Andrews v Mirvac QLD Pty Ltd [2013] QCAT 456

CITATION: Andrews v Mirvac QLD Pty Ltd [2013] QCAT 456 PARTIES: Mr Graham Andrews (Applicant) v Mirvac QLD Pty Ltd (Respondent) APPLICATION NUMBER: BDL064-13 MATTER TYPE: Building matters HEARING DATE: 26 August 2013 HEARD AT: Brisbane DECISION OF: Joanne Browne, Member DELIVERED ON: 3 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application filed by Mr Andrews is dismissed. CATCHWORDS: BUILDING DISPUTE – order for rectification of alleged defective work – where contract to purchase residential unit – where vendor is developer – where unit is not a detached dwelling – where Tribunal has no jurisdiction Domestic Building Contracts Act 2000 s 8, Schedule 2 Queensland Building Services Authority Act 1991 s 77, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 ss 4, 10, 11, 47 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Andrews, in person RESPONDENT: Mirvac QLD Pty Ltd represented by Mr John Harvey, foreman of Mirvac QLD Pty Ltd -- 1 of 5 -- 2 REASONS FOR DECISION [1] In June 2012 Mr Andrews became the registered owner of a residential unit located on the 8th floor of a newly developed unit complex at 27 Cunningham Street, Newstead. [2] The construction of the residential unit was mostly completed at the time Mr Andrews signed a contract to purchase it with the developer and vendor, Mirvac. [3] Prior to settlement a building inspection took place and Mr Andrews raised concerns, with Mirvac, about the height of the threshold or “hobb” positioned in front of the sliding doors leading out to the patio. [4] Notwithstanding the concerns raised by Mr Andrews about the height of the threshold or hobb, settlement took place and Mr Andrews moved into the residential unit. Earlier this year, Mr Andrews purchased a second residential unit in the same complex. [5] Mr Andrews’ contends that it is necessary to “step over” the threshold or hobb positioned in front of the sliding doors in order to enter the balcony when walking, from the inside of the unit, to the outside balcony. He argues that the threshold or hobb is too high and it is therefore a safety risk to the elderly and children. [6] Mirvac responded to Mr Andrews’ concerns raised by him in May 2012 about the height of the threshold or hobb and arranged for the building certifier who was responsible for granting the certificate of classification for the building to carry out an inspection. The building certifier confirmed that there was “compliance”.1 [7] Mr Andrews made a complaint about the height of the threshold or hobb with the Queensland Building Services Authority (QBSA) and following an inspection at the residential unit a report was prepared by the QBSA. The report states: BSA considered the hop [sic] height opening to the patios is compliant with BCA 2011 Volume 1 Part D2 Construction of exits – Section D2.15 Thresholds in that the masonry sill down to the external balcony floor does not exceed 190 mm. Inspection revealed no defective building practice by the licensee; therefore BSA is unable to provide further assistance with the resolution of this particular matter.2 [8] Mirvac also engaged independent building certifiers, Building Certification Consultants Pty Ltd, to inspect the threshold or hobb in October 2012. A report was prepared by the building certifiers outlining the relevant extracts from the Building Code of Australia (the Code) that applied to the “threshold of a doorway” at the time the residential complex was constructed: 1 Exhibit “3”, statement of Adam Moore dated 2 August 2013, at [8]. 2 Ibid, attachment marked “4”, BSA resolution services report dated 17 August 2012. -- 2 of 5 -- 3 D2.15 Thresholds … NSW D2.15(c), (d) (c) in other cases – (i) the doorway opens to a road or open space, external stair landing or external balcony; and (ii) the door sill is not more than 190 mm above the finished surface of the ground, balcony, or the like, to which the doorway opens.3 [9] Mr Andrews later issued proceedings in this Tribunal having filed an application on 14 March 2014 for domestic building disputes under the Queensland Building Services Authority Act 1991 (QBSAA). Mr Andrews seeks an order that Mirvac be directed to rectify the threshold or hobb on the basis that it is a safety risk and it otherwise does not comply with the Code. [10] The parties were invited to make submissions, at the hearing, in relation to whether the Tribunal had jurisdiction to determine the matter. Notwithstanding the issue of jurisdiction, the parties agreed that they would like the matter to proceed and that a decision be made about the issue in dispute. [11] The issue in dispute concerns the interpretation of the Code that applies to the height of a threshold or hobb. The relevant section of the Code is D2.15 - it refers to the “door sill” not being more than 190 mm “above the finished surface of the ground, balcony, or the like, to which the doorway opens”. [12] The issue in contention is the interpretation of that section of the Code and whether the height of the threshold or hobb is to be measured from the inside (of the residential unit) or from the outside (from the surface of the ground of the balcony). [13] It is agreed that the height of the threshold or hobb when measured from the inside of the unit is a height of 230 mm. The height of the threshold or hobb measuring from the outside balcony (from ground level) is 190 mm. [14] Mr Andrews argues that the height of the threshold or hobb does not comply with the Code on the basis that the height of the threshold or hobb when measured from the inside of the residential unit is 230 mm. [15] Mirvac contend that the height of the threshold or hobb does comply with the Code on the basis that the height when measured from the outside (from the balcony) is 190 mm. [16] Mr Andrews is not satisfied with the finding made by the BSA and the building certifiers on behalf of Mirvac that the height of the threshold or hobb complies with the Code. He made submissions at the hearing that “common sense should prevail” in that Mirvac should “understand and correct the problem”. 3 Ibid, attachment marked “6”, report of Building Certification Consultants Pty Ltd. -- 3 of 5 -- 4 [17] Mr Andrews has obtained independent evidence about work for the “removal, lowering and repairing [of] two OXXX sliding doors”.4 Mirvac have raised concerns about the proposed method of “removal” and “lowering” of the height of the threshold or hobb on the basis that if the hobb is removed “water could ingress to [Mr Andrews’] apartment and apartments below”.5 Jurisdiction [18] Section 77 of the QBSAA confers original jurisdiction on the Tribunal to decide a “building dispute”.6 That means a person involved in a “building dispute” may apply to the Tribunal and the Tribunal, in resolving the dispute, may exercise certain powers as provided under s 77. [19] A “building dispute” is defined under Schedule 2 of the BSAA as “a domestic building dispute”. A “domestic building dispute” means: (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work. [20] The meaning of “reviewable domestic work” is contained in s 8 of the Domestic Building Contracts Act 2000 (DBCA) as “the erection or construction of a detached dwelling; the renovation, alteration, extension, improvement or repair of a home; removal or resiting work for a detached dwelling”. [21] The contractual relationship, as it then existed between Mr Andrews and Mirvac, was that of a purchaser and vendor. Mirvac was and is a developer of the complex consisting of over a hundred residential units. Mirvac may, for the purposes of the QBSAA, be a building contractor. [22] The residential unit purchased by Mr Andrews (from Mirvac) is not, however, a “detached dwelling” for the purposes of the DBCA. The application is, with respect, misconceived. The Tribunal does not, for the purposes of exercising its power to resolve a building dispute under s 77 of the QBSAA, have jurisdiction. [23] In keeping with the objects of the Queensland Civil and Administrative Tribunal Act 2009, to “deal with matters in a way that is accessible, fair, just, economical, informal and quick”,7 the Tribunal identified the issue of jurisdiction at the commencement of the hearing. The parties were also given an opportunity to identify and clarify the issues in disputes. [24] The Tribunal, having determined that it has no jurisdiction in respect of these proceedings, has no power to make final orders and to make findings about the issues in dispute. 4 Exhibit “1”, attachment marked “I”, email from Hennessey Glass dated 14 July 2013. 5 Exhibit “3”, statement of Adam Moore dated 2 August 2013, at [14]. 6 Queensland Civil and Administrative Tribunal Act 2009 s 10. 7 Ibid s 4. -- 4 of 5 -- 5 [25] To encourage the early and economical resolution of the matter between the parties,8 the Tribunal has set out, in these reasons, the relevant issues in dispute and the assertions made by the respective parties. 8 Ibid s 4. -- 5 of 5 --