[61] The decision in Glen Williams concerned a case where the actual work that the builder performed was defective. The Australian Standard called for joists 225 x 50mm. The floor joists actually utilised were 150mm x 50mm and were installed as a single span greater than the standard. The evidence of the QBSA inspector was that due to the floor joists being undersized, the floor of the house was flexing excessively, thus causing consequential damage to the wall linings and cornices.

[62] That decision cites Fontain v QBSA[20] where it was said that:-

It is the builder's responsibility to ensure that the building work complies with relevant regulations of the Building Code of Australia

The law is well established that a builder cannot be excused from the responsibility to comply with manufacturers or regulatory body specifications simply because the architect's drawings were wrong

[63] This matter can be distinguished from that case, and those cases where a builder is doing construction work and following an architect's drawings. In those cases the builder is dealing with issues where there are available manufacturers standards, regulatory body specifications, or provisions of the Building Code of Australia which can be readily referred to. In this matter however it is not the construction work that is in question.

[64] The experts agree that:-

On the basis of the available investigations it is our opinion that we are unable to identify any possible construction issues which have significantly contributed to the footing movement. The construction components considered include the footings system construction, site drainage, plumbing and masonry articulation.

Agree the footing design/drawings do not take into account the existing trees on the adjoining property

The trees are the major contributing factor to the ongoing subsidence at the back of the house.

[66] This matter therefore solely concerns an issue of engineering design. The builder cannot be expected to ensure that an engineering design is sufficient. That is plainly the work of an engineer. It is the very reason that professional engineers are required to be qualified and registered.

[67] It is not absolute that a builder will be liable to rectify defects even though he has followed an architects or other professionals plan or directions. The line of cases considers the type of defect, and whether it is within the reasonable expectation of the knowledge and ability of the builder to be able to assess the suitability of the plan. An experienced builder who follows a plan that it knows, or could reasonably be expected to know, is in error, cannot nevertheless just slavishly follow the plan, but is expected to exercise good construction practice.

[68] The relevance of the expectation of the builder having requisite ability to assess a situation was shown in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority[21] where the learned Member said:-

Mr Scott contends in his report for January 2008 that the architect designed and documented a floor slab which is not waterproof and naturally develops shrinkage cracks. The question for QCAT is whether a builder who constructs a floor slab above a car park which is not waterproof and which its experience tells it, or should tell it, will naturally develop shrinkage cracks through which water will find its way onto the motorcars and other vehicles in the car park, is performing defective work.

[69] I note that in Glen Williams Pty Ltd v QBSA that the QBSA submitted that the builder there, as the licensed builder, should have been expected to have the knowledge to be capable of determining whether the joists were undersized[22].

[70] It could not be similarly suggested that a builder should have the knowledge to be capable of determining whether an engineering design of slab/footings is sufficient.

[71] Structerre would no doubt argue that they have relied on the classification of the site by Bowler Geotechnical in drawing their design, and that this classification was incorrect as found by the experts conclave.

[72] This raises yet another level of professional assessment - that not only could the builder not be expected to able to assess whether the engineering of the slab/footing design was proper, but that he could not also be expected to be able to assess whether the geotechnical report and classification, which was prepared by a Registered Professional Engineer, was proper.

[73] Section 72 QBSA Act clearly establishes the consideration of fairness in the ordering of rectification. I do not consider that it could be seen as fair to hold the builder responsible for the design work of an independent Registered Professional Engineer and/or the geotechnical assessment of a separate independent Registered Professional Engineer.

[74] Having regard to the circumstances of the case, to the defects policy, to s 72 of the QBSA Act, and to the clear view of the experts as to the cause of the movement of the footings being related to the design of the slab/footings, I do not consider that it would be fair or reasonable to require the builder to rectify as required by Direction 1.

[75] Whilst the builder did not install articulated fittings to the plumbing, the agreed view of the experts is that the lack of articulation is not a significant factor in the footings movement or that if it is a factor, it is not separately discernible due to the overwhelming influence of the trees.

[76] Whilst the plumbing system using flexible pipe is non-compliant, it has to be shown to be a defect for rectification to be required under s 72 QBSA Act. The Defects Policy defines 'defective building work" as meaning "building work that is faulty or unsatisfactory".

[77] I am not satisfied that the plumbing work has been shown to be faulty or unsatisfactory, and therefore Direction 2 to rectify is not required, and it would be unreasonable to require it.

[78] The experts agreed in considering that the non-compliant falls on the right-hand side of the house from the street are so small that they do not consider them significant.

[79] I am therefore not satisfied that the site grading has been shown to be faulty or unsatisfactory, and therefore Direction 3 to rectify is not required, and it would be unreasonable to require it.

[80] The builder has also argued that the homeowner has not conducted proper maintenance as evidenced by the accumulation of leaves in the drains, and that actions of the tenants in parking vehicles close to the slab have caused ponding adjacent to the footings which has damaged them. The homeowner does not have close knowledge of the maintenance of the property, and has not refuted these suggestions, which reinforces my satisfaction that it would be unfair to order rectification by the builder.

[81] I order as to the Application that the decision of the Queensland Building and Construction Commission dated 18 December 2012 to issue Direction to Rectify and/or Complete Number 38333 to Imperial Homes (Qld) Pty Limited is set aside.

[82] Counsel for the builder sought a costs order against the Commission. He argued that there had been considerable communication between the Commission and the Solicitors for the builder, that there had been no offers of settlement made, and that there had been clear communications about the importance of the engineering issues. He submitted that costs should follow the event, to be assessed or agreed.

[83] The Commission submitted that each party should bear their own costs, but that the parties be at leave to make submissions.

[84] This matter revolved around engineering issues, but ultimately there were no dispute between the parties as to the engineering matters. Those issues were determined and agreed by the experts conclave. Until the time of the experts conclave, those issues were in dispute.

[85] The parties would have needed a reasonable time after the conclave report was received to consider the implications of it, and to consider the future conduct of the matter.

[86] Section 100 of the QCAT Act provides that each party usually bears their own costs, however section 102 provides that the tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding if the tribunal considers the interests of justice require it to make the order.

[87] In Ralacom[23] the President, Justice Wilson, noted that:-

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase 'the interests of justice' point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.

[88] As costs have been sought, I will hear further submissions in light of my decision.

[89] I will make orders allowing the parties to make submissions on costs once they have considered this decision. I would urge the parties to have discussions as to costs, if they are sought, before entering into further proceedings, and attempt to resolve any claims between themselves before entering into further dispute.

[90] I note that in Amory v Queensland Building Services Authority[24] the Commission sought and was awarded costs on the District Court scale. In Fenwick v Queensland Building Services Authority[25] costs were awarded against the Commission on that scale. The rectification costs may however fall into the Magistrates jurisdiction (but I have no evidence on that). In the submissions as to costs, the parties should address what is the appropriate scale. I order as to costs that:-

1. If either party wishes to seek costs:

   • (a) The party seeking costs is to file in the Tribunal and give to the other party a clear description of the costs and orders sought, and submissions in support, by 4pm on 28 February 2014.

   • (b) The other party is to file in the Tribunal and give to the other party submissions in reply by 4pm on 11 March 2014.

   • (c) The issue of costs will be determined on the papers not before 11 March 2014.

[1] Queensland Building Services Authority Act 1991.

[7] Letter Bowler Geotechnical 23 March 2006, para 7.

[8] Tendered as Exhibit 2, contained in Commission's Statement of Reasons p 80.

[10] Statement of Evidence, Nicholas Miller, 28 March 2013.

[13] Exhibit IH-006 to Statement of Mr Nicholas.

[16] [2012] QCAT 389.

[18] R v His Honour Judge Miller and the Builder's Registration Board of Queensland, ex parte Graham Evans & Co (Qld) Pty Ltd [1987] 2 Qd R 446; Gary Norwood Homes Pty Ltd v QBSA [1997] QBT 193; Schlotterbach and Gardner v QBSA and Patterson [2002] QBT Q009-00 and Q050-00; Fontain v QBSA [2004] QCCTB 163; JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2010] QCAT 568; Glen Williams Pty Ltd (t/as Glen Williams Constructions Pty Ltd) v QBSA [2012] QCAT 127.

[19] [2012] QCAT 127, para 16.

[20] [2004] QCCTB 163.

[21] [2010] QCAT 568 at para 17.

[22] [2012] QCAT 127 at para 19.

[23] Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at para 29.

[24] [2012] QCAT 130.

[25] [2011] QCAT 262.