Delfino v Queensland Building and Construction Commission [2024] QCAT 75

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Delfino v Queensland Building and Construction Commission [2024] QCAT 75 PARTIES: BREEN DELFINO (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR007-22 MATTER TYPE: General administrative review matters DELIVERED ON: 7 February 2024 HEARING DATE: 14 February 2022 HEARD AT: Brisbane DECISION OF: Member Holzberger ORDERS: The Tribunal sets aside the decision of the Queensland Building and Construction Commission of 10 December 2021 to disallow Breen Delfino’s claim in respect of the foundation complaint and substitutes a decision allowing the claim. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – whether notification out of time – extent of the defect Queensland Building Construction Commission Act 1991 (Qld), ss 1(2), 67(2) Queensland Building Construction Commission Regulation 2018 (Qld), s 16(3), s 59, Schedule 6 Queensland Civil Administrative Tribunal Act 2009 (Qld), s 28 Ahmet v Queensland Building Construction Commission [2022] QCAT 417 Jackson & Ors v Queensland Building Construction Commission [2018] QCAT 290 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Mr T Ambrose, Council -- 1 of 5 -- 2 REASONS FOR DECISION Background [1] Breen Delfino and Renee Sparrowhawk entered into a contract for the construction of a house at their property at Morayfield (‘property’) with Exclusive Living and Lifestyle (‘the builder’) on 7 January 2020. [2] Construction commenced on 16 February 2020. Almost immediately, Mr. Delfino developed reservations about the builder’s competence. Practical completion was reached on or about 19 September 2020.1 [3] On or about 22 April 2020 Mr. Delfino made his first complaint to the Queensland Building and Construction Commission ('QBCC'). That complaint was in respect of matters not related to these proceedings and are not relevant to them. [4] On 16 November 2020 Mr. Delfino made a second complaint to the QBCC (‘foundation complaint’) which included the following as item one: Foundation under the front of the house incorrect installation causes the water pool around the footings and causing movement in the foundation and cracks in the plaster are evident. The hole dug for the foundation filled with water due to rain, TH [sic].2 [5] Miss Sparrowhawk emailed the QBCC on 7 December 2020 to amend the description of item one as follows: …foundation under the front of the house due to incorrect installation causes the water pool around the footings and causing movement in the foundations and cracks in the plaster are evident. The hole dug for the foundation filled with water due to rain, the builder advised that he would not have water pumped out till closer to the pouring of the concrete. As the water set in the hole for some time the wall collapse which caused it to become bigger that TH [sic]. It should have and required additional concert yes [sic] to fill. The footing was not completed correctly as water now pulls around the footing. Concerned that the footing is not secure and will sink also that the post will rust due to water pooling…3 [6] On 9 February 2021, QBCC building inspector Robert Murphy inspected the works including the above defect and on 26 May 2021, issued an initial inspection report which noted in respect of the foundation component: The finished ground levels underneath the dwelling has not been graded in accordance with the NCC 2019 building code of Australia 2019 s3.1 - 3.3, surface water drainage in that undulations of the ground. Permit the ponding of surface water, which will inevitably affect the foundations and stability of the dwelling. [7] On 30 July 2021 the QBCC directed the builder to rectify a number of defects, including the foundation complaint which now incorporated Mr Murphy’s findings. 1 The QBCC says practical completion was reached on or about 18 September 2020. Nothing turns on this. 2 Hearing Book tab 8, SOR-9, pages 251 and 260. 3 Hearing Book tab 8, SOR-9, pages 387-389. -- 2 of 5 -- 3 The builder failed to rectify the foundation complaint within the time allowed for the rectification. [8] On the 21 September 2021, the QBCC advised Mr. Delfino that following the builder’s failure to rectify, it would assess Mr. Delfino's eligibility to make a claim under the Queensland Home Warranty Scheme. [9] On 13 November 2021, the QBCC notified Mr. Delfino that his claim in respect of the foundation defect had been rejected. [10] Mr. Delfino applied for an internal review of that decision on 13 November 2021, and on 10 December 2021 the decision was confirmed. [11] On 5 January 2022 Mr. Delfino applied to the Tribunal for a review of the internal review decision. The QBCC does not contest the Tribunal’s jurisdiction to conduct the review. [12] The Tribunal’s review proceeds by way of a fresh hearing of the matter on the merits.4 [13] A consumer is entitled to assistance under the scheme where residential construction work is defective or incomplete.5 [14] It is uncontroversial that the works described in item one of the second complaint is defective residential construction work. [15] The terms of cover are contained in schedule six of the Queensland Building Construction Commission Regulation 2018 (Qld) ('QBCC Regulation’). [16] Section 16(3) of the terms of cover provides that no assistance can be given to a consumer unless the consumer makes a claim for a structural defect “three months after the day the consumer first becomes aware, or reasonably to have become aware, of the defect in the work.” It is common ground that the defect in this case is structural. [17] This section was relied on by QBCC in its original decision disallowing Mr. Delfino's claim. Mr. Delfino's amended complaint concedes that the defect was first noticed on 10 March 2020 but the QBCC was not notified until the second complaint was lodged on 16 November 2020. [18] The internal review decision disallowed the foundation complaint pursuant to s 59 of the terms of cover. That section provides that a consumer is not entitled to assistance in relation to a defect in the works if: (a) the residential construction is substantially complete; (b) the defect was apparent, or ought reasonably to have been apparent, to the consumer before the work was substantially complete. [19] The parties agree the works were substantially complete on or about 18 September 2020 or 19 September 2020. [20] It is Mr. Delfino's contention neither s 16(3) nor s 59 disqualify him as the foundation complaint related to one specific footing rather than the broader non-compliance with 4 Queensland Civil Administrative Tribunal Act 2009 (Qld), s 28, in Queensland Home Warranty Scheme. 5 Queensland Building Construction Commission Act 1991 (Qld), ss 1(2), 67(2), and Part 3 terms of cover. -- 3 of 5 -- 4 the finished ground levels under the dwelling. In respect to the latter, he says that he was not aware, nor could he be expected to be aware, of that defect until it was identified in Mr. Murphy's report on 26 May 2021. [21] It is Mr. Delfino's evidence that the cut of the site commenced on 16 February 2020. Peer hole drilling commenced in the week commencing 20 February 2020.6 [22] These works were undertaken in heavy rain. Despite his protests, no action was taken by the builder to protect the holes and they began filling with water, and some started to collapse. Mr. Delfino took steps to protect the holes, including the hire of a vacuum pump. [23] Concrete was poured partially under the supervision of an engineer on 16 March 2020. [24] After that time Mr. Delfino's written evidence gives very little detail of his specific complaint in relation to the ponding generally, but some clarification comes from his cross examination on the point. [25] His foundation complaint, he says, was limited to one footing, a photograph of which is included in the hearing book at Page 682. All other footings had a “dome of concrete” which caused water to drain away from the footing. The footing which is the subject of his complaint did not. As a consequence, the water could not drain away. [26] He also confirmed in cross-examination that prior to the concrete pour the water was only “ponding” in the holes, not around. [27] There is no other evidence of ponding around the footings other than that identified by Mr. Delfino. He accepted that ponding occurred on the property as a result of spoil but this was away from the pad itself. [28] In his submissions, Mr. Ambrose, Council for QBCC, referred to two decisions of the Tribunal, namely Jackson & Ors v Queensland Building Construction Commission [2018] QCAT 290 (‘Jackson’) and Ahmet v Queensland Building Construction Commission [2022] QCAT 417 ('Ahmet’). [29] In both Jackson and Ahmet the Tribunal confirmed the QBCC's decision to disallow a claim under the Queensland Home Scheme pursuant to section 16(3) of the QBCC Regulation (or equivalent) [30] Mr. Delfino's foundation complaint refers to the “foundation” under the front of the house, singular rather than the foundations generally. I believe that had he noticed ponding in other areas, he would have included that in his complaint. [31] Robert Murphy noted in his statement that paragraph 23(c); …during my initial inspection under the dwelling, I used a shovel to remove drainage stone slash stone aggregate in certain areas which revealed that certain areas were ponding had pondered with water around footings. It appears that the drainage stone placed by the builder brackets for cosmetic reasons. close brackets had covered some of the undulations in the ground and water. Ponding but sitting under the stone may not have been immediately visible. 6 Statement of Breen Delfino dated 6 May 2022, paragraph 12. -- 4 of 5 -- 5 [32] The foundation/footing, which is the subject of the complaint, was constructed differently from the others and had an obvious defect which explained why water was ponding around that area and not others. [33] The failure to grade the finished ground levels under the house in accordance with NCC 2019, the (at the time current) building code of Australia, is in my view a separate defect detected by a building inspector after a mildly invasive inspection under the house. [34] In the absence of ponding in areas other than the footing, which was the subject of the complaint, I am satisfied that he became aware of that defect only after receipt of Mr. Murphy's report and could not reasonably be expected to be aware of it before the report. [35] In those circumstances neither s 16(3) nor s 59 of the QBCC Regulation preclude Mr. Delfino's claim. -- 5 of 5 --