, that there is sufficient reason for extending the time for giving the direction and extends the time accordingly. Relevant works were completed on 9 September 2016. [77] None of architectural work, engineering work, certification work by a building certifier nor various forms certifying compliance under the Building Act 1975 (Qld) are building work. [78] Maxcon responded to the roof works direction to rectify. Its specialised contractor Beavis & Bartels inspected the works. Spreader and flashing work were carried out. A flood test of the box guttering was conducted. No other sources of leaking were identified. A site reinspection took place on the 11 June 2018 and confirmed by notification dated 14 June 2018 that Maxcon had attended to (this) direction to rectify and that no further action would be undertaken by the Commission in relation to (this) direction to rectify. Dr Carter claimed subsequent water ingress denied her occupancy. [79] In the course of the complaint process the body corporate insurer Chubb carried out emergency protection measures to arrest mould infestation. To a substantial degree -- 17 of 20 -- 18 unit 1510’s internals were stripped. But that did not affect any claim that Dr Carter considered she might have for consequential damage. Numerous persons and entities became involved leading to a protracted litany of inspections/opinions/reports. In 2020 the Johnsons bodies corporate as common lot/common property owners were joined as respondents as was Maxcon. [80] The QBCC in issuing a direction to rectify for defective building work does not direct the method or manner of rectification work to comply with the direction to rectify.6 Rather it is a case of requiring an outcome to be achieved. In deciding whether to require rectification of building work the Commission has regard to its Rectification of Building Work Policy which states defective building work to mean building work that is faulty or unsatisfactory. As stated by Mr Trohear in evidence, for something to be defective it first must be faulty or unsatisfactory; that there were times where something (building element) did not comply with a relevant code or standard but performed reasonably such that there was no evidence that it was faulty or unsatisfactory. A performance-based assessment formed a large part of the investigation method. [81] In view of subsequent complaints about water ingress and a review of Mr Koen’s initial decision Mr Trohear attended site on 17 September 2019. Whilst he formed the view that the box guttering was not leaking a decision was made to engage GHD. There was evidence of water entry further back inside unit 1510 below the balcony of unit 1601 (as opposed to the area below the box guttering). GHD was not able to confirm that the box guttering was in fact leaking. Considering all the material before him Mr Trohear did not consider there were grounds for him to exercise a new power. [82] Newsky’s invasive investigation of 29 January 2020 makes it clear that any water ingress into unit 1510 emanated from the balcony of unit 1601 an area that had previously been retiled in 2018 and again on sale of unit 1601 in 2020. More to the point water ingress into bedrooms one and four and the lounge area of unit 1510 was well away from that area under the box guttering where initial water ingress had occurred in 2018. This proceeding is limited to building work carried out by Maxcon. Its involvement with level 16 balcony has been superseded by balcony building/retiling/sealing work undertaken by others. Nor is it the case that any form of liability can be imposed on the bodies corporate here in terms of this application. [83] Mr Muller considered the siphonic drainage system was correctly installed and sufficient to allow for the discharge of the volume of water he calculated would flow through from level 16. There was no evidence before the Tribunal that the siphonic drainage system, sump, or no sump, was defective nor any evidence that ponding in the box guttering or incorrectly installed overflow provision was directly responsible for water ingress. [84] Nor was there any evidence pointing directly to a continuity of water ingress from the box gutter after Maxcon completed rectification works. Rather the level 16-unit 1601 balcony was the later source of water ingress as evidenced by Newsky’s report of 1 February 2020 and Mr Trohear’s and Mr Lovett’s own observations. In light of level 16-unit 1601 balcony retiling in 2020 it seems that balcony was no longer the source of water ingress. More to the point any issues about tiling of unit 1601 balcony and water ingress are now beyond the jurisdiction of the Tribunal for the reason that 6 Turner v Queensland Building Services Authority [2012] QCAT 229. -- 18 of 20 -- 19 Maxcon is not responsible for the state of that tiling undertaken by a third party. Nor was there any evidence that fire separation provision between unit 1510 and unit 1601 was inadequate or defective. [85] The whole of the downpipe, spreader, flashing, box gutter, and overflow provision was fully overhauled/renewed in September/October 2024. Mr Asher’s Specialty Roofing did the rectification work and GHD were the supervising engineers. GHD’s report of 15 October 2024 is definitive in recording roof works and level 15 balcony roof repairs as 100% complete. Mr Lovett may have had some minor concerns about compliance but as Mr Asher stated the work was carried out in accordance with Australian Standards. But that work does not appear to be based on identified faulty or unsatisfactory building work enlivening a direction to rectify but rather contractual issues as between the principal body corporate and Maxcon (the GHD reports were prepared for the purposes of a Supreme Court action). The Tribunal cannot accept that structurally defective building work was the source of the GHD reports for the purposes of a direction to rectify. What can be said though is that it is now beyond doubt that the whole of the level 15/16 roof water drainage system is functional/performing and unit 1510 is watertight. [86] Nor does the absence of or at least the non-production of forms 15 and 16 render the works carried out in September/October 2024 somehow defective. In the broader context those forms are not relevant to a determination as to whether building work is defective or otherwise. [87] Given the protracted nature of this proceeding fairness is a heightened consideration in determining whether to give a direction to rectify for any perceived non- compliance. The whole of the roof top drainage system was overhauled/renewed by Specialty Roofing with the associated cost encapsulated in the principal body corporate’s Supreme Court Action against Maxcon such that the roof top drainage system can no longer be considered the subject of a direction to rectify to Maxcon. [88] With respect to consequential damage there were a number of factors which impacted on whether Maxcon ought to be the subject of a further direction to rectify. These were the intervention of Chubb’s emergency internal stripping and mould measures, disputed as excessive by Mr Margaritis, the retiling of unit 1601 balcony in 2020 which may have caused further damage to unit 1510 internally and an absence of mitigation of loss evidenced by an application made by Dr Carter on 25 March 2020 seeking orders that all respondents desist from any building and certification works to the roof drainage system pending the Tribunal’s review (refused on 7 December 2020). Years passed with costs no doubt increasing. Additionally consequential damage to unit 1510 formed part of the loss claimed in the Supreme Court action against Maxcon commenced in 2022 by the principal body corporate. At this late stage the Tribunal cannot see that it would be fair (or even of utility) to give a further direction to rectify for consequential damage. [89] Based on the initial complaint made by Dr Carter about water ingress into unit 1510 there was nothing inadequate about the Commission’s response. The decision to issue a direction to rectify was clearly correct as was the direction to rectify which clearly identified the water ingress issue to be remedied. It was for Maxcon to address that and only that which was the subject of the direction to rectify. Rectification work was examined and tested. The rainwater drainage system performed. There was no water ingress. It was never the case that the complaint nor the Commission’s response would or should unfold into some sort of commission of inquiry encompassing numerous -- 19 of 20 -- 20 aspects of building practice. The most that can be said is that at a later time another source of water ingress was identified and that was from the balcony of unit 1601. On the evidence presently before the Tribunal that has been rectified since at least 2020. [90] Even taking into account the large volume of material/evidence placed before it the Tribunal cannot see any reason here to make any change to the direction to rectify given on 10 May 2018. The Commission’s decision to give a direction to rectify is confirmed. It is therefore not necessary to consider the Commission’s application to extend and accordingly it is dismissed. -- 20 of 20 --