Correnti v Queensland Building and Construction Commission [2014] QCAT 501

CITATION: Correnti v Queensland Building and Construction Commission [2014] QCAT 501 PARTIES: John Correnti t/as Correnti Homes Pty Ltd (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR282-13 MATTER TYPE: General administrative review matters HEARING DATE: 9 September 2014 HEARD AT: Brisbane DECISION OF: Member Browne DELIVERED ON: 8 October 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision made by the Queensland Building and Construction Commission on 24 July 2013 to direct John Correnti t/as Correnti Homes Pty Ltd to rectify the defective footing and slab system of the property at 1 Hakea Court, Plainland, Queensland is confirmed. CATCHWORDS: GENERAL ADMINISTRATIVE REVIEW – RECTIFICATION OF BUILDING WORK – where complaint lodged by home owner – where decision made to direct builder to rectify building work – whether work performed by builder is defective – whether discretion to issue a direction to rectify should be made Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 18, s 24 Taok v Queensland Building Services Authority [2013] QCAT 508, cited -- 1 of 13 -- 2 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Correnti, self-represented RESPONDENT: Mr Seefeld of counsel instructed by Holding Redlich Lawyers REASONS FOR DECISION [1] Mr Correnti has been a builder since 1981 and has built approximately 1,100 homes. He was engaged by owners of land at Lot 117 Hakea Court, Plainland, Queensland to build a low-set brick veneer house in about 2006 for the contract price of $169,340.00. The house at Lot 117 Hakea Court, Plainland (the property) was completed in about May 2007. [2] Mr Correnti was the builder responsible for building the property in accordance with the design prepared by FMG Koukourou Engineers. [3] The property was constructed on what is commonly referred to amongst professionals and trades in the building industry as a ‘waffle raft footing system’. [4] On 25 October 2012 and 26 October 2012, the Queensland Building and Construction Commission (QBCC) received complaints from the owners of the property about issues with the building work allegedly completed by Mr Correnti. The complaints identified issues, amongst others, relating to cracks in the ceiling and ‘new plasterwork cracks are reopening’.1 [5] The QBCC, after receiving the complaint and requesting further information, inspected the property on 17 December 2012 and prepared an inspection report dated 20 December 2012.2 The report prepared by Arnold Fisher, building inspector for the QBCC, identified issues in relation to alleged ‘cracking and movement’ in the walls and floor in certain parts of the property. [6] The QBCC obtained independent evidence from an engineer, Booth Engineers & Associates Pty Ltd, to report on the alleged movement and damage to the property. [7] After receiving information and making further enquiries, the QBCC determined on 24 July 2013 to issue a direction to rectify to Mr Correnti in relation to rectification of alleged defective work at the property.3 The direction to rectify refers to the design and construction of the footing and 1 Complaint form received 25 October 2012, material filed by the QBCC under s 21 of the Queensland Civil and Administrative Tribunal 2009 (Qld), p 79. 2 BSA Resolution Services subsidence report dated 17 December 2012, s 21 material, attachment marked ‘SOR-12’, p 224. 3 An earlier direction to rectify was issued to Mr Correnti by the QBCC on 15 May 2013 referred to as the ‘first direction to rectify’ in the s 21 material. The direction to rectify issued on 24 July 2014 is referred to as the ‘second direction to rectify’ in the s 21 material. -- 2 of 13 -- 3 slab system of the property as not being constructed in accordance with ‘the Building Code of Australia Volume 2 – 2006 P2.1 Structural Stability and Resistance to Actions (a), (b) and (c)’. [8] Mr Correnti exercised his rights under the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to review the decision made by the QBCC. The Tribunal on review has the same powers as the QBCC decision maker under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) in determining whether the discretion to issue a direction to rectify under s 72 should be exercised. [9] The Tribunal on review effectively stands in the shoes of the QBCC decision maker and must make the correct and preferable decision following a fresh hearing on the merits. [10] Mr Correnti seeks an order from the Tribunal that the decision made by the QBCC to issue a direction to rectify be set aside and that he not be directed to rectify the alleged defective work in relation to the footing and slab system. [11] The application proceeded to a hearing in Brisbane and Mr Correnti and the QBCC were given an opportunity to present evidence including expert evidence. Directions were made by the Tribunal, by consent, at the end of the hearing for the filing and exchange of written closing submissions.4 [12] Mr Correnti relies on his own evidence and the expert evidence of David Hardy, structural engineer, from Queensland Soil Testing. The QBCC rely on the evidence of Arnold Fisher, building inspector, and the expert evidence of Stephane Rebibou, civil engineer, from Booth Engineers & Associates Pty Ltd. [13] The expert witnesses, Mr Hardy and Mr Rebibou attended an experts' conclave prior to the hearing following a direction made by the Tribunal and a joint report was prepared dated 24 July 2014.5 The QBCC’s Power to Issue a Direction to Rectify [14] There is discretionary power under s 72 of the QBCC Act for the QBCC and the Tribunal on review to issue a direction to rectify to the person who has carried out defective or incomplete building work to rectify the building work. The meaning of ‘defective’ building work is as defined under Schedule 2 of the QBCC Act to mean ‘faulty or unsatisfactory’. [15] There are certain matters that the QBCC decision maker and the Tribunal on review can take into consideration in determining whether to issue a direction to rectify.6 Relevantly, s 72(14) of the QBCC Act provides that the 4 Directions made on 9 September 2014 required the QBCC to file and deliver written submissions by 15 September 2014 and Mr Correnti to file and deliver written submissions by 22 September 2014. 5 Exhibit marked ‘6’. 6 QBCC Act s 72(2). -- 3 of 13 -- 4 QBCC is not required to give a direction if it is satisfied that, in the circumstances, ‘it would be unfair to the person to give the direction'. [16] It was previously determined by the Tribunal in the decision of Taouk v Queensland Building Services Authority7 that the QBCC (formerly known as the QBSA) has responsibilities under the relevant legislation, the QBCC Act, to ‘ensure proper standards in the industry and rectification of building work’. The power to issue a direction to rectify is not for the ‘benefit’ of the homeowner but rather a ‘discharge’ of the QBCC’s responsibilities under the Act.8 [17] At the time the QBCC made the decision to direct Mr Correnti to rectify the alleged defective work, there was in place a policy applicable to rectification of building work.9 The QBCC policy identified as the Queensland Building Services Board Policy for rectification of building work made on 18 March 2004 refers to residential construction work that has ‘caused footing or slab movement as a result of’ amongst others, ‘location of proposed cut and fill’. There is a further QBCC policy relevant to ‘subsidence/settlement – responsibility for rectification’.10 The QBCC policies are for the purposes of s 10 of the QBCC Act legislative instruments that provide guidelines relevant to the QBCC’s exercise of discretion under s 72 in determining whether a direction to rectify should be issued. What was the building work performed by Mr Correnti? [18] It is non contentious that the design or plan for the property prepared by FMG Koukourou Engineers (the engineers) called for a cut and fill procedure. It is also accepted by the parties that the founding material for a waffle raft system is firm natural soil or piers that sit on top of uncontrolled fill - a waffle raft system must not sit on uncontrolled soil or fill unless piers support it. [19] Mr Correnti gave evidence at the hearing that prior to the slab being poured, as required by the design or plan, the natural soil was cut on the right hand side of the block and soil or natural fill was pushed to the left hand side of the block. Mr Correnti stated that piers were placed on top of the fill on the left hand side and rear perimeter of the slab. Mr Correnti was adamant in giving his evidence at the hearing that fill was not placed on the right hand side of the block and there was only natural or ‘virgin’ soil on the right hand side of the block after the cut and fill procedure. 7 [2013] QCAT 508. 8 Taouk v Queensland Building Services Authority, ibid, at [38]. 9 Queensland Building Services Board Policy, rectification of building work, s 21 material, p 30. 10 Section 21 material, p 503. -- 4 of 13 -- 5 [20] Mr Correnti also relies, in giving his evidence at the hearing, on ‘aerial photographs’ of the block that he states show the ‘unaltered terrain of the site’ before and after works were commenced.11 [21] Mr Correnti also gave evidence about a ‘blinding layer’ that he says was placed on top of the finished soil (after the cut and fill procedure). A blinding layer was described by Mr Correnti as a stabilising material in the form of sand or gravel that is placed on top of the soil (under the slab). Mr Correnti relies on the engineer’s design or plan that he says calls for a blinding layer to be placed (effectively) under the slab prior to the concrete being poured. [22] Mr Correnti was not present at the site when the cut and fill procedure took place. Mr Correnti was also not present at the site when the engineer inspected the site prior to the slab being poured and prior to the certificate of inspection dated 23 October 2006 being issued. Evidence of defective building work [23] Mr Correnti in giving his evidence describes the defects or damage to the property as ‘minimal’. [24] Mr Correnti gave evidence at the hearing about the damage to the property stating that it is attributable to the owner not taking steps to prevent water penetrating under the slab. Mr Correnti states that maintenance to the property should have been done to ensure the perimeter of the property deflects water away so no water permeates the blinding layer and the slab. Mr Correnti contends that any damage to the property is the result of water permeating the blinding layer and slab; and as a result of the water penetration there is ‘heave’ at the centre of the property. [25] Both expert witnesses, Mr Hardy and Mr Rebibou gave evidence at the hearing about the damage to the property being issues identified by the property owner in the complaints made to the QBCC. [26] Mr Hardy did not personally inspect the damage to the inside of the property. Mr Hardy relied on photographs taken by the QBCC contained in the inspection report prepared by Mr Fisher. Mr Hardy did however inspect the outside perimeter of the property and considered the results of soil test samples taken under the slab of the property prior to preparing his report and the joint experts’ report. [27] Mr Hardy gave evidence at the hearing that he had seen the photographs of the damage to the property contained in the QBCC inspection report and the report of Booth Engineers & Associates Pty Ltd dated 24 January 2013. Mr Hardy stated that some of the cracks would be within the 11 Written submissions filed by the applicant on 22 September 2014, para 2. -- 5 of 13 -- 6 guidelines of the Australian Standard that has a damage category system.12 [28] During cross-examination, Mr Hardy was questioned about the Australian Standard in relation to the categories of defects for the purposes of drawing the conclusion that the footing system is not performing. Mr Hardy stated that the engineer assessing the damage, for example Mr Rebibou, would look at obvious changes in floor levels. Mr Hardy stated that based on those findings as to whether damage falls within the particular categories under the Australian Standard it would be open to the engineer (Mr Rebibou) to reach a conclusion about the cause of any damage. [29] Mr Hardy was not conclusive in his evidence about the cause of the damage to the property stating in giving his evidence that he could only ‘speculate’. When questioned at the hearing about the cause of the damage to the property Mr Hardy stated that he would need to do further investigation like Mr Rebibou had done. Mr Hardy gave evidence at the hearing about the design of the footing system stating that it was his understanding that the design under the most recent Australian Standards may provide for additional requirements such as ‘ribs’ to be installed. Mr Hardy did not state however in giving his evidence the extent to which the design of the footing system may or may not have contributed to the damage to the property. Mr Hardy stated that moisture is the main cause of movement and he did observe ‘free moisture’ on site so he would, as stated by him at the hearing, ‘put that forward’. Mr Hardy also stated that he was not engaged to investigate possible causes of damage and that Mr Rebibou had done a more thorough investigation. [30] Mr Rebibou did inspect the inside and outside of the property. Mr Rebibou gave evidence at the hearing about the cracks to the walls and floor of the property. Mr Rebibou also gave evidence at the hearing and in his report dated 11 March 2013 about the design of the footing and slab system.13 [31] Mr Rebibou in his report dated 11 March 2013 states that the footing and slab system that has been designed for the property is ‘generally in accordance with Figure 3.4 of AS2870 – Standard Designs’. [32] Mr Rebibou in his report dated 24 January 2013 took photographs and prepared an assessment of the levels and contour plan to identity data classification for the damage to the walls and floors. The various photographs taken and included in the report show gaps and cracks in parts of the ceiling and the brickwork. Mr Rebibou determined in his report dated 24 January 2013 that there has been movement and damage to the property and states that an ‘assessment of the levels and contour plan’ identified data relevant to the classification of damage to the walls and floor. 12 Exhibit marked ‘7’, AS 2870-1996, Appendix C. 13 Exhibit marked ‘11’, para 6.00. -- 6 of 13 -- 7 [33] Mr Rebibou classified the damage to walls as ‘Category 2 to 3, cracks and gaps varying from 1 to 15mm in width’. In relation to the floor, Mr Rebibou reported the damage as ‘Category 2 to 3, slab noticeably curved or changed in level’. Mr Rebibou states: In this case, the local deviation of slope [for the floor] exceeds the allowable acceptable performance criteria as required pursuant AS 2870 and some Category 2 to 3 defects were also identified.14 [34] In the report dated 24 January 2013 Mr Rebibou concludes that the footing and slab system and movement as being a relevant issue to the ‘expected performance and functional use of the building’. The report states: In summary, the footing and slab system and movements that have occurred adversely affect the structural adequacy and serviceability of the building and the expected performance and functional use of the building when compared to the performance criteria for footings and slabs pursuant to AS2870.15 [35] Arnold Fisher for the QBCC also inspected the damage to property. In the report dated 20 December 2012, Mr Fisher made findings in relation to the damage to the property, in particular cracking and movement consistent with the findings made by Mr Rebibou that there was evidence of movement and damage. Mr Fisher states in his report: Due to the cracking and movement and the slope value recorded, it was deemed necessary to engage an independent engineer to investigate and report on the noted movement and damage to the dwelling and recommend remedial rectification advice.16 [36] The Tribunal is satisfied based on the evidence of Mr Rebibou that there is evidence of damage to the property and the likely cause of the damage is subsidence or movement resulting from the footing and slab system not complying with the relevant Australian Standard AS2870-1996. Is there evidence of ‘fill’ from soil test samples taken? [37] After the complaint was made to the QBCC by the owners various inspections were undertaken by Booth Engineers through external consultants Geotest Engineering; and by Queensland Soil Testing. The investigations included excavations around the property to enable soil samples to be taken from under the slab. This was necessary to determine the cause of the damage to the property, in particular whether there was presence of uncontrolled fill under the slab (in the absence of piers). [38] Mr Correnti in giving his evidence does not accept that the soil samples taken were adequate in that there was uncertainty about where the 14 Exhibit marked ‘11’, report dated 24 January 2013, p 3. 15 Exhibit marked ‘11’, p 7. 16 Exhibit marked ‘8’, s 21 material, p 225, investigation report dated 17 December 2012. -- 7 of 13 -- 8 excavation pits were located and whether the soil samples were in fact samples taken from under the block. [39] Mr Correnti was given an opportunity at the hearing to cross examine the expert witnesses Mr Hardy and Mr Rebibou in relation to the location of soil test samples taken at the property. Mr Hardy stated at the hearing that the test pit samples referenced in his report dated 4 April 2014 were taken by a technician and the location of the pits were referenced in the report dated 4 April 2014. The pits referenced are depicted as being excavations from the under the slab of the property. The report states: The depth of fill material detected in all three pits is indicated on the attached drawing number ‘SK1’ with the footing cross-sections being provided on drawing “SK2”. A summary of the findings has been provided below….17 [40] The soil test samples taken by Geotest Engineering Services Pty Ltd that Mr Rebibou relied upon in preparing his report were also taken from under the slab. [41] Mr Rebibou produced at the hearing a copy of his instructions to Geotest Engineering Services Pty Ltd in relation to soil test samples. The instructions sent by Booth Engineering to Geotest Engineering identify 3 excavation sites at the property on the right hand side, far back right hand side and far back left hand side. There is a map depicted on the instructions to show the areas where excavation and samples should be taken. The instructions state: We require a soil test report for the following work for the BSA investigation: All soil tests require three (3) boreholes, moisture contents at 500mm intervals over 1500mm, D.C.P’s if fill or soft material encountered and Estimate of footing depths/part footing excavations.18 [42] I am satisfied that the testing conducted by Geotech relied upon by Mr Rebibou and the test samples taken by Queensland Soil Testing relied upon by Mr Hardy are test samples as referenced in their respective reports taken from under the slab of the property. I am satisfied that the test samples of soil taken by Geotech and Queensland Soil Testing were not corrupted by other material that was also present around the perimeter of the property, as contended by Mr Correnti. What is the cause of the damage to the property? [43] It is non contentious that there was moisture present around the perimeter of the property during some of the inspections and this was the result of owner maintenance in that the owner had failed to properly maintain the property necessary to prevent water entry. Mr Correnti contends that because of the owner’s failure to properly maintain the property, water has as stated by him: ‘gotten under the house and this is creating “heave” because water is getting under the house’. 17 Exhibit marked ‘5’, p 1. 18 Exhibit marked ‘14’. -- 8 of 13 -- 9 [44] I have considered the submissions made and the evidence given by Mr Correnti and his expert witness Mr Hardy in relation to the damage to the property and the possible causes of the damage to the property. I prefer the expert evidence of Mr Rebibou. Mr Hardy stated that he did observe ‘free moisture’ on site but conceded when giving his evidence at the hearing that Mr Rebibou had conducted a more thorough investigation and he could only ‘speculate’ as to possible cause or causes of the damage to the property. [45] I found Mr Rebibou to be reliable in giving his evidence. For example, when questioned at the hearing about the damage to the property Mr Rebibou did not exaggerate the extent of the damage stating that the defects are not affecting the overall function of the building in that the owners can continue to reside in the property. Mr Rebibou did state however that there is evidence of damage to the property that is the result of stressors or forces that satisfy the definition of defects under the Australian Standard. [46] I accept the evidence of Mr Rebibou in relation to the damage to the property that includes the results of investigations carried out by Booth Engineering and Geotest. Mr Rebibou in giving his evidence at the hearing stated that there is a combination of a number of defects including the curvature of the floor that led him to draw the conclusion that the footing system is not performing to the Australian Standard AS 2870-1996. Mr Rebibou states in his report dated 11 March 2013: In summary, the footing and slab system and movements that have occurred adversely affect the structural adequacy and serviceability of the building and the expected performance and functional use of the building when compared to the performance criteria for footings and slabs pursuant to AS2870.19 [47] Mr Rebibou also considered the results of the soil testing and determined that ‘fill is indeed present under the footing system across the entire building platform and this has now been confirmed by both Geotest in 2013 and QST in 2014’.20 [48] Mr Rebibou determined in his report dated 30 May 2014 that there is ‘some fill settlement [sic] taking place towards the right of the building’. At the hearing, Mr Rebibou stated that the fill settlement to the right hand side of the building is sinking and this is effectively causing the damage to the property. When questioned at the hearing about the cause of the damage Mr Rebibou stated that he considered the results that show where the damage is occurring. Mr Rebibou stated at the hearing: ‘when you look at where the damage is occurring and combine it with where the sharpest amount of movement occurring coincides with [sic] where there is evidence of fill and no piers”. 19 Exhibit marked ‘11’, p 7. 20 Exhibit marked ‘12’, p 4. -- 9 of 13 -- 10 [49] The evidence of fill being present under the right hand side of the slab of the property was also considered by Mr Hardy. Mr Hardy attended an experts’ conclave with Mr Rebibou and prepared a joint report. Mr Hardy and Mr Rebibou determined in the joint report that the fill present at the site was not a ‘blinding layer’. The joint experts’ report dated 24 July 2014 states: 1. Both experts agree that the original soil test did not identify any fill on the subject property. 2. Both experts agree that some fill is currently on the site varying from 700mm – 1m towards the left of the building and 250mm – 300mm towards the right of the building [as viewed from the street]. 3. Both experts agree that there is some fill material under the footing on the right side of the building varying from 50mm – 120mm and that this does not appear to be a blinding layer [a thin layer of non reactive material, typically sand / fine gravel used to fill voids and prepare a more uniform base for the foundations]. 4. Both experts agree that there has been potentially some fill settlement along the right hand side of the building, although some heave [upwards movement] also may have affected the footing system. David Hardy believes with hindsight in design based on current practices that there is a potential for lack of stiffness through the entry/BR1 area resulting in reduced effectiveness of the raft system. Stephane Rebibou believes that the original design is based on “H” site classification which would cater for up to 70mm of characteristic surface movement (YS) and recent testing shows YS for the site to be only 55mm. 5. Both experts agree that it is common building practice for fill to be either compacted (certified) or for the footing system to be piered through the fill. [50] I accept the expert evidence of Mr Rebibou supported by Mr Hardy that there is evidence of fill under the right hand side of the property that is not a blinding layer. I accept the evidence of Mr Rebibou that there has been settlement of the fill and this has caused the slab or footing system to sink resulting in damage to the property such as cracks and gaps to the walls and floor of the property. Should Mr Correnti be directed to rectify the defective footing and slab system? [51] The Tribunal on review in determining whether to exercise the discretion to direct Mr Correnti to rectify must take into consideration all of the relevant circumstances and whether for the purposes of s 72(14) of the QBCC Act it would be ‘unfair’ to give Mr Correnti the direction. [52] Mr Correnti contends that the building work was performed by him as required by the engineering design. Mr Correnti denies putting fill under the footing system (on the right hand side) and relies on the engineer’s certificate of inspection dated 23 October 2006.21 Mr Correnti also 21 Exhibit marked ‘1’, attachment marked ‘RSOR12’. -- 10 of 13 -- 11 contends that if there were any fill present (that he denies) the engineer would not have issued the approval after inspecting the site. [53] The certificate of inspection relied upon by Mr Correnti was prepared by FMG Koukourou Engineers and provides that there are ‘no significant changes to the site works from the design’ as being noted.22 The certificate states: The piers and waffle slab for the proposed residence were inspected prior to the pouring of concrete on the above date. Approval was given for the piers & slab to be poured subject to any site instructions issued. This inspection was carried out to verify the structural compliance of the pier & slab with the approved plans at the time of inspection and in accordance with the relevant codes. It does not relate to particular architectural details such as squareness, building dimensions, or sitting in relation to boundaries. No significant changes to the site works from the design were noted at the time of the inspection, therefore the site classification should be consistent with the design information. [54] It is open to the Tribunal to draw the reasonable inference having accepted the expert evidence of Mr Rebibou that the engineer’s approval was subject to any site changes and this would include the addition of ‘fill’. Mr Rebibou in giving his evidence at the hearing stated that during an inspection of the footing system by the engineer it would be difficult to distinguish fill, if in fact it was present, on the basis that, as stated by Mr Rebibou, ‘it is a bare site [and there is] dirt everywhere’. [55] The Tribunal has considered the ‘aerial photographs’ of the site relied upon by Mr Correnti. The Tribunal is not satisfied having accepted the evidence of Mr Rebibou that the photographs of the site are proof that there was no fill ‘brought to the site’ as contended by Mr Correnti. The Tribunal has made findings in relation to the presence of fill under the slab and accepts the evidence of Rebibou that the site would be a ‘bare site’ at the time of inspection by the engineer. [56] The Tribunal has also considered the Queensland Building Services Board policies applicable to the exercise of the discretion under s 72 of the QBCC Act in determining whether a direction to rectify should be made. The rectification policy dated 18 March 2004 refers to category 1 defective building work that has been carried out by a contractor that includes a failure to comply with requirements of the footing design or failing to construct the footing or slab system in accordance with ‘all relevant Australian Standards, including AS2870’.23 [57] The Queensland Building Services Board policy effective from 30 June 2000 also provides that a contractor will ‘usually not be held responsible for the subsidence or settlement of a building where’ the contractor has 22 Ibid. 23 Section 21 material, p 33. -- 11 of 13 -- 12 taken ‘reasonable care’, including constructing the footings and slab of the building ‘in accordance with the design’ prepared by the engineer.24 [58] There is evidence before the Tribunal of damage to the property that is as opined by Mr Rebibou the result of the footing and slab system not performing in accordance with the Australian Standard AS 2870-1996. [59] The damage to the property including cracks and gaps in the walls and floor observed by Mr Rebibou and Mr Fisher are as stated by Mr Rebibou in his expert opinion occurring predominately to the right hand side of the property. There is also evidence before the Tribunal that there is the presence of uncontrolled fill that is not a blinding layer under the right hand side of the slab of the property. Mr Correnti does not dispute that he is the builder responsible for the cut and fill procedure and that he was not present when the works took place at the site and was not present when the site was inspected by the engineer. [60] The Tribunal has made findings in relation to the cause of damage to the property having accepted the expert evidence of Mr Rebibou. I am satisfied that there is evidence of fill material under the right hand side of the slab of the property that is not a blinding layer and that the uncontrolled fill has settled causing movement resulting in damage to the property. [61] The Tribunal is satisfied that the footing and slab system of the property is building work that is defective because it does not comply with the relevant Australian Standard AS870-1996; and that the defective building work has caused damage to the property such as cracks and gaps to the walls and floor of the property. [62] I do not accept that the owner’s failure to maintain the property in relation to preventing water from penetrating the slab has caused the damage to the property. The Tribunal has made findings in relation to Mr Hardy’s evidence. Mr Hardy on his own admission was unable to give an explanation that was otherwise based on speculation as to the cause of the damage including the extent to which any moisture penetration resulting from owner maintenance may have contributed to the damage to the property. I am also satisfied having accepted the evidence of Mr Rebibou that the design of the footing system is generally in accordance with the Australian Standard and notwithstanding there is no cogent evidence before me that the damage to the property was caused by any defect in the design of the footing system that was prepared by FMG Koukourou Engineers. [63] The Tribunal has considered all of the evidence including Mr Correnti’s evidence that he did no put fill under the slab of the property (on the right hand side). Notwithstanding Mr Correnti’s evidence about the fill issue, there is evidence before the Tribunal that there is fill present under the right hand side of the slab and that the fill is not a blinding layer. There is 24 Ibid, p 503. -- 12 of 13 -- 13 also evidence before the Tribunal reflected in the reports prepared by Booth Engineering that the damage to the property such as cracks and gaps to the walls and floor depicts the ‘sharpest amount’ of movement as occurring in the far right hand side of the property. Mr Rebibou gave evidence that the movement evident by the damage occurring in the far right hand side coincides with the location of fill that has been tested as uncontrolled fill that is not a blinding layer. [64] The Tribunal accepts that Mr Correnti may feel aggrieved by the evidence and findings made by the Tribunal on the basis that he, as contended, did not put fill under the slab on the right hand side of the property. Mr Correnti was not, however, present at the time the works were undertaken at the property, in particular when the cut and fill procedure took place. The Tribunal has also considered Mr Correnti’s contention that he has relied upon the engineer’s certificate in relation to an inspection that took place on or about 23 October 2006. Again, Mr Correnti was not present at the time the engineer inspected the footing system. The Tribunal has notwithstanding accepted the evidence of Mr Rebibou that it would not be easily identified during an inspection by the engineer at the site that there were changes to the site such as the addition of fill on the right hand side of the property because the foundation material would effectively all look the same. [65] I am satisfied that a direction to rectify should issue to Mr Correnti as the builder responsible for construction of the footing and slab system. I am satisfied based on all of the evidence before me including the evidence of Mr Correnti that the correct and preferable decision is to direct Mr Correnti to rectify the defective work identified in the decision made by the QBCC dated 24 July 2013. -- 13 of 13 --