Lazarus v Queensland Building and Construction Commission [2025] QCAT 175

(a) Was the work "building work"?

(b) Was the building work "defective" or incomplete?

(c) Was the building work carried out by the builder?

(d) Is it unfair to direct the builder to rectify the building work in all the circumstances?'

• [4] It is conceded that the work was "building work" so the main issue is whether the work was defective work and whether it was fair to direct rectification.

• [5] On or about 28 September 2020, the Owner and Gerard Lazarus ('the Builder') entered into a Level 2 Renovation, Extension and Repair Contract ('Contract') for the renovation of an existing dwelling ('the works') at Coopers Plains in the State of Queensland ('the Property'). For reasons that will appear hereunder I will not name the owner, as I consider he has not had an opportunity to respond to the allegations of misconduct on his part that has potentially contributed to the issues of defective work.
• [6] The Builder says he undertook this contract for a friend. In early discussions the Owner said he was interested in adding a deck to the rear of the house which would require an extension of the roof line. The Builder advised the Owner to engage a draftsperson to draw plans for the deck, an engineer to design both the deck and the installation in the lounge of the steel beam and a certifier for certification of the works being completed. He provided them with a quote dated 12 July 2020[1] for $75,000.00 inclusive of GST. The Builder says the quote was for a labour only.
• [7] Following receipt of the quote the Owner advised that he intended to engage his own plumber, electrician and a third party to install the kitchen. He advised that he would be responsible for the demolition of the works including removal of all old plaster and asbestos wall linings and making the works safe and ready. The Builder was under the impression that the Owner was using an owner/builder licence to carry out the renovations. Because the relationship arose from friendship the Builder advised that he did far more than he would ordinarily have done had the relationship been at arm's length. Only later did the Builder become aware that Owner was not carrying out the work under an owner/builder licence.
• [8] Subsequent to receipt of that quote, on 21 July 2020 the Builder issued a revised quote for $53,350.00 inclusive of GST.[2]
• [9] On 4 August 2020, the Owner requested, inter alia, that the Builder redo the quote and remove references to asbestos.[3]
• [10] On 11 August 2020, a further request was made by the Owner's wife for something to give to the bank requesting that the quote be $90-$95k and not mention that they would be doing the demolition.[4] The Builder provided a quote dated 13 August 2020 for $104,500.00 inclusive of GST.[5]
• [11] The final quote 1163(4) dated 10 September 2020 was for $94,600.00 inclusive of GST.[6]
• [12] A QBCC Level 2 Renovation Extension and Repair Contract[7] undated but said to have been issued on 26 September 2020 set the contract price at $118,470.00 inclusive of GST. The Builder says that he was to provide carpentry services only. The Contract describes the works as it appears in the final quotes which are numbered 1163(4) and (5). It did not specify that it was a labour only contract. Indeed, the Contract does not reflect what the Builder says their agreement was.
• [13] Pursuant to item 13 of the Contract, the Owner was required to obtain the building approval. I believe that no approval was obtained. No architectural or engineering drawings were provided by the Owner. The Owner proceeded with demolition work himself.
• [14] The Builder described the house as having been renovated previously on several occasions. By the time he viewed the house, the original side wall of the house had been removed and replaced with an unsized timber beam. This beam showed signs of being under stress but was able to hold the weight. This beam was to be replaced with a steel beam provided by the Owner.
• [15] A section of house had been constructed behind the original side wall and (at the time of the renovation) new rafters had been installed which ran from the new rear external wall to the ridge of the house. The original rafters had been left in place along with the ceiling joists. These rafters and joists were supported by the undersized timber beam, referred to above.
• [16] The works commenced on 21 September 2020 and reached practical completion on 31 March 2021.
• [17] On or about 18 May 2021, the Commission received a defective building work complaint ('Complaint') which included 34 items of alleged defective work.
• [18] On 16 August 2021, the Commission's building inspector, Andrew Kirby, conducted an inspection of the alleged defects at the Property.
• [19] On 20 August 2021, Kirby produced an inspection report outlining his findings in relation to the existence of, and liability for, the alleged defects identified in the Complaint (Inspection Report).
• [20] The Inspection Report found that:

(a) Complaint items 1, 2, 4, 8, 9, 10, 14, 15, 16, 17, 22, 24, 25, 29, 32 and 33 were non-structural defective work in need of rectification ('Defective Work'); and

(b) Complaint items 3, 5, 6, 7, 11, 12, 18, 19, 20, 21, 23, 26, 27, 28, 31 and 34 were not defective work in need of rectification ('Non-defective Work').[8]

• [21] On 23 August 2021, the Commission issued a direction to rectify no. 0108252[9] to the Builder for the Defective Work pursuant to section 72 of the QBCC Act ('Original Decision').
• [22] The Builder completed the work required by the Original Decision on 17 September 2021. By email date 24 September the Owners notified Mr Kirby that they were satisfied with the rectification work.
• [23] On 2 September 2021 the Builder filed online application for an internal review[10] which was actioned by the Commission on 27 September 2021. The complaint was that the Builder was always ready and willing to carry out the defective work but was told to wait until after inspection. He wished to have the reference to the DTR removed from his licence. The application was rejected as being out of time.[11]
• [24] On 24 September 2021 the Owner filed an undated online application for an internal review[12] which was actioned by the Commission on 24 September 2021. It related to decision to not give a direction to rectify for Complaint items 11 (wall buckling) and 34 (beam - structural concerns). The application was supported by photographs of the wall with the Owner showing the extent deviation. The following description was included:

Item 34 - Structural concerns: We do not feel that the engineering was taken into consideration at the required level. We feel that an engineer is required to make a decision on the works being sufficient structurally or not. We do not understand where the structural alteration being less than 20% of the entire house structure comes from. There were 4 walls removed from the internal of the house as well as a downstairs laundry structure raised to the house height to become the ensuite and walk in robe, removal of parts of the wall adjacent to the original laundry to create entrances to the walk-in robe and an addition to the study wall.

The referred to 7.2.4.3 advises that the ceiling joists should be fixed to the 'hanging beam' using timber cleats, steel strapping, steel celling joist hangers or equivalent approved fasteners. Each alternate connection shall be fixed to opposite sides of the hanging beam. This not addressed in the what the inspector found at time of inspection part of the report and was only addressed in the photos after with no confirmation if the measurement were to the required Australian Standard.

Given the fixing of the beam was raised as a concern in our provided report, this should have been addressed specifically.

We provided both a report from a qualified builder and a retired engineer that confirmed several questions that have not been answered and raised concerns regarding the point load from the beam onto the wall structure and onto the stumps. We requested our builder to engage an engineer for a full structural assessment. The engineer hired, completed a certification of the beam only. They are unwilling to complete a form 15, this causes us concern.

As the previously provided paperwork is insufficient to have all of our concerns address, we have engaged the services of NJA Engineering who are attending our home on Tuesday 28 September 2021 and will have the report to us shortly after. Given the current business of the construction Industry we were unable to find an engineer with capacity sooner that was able to complete the works. We request that we are able to submit the report. once received as consideration of the structural issues.

• [25] The Internal Reviewer Grant Wilkinson did not visit the Property but reached his decision in respect of Item 11 based on photographs taken by the owner.
• [26] The following Direction to Rectify (DTR) was issued by the Commission:

17. The installation of the gypsum plasterboard on the wall between the master bedroom and the living room does not comply with AS/NZS 2589.1:1997 Clause 7.1.4(b) in that a deviation in the wall exceeds 4mm measured over a 1.8m span along the wall resulting in an unsightly wall finish. Pertains to item 11 of the QBCC Complaint; and

18. The installation of the hanging beam (250PFC) position over the living room does not comply with AS 1684.2:2010 in that the end supports of the hanging beam are not held into position using the methods set out in clause 7.2.5.2 and the ceiling joists have not been fixed in accordance with the methods as set out in clause 7.2.4.3 resulting in a detrimental effect of the structural stability of the beam and ceiling joists. Pertains to item 34 of the QBCC Complaint Form.

• [27] In respect of item 11, the Commission, in its Statement of Reasons, asserts that there is evidence of deviation in the wall between the master bedroom and the living room which does not comply with section 4.2.2 of AS 2589:2007 Gypsum Lining: Application and Finishing, in so far as the deviation exceeds 4 mm measured over a 1.8 m span. It will be noted that the Australian Standard referred to in the DTR was an earlier edition.

• [28] Initially when the wall was inspected by Mr Kirby it was found to comply. Mr Kirby attended the site on 20 August 2021 and visually inspected the wall using a 2.0 m straight edge. He found deviations of between 1 mm and 3 mm. Additionally, at the time of the inspection there was found to be a maximum of 4 mm horizontal deviation in the centre of both sides of the wall.
• [29] I should interpolate that part of the wall was pre-existing and the Builder constructed only part of it by the installation of 2 studs, but lined the entire wall with Gyprock sheeting. One can infer from reading the Commission's Standards and Tolerances Guide ('the Guide') that the Guide is really referring to new work as it allows for a period of 12 months from completion for the defect to become evident.[13] Mr Kirby gave evidence that the Builder inserted 2 pine studs under the steel beam, I infer that was the only addition he made to the wall other than cladding it. [14]
• [30] Mr Kirby's conclusions were:

Item number 11 of your complaint form has been investigated and there was insufficient evidence to reveal any obvious defective construction practices by Gerard Lazarus at the time of inspection. Therefore, the QBCC is unable to provide you with any further assistance with the resolution of the item.

• [31] The Owner then conducted his own measurements, photographed the results which formed the basis for Mr Wilkinson to make the finding that it did not comply. Mr Wilkinson did not visit the site but accepted the Owner's photographs.
• [32] The following DTR in relation to item 11 was issued by the Commission:

17. The installation of the gypsum plasterboard on the wall between the master bedroom and the living room does not comply with AS/NZS 2589.1:1997 Clause 7.1.4(b) in that a deviation in the wall exceeds 4mm measured over a 1.8m span along the wall resulting in an unsightly wall finish. Pertains to item 11 of the QBCC Complaint;

• [33] The Builder submits that by finding one single point in the framing that protrudes out further than the balance of the wall, the homeowner has exerted pressure to one end of the straightedge cantilevering it off the wall at the other end of the straightedge and accordingly showing a purported 15 mm deviation from the wall. Further the photos of the homeowner do not clearly indicate what is new works and what is existing works.
• [34] Pursuant to section 5: Framing Part 5.3. of the Guide[15] the measurement of a bow is done using one of two methods:

(a) By placing the level on high spots either side of the deviation and measuring the distance from the straight edge to the deviation; or

(b) By evenly supporting the straightedge on either side of a raised section in a wall and measuring the deviation from the wall at either end of the straightedge.

• [35] The Commission also relies upon AS 2589:2007 Gypsum Linings: Application and Finishing, and submits that the deviation as found by the Owner exceeds 4 mm measured over a 1.8 m span. However, the measurements on which the findings are based were not conducted in accordance with the Guide. The horizontal measurements were not made at the centre of the wall and were not made with a 1.8 metre straight edge.[16]
• [36] It should be noted that the Guide in respect of framing and the Standard assumes the measurement of the frame and not after the attachment of the plaster board or lining.[17] More generally, the Guide refers in clause 1.3 when measuring surfaces to the method adopted by Mr Kirby.[18]
• [37] I also note that Mr Kirby made the measurement with a 2 m straight edge and not the requisite 1.8 m straight edge.[19]
• [38] In his subsequent statement, and at the hearing, Mr Kirby resiled from his original opinion but did not provide any credible reason for doing so. He could not recall what part of the wall he had measured but stated in evidence that he measured the wall at the place directed by the home owner and found a deviation within tolerances.[20] He explained the difference as possibly due to the Owner measuring in a different spot. Subsequently, he seemed to agree that the measurements were in the same spot but that they came to a different conclusion.[21]
• [39] At about the point of the wall where the Owner was photographed with the straight edge, one end of the straight edge was on part of the existing wall and the other end on part of the wall where the Builder had inserted the two studs. In addition, Mr Kirby noted that the Owner had used an incorrect method of measuring the wall but then made some arbitrary assessment (halving the finding) to then reach a conclusion that it was still out of tolerance. The deficiencies in the Owner's measurements became apparent during the cross-examination of Mr Kirby.[22]
• [40] I was not convinced by Mr Kirby's reasons for coming to a different conclusion to the Internal Review decision. Indeed, there was no satisfactory explanation.
• [41] The evidence I am asked to consider is on the one hand the findings of an experienced building inspector who physically inspected the wall, who is directed to the point where the Owner said it was out of tolerance, measures it and finds it to be within tolerance. Then on the other hand there is the photographic evidence of the Owner, who has no apparent expertise in carrying out such a measurement, who cannot be said to be unbiased, and the acceptance of his evidence by an inspector who does not carry out a physical inspection but relies upon the photographic evidence to reach his findings. It appears that at the time of the initial inspection and the Internal Review which was four months apart, the site was not an active building site and would have been in the same state had it been examined on the second occasion.
• [42] I accept Mr Kirby's original findings as being the most accurate and find that item 11 was not defective work.

• [43] The Owner's plan was to replace the undersized timber beam with a new steel beam. When looking at the original beam, the Builder determined that it was not a hanging beam. It was not positioned above the ceiling joists as is required by AS 1684.2:2001 - Residential timber-framed construction, Part 2: Non-cyclonic areas for a beam to be a hanging beam. He formed this opinion based this on the wording of the Australian Standard which provided:

Clause 7.2.5.1 of AS 1684.2 states:

Hanging beams shall support ceiling joists and the attached ceiling material only. Hanging beams are usually at right angles to the ceiling joist and are located directly above them.

• [44] Applying it to the house as he observed it he reached the conclusion that:

(a) A hanging beam supports ceiling joists and attached ceiling material only. In this circumstance, it supported the original, now obsolete, roof rafters which remained in place as well and ends of the ceiling joists; and

(b) A hanging beam is located directly above the ceiling joists.

• [45] In the circumstances, the obsolete roof rafters and the ceiling joists butted into the steel beam. The steel beam was not located above the ceiling joists supporting them but was located in such a position as to hold up the ends of the rafters and ceiling joists in the location of the original external side wall and replacing the previously installed under sized timber beam.
• [46] The original complaint, which was received by the Commission on about 18 May 2021, was that the house seemed to have some significant structural issues.[23] The description is somewhat vague but Mr Kirby on visiting the property identified this issue as relation to a steel beam that was installed by the builder that spanned 5.6 m over the living room. Mr Kirby erroneously identified this as a hanging beam. An error that was propagated by others until corrected by the engineering report of NJA Consulting Pty Ltd.[24]
• [47] The complaint was accompanied by a building inspection report from a Mr A.P.G. Browman. Mr Browman did not give evidence but his report formed part of the complaint. The following observations relevant to the beam were made by Mr Browman:

c) The 250 PFC appears to be straight and not deforming under static load however a structural calculation needs to be done to confirm its sizing under dead and live load conditions

d) The 250 PFC is not bolted to the support columns, nor is it restrained and can potentially rotate (fall flat onto its flanges) due to the fact that it is not restrained and the location of the rafter loading on the top flange and truss loading onto the bottom flange causing an unbalanced load situation. and hence rotation.

e) The original cottage rafters and the lean to extension rafters simply sit on to the 250PFC and are not attached in any way. Uplift from wind loads can potentially lift sections of the roof off the 250 PFC.

f) The 250 PFC is only partially supported by the column at the rear of the house and is not physically attached nor has full bearing support.

• [48] There were other criticisms about the beam's installation but as Mr Browman was not called by either party I do not place any weight on his observations other than the fact that Mr Kirby was seized of this information.
• [49] Mr Kirby noted that the structural alterations to the house were less than 20% of the house structure. It is important to note that no engineering opinion was obtained prior to the installation of the beam.
• [50] In relation to Item 34 the Commission now asserts that:

(a) AS 1684.2:2001 - Residential timber-framed construction, Part 2: Non-cyclonic areas, require that timber structures are designed to resist imposed stresses, including uplift by way of tie-downs which provide uplift resistance.

(b) In its performance of the work the Builder has replaced the pre-existing roof beam, which would have provided uplift resistance together with at least nominal connection to the ceiling joists, with a 250 PFC beam ('beam').

(i) Which does not have formal framing at either end, with no restraint to prevent movement of the beam; and

(ii) No tie-down studs to support the beam post were observed.

(c) In order for the ceiling joist and rafters to have been adequately fixed to the beam, an uplift connection would have been required on both ends of the beam;

(d) Consequently, the Builder's installation of the beam does not comply with the tie-down requirements of AS 1684.2:2001 - Residential timber-framed construction, Part 2: Non-cyclonic areas.

• [51] The Internal Review decision by Grant Wilkinson dated 22 October 2021[25] directed the Builder to rectify Item 34. The DTR was as follows:
  1. The installation of the hanging beam (250PFC) position over the living room does not comply with AS 1684.2:2010 in that the end supports of the hanging beam are not held into position using the methods set out in clause 7.2.5.2 and the ceiling joists have not been fixed in accordance with the methods as set out in clause 7.2.4.3 resulting in a detrimental effect of the structural stability of the beam and ceiling joists. Pertains to item 34 of the QBCC Complaint Form.
• [52] Mr Wilkinson reached his decision with the assistance of a report dated 5 October 2021 from an engineer, NJA Consulting Pty Ltd.[26] Despite that report making no reference to the roof beam being a hanging beam, the Internal Review report described the beam as a hanging beam. Indeed, the DTR was made on the assumption that it was a hanging beam.
• [53] The Builder's case is that he was unable to comply with the Direction to Rectify whilst it continued to assume that the beam was a hanging beam.
• [54] The works were completed under the Home Warranty Insurance. The Commission was unable to advise me whether it was completed in accordance with the DTR.[27] The clear inference is that it was not as everyone at the hearing agreed that the beam was not a hanging beam and the requirements of securing a hanging bean differs from the requirements of securing a roof beam. I use the word 'securing' in a broad sense. I also note that in October 2022 Mr Brad-Leigh Prouten of NJA Consulting Pty Ltd was engaged to advise the builders who rectified the Works and, subsequently, prepared drawings to assist them and to obtain the Form 15 Compliance Certificate.[28]
• [55] It is clear from his evidence that a roof beam and a hanging beam are not the same type of beam.[29] Mr Prouten agreed that the DTR as given was not possible to follow.[30]
• [56] Although the beam was not a hanging beam but a roof beam I am satisfied on the evidence of the engineer Mr Prouten that it was not properly secured as it should have been and to that extent it was defective work.
• [57] One can sympathise with the Builder that he was not provided with any engineering advice by the Owner, but he should have sought such advice before proceeding. His case was that he was of the belief that the Owner was proceeding under an Owner/Builder licence. The Owner engaged several subcontractors to carry out work which the Builder assessed, in monetary terms, as exceeding the minimum permitted value of work before a licence is required.
• [58] Whether that be the case or not, the Builder proceeded with the work and cannot be exonerated from his obligations under the Contract he executed. During the hearing I expressed my surprise that the Owner was able to successfully access the Home Warrant Scheme but accept that is not a matter for me to determine at this hearing.
• [59] There remains the 16 other items of defective work that the Builder was asked to rectify. These were not examined or referred to in any detail in the course of the hearing. Indeed, Counsel for the Commission said that they were non-contentious.[31] I am not sure what he meant by that. The Commission's recent submissions maintain it is still in issue. I note that the Builder claimed that he attended to these items on 17 September 2021[32] and the Owner's partner advised, by email 10 December 2021, that she signed off on these items on 19 September 2021. In any event, these items were not agitated as an issue at the hearing. If they were defective then they have been attended to under the Home Warranty Insurance.
• [60] The Builder claims that he was not given an opportunity to attend the inspections by Mr Browman or NJA Consulting or to provide input into what work was performed by him and what was pre-existing. I accept that this was the case.
• [61] I am to consider the matter afresh on the evidence available now. As I have already found, the limited installation of the wall was not defective but the installation of the beam by the Builder did amount to defective work. Nevertheless, I find it would be unfair in all the circumstances to direct the Builder to rectify the works.
• [62] I set aside the internal decision and substitute the decision that work comprising Item 11 was not defective work. Item 34 I find to be defective work but in all the circumstances I find it would be unfair to direct rectification.