Rosecove Pty Ltd v Queensland Building and Construction Commission & Ors [2022] QCAT 235

(a) the installation of plumbing and water mains to the boundary of the site at 23 Bilby Street (formerly known as Lots 25 and 26 Mickerie Street), Birdsville (Property). > > (b) The installation of water supply pipes within the Property to connect with the water mains to the boundary of the Property.

(c) The installation of the water meter at the Property.

(d) Concrete batching, testing and delivery documents and records in respect of the concrete supplied by the Council used in the construction of the slab and footings on the Property.

(e) The placement and compaction of the fill in relation to the construction of the building pad on the Property undertaken by the Council.

(f) Any and all prior geotechnical reports received by the Council (or is agents) in relation to any property (including but not limited to the Property, the Airport site and the sites upon which the six (6) transportables were erected) in the three (3) years prior to the construction of the dwelling on the Property.

1. Copies of the documents which are, or are likely to be, in the possession or control of the Council and issued in relation to the construction of the dwelling on the Property, being:

(a) Correspondence and file notes/memorandums related to the issuance of the Development Approval by the Council (or its agents, George Bourne & Associates or Jason Burger or Brigette Eldridge).

(b) Correspondence, file noes and memorandums in relation to soil test/s undertaken in respect of the Property and the results of those soil tests (by the Council or its agents, including but not limited to George Bourne & Associates and Independent Soil Testing).

(c) Correspondence and file notes and memorandums in relation to the private certification of the dwelling constructed on the Property by the Council (or its agents, George Bourne & Associates or Jason Burger or Brigette Eldridge).

• [3] The Council submits the application for production of documents should be dismissed on the basis, broadly, that the application is made in respect of categories of documents that are:

(a) not relevant;

(b) where the Council has already made clear that there are no other documents to be disclosed; and

(c) is in respect of documents that would already be in the possession of the applicant but which he himself has failed to disclose.

• [4] Before turning to considering each category of documents separately and the parties' respective submissions,[1] it is instructive to set out the statutory provision and principles to be applied in determining the application and the issues raised by the matter. I granted a short extension to each of the respondents to file any submissions in response to the application.[2]

• [5] The applicant is seeking to review an Internal Review decision of the QBCC to give a direction to rectify (DTR) to it pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to rectify alleged defective work said to be carried out by the applicant. The internal review decision to issue the DTR was made on 14 December 2017 and the DTR was issued on 16 January 2018.
• [6] In conducting a review of a DTR decision, the Tribunal must consider whether:

(a) the work performed was "building work";

(b) the building work is "defective";

(c) the applicant carried out the building work; and

(d) it is fair, in all the circumstances, to give a DTR to the applicant.[3]

• [7] In brief, the applicant and the Council entered into a contract on 8 April 2010 for the construction of a lowset brick veneer dwelling which was completed on 12 December 2011.
• [8] The Council wrote to the applicant on 12 March 2015 regarding possible subsidence occurring to the dwelling and lodged a complaint with the QBCC on 12 December 2016.
• [9] The movement of the dwelling was outside the acceptable degree of movement as prescribed by the BCA and AS2870. The QBCC considered the subsidence was due to defective building work and so issued a DTR to the applicant. The decision to issue the DTR was confirmed on internal review.[4] The applicant disputes that building work carried out by it was the cause or the primary cause of the movement to and/or consequential damage to the dwelling on the Property. The applicant refers to other potential causes, including that the Council was responsible for obtaining the soil classification; the Council's tenant overwatered the Property; the Council by its agent prepared the building pad and that the Council by its agent supplied and delivered the concrete for the applicant to construct the footings and slab.
• [10] A Joint Expert Report (JER) prepared by Mr Peter Wright (engaged by Council), Mr Lindsay Reid (engaged by applicant) and Mr Adam Buckley (engaged by the QBCC) was filed in the Tribunal on 11 May 2021 and forwarded to the parties on 8 June 2021.
• [11] The applicant refers to the following points made in the JER relating to: an absence of a water meter reading at the commencement of construction (Mr Wright); the addition of water to an agitator truck on site can have an impact on the final strength of the concrete (Mr Wright); the concrete strength was lower than specified in the design; the deflection would have been less if the specified concrete strength had been used (Mr Reid); site classification is "P" due to uncontrolled fill on the site (Mr Buckley and Mr Wright, dissent by Mr Reid); builder has obligation to make owner aware of appropriate homeowner management practices (Mr Buckley and Mr Wright, dissent by Mr Reid).

• [12] The applicant submits that the production of the requested documents is in the interests of justice and will assist in the just and expeditious resolution of the real issues in the proceeding at a minimum of expense where the Council should have access to the documents; ought to have disclosed them in its statements of evidence and the applicant requested the documents by email on a number of previous occasions, beginning with an email of 3 November 2021.

• [13] The respondents' submit that the application should be dismissed because the categories of requested documents are either:

(a) not relevant;

(b) where the Council has already made clear that there are no other documents to be disclosed; and

(c) is in respect of document that would already be in the possession of the applicant but which he himself has failed to disclose.

• [14] The Tribunal has a discretion as to whether to make directions that a party produce certain documents. In exercising that discretion, the Tribunal will balance the costs, time and possible oppression to the party required to produce against the importance and likely benefits to the applying party.[5]
• [15] The applicant refers to the following principles they say are "well-established", as set out in Abbott v Queensland Building and Construction Commission:[6]

The production of documents will generally only be ordered if an applicant can establish that:

(a) The documents probably relate to a matter in question in the proceedings;

(b) The documents sought must be specified with sufficient particularity to enable the specific documents or categories of documents to be identified;

(c) An order for the production of the documents is in the interests of justice and will facilitate the just and expeditious resolution of the real issues in the proceedings at a minimum of expense.[7]

• [16] The discretion should also be exercised in view of the objects of the QCAT Act, which include to have the Tribunal deal with matters in a way that is:

accessible, fair, just, economical, informal and quick.[8]

• [17] Also relevant is s 28(3) of the QCAT Act which provides:

(d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and

(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.

• [18] The Tribunal, in the exercise of its discretion under s 62(3) of the QCAT Act, should do so in the context of and within the parameters of the scope of review before it. In this case, that is a review of a decision on internal review confirming the original decision to give a direction to rectify to the applicant pursuant to s 72 of the QBCC Act. The Tribunal on review must determine whether the correct and preferable decision is to give a direction to rectify to the applicant.
• [19] The applicant asserts that, in respect of the first six categories of documents that the Council has failed to provide evidence in support of a number of issues identified in the JER. The applicant asserts, in respect of the other 3 categories, that the documents should have been provided by the Council.
• [20] A feature in this case is the statement by Ms Ling, solicitor for the Council, to the effect that she has spoken with Mr Love, a Council officer, who has informed her that documents in a number of the categories do not exist, beyond those already disclosed.
• [21] Ordinarily, the Tribunal would not order the production of documents unlikely to exist. That said, a statement is not an affidavit, and is unsatisfactory evidence to be acted upon in the present circumstances.

• [22] I will deal each category of documents sought.

Category 1: Documents in relation to the installation of plumbing and water mains to the boundary of the Property

• [23] Category 1 seeks all documents relevant to the installation of plumbing and water mains to the boundary of the Property.
• [24] The Council refer to a statement provided by Mr Love dated 3 August 2020 which identifies that the installation of potable, sewer and non-potable water services to the Property was contracted out by the Council to L & S Rosenberg Plumbing & Drainage. Mr Love states, in particular that L & S Rosenberg Plumbing & Drainage were engaged by the Council to:

Supply and install the septic tank, house drainage to septic tank, connect town water, install various external water taps and install downpipes. Exhibit "LL-8" are Council's records of the aforementioned.[9]

• [25] The Council says that the documents annexed as "LL-8" is the totality of the records held by Council and that there are no further documents to disclose.
• [26] The JER states that the experts agree that the following items contributed to the lack of good site drainage and maintenance:
  • watering of lawns, pot plants and gardens;
  • condensation leaking from the air conditioning units;
  • poor site drainage including pebble bed/gravel mulch garden beds;
  • potentially overflow from the hot water system.[10]
• [27] The JER also states that the experts agree that the recovery in the slab profile immediately on cessation of watering confirms that the movement was caused by abnormal water levels in the soil.
• [28] The applicant argues the documents are relevant to its contention that the alleged defective building work was caused to or contributed to by the tenant overwatering the property. It submits that the documents are directly relevant to the question raised by the experts in the JER as to the extent to which overwatering contributed to the alleged defective work. They are also said to be relevant to whether the damage is a result of defective building work by the applicant or the result of work performed by a contractor of the Council.
• [29] I find that the documents are relevant.

Category 2: Documents relevant to the installation of water supply pipes within the Property to connect with the water mains to the boundary of the Property.

• [30] The same reasoning applies in respect of category 2. I find that the documents are relevant. I note the Council maintains all documents within the category have been disclosed.

Category 3: Documents relevant to installation of water meter

I have made inquiries in relation to the water meter located at the Site and searched Council's records and I cannot find any records of installation of the water meter. I am surprised that a water meter was installed because Council does not conduct water meter readings.[11]

• [32] The timing of the installation of the water meter is relevant to the point raised by Mr Wright in the JER, and referred to by the applicant, that he could not rely on the water meter reading as an indicator of water usage from the metered water source because he did not know whether it had a "zero" reading at the time of construction.
• [33] Presumably, if the water meter was installed at or after the time of construction the water meter would be an indicator of water usage from the metered water source. I find the documents relevant.

Category 4: Documents relevant to batching, testing and delivery documents and records

• [34] I accept that concrete strength is an issue in the proceeding. There is some doubt, at least as expressed by Mr Wright in the JER, as to whether the concrete was the appropriate strength upon delivery or whether it became weakened by the addition of water on site.[12] That being so, I find that this category is relevant to the matter.
• [35] The Council refers to the statement provided by Mr Holling on behalf of the applicant. In that statement Mr Holling provides copies of emails regarding the supply of concrete by the Council and an invoice for supply of 67m3 of 25 MPa concrete.[13] Mr Holling has not provided copies of any delivery dockets for that concrete, which presumably would also be in his possession.
• [36] The Council's legal representative, Ms Ling, has attached to her statement a copy of a further record provided from financial records regarding the supply of that concrete to the applicant for construction of the Property.[14] Ms Ling also states that she has been informed by Mr Love that there are no other records, including batching, testing, or delivery dockets, regarding the supply of that concrete for the construction of the dwelling by the applicant.[15]

Category 5: Documents relevant to placement and compaction of fill in construction of building pad on the Property

• [37] I accept that the nature of the fill on the Property is relevant to the classification class ascribed to the Property. I also note that the experts disagree as to whether the fill was "uncontrolled fill" or "controlled fill" having been "well compacted and placed to an appropriate standard".[16]
• [38] Mr Buckley and Mr Wright state that:

AS2870:1996 Clause 1.7.13 specifies that controlled fill is material that has been placed and compacted in accordance with Clause 6.4.2(a) and AS3798. In the absence of any documentation confirming placement and compaction of the fill on the site, the fill must be classified as uncontrolled.

As there is in excess of 400mm of non-sand uncontrolled fill on the site, it must be classified class P in accordance with AS2870: 1996 Clause 2.4.6(b)(ii).[17]

The experts agree that the Classification of P is ultimately irrelevant as no settlement of fill has been recorded.[18]

• [40] In the circumstances, I find that this category is relevant to the proceeding.
• [41] The Council's legal representative, Ms Ling, has stated that she has been informed by Mr Love that a further search of the Council's records confirms that there are no other records regarding the placement and compaction of fill on the Property.[19]

Category 6: Prior geotechnical reports received by the Council (or its agents) in relation to any property (including but not limited to the Property, the Airport site the sites upon which the six (6) transportables were erected) in the three (3) years prior to the construction of the dwelling

• [42] I note at the outset that the description of the documents sought is extremely wide.
• [43] The Council submit that the relevance of any geotechnical reports in relation to any property held by the Council is not explained by the applicant. Further, that disclosure of any geotechnical report in relation to any property other than the subject property is entirely irrelevant. In relation to the relevant property, the Council refers to the soil test report that has been provided as annexures to Mr Love's statement. The Council submits that it has no further documents (having disclosed a further document out of 'an abundance of caution' relating to the ordering of soil tests on the Property).
• [44] I am not satisfied that geotechnical reports relating to other properties are relevant. Any geotechnical report relating to the subject property is relevant. Further, I note that the Council says that it does not have a geotechnical report relating to the Property the subject of this review and has disclosed all relevant documents relating to the soil test dated 31 May 2010.

Category 7: Correspondence and file notes/memorandums relating to the issuing of the Development Approval by the Council (or its agents, George Bourne & Associates or Jason Burger or Brigette Eldridge)

• [45] The Council's legal representative, Ms Ling, has disclosed documents attached as Exhibit KL-4 to her statement dated 23 March 2022. Those documents are relevant to the issuing of the development approval and private certification of the dwelling. Ms Ling states that all the documents she has attached as Exhibit KL-4 are documents that were provided to Holling Construction either as part of the development approval or the inspection during construction and so would be expected to already be in the possession of the applicant.[20]
• [46] The documents comprise: Delegation of Jason Burger of George Bourne & Associates to perform the duties of Building Certifier dated 26 June 2006; Instrument of Sub-Delegation to Jason Burger dated 10 August 2009; Building Works Checklist Class 1 and 10 Assessment Sheet prepared by GBA Consulting Engineers dated 6 May 2020; Letter of Delegation for Jason Burger dated 22 June 2010; Non-compliance Notices to the Builder signed by Jason Burger dated 24 November 2010 and 21 July 2011; Dwelling Inspection Report dated 24 November 2010; a series of photographs; emails between Jason Burger, certifier and Peter Holling dated 31 October 2011; Dwelling Inspection Report dated 9 November 2011; Form 16 dated 12 December 2011; Form 21 dated 12 November 2011.
• [47] Ms Ling states that she has been informed by Mr Love that the Council records have been searched and that there are no other documents regarding the issuing of the development approval or the certification of the dwelling other than those described at paragraph [49] above.[21]
• [48] I accept that the documents are relevant.

Category 8: Correspondence and file notes/memorandums relating to soil tests and results

• [49] The Council submits and Ms Ling states that all documents held by Council regarding soil tests have been included in the statement of Mr Love (at [14] and [15] of Mr Love's Statement and at Exhibit LL-10 and LL-11).[22] Further, that Ms Ling has disclosed two further documents in relation to the soil tests conducted on the property: the sketch referred to in Exhibit LL-10 of Mr Love's statement; and the letter from Outwest Soil Tests to George Bourne and Associates dated 7 June 2010 enclosing a Tax Invoice of the same date.[23]
• [50] The soil test report dated 31 May 2010 is already in evidence[24] and was considered by the experts in the JER.
• [51] The Council submit that the applicant has failed to identify how the soil test is relevant given he proceeded to design and build the dwelling without regard to that soil test. In any event, the Council submits and Ms Ling states, it has no further documents to disclose.[25]
• [52] I find that the documents are relevant. They go to the condition of the soil. That condition is relevant whether or not the applicant designed and built the dwelling without regard to them.

Category 9: Documents regarding private certification of the dwelling

• [53] I am satisfied these documents are relevant. I note the Council says that they have been disclosed.

• [54] The application for the production of the requested documents in category 6, in so far as it relates to geotechnical reports not in relation to the subject property, is refused.
• [55] In respect of all categories of documents the Council has submitted, in reliance on Ms Ling's statement, that the documents do not exist. Ordinarily, in my opinion, where a respondent seeks to resist an application for production of documents on the basis the documents do not exist, or that all of those sought have been provided, it will be insufficient for it to rely on a statement. In such circumstances, an affidavit deposing to the relevant facts is preferable. I note that in the UCPR, and in the Supreme Court Rules (Qld) which preceded them, the Court had power to order a party to provide an affidavit deposing to whether documents exist and whether they are, or were, within its possession or control. The Tribunal has power to make such an order and I propose to do so here, failing which I will direct the documents be produced.
• [56] Accordingly, I order, in respect of categories 1 to 9 (with the exception above in relation to 6):

(a) That if in a position to do so, the second respondent file and serve on the applicant within 14 days an affidavit, which may be on information and belief, deposing to whether and if so what documents, if any, within the possession and control of the Council exist in each of the said categories, beyond those already provided, and produce such documents to the applicant;

(b) If such an affidavit is not filed and served as required in (a), that the second respondent produce to the applicants the documents in each of the said categories (save the exception above in relation to category 6).

• [57] I note that the applicant filed submissions dated 10 May 2022 in purported reply to the Council's submissions. The applicant did not seek a direction, and no direction was made in the Tribunal Directions dated 22 February 2022, for the applicant to make such submissions. The Council objected to the receipt of the submissions by the Tribunal and was entitled to do so. It is generally inappropriate for further submissions to be filed in circumstances where there is no direction permitting them and in the absence of the leave of the Tribunal.[26] That is particularly so here because much of what was submitted in reply should have been part of the respondent's primary submissions.
• [58] That said, I have read the purported reply submissions and taken them into account.
• [59] The costs of the application are reserved.

[1] Application for miscellaneous matters (for direction requiring another party to produce a document) filed by the applicant on 4 January 2022; Submissions by First Respondent filed on 29 March 2022; Submissions by Second Respondent filed on 24 March 2022.

[2] Application to extend a time limit filed by the second respondent on 24 March 2022.

[3] CMG Homes Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 191.

[4] Internal Review Decision Notice dated 14 December 2017.

[5] Simpson v Thorn Australia Pty Ltd trading as Radio Rentals [2018] FCA 1219 at [9], applied in Douglas v CTML Pty Ltd & Ors [2018] QCAT 461 at [6].

[6] [2021] QCATA 145.

[9] Statement of Leon Love field on 6 August 2020 at [12].

[11] Statement of Leon Love field on 6 August 2020 at [51].

[13] Statement of Mr Hollingworth dated 17 February 2020, Exhibit PH-19.

[14] Statement of Kirsty Ling filed on 24 March 2022, Exhibit KL-3.

[15] Statement of Kirsty Ling filed on 24 March 2022 at [8].

[19] Statement of Kirsty Ling filed on 24 March 2022 at [9].

[20] Statement of Kirsty Ling filed on 24 March 2022 at [14].

[24] Statement of Peter Holling at p293.

[25] Statement of Kirsty Ling filed on 24 March 2022 at [19].

[26] Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357 at [111]; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at [192].