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Kabir v Queensland Building and Construction Commission[2016] QCAT 180

Kabir v Queensland Building and Construction Commission[2016] QCAT 180

CITATION:

Kabir v Queensland Building and Construction Commission [2016] QCAT 180

PARTIES:

Akm Kabir

(Applicant)

 

v

 

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR162-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

28 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed.

CATCHWORDS:

Application to review a decision by the Respondent made under s 86C of the Queensland Building and Construction Commission Act 1991 (Qld) – declining to issue a direction to rectify defective building work – circumstances where more than 6 years and 3 months have transpired since date of original building work: Queensland Building and Construction Commission Act 1991 (Qld) s 72A(4) – discussion of circumstances that might constitute ‘sufficient reason’ for QCAT to extend time for the making of a direction to extend time for the making of a direction to rectify – no reason identified on the evidence

Queensland Building and Construction Commission Act 1991 (Qld) ss 72(5), 72A(4), 86A, 86C

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24

Statutory Instruments Act 1992 (Qld) ss 7, 9

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    This is an application to review a decision, filed by Dr Akm Kabir (‘the Applicant’), who now seeks to review a decision of the Respondent, Queensland Building and Construction Commission (‘QBCC’), as was made by the QBCC under s 86C(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’), on 26 June 2015.
  2. [2]
    The decision now under review is itself an internal review decision, in which the QBCC had confirmed an earlier decision, to refuse to give a licensee (the builder who had originally constructed the house now owned by the Applicant), another direction to rectify building work, as had been listed in the Applicant’s complaint to the QBCC, dated 3 February 2015. 
  3. [3]
    Needless to say, there had been earlier, similar complaints by the Applicant to the QBCC.  Some of these had resulted in the QBCC issuing the licensee with directions to undertake rectification work, on previous occasions.
  4. [4]
    The Applicant specifies the following as the grounds for his application to QCAT:[1]

The decision maker ignored the following facts:

  1. (1)
    Item #2 to #6, which I do not agree with, are recurring problems, which I had reported within 6 years and 3 months time.  Some of the items I had reported multiple times within that allowable period.
  1. (2)
    The builder’s attempted repairs have worked only for a short period or until next torrential rain, this implies that the repair work was never carried out properly.
  1. (3)
    A couple of items, item #4 and item #5, are so wrongly based [sic] surmise that I have offered to pull the ceiling down and a QBCC rep to witness the water entry during any downpour.
  1. (5)
    Item #3 was ignored previously, since whenever water entered in that area, it rained out through the downlight hole and no stains were visible.  It has always been there.

Relevant Law

  1. [5]
    A decision such as that made by the QBCC on 26 June 2015 is a ‘reviewable decision’ for purposes of the QCAT Act. Pursuant to s 24 of the QCAT Act, in any proceeding for the review of a reviewable decision, QCAT may:
    1. confirm or amend the decision; or
    2. set aside the decision and substitute its own decision; or
    3. set aside the decision, and then return the matter for reconsideration to the decision-maker for the decision, with any directions that the Tribunal considers appropriate.

Statutory Framework

  1. [6]
    The QBCC Act empowers the QBCC to regulate residential construction work. As part of that, the QBCC may issue licensees with directions to rectify what it assesses to be ‘defective’ building work.
  2. [7]
    In this regard, s 72, within Part 6 of the QBCC Act, provides:

72 Power to require rectification of building work and remediation of consequential damage

  1. (1)
    This section applies if the commission is of the opinion that—
  1. (a)
    building work is defective or incomplete; or
  1. (b)
    consequential damage has been caused by, or as a consequence of, carrying out building work.
  1. (2)
    The commission may direct the person who carried out the building work to do the following within the period stated in the direction—
  1. (a)
    for building work that is defective or incomplete—rectify the building work;
  1. (b)
    for consequential damage—remedy the damage.
  1. (3)
    In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).
  1. (4)
    The period stated in the direction must be at least 28 days unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period—
  1. (a)
    a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or
  1. (b)
    the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.
  1. (5)
    The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

Example for subsection (5)—

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

  1. (6)
    The commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work.
  1. (7)
    In subsection (3), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work.
  1. (8)
    To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J.
  1. [8]
    Section 72A(4) of the QBCC Act provides:
  1. (4)
    A direction to rectify or remedy cannot be given more than 6 years and 3 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.
  1. [9]
    Section 72(5) of the QBCC Act provides:
  1. (5)
    The fact that a direction is given under section 72(2) does not prevent the commission from taking additional action against a person under this Act for the building work to which the direction relates.
  1. [10]
    Section 86A(1) of the QBCC Act provides:
  1. (1)
    A person who is given, or is entitled to be given, notice of a reviewable decision may apply to the commission to have the decision reviewed.
  1. [11]
    Subsection 86C(1) of the QBCC Act provides:
  1. (1)
    If an internal review application is made under section 86B, the commission must, as soon as practicable but within the required period, make a new decision (the internal review decision) as if the reviewable decision the subject of the application had not been made.
  1. [12]
    In deciding whether to give a direction to rectify building work that is defective under sub-s 72(1), the QBCC is also required to have regard to the objects that are set out in s 3 of the QBCC Act, which are:
  1. (a)
    to regulate the building industry—
  1. (i)
    to ensure the maintenance of proper standards in the industry; and
  1. (ii)
    to achieve a reasonable balance between the interests of building contractors and consumers; and
  1. (b)
    to provide remedies for defective building work; and
  1. (c)
    to provide support, education and advice for those who undertake building work and consumers; and
  1. (d)
    to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners.
  1. [13]
    In furtherance of the objects of the QBCC Act, the QBCC is also required to have regard to any ‘guideline policies’ as may be promulgated from time to time by the Queensland Building Services Board, pursuant to s 9 of the (former) Queensland Building Services Authority Act 1991(Qld). On 19 November 2009, the QBSA Board made a guideline policy termed the Rectification of Building Work Policy (‘the rectification policy’).  This policy took effect on 12 March 2010, when it was published in the Queensland Government Gazette.  In accordance with s 7 and s 9 of the Statutory Instruments Act 1992 (Qld), the rectification policy now takes force as an item of subordinate legislation.
  2. [14]
    On the hearing of this application for review, QCAT now ‘stands in the shoes’ of the original decision maker and must decide the review in accordance with the QBCC Act, by way of a fresh hearing on the merits[2], in order to produce ‘the correct and preferable[3] decision. Any new evidence, not available to the original decision maker, may be considered by QCAT, yet QCAT is similarly required to have regard for the requirements of the QBCC Act, and to have regard to the Rectification of Building Work Policy.

Factual Background

  1. [15]
    On or about 26 September 2006, a builder (the licensee) commenced construction of a two-storey house, at Paradise Point. The licensee completed the house on 7 November 2007.  More than five years after the date of practical completion, the present Applicant purchased[4] the house, from a mortgagee in possession. 

The First Complaint and Direction to Rectify

  1. [16]
    On 4 February 2013, being approximately eight months after the fact of the Applicant having purchased the house, the QBCC received a complaint from the Applicant in relation to rainwater leaking into the building, at various locations. An inspection was undertaken by the QBCC on 4 March 2013.  A report of that inspection was prepared by a QBCC Building Inspector, which is now dated 5 March 2013. 
  2. [17]
    In response to the various matters identified by that report, a Direction to Rectify was issued by the QBCC on 8 March 2013.  Although the Applicant had complained in relation to seven items, all involving water ingress, the QBCC inspector found insufficient evidence in relation to items 6 & 7, such that the Direction to Rectify given on 8 March 2013 was confined to matters 1 – 5, only. Those five matters were:
    1. roof parapet metal flashing located at the south east corner of the dwelling;
    2. roof metal apron flashing and parapet capping located above the bathroom: to the eastern side of the dwelling, near the swimming pool;
    3. roof metal apron flashing and parapet capping located above the timber ceiling: adjacent to the bathroom on the eastern side of the dwelling near the swimming pool;
    4. tiled deck and external wall cladding: located above the  timber ceiling adjacent to the pool area; and
    5. the high-level window: located on the eastern side of the living room.
  3. [18]
    The licensee then undertook various rectification works. These were re-inspected by the QBCC, on 6 August 2013. In a re-inspection report dated 7 August 2013, the QBCC inspector determined that items 1, 2, and 5 had been satisfactorily repaired, yet that items 3 and 4 still required further attention.

The Second Complaint and Direction to Rectify

  1. [19]
    On 10 October 2013, the Applicant submitted another complaint to the QBCC, again referable to water ingress to various internal areas of the house. The QBCC then conducted another inspection, on 25 November 2013. The same QBCC inspector as had inspected the property on the prior occasion (4 March 2013) also attended on 25 November 2013, and prepared a further report, now dated 26 November 2013. 
  2. [20]
    The 26 November 2013 QBCC report deals with the same 5 items identified in the first QBCC inspection report (that dated 8 March 2013). It concluded that each of items 1, 2, 3, and 5 had been previously satisfactorily rectified, yet that item 4 (the tiled deck and external wall cladding located above the timber ceiling adjacent to the pool area) had still not been satisfactorily repaired.  Accordingly, on 27 November 2013, the QBCC issued a further Direction to Rectify, requiring further rectification work to the tiled deck and external wall cladding, located above the timber ceiling, adjacent to the pool area.

The Third Complaint

  1. [21]
    On 16 December 2013, the Applicant made another complaint to the QBCC in relation to water ingress. The QBCC then conducted another inspection, on 10 March 2014, and a report of that inspection was prepared which is now dated 11 March 2014.  On this occasion, the Applicant’s complaints related to water leaks through the plastered ceiling above the main entrance door; as well as water leaking through the timber ceiling, next to the area occupied by the swimming pool.
  2. [22]
    By a letter dated 12 March 2014, the QBCC informed the Applicant that it did not consider that these items amounted to ‘defective’ building work, such that a direction to rectify would not be issued. In relation to the two matters that had been raised by the Applicant on 16 December 2013, the QBCC inspector reported:

Visual inspection noted that there was no evidence to suggest that further water ingress has occurred to the area located above the front entrance door by way of water damage.

The licensee carried out repairs to this area under QBCC request to rectify file reference 3-358-13.  There was a re-inspection carried out on 25/11/13 which confirmed that there was no further water ingress to this area and that this item of concern was satisfactorily rectified.

The current tenants were asked at the time of this site inspection if they had witnessed any further water ingress to this area since the re-inspection held on 25/11/13 and they advised they had not witnessed any further water ingress.

The QBCC site inspection confirmed that the defect associated with water ingress to the above-mentioned area has been successfully rectified, therefore QBCC proposes to take no further action in relation to this matter.[5]

The inspection noted that water ingress had occurred from the timber ceiling located at the eastern end of the swimming pool covered area, where it abuts a ‘vergola’ metal roof attached to the side of the dwelling.  The tenants that have resided in the dwelling for the past six months (approximately) confirmed that the water ingress to the above-mentioned area did occur in the last heavy downpour.  The inspection noted that the above-mentioned water ingress is most likely a result of poor construction practices by the installer of the vergola roof, which is attached to the side of the existing dwelling.  The installation of the vergola roof was confirmed to be done [sic] by others, not [the licensee] in which [sic] this complaint is lodged against. 

The inspection noted that there was no obvious defective construction practice performed by [the licensee] to the area of concern which has contributed to the above-mentioned water ingress. 

Due to the above findings QBCC is not able to apportion blame against [the licensee] for the water ingress that has occurred to the above-mentioned area as others have altered the structure of the dwelling which has most likely caused the defect to occur.  Therefore QBCC proposes to take no further action in relation to this particular matter. 

Furthermore, it was noted that at the time of the site inspection that the area where water ingress had previously occurred and reported on QBCC complaint file reference 3-358-13 and file reference 3-3846-13 located directly under the upper level master bedroom patio was confirmed to be satisfactorily rectified after the area was extensively water tested.[6]

The Fourth Complaint

  1. [23]
    On 3 February 2015 the Applicant submitted another complaint to the QBCC, again alleging problems of water ingress. Another QBCC inspection was undertaken on 8 April 2015, and a report of the inspection was prepared, which is now dated 20 April 2015.
  2. [24]
    On the occasion of the fourth inspection, the inspector was requested to examine seven (7) areas of claimed water ingress:
    1. Formal living area big glass window (upper frame and roof above): rainwater leaks into the window and now to the entire ceiling when it rains.  The wall paint has blistered and the chandelier has been damaged.
    2. Ceiling area above main front entrance door:  water leaks during heavy rain.
    3. Family (round) dining area attached to the kitchen:  water drips through the middle downlight during heavy rain.
    4. Bathroom ceiling next to the pool: rainwater leaks through the wall/roof junction.
    5. Timber ceiling area next to the swimming pool: rainwater leaks through some junction joints in the ceiling. The entire area is now damaged.
    6. First floor bedroom ceiling/balcony ceiling: rainwater leaks to the balcony and bedroom ceiling.
    7. Ceiling in garage: water leaks through ceiling resulting in ceiling and floor damage.
  3. [25]
    In relation to those seven matters, the QBCC inspection determined:
    1. The licensee had previously rectified this defect in response to a complaint made by the applicant on 5 March 2015.  Accordingly, the QBCC proposed taking no further action on this occasion in relation to item (1).
    2. This item was previously dealt with as Item 6 in the QBCC report dated 4 March 2013.  The item was further inspected by the QBCC, at which time it was found to have been already satisfactorily rectified.  Therefore, the QBCC felt this to be a newly emerging issue and thus an item that was now outside the timeframe within which the QBCC could make a direction to rectify.
    3. This item was previously addressed in the QBCC inspection report dated 25 November 2015.  At that time, no evidence of any defective building work was found.  Accordingly, the QBCC was of the view that this was a new item of complaint, and thus outside the timeframe within which the QBCC could make a direction to rectify.
    4. This item was first raised by the Applicant, and then dealt with in a QBCC inspection report dated 4 March 2013.  After rectification works by the licensee at about that time, the QBCC determined that the matter had been satisfactorily rectified.  Further visual inspection on 8 March 2015 found mould on the plasterboard ceiling of the bathroom.  The QBCC inspector was of the view that the mould found on 8 March 2015 was most likely attributable to a lack of ventilation in the bathroom by the occupants, rather than being something caused by defective building work.  On the basis that it could not be confirmed that there was any problem referable to defective construction, no direction to rectify would issue.
    5. The QBCC inspection report dated 10 March 2014 noted that the QBCC was unable to apportion any responsibility to the licensee because other contractors had subsequently altered construction in the area of the complaint. In the view of the QBCC inspector, any issues with water ingress related to those subsequently performed building works, rather than the original construction.
    6. Although visual inspection did reveal water damage to the plaster ceiling in the first floor bedroom, this appeared to be a new complaint, and thus now out of time for the QBCC to be able to issue a direction to rectify.
    7. Inspection did reveal signs of water damage to the ceiling of the eastern section of the garage.  Although the Applicant contends that this is a reoccurrence of previously reported problems, a review of the QBCC files reveal that on previous occasions water ingress had occurred in the rear southern section of the garage, and these problems had been satisfactorily rectified by the licensee after those prior inspections. Accordingly, water damage to the eastern section of the garage was considered to comprise a new complaint item, now outside the timeframe within which the QBCC could make a direction to rectify.
  4. [26]
    By letter dated 8 May 2015, the QBCC informed the Applicant that a direction to rectify would not be issued in relation to the matters of complaint raised on 3 February 2015, as more than six years and three months had now passed since the work was completed: QBCC Act, s.72A(4).
  5. [27]
    Dissatisfied with the decision made by the QBCC on 8 May 2015, the Applicant then sought an internal review.  The Internal review decision, as was made by the QBCC on 26 June 2015, upheld the original decision not to issue a further direction to rectify. It is this decision that the Applicant now seeks to have reviewed before QCAT.

Discussion

  1. [28]
    In order for this Application to succeed, it will be necessary to circumvent the related effects of s 72(5), and s 72A(4) of the QBCC Act. Section 72(5) provides:

The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

  1. [29]
    Next, s 72A(4) of the QBCC Act provides:

A direction to rectify or remedy cannot be given more than 6 years and 3 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.

The Rectification Policy

  1. [30]
    Section 72(5) of the QBCC Act provides that a direction to rectify is not required to be given, in circumstances wherein it would be ‘unfair’ to the licensee to give a direction. This requires consideration of the guideline policy promulgated by the (former) Queensland Building Services Authority Board in relation to the rectification of building work (‘the Rectification Policy’). 
  2. [31]
    The Rectification Policy notes that ordinarily a licensee builder should be required to repair ‘category one’ defects (which include water ingress) yet:

Under the Act, a direction cannot ordinarily be given more than 6 years and 3 months after the building work was completed or left in an incomplete state.  The only exception is if [QCAT] is satisfied, on Application by the Authority, that there is sufficient reason for extending that time.

  1. [32]
    As can be seen, the Rectification Policy directly quotes from s 72A(4) of the QBCC Act.
  2. [33]
    The licensee builder completed the house on 7 November 2007.  Six years and three months after that date expired on 7 February 2014. QCAT now only has the authority to issue a direction to rectify to the licensee for defective building work after 7 February 2014 if first satisfied “on application by the commission” that there is, in all the circumstances, ‘sufficient reason’ for extending the time for the giving of a direction, and the Tribunal then extends time, accordingly. 
  3. [34]
    In the instant case, no application has been brought by the QBCC to extend time.  In circumstances as here, on a de novo Application for Review - where it may be taken that I may now exercise the power to apply to extend time under s 72A(4) as if I were standing in the shoes of the QBCC – the power must, nonetheless, only be exercised wherein I am first satisfied that there is ‘sufficient reason’ to extend the time for the giving of a direction. The germane question becomes: whether sufficient reason has now been demonstrated to extend time to issue a direction?
  4. [35]
    In this context, ‘sufficient reason’ can only mean a basis that is able to be ascertained on all of the evidence, and then one that is sufficiently persuasive so as to displace the statutory ‘norm’ caused by s 72A(4), that holds that a licensee is not required to rectify even category one defects, if these are occurring more than six years and three months after the time of construction.
  5. [36]
    As a matter of evidence, I cannot be satisfied that sufficient reason can be shown to now displace the presumptive effect of s 72A(4), which obviously marks a watershed settled upon by the legislature so as to balance the rights of homeowners against those of building industry licensees.[7] 
  6. [37]
    Here, the Applicant seeks to assert, merely by necessary implication, that previous rectification works performed by the licensee ‘must have been’ conducted improperly; yet no actual evidence has been adduced by the Applicant and put before the Tribunal in order to demonstrate that.  In the very teeth of QBCC inspection reports that say that previous remedial works have been satisfactorily undertaken, one might have expected detailed refutation evidence by the Applicant from a building expert that seeks to demonstrate the error of the QBCC Building Inspector’s conclusion. However, no evidence of that kind has been put before Tribunal, by the Applicant.
  7. [38]
    Although it be true that the Applicant has included some colour photographs that show wet, water-damaged, and mouldy plasterboard (as well as some other aspects of building damage), there is no evidence before me to link this damage to matters that were originally reported within six years and three months having been improperly repaired. I am left unable to conclude from these photographs that this is not evidence of fresh instances of water ingress, from new problems rather than instances of previous leaks, improperly repaired and reported within time. Had that evidence been available to me, then that may, in theory, have been enough to show ‘sufficient reason’ to extend the time for giving a direction to rectify.  In the absence of that evidence QCAT is powerless to make such an order.
  8. [39]
    The Application for Review is dismissed.

Footnotes

[1]The numbering is as it appears in the Application. The Applicant has not listed a fourth ground in his Application for Review.

[2]QCAT Act s 20(2).

[3]Ibid s 20(1).

[4]On 12 May 2012.

[5]Statement of Reasons filed in QCAT on 10 August 2015 at Annexure ‘SOR 14’, at 89.

[6]Ibid at p 90.

[7]Here, consider QBCC Act s 3(a)(ii).

Close

Editorial Notes

  • Published Case Name:

    Kabir v Queensland Building and Construction Commission

  • Shortened Case Name:

    Kabir v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 180

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    28 Apr 2016

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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