Fergus v Queensland Building Services Authority [2011] QCAT 381

CITATION: Fergus v Queensland Building Services Authority [2011] QCAT 381 PARTIES: Mr Peter David Fergus (Applicant) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR203-10 MATTER TYPE: General administrative review matters HEARING DATE: 28 February 2011 & 6 May 2011 HEARD AT: Brisbane DECISION OF: Graham Quinlivan, Member DELIVERED ON: 18 August 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. The Application is dismissed. CATCHWORDS: Responsibility of builder to ensure compliance with the Building Code of Australia APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Peter David Fergus represented himself RESPONDENT: Queensland Building Services Authority represented by Mr B Cole, in house Legal Officer REASONS FOR DECISION Introduction [1] Peter David Fergus (the applicant) seeks a review of a decision of the Queensland Building Services Authority (the Authority) to issue a “direction to rectify and/or complete, number 35005” on 8 June 2010. The Authority opposes the application. Background -- 1 of 12 -- 2 [2] On 23 February 2010 the Authority received a complaint from Ms Carol Mary Halkett (the owner) alleging defective building work by the applicant at 156 Barolin Esplanade, Coral Cove in the state of Queensland (the property). [3] The complaint item described in the complaint form was Complaint Item Date first noticed Location of complaint item Concise description of building work complaint item Number 1 8/08 External post Posts are rusting and it would appear the structural integrity is being compromised [4] With the complaint form the Authority received copies of the following documents:  A schedule to a BSA major works contract dated 13 February 2007 between the owner and the applicant.  A quotation of “Peter Fergus Builder” dated 14 February 2007.  A copy of the Authority‟s contract notification record.  A rates notice for the property.  A letter dated 2 February 2010 from the owner to the applicant. [5] On 20 August 2009 Mr Daniel Stephensen, a Building Inspector employed by the Authority attended at the owner‟s property in relation to a separate complaint and at that time took a series of photographs of the external post the subject of the present complaint. These photographs allegedly demonstrate the corrosion of the posts which was the subject of the complaint by the owner. [6] On 1 March 2010 the owner complained to the Authority that the posts, which had been installed at the property by the Applicant between March and September 2007, were not protected against corrosion as required by the Building Code of Australia. [7] On 9 March 2010 the Authority declined to assist the owner in relation to her complaint on the basis that painting was outside the scope of the applicant‟s work under the contract. [8] On 8 June 2010 the Authority advised that following an internal review of the decision not to direct rectification the Authority issued a direction to rectify and or complete number 35005 to the applicant requiring rectification within 28 days to the effect that “the external steel posts do have appropriate corrosion protection”. No further explanation was provided to the Tribunal regarding the circumstances leading to the review or the basis of the subsequent direction. Statutory framework -- 2 of 12 -- 3 [9] In the statement of reasons of the Authority dated 13 July 2010 the Authority identifies the legislation relevant to these proceedings. [10] Part 6 of the Queensland Building Services Authority Act 1991 sets out, among other matters, the Authority‟s power to require rectification of defective building work. Section 72 of the Act provides:- 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 (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 … (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. (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. -- 3 of 12 -- 4 (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. … (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. (15) A direction given under this section need not be complied with if— (a) a proceeding for a review of the authority’s decision is started in the tribunal; and (b) the tribunal orders a stay of the decision. [11] The term “building work” is defined in schedule 2 of the Act as: (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 … but does not include work of a kind excluded by regulation from the ambit of this definition. [12] Section 5 of the Queensland Building Services Authority Regulation 2003 defines what is not building work for the purposes of the above mentioned definition. -- 4 of 12 -- 5 [13] The term: (a) “defective” is defined in schedule 2 of the Act as follows: “defective” in relation to building work includes faulty or unsatisfactory. (b) “rectify” is defined in schedule 2 of the Act as follows: “rectify” building work means to remedy defective building work or to complete incomplete building work. [14] For the Authority to issue a direction under section 72 of the Act the Authority must be satisfied of the following: (a) “building work” had been undertaken or carried out; (b) The “building work” is defective or incomplete; and (c) The discretion of the Authority should in all the circumstances be exercised to issue a direction to the person who carried out the building work. [15] The discretion to issue a direction must be exercised in accordance with the objects of the Act. Section 3 of the Act provides the objects of this Act are: (a) To regulate the building industry – 1. To ensure the maintenance of proper standards in the industry; and 2. To achieve a reasonable balance between the interests of building contractors and consumers; (b) To provide remedies for defective building work; and (c) To provide support, education and advice for those who undertake building work and consumer rectification of the building work if the Authority is satisfied that in the circumstances it will be unfair to the person to give the direction. Evidence by the applicant [16] In his application the applicant made the following assertions:  Painting was not his responsibility.  Whilst he was still under contract with the owner she caused another painter to paint/corrosion proof the posts.  His contract was wrongfully terminated.  The direction by the Authority No 35005 was contrary to the conclusion of the inspector from the BSA dated 9 March 2010. [17] In his affidavit dated 10 September 2010 the applicant gave evidence that on or about 13 February 2007 he entered into a building contract with the owner of the property for building work at the premises situated at 156 Barolin Esplanade, Coral Cove. -- 5 of 12 -- 6 [18] There have been previous related proceedings in the former Commercial and Consumer Tribunal in matter number CCT BD492-07 between Peter David Fergus and Carol Halkett. [19] The evidence from the applicant was that his contract related to the construction under the house and verandah which had been removed from Brisbane. It was not part of his contract to paint any of the building work. [20] His contract with the owner was terminated on 12 September 2007. At paragraph 44 of the decision of the Commercial and Consumer Tribunal referred to above the CCT made the following finding in relation to the same contact which is the subject of these proceedings: “… the contract was terminated on the 12 September 2007 and it was terminated by the respondent (Carol Halkett) and this termination was accepted by the applicant (Peter Fergus)”. This finding has not been challenged in these proceedings and is therefore accepted by this Tribunal. [21] Initially the applicant gave evidence that when he installed the galvanised pipes the subject of these proceedings they were washed down with turps to clean off any oil. The bottom 900mm was painted with bitumen paint (Pabco Orminoid Duro-seal) NOT WATER BASED. The rest of the post was primed with the Galmet brand Gal primer which would seal the post for at least 3 months or more until the painters painted them. [22] Further in his affidavit the applicant claimed that the owner was responsible for all painting and that he saw the painters (M & B Painting Contractors) sanding the posts and applying another primer that was left for at least 3 weeks before another coat of paint was applied. His contract was terminated so he did not know what had happened. He stated that he had been directed by the owner not to involve himself in the painting. He also stated that the owner was in dispute with most of her contractors including him and his employees. As a result he did not attempt to involve himself in any painting that she had arranged. [23] He further gave evidence that “Gal posts are acceptable in this area and the BSA inspectors told Halkett (the owner) in (his) presence this, as they should have been primed and painted properly”. As an attachment to his affidavit referred to above the applicant attached a statutory declaration from Robert Roy Cairns, painter and decorator, dated 12 September 2010 which declared that “all metal pole supports were pre-coated on all welds, bolts and holes with oil based galvo prime. The rest of the poles were lightly sanded down to remove any dags and concrete splashes, we then wiped down all the support poles with metho, we then coated the support poles with oil based galvo prime which – we then left to cure for 12 hours, we then painted support poles with 2 coats of high gloss acrylic (Sunshield Dulux) we told Carol Halkett that living right next to the ocean she should regularly wash down all steel work at least once a fortnight as all the sea mist would eat into the steel even if she would have had support poles powder coated she would have to wash home with fresh water. I found Peter Fergus to be a very honest and first class tradesman.” -- 6 of 12 -- 7 [24] In a subsequent affidavit dated 4 January 2011 the applicant referred to the relevant paragraph of his previous affidavit and made the following corrections: He said that it is his usual practice to paint the galvanised posts with Galmet as referred to in that paragraph but on this occasion the posts he used were fabricated by Brian Zelinski Engineering Pty Ltd. The paint for the 30 external posts was supplied by the fabricator and the paint that was supplied was then applied to the posts. He attached to this affidavit a document that he claimed was a true copy of the specification for the paint (as supplied by the fabricator) provided to him by the paint manufacturer. [25] The applicant acknowledged that the installation of the posts at the property occurred shortly after the entering into of the building contract. A tax invoice from Brian Zelinski Engineering Pty Ltd attached to the affidavit indicates that the date of the invoice was 23 March 2007 approximately 1 month after the contract was entered into. The contract was terminated in September 2007. [26] In his oral evidence, the applicant stated that the owner was an owner builder and it was her responsibility to ensure that appropriate steps were taken to protect the posts. There was no other evidence to support this contention. He said that the work that was undertaken prior to the installation of the posts was sufficient to allow approximately 3 months for the painters to attend and provide the protection that was required. He gave further evidence that the owner refused him access to the painters on the site but that he did do extra work after supplying the posts such as closing in the downstairs area of the house and the cladding. He acknowledged that the painting of the poles occurred while he was still on site. He also gave evidence that he advised the owner of a number of concerns that he had regarding the work being done at the property. However he was not able to provide any relevant evidence or documentation to demonstrate that he had specifically informed the owner regarding the requirements of the Building Code of Australia in relation to compliance with the relevant provisions of that code. [27] When questioned regarding the paint supplied by the fabricator that was used to prepare the posts, the applicant was not able to point to any evidence to demonstrate that that particular paint satisfied the Building Code of Australia. Evidence of respondent [28] The written evidence of the Authority consisted of 2 statements by Mr Michael Rendell dated 17 September 2010 and 10 February 2011. These statements also incorporated the Statement of Reasons of the Authority dated 13 July 2010. Mr Rendell is a Building Inspector employed by the Queensland Building Services Authority. He holds an Inspector‟s delegation under the QBSA Act and has been a licensed builder since 1980. He has been an inspector for more than 20 years. -- 7 of 12 -- 8 [29] Mr Rendell‟s evidence was that he attended at the property on 2 occasions being 12 April 2010 and 14 May 2010 and inspected the posts that are the basis of this action. He stated that the property is within 1km from breaking surf and that the posts are structural steel members and are DuraGal square hollow section galvanised posts. [30] He further stated that the posts, without a coating protecting them against corrosion, are not suitable for use as structural steel members within 1km of breaking surf. [31] He said that the Building Code of Australia outlined what standards Australian buildings and building material must adhere to in order to meet legislative requirements. In particular Table 3.4.4.2 of volume 2 of the Building Code of Australia 2006 provides that for an environment within 1km from breaking surf or within 100 metres of salt water not subject to breaking surf or heavy industrial areas in an external location the minimum protective coating for general structural steel members must involve 1 of 3 options. The first option a protective coating of an inorganic zinc primer plus 2 coast of vinyl gloss finishing coats or option 2 hot dip galvanised 300 gram per metre squared or option 3 hot dip galvanised 100 gram per metre squared minimum plus either: a) 2 coats of solvent based vinyl primer; or b) 2 coats of vinyl gloss or alkyd. [32] He also gave evidence that the posts used were DuraGal square hollow sections which are high strength cold formed structural hollow section that are in-line hot-dip galvanised over a prepared metal surface, to produce a fully bonded external coating with a minimum leverage coating mass of 100 grams per metre squared in accordance with AS/NZS 4792:1999 ILG100. [33] Therefore to be suitable for use as structural steel members within 1km from breaking surf these posts needed to be: a) hot dipped galvanised to achieve an external coating with the minimum leverage coating mass of 300 grams per metre squared; or b) be coated with an inorganic zinc primer plus 2 vinyl gloss finishing coats or 2 coats of a solvent based vinyl primer or 2 coats of a vinyl gloss or alkyd. [34] He stated that the applicant installed posts as structural members without a compliant coating to protect them against corrosion. [35] In his statement dated 10 February 2011 Mr Rendell gave evidence that the property is within 1km from breaking surf as depicted in a satellite image obtained from Google Earth but also based on his estimate the property is approximately 80 metres from salt water even if it is not breaking surf. Further the posts as depicted in the photographs referred to -- 8 of 12 -- 9 earlier were installed externally and supported the upper decks of the dwelling situated on the property and as such they are columns for the purposes of the Building Code of Australia which deems them structural steel members. [36] In reference to the document attached to the affidavit of the applicant dated 4 January 2011 regarding the specification of the paint used to prepare the posts, Mr Rendell states that he carefully examined the document and that the document did not indicate that the paint satisfied the requirements of the Building Code of Australia for the protection of structural steel members against corrosion. Discussion & Findings [37] There is no dispute that on 8 June 2010 the Authority issued a direction to rectify and/or complete (number 35005) to the applicant regarding work undertaken by the applicant on the property situated at 156 Barolin Esplanade, Coral Cove in the state of Queensland. The applicant objects to the direction primarily on the basis that the painting of any part of the dwelling at the property was not his responsibility as detailed in the quotation which he provided to the owner and which formed part of the overall agreement together with the major works contract between him and the owner. The evidence in the quotation dated 14 February consists of a statement in paragraph 3: “No painting allowed for.” In the same paragraph the words “Steel beams, posts,” are deleted from the statement regarding “work to be done by others”, implying that these items are to be included in the quotation. [38] The respondent argues that the applicant as the registered builder listed in the major works contract for renovations to the property was responsible for ensuring that the work undertaken complied with the Building Code of Australia. [39] The discretion to issue a direction must be exercised in accordance with the objects of the QBSA Act as set out in section 3. In its statement of reasons the Authority says that in order to issue a direction under section 72 of the QBSA Act, the Authority must be satisfied of the following: 1. “building work” has been undertaken or carried out; 2. the “building work is defective or incomplete; and 3. the discretion of the Authority should, in all the circumstances, be exercised to issue a direction to the person who carried out the building work. [40] The property is located in close proximity to salt water and within 1km of breaking surf. The applicant disputes that it is within 100 metres of salt water or that there is breaking surf in proximity to the property. The only evidence available to the Tribunal in this regard consisted of an image that was downloaded from Google Earth that indicates that the property is adjacent to a golf course near a substantial area of salt water with some -- 9 of 12 -- 10 indication of “white caps” in the immediate vicinity. The Tribunal finds that the environment where the property is located is within 100 metres of salt water and comes within the definition of a severe environment for the purposes of the provisions of the Building Code of Australia 2006. For an external location the relevant requirement for a minimum protective coating for general structural steel members is as set out in table 3.4.4.2 of volume 2 of the Code. [41] The applicant acknowledges that the posts, the subject of the direction, were installed by him at an early stage in his engagement under the major works contract. No evidence was provided as to the exact date of the installation of the poles although it is clear that this must have occurred at some stage between the end of March 2007 and the beginning of September 2007 being a period during which the contract was in effect. The applicant submits that it was his responsibility to have the poles prepared but that it was then a matter for the owner to have them painted. The Authority submits that as the registered builder, the applicant had a responsibility to ensure that the posts were properly protected in accordance with the provisions of the Building Code of Australia. [42] The evidence of the applicant as to the steps taken by him to prepare the posts for painting is not consistent. In his affidavit dated 10 September 2010 he deposes to a process that he undertook which would seal the posts for at least 3 months or more until the painters painted them. He goes on to state that he observed the painters subsequently sanding the posts and applying another primer which was left for at least 3 weeks before another coat of paint was applied. At this time he alleged that his contract was terminated so he did not know what had happened. [43] On 4 January 2011 the applicant in his subsequent affidavit, states that in fact the process outlined previously had not been followed although that was his usual practice. The paint that was used for the external posts was supplied by the fabricator of the posts and it was this paint that was applied to the posts. There was no evidence from the applicant to demonstrate that the paint used on this occasion complied with the requirements of the Building Code of Australia. [44] The statutory declaration from Robert Cairns dated 12 September 2010 regarding work undertaken on certain metal pole supports made no reference to the property where this work was taken except an indirect reference to the owner of the building, Carol Halkett. This statutory declaration indicated that the painting and preparation was done to some metal pole supports but is too general and uncertain to be able to be relied upon as providing any support for the applicant‟s case. Further there is no indication that even if these were the poles used on the property at 156 Barolin Esplanade, Coral Cove that the paint used in any way complied with the Building Code of Australia. There is also no link between this declaration and the subsequent affidavit of the applicant. -- 10 of 12 -- 11 [45] Following the complaint from the owner on 23 February 2010 the Authority conducted inquiries and on 9 March 2010 declined to assist the owner on the basis that the painting was outside the scope of the applicants work under the contract. On that occasion the Authority took the view that the corrosion protection was the responsibility of the person that specified the details for the painting. [46] In summary, the submissions of the Authority are that a contract was entered into in February 2007 between the owner of the property and the applicant in these proceedings. That contract consisted of 2 documents, the major works contract and the quotation provided by the applicant. The contract was terminated in September 2007. From the date of the contract until the date of termination the Authority submits that the applicant was the person responsible for the building works including the acquiring and installation of approximately 30 steel posts at the property. The posts were installed externally and supported the upper decks of the dwelling situated on the property. As the posts supported timber floors they were columns for the purposes of the Building Code of Australia which deems them structural steel members and as a result pursuant to the Building Code of Australia they must be protected against corrosion in accordance with Table 3.4.4.2 of the Code. [47] Based on the finding that the property is located within 100 metres of salt water , then it was necessary for the applicant to adopt 1 of 3 options. The DuraGal square hollow section galvanised posts needed to be: a) hot dipped galvanised to achieve an external coating with a minimum average coating of 300 grams per metre squared. b) coated with: 1. An inorganic sink primer plus 2 vinyl gloss finishing coats; or 2. 2 coats of a solvent based primer; or 3. 2 coats of a vinyl gloss or alkyd. [48] The Authority submits that there is no evidence that the steps taken by the applicant to prepare the posts complied with the provisions of the Code. As a result the building work undertaken by the applicant was defective or incomplete. [49] The Authority also submitted that in circumstances where a dispute existed between the owner and the applicant it was necessary for the applicant to take reasonable steps to rectify the problem, as he was the licensed builder in relation to the work being undertaken. The options identified by the Authority included a proposal that a prudent builder would in fact have ensured that the posts were hot dipped galvanised to achieve an external coating with a minimum average coating mass of 300 grams per metre squared. In the event that this did not occur and that it was necessary to provide a complying coating then it was necessary for the applicant to take steps to ensure that the coating applied to the posts was compliant with the Code. Alternatively the applicant should have taken steps to inform the owner in writing of the requirements of the Code and the importance of -- 11 of 12 -- 12 ensuring that the posts were properly coated. On the evidence available the Tribunal finds that the applicant obtained the posts from a fabricator Brian Zelinski Engineering Pty Ltd during March 2007. The applicant applied a coating to the posts that was supplied by the fabricator but the applicant was not able to demonstrate that the paint that was used complied with the requirements of the Building Code of Australia. [50] Further the Tribunal finds that there is no evidence to establish that the applicant took reasonable action to properly inform the owner of the steps which needed to be taken in order to properly protect the posts following their installation. [51] There was no evidence to prove that the exercise of the discretion by the Authority to issue the Direction to rectify and/or complete No 35005 was inappropriate [52] On the basis of these findings, the Tribunal orders that the application by Peter David Fergus to have the direction of the Authority to „Rectify and/or Complete No. 35005” overturned is dismissed. -- 12 of 12 --