Brown v Queensland Building and Construction Commission [2016] QCAT 6

CITATION: Brown v Queensland Building and Construction Commission [2016] QCAT 6 PARTIES: Deborah Brown (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR356-13 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Gardiner DELIVERED ON: 7 January 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Queensland Building and Construction Commission dated 2 September 2013 is confirmed. 2. The application for costs is dismissed. CATCHWORDS: BUILDING – REVIEW – Where application made to review decision in 2013 to not issue a notice to rectify to builder – Where an extension of time granted – Where only two minor defects outstanding – Whether notice to rectify should be issued Queensland Building and Construction Commission Act 1991 (Qld), ss71; 72 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] On 1 August 2010, siblings Deborah and Christopher Brown employed the builder Noosa Constructions Pty Ltd to construct a kit home for them on -- 1 of 6 -- 2 Fraser Island. Construction finished in December 2010 but there were disputes between the parties concerning defective or incomplete work. [2] On 17 June 2011 Ms Brown lodged a complaint with the Queensland Building and Construction Commission (as it is now). On 24 June 2011, the Commission advised Ms Brown that the matters were of a contractual nature and not determined as defective work. The Commission declined to issue a notice to rectify. [3] At this point, Ms Brown elected to pursue the builder and not review the decision of the Commission. This action proceeded through QCAT and after an appeal, this matter was concluded by a decision handed down on 9 October 2012. [4] On 21 February 2012 Noosa Constructions Pty Ltd changed its name to Laguna Constructions Pty Ltd. [5] On 23 May 2013, Ms Brown lodged a further complaint with the Commission. The complaint referred to work completed in December 2010. [6] On 2 September 2013 the Commission made a decision to request Laguna Constructions Pty Ltd to rectify or complete some work at the property. There were a number of items the builder was not requested to rectify because either they were category 2 defects notified outside six months of the completion date or, there was insufficient evidence to show the builder had undertaken defective work. [7] On 14 October 2013, Ms Brown filed an application to review Commission decisions in 2011, 2012 and on 2 September 2013. Ms Brown also filed an application to extend time to file this reviews. [8] On 9 January 2014, the Commission made a further decision in respect of the functions performed by the certifier. [9] On 18 August 2014, Ms Brown made a further application to extend time to review the 2011 decision and the 2014 decision. [10] On 30 September 2014, the Tribunal dismissed the application to extend time on the 2011 decision but allowed an extension of time in relation to the decision dated 9 January 2014 to 24 October 2014. [11] On 23 October 2014, Ms Brown filed a further review application with QCAT about the decision concerning the certifier dated 9 January 2014. That application will be dealt with in separate reasons on GAR010-15. [12] A review is a fresh hearing to produce the correct and preferable decision1. The Tribunal can confirm, amend or set aside the decision and substitute its own or return it to the original decision maker2. The Tribunal 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 2 Ibid, s24(1). -- 2 of 6 -- 3 is also required to fulfil its functions to achieve the objects of the QCAT Act by encouraging early resolution, minimising costs and conducting quick proceedings in an informal way in circumstances consistence with achieving justice3. The parties in this matter elected to have the hearing dealt with on the papers – without an oral hearing. The Review of the Decision of 2 September 2013 [13] In submissions filed by Ms Brown on 15 September 2015, she attaches a report dated 22 October 2014 of her building expert Mr Gil McGlinn from the building firm G.J. & M McGlinn. That report lists 15 alleged defects. Ms Brown uses this list as the basis for her review of the decision of the Commission. [14] In her submissions, Ms Brown disputes the findings by the Commission that some of the defects complained of by her were contractual in nature. She also alleges that some matters found to later be defective, were rejected by the Commission as “out of time”. [15] Mr McGlinn’s list, complied for Ms Brown, was the basis of a joint conclave of experts with the Commission convened by the Tribunal on 19 March 2015. This conclave was attended by Mr McGlinn and his son Mr Gilbert McGlinn and an expert from the Commission, Mr Daniel Stephensen, now an area manager but previously a building inspector. [16] A joint experts report was filed in the Tribunal on 2 April 2015. The 15 defects reported initially by Mr McGlinn were examined by the experts and each of these will now be addressed in these reasons. Item 1 External Steel Posts needing concrete capping as base [17] All experts agree that Laguna Constructions Pty Ltd had entered into a contract with a third party to perform remedial works to the base of the steel support posts and on that basis, the item was considered resolved. Item 2 Roof Battens requiring sealing where they penetrate the external walls [18] Mr Stephensen advised he had inspected the gap widths. He satisfied Mr McGlinn and Mr Gilbert McGlinn that this item was not considered to be defective work. Item 3 Leaking showers [19] Mr Stephensen advised remedial works by the builder had failed in both showers and that Laguna Constructions Pty Ltd had entered into a contract with a third party to perform further remedial works to the showers. On that basis, Mr McGlinn and Mr Gilbert McGlinn considered the item was resolved. 3 Ibid, s4. -- 3 of 6 -- 4 Item 4 Main Joist under ensuite compromised [20] Mr McGlinn and Mr Stephensen confirmed that this item had been rectified by the builder and was no longer of concern. Item 5 Cornices separating in kitchen, dining and living rooms [21] Mr McGlinn and Mr Gilbert McGlinn confirmed that this item had been rectified by the builder and was no longer of concern. Item 6 Kitchen benchtops separating at joins [22] Mr Stephensen said he had no knowledge of this matter. [23] Mr McGlinn and Mr Gilbert McGlinn said they had informed Ms Brown to contact the kitchen supplier concerning this matter and that it was outside the scope of the builder Laguna Constructions Pty Ltd to rectify. Items 7 & 8 Wall tiles in both showers laid against bowed walls creating a safety hazard. [24] Mr Stephensen said the walls were out of plumb in two shower recesses causing gaps of between 3 and 10 mm. Mr McGlinn and Mr Gilbert McGlinn said if flexible sealant was applied to the gaps in question, the issue would be resolved as an item of concern. Item 9 Fire Rated Verandah beams [25] This item was considered by all experts to be an item of concern in the other review application concerning the certifier. Item 10 Ceiling insulation on the second floor [26] Mr Stephensen advised that after his investigations he was satisfied that insulation had been installed and that energy efficiency requirements were complied with. He had provided an independent report confirming this to Ms Brown. [27] On this basis, Mr McGlinn and Mr Gilbert McGlinn did not consider this to be defective work. Item 11 Rain water guttering on plan omitted [28] This issue had been settled between Ms Brown and the builder by way of a cash agreement. Item 12 Floating floor nailed down [29] A re-inspection of a previous bulging floor by Mr Stephensen showed that this issue had been rectified by the builder by April 2012 and that a three nail fixing does not constitute a defect. -- 4 of 6 -- 5 [30] Mr McGlinn and Mr Gilbert McGlinn agreed with Mr Stephensen that the item is not considered defective building work. Item 13 damaged track of aluminium door [31] All experts did not consider this as defective building work. Mr McGlinn and Mr Gilbert McGlinn considered it fair wear and tear. Item 14 Trim timber poor quality, painting sub-standard [32] This item was considered by the Commission to be a category 2 defect that fell outside time limits to direct the builder to rectify. Item 15 Expansion in hallway ceiling in wrong place causing the ceiling to crack [33] Mr Stephensen advised this was a new item of concern for the Commission. After viewing photographs supplied by Mr McGlinn and Mr Gilbert McGlinn, Mr Stephensen considered the expansion joint was installed in the wrong location and would have been more beneficial if installed where the crack occurred. This item was considered by the Commission to be a category 2 defect that fell outside time limits to direct the builder to rectify. [34] Mr McGlinn and Mr Gilbert McGlinn confirmed that this item would have been a category 2 defect. Perimeter Termite Inspection System [35] The joint report noted that in the Commission Request to Rectify to the builder dated 2 September 2013, the perimeter termite inspection system was discussed by the parties. Mr Stephensen said the Commission engaged a third party technical consultant to investigate and supply a report. This inspection was held on 10 March 2015 and it was established that the termite inspection system was compliant with manufacturing specifications and not defective. Discussion [36] Of the 15 defects alleged by Ms Brown, only two items (14 and 15) were considered defects. These items were considered by the Commission to be a category 2 defects that fell outside time limits to direct the builder to rectify. [37] Under section 72(1) of the Queensland Building and Construction Commission Act 1991, the Commission has power to direct a builder to rectify defective building work within a stated period. The Commission is not required to give the direction if it is satisfied that, in all the circumstances, it would be unfair to the builder to give that direction4. In considering this element of unfairness, regard is had by the Commission 4 Queensland Building and Construction Commission Act 1991 (Qld), s72(5) -- 5 of 6 -- 6 to the Commission’s defects policy, which provides time guidelines for category 1 and category 2 defects. [38] Category 2 defects are defined in the policy as building work that is faulty or unsatisfactory because it does not meet reasonable standards for construction and finish or has caused a “settling in period” defect in a new building. [39] For category 2 defects, the policy provides the time frame to be 6 months after the building work was completed or left incomplete or 7 months, if the owner notified the contractor of the defect within 6 months of the building work being completed or left incomplete. As this time period has passed, the Commission considers these defects are now Ms Brown’s responsibility. [40] The only defective items left are two category 2 items from a decision of the Commission of September 2013. These are poor quality door trim, an expansion joint in the hallway ceiling badly positioned. [41] Ms Brown has provided no further expert evidence concerning alleged defects and it appears that apart from these two minor matters, all other defects have been resolved to the satisfaction of all the experts from both sides of this review. [42] Considering the passage of time and the limited and minor nature of the remaining defects, I am not satisfied the correct and preferable decision is to overturn the decision of the Commission made 2 September 2013. [43] The decision of the Commission dated 2 September 2013 is confirmed. [44] As Ms Brown has failed in her application to change the decision of the Commission under review, her application for costs is also dismissed. -- 6 of 6 --