Ball v Queensland Building Services Authority & Ors [2013] QCAT 459

CITATION: Ball v Queensland Building Services Authority & Ors [2013] QCAT 459 PARTIES: Keith Lesley Ball (Applicant) v Queensland Building Services Authority – (First Respondent) Vafote Pty Ltd as Trustee (Second Respondent) Blue Waters International Pty Ltd (Third Respondent) APPLICATION NUMBER: GAR339-11 MATTER TYPE: General administrative review matters HEARING DATE: 6, 7 & 18 June HEARD AT: Hervey Bay & Brisbane DECISION OF: B.A. Cotterell, Sessional Member DELIVERED ON: 13 August 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Direction to Rectify 36873 of is withdrawn on the basis that the work has been completed. 2. The Tribunal sets aside the Authority’s decision of 4 October 2012 to issue Mr Ball with 15 Directions to Rectify. CATCHWORDS : GENERAL ADMINISTRATIVE REVIEW – review of Queensland Building Services Authority decision to issue 15 directions to rectify –where evidence that construction inadequate – where certification and engineering certificates obtained by builder – function of Certifier – whether building work defective GENERAL ADMINISTRATIVE REVIEW – review of Queensland Building Services Authority decision to issue 15 directions to rectify – where the principal knew that the way the work was to be carried out, and the materials to be used, was likely to result in the work being -- 1 of 21 -- 2 defective - whether unfair to the builder to give the direction – where the amount payable but unpaid under the contract for carrying out the building work sufficient to complete the work Building Act 1975 ss 10,12,14 & 30 Queensland Building Services Authority Act 1991 ss 71A & 72 sub-ss. 72(5)(g) & 14 applied. Building Code of Australia F1.7, F1.11, FP1.4, FP1.6 & FP1.7 considered McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QSA 380, 23 December 2010 applied. APPEARANCES and REPRESENTATION (if any): APPLICANT: Keith Lesley Ball represented by Mr J Ebert of Finemore Walters & Story FIRST RESPONDENT: Queensland Building Services Authority represented by Mr R Lovrincevic, Solicitor SECOND & THIRD RESPONDENT: Mr P. Maher REASONS FOR DECISION The Evidence [1] The parties filed statements before the hearing and notified the Tribunal and the other parties of the witnesses required for cross-examination at the hearing, which took place in Hervey Bay on 6 and 7 June 2013 and by telephone conference from Brisbane on 18 June 2013. [2] At the hearing, Mr Ball and Mr Doug Smith, the Certifier, from Commercial Building Approvals, gave evidence for Mr Ball and were cross-examined. Mr Peter Maher gave evidence for the Third and Fourth Respondents and was cross-examined. Somewhat surprisingly, Mr Andrew Maher was not available for cross-examination and the Third and Fourth Respondents called no experts. Mr Michael Rendell gave evidence for the Authority and was cross-examined. The Facts leading to the Dispute [3] On 1 June 2009, Keith Leslie Ball (Mr Ball) and Peter Maher, acting on behalf of Vafote Super Fund and Vafote Pty Ltd (Vafote) entered into an agreement whereby Mr Ball agreed to ―supervise all building work to the site 2-10 Winchelsea Street Pialba…‖. [4] On or about 5 July 2011, the Queensland Building Services Authority (the Authority) received a complaint form in relation to the building work supervised by Mr Ball under the contract. -- 2 of 21 -- 3 [5] The complaint referred to the following items: a) Water ponding and running outside the shower areas in the bathroom, ensuite and laundry showers (the wet areas) in each of the 14 units; b) Water leaking from the water storage tank into the electricity control room; c) The skylight diffuser in unit 12 falling out; and d) Water leaking to the basement of each of the units. [6] The Authority investigated the complaint on 11 July 2011 and when contacted Mr Ball informed the Authority that: a) He was not the builder; b) The matter is in the District Court; c) Mr Ball believes that there is nothing wrong; Mr Ball recollects that the Certifier, Doug Smith, finalised it in about November 2010; d) Mr Ball has not been paid and has counter-sued for damages; e) Mr Ball did not meet FRL (?) at the time of the CN; f) Vafote Pty Ltd was the builder; and g) Mr Ball was the nominee for Vafote Pty Ltd. [7] On 12 July 2011, the Authority received an email from Doug Smith of Commercial Building Approvals attaching a copy of the Certificate of Classification dated 30 March 2011. [8] On 18 July and 1 August 2011, Mr Rendell from the Authority conducted an inspection. [9] On or about 24 July 2011, the Authority received an email from Mr Ball in relation to Mr Maher refusing him entry during the proposed inspection (on 1 August 2011) and commenting in relation to some of the complaint items. [10] On 26 July 2011, the Authority received a letter from Mr Maher dated 14 July 2011 withdrawing the complaint in relation to the wet areas in the 14 units. This complaint was later revived on 16 August 2011. [11] On 4, 9 and 10 August 2011, Mr Rendell caused 15 letters to be sent to Mr Ball requesting that he rectify the defective building work identified in the common property and each of the 14 townhouses within 28 days. [12] On 18 and 22 August 2011, Mr Rendell conducted a further inspection of each of the townhouses in relation to the wet areas and produced a second report. This second report was not able to be produced by the Authority. [13] On 24 and 25 August 2011, Mr Rendell caused 14 letters to be sent to Mr Ball requesting that he rectify the defective building work identified in each of the 14 townhouses within 28 days. -- 3 of 21 -- 4 [14] On 1 September the Authority received a letter from Mr Maher advising that Hough Roofing: a) Had installed the missing skylight; b) Attended to the leaking skylight in one of the townhouses; and c) Would be returning to install three replacement diffusers. [15] On 12 September 2011, Mr Ball wrote to the Authority about the First Inspection Report and the First Request to Rectify. [16] On 26 September 2011, the Authority received a letter from Mr Maher advising that ―…All the category one defects have not been rectified & no contact has been made by Mr Ball to attend to these issues.‖ [17] On 4 October, Mr Rendell caused the Directions to be issued to Mr Ball requiring rectification of the defective work in the common property area and each of the 14 townhouses within 28 days. THE RELEVANT CONTRACTUAL RELATIONSHIP [18] As stated above, on 1 June 2009, Mr Ball and Mr Maher, acting on behalf of Vafote entered into an agreement whereby Mr Ball agreed to ―supervise all building work to the site 2-10 Winchelsea Street Pialba…‖. This was a construction management contract. [19] Under the contract, Mr Ball was required to provide supervisory services to the project and was engaged in the engagement of contractors but did not directly contract with them. He was involved in the scheduling of the works and in supervising the sub-contractors engaged by Mr Maher. [20] Mr Maher had engaged Design Plus Architects to draw the plans and BarlowGregg VDM Engineers to design the engineering plans. The discrepancies between these plans became an issue at the hearing. [21] Mr Maher was involved in ordering most if not all materials for the project. It transpired from the evidence that Mr Maher was also involved in giving directions on site to some sub-contractors while Mr Ball was engaged but the extent of this was contested. [22] The Tribunal was surprised to be informed that, for a project of this size and complexity, no written specifications were provided by Mr Maher to Mr Ball. TIMELINE OF RELEVANT EVENTS Date Event 19/02/2009 Design Plus Architects Tender Drawings March 2009 BarlowGregg VDM Engineers Plans 07/05/2009 Design Plus Architects for construction -- 4 of 21 -- 5 15/5/2009 BSA Insurance Premium paid on $2m value of work 29/05/2009 Design Plus Architects upgrade 1/6/2009 Contract signed 6/8/2009 Podium Slab poured 4/9/2009 First Floor slab poured Wet areas waterproofed Dec 2009 Tiling commenced (Jim, Super Tiles Pty Ltd) Dec 2009 Heat pump installed through slab (Not on plans) End Jan 2010 Wing walls (Not on plans) installed on Podiums 11/2/2010 Wet areas tiling completed 14/2/2010 Wet areas tiling problem identified by Mr Maher Steve (Maahs) & Patrick Plint employed by Mr Maher to ground concrete to floor waste (outside shower) Podium wastes installed (Not on plans) 13/3/2010 Podium Tiling invoiced Fire Doors and Frames Certification Form 16 3/6/2010 Inspection Certificate Form 16 26/6/2010 Mr Ball finished on site 12/10/2010 Compliance Certificate THE LAW RELEVANT TO THE DIRECTIONS [23] In considering whether or not to issue a Direction to Rectify, the Authority must consider several sections of the Queensland Building Services Authority Act 2009 (the Act). The first section is s.71A which states as follows: 71A Dispute resolution before rectification of building work ordered (1) This section applies to a consumer who wants the authority to consider whether to direct rectification of building work under section 72. (2) The consumer must apply in writing to the authority stating— (a) the name of the person who carried out the building work; and (b) details of the building work the consumer considers is defective or incomplete; and -- 5 of 21 -- 6 (c) other details the authority reasonably requires to consider the matter. (3) The application must be accompanied by the fee prescribed under a regulation. (4) Before it considers whether building work is defective or incomplete, the authority may require the consumer to comply with a process established by the authority to attempt to resolve the matter with the person who carried out the building work. (5) For this section, the person who carried out the building work is taken to include a person mentioned in section 72(5). [24] Section 71A requires the Authority to consider section 72 and sub- section 72(5) where the relevant sub-sections state the following: 72 Power to require rectification of building work (1) If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction. (2) In deciding whether to give a direction under subsection (1), the authority may take into consideration all the circumstances it considers are reasonably relevant, and in particular, is not limited to a consideration of the terms of, including the terms of any warranties included in, the contract for carrying out the building work. .... (5) For subsection (1), the person who carried out the building work is taken to include— (a) a licensed contractor whose licence card is imprinted on the contract for carrying out the building work; and (b) a licensed contractor whose name, licence number and address are stated on the contract; and (ba) a licensed contractor whose name is stated on the contract for carrying out the building work; and (bb) a licensed contractor whose name is stated on an insurance notification form for the building work; and (bc) a licensed contractor whose licence number is stated on the contract for carrying out the building work; and (bd) a licensed contractor whose licence number is stated on an insurance notification form for the building work; and (be) a licensed contractor whose PIN was used for putting in place, for the building work, insurance under the statutory insurance scheme; and (c) a building contractor by whom the building work was carried out; and (d) a person who, for profit or reward, carried out the building work; and (e) a person who, under the Domestic Building Contracts Act 2000, is a building contractor under a domestic building contract who managed the carrying out of the building work; and (f) a construction manager engaged under a construction management contract to provide building work services for the building work; and (g) a principal who was the contracting party for a building contract for building work for a building, or part of a building, intended for sale if— (i) the building, or part of a building, is not, and has never been, the principal place of residence of the principal; and (ii) the principal engages a building contractor or a construction manager to carry out the building work in a way, or using materials, likely to result in the work being defective or incomplete; and (iii) the principal knew, or ought to have known, that the way the work was to be carried out, or the materials to be used, was likely to result in the work being defective or incomplete; and Example where principal knew that work or materials were likely to result in defective or incomplete building work— -- 6 of 21 -- 7 A principal may know materials are likely to result in work being defective because of advice received from a building contractor or construction manager. (h) a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company’s nominee. (5AA) A direction to rectify may be given to more than 1 person for the same building work. (5A) In subsection (2), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work. (6) If in order to rectify building work it is necessary to do so, the direction may require that a building or part of a building be demolished and building work be recommenced. (7) If a direction is given under this section to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor. (8) A direction cannot be given under this section more than 6 years and 3 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the authority, that there is in the circumstances of a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly. (9) The fact that a direction is given under this section does not prevent disciplinary action in respect of the defective or incomplete building work. (10) A person who fails to rectify building work as required by a direction under this section is guilty of an offence. Maximum penalty—250 penalty units. (11) For the purposes of subsection (5)(c) and (d)— (a) a person carries out building work whether the person— (i) carries it out personally; or (ii) directly or indirectly causes it to be carried out; and (b) a person is taken to carry out building work if the person provides advisory services, administration services, management services or supervisory services for the work. … (14) The authority is not required to give a direction under this section to a person who carried out building work for the rectification of the building work if the authority is satisfied that, in the circumstances, it would be unfair to the person to give the direction. Example for subsection (14)— The authority might decide not to give a direction for the rectification of building work because of the amount payable but unpaid under the contract for carrying out the building work. [25] The first decision required is whether or not the work was ―building work‖ under the Act. It is defined in the Dictionary in Schedule 2 of the Act as follows: building work means— (a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, airconditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work; or (fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or (g) fire protection work; or -- 7 of 21 -- 8 (h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or (i) carrying out a completed building inspection; or (j) the inspection or investigation of a building, and the provision of advice or a report, for the following— (i) termite management systems for the building; (ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition. [26] From this definition the Tribunal concludes that the work was building work. This is not in dispute. [27] The next decision required is whether or not the work was defective or incomplete. Defective is defined in the Dictionary in Schedule 2 of the Act as follows: defective, in relation to building work, includes faulty or unsatisfactory. [28] From the evidence filed in the Tribunal and given at the hearing on 6, 7 and 18 June 2013, the Tribunal could conclude that the building work was defective. However, this also requires an examination of what work was required to be carried out. The Tribunal will address this issue shortly. [29] Assuming for the moment that the work was defective, the next decision required is who carried out this ―building work‖ under the Act. [30] Once again, the definitions in the Dictionary in Schedule 2 of the Act are relevant as follows: construction management contract means a contract under which a principal engages a construction manager to provide building work services for building work carried out for the principal under construction management trade contracts. building work services means 1 or more of the following for building work— (a) administration services; (b) advisory services; (c) management services; (d) supervisory construction manager means a person who provides building work services for the carrying out of building work for a principal under a construction management contract. carry out, for building work (other than for part 4A) means any of the following— (a) carry out the work personally; (b) directly or indirectly cause the work to be carried out; (c) provide building work services for the work. management services, for building work or tribunal work, includes— (a) coordinating the scheduling of the work by building contractors including as agent for another person; and (b) management for the work usually carried out by— (i) a construction manager; or (ii) a project manager under a project management agreement; and (c) other management for the work usually carried out by a licensed contractor in the course of the contractor’s business. -- 8 of 21 -- 9 supervisory services, for building work or tribunal work, includes— (a) the development, implementation and management of a system for the supervision of the work; and (b) the coordination or management of persons undertaking the supervision of the work; and (c) the personal supervision of the work; and (d) any other supervision of building work under this Act. undertake to carry out, for building work, means any of the following— (a) enter into a contract to carry out the work; (b) submit a tender to carry out the work; (c) make an offer to carry out the building work. [31] However, sub-section 72(5)(g) extends the definition to include a principal under the circumstances set-out in that sub-section. Depending on the view taken of the evidence, this might capture the Second Respondent through the involvement of Mr Maher. [32] Mr Ball, under the Agreement, accepted ―all liability/ obligations for all work carried out under his supervision‖ and agreed that he ―must correct any defects or finalise any incomplete work within 10 days after receiving a written instruction from the owner‖. [33] Mr Ball gave evidence that he withdrew from the Agreement after giving the required 7 days notification and left the site on 26 June 2010. This is not in dispute. [34] Applying these definitions to the Agreement and the other facts provided in evidence, the Tribunal concludes that Mr Ball agreed to carry out building work services as the construction manager for the project. [35] It was not in dispute that the Authority could issue a Direction to Rectify to Mr Ball under the Act. See McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2010] QSA 380, 23 December 2010. However, it was submitted that it should not have done so because under Section 72(14) it was unfair to do so. [36] The Tribunal was aware that the Authority could also have issued a Direction to Rectify to Super Tiles who carried out the tiling work to the wet areas. There is no evidence that the issue of a Direction to Rectify to Super Tiles was considered by the Authority either in substitution of the Directions to the Mr Ball or in addition to those Directions. However, this was not raised by any of the parties. [37] Likewise, the Mr Ball, in reliance on sub-section 72(5)(g), did not advocate that a Direction to Rectify should have been issued to the Second Respondent. However, the Mr Ball submitted that it was unfair to issue a Direction to Rectify to the Mr Ball in reliance on sub-section 72(14). The Tribunal notes that the Authority in its submission concedes that the role of Mr Maher and the Mr Ball ―were at times intermingled‖ but sub-section 72(5)(g) is much more specific about the knowledge and involvement of ―the principal‖. -- 9 of 21 -- 10 [38] The Tribunal will need to consider the effect of 72(5)(g) after determining the relevant evidence. THE DIRECTIONS REMAINING AT THE HEARING [39] Essentially, by the time the matter reached the hearing which occurred after some rectification had occurred, the remaining directions formed two categories as follows: (1) The outflow of water under the shower screens within the wet areas (bathroom, ensuite and laundry) in all 14 units (the wet areas). (2) The issue of ongoing water penetration to the car park area in a number of the units (water penetration to the car park). THE LAW AND EVIDENCE RELATING TO THE WET AREAS [40] Mr Douglas Smith (Mr Smith) was the Certifier for the project. He has had 20 years experience in certification work and classified the building as a Class 2 building (and the car park as a Class 7(a) Open deck car park). [41] The function of a certifier, according to section 10 of the Queensland Building Act 1975 (the Building Act), is as follows: 10 What is a building certifying function A building certifying function is doing any of the following— (a) carrying out building assessment work, other than a part of building assessment work that, under section 46, a concurrence agency may carry out; (b) the giving of a certificate (a compliance certificate) in the approved form that, other than for aspects of building assessment work that under section 46 must be assessed by a concurrence agency, states building work complies with the building assessment provisions; (c) for a building development approval—inspecting the building work to decide whether to certify the work; … (e) the giving of a certificate of classification for a building or structure of another class. [42] According to section 12 of the Building Act: The Building Code of Australia (or BCA) is the edition, current at the relevant time, of the Building Code of Australia (including the Queensland Appendix) published by the body known as the Australian Building Codes Board. [43] The BCA is produced and maintained by the Australian Building Codes Board (ABCB) on behalf of the Australian Government and State and Territory Governments. The Building Act prescribes or "calls up" the BCA to fulfill any technical requirements which have to be satisfied when undertaking building work in Queensland. [44] According to section 14 of the Building Act: (2) Building work complies with the BCA … (the code) only if it complies with all -- 10 of 21 -- 11 relevant performance requirements under the code. (3) For subsection (2), the building work complies with a relevant performance requirement only if it achieves a relevant building solution under the code for the requirement. (4) For subsection (3), a relevant building solution is achieved for a performance requirement only by— (a) complying with the following (the relevant requirement)— (i) if the code is the BCA—the relevant deemed-to-satisfy provisions under the BCA for the performance requirement; (ii) …; or (b) formulating an alternative solution that— (i) complies with the performance requirement; or (ii) is shown to be at least equivalent to the relevant requirement; or (c) a combination of paragraphs (a) and (b). [45] According to section 30 of the Building Act building assessment work must be carried out under the following laws: 30 Relevant laws and other documents for assessment of building work (1) Building assessment work and self-assessable building work must be carried out under the following laws and documents (the building assessment provisions)— (a) IDAS; (b) chapter 3 and this chapter; (c) the fire safety standard; (d) the fire safety standard (RCB); (e) any provisions of a regulation made under this Act relating to building assessment work or self-assessable building work; (f) any relevant local law, local planning instrument or resolution made under section 32 or any relevant provision under section 33; (g) the BCA; [46] With respect to the waterproofing requirements of the wet areas the BCA is the relevant guideline and in particular the relevant clause under the BCA is F1.11 which states as follows:- F.11 Provision of floor wastes In a class 2 or 3 building or class 4 part of a building, the floor of each bathroom and laundry located at any level above a sole occupancy unit or public space must be graded to permit drainage to a floor waste. [47] The relevant wet areas are located in a class 2 building but are not located ― at any level above a sole occupancy unit or public space‖, therefore, F1.11 does not require the floors to be graded to permit drainage to a floor waste. [48] No other BCA clause makes reference to floor waste/grades. BCA F1.7 "Waterproofing of wet areas in buildings" states under (a) Building elements in wet areas in a class 2 and 3 buildings and class 4 parts of buildings must be water resistant and waterproof in accordance with AS3740. Part (b) of that clause similarly requires that other classes of building (5, 6, 7, 8 or 9) must have their shower room etc water resistant or waterproof as if in a residential building. [49] The BCA does not have a definition for "water resistant" or ―waterproof‖. AS3740 does have a definition for these terms a n d a s the BCA calls up AS3740, the definitions are applicable here. -- 11 of 21 -- 12 [50] Waterproof means ―The property of a material that does not allow moisture to penetrate through it when tested in accordance with ASINZSI 4858. (NOTE: For the purposes of this Standard, see Clause 3.2.1 for materials deemed to be waterproof and suitable for including a waterproofing system.) [51] Waterproofing System refers to ―A combination of elements that are required to achieve a waterproofing barrier as required by this Standard e.g. substrate, membrane, bond breakers, sealants and finishes (NOTE: a waterproofing system for a bathroom floor may include lining it with a material in accordance with Clause 3.2.1(a), (b) or (d) or by using a waterproof flexible sheet flooring material in accordance with Clause 3.2.1(c))” [52] According to the evidence of Mr Ball, the bathroom/shower/laundry areas were waterproofed in accordance with AS3740- 2004 and a Form 16 has been provided from a BSA licensed waterproof installer. [53] That being the case, Mr Smith’s evidence was that BCA F1.7 has been satisfied as required. [54] According to Mr Smith, the only BCA clause that sets any "deemed to satisfy" provision for floor waste grading is F1.11 and it would appear this clause has not been triggered as there is no sole occupancy unit or "space below which is under separate ownership" as qualified by Building Codes Queensland. [55] Mr Smith went on to quote the "Guide to the BCA" which provides commentary on the clause as follows: ―Floor wastes are to be installed in bathrooms and laundries in class 2 and 3 buildings and class 4 parts, where those bathrooms and laundries are above another sole occupancy unit or public space. The aims of this requirement are to minimise water overflows from fixtures in the specified rooms: Causing costly and possibly dangerous water damage to other sole occupancy units; Creating unhealthy conditions in public spaces in buildings; and Disrupting and intruding on neighbours in the unit below. [56] Mr Smith gave evidence that t he BCA is the head of power for design purposes of building work. The BCA calls up Referenced Documentation to clarify and assist with design under Specification A1.3. AS3740 is one of the referenced documents. When the BCA calls up a Referenced Document, it does not necessarily call up the document in toto. Where the BCA calls up a Standard, it only calls up the Standard to the degree specified within the BCA and not necessarily the entire Standard. [57] According to Mr Smith the relevant Performance Requirements in relation to this issue is FP1.6 and FP1.7. The content of these Performance Requirements are as follows: -- 12 of 21 -- 13 FP1.6 Overflow from a bathroom, laundry facility or the like must be prevented from penetrating to another sole occupancy unit used for sleeping accommodation. FP1 .7 To protect the structure of the building and to maintain the amenity of the occupants, water must be prevented from penetrating – (a) behind fixtures and fittings (b) into concealed spaces of sanitary compartments, bathrooms, laundries and the like. [58] BCA Part F1 deals with ―Damp and Weatherproofing‖. F1.7 states under (a) Building elements in wet areas in a class 2 and 3 buildings and class 4 parts of buildings must be water resistant or waterproof in accordance with AS3740. According to Mr Smith, this clause calls up AS3740 for the purposes of water resistance or waterproofing only and not for gradients within a shower recess. [59] As further evidence that AS 3740 was not then called up Mr Smith stated that F1.7 of the BCA has since been amended and now states: (a) In a Class 2 and 3 building and a Class 4 part of a building, building elements in wet areas must- (i) be water resistant or waterproof in accordance with Table F1.7; and (ii) comply with AS 3740. [60] On the basis of the normal approach to statutory interpretation this would suggest that at the relevant time AS 3740 was not required to be complied with. THE QBSA’s Evidence in relation to the wet areas [61] Mr Rendell having examined the building work on site determined that the work was defective because in his opinion it was faulty or unsatisfactory. Defective is defined in Schedule 2 of the QBSA Act. The Tribunal was referred to the definitions of faulty and unsatisfactory in the Macquarie Dictionary, 3rd Edition which states as follows: ―Unsatisfactory‖ means not satisfying specified desires or requirements or inadequate Fault means inter alia, a defect or imperfection; a flaw a failing, an error or mistake. [62] The QBSA then submitted that pursuant to its ―Rectification of Building Work Policy” (the Defects Policy) defective building work includes, for example, work that does not comply with the Building Act 1975, the BCA or an acceptable standard. Pursuant to section 7 and 9 of the Statutory Instruments Act 1992, the Defects Policy is a statutory instrument that is subordinate legislation. -- 13 of 21 -- 14 [63] Mr Rendell unfortunately carried out his initial assessment without the benefit of the Council approved plans, the building specifications (subsequently found not to exist) or the plumbing/hydraulic plans. It was also conducted after the Mr Ball had been excluded from attending by Mr Maher. All of these factors contributed to Mr Rendell having limited information and, in the main only from Mr Maher, which must have been reflected in his report of 19 July 2011. [64] According to the Report, ―prior to inspecting any of the defect items‖ Mr Rendell provided a copy of a Newsflash from Building Codes Queensland (BCQ) regarding floor gullies and grading of floors to waste‖. [65] Mr Rendell stated in that Report ―The floor gullies are not above another sole occupancy unit and hence there is no requirement in the BCA to grade floors to fall. However, the water must remain within the shower and not flow out doorways and into corners behind fixtures‖. [66] Therefore, as far as the Authority is concerned the work could only be determined to be defective because the water must remain within the shower and not flow out doorways and into corners behind fixtures. Mr Rendell recorded the Defect as ―The showers do not retain the water within the enclosures generally.‖ Apart from one photograph showing water on the floor outside a shower enclosure there is no other relevant evidence in this Report. [67] The complaint about the wet areas was then withdrawn by Mr Maher on 14 July 2011 before being re-instated in another complaint by the Third Respondent on 12 August 2011. [68] The Newsflash from BCQ regarding floor gullies and grading of floors to waste‖ makes it clear that for these bathrooms, ensuites and laundries in a class 2 build not above another sole occupancy or public space, a floor waste, defined in Clause 1.5.8 as a graded inlet within a graded floor intended to drain the floor surface, is not required by the BCA. [69] The Tribunal notes that the Newsflash concludes by saying ―However, there are benefits in grading a bathroom or laundry floor to a non- required floor waste and an owner or builder can elect to exceed the BCA in this respect.‖ [70] Mr Ball had installed floor wastes in all of these bathrooms, ensuites and laundries but they were not graded inlets within a graded floor intended to drain the floor surface. [71] Mr Rendell did not explain where the requirement that ―the water must remain within the shower and not flow out doorways and into corners behind fixtures‖ exists in the Building Act or the BCA but referred to AS 3740 which refers to ―falls in shower floors‖ and even refers to ―Fall ratios‖. [72] He did acknowledge that floor wastes are not required in this building. [73] Section 4.3 of AS 3740 refers to FALLS IN FLOOR FINISHES and states: Where required, falls in floor finishes shall allow all surface water to drain without ponding... -- 14 of 21 -- 15 [74] As discussed above, the here the floors are not required to be graded to permit drainage to a floor waste so falls are not required. [75] Sub-section 4.3.1 of AS 3740 refers to SHOWER FLOORS and states: Falls in shower floors shall be sufficient to prevent water from ponding within the shower area and shall prevent water from discharging outside the shower area. [76] However, it was not explained to the Tribunal how sub-section 4.3.1 of AS 3740 is called up, especially when falls are not required for these wet areas under the BCA. The Tribunal accepts that the requirements of AS 3740 would be relevant if called up. [77] Appendix C of AS 3740 which is only ―Informative‖ and not ―mandatory‖ lists the factors affecting falls and states that the ratio of falls achieved in a floor may vary depending upon the ―dimensions of the tiles used, adequate falls becoming more difficult to achieve as the sizes of the tiles used increase.‖ It then goes on to state ―Tiles may require diagonal cutting in the area around the waste to achieve the required falls, sufficient drainage and to ensure lipping is kept within the guidelines of AS 3958.1.‖ [78] Here 600 x 600 mm tiles were selected and supplied by Mr Maher. According to Mr Ball he informed Mr Maher that there would not be any fall within the shower. Mr Plint was then engaged to grind the floors to create a slight fall from within the actual shower cubicle near the doors to the external floor waste. This was the solution adopted by the Mr Maher, Mr Ball and Super Tiles after Mr Maher identified it as a problem. [79] Mr Maher had previous to this specified that the shower waste was to be located 400mm from one wall and 100mm from the back wall. The tiles he had selected were also to be used throughout the rest of the units which would have resulted in their continuation into the wet areas placing limitations on placement of the tiles and the wastes creating difficulties for the tiler. The Second and Third Respondents’ Evidence in relation to the wet areas [80] Mr Maher gave evidence mainly by way of photographs he had taken of the wet areas. He called no expert witness. Therefore, other than evidence of facts, any of Mr Maher’s evidence, which was based on an interpretation of those facts, was irrelevant as he was not qualified as an expert on these matters. The Tribunal did note that Mr Maher held strong opinions and that his lack of qualifications as an expert did not stop him attempting to give expert evidence. [81] Unfortunately, his test methodology was not clear and subject to the appearance that it was designed to justify his claims rather than an objective test. For example, he admitted that there was no one in the shower when the test was conducted. This would have blocked a considerable amount the water from flowing out of the door. He did not state whether the way in which the shower nozzle was facing was normal for showering or the water pressure or whether the shower door was -- 15 of 21 -- 16 closed. The photographs clearly show that it was possible for water to escape from the shower enclosure to outside. However, it was not clear how such a volume of water could by-pass the floor waste located just outside the shower enclosures to which the tiles were cut to allow the water to fall. [82] According to the photographs taken by Mr Rendell, the water that did escape the shower enclosures, in the main, flowed into the floor wastes located just outside the shower enclosures. Therefore, Mr Rendell’s evidence was considered more reliable and preferred by the Tribunal. [83] Mr Maher submitted that because the Architects plans showed set- downs for all of these wet areas, in spite of the fact that these did not appear on the engineers plans, the Mr Ball erred in not providing set- downs. The Tribunal noted that there were no dimensions on the Architects plans about set-downs. [84] The Tribunal also noted the evidence of Mr Rendell that a builder would use the engineers plans for pouring a slab as they should address all of the necessary structural issues. If set-downs were required the engineers’ plans should have contained the necessary dimensions for the concrete and steel reinforcing. These were not provided on either set of plans. [85] The engineers plans were suitable for the project until the architects plans created structural differences which were not included in the engineers plans. [86] The plans were provided by the Second and Third Respondent to Mr Ball and they bear the responsibility of getting them right. If the set-downs were significant to the Second and Third Respondent, the Tribunal finds that they should have ensured that they were included in the engineers plans. [87] While it was submitted that Mr Ball should have referred this issue back to the engineers or to Mr Maher, what was built was certified by the engineers as complying which the Tribunal finds is the end of the issue. This certification also applies in relation to the water penetration to the car parks. Findings in relation to the wet areas [88] The Tribunal accepts the evidence of Mr Ball, confirmed as it is by Appendix C of AS 3740, that the use of 600mm x 600mm tiles made it more difficult to achieve adequate falls. [89] The Tribunal also accepts the evidence of Mr Ball that Mr Maher was informed of this difficulty by Mr Ball but required Mr Ball to proceed. The Tribunal also accepts the evidence of Mr Ball that Mr Plint was engaged by Mr Maher to grind the floors to create a slight fall from within the actual shower enclosure near the doors to the external floor waste. [90] The Tribunal also accepts the uncontested evidence of Mr Ball that Mr Maher withheld $22,758.15 from Super Tiles who carried out the tiling to -- 16 of 21 -- 17 the wet areas. The Tribunal notes and accepts the evidence contained in the District Court pleading of Vafote that the estimated cost of repair of the tiling is $14,818.58. [91] These two pieces of evidence suggest that the Second Respondent has withheld more than enough monies to carryout the rectification of the wet areas. These funds are not available to Mr Ball who would have to carryout any and all of the current Directions to Rectify without any funding from the Second and Third Respondents. In addition the Tribunal notes that Mr Ball is claiming in the District Court proceedings that under the contract he is owed money by the Second Respondent. [92] The Tribunal accepts Mr Ball’s uncontested evidence that all of the wet areas were waterproofed as required by the BCA. [93] The Tribunal rejects the evidence of Mr Rendell that the water from one or more of the showers escaped to the hallway as this evidence was very vague and he could not be specific as to which unit or units it related. Likewise, the Tribunal rejects the evidence of Mr Maher on this point as his tests were carried out in the absence of the other parties and of any expert. [94] In summary, the Tribunal concludes with regard to the wet area complaints that: a) the falls to the floor wastes were not required under the Building Act and the BCA and for that reason the work was not defective; b) the Second Respondent was caught by s. 72(5)(g) as it knew that the way the work was to be carried out and the materials to be used was likely to result in the work being defective in the way in which it now complains; c) because of s. 72(5)(g) the Second Respondent could be directed to rectify the work and it has retained more than sufficient funds to do so; d) It would be unfair in the terms of s. 72(14) for the above reasons to direct Mr Ball to rectify the wet areas [95] Therefore, in relation to the wet areas, the Tribunal sets aside the Authority’s decision of 4 October 2012 to issue Mr Ball with 15 Directions to rectify the work in relation to the wet areas. THE LAW AND EVIDENCE RELATING TO WATER PENETRATION TO THE CAR PARKS Mr Ball’s evidence [96] Mr Ball gave evidence that the area was appropriately waterproofed and blamed the various complaints on bad design, the result of flooding which had occurred and on lack of maintenance by the Second and Third Respondents. He also pointed to the fact that after the slab was poured, Mr Maher required holes to be drilled through it for the fitting of the heat pump tubing and that these penetrations were not adequately sealed -- 17 of 21 -- 18 and allowed water to enter. [97] Mr Ball gave evidence that ―It is unlikely the water is able to circulate up through the slab itself as there is a fully capped visqueen below the slabs in accordance with the design requirements‖. [98] He suggested that ―up to 200mm of water through the garage area would only be from flooding with some likely backup from the external Council stormwater drain…‖ ―On the balance of probabilities, saturated walls and rusting door jams as referred to in the (Authority’s) report would have been caused by flooding rather than any water ingress from other areas.‖ [99] He stated that ―the floor level of the garage is 900mm below the flood plain level on the eastern side of the site‖. [100] He went on to say that ―The classification is solely as a car park and there is no loss of amenity in that use‖. [101] He specifically commented on water penetration through the external wall at the end of the car park which he said had not been sealed when he left the site or since and that water can enter the wall through the top of the wall and percolate through the block wall and exit at various points. [102] He stated that as this is a Class 7a building there is no water proofing requirement for the garages. Mr Smith’s Evidence [103] Mr Smith gave evidence that he classified the car park as a Class 7(a) building because it was an open deck car park. [104] Mr Rendell accepts this classification for the common area but asserts that because the ―garages‖ have security doors they are part of the Class 2 building which forms the residences above them. [105] Mr Smith refers to the definition of ―car park‖ under the BCA which is ―Carpark means a building that is used for the parking of motor vehicles but is neither a private garage nor used for the servicing of vehicles, other than washing cleaning or polishing.‖ [106] Private garage is also defined as ―Private garage means- (a) any garage associated with a Class 1 building; or (b) any single storey of a building of another Class containing not more than 3 vehicle spaces, if there is only one storey in the building; or (c) any separate single storey garage associated with another building where such garage contains not more than 3 vehicle spaces. [107] Mr Smith went on to say ―the underground parking area of this building provides a common space as access to the parking areas and there is provision for at least 14 vehicles. Each parking area has a block -- 18 of 21 -- 19 wall on either side and a roller door under a framed bulkhead. Neither the roller door not the bulkhead meets the fire separation requirements of the BCA C2.7. As such, they cannot be considered "separate" building parts. In addition, the Queensland Fire & Rescue Service has identified the area as class 7 below class 2 and required smoke alarms to be installed in the space under BCA Part E2. [108] Mr Smith concluded that ―Because the area does not meet the criteria for a "private garage", and contains 14 car spaces not separated in acc ordance with the BCA, it is a class 7a .‖ He certified it as such. [109] He then said ―It has been suggested that the owners may use the area for "storage purposes". The Certificate of Classification 'issued for the building states that the area is "class 7a'. The owners may well use the space for storage however that would technically be an illegal use in the same way that putting a bed in the area and using it as a 3rd room would be illegal.‖ [110] The Authority has stated that Performance Requirement FP1.4 has not been complied with. However, the BCA contains a "Limitation" to the application of this Performance Requirement where it states (inter alia) that "FP1.4 does not apply to – a) a class 7 or 8 building where in the particular case there is no necessity for compliance; or b) a garage, tool shed, sanitary compartment or the like, forming part of a building used for other purposes; or c) an open spectator stand or open-deck carpark [111] According to Mr Smith the garage area in question is a Class 7(a) and an open-deck carpark. [112] An open-deck carpark is defined under the BCA and Mr Smith asserts that this building part meets that criteria. [113] This definition states as follows: An open-deck carpark means a carpark in which all parts of the parking storeys are cross-ventilated by permanent unobstructed openings in not fewer than 2 opposite or approximately opposite sides, and- (a) each side that provides ventilation is not less than 1/6 of the area of any other side; and (b) the openings are not less than ½ of the wall area of the side concerned. [114] Mr Smith further states that the building owner required the carpark to meet that definition so as to avoid the cost of mechanical ventilation to that part. He concludes, as such, there is not a requirement to meet FP1.4. [115] Mr Rendell disagreed that the individual garages were part of an open- -- 19 of 21 -- 20 deck carpark. He stated that ―Pertinently the enclosed garages …are on each unit’s title and are of a size and configuration that makes it entirely reasonable to expect that a storage function is intended regardless of the classification as Class 7…‖ [116] This is not an appropriate forum if the Authority wishes to challenge that classification. [117] Mr Rendell referred the Tribunal to Part A1 Interpretation, Building Code of Australia Volume 1, 2009 where the Tribunal notes that certain terms are defined, the relevant one here being as follows: Certificate of Accreditation means a certificate issued by a State or Territory accreditation authority stating that the properties and performance of a building material or method of construction or design fulfill specific requirements of the BCA. Expert Judgement means the judgement of an expert who has the qualifications and experience to determine whether a Building Solution complies with the Performance Requirements. [118] The Tribunal noted that one method that Mr Rendell suggested could be used by Mr Ball to rectify what he identified as the problem was for Mr Ball to install mechanical ventilation to the 14 car parks. This would be unfair to Mr Ball. [119] The Tribunal noted that Mr Rendell had several theories as to how the moisture evident in the garages had occurred but did not identify an exact cause. Likewise, he was not able to say that it had been caused by lack of supervision by the Mr Ball as opposed to bad design, the result of flooding which had occurred or some other cause. [120] It was clear that the podium was designed without a fall and with no drainage holes to allow for the removal of water which ponded. It appears that water from the podium was expected to flow down the stairs but this became impossible when wing walls were inserted to support stair rails. These were suggested by the Mr Ball and agreed to by Mr Maher. Mr Ball then suggested that wastes be inserted in the podium and the water drained away underneath the podium. Mr Ball gave evidence that the location of these wastes, in part, depended upon what was underneath the podium at that point. He also stated that the height of the top steps imposed a limitation on the tilers’ ability to slope the podium tiles to these wastes. [121] As proof that the area was appropriately waterproofed, Mr Smith referred to the fact that A & S Holdings (Qld) Pty Ltd Trading as Danlaid Contracting Hervey Bay issued a Form 16 Waterproofing Certificate for the basement external walls (and separately the water tank). The Certificate is dated 11th January 2011. [122] The Tribunal fails to understand how a supervisor can be responsible for the subsequent performance of materials, such as the fire door surrounds, which were purchased by the Second and Third -- 20 of 21 -- 21 Respondents, as there was no reliable evidence that they had been inappropriately installed. [123] The Tribunal also accepts the evidence of Mr Maher that only limited maintenance has been carried out on the site and considers that this limited maintenance is having a detrimental superficial effect on the appearance of the garages. [124] The Tribunal accepts that subsequent to Mr Ball finishing his work on the site a significant flooding event occurred at the site and the garages were significantly flooded. [125] While the Tribunal accepts Mr Rendell’s expertise and notes, in particular, that he has worked as a Certifier, here Mr Smith was the designated Certifier for the project and determines to accept Mr Smith’s evidence in what amounts to an ―Expert Judgement‖ in preference to that of Mr Rendell. Findings in relation to the water penetration to the car parks [126] The Tribunal finds that the building car parks are certified as Class7(a). [127] The Tribunal finds that as such FP1.4 is not required to be complied with. [128] The Tribunal finds that the problems which currently exist in these areas were not caused by the work of Mr Ball who, therefore, should not be directed to rectify them. [129] Therefore, in relation to the water penetration to the car parks, the Tribunal sets aside the Authority’s decision of 4 October 2012 to issue Mr Ball with 15 Directions to rectify the work in relation to the water penetration to the car parks. ORDERS [130] The Tribunal sets aside the Authority’s decision of 4 October 2012 to issue Mr Ball with 15 Directions to Rectify. -- 21 of 21 --