Roof Technology Pty Ltd v Queensland Building and Construction Commission & Anor [2025] QCAT 286

Queensland Building and Construction Commission Act 1991 (Qld), s 72(2), s 72(5)

• [1] As its name suggests, the applicant carries on business as a roofing contractor, installing, repairing and replacing roofs and associated components on buildings. Its trading name is Rooftek and will be referred to by that name in these reasons. Douglas Foggo holds the necessary roofing licence from the first respondent ("the Commission") and is the licensed nominee representing Rooftek.
• [2] The second respondent is the Body Corporate of the community title scheme for a building at 161 Robertson St Fortitude Valley ("the Body Corporate"). The building is 2/3 storeys high, split level, with an upper and lower metal roof. It is tenanted and used for commercial purposes. The building was constructed in or about 1983 by reference to the Certificate of Classification issued by the Brisbane City Council.[1]
• [3] Because of the age of the building and general deterioration of the roof, Rooftek was contracted by the Body Corporate to carry out major roof and drainage repair and restoration work on the roof in 2017. Subsequent to that work, in 2022, storm water penetration problems arose with water damage to the internal parts of the building. Investigations were undertaken involving the Commission and ultimately it issued a Direction to Rectify ("DTR") to Rooftek to remedy the water penetration issues.
• [4] On receiving the DTR the applicant filed an application to review the Commission's decision on 20 July 2023. This application is a review of 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.[2]

• [5] Around 2017, the Body Corporate commissioned a report from J Groom Engineering Consulting[3] to investigate the cause of water penetration problems into the building. That report dated 20 May 2017[4] ("the first Groom report") identified significant failures in the roof, mainly related to the condition of the roof sheeting, and rainwater discharge system through the use of box gutters and the method of discharge of water from the upper roof onto the lower roof to disperse the water into the box gutter. The report recommended, in summary, replacement of the roof sheeting, deepening of the box gutters, replacement of the skylight and sealing. The report is comprehensive.
• [6] Rooftek was given a copy of the first Groom report. In consultation with the architects acting for the Body Corporate, Cavill Architects, prepared a quotation dated 14 June 2017 to undertake roof restoration and repair works to address the issues raised in the report.[5] One of the suggestions in the quotation was to increase the depth of the box gutter and narrow its width as recommended in the Groom Report. Also, to use a spreader to disperse water onto the lower roof. Relevantly, the new work included:
  • Remove existing roof membrane and box gutter.
  • Build up the purlins to change the pitch of the roof.
  • Modify the box gutter support to narrow and deepen the gutter.
  • Install stainless steel box gutter and sumps.
  • Install new roof sheeting, flashings, penetration flashings, parapet cappings.
  • Allow new safety wire and 80mm anticon insulation.
  • Install new spreader to new roof.
• [7] The total cost for this new work as per the quote was $49,000.00 plus GST. However, after some negotiation and variations to the work the final price was reduced to $41,998.90 inclusive of GST. There is an exchange of emails where Mr Cavill from Cavill Architects queried some of the costs and work, in particular the lowering of the gutter supports. In an email to Mr Cavill, Mr Foggo informed him that:

The boys reused the existing box gutter supports but they deepened the gutter and put in additional fall, the gutter has been installed as quoted the gutter is now narrower but deeper. I hope this clears up the issue for you.

• [8] I raise this now because it is relevant to record that Mr Foggo was dealing with the architect supervising the work being undertaken, and providing feedback to Mr Foggo. That is, endorsing the work to be undertaken pursuant to the quote on behalf of the Body Corporate.
• [9] The work was carried out in 2017 and paid for by the Body Corporate. Then in 2022, Mr Foggo was contacted by the agent for the Body Corporate, Mr Lacy, concerning water penetration to part of the building. Mr Foggo attended the site and carried out an inspection. He observed further work had been undertaken by other contractors in the intervening period, which he contends was the cause of the water penetration. Some of this work was applying silicone over a join in the box gutter. He offered to undertake remedial works and provided a quote for $1,640.00 to do this work. Mr Lacy insisted that Rooftek was responsible for the problem, rejected Mr Foggo's offer and made a complaint to the Commission.
• [10] The Commission carried out an investigation, obtained expert reports from Mr Andrew Kirby of Resolution Services and BT Plumbing Service. It also had reference to another report from J Groom Building Consultants ("the second Groom report"). On the basis of these reports the Commission came to a decision that Rooftek had not complied with the requirements of the National Construction Code 2016 Vol 1, section F: Performance Requirement FP1.4 in relation to water proofing; and Australian Standard 3500.3 relating to the requirements and limitations of box gutters.
• [11] On 2 May 2024 the Commission issued a Direction to Rectify to Rooftek. The Direction listed the defective work as follows:

The installation of the box gutter and stormwater drainage on eh left hand side of the lower level rooves, at the front and rear of the building, does not comply with either the NCC 2016 Building Code of Australia, Performance requirement FP1.4 - Damp and Weatherproofing, nor Australian Standard AS3500 Clauses 3.7.1 and 3.7.5.1 in that the box gutters had inadequate gradient, unsealed joints and sump seats, overflow wastes are insufficiently sized, and the front roof had insufficient cover flashings between box gutter and roof sheeting, resulting in water ponding in the box gutter and water ingress into the building causing damage to the building elements on the left hand side of the front and rear office areas during weather conditions anticipated by the NCC. Pertains to item 1 on the QBCC complaint form.

• [12] At the hearing of this application, Mr Foggo accepted, in summary, that the work undertaken by him did not comply with the current standards under the NCC or the Australian Standards (jointly referred to as "the Standards") referred to in the DTR. His contract with the Body Corporate, he contends, was to replace like with like and was not a complete new re-design of the roofing and rainwater drainage system. Mr Foggo did offer some solutions to achieve better drainage based on the existing infrastructure and in discussions with Mr Cavill in line with the 2017 Groom Report. I would also observe that the tenor of the email exchange between Mr Foggo and Mr Cavill, would suggest that the Body Corporate was trying to keep cost at a minimum.
• [13] It was not, and I find for the reasons below, Rooftek's function under the contract to re-design the whole roof system to ensure it was compliant with current Standards. At the time of the original design in 1983, the Brisbane City Council, then undertaking the certification process, issued a Certificate of Classification for the building.[6] The roof and drainage system was, at that time, compliant.
• [14] Under s 72(2) of the Queensland Building and Construction Commission Act 1991 (Qld) ("QBCC Act") the Commission may direct a licensee to rectify building work which is defective or incomplete. However, the Commission, under s 72(5):

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.

• [15] Given that there is an acceptance by Rooftek that the rainwater/stormwater drainage system is failing, despite some modifications by Rooftek, the only issue in this review application is whether in the circumstances it would be unfair for the Commission, and the Tribunal on review, to issue the DTR.

• [16] When Rooftek was first approached about the water penetration issue in 2017, Mr Foggo was given a copy of the first Groom report. The areas of concern in that report were referenced to the "Ogilvy tenancy" a specific occupied area of the building. The areas are designated with numbers and appear on page 9 of the report. They include:
  • Board room and entry area with water leaking into the electrical distribution room - Ogilvy tenancy
  • Board room window leaking - Ogilvy tenancy
  • Leak to skylight - stair entry
  • Leak to the north side work area - Ogilvy tenancy
  • Leak to 3 windows along the north side work area - Ogilvy tenancy
  • Leaks to kitchen area from roof/box gutter - Ogilvy tenancy

• [17] In the report, Mr Groom made specific comments about the box gutters running in a dog leg shape across the lower roof. The purpose is to catch the water, not only from the lower roof, but also from the upper roof flowing onto the lower roof and disperse it to the sumps at the end of the box gutter. By reference to that area, Mr Groom said:

The roof above this area including the box gutter and the depth of the box gutter is in very poor condition. The roof is beyond repair along with the box gutter on (sic) the temporary repairs have not been successful even for a brief period. The box gutter to this area is only approximately 50-60mm high which is far too small in wall height considering the box gutter does not extend up to the underside of the pan on the roof sheeting and installation is hanging in the gutter sucking water back into the building. In addition, to this the upper level roof area discharges into this box gutter which is unacceptable for the height and capacity of the box gutter in the area where the leak is occurring.[7]

• [18] The report includes photographs of the relevant area. His recommendation was:

It is my opinion the box gutter to the front section will need to be replaced and made deeper if possible, however, if the depth cannot be increased then a significant design under flashing will be required continually sealed into the box gutter to prevent water entry internally. In addition, the roof sheeting will need to be replaced as it cannot be repaired any longer due to its very poor condition.[8]

• [19] It was on the basis of these comments that Mr Foggo proposed to Mr Cavill in his letter of offer of 14 June 2017, that inter alia:

I recommend that we change the pitch of the roof to obtain a greater depth in the box gutter, by installing different height top hat to the existing purlins, we also narrow the width of the gutter to 600mm wide instead of the 900mm wide currently there, we install a stainless steel box gutter with conical sumps discharging into the existing stormwater system, and try to install over overflows to the gutter, this hasn't been allowed although I believe it can be achieved.[9]

• [20] What is apparent from the Letter of Offer was that this was not a roof re-design, but more or less following on from the recommendations in the first Groom report. As Mr Foggo has reiterated in his various statements and in his evidence before the Tribunal, he does not have the qualifications or the expertise to undertake a hydraulic roof design which is properly the expertise of a hydraulic engineer. I accept his evidence on that point.

• [21] It seems that before involving the Commission the Body Corporate again engaged J Groom Building Consultants to inspect the roof and provide a report ("the second Groom report"). The inspections were carried out on 1 April 2022 and 22 April 2022. A flood test was carried out which demonstrated serious issues with the box gutters and sump connectors installed by Rooftek. This was the cause of the water penetration to the office space below. The report describes the issues as follows:

A flood test was conducted was conducted to see the effectiveness of the box gutter. Water ingress was evident even when the water levels did not reach the overflow draining zone as referenced in AS3500.3 Appendix O (see FG-01).

The sump was significantly surcharging creating head pressures allowing water penetration via the sump connection to the box gutter. A condensation line was also connected to side (sic) of the downpipe which has only been sealed with a silicone based sealant additionally allowing water to enter and track down the condensation line. There was also a lap in the box gutter, and it will be alleged that the lap is not in the direction of flow as water is also entering this location (see FG - 2- and 3).[10]

• [22] The second Groom report concluded the box gutter system was "indeed undersized" and a new design was required with a full replacement of the box gutter and its components.
• [23] On 25 April 2022, Ben Theslow of BT Plumbing Service assisted Andrew Kirby of Resolution Services with an inspection of the roof. He observed that box gutter changed direction (I referred to as the dog leg) which is now not permitted under the Australian Standards, nor did it have the correct gradient. Water was ponding in the gutter because of the lack of fall. When filled with water during the water testing, the sump backed up the water in the gutter and water penetrated to the office space below. There were also issues with the flashing above the box gutter which, in his view, was unsatisfactory. In respect of the water testing, he said:[11]

The 150mm outlet for the sump above the lower rooms of Green Finance was blocked off and the sump filled with water to a depth of approximately 20mm above the top of the sump. Within 10 minutes water ingress occurred below in multiple locations with water flowing out of the sump connection to the base of the box gutter. The water was left to flow for 30 minutes into the box gutter. Within this time, water began to slowly drip out of the custom orb supports under the box gutter and into the ceiling space, indicating a second water source which is leaking onto the custom orb supports and running down toward the joint in the supports.

• [24] Mr Theslow attached a series of photographs showing the roof layout, the spreader, flashing and sump. Also, areas of lack of fall. Thermal scanning also showed where water was leaking. There is little doubt from this testing process that deficiencies were identified.
• [25] The Resolution Services report prepared by Mr Kirby, QBCC inspector, also confirmed the problems with the roof and non-compliance with the Standards for both upper and lower roofs. He firstly inspected the internal arear under the box gutters and noted water damage to the ceiling tiles and walls. He also noted that water testing caused water to penetrate to the office rooms below.
• [26] The external inspection report is much the same as that of BT Plumbing. The box gutter system had insufficient fall, and there was evidence of ponding in the gutter, and actual ponding on water testing. Issues with the flashing being deficient were noted allowing water to back up under the roof sheeting and into the building.
• [27] By reference to National Building Code and the Standards as set out in the DTR he concluded the box gutter and stormwater drainage system was deficient. This defective work allowed water penetration and damage to the office areas below.
• [28] Mr Kirby has also filed a comprehensive affidavit in which he further explains his observations of the drainage issues and provides a summary of all investigations to date and commentary on Rooftek's response to the DTR. Importantly, he recalls what occurred when he and Mr Theslow attended the premises on 4 April 2023 and conversations he had with Mr Foggo, who also attended. He reiterated in the affidavit that during the water test he observed:

(a) water pooling where the join in the gutter was located;

(b) a very slow drip out of the corner of the sump area. However, the main area with water leaking was the joint in the box gutter;

(c) water dripping from multiple points within the first-floor office space; and

(d) a very slow drip out of the sump in the corner.

• [29] The water problems, according to Mr Lacey were exacerbated during severe storms. They are also recorded in the conversations with Mr Theslow about the problems with the flashing in the box gutter. This was confirmed with further water testing.
• [30] The significance of Mr Kirby's affidavit evidence is not only his observations and the reasons for issuing the DTR but also his conversations with Mr Foggo. When asked about the work undertaken by Rooftek, Mr Foggo said that he followed the plan from the architect (meaning Mr Cavill) that the job was re-roof of the existing design. There was no change by the architect. Mr Kirby told Mr Foggo that Rooftek, as the contractor, still had to bring the works up to the existing code. Mr Foggo rejected this and relied on the fact it was an existing building and the work was within the scope of his contract with the Body Corporate.
• [31] Mr Foggo did not directly dispute the design deficiencies during the inspection and conversations with Mr Kirby. It was self-evident that there were design fault issues and non-compliance with the Standards consistent with the failures set out in the DTR.

• [32] Mr Foggo on behalf of Rooftek accepts that the roof and drainage system does not meet the relevant Standards. However, he says that in all the circumstances it is unfair to issue the DTR to Rooftek in reliance on s 72(5) of the QBCC Act. He does so for the following reasons:

(a) The roof and drainage system was designed and constructed some 40 years ago and complied with the building standards at the time and certified by the Brisbane City Council.

(b) Rooftek's contract was to replace the existing roof and drainage system and not to design a whole new system to comply with current Standards.

(c) The only variation to the existing system was the narrowing and deepening of the box gutter system which was done with the approval of Mr Cavill on behalf of the Body Corporate.

(d) There had been no complaints of water penetration between mid 2017 and January 2022 when Rooftek was contacted by Toney Lacy about water penetration.

(e) When Mr Foggo inspected the roof after speaking with Toney Lacy, he observed other contractors had worked on the box gutter over sealing the joints with silicone, creating a dam like situation. There was also an air conditioner condensation distribution pipe had been plumbed into the downpipe, which was leaking.

(f) AS3500.3.2018 did not exist when the original box gutter was installed and there was no minimum gradient nor prohibition on the box gutter changing direction (as in the existing dog-leg).

(g) The inability to get greater fall in the box gutter without lowering the underlying structural supports for the gutter. Although the fall was improved as best it could be in the circumstances.

(h) He also relies on the further report of J Groom Building Consulting dated 8 May 2024 ("the third Groom report") which specifically refers Mr Groom's involvement in arranging the work for Rooftek to undertake, dealt with in more detail below.[12]

• [33] The third Groom report by Mr Groom is a mixture of expert evidence and a statement of fact. In respect of the expert evidence, he discusses the condensate line from the air conditioner going into the discharge downpipe. Under AS 1668 this is not permissible and clearly was not the responsibility of Rooftek but an alternate contractor. The condensate is sealed with silicone and when under static pressure leaks.
• [34] As to the factual evidence he states that he was directly involved dealing with Rooftek on behalf of Mr Cavill in organising the re-roofing work in 2017. He states:

I was involved with the original report on the job and at no point was Rooftek ever contracted to change the structure. And in fact the architect for the job categorically told me on the phone and Rooftek on site that the gutter was only to be re-lined. This is what has been done based on the existing structure and the existing depth of the framing for the box cutter installation.

I am aware of and have read the contents of the STA engineering report a (sic) from my point of view the exact details in this report specific to the under size of the capacity within the existing structure is of concern however there was a clear instruction not to change the roof structure as part of the rectification works.

.........

Rooftek is not licensed or capable of changing the roof structure and this was never part of their works. The clear instruction on site from the architect was to re line the gutters and this was all they were prepared to do.

• [35] This statement is entirely consistent with the scope of works contained in the quote given to Mr Cavill on behalf of the Body Corporate with the change in the box gutter size. Particularly the reference to the gutter only being re-lined. It also follows from this statement, consistent with Mr Foggo's evidence, that there was to be no change to the structural supports for the gutters to allow for an increase in fall. There was no planned re-design, and if there was to be one, it is reasonable to assume that would have been done in conjunction with Mr Groom.
• [36] The reference to the STA Consulting Engineer report is the one dated 3 April 2024.[13] The report related to the size of the box gutters which in the opinion of the engineer, Mr Tran, were undersized. His opinion was:

Upon review of the existing box gutter profiles, it is apparent that the existing bot box gutter depths are not sufficiently sized to cater for the 1% AEP storm events. Although the provided outlet down pipe specifications are sufficient, the existing gutter profiles would find it difficult to cater for large storm event flows and the installed overflow provisions inadequate to cater for larger storm events or emergency discharge. STA Consulting Engineers recommends that a full re-design of the required boxed gutters be provided and new box gutters being installed to suit current design storms or QLD.

We hereby advise that the provided documentation has been designed in compliance with Australian Standard Code AS3500 Part3, National Construction Code 2019, Plumbing and Drainage Act 2018 and Standard Building Regulation 2006.

• [37] The Commission identified the issues for determination as being firstly whether the Commission had the power to issue the DTR and secondly, should the Commission have exercised its discretion to issue the DTR.
• [38] The evidence demonstrates, and it is indeed accepted by Rooftek that it performed the subject work, save for some intervention by third parties with respect to the air conditioner condensate and over sealing of the joint in the box gutter. Further, Rooftek accepts and I find that the water penetration is as a result of the inadequate storm water drainage system on the roof, and box gutter design. As to whether the flashing used in the box gutter is defective that really is as a result of the design, being the size of the gutter. It is also demonstrated from the expert evidence, and again accepted by Rooftek that the current storm water system did not comply with the Standards in place when the work was done.
• [39] Furthermore, Mr Kirby, as a QBCC building inspector, said in relation to the Class of Rooftek's QBCC licence that the scope of the licence includes the installation of roof sheeting, gutters, downpipes and associated components and importantly to "design roof drainage components". It did not go so far as to say that it permitted Rooftek, Mr Foggo, to re-design the whole roof stormwater system. He did not even design the box gutters but followed Mr Groom's advice as to the deficiencies in the existing gutters.
• [40] The Respondents submit that the discretionary considerations to be taken into account when deciding to issue a DTR include the objects of the QBCC Act to achieve a reasonable balance between the interests of building contractors and the consumers. Also, to ensure that proper standards are maintained in the industry. These objects can only be considered by having regard to the particular circumstances of each case.
• [41] It is submitted, in reliance on Mr Kirby's evidence, that even if the scope of works did not include compliance with the current Standards, as a licensee, it was still Rooftek's responsibility to ensure they were complied with. If the whole job was just left to Mr Foggo there might be some substance to the submission, however here, he was provided with the 2017 Groom report which provided detail as to the scope of work and also consulted with Mr Cavill. Even gave a credit when the box gutter could not be lowered.
• [42] Importantly here, was the scope of work to be undertaken by Rooftek agreed to by Mr Cavill. The scope of work did not involve a complete re-design of the storm water drainage system. Although the Commission contends, contrary to Rooftek's position, that the scope of works was not to replace like with like because of the change in the size of the box gutter and the different spreader system from the upper roof. Although there was a change, this came about with the approval of Mr Cavill. Also, the scope of work was confirmed by Mr Groom who was privy to the discussions about this.
• [43] There is one other feature to the case, that is the delay in notifying Rooftek of the water problem. I accept Mr Foggo's evidence that it was not until January 2022 that Rooftek (he) was notified of the problem. I also accept his evidence that attempts had been made to seal the joint in the gutter by others which exacerbated the problem. If it had been a continuous problem as described by Mr Lacey, there is no reason put forward as to why Rooftek was not notified earlier. This evidence of ongoing leaking is inconsistent with the facts.
• [44] Finally, with respect to Mr Foggo's evidence, he accepted there was an issue with water penetration and did take steps to rectify to problem. I accept his evidence that he was not qualified to re-design the hydraulic storm water system but simply put forward a suggestion to Mr Cavill, an architect presumably with knowledge of compliance issues, for approval which was forthcoming.
• [45] The absence of any evidence from Mr Cavill about these matters persuades me to accept what Mr Foggo said about the scope of works and its limitations. I also accept Mr Foggo's evidence that he got as much fall as possible for the box gutter using the existing sub-structure in place. It was never his job to interfere with the support structures of the roof framing for the gutter. In fact, although proposed, when it did not happen Mr Cavill was keen to ensure the price was adjusted down for this in his email to Rooftek on 22 September 2017.[14]
• [46] I therefore find it was never part of the scope of work under the contract with the Body Corporate that Rooftek undertake a complete re-design of the roof stormwater drainage system to bring it up to compliance with the current standards. Not only is there support for that from the third Groom report but also Mr Cavill himself in the email exchange about lowering the supports under the box gutter.

• [47] In balancing the discretionary factors to decide whether it would be unfair to issue the DTR, I take into account the following relevant considerations:

(a) The age of the building and the need for structural modification to the underlying roof elements to achieve the necessary falls for the box gutter;

(b) The need for a complete re-design of the roof stormwater drainage system and use of box gutters by a qualified hydraulic engineer as proposed in the STA report.

(c) The scope of works under the contract agreed to by Mr Cavill;

(d) The limitations on Mr Foggo's licence which does not include a re-design of the stormwater drainage system to comply with current Standards;

(e) To a lesser extent the delay in reporting the water penetration issues and work undertaken by third parties;

(f) Also, to a lesser extent the evidence in the third Groom report about the works to be undertaken by Rooftek.

• [48] There is no evidence from the Commission, nor is it necessary for it put on such evidence, as to what might be involved in the rectification work, but the expert evidence clearly suggests that a complete re-design of the roof system by an appropriately qualified engineer is necessary. It will also be necessary to do some structural framing work within the ceiling cavity to attain the necessary falls for the box gutter to comply with the Standards. It would, in my view, be unfair to burden Rooftek with that added responsibility. That is another discretionary factor.
• [49] On the basis of these factors, I have come to the view that the correct and preferable decision is that pursuant to s 24(1)(b) of the QCAT Act that the decision of the Commission be set aside. There will be an order accordingly.

[3] Via the Body Corporate strata manager, Archer Body Corporate.