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- Unreported Judgment
Jobling v Queensland Building and Construction Commission QCAT 186
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Jobling v Queensland Building and Construction Commission  QCAT 186
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
General administrative review matters
8 July 2019
17 June 2019
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether work defective or incomplete – whether unfair to require rectification
Queensland Building and Construction Commission Act 1991 (Qld), s 72
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24
Stuart v Queensland Building and Construction Commission  QCATA 81
APPEARANCES & REPRESENTATION:
REASONS FOR DECISION
- Mr Jobling seeks review of a direction to rectify issued by the Queensland Building and Construction Commission (‘QBCC’) on 30 July 2018. The direction was made in response to a complaint by Ms Katie Ring in relation to building work undertaken by Mr Jobling at 32 Settlers Rise, Woolmar.
- The power to issue a direction to rectify is found in s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). Relevantly, the QBCC has a discretion under s 72(1)(a) and (2)(a) to issue a direction to rectify in respect of building work which is ‘defective or incomplete’.
- In exercising the discretion to issue a direction to rectify, s 72(5) states:
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.
- Mr Jobling concedes that items 1-2 and 4-13 of the direction to rectify issued by the QBCC relates to incomplete building work.
- The QBCC submits that items 1-2 and 4-13 should be characterised as defective rather than incomplete building work. The QBCC does not press item 3.
Defective or incomplete building work?
- Ms Ring signed a contract with Mr Jobling to carry out building work at 32 Settlers Rise, Woolmar on 9 March 2017.
- The evidence before me includes a Progress Report prepared by Sergon following a site meeting on 29 January 2018. This report notes a number of items requiring completion prior to Practical Completion.
- Consistent with this, solicitors for Ms Ring sent correspondence to Mr Jobling on 26 February 2018 in the following terms:
Our client attended an inspection of the property on 29 January 2018 and a number of items remained outstanding as either defective or incomplete. We enclose a list of the items outstanding as either defective or incomplete at the time of the inspection, most of which our client is unsure as to whether or not those items have now been attended to …
On the basis of the matters raised above, our client is not satisfied that the works have reached practical completion in accordance with the definition in the contract and requires you that you immediately take steps to:
1. Provide evidence to indicate that the works contained in the list (and any other outstanding works under the contract) have been completed so as to evidence compliance with the practical completion requirements under the contract …
- The items identified in the Sergon report and the list of items attached to the correspondence from Ms Ring’s solicitors cover the majority, but not all, of the items in the direction to rectify.
- Solicitors for Ms Ring sent further correspondence to Mr Jobling on 15 March 2018 in the following terms:
We refer to our letter of 26 February 2018 in which we outlined our client’s position and her rejection of your assertion that the property had reached practical completion. This rejection is further supported by our client’s expert opinion (based on his inspection on 9 March 2018) that the outstanding painting required to be undertaken at the Property is not a minor defect or omission as three days’ worth of painting (including sanding and preparation works) is a major defect which renders the property unsuitable for habitation until complete.
Notwithstanding, our client does not wish to continue engaging in litigation by correspondence and wants to take possession of the property without further delay. As such, we place you on notice that our client disputes that you are entitled to payment of the Practical Completion invoice in the sum of $16,616.20 and intends to deposit the full amount of $16,616.20 into the Master Builders Holding Account in accordance with clause 17.9 of the Contract.
- Solicitors for Ms Ring sent further correspondence to Mr Jobling on 2 May 2018 in the following terms:
We attach a receipt confirming the funds have been deposited.
In accordance with clause 17.9 of the Contract you are hereby required to hand over possession of the property to our client and we require that all keys, buzzers remotes and certificates be provided to our office by express post no later than 8 May 2018.
- It is not in dispute that Mr Jobling has never provided Ms Ring with the keys to the property or the remote controls. He has subsequently provided some but not all certificates.
- Relevantly, clause 17.9 of the building contract provides:
(a) If the Owner wishes to take Possession of the Works but disputes any part of the Contract Price claimed by the Contractor, and the Contractor is a member of Master Builders Queensland, the Owner may pay the disputed amount into Master Builders Queensland’s Holding Account. The Owner is to then give the Contractor a receipt showing the disputed amount has been deposited into the Holding Account, and pay any undisputed amount to the contractor. On receiving the receipt and payment (if any), the Contractor is to hand over the works, including the keys to the works, to the Owner or the Owner’s Agent.
- Ms Ring’s oral evidence at the hearing was that she took possession of 32 Settlers Rise, Woolmar in ‘early’ 2018. She also stated that she changed the locks on the property on 19 June 2018, being the day of the QBCC inspection.
- ‘Possession’ is defined in the building contract to mean:
when the Works, or any part of the Works, are taken over, occupied or used by the Owner or the Owner’s employees, other contractors or agents.
- I consider that by changing the locks on 19 June 2018, Ms Ring took possession of 32 Settlers Rise, Woolmar.
- Consent orders were subsequently made by the Tribunal in proceedings BDL134-18 between Mr Jobling and Ms Ring on 31 July 2018. Paragraph 2 of those orders stated:
The contract is terminated by mutual agreement.
- The effect of this sequence of events is that Ms Ring took possession of the property at a time when she maintained the building works had not reached practical completion, and proceeded to consent to the termination of the contract by mutual agreement shortly thereafter.
- In these circumstances, I consider that the items in the direction to rectify should be characterised as relating to incomplete building work. They are items of a nature which the home owner maintained were required to be completed prior to practical completion. In my view, it is misconceived to characterise as defective items which the builder would otherwise have been required to complete prior to practical completion.
Unfair to issue a direction?
- The Appeal Tribunal observed in Stuart v Queensland Building and Construction Commission:
Where a contract is abandoned, there is no continuing rights to have the work performed or to receive damages for the failure to perform that work. In these circumstances, there is no loss, which would be suffered by the homeowner, from the contractor failing to complete the contract.
Abandonment is inconsistent with a right to be compensated for a failure to perform obligations from which the other party has been discharged.
- In my view, these comments are equally applicable to a contract which is terminated by mutual agreement.
- In exercising my discretion under s 72 of the QBCC Act, I consider that it would be unfair to issue a direction to rectify for incomplete building work in circumstances where the owner took possession prior to practical completion, and where the building contract was subsequently terminated by mutual agreement. To paraphrase the Appeal Tribunal in Stuart, a direction to rectify does not issue to protect a home owner from the consequences of their own conduct, particularly where in this case where the home owner acted through solicitors in taking possession.
- The direction to rectify will be set aside, and I will substitute a new decision not to issue a direction to rectify.
- For completeness, I note that the contract was terminated by mutual agreement the day after the QBCC issued the direction to rectify. Out of an abundance of caution, and pursuant to s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), I will order that the substituted decision is to take effect from 31 July 2018.
- Published Case Name:
Simon Jobling v Queensland Building and Construction Commission
- Shortened Case Name:
Jobling v Queensland Building and Construction Commission
 QCAT 186
08 Jul 2019