• Moving is not the the only answer!

The alternative is to divide your home into two units and derive a rental income from one unit, or sell one unit, “without moving”. Contact info@reno-consult.me for FREE information.

Whilst this call is commendable in employment terms, it is welcome news for home owners who have been struggling for years now to understand and afford the crazy building prices that have been fuelled by the building boom.

For the home owner, at last there may now be some realistic pricing back in the building industry as builders and tradespeople have to compete for work in a competitive market place.

Homeowners must beware though, that the first to suffer in a decline, are the “shonkies: and they are now out there desperate to get work – the good guys will always have work.

So “make sure you do your homework and ckeck out the reputationof those that are immediately available”.

For HWI work, the BSA inspector draws up a Scope of Work and calls tenders from their panel of contractors..

Consumers must be aware that ” a Scope of Work” is no more that a description of what has to be done and it is left to the contractors to interpret it and price it, as they think fit.

A Scope of work is NOT a Specification

A Specification is a clear and accurate description of the technical requirements, materials, products or services to be provided, that will determine whether a described task has been met.

This is why you can get enormous variations in price from BSA panel contractors, their is no detail (you are not comparing apples with apples) and you often get a building outcome that you didn’t expect.

For Insurance purposes, the BSA relies soley upon their “Scope of Work” to obtain a price – which is not much more than a builders best guess.

Architects, other professional consultants and consumers, often find themselves at odds with the process followed by the BSA inspectors who:

a) refuse to accurately specify what is required to remedy a defect,  saying that “the builder will know what to do”,  and

b) who clearly work to a different agenda – i.e to obtain the lowest price or payout figure to the consumer.

It has been proven and accepted that you have been left with defective building work and that your claim has  been referred to the Home Warranty Insurance.

But the response from the BSA  to your claim to repair the defective work is “this is our offer, take it or leave it, or we’ll close the file”

The BSA use this tactic particularly against self represented consumers who they know cannot afford legal representation to fight their decision in Court.

This  BSA tactic is not necessarily illegal. But, as the managers of the Home Warranty Insurance it could be “unconscionable”.  That is, it is so obviously unfair to a weaker party that it is denying them the right to negotiate.

In this situation a Court may not endorse the BSA’s position – but, if you read the Insurance Policy terms and conditions – the BSA doesn’t have to negotiate - “it is whatever they decide“.

This is what is known as an “Adhesion Contract”.

So what do you do if you are put in this position by the BSA?

• Wave the white flag?
• Waste more time at QCAT?
• Give your last bit of money to lawyers to fight on, on your behalf, sit it out for another three years, and then maybe lose in the end?

A fair system eh?

I understand that the BSA starts a new file each calender year, so you must be very specific about what you want. You will need letters, documents, internal memo’s, records of phone calls, all emails between the BSA staff and yourself or any other electronic information including Ministerial Briefing Notes, phone calls about your case, inspectors and consultants reports, in fact all information that probably carries over for “more than one year”. You must give the precise dates and the years for the information that you require i.e between month-year and month year and month-year and month-year etc. – or you will not get the full story!

Once you have this information you can check it with your records for gaps, contradictions or innacuracies and if necessary you can ask for further “missing” information.

As charges may be involved, it is also important that you ask for all of the information to be provided on a DVD or CD Disk.(much cheaper than page by page)

To apply for the information go to http://www.rti.qld.gov.au

Using the online form http://www.smartservice.qld.gov.au/services/information-requests/apply.action

Be prepared, it could take up to eight weeks to get a response!

Once you have all of this information you will be much better placed when assembling your case for QCAT or the CMC, but be aware that the BSA may use the excuse of “legal priviledge” not to provide everything.

Also be mindful of the fact that although you may not be legally represented, in both instances above, you are dealing with lawyers, so witnesses, recordings, facts and hard evidence is vital.

The QBSA Act defines a defect as “faulty or unsatisfactory”

An interpretation of this definition presented in writing by a BSA inspector was ” what he could see from a visual inspection and what in his opinion needs to be demolished and replaced!”

One assumes that all BSA inspectors are told to use the same interpretation that does not necessarily accord with most dictionary definitions or public perceptions. Most dictionaries define a defect as

• ” the lack of something necessary or desirable for completion or perfection”,
•  ”an imperfection that causes inadequacy or a failure”.
•  ”a shortcoming”.

The BSA definition of a defect leaves it open to the inspector to make his own judgement. For example:

• If he can’t see, it is not a defect- it doesn’t exist.
• If it doesn’t have to be demolished and replaced, it is not a defect, it is contractual.
• If it is “fit for purpose” ( not perfect, but good enough to do the job), then it is not a defect.

Therefore, the first question a consumer MUST ask and record when a BSA Inspector visit their property to inspect “defective work” is: ” What exactly is your definition of defective work?“  His answer will  at least let you know at the outset, where you and your consultants stand.

With regards to Building Disputes this would generally apply to complaints against  employees of the Building Services Authority (BSA) and members of QCAT.

In the first instance an applicant for a Review of a Decision made by the BSA will have their case heard at QCAT. This is the first stop. Only if QCAT fails to deal with the complaint made by the Applicant against the misconduct of a BSA employee, will the CMC consider it.

This means that it is imperative that the applicant keeps full details of the name (s) of the person involved, keeps diary notes, including detail of the events, names of witnesses, photographs, video footage, tape recordings, correspondence, applications and contracts and a record of Hearings at QCT plus any steps that may have been taken to resolve the complaint.

If an applicant feels that QCAT has either ignored or has not satisfactorily dealt with their complaint against a public sector official, then a complaint to the CMC is warranted.

In making a complaint to the CMC, the applicant should also state what action they would like to see.

“conducting proceedings in an informal way that minimises costs to parties and is as quick as is consistant with achieving justice.”

There are many definitions of “justice” available but generally it means “moral rightness based upon ethics, rationality, law, natural law and equity”

So why do proceedings at QCAT take so long, cost so much and are generally regarded as irrational and unfair to the consumer?

Why does the consumer often regard the actions of Government Agencies as unethical and end up writing to the CMC?

QCAT is meant to be a self representative jurisdiction (except for State Government Departments or Agencies who are automatically granted legal representation).

Is it because QCAT (all of the members are lawyers) has become too legalistic in determining what “justice” is, is far from “informal” as it is meant to be and is   intimidating to the consumer?

Sign up for a change!

s. 28 (3) (a) The Tribunal must observe the rules of “natural justice”

Division 6 of the QCAT Act states:

s.100 Each party bears its  own costs to the proceedings

s.102. Costs may be awarded in the “interest of justice”

s.111 The Tribunal may ask experts to provide evidence

s 112 Experts costs may be awarded

s.116/117 Proceedings are decided on the basis of law

Under the English system of Natural Justice – “no decison is valid if it was influenced by any financial consideration or other interest or bias of the decision maker. These principles apply to decisions of all governmental agencies and tribunals and judgements of all courts which may be declared to be having no effect if found in contravention of natural justice“.

So, in order to be awarded costs by QCAT, the successful party has to prove that they were not afforded “natural justice”. By the same token, the BSA cannot claim costs   unless they can prove the same – but then, QCAT is another State Government Agency and is “standing in the shoes of the Authority” – you can draw your own conclusions!

To eliminate any suggestion of bias, the issue of “natural justice” and costs should be removed from QCAT to the Magistrates Court.