Bowen Village Caravan and Tourist Park v Nature Creek Finishes [2013] QCAT 569

CITATION: Bowen Village Caravan and Tourist Park v Nature Creek Finishes [2013] QCAT 569 PARTIES: Russell Cook T/as Bowen Village Caravan and Tourist Park (Applicant) v John Grayson Paterson T/as Nature Creek Finishes (Respondent) APPLICATION NUMBER: BDL232-11 MATTER TYPE: Building matters HEARING DATE: 18 October 2013 HEARD AT: Townsville DECISION OF: John Carey, Member DELIVERED ON: 29 October 2013 DELIVERED AT: Townsville ORDERS MADE: 1. Application is dismissed. 2. No order as to costs. CATCHWORDS : Building matters - direction to rectify - whether defects established APPEARANCES and REPRESENTATION (if any): APPLICANT : Self RESPONDENT: Self REASONS FOR DECISION [1] The Applicant seeks orders for rectification of numerous alleged defects in respect of the construction of a swimming pool between December 2009 and February 2010. [2] A complaint was made to the Queensland Building Services Authority (“BSA”). The BSA undertook an inspection and issued a report. That report has been provided to the Tribunal. [3] BSA distinguishes between category 1 and category 2 defects. Category 2 defects do not require rectification. -- 1 of 2 -- -2- [4] The Respondent says that category 1 defects have been rectified. The Applicant said he was not sure what they were but seeks rectification of items listed at attachment 4 to his explanatory document handed up at the hearing. [5] The BSA report identifies that the time for ordering rectification of category 2 defects expired in October or November 2010. [6] The Applicant gave evidence on his own behalf and asserted that these matters are defects and should be rectified. The Applicant did not produce any independent third party evidence to that effect but relied on his own experience and observations. [7] The Respondent asserts that items in dispute are not defects and items installed were installed in accordance with the manufacturer’s specifications. [8] The application only sought an order for rectification, however at the hearing the Applicant verbally claimed monetary compensation. [9] The Applicant has not satisfied the Tribunal that, on the balance of probabilities, the items complained of are defects that should be the subject of a rectification order. [10] Although the Tribunal has power to direct rectification that is not appropriate in this instance for the following reasons: a) an independent third party (the BSA) asserts that the defects are category 2 defects that do not require rectification. The time for directing rectifications of category 2 defects has expired; b) no independent third party evidence has been adduced by the Applicant to support its case; c) it would not be reasonable to order rectification and unfair on the Respondent because: i) an inspection has been carried out previously by BSA; ii) the works were completed in 2010; iii) the absence of independent evidence of defective work. [11] The Applicant did adduce some evidence of rectification costs. Due to the findings above, no compensation is payable by the Respondent. Directions 1) The Application is dismissed. 2) No order as to costs. -- 2 of 2 --