ABW Design & Construction Pty Ltd v Queensland Building Services Authority, Naidoo [2013] QCAT 352

CITATION: ABW Design & Construction Pty Ltd v Queensland Building Services Authority, Naidoo [2013] QCAT 352 PARTIES: ABW Design & Construction Pty Ltd (Applicant) v Queensland Building Services Authority Mr Seshagaran Naidoo (Respondent) APPLICATION NUMBER: GAR155-12 MATTER TYPE: General administrative review matters HEARING DATE: 10 April 2013 HEARD AT: Brisbane DECISION OF: Ann Fitzpatrick, Member DELIVERED ON: 12 July, 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Queensland Building Services Authority, dated 5 April, 2012 is affirmed with respect to Items 3 and 15 set out in the Direction to Rectify and/or Complete No.37459; 2. Except as set out in Order 1, the decision of the Queensland Building Services Authority, dated 5 April, 2012 is set aside. CATCHWORDS: REVIEW - Review of decision to direct rectification work – whether builder at fault or defective work attributable to builder – whether it would be unfair in the circumstances to direct builder rectify work. Queensland Building Services Authority Act 1991 s 72. APPEARANCES and REPRESENTATION (if any): APPLICANT: ABW Design & Construction Pty Ltd represented by Mr Utz Wellner of Wellner -- 1 of 6 -- 2 Lawyers RESPONDENT: Queensland Building Services Authority and Mr Seshagaran Naidoo represented by Mr Simon Formby, Employee of the Queensland Building Services Authority. REASONS FOR DECISION [1] The applicant, ABW Design & Construction Pty Ltd ACN 101 130 509 (ABW) seeks to review the decision of the Queensland Building Services Authority (BSA), dated 5 April, 2012 directing it to rectify certain items of building work at a property owned by the respondent Mr Naidoo. [2] At the hearing evidence was given by Mr Richard Wangelin, Director and Nominee of ABW. [3] ABW was engaged by Mr Naidoo to carry out renovation and extension work to a dwelling at 31 Kitchener Road, Ascot. [4] Following lodgement of a complaint by Mr Naidoo a BSA Inspector, Mr Chris Coombs, carried out an inspection and prepared an initial inspection report dated 30 March 2012. Relevantly the BSA also engaged an engineer Mr Peter Wright of Hughes, Beal and Wright Pty Ltd to attend the site and prepare a report. The report is dated 29 March, 2012. [5] The BSA concluded that ABW had carried out defective building work and required it to be rectified. Questions for the Tribunal [6] The Tribunal has all the functions of the decision maker and must hear and decide the matter by way of a fresh hearing on the merits. In reviewing the BSA’s decision, I have to consider: (a) whether ABW is in some way at fault, so that defective building work can be attributed to it; and (b) whether it would be unfair in all the circumstances to require it to rectify the defective work.1 [7] In undertaking this consideration I have had regard to the material filed by the parties and the evidence given at the hearing. Items of Work [8] At the commencement of the hearing Mr Formby for the BSA informed me a number of Items in the Direction to Rectify had been withdrawn or agreed, leaving only Items 1, 2, 3, 5, 10 and 15 in contention. Later Item 5 1 Queensland Building Services Authority Act 1991 ss 72 and 86(1); Stephenson v Queensland building Services Authority [2005] CCT Q056-04. -- 2 of 6 -- 3 was agreed and in submissions Mr Wellner for ABW said that ABW would fix the defect referred to in Item 2 by trimming the putty in the leadlight window in question. The Directions to Rectify work 1. The windows over the bathtub in the ensuite have not been glazed with safety glass as per BCA 2010 Volume 23.6.4.5 which is of a serious safety concern. [9] The BSA acknowledged at the hearing that the contract did not provide for replacement of the window glass, however, it contended that a competent builder would have recognized that the glass was not compliant with the Building Code of Australia once the use of the room in question changed to a bathroom and that a competent builder would have raised the issue with the owner and put in a variation to do the work. [10] It was submitted on behalf of ABW that the work did not form part of the contract and it would be unfair to require the builder to replace the glass without payment. [11] On the basis of the BSA’s acknowledgement and the evidence by Mr Wangelin, that replacement of the glass is outside the original scope of work, I find that it would be unfair to make the builder undertake work at its own cost in circumstances where it had never been paid for the glass or labour for installation. I set aside this Direction to Rectify. 3. Discolouration and uneven joint finish is evident within the tile grout to the wet area tiling of both lower and upper floors creating an unsightly finish. [12] Mr Wangelin gave evidence that in his opinion the cause of the discolouration was as a result of water leaking from cracked toilets which were not his responsibility. He said that in an effort to overcome the problem with the tiles, he had engaged a tiler to replace the tiles at ABW’s own cost on two occasions. [13] Mr Naidoo gave evidence that even after the leaking toilets had been rectified, the tile grout discoloured in freshly laid tiles. [14] The BSA submitted that it could not say why the tile grout was discoloured but a competent builder would not accept the work and the attempts at rectification had not been satisfactory. [15] The evidence as to when the tiles were replaced relative to rectification of the leaking toilets was unclear. [16] Although I accept Mr Wangelin’s evidence that he made attempts at rectification, I accept the evidence of Mr Coombs and find that the work is unsatisfactory and direct that the tile grouting be replaced. On balance, I do not consider it is unfair for ABW to be required to undertake this work. -- 3 of 6 -- 4 10. The concrete driveway has not been constructed in accordance with AS2890.1 -2004 and is not fit for purpose in that a standard passenger vehicle (or B85 vehicle as per AS2890.1-2004) cannot negotiate the driveway without scraping its underside. [17] In essence the problem with the driveway is that the Owner’s sedan motor vehicle cannot drive down the driveway to the garage without bottoming out. As a result it is parked on the street. The driveway constructed by ABW is not entirely in accordance with the contractual drawing for the driveway, WD08, but rather has been reshaped by ABW to overcome what are alleged to be problems with the original design which led to bottoming out and lack of access to the garage. The driveway can be utilized by 4wheel drive vehicles but not the majority of ordinary sedans which still bottom out. [18] Mr Wangelin’s evidence in this regard was supported by Zoran Utjeseoic, who was engaged as a carpenter on the project and who observed attempts to drive a vehicle down the driveway into the garage and who drove his own 4 wheel drive vehicle into the garage after modifications were made to the driveway. [19] Mr Wangelin said that he met with the Owner Mr Naidoo and the architect Steve Manson of Mayhill Planning Architecture to discuss the driveway’s problems. [20] Mr Wangelin said that the outcome of the meeting was that Mr Naidoo directed him to ensure his 4 wheel drive vehicle could access the garage. In evidence Mr Manson recalled that outcome, but could not recall any discussion of a need to reshape the driveway to ensure vehicles did not bottom out. He recalled the conversation to be about the size of the opening to the garage, rather than the driveway. [21] Neither Mr Wangelin nor Mr Manson recalled any discussion about whether a normal sedan could drive down the driveway. [22] Mr Naidoo did not recall any discussion of difficulties with the slope of the originally designed driveway which necessitated changes to the plan. His only recollection was in relation to a concern over clearance in accessing the garage, which was resolved by the builder lifting the roller door. [23] ABW attached to its application a report prepared by CA Hawkins Surveys, dated 8 May 2012, which concluded that the driveway as originally designed would lead to cars bottoming out. The report records the rates of change of grade in the driveway and the grades. It records that the driveway is built to design for the most part, but modifications made by the builder have offered a better solution. The author of the report was not called to give evidence. [24] Mr Peter Wright, of Hughes, Beal & Wright Pty Ltd, Consulting Engineers, the author of a report dated 29 March 2012 gave evidence consistent with his report. [25] Importantly the report records that the driveway does not accord with the relevant Australian Standard because of the propensity of vehicles to bind or bottom out. The report says that the problem would have been worse if -- 4 of 6 -- 5 the driveway had been constructed in accordance with the Mayhill drawings. [26] At the hearing Mr Wright discussed some methods of rectification, however, he acknowledged he would have to undertake further work in light of information as to clearance into the garage. His methods of rectification were directed to solving the problem of the underbody of vehicles binding, but said that it would never be possible to solve the issue of scraping onto the footpath. [27] I find that the driveway as constructed is functional for one of the owner’s motor vehicles, however, it is not functional for the majority of other vehicles. I find that the work is defective. [28] I find that ABW has largely followed the architects drawings, but has improved the outcome by modifications to the drawings undertaken in the course of the work. [29] The parties are all agreed and I find that construction in accordance with the original drawings for the driveway would have resulted in a worse outcome for the owners. [30] I accept that Mr Wangelin has sought to adopt a practical approach to overcoming the problems, by reshaping the driveway to ensure it could carry the owner’s 4 wheel drive, as instructed by Mr Naidoo. However, he has not appreciated the inadequacy of the driveway for other vehicles. He has undertaken remedial work beyond his competence. In reality no work should have been undertaken until written amendments were made to the drawings for the driveway taking into account different grades and shape necessary to make the driveway functional for all vehicles, if indeed that were possible. [31] Although there was no evidence put as to the cost of rectification, common sense suggests it will be significant. [32] I find that it would be unfair in all the circumstances for the builder to bear all the costs of rectification when responsibility for the defective driveway rests not only with him but also, arguably, with the Architect. It is impossible in proceedings such as this to make any finding against the Architect or on the evidence to suggest what proportion of liability might rest with each. [33] Further, it is evident the driveway cannot be reconstructed without engineering or other expert drawings. The builder does not have the competence to redesign the driveway. It was not in its original brief to design the driveway. I find it would be unreasonable and unfair to require it to obtain engineering advice and drawings to undertake the work. [34] For these reasons I set aside the decision to require rectification of the driveway. Unfortunately, Mr Naidoo must seek a remedy elsewhere. -- 5 of 6 -- 6 15. The structural integrity of the exposed steel framing to the rear lower deck, and stairs has been compromised in that the minimum required corrosion resistance specified in the BCA has not been achieved. [35] This problem was addressed in the report by Hughes, Beal & Wright at paragraph 11. The defective work is said to be that the steep SHS posts exposed in the ground floor slab edge have no appropriate corrosion protection. The posts were not hot dipped galvanized as specified. [36] At an expert’s conclave held on 1 February 2013, the experts, Mr Wright and Mr Lynskey of Lynskey Structural Consultants, agreed that the work was defective and that appropriate rectification involved the work described by Mr Wright in his report. They did not consider the attempted rectification of painting the posts with zinc based paint was adequate. [37] On the basis of the expert’s report following the conclave I find that the exposed steel framing in question is exposed to corrosion and that the builder’s work is defective in that regard. I affirm the direction to rectify. Orders [38] I order that the decision of the Queensland Building Services Authority, dated 5 April 2012 is affirmed with respect to Items 3 and 15 set out in the Direction to Rectify and/or Complete No.37459; [39] Except as set out in the preceding order, I order that the decision of the Queensland Building Services Authority, dated 5 April 2012 be set aside. -- 6 of 6 --