Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Fewster and Anor v Queensland Building and Construction Commission and Anor [2021] QCAT 251 PARTIES: JOANNE FEWSTER MARK ANGUS (applicants) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION WILLYCRETE PTY LTD (respondents) APPLICATION NO/S: GAR080-20 MATTER TYPE: General administrative review matters DELIVERED ON: 14 July 2021 HEARING DATE: 10 May 2021 HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: 1. The correct and preferable decision is to confirm the decision of the Queensland Building and Construction Commission dated 3 February 2020 not to give a direction to rectify. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought review of decision by Commission to disallow claim under the Queensland Home Warranty Insurance Scheme – where applicant failed to discharge evidential onus – where issues beyond builder’s control – where no evidence of breach of industry standards or building codes – where contractual issues only - where unfair to issue direction to rectify - where Commission’s decision confirmed Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 72 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 -- 1 of 8 -- 2 Birrell v Queensland Building Services Authority [2013] QCAT 56 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69 Briginshaw v Briginshaw (1938) 60 CLR 336 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Delahunty v Queensland Building Services Authority [2013] QCAT 639 Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Harris v Foxworth Pty Ltd [2013] QCATA 133 Ireland v Queensland Building Services Authority [1999] QBT 180 Kehl v Board of Professional Engineers of Qld [2010] QCATA 58 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 O’Brien v Gladstone Regional Council [2015] QCATA 82 Olindaridge Pty Ltd & Wagner v Tracey [2014] QCATA 207 R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228 Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212 W&E Carlsen Builders v Tressider [2014] QCAT 131 Walker v Queensland Building and Construction Commission [2014] QCAT 228 Young v Queensland Building Services Authority [2014] QCAT 75 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondents: SE Seefeld of Counsel instructed by Holding Redlich for Queensland Building and Construction Commission P Williams, Director for Willycrete Pty Ltd -- 2 of 8 -- 3 REASONS FOR DECISION What is this application about? [1] Joanne Fewster and Mark Angus applied to review a decision by the Queensland Building and Construction Commission on 3 February 2020 to not give a direction to Willycrete Pty Ltd to rectify its work on and around their driveway.1 [2] Importantly, in deciding whether to give a direction to rectify, the Tribunal is not deciding whether Willycrete breached any statutory warranty, contractual obligations, or duty of care causing loss or damage.2 Instead, the Tribunal must consider the competing interests of the parties: blameworthiness of the homeowner and the cause of the defective building work are relevant.3 Proportionality is also relevant because, unlike a direct claim made by a home owner against a builder, the burden of insuring against and responding to rectification costs disproportional to the claim ongoing and indefinite complaints is inevitably passed on to other builders and home owners through higher insurance premiums and increased building costs. [3] The discretion to issue a ‘Direction To Rectify’ is seamless and involves weighing up factors, both for and against, its exercise.4 In its decision not to give a direction to rectify, the Commission found that: (a) Items 2 to 7 and 9 of the Complaint were not defective work; and (b) Item 8 of the Complaint could not be attributed to be the result of defective building work by Willycrete; and (c) While items 1 and 10 of the Complaint were defective, it would be unfair to direct Willycrete to rectify: (i) For item 1: (A) Existing structures, such as retaining walls, had a direct effect on the ability to build the driveway as detailed in the plans; (B) Any rectification would require removing and replacing the driveway and existing structures such as retaining walls; and (C) Rectification would far exceed the $14,410.00 cost of the original works; (ii) For item 10: 1 QBCC Internal Review Decision dated 3 February 2020. The Applicants’ material also referred to the Commission’s decision dated 18 August 2020. That decision was not part of the Application to review filed on 18 February 2020. It therefore does not fall within the ambit of this review. 2 Delahunty v Queensland Building Services Authority [2013] QCAT 639, [29]. 3 Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2. 4 Ireland v Queensland Building Services Authority [1999] QBT 180, 29. -- 3 of 8 -- 4 (A) Willycrete informed Ms Fewster that she was responsible for connecting drainage to the stormwater; (B) The survey in the Building Plans contained a statement “grated drain required to front of garage (connected to stormwater) once driveway constructed (by customer)”; and (C) There was no evidence of any agreement or quote for Willycrete to do drainage work.5 Did Ms Fewster and Mr Angus discharge the evidential onus to prove defective workmanship or that it would not be unfair to give a direction to rectify? [4] Ms Fewster and Mr Angus submitted that the Commission did not investigate their complaints sufficiently, nor provide adequate evidence of its decisions.6 They also said the Commission did not provide various factual evidence, including to prove the retaining walls did not need to be replaced.7 [5] Because the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits,8 Ms Fewster and Mr Angus need not prove any error by the Commission in its original decision.9 However, Ms Fewster and Mr Angus do have an evidential onus to provide appropriate material to support the decision they seek: Generally (sic) there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence (sic) the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.10 [6] This has also been described as a practical onus.11 The Tribunal cannot make findings where the evidence is insufficient – parties must be responsible for preparing their own case.12 Ms Fewster and Mr Angus only provided quotes, their hearsay evidence of what they say some quote-providers told them, a survey plan, a copy of some undated photographs and extracts from the Queensland Development Code and copies of emails between them and Willycrete to support their otherwise bare allegations.13 5 Statement of Reasons for the Decisions dated 9 April 2020, [48]. 6 Statement of Joanne Fewster and Mark Angus dated 30 September 2020, p3. 7 Statement of Joanne Fewster and Mark Angus dated 15 December 2020. 8 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 9 Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9]. 10 Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23]. 11 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33]. 12 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3]; Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 13 Quote of Kemp Concreting Pty Ltd dated 9 February 2020; Quote of Cavco Concrete dated 11 February 2020; Quote of Dylan Maguire dated 12 February 2020; Statement of Joanne Fewster and -- 4 of 8 -- 5 [7] Reconciliation of the survey plan, any photographs and relevant Codes and Standards with the building work required a measure of objective judgement, evaluation and sophisticated analysis. The evidence of Ms Fewster and Mr Angus was not objective.14 Neither the survey plan nor undated photographs were attached to any expert report provided by Ms Fewster and Mr Angus. Other than the Commission’s expert evidence, no independent expert evidence was adduced about how the work did not comply with relevant Codes and Standards. [8] The Tribunal must also observe procedural fairness.15 Quotes and a survey plan need not be accepted as evidence where they are not attached to any sworn statements by their authors and their authors are not made available for cross-examination.16 If a party is relying upon what an expert told them, they are obliged to make that expert available for cross-examination by the other parties. The quotes themselves do not show or explain how the described works would rectify the driveway. [9] Relying only upon evidence of what a party claims a putative expert said would be contrary to procedural fairness, as it denies the other party the opportunity to cross- examine the expert who is the best and direct source of that evidence.17 Ms Fewster and Mr Angus did not provide details of the qualifications, experience and credentials of the authors of the quotes and survey plan. An expert’s credentials, assessment and methodology cannot be tested by cross-examining the party relying upon that expert: cross-examining the party could only test that person’s recollection of what the putative expert told the person.18 [10] To accept the quotes, survey plan, undated photographs and hearsay evidence of what Ms Fewster and Mr Angus say some quote-providers told them in these circumstances would deny the other parties procedural fairness.19 Ms Fewster and Mr Angus did not provide and make available for cross-examination any independent expert evidence to prove: (a) whether the work was not to the appropriate standard; (b) whether the work was defective; (c) causation; (d) remedial work required as a result of the alleged defective workmanship; and (e) whomever was responsible for whatever was causing any issues. [11] In a review application, a homeowner must prove their claims to the reasonable satisfaction of the Tribunal. As the High Court has held: Mark Angus dated 30 September 2020; Statement of Joanne Fewster and Mark Angus dated 9 December 2020; Statement of Joanne Fewster and Mark Angus dated 15 December 2020. 14 Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575, [39] - [40]. 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(a). 16 Olindaridge Pty Ltd & Wagner v Tracey [2014] QCATA 207, [37] - [43]. 17 Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [40] - [43]. 18 O’Brien v Gladstone Regional Council [2015] QCATA 82, [13]. 19 Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [43]. -- 5 of 8 -- 6 … ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect references…20 [12] Ms Fewster and Mr Angus said they should have been told at the compulsory conference the detail required for the quotes.21 However, Ms Fewster and Mr Angus have an obligation to act in their own best interests: The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. 22 [13] The onus is always upon them to present their case.23 They cannot shift that personal responsibility to others,24 nor is it the job of the Tribunal to guess:25 In the context of the legislation and the demands upon public resources like those which fund QCAT it is not unreasonable to impose, upon a party, an expectation and an obligation that it will ensure it acts in its own best interests, or accept the consequences…26 [14] The Tribunal cannot make findings without proof. Other than the Commission’s expert evidence, no independent expert evidence was adduced of defective workmanship or causation. Similarly, the evidence of remedial work required is deficient. The Tribunal is unable to attach requisite weight to the quotes, hearsay evidence and the subjective and non-expert analysis of the survey plan and photographs. [15] In contrast to Ms Fewster and Mr Angus not providing independent expert evidence sufficient to support the decision they seek,27 the Commission provided evidence from its expert, Geoffrey Sanders. Mr Sanders is employed by the Commission who is also a party to the application. However, the Commission’s statutory role is simply to administer the Act and further its objects.28 Mr Sanders’ report has been prepared in furtherance of those objects, rather than any vested interest. [16] In performing its role as a statutory authority to achieve a reasonable balance between the interests of building contractors and consumers,29 the Commission is entitled to 20 Briginshaw v Briginshaw (1938) 60 CLR 336, 346. 21 Statement of Joanne Fewster and Mark Angus dated 15 December 2020, p 9. 22 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 23 Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe [2013] QCATA 212, [47]; Harris v Foxworth Pty Ltd [2013] QCATA 133, [18]; Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [9]. 24 W&E Carlsen Builders v Tressider [2014] QCAT 131, [21]. 25 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [56]. 26 Breezeway Developments Pty Ltd v ADG Hydraulics Pty Ltd [2010] QCATA 69, [12] - [13]. 27 Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23]. 28 Queensland Building and Construction Commission Act 1991 (Qld), s 7. 29 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7. -- 6 of 8 -- 7 obtain information from both home owners and contractors, using the qualifications and experience of its experts to consider that information and prepare reports to assist in its decisions. [17] Mr Sanders is a licensed builder with qualifications in building and construction, carpentry and joinery with over 17 years’ experience.30 His findings were made having regard to relevant policies, codes and standards.31 He attended the hearing and gave evidence based on his sworn statement32 and inspection report.33 Ms Fewster and Mr Angus were given the opportunity to cross-examine him and test his evidence. Mr Sanders’ evidence was considered and clear. He explained his methodology and findings with measured and appropriate detail. He maintained his findings under cross-examination. [18] The Tribunal is satisfied that Mr Sanders turned an independent mind and exercised his industry experience in making his findings. No expert evidence was given to the contrary. Simply, Mr Sanders’ evidence was the best evidence before the Tribunal. [19] The Tribunal therefore accepts Mr Sanders’ findings and is satisfied they provide sufficient basis to disallow items 2 to 9. No evidence was adduced of any of these items contravening relevant industry standards or building codes. [20] A ‘Direction To Rectify’ may not be given if, in the circumstances, it would be unfair.34 The Commission – and the Tribunal - may consider all circumstances that are reasonably relevant to decide whether to give a ‘Direction To Rectify’.35 [21] Although item 1 was found to be defective, the evidence is it would be unfair to direct Willycrete to rectify because: (a) Modifications to the site not done by Willycrete and made before Willycrete’s work, particularly those relating to retaining walls, do not comply with the plans and curtailed its ability to comply with relevant Standards:36 the site as surveyed and planned was different from what Willycrete faced at the time of construction; and (b) Rectification would be disproportionate to the value of the original work as it would require replacement of the driveway.37 [22] Similarly, although item 10 was found to be defective, it would be unfair to direct Willycrete to rectify because it did not contract to connect the drainage to the stormwater: plumbing was outside the scope of works.38 30 Statement of Geoffrey Sanders sworn 7 December 2020, [4]. 31 Statement of Geoffrey Sanders sworn 7 December 2020, [7] – [9], [13]. 32 Statement of Geoffrey Sanders sworn 7 December 2020. 33 Inspection Report dated 22 January 2020. 34 Queensland Building and Construction Commission Act 1991 (Qld), s 72(5). 35 Queensland Building and Construction Commission Act 1991 (Qld), s 72(3). 36 Statement of Geoffrey Sanders sworn 7 December 2020, [13], [18]; Statement of Joanne Fewster and Mark Angus dated 30 September 2020, Appendix H, p 71. 37 Statement of Geoffrey Sanders sworn 7 December 2020, [18]. 38 Quotation dated 18 July 2018; Contract dated 10 July 2019; Tax Invoice No. 920 of Willycrete Pty Ltd dated 1 October 2019; Statement of Joanne Fewster and Mark Angus dated 30 September 2020, pp 4, 5. -- 7 of 8 -- 8 What is the correct and preferable decision? [23] Ms Fewster and Mr Angus did not provide any independent expert evidence to support the decision they seek or to contradict Mr Sanders’ evidence. In conducting a proceeding, the Tribunal must act fairly and according to the substantial merits of the case.39 It is not bound by the rules of evidence and may inform itself in any manner it considers appropriate.40 That does not mean, however, that the rules of evidence are to be ignored.41 Ms Fewster and Mr Angus did not possess specialised knowledge or independence and provided no independent expert evidence to help the Tribunal arrive at the correct and preferable decision. [24] Without independent expert evidence to the contrary, the Tribunal is not satisfied to adjust Mr Sanders’ findings.42 Without sufficient supporting evidence, the Tribunal is unable to make the orders Ms Fewster and Mr Angus seek.43 The Tribunal is not satisfied that Ms Fewster and Mr Angus adduced evidence sufficient to discharge their evidential onus. [25] The evidence is that it would be unfair to issue a direction to rectify item 1 because the issues were beyond Willycrete’s control and ordering rectification would be disproportional to the defect. [26] It would be unfair to issue a direction to rectify items 2, 3, 4, 5, 6, 7 and 9 because they raise contractual issues only. [27] It would be unfair to issue a direction to rectify item 8 because of the lack of evidence of any breach of standards or codes and ordering rectification would be disproportional to the defect. [28] It would be unfair to issue a direction to rectify item 10 because it would require Willycrete to do something more than it contracted to do. [29] The correct and preferable decision is to confirm the decision of the Commission dated 3 February 2020 not to give a direction to rectify. 39 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2). 40 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(b), (c). 41 R v War Pensions Entitlement Appeal Tribunal (1933) 50 CLR 228, 256 (Evatt J). 42 Birrell v Queensland Building Services Authority [2013] QCAT 56, [37]; Young v Queensland Building Services Authority [2014] QCAT 75, [44]. 43 Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] - [25]; Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59, [67]. -- 8 of 8 --