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ABG83 Pty Ltd v Queensland Building and Construction Commission

 

[2019] QCAT 386

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

ABG83 Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 386

PARTIES:

ABG83 PTY LTD t/as ALL BATHROOM GEAR

(applicant)

 

v

 

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR274-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 December 2019

HEARING DATE:

10 September 2019

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. The decision of the Queensland Building and Construction Commission dated 19 July 2018 to give ‘Direction To Rectify No. 0103656’ is confirmed, except Item 4 which is removed.
  2. Unless either party files and gives to the other party submissions to the contrary within 14 days, each party must pay their own costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – direction to rectify – review application – fairness – cause of defect – where applicant did not engage independent experts – where many of applicant’s submissions directed at reliability of Commission’s expert evidence – where Applicant has evidential onus to provide appropriate material to support decision it seeks – where none of applicant’s submissions supported by independent expert evidence of its own – where expert findings provide sufficient evidentiary basis that building work did not comply with relevant standards and was therefore defective – where applicant submitted that owner refused it access and that it made all reasonable endeavours to access the site throughout the process – where not unreasonable for owner to suggest calling to organise a time and date – where applicant not entitled to impose conditions on owner in returning to rectify its work – where a person cannot contract out of provisions of the Queensland Building and Construction Commission Act 1991 (Qld) – where Applicant’s attempts to impose conditions of access means it was seeking to derive an additional benefit to detriment of owner, contrary to objects of Act and purpose for which access was intended

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – whether in interests of justice to award costs – where strong indicator against awarding costs – where Commission’s decision confirmed except for one item 

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 7, s 72, s 108D

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 100, s 102

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2

Fontain v Queensland Building Services Authority [2004] QCCTB 163

Harley v Department of Justice and Attorney-General [2012] QCAT 620

Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105

Ireland v Queensland Building Services Authority [1999] QBT 180

Kehl v Board of Professional Engineers of Qld [2010] QCATA 58

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Lovett v Queensland Building Services Authority [2001] QBT 14

Queensland Building Services Authority v Last Laugh Pty Ltd [2011] QCAT 263

R v His Honour Judge Miller QC & Anor; ex parte Graham Evans & Co. (QLD) Pty Ltd [1987] 2 QdR 446

Ralacom Pty Ltd v. Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412

Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575

Townsend v Queensland Building and Construction Commission [2019] QCAT 239

Walker v Queensland Building and Construction Commission [2014] QCAT 228

APPEARANCES &

REPRESENTATION:

 

Applicant:

C Matthews of Counsel, instructed by All Building Law, Solicitors

Respondent:

S Monaghan, in-house Lawyer

REASONS FOR DECISION

What is this application about?

  1. [1]
    ABG83 Pty Ltd t/as All Bathroom Gear disputes a decision by the Queensland Building and Construction Commission on 12 July 2018 to give a ‘Direction To Rectify’ that was then issued on 19 July 2018.[1]  ABG83 says the work is not defective or has been rectified and the homeowner refused it access.

What does the Tribunal do in a review application?

  1. [2]
    In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.[2] This means that ABG83 need not prove any error by the Commission in its original decision – the original decision is not presumed correct.[3]
  2. [3]
    The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration with appropriate directions.[4]

What does the Tribunal consider?

  1. [4]
    A ‘Direction To Rectify’ may not be given if, in the circumstances, it would be unfair.[5] The Commission – and the Tribunal – may consider all circumstances that are reasonably relevant to decide whether to give a ‘Direction To Rectify’.[6]
  2. [5]
    The discretion to issue a ‘Direction To Rectify’ is seamless and involves weighing up factors, both for and against, its exercise.[7]  The Tribunal must consider the competing interests of the parties: blameworthiness of the homeowner and the cause of the defective building work are relevant.[8]

What does the Direction say?

  1. [6]
    The Direction relevantly provides (emphasis added):
    1. The painting to the bathroom has not been completed in accordance with the QBCC Standards and Tolerances Guide in that there is overpainting to the aluminium frame which is unsatisfactory. (Complaint Item 4) 
    2. The wall tiles to the main bathroom have obvious inconsistent joint widths, grout is not applied uniformly and pinholes are visible across the span of the works. The grout and tile installation is not within acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 7)
    3. The floor tiles to the ensuite grout presents pinholes across the span of the works and are not installed within acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 16)
    4. The main bathroom floor is not installed with the requisite floor ratio to the waste in accordance with BCA 2016 Vol 1 F1.11. (Complaint Item 17)
    5. Jagged tiles have been installed to the finished bathroom floor and is not within acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 18)
    6. The application and failure in adhesion to the sealant to the main bathroom floor and wall joint is unsatisfactory and does not comply with AS3958.1 Sec 2 (Complaint Item 20)
    7. Jagged tiles to the finished surface of the bathroom walls is not installed within acceptable tolerances of AS3958.1 Sec 5 (Complaint Item 30)
    8. The ensuite shower recess floor does not provide requisite floor ratio of 1:100, or sufficient fall to prevent residual water to pond in the shower recess in accordance with AS3958.1 Appendix D, AS3740:2010 Sec 3.4 & Appendix B. This is resulting in ponding after showers and contributes to a loss of amenity for the occupants. (Complaint Item 37)
    9. The application and failure of the adhesion to the sealant of the ensuite floor and wall joint is unsatisfactory, and not installed within acceptable tolerances of AS3958.1 Sec 2. (Complaint Item 45)
    10. The trims installed to the ensuite tiles present deviations of projection and embedment of adjacent tiles and the joins have obvious uneven gaps at the interface. The trims installed are outside acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 51)
    11. The window penetration to the ensuite shower recess does not comply with the requisite waterproofing requirement of BCA 2016 Vol 1 F1.7. (Complaint Item 52)
    12. The tile and grout installation adjacent to the ensuite window has not been cleaned adequately upon completion of the works with residue visible to the finished surface. The tile adhesive and grout residue is not cleaned in accordance with AS3958.1:2007 Ceramic Tiles – Guide to the installation of the ceramic tiles Sec 5. (Complaint Item 53)
    13. The wall tiles to the ensuite have obvious inconsistent joint widths, with grout not applied uniformly and pinholes across the span of the works. The grout and tile installation is not within acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 55)
    14. Jagged edge tiles to the finished surface of the ensuite walls is not installed within acceptable tolerances of AS3958.1 Sec 5. (Complaint Item 58)   

What do the Commission’s experts say?

  1. [7]
    David Tacon, Building and Termite Inspector prepared a report following an inspection on 13 December 2017.[9] Mr Tacon found that the bathroom and ensuite were ‘clearly not ready for Practical Completion’ and were below average standard for new construction. He relevantly found these issues with the bathroom and ensuite:
    1. Floor tiles have lippage causing ponding;
    2. Floor and wall tiles have lippage, are uneven and defective;
    3. Floor does not have required fall to waste;
    4. Window sill is out of level and trim is above tiles;
    5. Tiles have chips, scratches, drill scratches and inconsistent grout lines;
    6. Aluminium trim is poorly installed with gaps and poor mitre joints;
    7. Tap flange and mirror are not flush; and
    8. Over silicon needs cleaning.
  2. [8]
    Geoffrey Sanders, QBCC Building Inspector prepared a report following an inspection on 16 April 2018.[10] For each Complaint Item in the Direction, Mr Sanders relevantly found these issues with the bathroom and ensuite:
    1. Aluminium window frame has overpaint brush marks (Complaint Item 4);
    2. Wall has uneven grout lines, pinholes and voids (Complaint Item 7);
    3. Floor has pinholes and voids (Complaint Item 16);
    4. Floor has the incorrect fall to waste (Complaint Item 17);
    5. Floor tiles have chipped, jagged and flaked edges (Complaint Item 18);
    6. Floor silicone is peeling or has undercut due to filling big gaps (Complaint Item 20);
    7. Wall has missing grout, pinholes, high spots and unsmooth bathroom walls (Complaint Item 30);
    8. Floor tiling is uneven and joints not uniform or aligned or in same plane (Complaint Item 37);
    9. Floor Silicone is peeling or has undercut due to filling big gaps (Complaint Item 45);
    10. Trim is not flush, is not smooth and is cut uneven (Complaint Item 51);
    11. Window sill tiles are not graded to fall and allow ponding (Complaint Item 52);
    12. Window has residue grout, glue and paint (Complaint Item 53);
    13. Wall tiling and joints not uniform or aligned or in same plane (Complaint Item 55); and
    14. Wall tiles have chipped, jagged and flaked edges (Complaint Item 58).
  3. [9]
    Steven Noble, Senior Technical Internal Review Officer conducted an internal review desktop assessment,[11] filed a written statement[12] and gave sworn oral evidence confirming the findings in Mr Sanders’ report
  4. [10]
    Mr Sanders prepared a reinspection report following an inspection on 25 September 2018.[13] Mr Sanders relevantly found that Complaint Items 7, 17, 30, 51, 52 and 55 had not been satisfactorily rectified.

What do ABG83’s witnesses say?

  1. [11]
    ABG83 did not engage any independent experts to inspect the bathroom and ensuite to prepare reports. Instead, it relied upon evidence from its Nominee Supervisor and its subcontractors.
  2. [12]
    Henri Van Roden is a Director and Nominee Supervisor of ABG83. He filed written statements[14] that he confirmed under oath and relevantly provided:
    1. The nature and unevenness of the tiles created an inherent difficulty in achieving lines between the tiles;
    2. Pinholes and voids were within acceptable tolerances;
    3. The National Construction Code provides that a floor is not required to be graded to a floor waste where it forms part of a floor waste gully;
    4. Tile edges were within acceptable tolerances;
    5. Floor silicone is within acceptable tolerances;
    6. The quality of the tiles chosen by the owner meant that chipped, jagged or flaked edges could not be avoided;
    7. The unevenness of the brick substrata of the building created an unavoidable unevenness to the finished face of the wall tiles, causing some tiles to not align or appear smooth;
    8. ABG83 did not cause the paint residue;
    9. Wall tiles are within acceptable tolerances; and
    10. Although Mr Sanders’ reinspection report noted Complaint Items 16, 18, 20, 45 and 58 as satisfactorily rectified, neither ABG83 nor its tiling subcontractor Klaus Schneider did any further work on those items.
  3. [13]
    Robert Kelly was the waterproofing subcontractor who filed a written statement that the waterproofing was ‘above and beyond’ that required by the Building Code.[15] 
  4. [14]
    Fergus McCarthy was the carpenter subcontractor who filed a written statement that the bathroom and ensuite walls could not have been made to the standard of a new construction without being fully removed and rebuilt and that Mr Sanders had said during his inspection that ‘it all looks fine to me’.[16]
  5. [15]
    Dominic Massa was the plumber subcontractor who filed a written statement that the floor wastes are gullies rather than dry floor waste and therefore not a receptacle for flood water and that Mr Sanders had said during his inspection that ‘it all looked fine to me’.[17]
  6. [16]
    Klaus Schneider was the tiling subcontractor who filed an undated written statement and a written statement dated 15 May 2019 that he confirmed under oath and relevantly provided:
    1. Mr Sanders said during the inspection that ‘it all looked fine to me’;
    2. The owner selected the tiles;
    3. The tiles were not perfectly flat (bowed) and not of equal dimension and while within tolerances, could not avoid lippage due to the uneven walls, variable grout joint lines and the owner’s requirement for brick bond pattern;
    4. The uneven window tiles was due to the old window frame being out of level;
    5. The tile issues are mainly cosmetic;
    6. The property construction was poor with no walls being plumb or level and could not have been corrected without reconstruction of the entire walls;
    7. The grout was used to best complement the colour of the tiles. This grout can cause an inability to have uniform grout widths and have a greater appearance of very minor pinholes due to water retention;
    8. The quality of the tiles meant that standard cutting could not have avoided some chipped, jagged or flaked edges and the finish was best quality given the standard of tiles supplied;
    9. The unevenness of the rendered brick walls caused an inevitable variation to the finished face of the adjoining wall tiles;
    10. No fall is required to the floor waste gully;
    11. Although Mr Sanders’ reinspection report noted Complaint Items 16, 18, 20, 45 and 58 as satisfactorily rectified, ABG83 did no further work on those items.

What is the Tribunal’s finding?

  1. [17]
    ABG83’s case is essentially that it should not have been directed to rectify because:
    1. (a)
      the materials supplied by the owner and the structure itself were of such poor quality that it did the best it could; and
    2. (b)
      Mr Sanders’ findings lack credibility because of his alleged oral statement and his findings that certain items were rectified, despite ABG83 not doing rectification work on those items.
  2. [18]
    Many of ABG83’s submissions were directed at the reliability of the Commission’s expert evidence, including the evidential basis for their findings and their interpretations of relevant codes and standards.
  3. [19]
    The difficulty is that in review proceedings, ABG83 has an evidential onus to provide appropriate material to support the decision it seeks:

Generally there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[18]

  1. [20]
    This has also been described as a ‘practical onus’.[19] Regardless of the viewing distance of the Commission’s experts, ABG83 adduced no independent expert evidence of its own to counter their findings.
  2. [21]
    None of ABG83’s assertions were supported by any independent expert evidence of its own. None of ABG83’s witnesses were independent experts. Mr Van Roden as its Director and authorised nominee is the representative of a party to the proceeding and therefore has a vested interest in the outcome. ABG83’s other witnesses all either performed the actual work or had a commercial relationship with ABG83 relating to this job. Their evidence is therefore neither independent nor objective.[20]
  3. [22]
    Conversely, although the Commission employs both Mr Sanders and Mr Noble, its role as a statutory authority is simply to administer the Act and further its objects.[21] Those objects include ensuring the maintenance of proper standards in the industry, achieving a reasonable balance between the interests of building contractors and consumers and providing remedies for defective building work.[22] Mr Sanders’ and Mr Noble’s reports are prepared to further those objects, rather than any vested interest. Neither Mr Sanders nor Mr Noble has any personal interest in the outcome.
  4. [23]
    ABG83 sought to impugn Mr Sanders’ Initial Inspection Report on the basis that he later found in his Reinspection Report that that Items 16, 18, 20, 45 and 58 had been rectified - despite ABG83’s evidence that it had not performed any rectification work. ABG83 then submitted that because Mr Noble’s report relied heavily on Mr Sanders’ Initial Inspection Report, the ‘Direction To Rectify’ itself must be in doubt.
  5. [24]
    However, ABG’s doubts about Mr Sanders’ Reinspection Report does not inevitably lead to the conclusion that his findings lack credit. Mr Sanders’ findings in his Initial Inspection Report are not uncorroborated. Despite the claims about his oral statement and his findings about certain items being rectified, his overall findings are consistent with the findings of the other expert, Mr Tacon. The Tribunal is not satisfied that ABG’s doubts flowing form Mr Sanders’ Reinspection Report are sufficient to diminish the findings in Mr Sanders’ Initial Inspection Report.
  6. [25]
    To the extent of any dichotomy between Mr Sanders’ findings and Mr Noble’s findings,[23] I prefer the evidence of Mr Noble. This is because Mr Noble performed his review and gave sworn oral evidence, after taking into account Mr Sanders’ reports. Like Mr Sanders, Mr Noble has no vested outcome in the proceedings. Mr Noble’s review was conducted in conjunction with photographs, relevant legislation, regulations, codes and standards. Mr Noble is a licensed builder with tertiary qualifications in building and construction, construction management and over 17 years’ experience. During the hearing Mr Noble impressed me as a straight-forward, honest and even-handed witness who was prepared to consider propositions put to him under cross-examination. His sworn oral evidence was reasoned and consistent.
  7. [26]
    I am satisfied that Mr Noble turned an independent mind and exercised his considerable industry experience in preparing his Report and when giving his sworn oral evidence and that his findings are not diminished by ABG83’s doubts about Mr Sanders’ Reinspection Report. I therefore accept Mr Noble’s findings as detailed in his Report and am satisfied they provide sufficient basis to give a ‘Direction To Rectify’ – except Item 4.
  8. [27]
    ABG83 submitted that it should not have been directed to rectify Item 4 given its evidence that it did not cause the paint. Painting of the cornice and ceilings did form part of the contract specifications. However, Mr Noble’s evidence that it was ‘not possible to apportion sole responsibility’ to ABG83 and that he was ‘not convinced’ that ABG83 was responsible. In view of this, the Tribunal is not satisfied on the balance of probabilities that ABG83 should have been directed to rectify Item 4.  
  9. [28]
    The expert findings of Mr Tacon, Mr Sanders and Mr Noble provide sufficient evidentiary basis for the Tribunal to be satisfied that the building work did not comply with relevant standards and was therefore defective (except Item 4).[24] None of ABG83’s concerns about the Commission’s experts is sufficient to displace their findings. I am not satisfied that ABG83 adduced evidence sufficient to discharge its evidential onus and overturn the findings of the Commission’s experts.
  10. [29]
    The Tribunal further finds that within the context of the consumer protection object of the Queensland Building and Construction Commission Act 1991 (Qld), ABG83’s responsibility for the building work is not diminished by the owner’s choice of tiles. Because the owner was not an owner-builder and did not have expert knowledge, the builder is expected to apply its own expert knowledge to their installation and advise the owner accordingly.[25] ABG83 must still ensure the tiles are installed to appropriate standards. The weight of the evidence is they were not.
  11. [30]
    The Tribunal therefore accepts the weight of the evidence supports a finding that ABG83’s work was defective as itemised in the Direction dated 19 July 2018 (except Item 4), regardless of the age and previous construction of the property. 

Was ABG83 denied access to rectify?

  1. [31]
    ABG83 submitted that it would be unfair to be given a Direction because the owner refused it access before ABG83 was given the Direction. It said that it made all reasonable endeavours to access the site throughout the process.
  2. [32]
    However, the evidence shows:
    1. On 26 February 2018, ABG83 emailed the owner stating that he needed to give it the opportunity to call and make good any defects;
    2. On 9 March 2018, ABG83 emailed the owner stating that it had not been provided access;
    3. On 9 March 2018, the owner then emailed ABG suggesting ABG83 call him to organise a time and date;
    4. On 9 March 2018, ABG83 then emailed the owner saying it had legal advice to keep all communications in writing and requiring the owner to reply in 48 hours;
    5. On 18 April 2018, the owner emailed ABG83 that all work would be carried out while he was at home and that he will be back home on 29 June 2018 for three weeks;
    6. On 23 April 2018, ABG83 wrote to the owner agreeing to attend to certain items on the basis that ‘if any wall or floor tiles are replaced we will require an acknowledgement from you that you will accept the tiling possibly looking inferior to that which has already been achieved and which was acknowledged by the inspector on his first visit that “it all looks fine to me”. You will be required to sign a disclaimer that you will not make a further claim should you [sic] do not like the appearance that will be achieved’ and ‘A further acknowledgement is also made by [owner] of the possible outcome of replacement of floor tiles and the effect thereof on wall tiles and that a disclaimer as outlined… will be provided’;
    7. On 24 April 2018, the owner emailed Mr Sanders noting that ABG83 had agreed to rectify only some of the items.
  3. [33]
    None of this shows that ABG83 was not given an opportunity to rectify its work. It was not unreasonable for the owner to suggest calling to organise a time and date. ABG83 could have made its own written record of any discussions.
  4. [34]
    Moreover, ABG83 was not entitled to impose any conditions on the owner in returning to rectify its work. A person cannot contract out of the provisions of the Queensland Building and Construction Commission Act 1991 (Qld).[33] ABG83’s attempt to impose conditions means it was seeking to derive an additional benefit to the detriment of the owner, contrary to the objects of the Queensland Building and Construction Commission Act 1991 (Qld) and outside the purpose for which access was intended.
  5. [35]
    Seeking access upon certain conditions being met that are contrary to the Act and the purpose of a Direction, does not equate to reasonable attempts to access the site. It was not only reasonable, but appropriate for the owner not to agree to allow access to the site on ABG83’s unilaterally-imposed conditions.
  6. [36]
    The Tribunal finds that ABG83 was not unreasonably refused access to the site.

Should ABG83 be directed to rectify?

  1. [37]
    As Principal Contractor, ABG83 is responsible for the work of its subcontractors.[34] As builder, ABG83 was responsible to ensure the building work complied with relevant codes and standards.[35] In circumstances where tiling was not performed to an appropriate standard for which ABG83 was the licensed contractor and was not unreasonably refused access to the site, it was not unfair to give ABG83 a ‘Direction To Rectify’ in the terms of 19 July 2018.
  2. [38]
    Although the work has since been rectified,[36] it is in the public interest for the ‘Direction to Rectify’ to remain on the register given the Tribunal’s above findings.[37] 

What is the ‘correct and preferable’ decision?

  1. [39]
    The ‘correct and preferable’ decision is that the decision of the Queensland Building and Construction Commission dated 19 July 2018 to issue ‘Direction To Rectify No. 0103656’ is confirmed, except Item 4 which is removed.  

What is the appropriate Costs Order?

  1. [40]
    ABG83 submitted that the Commission should pay its costs or pending the reasons for decision in this proceedings, it be entitled to put further submissions within 14 days on the question of costs.
  2. [41]
    The Commission submitted that each party should pay its own costs.
  3. [42]
    Costs in the Tribunal are not awarded as a matter of course. Each party must pay their own legal costs,[38] unless the ‘interests of justice’ require the Tribunal to order a party to pay the costs of another party.[39]
  4. [43]
    There is therefore a strong indicator against awarding costs:

Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s. 100.[40]

  1. [44]
    This is a review proceeding where the Commission’s decision has been confirmed, except for one item. Consequently, unless either party files and gives the other party submissions to the contrary within 14 days, each party must pay their own costs.

Footnotes

[1]‘Direction To Rectify’ No. 0103656 dated 19 July 2018.

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

[3]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl v Board of Professional Engineers of Qld [2010] QCATA 58, [9].

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[5]Queensland Building and Construction Commission Act 1991 (Qld), s 72(5).

[6]Queensland Building and Construction Commission Act 1991 (Qld), s 72(3).

[7]Ireland v Queensland Building Services Authority [1999] QBT 180, 29.

[8]Dixon Projects Pty Ltd v Queensland Building Services Authority [2009] QCCTB 2.

[9]Report dated 13 December 2017.

[10]Report dated 27 April 2018.

[11]Desktop report dated 10 July 2018.

[12]Statement dated 22 May 2019.

[13]  Reinspection Report dated 26 October 2018.

[14]  Statement dated 16 May 2019 and unsigned Statement dated 23 November 2018.

[15]  Statement dated 20 November 2018.

[16]  Statement dated 21 November 2018.

[17]  Statement dated 21 November 2018.

[18]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

[19]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].

[20]Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) [2013] QCAT 575, [39]-[40].

[21]Queensland Building and Construction Act 1991 (Qld), s 7.

[22]Queensland Building and Construction Act 1991 (Qld), s 3.

[23]For example, upon reinspection Mr Sanders concluded that Item 37 had been rectified.

[24]Unlike Lovett v Queensland Building Services Authority [2001] QBT 14.

[25]Hiettecorp Pty Ltd ATF Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105; cf R v His Honour Judge Miller QC & Anor; ex parte Graham Evans & Co. (QLD) Pty Ltd [1987] 2 QdR 446 where the Court of Appeal held that the owner deliberately took on the risk after imposing a contractual requirement on the builder to use a certain product to save costs.

[26]  Email trail between Henri Van Roden and owner dated 9 March 2018.

[27]  Ibid.

[28]  Ibid.

[29]  Ibid.

[30]  Ibid.

[31]  Letter Henri Van Roden to owner dated 23 April 2018.

[32]  Email owner to Geoffrey Sanders.

[33]  Section 108D.

[34]Queensland Building Services Authority v Last Laugh Pty Ltd [2011] QCAT 263, [17].

[35]Fontain v Queensland Building Services Authority [2004] QCCTB 163.

[36]By ABG83 and then a third party contractor approved under the Statutory Insurance Scheme.

[37]Townsend v Queensland Building and Construction Commission [2019] QCAT 239.

[38]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100.

[39]Ibid s 102.

[40]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No. 2) [2010] QCAT 412, [29].

Close

Editorial Notes

  • Published Case Name:

    ABG83 Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    ABG83 Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2019] QCAT 386

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    10 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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