June 2017


Builder liable for 'exploding' house

By Kate Tilley and John Reynolds, KT Journalism

A Brisbane couple has won a $1.8 million lawsuit against a builder after their house "exploded" from wind pressure during a 2008 storm.

Queensland Supreme Court Justice Martin Daubney found registered builder Daniel John Kondra's failure to supervise window installation during construction four years earlier led to the home's destruction.

Justice Daubney overturned Zurich Australian Insurance Ltd's refusal to indemnify Kondra. The court heard Kondra built the home in the hilly western Brisbane suburb of The Gap for husband and wife Graham Charles and Lynette Gwendoline Bigby in 2003 and 2004.

The couple hired Gateway Aluminium (Qld) Pty Ltd to install the windows, including large ones, 3.6m long and 2.7m high, at the front of the house.
Justice Daubney was told the windows had been incorrectly installed and imploded when hit by the storm.

The double-storey masonry home had a metal roof, an upper timber floor and a concrete slab on the ground floor. It was near the top of a hill, with extensive views looking south. 

Pressure inside the house caused the roof to peel off and external walls collapsed.

Justice Daubney said inadequate installation of the windows meant they suffered "lateral deflection", ie, they were literally pushed in by the wind, when a strong southerly wind assaulted the front of the house. 

Mrs Bigby, who was in the house when the storm hit, said it had "exploded". One expert said it was clear the builder had "failed to fix windows to the jambs in a competent, workmanlike manner". He said the home's east wing was demolished "as though a bomb had gone off".

Another expert report said the large windows were inadequately attached for the expected wind strengths, resulting in the front windows facing south blowing in and the rear windows blowing out.

Kondra argued he was not responsible for Gateway's work because the Bigbys had hired the supplier direct. Zurich agreed, arguing Kondra was not required to "stand next to the installer and watch him work".

But Justice Daubney said the Qld Domestic Buildings Contract Act's statutory warranty and Kondra and the Bigbys' owner/contractor agreement required Kondra to supervise all aspects of the build.

The agreement stated the builder "covenants with the owner to furnish his best skill and judgement in furthering the interest of the owner. He agrees to furnish efficient business administration and supervision and to use his best efforts to furnish at all times an adequate supply of work as in materials, and to perform the work in a most expeditious, economical and workmanlike manner."

Justice Daubney said the ambit of the statutory warranty was not limited to work performed only by Kondra or his direct contractors.

The Qld Building Services Authority agreement said Kondra would be paid $460,000 in instalments, architectural and engineering drawings for the construction had to comply with the Act and he would build the house "in an appropriate and skilful way and with reasonable care and skill".

Justice Daubney said: "He was required to [conduct] all supervisory services for the domestic building work." He said Kondra knew how important it was for the windows to be properly installed to resist wind loads because of the home's design and hillside position. He should have been present when the windows were installed or arranged for installation to be done when he was onsite.

"Supervision of the installation of these windows would, or ought, have revealed the patent inadequacy of the installation."

He said Kondra's difficulty in communicating with Gateway's representative did not relieve him of observance of his duty. "If anything, it ought have provided an imperative for him to do what he said he could have, but did not, do, namely instruct Gateway not to [start] installing
the windows until he was on site to observe."

Justice Daubney said Kondra was not "a particularly reliable witness and his evidence needs to be viewed through that prism".

Justice Daubney rejected Zurich's argument it was not liable because the storm "was plainly not connected to" Kondra's business. It cited a NSW Appeal Court ruling, GIO General Ltd v Newcastle City Council (1996) 38 NSWLR 558, that found GIO was not liable for a council-owned building that collapsed during the 1989 Newcastle earthquake.

The Appeal Court found the quake was not connected to the council's business and not covered by its public liability insurance. Justice Daubney said the two cases could not be compared. "In [Newcastle], it was clear it was the earthquake itself which directly did the damage," he said.

"In this case, it was not the storm which blew up the house. Nor, for that matter, was it the faulty windows themselves which directly did the damage to the house, although the defective installation of the windows was causative."

He said the relevant occurrence under the policy was the "explosive over-pressurisation event" caused by the failure of the defectively installed windows, the installation of which was obviously part of Kondra's business.

The policy clearly extended to property damage to a building constructed by Kondra, provided the contract price did not exceed $500,000.

Justice Daubney ordered Kondra to pay $1,822,490 to the Bigbys for the costs of reconstruction, the value of lost contents, and interest and Zurich to indemnify him.

Bigby v Kondra & Anor [2017], QSC 37, 14/03/2017  

Back to top

Resolve is the official publication of the Australian Insurance Law Association and
the New Zealand Insurance Law Association.