Fenfox Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 664

CITATION: Fenfox Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 664 PARTIES: Fenfox Pty Ltd ACN 058 182 684 (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR160-13 MATTER TYPE: General administrative review matters HEARING DATE: 18 June 2014 HEARD AT: Brisbane DECISION OF: Member A Fitzpatrick DELIVERED ON: 18 December 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Respondent, Queensland Building and Construction Commission, dated 12 April 2013 to direct rectification of building work is confirmed. CATCHWORDS: Direction to rectify – whether unfair – rectification partially completed – whether owners prevented completion of rectification. Queensland Civil and Administrative Tribunal Act 2009 s 24(1) Queensland Building and Construction Commission Act 2009 s 72 Fontain v QBSA [2004] QCCTB 163 Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127 APPEARANCES and REPRESENTATION (if any): APPLICANT: Fenfox Pty Ltd ACN 058 182 684 represented -- 1 of 5 -- 2 by Mr Robert Fennelly, Director RESPONDENT: Queensland Building Construction Commission represented by Ms C Farthing, in house solicitor with the Respondent’s legal division. REASONS FOR DECISION Background [1] The Applicant, Fenfox Pty Ltd is a construction company. It was represented at the hearing by its Director, Mr Robert Fennelly. Mr Fennelly is a licensed builder. [2] On 12 December, 2006, Fenfox entered into a residential building contract with Mr and Mrs Davis to build a new residential dwelling at Lot 3, 161 Woodford Road, Alton Downs in Queensland. The final building certification, subject to termite inspection was issued on 13 May, 2007. [3] On 5 November, 2012 the Queensland Building and Construction Commission (QBCC) received a complaint from Mr and Mrs Davis in relation to the building work. [4] The QBCC conducted an inspection of the building work and issued a direction to rectify and/or complete to Fenfox on 12 April, 2013, pursuant to section 72(1) of the Queensland Building and Construction Commission Act 1991 (QBCC Act). [5] Mr Fennelly had undertaken some rectification work prior to the direction to rectify being made. On 14 May, 2013 Fenfox lodged an application to review the direction to rectify. Nevertheless Mr Fennelly subsequently attended at the property and completed some of the required rectification work. His last visit to the property was on 13 and 14 March, 2014. He submits that the building work was not defective, but that he agreed to rectification work as a matter of good faith. [6] Under section 24(1) of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal may confirm or amend the decision to direct rectification, may set aside the decision and substitute its own decision; or set aside the decision and return the matter for re-consideration to the decision-maker. Works to be rectified [7] The work required to be rectified related to: (a) inadequate corrosion protection of steel support columns under the dwelling; (b) the columns being in contact with the soil causing corrosion; and (c) two air conditioner condensate waste drains not being piped to a suitable outfall. -- 2 of 5 -- 3 Work performed to date [8] It is not disputed that Mr Fennelly has satisfactorily rectified all the internal steel support columns under the dwelling. He has not rectified the external face of the perimeter support columns. Mr Fennelly has rectified one outlet for the air conditioner waste drains running from the bedroom. [9] At the hearing Mr Fennelly agreed that he would rectify the other air conditioner waste drain from the lounge room. He engaged in a discussion with the building inspector, Mr George Wright during the hearing. Mr Fennelly asked where he should take the pipe. Mr Wright said that it should be run out into the yard, trenched and fed into a pit away from the building. [10] I have treated Mr Fennelly’s agreement to rectify the air conditioner waste drain by running it away from the building as an acknowledgement that he no longer seeks a review of the decision to direct Fenfox to rectify that item of work. Is the building work defective? [11] Despite conducting rectification work, Mr Fennelly maintains that the Applicant’s building work was not defective. [12] Defective is defined in the QBCC Act as ‘faulty or unsatisfactory’. [13] Mr Fennelly points to the structural design certificate issued by Sam McKee of McKee Consulting Civil Engineers, dated 30 September, 2006 and the Certificate of Inspection given in relation to adequacy and compliance with design of footings, dated 7 December, 2006, by Mr I McMurtrie of McMurtrie Consulting Engineers. [14] Mr Fennelly says that the steel columns were appropriately galvanized and that when he completed his work, the columns had a concrete casing so that the columns were not in contact with the ground. Mr Fennelly acknowledges that after this work was done he was required by the owner to spread granite over the under part of the house. He did so and says that no granite was in contact with the columns. [15] Mr Fennelly maintains that any water affecting the columns is as a result of work done by the owners after construction was completed, including watering of garden beds adjacent to the house, placement of gravel by the owner up against the columns, and construction of a garage above ground level on the downward slope together with other alterations to the ground level. [16] Mr Wright’s evidence is that once gravel was placed on the ground surrounding the columns the ground level was altered. He said that the granite layer became the ground level and Fenfox had to build to that level by raising the footings. He said that the concrete casing around the columns did not finish, not less than 100mm above finished ground level, -- 3 of 5 -- 4 as required by the Building Code of Australia. Mr Wright’s view is that regardless of the garden beds adjacent to the columns, the columns were in any event in contact with the finished ground level and not protected against corrosion, because they were not encased in concrete finishing at least 100mm above the finished ground level. [17] I accept Mr Wright’s evidence and find that the building work was defective. [18] I find that Fenfox did not ensure the concrete casing on the columns finished at least 100mm above the finished ground level once the granite gravel had been spread around the columns and that the columns are not protected against corrosion. For that reason, subject to any unfairness which may be demonstrated, I find that it is reasonable that Fenfox rectify its work. To the extent that the owners’ actions have caused or contributed to rusting of the columns that will ultimately be a matter for them. Impediments to rectification and unfairness [19] Fenfox has undertaken rectification work and at the hearing indicated it was prepared to finish the rectification work, except for the cost and risk associated with finalizing the work. [20] Mr Fennelly said that the owner constructed horizontal battens around the perimeter of the house adjacent to the columns. He said that it would be necessary to remove 2 rows of battens and to remove a concrete lip from garden beds, together with landscaping adjacent to the columns in order to access one of the four sides of each of the columns around the perimeter. He was not willing to do so because the battens had not been constructed by him and he was concerned about complaints of damage from the owners. [21] Mr Fennelly also alleges that by the owner failing to remove the battens and concrete lip, he has been denied access to the site in order to perform rectification work. [22] Section 72(14) of the QBCC Act provides that the QBCC is not required to give a direction for rectification of building work, if in the circumstances it would be unfair to the person who carried out the building work. That discretion must be exercised in accordance with the objects of the QBCC Act which include ensuring maintenance of proper standard in the industry. [23] The evidence of Mr Wright was that access to the external perimeter battens could now be achieved through a gate the owner had made through the battens. He said that if the work had been performed properly in the first place, Mr Fennelly would not have been put to the cost of removing the battens and the concrete lip and landscaping. Mr Wright maintains that it is Fenfox’s responsibility to remove the battens and concrete lip and landscaping in order to complete the rectification work. -- 4 of 5 -- 5 [24] I accept that evidence and I accept the submissions of the QBCC that it is the builder’s responsibility to ensure the building work complies with the Building Code of Australia. Further, that despite appropriate certificates having been given by other professionals, ultimate responsibility for defective work lies with the builder.1 [25] I also accept the QBCC’s submissions that health and safety considerations arising by virtue of corrosion of the structural steel support columns of the building, the maintenance of proper standards in the industry and the interests of the owners and any subsequent owners - outweigh any unfairness asserted by Fenfox. [26] For these reasons together with Mr Fennelly’s concession at the hearing in relation to the air conditioning waste pipes and the significant work already done by Fenfox, I consider that in all the circumstances it is not unreasonable for Fenfox to complete the rectification work which was directed and for it to remove and re-instate battens and landscaping, as necessary, in the process. [27] Upon review, it is my decision that the direction to rectify is confirmed. 1 Fontain v QBSA [2004] QCCTB 163; Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127. -- 5 of 5 --