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Garvey v Queensland Building and Construction Commission[2016] QCAT 190

Garvey v Queensland Building and Construction Commission[2016] QCAT 190

CITATION:

Garvey v Queensland Building and Construction Commission [2016] QCAT 190

PARTIES:

Jennifer Kathleen Louise Garvey

Leonard Wayne Garvey

(Applicants)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR310-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On papers hearing

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

17 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Queensland Building and Construction Commission to give direction to rectify and/or complete No. 0100028 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BUILDING - DIRECTION TO RECTIFY – where direction to rectify given – where homeowners accepted terms of direction to rectify – where homeowners did not want the contractor who carried out the building work to rectify - whether another licensed contractor who had not carried out the original building work could be directed to rectify the building work – whether another licensed contractor could be directed to supervise the rectification of the building work

Queensland Building and Construction Commission Act (Qld) 1991 ss 3, 71I, 72, 72A

Queensland Civil and Administrative Tribunal Act (Qld) 2009 ss 18, 19, 20, 24

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

Background

  1. [1]
    On 7 October 2015, Ms Jennifer Garvey and Mr Leonard Garvey purchased 88 Queens Road, Hermit Park from Mr Cameron Lucke’s mother. Mr Cameron Lucke is a licensed building contractor under the Queensland Building and Construction Commission Act (Qld) 1991 (the QBCC Act). He holds a trade contractor licence in the carpentry class and in the joinery class.[1] Mr Lucke carried out building work to his mother’s property prior to the sale to Ms Garvey and Mr Garvey.
  2. [2]
    Ms Garvey and Mr Garvey made a complaint to the Queensland Building and Construction Commission (the QBCC) on 20 November 2015.
  3. [3]
    On 10 December 2015, the QBCC decided to give Mr Lucke direction to rectify number 0100028. Ms Garvey and Mr Garvey applied to the Tribunal for a review of that decision.

The Tribunal’s jurisdiction

  1. [4]
    These proceedings were commenced in the Tribunal’s review jurisdiction. The Tribunal’s review jurisdiction is the jurisdiction conferred on the Tribunal by an enabling Act to review a decision made by another entity under that Act.[2] In this case, the enabling Act is the QBCC Act. The Tribunal may exercise its review jurisdiction if a person has applied under the QCAT Act to exercise its review jurisdiction for a reviewable decision.[3] In simple terms, I have no jurisdiction to conduct a review of a decision made by the QBCC unless it is a ‘reviewable decision’.
  2. [5]
    Section 86 of the QBCC Act sets out what decisions are reviewable decisions. A decision ‘to give a direction to rectify or remedy or not to give the direction’ is a ‘reviewable decision’.[4]
  3. [6]
    In exercising its review jurisdiction the Tribunal has all the functions of the decision-maker of the QBCC for the reviewable decision being reviewed.[5]
  4. [7]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision. In reaching its decision, the Tribunal must apply the law. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[6]
  5. [8]
    In a proceeding for a review of a reviewable decision, the Tribunal has the following functions. It may –
    1. Confirm or amend the decision;
    2. Set aside the decision and substitute its own decision; or
    3. Set aside the decision and return the matter for reconsideration to the decision-maker for the decision with the directions the Tribunal considers appropriate.[7]
  6. [9]
    I have considered all of the material filed by both parties.

What the Applicants say

  1. [10]
    The Direction to rectify issued to Mr Lucke states:

You are directed to rectify the following defective and incomplete building work within the Time Period for Completion.[8]

  1. The Contractor has carried out defective work to the installation of the new steel stumps under the dwelling and timber posts under the rear patio by not providing concrete footings in accordance with AS2870-2011: Residential Slab & Footings. The Contractor is required to rectify the installation of the new steel stumps that under the dwelling and the timber posts that are under the rear patio as noted in the NQ Consulting Structural Engineers Report dated 2/11/2015, so that the completed installation is in accordance with AS2870-2011: Residential Slab & Footings.
  2. The Contractor has carried out defective work to the installation of the new steel stumps under the dwelling and timber posts under the rear patio by not providing sufficient tie down connection to the timber bearer in accordance with AS1684.3-2010: Residential Timber Framed Construction (Cyclonic Areas). The Contractor is required to rectify the installation of the new stumps under the dwelling and rear patio area resulting in inadequate tie down connection to the timber bearers as noted in the NQ Consulting Structural Engineers Report dated 2/11/2015 so that completed installation of the stumps are in accordance with AS1684.3-2010: Residential Timber Framed Construction (Cyclonic Areas).
  3. The installation of the new rear stairs is defective in that the treated timber used in contact with the ground is not appropriately treated in accordance with AS3660.1-2000: Termite Management – New Building Work. The Contractor has used an inappropriate timber that is in contact with the ground of the rear stairs resulting in the treated timber used is not in accordance with AS3660.1-2000: Termite Management – New Building Work.
  4. The Contractor has not secured the main roof rafters to the top plate of the dwelling in accordance with the building approval conditions of Development Permit Number BLD15/0437. The Contractor is required to rectify the tie down connection of the main roof rafters  to the top plate of the dwelling resulting in inadequate tie down of the timber framing members so that the completed building work is in accordance with the building approval conditions of Development Permit Number BLD15/0437.
  5. The Contractor has not satisfactorily installed the new drainage fixture to the existing overflow relief gully trap under the dwelling towards the rear left hand side of the dwelling. The Contractor is required to rectify the defective work to the existing overflow relief gully trap resulting in non-compliance so that the work carried out is completed satisfactorily, as required in item numbers 1 to 4 (only) listed in the Council’s plumbing audit report carried out on 4/12/2015.
  1. [11]
    The QBCC also determined that, upon inspection, there was insufficient evidence of any obvious defective practices by Mr Lucke in relation to the complaint items numbered 1, 5 and 6 in Ms Garvey and Mr Garvey’s complaint form, so the QBCC would take no further action in relation to those items.
  2. [12]
    In their application for review, Ms Garvey and Mr Garvey stated:[9]

We have no criticism of the actual directions to rectify…No.0100028…However, they are directions a licensed builder would understand and properly manage. Cameron Lucke who is a licensed carpenter and joiner, obviously needs on-the-job direction and supervision from a license builder.

  1. [13]
    Ms Garvey and Mr Garvey seek orders from the Tribunal to the following effect:[10]

We request a licensed builder be engaged to correctly interpret Peter Auditore’s directions to rectify. The builder would also engage and schedule licensed sub-contractors to raise the house for the plumbing & stumps rectification. Only a licensed builder can legally engage sub-contractors. Cameron Lucke cannot legally carry out the majority of the rectifications, which require sub-contractors.

  1. [14]
    In their statements of evidence, Ms Garvey and Mr Garvey elaborate on their concerns regarding Mr Lucke carrying out the rectification work.[11] They say that Mr Lucke is willing to physically carry out the required work but they are concerned he will not perform the work in accordance with the ‘required plans, forms, approvals, permits, warranty insurance and certification to meet regulatory compliance’ as he is not a licensed builder.[12] 
  2. [15]
    Mr and Ms Garvey say that Mr Lucke is not licensed to excavate the new footings to the engineer’s required one metre depth, nor is he licensed to place/pour concrete for such deep footings.[13] They say that this means s 72A(3) of the QBCC Act should be applied.

Legislative provisions and policy

  1. [16]
    The objects of the QBCC Act are set out in s 3:

3 Objects of Act

The objects of this Act 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. [17]
    The power to require rectification of defective building work is set out in s 72 of the QBCC Act:

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

(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. [18]
    The term “building work” includes the renovation, alteration, extension, improvement or repair of a building.[14] The term, “defective” includes “faulty or unsatisfactory”.[15]
  2. [19]
    Section 71I of the QBCC Act provides:

71I Who is taken to carry out building work for this part

(1) A person who carries out building work is taken, for this part, to include—

  1. (a)
    a building contractor whose licence card is imprinted on the contract for carrying out the building work; and
  1. (b)
    a building contractor whose name, licence number and address are stated on the contract; and
  1. (c)
    a building contractor whose name is stated on the contract for carrying out the building work; and
  1. (d)
    a building contractor whose name is stated on an insurance notification form for the building work; and
  1. (e)
    a building contractor whose licence number is stated on the contract for carrying out the building work; and
  1. (f)
    a building contractor whose licence number is stated on an insurance notification form for the building work; and
  1. (g)
    a building contractor whose PIN was used for putting in place, for the building work, a term of cover under the statutory insurance scheme; and
  1. (h)
    a building contractor by whom the building work was carried out; and
  1. (i)
    a person who, for profit or reward, carried out the building work; and
  1. (j)
    a person who is a building contractor under a domestic building contract who managed the carrying out of the building work; and
  1. (k)
    a construction manager engaged under a construction management contract to provide building work services for the building work; and
  1. (l)
    a principal who was the contracting party for a building contract for building work for a building, or part of a building, intended for sale if—
  1. (i)
    the building, or part of a building, is not, and has never been, the principal place of residence of the principal; and
  1. (ii)
    the principal engages a building contractor or a construction manager to carry out the building work in a way, or using materials, likely to result in the work being defective or incomplete; and
  1. (iii)
    the principal knew, or ought to have known, that the way the work was to be carried out, or the materials to be used, was likely to result in the work being defective or incomplete; and

Example of principal knowing that work or materials were likely to result in defective or incomplete building work—

A principal may know materials are likely to result in work being defective because of advice received from a building contractor or construction manager.

  1. (m)
    a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company’s nominee.

(2) For the purposes of subsection (1)(h) and (i)—

  1. (a)
    a person carries out building work whether the person—

(i) carries it out personally; or

(ii) directly or indirectly causes it to be carried out; and

  1. (b)
    a person is taken to carry out building work if the person provides administration services, advisory services, management services or supervisory services for the work.
  1. [20]
    Section 72A of the QBCC Act provides:

72A Powers and limitations of directions to rectify or remedy

  1. (1)
    A direction to rectify or remedy may be given to more than 1 person for the same building work.
  1. (2)
    A direction to rectify or remedy may require that a building, or part of a building, be demolished and building work be recommenced if, in order to rectify building work, it is necessary to do so.
  1. (3)
    If a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.
  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. (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. [21]
    The “Rectification Policy”[16] is also relevant.

Issues for determination

  1. [22]
    The issues for determination in reviewing a decision to issue a direction to rectify are:
    1. Was the work building work?
    2. If so, was the work defective?
    3. Who was responsible for the defective work?
    4. Is the decision to issue the direction to rectify reasonable in the circumstances?

Consideration

  1. [23]
    This is an unusual case as typically it is the person to whom the direction to rectify is issued that seeks review of the decision. In this case, Ms Garvey and Mr Garvey are the homeowners.
  2. [24]
    It is common ground that the work the subject of the direction to rectify is ‘building work’. The building work in issue clearly falls within the definition of ‘building work’.
  3. [25]
    It is also common ground that the work the subject of the direction to rectify was defective. I have before me a copy of the report of QBCC Inspector, Mr Peter Auditore who, following his inspection of the property, consideration of the report from NQ Consulting (Structural Engineers) dated 2 November 2015, Northern Plumbing’s report and the Council’s plumbing audit report which are also before me, decided to issue the direction to rectify. I am satisfied based on those reports that the work identified in the direction to rectify was defective work because it was not done in accordance with the Building Code of Australia and the relevant Australian Standards.
  4. [26]
    It is also agreed that Mr Lucke to whom the direction was issued carried out the defective work. It is clear from Mr Auditore’s report that Mr Lucke attended Mr Auditore’s inspection of the property and agreed to do certain work and obtain all necessary approvals for the building work. I find that Mr Lucke was responsible for the identified defective work as set out in Mr Auditore’s report and the direction to rectify.
  5. [27]
    Mr Lucke agreed to perform the rectification work. It is not suggested and there is no evidence before me that Mr Lucke sought review of the decision to issue the direction to rectify. There is nothing in the material before me that shows that it would be unfair or unreasonable to issue a direction to rectify in this instance. Taking those matters into account and the nature of the rectification work in the context of the objects of the QBCC Act, I consider it appropriate to exercise the discretion to issue the direction to rectify.
  6. [28]
    Ms Garvey and Mr Garvey do not take issue with the terms of the direction to rectify. Nothing before me persuades me that the terms of the direction to rectify are deficient in any way.
  7. [29]
    Section 72(2) of the QBCC Act provides that the direction be given to the person who carried out the building work. Under s 71I of the QBCC Act, Mr Lucke is the person who carried out the building work. Nothing in s 71I extends the definition of the phrase ‘the person who carried out the building work’ to a person who was not in any way involved in performing the defective building work. I cannot find a provision of the QBCC Act which gives the QBCC the power to issue a direction to rectify to any person other than Mr Lucke in these circumstances.
  8. [30]
    Ms Garvey and Mr Garvey rely on s 72A(3) of the QBCC Act. In my view, the effect of that section is that if Mr Lucke is not licensed to carry out any aspect of the work required by the direction to rectify, he must have that work carried out by a suitably licensed contractor. That provision places the obligation on Mr Lucke to engage, as necessary, a suitably licensed contractor to complete the required work. It does not give the QBCC power to issue a direction to rectify to another licensed contractor should it be necessary for one to be engaged to compete the required work.
  9. [31]
    I cannot locate any legislative provision that gives the QBCC the power to issue a direction to rectify to another licensed contractor to perform the work in compliance with the direction to rectify. If the QBCC does not have the power to do so, I have no such power. Similarly, I cannot locate any legislative provision that gives the QBCC the power to direct that another licensed contractor supervise the rectification work. Again, if the QBCC does not have such a power, I do not.
  10. [32]
    Ms Garvey and Mr Garvey do not take issue with the QBCC’s failure to issue directions to rectify in relation to complaint items 1, 5 and 6. For completeness I will refer briefly to those items.
  11. [33]
    Complaint 1 was described as ‘No QBCC Home Warranty Insurance’. I understand that complaint relates to Mr Lucke’s failure to pay the correct insurance premium for the scope of the building work he actually carried out at the property prior to the work being commenced. Complaint 1 is not relevant to a decision to issue a direction to rectify. It does not relate to actual defective building work.
  12. [34]
    The Tribunal can review a decision of the QBCC to disallow a claim under the statutory insurance scheme wholly or in part. There is no such decision before me. Any complaint the Mr and Ms Garvey have relating to the statutory insurance scheme are outside the scope of my jurisdiction in this review.
  13. [35]
    Complaint 5 was described as ‘Lack of New HD Rods/bracing walls’. In relation to complaint 5, Mr Auditore’s report states:

As the dwelling was constructed prior to the enforcement of the Building Act 1975 there was no requirement that hold down rods/bracing walls had to be installed. It has been determined that there is no defect evident in relation to this complaint item.

  1. [36]
    Mr and Ms Garvey do not challenge Mr Auditore’s conclusion about the application of the Building Act. I accept Mr Auditore’s conclusion in relation to complaint 5.
  2. [37]
    Complaint 6 was described as ‘Possible removal of structural/load bearing walls without engineering advice’. In relation to complaint 6, Mr Auditore’s report states:

Owners are concerned there is the possibility that the internal wall removed in the dining area of the dwelling that has been removed was a load bearing wall and was removed without any building approval. The contractor had advised that the internal wall that was removed was non loadbearing. Visual inspection of the ceiling area could not confirm if the removed wall was loadbearing or non loadbearing, however it was agreed on site by both parties that when the roof sheeting is removed, the structural engineer will inspect and confirm if the wall that has been removed was loadbearing and provide any necessary recommendations. The Contractor has agreed to obtain necessary approvals for the building work from a Building Certifier. It has been determined that there is no defect evident in relation to this complaint item.

  1. [38]
    Mr and Ms Garvey have stated that the structural engineer’s second report dated 17 December confirms ‘The wall that was removed was originally loadbearing, but due to the installation of … rafters, the wall is no longer required.[17]
  2. [39]
    Based on the evidence before me, I am not satisfied that the building work performed by Mr Lucke in removing the wall in the dining area is defective building work. Therefore, a direction to rectify could not be given in relation to complaint 6.
  3. [40]
    In their material, Ms Garvey and Mr Garvey have raised a number of concerns regarding Mr Lucke certifying certain work and the service they have received from the QBCC’s compliance unit.[18] These matters are outside the scope of this review. I make no findings in relation to those matters.
  4. [41]
    For all of those reasons, I confirm the reviewable decision.

Footnotes

[1] Carpentry class pursuant to Part 16 of the Queensland Building and Construction Commission Regulation 2003 and Joinery pursuant to Part 36 of the QBCC Regulation. See annexure “PA-2” to the affidavit of Peter Auditore affirmed on 13 April 2016.

[2] QCAT Act s 17(1).

[3] Ibid at s 18(1).

[4] QBCC Act s 86(1)(e).

[5] QCAT Act s 19.

[6] Ibid at s 20.

[7] Ibid at s 24(1).

[8] Time period for completion – (45) days from the date of service of this decision.

[9] Application to review a decision filed 17 December 2015 at p 4.

[10] Ibid at p 5.

[11] ‘Applicants’ Statements of Evidence for the Application to Review a decision filed 23 December 2015’ with attachments marked “Doc 1” to “Doc 10” inclusive and ‘Applicants’ Statements of Final Evidence for the Application to Review a Decision filed 23 December 2015’ with annexures marked “Doc 1” to “Doc 19” inclusive.

[12] ‘Applicants’ Statements of Evidence for the Application to Review a Decision filed 23 December 2015’ at [1].

[13] ‘Applicants’ Statements of Final Evidence for the Application to Review a Decision filed 23 December 2015’ and its attachments.

[14] Schedule 2 definition of “building work” para (b).

[15] Schedule 2 definition of “defective”.

[16] Marked “SOR-1” to the QBCC’s statement of reasons filed on 8 February 2016.

[17] Applicants’ Statements of Evidence for the Application to Review a Decision filed 23 December 2015 at [5].

[18] Ibid at [2]-[9].

Close

Editorial Notes

  • Published Case Name:

    Garvey v Queensland Building and Construction Commission

  • Shortened Case Name:

    Garvey v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 190

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    17 Jun 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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