Mathew v Queensland Building and Construction Commission & ors [2021] QCAT 117

Queensland Building and Construction Commission Regulation 2003 (Qld), s 5, Schedule 1AA, item 30

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, 24, s 93

• [1] On 15 July 2019 Mr Mathew applied to the Tribunal for review of the decision by the Queensland Building and Construction Commission dated 17 June 2019 not to issue a direction to rectify in relation to "bumpy" vinyl floor coverings in the upper level of Mr Mathew's new home.
• [2] The vinyl floors were installed as part of the contract for the construction of a new home between Mr Mathew and Vincy Vincent Puthukallil and the builder, Paradise Builders Pty Ltd. The flooring was installed by Style Flooring Xtra Pty Ltd, a third party contractor engaged by the builder.
• [3] The flooring works were unsightly due to bumps in the flooring. That is not in dispute. The issue is whether the bumps were caused by inadequate preparation of the sub-floor and, if so, whether that work was "building work".
• [4] There was no appearance on behalf of the builder. I am satisfied that the builder was given notice of the hearing and, given the other parties wished to proceed, I decided to hear and determine the matter in the absence of the builder, as permitted by s 93(2) of the Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act).

• [5] Mr Mathew and Ms Puthukallil entered into a QBCC New Home Construction Contract with the builder for the construction of a 2 storey home. The works were completed on 11 April 2018. On 11 March 2019 Mr Mathew lodged a complaint with the Commission in relation to alleging six items of defective work. Relevantly, complaint 1 was "bumps on vinyl floors upstairs".
• [6] On 13 May 2019, Mr Brian Bates, Building Inspector with the Commission, conducted an investigation of the complaint items and provided an Initial Inspection Report.[1] In respect of complaint 1 the Report provided:

A visual inspection of the item was undertaken and the following observed.

1. The home owner directed me to the vinyl floor coverings to the rooms and hall of the upper level.
2. The joins in the particle board flooring were sanded, raised areas of the joins were visible in certain light conditions with no evidence of depressions on flooring joins or fixings under the vinyl flooring.
3. It was explained that this item was outside the ambit of building work and the QBCC could not assist.

Conclusion: Item 1 of your complaint form has been investigated and identified as being outside the ambit of building work. The Queensland Building and Construction Commission Regulation 2003 Section 5 provides a specific definition of building work. The item you have identified to the QBCC falls outside the legislation's definition of building work. Therefore, the QBCC cannot exercise any statutory power in relation to the items in question.

• [7] On 17 June 2019 Mr Bates issued a direction to rectify but only in relation to item 6 of the complaint in relation to the concrete pathway at the property.
• [8] On 15 July 2019 Mr Mathew applied for review of the decision of 17 June 2019 not to issue a direction to rectify in respect of item 1.
• [9] Mr Bates attended the property a second time and issued a further Reinspection Report dated 19 February 2020. The purpose of the Reinspection Report was outlined in the Report:

A compulsory conference has been scheduled for the 27th of March 2020.

The purpose of the return visit was to place a level over the joins of the upper floor area where vinyl was laid, to measure the height differences from the joins to the centre of the flooring sheets.

1. A level was placed on the flooring in several areas of the upper floor, sitting from join to join and the centre was measured at the lowest point.
2. The areas measured were in the front room, at the top of the internal stairs and further in the hallway.
3. All measurements taken revealed a difference of less than 2mm.
4. Joins and nail fixings were not visible.

• [11] The Report quoted AS1860.2- particleboard flooring, Part 2 - Installation which provided, relevantly:

(d) For other surface finishes, full sanding shall be required if the particleboard has been exposed to the weather. The surface shall be given a first cut with 60-80 grit closed coat paper, followed by a finishing cut with 100 grit closed coat paper.

Particleboard not exposed to weather during construction shall be sanded as above if the particleboard was supplied unsanded. If sanded particleboard was used, the joints shall be sanded over with 80-100 grit closed coat paper.

(e) The depth of material removed shall not exceed the following, except where otherwise specified by the manufacturer:

1. Over the general sheet area.............................................1mm
2. Within 50mm of any supported edge..................................2mm

• [12] The Report also extracted the following from the Manufacturers recommendations for particleboard:

Preparation

Preparation of particleboard flooring to receive floor surfacings will depend on the type of covering or finish and the effect of weather exposure on the floor.

....

Sanding

Sand the surface of the product to level sheet joins and fixing points, even out irregularities and remove any loose weathered particles. For general purpose sanding use 40-60 grit closed coat paper. Refer to sanding provisions detailed under Platform Exposure above.

Heavier sanding, with maximum 40 grit paper, may be required on floors which have been exposed to severe wetting. Avoid excessive sanding and limit to a 1mm maximum cut over general floor areas, 2mm maximum cut over supported sheet joins, in accordance with AS 1860.2.

• [13] The manufacturer of the vinyl planks installed is Godfrey Hirst.
• [14] An invoice for $7, 697 from the flooring contractor to the builder in relation to the vinyl flooring dated 15 March 2018[2] provides:

Supply and install 124.88 m2 Polaris 5mm vinyl plank colour Coastal Blackbutt incl 15lt Smartgrip adhesive incl trims

...

No allowance has been made for:

Moving of furniture

Pull up of existing floor covering

Floor prep

• [15] A Memo created the same day (at 9:26am) created by 'Lee' of Style Flooring Xtra Pty Ltd states:

Timber floor sanding done by builder not up to standard, rough joins and piant (sic) still on floor. Builder has been advised of this but insisted we install planks. He has been advised that no Warranty will be given.

• [16] A later Memo that afternoon (at 2:11pm) created by 'Dave' of Style Flooring Xtra Pty Ltd states:

Spoke to Sony regarding uneven subfloor. Insisted we keep laying, his problem. Advised no warranties on installation due uneven floor and paint on floor. Any rectification work to be paid for.

• [17] Mr Mathew submits that it was the builder's responsibility to prepare the sub-floor and in effect that, therefore, it must be "building work" within the meaning of s 72.
• [18] The Commission submits that, although the installation of the vinyl flooring was defective, there are, in effect, two components to the installation: one being the installation of the particleboard (to which AS1860 applies) and one in relation to the installation of the vinyl flooring itself (to which AS1884 applies). The Commission submits that the installation of the particle board was not defective and that the preparation of the sub-floor was the issue. They say that the preparation of the sub-floor which could involve sanding or infilling, was part of the laying of the vinyl flooring. Accordingly, the Commission submits, the work relating to the laying of the vinyl flooring (which included preparation of the subfloor) was not building work within the meaning of s 72.

• [19] The provisions governing the rectification of building work are contained in Part 6 of the QBCC Act. Section 72 provides:

72 POWER TO REQUIRE RECTIFICATION OF BUILDING WORK AND REMEDIATION OF CONSEQUENTIAL DAMAGE

(1) This section applies if the commission is of the opinion that -

(a) building work is defective or incomplete; or

(b) consequential damage has been caused by, or as a consequence of, carrying out building work.

(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction -

(a) for building work that is defective or incomplete - rectify the building work;

(b) for consequential damage - remedy the damage.

(2A) The commission must make the direction no later than the end of the period prescribed by regulation.

(3) In deciding whether to give the direction, the commission 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 the contract for carrying out the building work (including the terms of any warranties included in the contract).

(4) The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period -

(a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or

(b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.

(5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

Example for subsection (5) -

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner's home or because an owner's failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

(6) The commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work.

(7) In subsection (3), 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.

(8) To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J.

• [20] "Building work" is defined in Schedule 2 to the QBBC Act to include, relevantly the "construction of a building" but does not include "work of a kind excluded by regulation from the ambit of this definition".
• [21] Section 5 of the Queensland Building and Construction Commission Regulation 2003 (Qld) relevantly provides:

Work that is not building work

(1) For the Act, schedule 2, definition of building work, work stated in schedule 1AA is not building work.

...

• [22] Schedule 1AA, item 30 of the Queensland Building and Construction Commission Regulation 2003 (Qld) provides that the following work is not "building work":

Laying carpets, floating floors or vinyl

(1) Laying of carpets, floating floors or vinyl;

(2) In this section -

"floating floor" means a floor that covers a subfloor but is not fixed to the subfloor

• [23] A decision not to issue a direction to rectify is a reviewable decision under s 86(1)(e) of the QBCC Act. Section 87 provides that a person affected by a reviewable decision may apply for review.
• [24] The purpose of a review is to make the correct and preferable decision.[3] The Tribunal is required to hear and determine the review by way of a fresh hearing on the merits.[4] The Tribunal, on review, may:

(a) Confirm or amend the decision; or

(b) Set aside the decision and substitute its own decision; or

(c) Set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[5]

• [25] In my view, the issues for determination are:

(ii) Whether they were caused by the installation of the particleboard;

(iii) Whether they were caused by inadequate preparation of the subfloor;

(iv) Whether, in either case, the work in (ii) or (iii) comes within the meaning of "laying vinyl flooring" and is therefore excluded from "building work".

(v) Whether it would be unfair to give a direction to the builder to rectify the relevant complaint item.

• [26] It is important to understand that the question for this review is not, as Mr Mathew repeatedly said during the hearing, whether the builder's work was "dodgy". The issue is whether "building work" was dodgy and if so, whether a direction to rectify should be issued. In addressing this question, it is also important to understand that whether something is "building work" is not a matter of agreement between the builder and flooring contractor, but a question of statutory construction.
• [27] It is not in dispute that "laying vinyl flooring" is not "building work" for the purposes of s 72 of the QBCC Act. It is necessary, therefore, to determine what work is covered by "laying vinyl flooring" as that work is statutorily precluded from being the subject of a direction to rectify.
• [28] The Tribunal was directed to two relevant Standards:

(a) AS 1860.2-2006- Particleboard flooring - Part 2: Installation (AS 1860); and

(b) AS 1884-2021 - Floor coverings - Resilient sheet and tiles - Installation practices (AS 1884).

• [29] The Standards are both relevant to the installation of vinyl flooring in that the work involves first, the installation of a subfloor (dealt with in AS 1860) and, second, the proper preparation of the subfloor (dealt with in AS 1884). The subfloor is the structural layer intended to provide support for the flooring. In this case the subfloor was particleboard.
• [30] It was not in dispute that the installation of the subfloor (here the particleboard) is 'building work'. The parties disagreed however, as to whether the installation was defective.
• [31] Mr Mathew referred to an email from Mr Lew Davies-Griffith, After Sales Representative, Style Flooring Xtra Pty Ltd to Mr Mike Matthews, Director, Style Flooring Xtra Pty Ltd of 7 April 2020 which was forwarded to Mr Mathew. The subject line of the email is "Inspection Report [address of the property]. The email relevantly provides:
  • The area upstairs study/hall/ and bedrooms are all affected with the subfloor showing through the planks
  • The subfloor is a particleboard type and is bowing down between the joists
  • The reflected light in the Hall and study is the most noticeable
  • The bedrooms have the same problem. Using a straight edge will show the amount of flatness.
  • This is a subfloor issue, the floor may have been wet during construction causing it to bow.
• [32] The email also outlines a "resolution" to repair the floor and provides, relevantly:
  • Remove silicone around the walls
  • Uplift vinyl planks/ Perimeter numbered on tape so they can be re-laid in the same position/ the field can then be taken up and re-laid as required
  • P/s glue was used and will need to be dusted with feather finish broomed in to remove the tack
  • Joins in sheets will need to be ground with a diamond plate to achieve a flatter floor
  • Feather finish the hole (sic) floor and sand
  • Re-lay existing planks
  • Re-silicone walls//white
• [33] Mr Davies-Griffith did not attend the hearing and so was not available for cross-examination.
• [34] The Commission's evidence regarding the installation of the particleboard was provided by Mr Bates, Building Inspector with the QBCC.
• [35] Mr Bates gave evidence, which was not disputed, that to comply with AS1860 the following work must be undertaken:

(a) Plumb and level the floor framing (as required pursuant to AS 1684);

(b) Ensure the face of the joists the flooring is affixed to are clean and dry;

(c) The appropriate adhesive is to be applied between the joists and particular board flooring;

(d) Secondary boards are to be installed within the tongue and groove junction;

(f) The flooring is to be secured as per the manufacturer's instructions; and

• [36] Mr Bates inspected the flooring on two separate occasions[6] and gave evidence in written reports and at the hearing that the particleboard had been installed in accordance with AS1860 and with the manufacturer's installation instructions for particle board flooring and that it had not bowed. Mr Bates, in his Re-Inspection Report took measurements in several areas of the flooring and corresponding photographs. The measurements revealed a difference in the floor height of less than 2mm, which is within the tolerances allowed for in AS 1860.
• [37] Mr Bates disagreed with the assertion by Mr Davies-Griffith that the particleboard had bowed. In his view, the particleboard had not bowed and had been installed correctly. When questioned during the hearing as to how he could be satisfied the particleboard had not bowed, Mr Bates explained that this was because the joists were positioned at 450mm centres and at 90 degrees to the tongue and groove joins that were visible which were 900mm, which was the width of the particleboard flooring.[7] Further, that the framing was all level and so when the particleboard was put in position on the framework as described there was no bowing because the structure and capability of the particleboard is such that it will span 450mm.
• [38] In Mr Bates' expert opinion, the 'bumps' were caused by swelling of the joins between the particleboard sheeting which he said is common. Mr Bates gave evidence that joins almost always have some swelling which is why they are sanded, but only to the manufacturer's requirements. Mr Bates in his Initial Inspection Report concludes that the joins in the particleboard had been sanded. Mr Bates referred to the recommendation by Mr Davies -Griffith that the joins should have been ground and a feather finish applied to the whole floor. Mr Bates gave evidence that a feather finish is essentially a leveller applied to the surface to fill undulations. In Mr Bates' view, sanding and the application of a leveller is preparatory work integral to the laying of the vinyl. Such preparation work, in his view, is not 'building work' which, in this case, would be confined to the work relating to the installation of the subfloor itself. Further, that this is reflected by the ambit of the two standards: AS 1884 being the most appropriate standard for the preparation of the subfloor for the laying of vinyl flooring; and AS 1860 being the standard directed to the installation of that subfloor, here particleboard flooring. (emphasis added)
• [39] I am unable to be satisfied that there was any defective work by the builder in the installation of the particleboard. I find that the particleboard was installed in accordance with AS 1860 and that the differences in floor heights were within acceptable tolerances. I do not accept that the particleboard had bowed. In this respect I prefer the evidence of Mr Bates who has many years of experience in inspecting and assessing building work and who is qualified to provide expert opinion on this issue. I accept Mr Bates' explanation regarding the soundness of the underlying structure/framework beneath the particleboard, that the particleboard was appropriately supported by the positioning of the joists and that its capability extended beyond 450mm. On the other hand I was not satisfied that Mr Davies - Griffith had relevant expertise or was appropriately qualified to give evidence regarding whether the installation of the particleboard was defective. Further, there was no explanation by Mr Davies-Griffith as to why he thought the particleboard was "bowing" between the joists. He says in his brief 'report' that the subfloor "may have been wet during construction causing it to bow" however this was conjecture and, again, was not supported by any evidence. Finally, Mr Davies-Griffith was not present at the hearing and could not be questioned, which leads me to give his opinion little weight.
• [40] Accordingly, for the reasons above, I find that the particleboard installation was not defective.
• [41] In my view, any work done after the installation of the particleboard is work relating to the preparation of the subfloor. On the proper construction of the statute that work, in my view, is properly categorised as work involved in "laying the vinyl flooring". It is work integral to the laying of the vinyl flooring and is, in my view, part of that process. It is work of a relatively minor nature and is work which varies depending upon, for example, whether an underlay is going to be installed and on the nature of the flooring itself. Whether the flooring contractor contracted with the builder that it was outside their scope of work (as appears was the case here), is not to the point. As I said at the outset, the issue is what is prescribed by the statute and that cannot be altered by the terms of a contract.
• [42] It appears, from the Memos to which the Tribunal was referred, that the flooring contractor was of the view the subfloor had not been properly prepared. In my view, it was the lack of preparation of the subfloor that led to the 'bumps'. The failure to properly prepare the subfloor however, in my view, is not 'building work'.
• [43] If follows that there is no statutory power to issue a direction to rectify in respect of this complaint item. Accordingly, the decision not to issue a direction to rectify is confirmed.

[1] Statement of Reasons, SOR 4 - QBCC Resolution Services - Initial Inspection Report dated 10 June 2019.

[2] Submissions by the applicant filed 8 April 2020, Annexure 7.

[3] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20(1).

[6] Inspections were conducted on 13 May 2019 and on 14 February 2020.

[7] See also Statement of Brain Bates filed 15 July 2020 at [33].