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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Davis & Ors v Queensland Building and Construction Commission  QCAT 189
Gregory Rentoul Davis
ROBYN KAY CURHAM
Queensland Building and Construction Commission
BODY CORPORATE FOR 24-26 QUERRIN ST COMMUNITY TITLES SCHEME
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
26 May 2020
On the papers
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether the statutory time limit for the Commission to issue a direction to rectify defective building work had expired – whether the statutory time limit for the Commission to issue a direction to rectify defective building work was extended – whether a new statutory time limit for the Commission to issue a direction to rectify defective building work arose in circumstances where remedial work utilised different rectification methods – where the applicants made complaints about building work outside the statutory time limit – where the builder had returned and performed rectification work before that and within the statutory time limit voluntarily – where the work done by the builder when he returned was claimed to be defective
Queensland Building and Construction Commission Act 1991 (Qld), s 72A(4)
Barry v QBCC  QSC 50
Sadd, S v QBSA  QCCTB 45
Stephens v QBCC  QCAT 281
Torea Pty Ltd v QBSA  QCAT 004
P J Hick, Active Law
N Thirumoorthi, in house legal
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- An eight townhouse complex was constructed by a builder at Yeronga in about June 2009. The applicants (“the owners”) in matter GAR139-18 purchased one of the units (Lot 5). The applicant in matter GAR 144–18 is the body corporate for the complex (“the body corporate”).
- A certificate of classification for the building was issued on 10 July 2009.
- Water entry into the ground floor rooms at the rear of the complex through the rear retaining wall, which also formed the exterior wall to a living area in Lot 5, was first noticed in December 2014 or January 2015.
- According to the applicants, over the period January 2015 to January 2016 the builder returned and carried out work on the retaining wall and in some units including Lot 5 with the object of preventing water penetration through the retaining wall. The work involved removing floor coverings and internal wall framing and lining from the ground floor rooms, the application of a waterproof membrane to the inside face of the retaining wall and replacing internal wall framing and lining and floor coverings to the ground floor rooms.
- On 15 November 2017 and 24 November 2017 respectively, the Queensland Building and Construction Commission (‘QBCC’) received separate complaints from the body corporate and the owners about water penetration.
- Both complaints were about the water penetrating the retaining wall at the back of the property.
- On 12 February 2018 Mr Sanders, a building inspector with QBCC, inspected the premises. Following that, on 8 March 2018, QBCC decided not to issue a direction to rectify defective building work to the builder on the following bases:
- (a)the building work complained about was work done at the rear of a garage and there was insufficient evidence to reveal any obvious defective building work;
- (b)in any case the building work was completed on 10 July 2009 and the complaints were lodged outside the timeframe prescribed by s 71J and s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
- The decision about insufficient evidence of defective building work concerned the ground floor not being a habitable area (though used as such) because the area was originally approved for use as a garage or wet basement.
- In respect of the complaints being lodged out of time, QBCC said that the work had completed on 10 July 2009 but the 6 year and 6 months complaint period permitted under the QBCC Act expired on 10 January 2016, before the applicants’ complaints were made.
- The body corporate and the owners have applied to the Tribunal to review the QBCC decision of 8 March 2018.
- By s 71J of the QBCC Act:
- (1)A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete.
- By s 72A of the QBCC Act:
- (4)A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
- On 24 May 2019 the Tribunal directed that the following preliminary issues be determined:
Does the performance of the New Work extend the statutory time limit for issuing a direction to rectify under section 72A(4) of the Queensland Building and Construction Commission Act 1991 in respect of the New Works for a further six years and six months?
Does the statutory time limit for issuing a direction to rectify under section 72A(4) of the Queensland Building and Construction Commission Act 1991 in respect of the New Works commence from the completion of the New Works irrespective of the Works or when the Works was completed?
- The issues as stated lack a certain precision. As worded, they derive from a joint document filed by the parties described as a Statement of Agreed Facts and Issues to be Determined by the Tribunal filed 11 October 2018.
- Trying to explain the issues the applicants say in submissions:
The inquiry behind both questions is whether the time limitation in s 72A(4) of the QBCC Act applies to prevent the Respondent issuing a direction to rectify in response to the Body Corporate complaint and the Unit 5 complaint:
Question 1 seeks that answer in a scenario where the New Work is nothing more than the rectification of a defect in building work completed on 10 July 2009 (‘the Original Work’) and therefore (on the Respondent’s case) the time limitation in s 72A(4) of the QBCC Act has expired in respect of the New Work as if it was part of the Original Work;
Question 2 seeks that answer in a scenario where the New Work is accepted as being building work in its own right completed on or about 19 January 2016 and to which both the Original Work and the date the Original Work was completed is irrelevant and therefore (on the Applicant’s case) the time limitation in s 72A(4) of the QBCC Act has not expired.
- This explanation too is not entirely helpful, particularly with respect to issue 1.
- QBCC expresses issue 1 in fairly succinct terms – whether the 6 year and 6 month time limit under s 72A(4) was reset from 2015 when the contractor undertook rectification work.
- The applicants filed a reply to the QBCC submissions and there was no challenge to issue 1 as formulated by QBCC. Accordingly I conclude that is the question for answer raised in issue 1.
- The applicants say the date when the New Work and the Original Work completed is irrelevant. Therefore the time limit under s 72A(4) has not expired. They say that is their primary submission and it is pressed in issue 2, however, “there is commonality between the submission for both questions.”
- They go on to say their submissions in respect of issue 1 are premised “upon a scenario where the Tribunal determines that the New Work was carried out to rectify a defect in the Original Work (which is denied).” In respect of issue 1, if the New Work was to rectify a defective part of the Original Work the defective part of the Original Work and the New Work became as one, and for the purposes of s 72A(4), were together "building work to which the direction relates” completed on or about 19 January 2016.
- The reference to “building work to which the direction relates” is a reference to the wording in part of s 72A(4).
- QBCC disputes use of the description ‘New Work’ for the work done in 2015 to 2016 because QBCC says it should more accurately be described as ‘rectification work’; it was an attempt to repair original building work.
- To avoid further confusion, I shall refer to the work done in 2009, after which a certificate of classification was issued on 10 July 2009, simply as the 2009 work. I shall refer to the rectification work done in 2015 and early 2016 as the 2015 work.
- For the purpose of addressing issue 1 therefore, I am to accept that the builder came back in 2015 to rectify work the applicants claimed was defective when done in 2009, without any direction to rectify given by QBCC prompting him to return.
- The s 72A(4) time limit of 6 years and 6 months for QBCC to issue a direction to rectify in respect of the 2009 work expired 6 years and 6 months after the 2009 work completed.
- The parties apparently concur that the 2009 work completed on the issuing of the certificate of classification for the building on 10 July 2009. That means the time limit set by s 72A(4) expired on 10 January 2016.
- The first complaint was made by the body corporate on 15 November 2017 and the second by the owners on 24 November 2017. On a plain reading of s 72A(4) both complaints are out of time.
- The applicants contend however that the 2015 work is inextricably linked to the 2009 work. The 2015 work was done to stop water coming through the retaining wall into the ground floor rooms. If the water entry is evidence of the 2009 work being defective, for example a defect in the waterproofing applied back in 2009 or a failure to install drainage in the garage at that time, then there is a clear nexus between the defective 2009 work and the 2015 work. That nexus makes the defective part of the 2009 work and the 2015 work “as one and … together … ‘building work to which the direction relates’ completed on or about 19 January 2016 for the purposes of
- The applicants’ place their emphasis on the words ‘building work to which the direction relates’ in s 72A(4). That emphasis however is perhaps misplaced. It fails to accord due weight to a significant limitation that follows in the provision, namely the date when the building work ‘was completed or left in an incomplete state’.
- Those words must be given meaning. The trigger question to be answered in applying s 72A(4) is, when was the building work completed or left incomplete?
- The word completed is not defined in the Act however:
The term ‘completed’ must be read in the context of the phrase in which it appears. The word should be given its ordinary meaning of ‘finished’. The Act and Policy fix a point in time by reference to when the building work was either finished or left in an incomplete state.
- Building work is defined and it covers a range of things. It includes erection or construction of a building and site work and preparation of plans, and improvement and repair of a building.
- In Barry v QBCC the meaning of building work was considered in the context of
s 72A(4) with Flanagan J noting contract administration was included in the definition. He said that expression, contract administration, was in turn defined under the Act to include arranging for certificates to be issued, including certificates from a local government.
- Flanagan J said that the time limit under s 72A(4) for defective building work runs from when the building work completes, building work includes contract administration and accordingly, in the matter before him, the time limit for QBCC to issue a direction to rectify started from the date of issue of the final inspection certificate. That was the date the building work completed for the purpose of s 72A(4).
- Here, after the building work was done in 2009, a certificate of classification issued on 10 July 2009. Applying Barry, the relevant period allowed QBCC to issue a direction to rectify under s 72A(4) commenced then and finished 6 years and 6 months later, on 10 January 2016.
- QBCC rely on the matter of Stephens v QBCC, which they say is on all fours with this matter.
- In Stephens the owners engaged a builder to build a home. Practical completion was on 25 August 2009. From about 2012 the owners complained to the builder about water leaks. The builder went back and did some work on the leaks in July 2015 and told the owners the leaks were fixed. On 31 March 2017 there were further leaks and the owners contacted the builder who refused to return because he claimed he had fixed the leaks in 2015. He claimed the new leaks in 2017 were the result of lack of maintenance on the part of the owners. The owners complained to the QBCC but QBCC said they could not issue a direction to rectify because the s 72A(4) time limit had expired.
- In Stephens the owners had also contended that the 6 year 6 month (then 6 years 3 months) time limit was reset from 2015 when the builder returned to fix the leaks. In deciding Stephens I found the complaint clearly related to the work done or poorly done in 2009. I found that the s 72A(4) time limit applied to that defective work regardless that outside the purview of a QBCC direction to rectify the builder came back and attempted to fix the work within time.
- The applicants challenge the factual similarity of Stephens. They say there was no real nexus shown in Stephens between the rectification work the builder returned to perform and the defect complained about in the original build. That is not correct. It was clear there that the later complaint about leaks related to the earlier work done in 2009.
- The facts and claim made by the homeowners in Stephens are very similar to the facts and claim by the applicants in this matter. In both matters the contention was that the time limit under s 72A(4) was ‘reset’ by the builder returning to do work to rectify water entry problems from earlier building work.
- The applicants say this in attempting to distinguish Stephens:
The limitation period begins to run from the date the “building work to which the direction relates was completed or left in an incomplete state”. It is the date of completion of the building work to which the direction relates that is the key issue for determining when the limitation period commences.
- The underlining emphasis is that of the applicants. They identify the building work as the significant factor and given the builder returned to rectify the waterproofing done in 2009 in 2015, that ‘nexus’ means the “building work to which the direction relates” was only completed in 2016. The time limit under s 72A(4) only runs from then.
- Torea Pty Ltd v QBSA is cited in support of the proposition that the key issue is identifying when the particular building work completes. In Torea the learned Member said:
- I note that section 72(8) of the Act when determining when the limitation period runs is concerned with “building work to which the direction relates”. It is that building work to which the direction relates which either has to be completed or left in an incomplete state.
- In my view, one of the first steps is to determine the building work to which the direction relates. After that building work to which the direction relates is identified, then the completion date can be determined.
- But that proposition in Torea Pty Ltd v QBSA, set out at  and relied on by the applicants, was expressly rejected in Barry.
- There Flanagan J said:
24 To the extent that the applicant relies on the decision in Torea Pty Ltd v Queensland Building Services Authority, I am of the view that the case was wrongly decided. As I have already observed, the term “building work” is a defined term in the QBCC Act. Section 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. The words “the building work to which the direction relates” does not indicate that “building work” is to have other than its defined meaning. The defined meaning of “building work” includes not just the physical construction of the deck but also arranging for a certificate to be issued. The legislature, had it intended to limit “the building work to which the direction relates” to the defective building work identified in the direction, could have used other terms such as “the building work referred to in the direction” or “the building work the direction requires to be rectified” rather than the broader term “the building work to which the direction relates”.
25 The word “relates” in s 72(8) is a word of broad import. The use of the word “relates” does nothing more than simply identify the whole of the building work that is to be completed.
- The applicants’ submission here is the same submission that was so soundly rejected by Flanagan J in Barry. One does not link the s 72A(4) time limit to particular types or parts of the building work. Section 72A(4) commences from the date of completion of the building work as defined in the QBCC Act, as a whole. Here, that was the date of issue of the certificate of classification on 10 July 2010.
- For the reasons given in Barry, the applicants’ contention is also rejected here. There is no inextricable link or nexus between the 2009 work and the 2015 work which can operate to extend commencement of the time limit set by s 72A(4) from the date the building work completed on 10 July 2009 to the 2015 work.
- I determine that the answer to issue 1 is that the 6 year and 6 month time limit under s 72A(4) was not reset from 2015 when the builder undertook rectification work.
- I might suggest the applicants have an additional practical problem however in advancing their argument which was also raised in Stephens. QBCC used the expression ‘reset’ in their understanding of issue 1. The issue for consideration as formulated refers to the time limit being extended. There cannot be any extension of the time limit unless QBCC makes application to the Tribunal to extend. That is the further limitation set by s 72A(4). Any extension of the time limit is a matter entirely within the discretion of QBCC. That indulgence has not, apparently, been sought here. Any extension of the time limit requires QBCC’s threshold permission before it can come into effect.
- The answer to issue 1 is no.
- Does the statutory time limit for issuing a direction to rectify under section 72A(4) of the QBCC Act in respect of the New Works commence from the completion of the New Works irrespective of the Works or when the Works was completed?
- I note the applicants say this is their primary submission and that their claim is that the 2015 work was building work completed on 19 January 2016, and that the fact of the 2009 work and when that was completed is irrelevant.
- I understand the question being asked is this: does the 2015 work itself trigger a fresh 6 year and 6 month limitation period for the 2015 work?
- The applicants say during the 2009 work the waterproofing membrane and drainage installed to the outside of the retaining wall were not installed correctly or were defective or damaged. The spoon drains and in-slab collection points and drainage that was required to be installed in the ground floor of units 5 to 8 was not installed. The result of those failures was water ingress through the retaining wall into the ground floor rooms which could not drain away.
- The 2015 work was intended to stop the water ingress through the retaining wall into the ground floor rooms and thereby eliminate the ingress of water into the ground floor rooms. The 2015 work failed to do that and that failure is the defect the applicants complain about.
- The 2015 work involved the application of a waterproofing membrane to the inside face of the retaining wall as well as the removal and replacement of internal walls and linings and floor coverings, which was ancillary to the primary purpose of the waterproofing. The 2009 work did not include the application of a waterproofing membrane to the inside face of the retaining wall. The 2015 work constitutes “improvement or repair of the building” in that it was work carried out to stop the water ingress through the retaining wall into the ground floor rooms alleviating the need for spoon drains and in-slab drainage. The limitation period under s 72A(4) begins to run from the date the “building work to which the direction relates was completed or left in an incomplete state”.
- Then the applicants repeat reliance on the rejected Torea proposition that it is the date of completion of the building work to which the direction relates that is the key issue for determining when the limitation period commences.
- Again, following Barry, that submission is rejected.
- The applicants add that although no direction to rectify was issued the applicants made it clear to QBCC that the direction they wanted issued was in respect of the 2015 work. That is irrelevant to the application of the legislation.
- The applicants also submit that because the 2015 work was different to the 2009 work a fresh 6 year 6 month time limit is triggered. They contend the 2015 work constituted “improvement or repair of a building” which is part of the definition of building work in Schedule 2 of the QBCC Act.
- The difficulty is that the 2015 work was clearly work done to try to rectify a water entry problem resulting from the 2009 work. The applicants refer to spoon drains and in-slab drainage not being installed in 2009 when they should have been according to the plans. The applicants rely upon and refer to expert reports in their submissions which reports refer to the 2009 work as the major contributing factor to the water penetration problem in the bottom units and their expert refers to the 2015 work as remedial work.
- Strangely, the applicants also submit that whether or not the 2015 work was rectification of the 2009 work is not a matter for determination in the preliminary issues. That is, with respect, a key factor to be taken into account in considering whether the 2015 work triggers a fresh 6 year and 6 month limitation period for the 2015 work. It was indeed the consideration decisive in Stephens.
- Accepting the 2009 work was defective building work, had the applicants complained about it within time (before 10 January 2016), it would appear QBCC could, subject to it being reasonable to do so, have issued a direction to rectify.
- That direction to rectify would not have specified what work was to be undertaken to rectify the water entry. It would simply have identified the defective work (the 2009 work) and instructed the builder to fix it. That direction to rectify was potentially available before and during the performance of the 2015 work.
- How the builder complied with any such direction to rectify would have been a matter for the builder. Perhaps the builder would have adopted the approach tried in the 2015 work, regardless that it was not used in 2009.
- The primary complaint here is not that the 2015 work is defective. The primary complaint is that, despite the 2015 work, the 2009 work has not been rectified.
- This is the view of QBCC and why QBCC took issue with the description of the 2015 work as New Work. I agree.
- There is no reasonable basis to maintain that attempting to utilise a new remedy to rectify defective building work subject to the s 72A(4) time limit elevates the novel remedy to the status of new building work triggering a new 6 year and 6 month limitation period for the new building work.
- Issue 2 must also be answered in the negative.
 Applicants’ joint submissions dated 11 October 2019,  – 
 Decision not to issue direction to rectify made 8 March 2018
  and 
 Applicants’ joint submissions dated 11 October 2019
 Ibid 
 QBCC submissions filed 5 November 2019, 
 Applicants’ joint submissions dated 11 October 2019, 
 Ibid 
 Ibid 
 QBCC submissions filed 5 November 2019, 
 Applicants’ joint submissions filed 11 October 2019, 
Sadd, S v QBSA  QCCTB 45, page 9 where the relevant words used in s 72A(4) also occurred in the Rectification of Building Work Policy of the QBSA Board.
 Schedule 2
  QSC 50
 Schedule 2
  QCAT 281
 Ibid 
 Ibid 
 Applicants’ joint submissions filed 11 October 2019, [28(c)].
 Ibid, [27(b)]
  QCAT 004
 Ibid , 
 Applicants’ joint submissions filed 11 October 2019, [29(a)].
 First Helisma Report, [1.128].
 Ibid, [1.129].
 Applicants’ joint submissions filed 14 November 2019, [9(b)].
 Op.cit .
- Published Case Name:
Davis & Ors v Queensland Building and Construction Commission
- Shortened Case Name:
Davis v Queensland Building and Construction Commission
 QCAT 189
26 May 2020