Klimczyk v Queensland Building and Construction Commission [2025] QCAT 391

Buglar v Queensland Building and Construction Commission [2025] QCAT 371

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

• [1] The applicant is a registered builder. In June 2018, his wife Joan Leahy purchased a residential property in Seven Hills in Brisbane as the family's permanent place of residence. Soon after the purchase they decided to embark on a major renovation of the house and certified plans were prepared by Mr Eyers of Robert Eyers Design & Drafting. This included raising the existing weatherboard house, building in underneath and also building a major extension at the rear of the house. It also included an inground swimming pool. To comply with regulatory requirements, the applicant took out a Home Warranty Insurance Scheme policy for the work in his name in January 2019 with the Commission. The "contract value" of the work under the policy was $100,000.00.
• [2] There was no contract in writing between Ms Leahy and the applicant for the building work, which given their relationship at the time, was not unusual. It seems clear that from the beginning this was a joint venture. The plans prepared for the renovation nominated both Mr Klimczyk and Ms Leahy as the clients for the project.
• [3] The renovation work was completed, including the pool which the applicant says was solely Ms Leahy's responsibility. He maintains this was not part of the work he carried out. The applicant and Ms Leahy, and their children, continued to live in the house until April 2021 when it was sold. During this period, the applicant says he and Ms Leahy were having matrimonial problems, with an ultimate separation, although still living under the one roof. He claims it was for this reason the house was sold, also because Ms Leahy wanted to move to Brisbane's western suburbs for their daughter's education.
• [4] About six months after the new owners moved into the house, on 9 October 2021[1] they wrote to the applicant listing a number of defects they say required rectification, which totalled 30 in number. A number of these defects were identified in a report prepared by Building Experts Australia ("BEXA") dated 28 September 2021. Additional items included in the letter were those identified by the new owners. The applicant did attend to some of the complaints.
• [5] Soon after, on 27 October 2021, the new owners lodged a complaint with the Commission.[2] This then led to further investigations by the Commission and the production of an Inspection Report prepared by Eamon Shannon of Resolution Services dated 8 March 2022. The inspection report confirmed a number of the defects in the new owners list sent to the applicant. As a consequence of this inspection, on 11 March 2022, the Commission issued a Direction to Rectify and/or Complete Work ("the DTR") to the applicant. The DTR contained 15 items of defective building work.
• [6] The applicant sought an internal review of the decision to issue the DTR. Both the applicant and the owners provided submissions to the internal reviewer officer. The items in the DTR sought to be reviewed were, in summary:[3]

(a) Item 1 - construction of internal stairs;

(b) Item 2 - construction of a balcony;

(c) Item 3 - installation of the plasterboard ceiling in the living room;

(d) Item 4 - installation of French doors;

(e) Item 5 - installation of timber trims on the lower level balcony;

(f) Item 6 - construction of a concrete slab;

(g) Item 7 - installation of timber bearers;

(h) Item 8 - installation of steel posts and timber bearers;

(i) Item 9 - installation of frame tie downs;

(j) Item 10 - installation of stacker doors;

(k) Item 11 - installation of timber bearers;

(l) Item 12 - construction of external timber stairs;

(m) Item 13 - installation of carport roof cladding;

(n) Item 14 - construction of upper deck;

(o) Item 15 - Construction of lower level balcony.

• [7] After considering all of the material the review officer confirmed the original decision of 11 March 2022 to issue the DTR.
• [8] On 1 July 2022 the applicant filed an application to review the Commission's decision under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ("QCAT Act"). The function of the Tribunal is to produce the correct and preferable decision by way of a fresh hearing on the merits.[4]
• [9] I propose to first deal with what seems to be a misconception of the nature of this proceeding. The applicant, in his statement of evidence filed on 5 October 2022, sets out a brief history of his involvement with the Commission and then articulates his "grounds" for review. Firstly, that he was not advised of the inspections on 22 February 2022 or 1 March 2022. Secondly, the internal review took into account irrelevant factors in coming to its decision. It is unnecessary to particularise those factors here. Thirdly, the DTR should not have been issued by Mr Shannon. This approach is more consistent with an appeal against the decision of the Commission, rather than a review on the merits. The correct approach to this matter is, as the then Deputy President said in Kehl v Board of Professional Engineers of Queensland:[5]

The Tribunal's role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal's function is to review the decision - not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.

• [10] The issues here for determination, based on the applicant's evidence is firstly whether he, as the registered builder, carried out the building work the subject of the complaints in the DTR. Secondly, whether the work complained about is defective structural building work. Thirdly, if it is defective building work whether having regard to all the evidence the DTR, or specific items in the DTR, should be set aside either because the work is not defective or on a fairness ground under s 72(5) of the Queensland Building and Construction Commission Act 1991 (Qld). By reference to the statement of evidence filed by the applicant on 5 October 2022, there is no dispute that he applicant carried out all the building work the subject of the DTR.

• [11] Subsequent to the hearing, the parties filed written submissions. Because of the evidence given by the applicant at the hearing in relation to some of the items in the DTR, the Commission made a concession that it does not now press for a finding in respect of the following items:

(a) Item: 10 - installation of the stacker doors;

(b) Item 12 - construction of the external stairs; and

(c) Item 13 - installation of the carport roof cladding.

• [12] Item 3 of the DTR was a complaint about a bow in the ceiling. The applicant accepted there was a bow of about 0.8cm over a total area of 100sq metres. Although not specifically referred to in his statement, he did say at the hearing that the ceiling is fixed on hangers to give a uniform appearance. This is to take into account the ceiling contours of the existing dwelling.
• [13] As there is no evidence to contradict the applicant's evidence on this point, I propose to accept what he says about the method of fixing the ceiling to the hangers. That being the case the Commission concedes that this is a non-structural defect. It therefore does not press this item in the DTR.

• [14] When the new owners purchased the property, they obtained a pre-purchase building report, which is not unusual. That report was prepared by Rapid Building Inspections ("the Rapid report").[6] The relevance of this evidence is that the applicant contends that some of the defects in the DTR were identified in the report and the new owners, by proceeding with the purchase, accepted the identified defects. Therefore, the new owners proceeded with the purchase in full knowledge of the condition of the property.
• [15] The fact that some of the Items may have been identified in the Rapid Report may be relevant to whether it would be unfair to include them in the DTR.
• [16] Also later after they had moved into the property, they engaged BEXA to inspect the building work and provide a report. The report is dated 28 September 2021.

Was the applicant responsible for the subject building work?

• [17] It is accepted that there is no evidence of a contract, written or otherwise, between the applicant as the builder and Ms Leahy as the owner of the property. It would seem reasonable to conclude that at the time of the purchase of the house it was both their intentions to renovate the existing house and extend it to improve the amenity of the property.
• [18] Much has been made of the fact that both the applicant and Ms Leahy had bought and sold a number of properties before this one. Once purchased they would then renovate and improve the property to sell at a profit. It is contended by the Commission that this is what was intended with the purchase of this house. However in my view, it is irrelevant to this decision whether they, or Ms Leahy, intended to on sell the property for a profit in the short term or keep it for their permanent home. What is relevant, is the quality of the building work.
• [19] The task of the Tribunal is to review all of the evidence and determine whether the decision of the Commission should be confirmed or varied. That is whether the building work carried out by the applicant was defective. Also whether it would be fair in the circumstances to direct the rectification. Turning then to a consideration of the various items in the DTR.
• [20] Item 1 of the DTR is as follows:

The installation of the stairs to the internal split level does not comply with the requirements of the Building Code of Australia, Volume 2, 2019, Part 3.9.1.1 in that the installation of the stairs exceeds the maximum allowable riser height 190mm and allowance variation between rise heights of 5mm for adjacent risers and 10mm between largest and smallest riser overall, thereby creating a safety hazard for occupants. Pertains to item 1 of the complaint form.

• [21] This relates to the internal stairs on the lower level as shown on the plans.[7] The stairs are an attractive design feature separating the dining area from the living area on the lower level. The steps are 6.115m long (wide) of polished wood consisting of three risers and two treads.
• [22] In the Resolution Services ("RS report") report, prepared by Mr Shannon, he noted on page 4:
  • The top riser varied between 207mm and 204mm, middle riser varied between 225mm and 216mm and the bottom riser between 204mm and 213mm.
  • The claimants did not report any issues with the use or performance of the stairs.
• [23] By reference to the Building Code of Australia ("BCA") the maximum height of a riser is 190mm and minimum height is 115mm. The Commission's position is that the differential in height creates a safety issue. Clearly the stairs are non-compliant and the applicant accepts this to be the case. What is also clear is the degree of non-compliance is not significant in each riser
• [24] The applicant relies on the owners' direct knowledge of the issue when they purchased the house. All the stairs are commented on in the Rapid report as "inconsistent riser heights, rectify to reduce the risk of people tripping over." The specific internal stairs are not referred to in the commentary section. There are photos of all the stairs referred to with the commentary. The first photo is of the internal stairs with a note below, stating "showing example of no slip prevention to stairs". There are photos of other stairs and only the photograph of the external stairs, have the note underneath "showing example of inconsistent riser heights". It is unclear whether the riser height issue was in relation to the internal stairs because the notation of each picture is to show an "example" of that which is in the commentary box on page 16 of the report. There was no evidence either from the author of the report or the new owners about this, so it is not conclusive that the comment was referring only the stairs shown in the report.
• [25] The BEXA report specifically identified that the risers exceeded the maximum height variation. This then led to it being included in the owner's complaint to the Commission.
• [26] The applicant submits that it would be unfair to uphold this item because when the owners received the Rapid report, he attended to fixing or rectifying any of the complaints they had arising from the report. They did not include any complaint about the internal stairs.
• [27] I accept what the Commission says that even if no complaint was made, it does not justify defective building work.
• [28] One issue that has not been addressed by either the applicant or the Commission is the rectification work necessary to satisfy the DTR, which seems to me to be a relevant consideration.[8] Even so, I am conscious of the fact that the height differential between the dining room floor and the living room floor is 650mm as shown in the photograph on page 5 of the report. To get three risers evenly into 650mm they would each have to be 216mm. Here they vary in size to accommodate the risers.
• [29] Obviously, four risers would be 162mm and be compliant with the BCA. However, that would mean that an additional tread would have to be installed. This would have the result of extending the stairs into the living area. That is, assuming the goings would be the same size as those shown in the report, which were not measured. Even so, there would be some encroachment into the living area with the extra tread.
• [30] Although there is no specific evidence on this point, the fact that the new owners had made a specific complaint about these stairs it is reasonable to assume they want them fixed so the stairs are complaint. Also I note in the BEXA report they may have some issues selling the property when this non-compliance is picked up on a pre-purchase property inspection.
• [31] Even if the new owners are not having any problems with the stairs as is, they bought this house with the expectation that the building work complied with the BCA.
• [32] I refer to and adopt what Member Lumb said in Buglar v Queensland Building and Construction Commission:[9]

Subsection 72(5) of the QBCC Act provides that the QBCC is not required to give a direction (in this case, a direction to rectify) if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction. The language of 'is not required to give the direction' in s 72(5) suggests that the QBCC may still give a direction even if satisfied that it would be unfair to do so. However, in my view, the circumstances in which the QBCC would give a direction to rectify where it is satisfied that it would be unfair to the contractor to do so would be limited. On the other hand, I consider that even if the QBCC concluded that it would not be unfair to the contractor to issue a direction to rectify, the QBCC would still retain a discretion under s 72 not to do so if the particular circumstances of the case warranted such a decision

• [33] Where there is clear non-compliance with, and in my view obvious, requirements of the BCA that would not fall within the "limited" category, it is reasonable to expect every registered building would know the basic requirement of BCA in constructing stairs. In these circumstances it would not be unfair to confirm Item 1 of the DTR.
• [34] Item 2 of the DTR is as follows:

The installation of balcony construction elements above the butler's pantry does not comply with the requirements of Building Code of Australia, Volume 2, 2019 part P2.2.2, in that water has entered the building voids and is causing undue dampness and deterioration of building elements. Pertains to item two of the complaint form

• [35] There seems little doubt that there is water penetration in the butler's pantry. The photographs in Mr Shannon's report shows the cracking. By reference to the plans, this room is constructed under the extended verandah of the existing house which is off bedroom 3. There are double doors opening onto the verandah.
• [36] Mr Shannon reported that when he carried out the inspection on 22 February 2022 that:

A water test was undertaken by applying various elements for the balcony construction above, and water was observed to be leaking around the base of the pantry window, and high moisture reading between "at risk" and "wet" were recorded in the ceiling lining, and adjacent area of wall lining, above the exterior kitchen door.

• [37] He concluded that the likely entry of water was "at the connection point of the upper level balustrade with the exterior wall, via gaps in the vertical linings and gaps in the handrail connections and conduit penetrations".
• [38] The applicant's response to this defect is that the cause of any water penetration comes from the existing house and not part of his work. That submission is difficult to understand because the verandah off bedroom 3 was constructed by the applicant and it is because of that work, water penetrates below into the ceiling.
• [39] Also, he is critical of the testing method of Mr Shannon in that he says he had the hose on the area above for an extended period more or less forcing the water into the area. Even if the water was used for an extended period, the waterproofing should still have coped with it.
• [40] There is some vagueness about the actual source of the penetration but it is unacceptable to have water penetrating into the ceiling of the butler's pantry. For that reason Item 2 of the DTR is confirmed.

The installation of the French doors on the upper level has resulted in the formation of excessive gaps in the door leafs which have allowed the ingress of wind driven rain and hence a loss of amenity for occupants. Pertains to item 13 of the complaint form.

• [42] Firstly, I agree with Mr Shannon that the plans do not show any existing French doors. As I am entitled to do under s 28 of the QCAT Act I have viewed the original house on realestate.com.au and there are no French doors. Mr Shannon observed:
  • Door leafs do not align vertically in the closed position, and were off set on average 13mm;
  • Door heads did not align horizontally, and in some instances were below the line of the head of the door stop;
  • No head flashings were observed;
  • A water test was undertaken that revealed water entering the dwelling via the gaps in the door leafs.
• [43] The applicant says that this was one of the defects picked up in the Rapid report. He attended the premises and fixed the door and the owners were happy with the result. Therefore he raises the fairness issue.
• [44] Also, he contends that the defect as described is not structural. Be that as it may, if Mr Shannon is accepted then water penetration into the building does not comply with water proofing under BCA Vol 2 2019 part 2.2.2.

A roof and external wall (including openings around windows and doors ) must prevent the penetration of water that could cause:

(i) Unhealthy or dangerous conditions, or loss of amenity for occupants; and

(ii) Undue dampness or deterioration of building elements.

• [45] Although the applicant may have attended and made some adjustments to the doors, he does not challenge what Mr Shannon has said other than to say there is no evidence of water ingress. There does not necessarily have to be evidence of water ingress just that the identified gaps would allow water ingress. In any event, I also have no reason to reject Mr Shannon's evidence that he conducted a test to satisfy himself that this occurs. This Item of the DTR is confirmed.
• [46] Item 5 of the DTR is as follows:

The installation of the timber trims on the lower level balcony does not comply with the Building Code of Australia Volume 2, 2019, part 3.1.3.3(a) and (b) in that excessive movement of the trims has occurred and allowed the ingress of water into the timber frame of the balustrade and substrate of the balcony which is causing deterioration of building elements. Pertains to item 17 of the complaint form

• [47] This relates to a tiled balcony on the lower level of the house. The balcony balustrade is sheeted with FC sheeting and with similar balustrade capping. There are gaps between the capping and the commencement of the vertical sheeting (lining) as shown in photographs included in the RS report at page 36.[10] There are also gaps around the post cutouts, again evident in the photographs. Mrs Shannon observed:

There was no evidence of water entry into the balustrade frame or floor structure when viewed from below at the initial inspection. During the reinspection undertaken on 1/3/2022, gaps in the timber trims were observed to have opened up significantly and moisture marks were observed on framing and flow substrates below the balcony, below the balustrade and aluminium stacker door, and are considered to be originating in part from the observed gaps in the balcony balustrades and non-compliant flashing and upstands to the sliding aluminium door [in part the subject of complaint 27).

• [48] The applicant challenges these findings. Firstly, he says that there was rain leading up to the inspection on 22 February 2022 and yet there was no evidence of water penetration at that time. Secondly, he relies on there being a heavy rainfall event on consecutive days, 26, 27 and 28 February 2022.[11] Also, I would observe that this building work had been carried out in 2020 and up to February 2022 there had been no evidence of water penetration. Thirdly, the applicant contends that the water marks to the substrate (particle board) was from rain during the build. Again, I am aware from my own general knowledge of building practices (and deciding building disputes and reviews) that the substrate floor is exposed to the weather during the build and it can tolerate rain water and will stain when left to dry.[12]
• [49] Because the evidence of water penetration only arose between the first inspection and second inspection, and there was a significant rain event in the interim, I cannot be satisfied that this is a result of defective building work. This is particularly so when the work performed its function from when it was first constructed in 2020. I also conclude that because of these factors this is not a structural failure. I propose to set aside this direction in the DTR.
• [50] Item 6 in the DTR is as follows:

The installation of the entry slab does not comply with the requirements of the Building Code of Australia, Volume 2 2019, part 3.1.3.3(a) and (b) in that the required height of the slab above the paved area does not comply, nor does the required gradient away from the dwelling comply, resulting in the accumulation of water at the front door and adjacent wall, thereby creating undue moisture against the building elements, deterioration of building elements and loss of amenity for occupants. Pertains to item 18 of the complaint form.

• [51] From the front carport, there are paved steps down to a "slab" and then a paved pathway to the front door. Where the stairs and the pathway meet there is a strip drain the length of the stairs for stormwater. In the RS report it was found that:
  • The paving towards the dwelling, and falls towards the dwelling were recorded at 6mm over 2000mm.
  • The front door sill was essentially flush with the paving
• [52] Common sense and also the BCA dictates that there should be fall away from the dwelling towards the strip drain. That is not the case by reference to the measurements taken by Mr Shannon.
• [53] In addition, the new owners complained that water flowed over from the adjacent retaining wall and bypassed the drains and pooled at the front door. I accept this evidence and it is consistent with the objective measurements. After the February 2022 rain event water meter readings at the front door showed moisture content in the floorboards at the front entrance.
• [54] The applicant's response to this is firstly the paving is not on a slab. He produced a photograph to confirm this. I am afraid I cannot see what difference this makes. Also, "the entry way leading to the front door is fully under cover, an alcove with walls on three sides". Again this is evident in the photograph. However, the applicant as a licensed builder knew or should have known of the requirements of the BCA that there be fall away from the door. Alternatively there should be a differential in height between the door sill and the paved pathway. This is defective building work and therefore this item of the DTR is confirmed.
• [55] Item 7 and 8 of the DTR are as follows:

The installation of the bearer to the post does not comply with the requirements of AS1684.2.2020 "Residential timber framed construction", clause 9.7.4, in that there is an absence of the required connections between bearer and post which is compromising the structural integrity of the connection. The installation of the bearers do not comply with the manufacturers requirements in respect of spans and sizes, in that they are undersized for the existing spans, thereby compromising the structural adequacy of the bearer. Pertains to item 20 of the complaint form.

And

The installation of the steel posts and timber bearers does not comply with the requirements of the Building Code of Australia, volume 2, 2019, part P2.1.1 as the structure is manifestly inadequate and not capable of resisting the actions to which may reasonably be expected to be subjected. Pertains to item 19 of the complaint form.

• [56] This work was inspected by Mr Hughes, an engineer, in conjunction with Mr Shannon. The essence of this complaint relates to the posts and bearers under the lower floor of the new section. Mr Shannon reported that:
  • A number of the steel posts are out of plumb by 10mm - 20mm.
  • Multiple posts had been joined in the length of the post and there were deviations out of plumb in both directions of approximately 25mm.
  • A number of bearers were seated on sections of posts welded to support posts and also bolted through welded flanges.
  • A number of posts had no mechanical connection to the bearer, and in one location the bearer was only just sitting on the edge of an attached section of post without a mechanical connection to the post, and was embedded in the raw cut edge of the post.
  • A bearer had been joined via a steel fish plate an M12 bolts, and the join was not supported by a post.
• [57] In view of the above, Mr Hughes was critical of the construction of the structural integrity of the sub floor in view of what is described above. In summary, he went so far as to say in his professional opinion that the bearers on the steel stumps was structurally inadequate because they were located out of position. The connections were "wildly eccentric and require a structural check by an engineer to ensure this is no overstress".
• [58] Photographs produced in the RS report confirm the observations of both Mr Shannon and Mr Hughes.
• [59] The applicant disputes the extent of the defective work and says it relates to only one post which he has offered to rectify. Whether the applicant was notified of the inspection of 1 March 2022 or not, the defective work was there to be seen as is shown in the photographs.
• [60] It would not be unfair to confirm the DTR for these items as clearly it requires rectification.
• [61] Item 9 of the DTR is as follows:

The installation of the frame tie downs do not comply with Australian Standard AS 1684.2-2010 "Residential timber frame construction" clause 9.6.1 in that that tie down rods do not provide a continuous connection to foundations via appropriately connected framing members, thereby compromising the structural integrity of the tie downs. Pertains to item 21 of the complaint form

• [62] Some of the tie down treaded rods terminated under the particle board subfloor rather than a framing member, like a floor joist or bearer. This is clearly inadequate to provide structural integrity. As noted in the RS report "continuity of tie-down shall be provided from the roof sheeting to the foundations". This is fundamental in the frame construction. This item of the DTR is confirmed.
• [63] Item 11 of the DTR is as follows:

The installation of the timber bearer does not comply Building Code of Australia, Volume 2, 2029, part 3.4.1.2, in that there is not the required clearance between timbers and the ground, exposing the timber to termite attack and dampness. The installation of timber cladding at the front entry does not comply with the requirements of Building Code of Australia Volume 2. 2019 part 3.5.4.7 or Australian Standard AS 3660.1-2000 "Termite management Part 1: New Building Work" clause 4.4. and 3.6, in that the timber cladding is in contact with the surface and thus allow concealed entry of termites. Pertains to item 24 of the complaint form.

• [64] This is a little confusing as the RS report states that there should be a minimum of 75mm clearance between bearer and the ground. The photograph in the report shows a clearance of in excesses of 75mm and up to 96mm. This then complies with the requirements of the BCA.
• [65] As for the weatherboard cladding, the applicant says, and consistent with his earlier evidence, that the path to the front door is not on a slab but on a suspended floor. The weatherboard cladding finishes on the surface of the paved walkway. What is unclear is that the supports for the suspended floor seem to sit directly on concrete as shown in the photograph in the applicant's statement at page 14/25.
• [66] The Rapid Report, on page 25 does not identify any evidence of failure exposure to "timber pest attack". The timber member shown in the photograph on that page is the one the applicant increased the clearance to the satisfaction of the new owners.
• [67] Without knowing precisely what is under the floor where the weatherboards make contact, other than what Mr Shannon's says, I cannot be satisfied the direction should be confirmed to ensure there is a termite barrier. I therefore propose to set aside that Item 11 firstly that the pest inspection report did not identify any issues and secondly on the fairness ground given that the new owners were prepared to proceed on the basis of that report.
• [68] Item 14 of the DTR is as follows:

The installation of the building elements and application of waterproof membranes to the upper deck do not comply with the requirements of Australian Standard AS 4654.2-2012 "Waterproofing membranes for external above ground use Part 2: Design and Installation", part 2.5.2,2.8.1 and 2.8.3, nor the Building Code of Australian Volume 2 2019, part 2.2.2 in that falls on the floor levels are incorrect, water is pooling on the surface and water has entered the void below the balcony and damaged the ceiling below. Pertains to item 26 of the complaint form.

• [69] This complaint relates to the tile balcony of three rooms including bedroom 3. Water was observed to be ponding or pooling on the tile area adjacent to the balustrade outside bedroom 3 towards the dwelling exterior of the rumpus room. Water was not draining to the installed floor waste. The levels were checked with a spirit level and found that the falls were inadequate. It appeared that there was inadequate coverage of waterproof membrane against the VJ boards behind the existing timber weatherboards. This is also demonstrated in the photographs that are included in the report showing the direction of the falls and presence of moisture with the use of the water meter.
• [70] The applicant relies on the fact that the waterproofing was undertaken by a qualified water proofer and the Form 16 was issued. Any evidence of water damage does not relate to incorrect falls but the failure of the down pipe which was an existing element of the house. The applicant contends that there is no structural defect and it would be unfair to issue the direction.
• [71] The investigation by Mr Shannon is comprehensive and evidenced with not only the photographs, but also measurements taken which are shown in the photographs. The applicant is responsible for the work of the water proofer and if it is inadequate, it remains the applicant's responsibility to ensure that the habitable area is free of moisture. In my view there is more than sufficient evidence to establish that the internal area is exposed to moisture because of the ponding and inadequate waterproofing and therefore this item of the DTR is confirmed.
• [72] Item 15 of the DTR is as follows:

Installation of the building elements at the junction of the dwelling floor, stacker door and balcony door do not comply with the requirements of Australian Standard AS4654.2.2012 "Waterproofing membranes of external above-ground use Part 2: Design and Installation". Part 2.8.1 and 2.8.3, in that there is no vertical termination of membrane or observable flashing installed, which has thereby allowed water ingress to timber framing members and deterioration thereof. The change to item 27 of the complaint form.

• [73] This area relates to the tiled balcony accessed from the living room via an aluminium stacker door. The tiled area has FC sheet substrate over particle board. There is no differential in height between the living area and the tiled balcony. This was of some concern however, if waterproofed correctly, there should be no moisture visible in the living area and there was not. Mr Shannon did not see any signs of water penetration on his first inspection but on the second inspection, and beneath the floor framing, he noticed some water staining on the timber. This caused him to conclude that there must be some water penetration and this caused him to issue the DTR.
• [74] The applicant rejects any suggestion that there is a failure in the waterproofing because he has a Form 16 issued by the water proofer. Also any watermarks/staining in the photographs was as a result of the timber framing getting wet during construction. This is consistent with what I had said earlier in these reasons about water staining.
• [75] The difficulty with this defect is that the investigations were not specific as to whether there was any breakdown in the waterproof membrane, the main complaint being that there was no step down from the living area to the balcony. Given the vagueness of the complaint, I propose to give the benefit of the doubt to the applicant and therefore this item of the DTR will be set aside.

• [76] Having considered each of the complaints the subject of the DTR I have come to the conclusion that Items 1, 2, 4, 6, 7, 8, 9, and 14 are confirmed.
• [77] I propose to vary the DTR under s 24 of the QCAT Act. Both Items 5, 11 and 15 are set aside.
• [78] There will be an order accordingly.

[3] Ibid page 657 being items 1, 2, 12, 13, 17, 18, 20, 21, 22, 24, 24, 25, 26, 27, and 29 of the complaint lodge by the owners.

[5] [2010] QCATA 58, [9].

[8] I accept that it is not for the Commission to inform the licensee of how to carry out the rectification work but that does not prevent me from applying s 28(3)(c) of the QCAT Act in informing myself in any way I consider appropriate.

[9] [2025] QCAT 371, [55] after adopting what SM Brown said in Murphy v Queensland Building and Construction Commission [2024] QCATA 27, [28].

[11] I accept this to be the case because I specifically recall this event and the flood event in Brisbane with many roads cut.