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Lim v Queensland Building and Construction Commission[2020] QCAT 499

Lim v Queensland Building and Construction Commission[2020] QCAT 499

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lim & Anor v Queensland Building and Construction Commission [2020] QCAT 499

PARTIES:

Teng lim

caleb foo

(applicants)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR148-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 December 2020

HEARING DATE:

12 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:

  1. Each of the decisions now under review, save and except the decision of the QBCC in relation to item (c) of the drainage complaint, are now set aside, and are substituted by a decision of the Tribunal that determines that the complaint items amount to defective building work.  Each matter is also now remitted to the QBCC subject to a direction that a direction to rectify be issued by the QBCC to Cheng Teck Alvin Sim, requiring rectification of the following defective building works, in a manner to be approved by the QBCC:
    1. (a)
      The poly pipe;
    2. (b)
      The fall of the driveway; and
    3. (c)
      The drainage grates in the driveway.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where direction to rectify not issued – where decisions made by QBCC that either no evidence of defective building work, or otherwise not fair and reasonable in circumstances of complaint about Category 2 defective building work having been brought to QBCC more than six months after practical completion  to issue a direction to rectify – circumstances where intervening legislative amendments extend complaint period to 12 months – further circumstances of fresh evidence (video footage) now demonstrating defective stormwater drainage – consideration of Tribunal’s review jurisdiction generally – meaning of ‘building work’ and ‘defective building work’ – consideration of evidential onus requirements to establish defective building work as a preliminary matter before a direction to rectify may issue.

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

Queensland Building and Construction Commission Act 1991 (Qld) s 71, s 72, s 86, s 87

Braund v QBSA [2007] QCCTB 100.

Chew v QBSA [2010] QCAT 501.

Imperial Homes (Queensland) Pty Ltd v QBCC [2014] QCAT 42

Jensen v QBCC [2017] QCAT 232

APPEARANCES &

REPRESENTATION:

Applicants:

Self-represented by Mr Caleb Foo

Respondent:

Holding Redlich Lawyers

REASONS FOR DECISION

  1. [1]
    By means of an Application to review a decision filed in the Tribunal on 8 June 2017, the applicants seek to review two separate decisions (‘the decisions’) of the Queensland Building and Construction Commission (‘the QBCC’), as were made on 26 September 2016 and 28 October 2016, thereby refusing to issue directions to rectify in respect of certain building works performed at an address at Runcorn, by Nichebuilt Development Pty Ltd (‘the builder’), which the applicants say are items of defective building work.

Powers and Jurisdiction of this Tribunal

  1. [2]
    The ability for the applicants to seek review of the decisions by the Tribunal is a matter that is available by reason of s 86(1)(e) and s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).  Section 86(1)(e) provides that a decision of the QBCC to give (or not give) a direction to rectify is a ‘reviewable decision’.  Next, section 87 provides that the applicants may apply to the Tribunal for a review of a reviewable decision. 
  2. [3]
    Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) specifies that the purpose of a review of a reviewable decision is to produce the ‘correct and preferable’ decision.  When exercising powers under s 20, the Tribunal is required to ‘stand in the shoes’ of the original decisionmaker, and must hear and decide the reviewable decision, by way of a fresh hearing, on the merits.
  3. [4]
    Section 24 of the QCAT Act provides that, in a proceeding in relation to a reviewable decision, the Tribunal may:
    1. (a)
      confirm or amend the decision;
    2. (b)
      set aside the decision, and substitute its own decision; or
    3. (c)
      set aside the decision and return the matter for reconsideration by the decision-maker for the decision, with any direction that the Tribunal considers appropriate. 

QBCC Power to direct rectification of building work

  1. [5]
    The QBCC’s power to require the rectification of defective building work is set out in Part 6 of the QBCC Act.  Relevantly, s 72 of the QBCC Act provides:

72 Power to require rectification of building work

  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)
    or consequential damage – remedy the damage.
  1. (3)
    In deciding whether to give the direction, the commission may take into consideration all of 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. (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.
  1. [6]
    Schedule 2 of the QBCC Act defines the following terms:

“building work” means –

  1. (a)
    The erection or construction of a building; or
  2. (b)
    The renovation, alteration, extension, improvement or repair of a building; or
  3. (c)
    The provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
  4. (d)
    Any site work (including the construction of retaining structures related to work of a kind referred to above…

…

“defective”, in relation to building work, includes faulty or unsatisfactory.

Policy Guidance

  1. [7]
    The QBCC has, pursuant to powers conferred on it by regulation, established the QBCC Rectification of Building Work Policy (‘the rectification policy’).  Whilst the rectification policy acts as a guideline, and is not strictly binding on the Tribunal, prior decisions[1] of the Tribunal have held that the policy is nonetheless a matter that should be taken into account by the Tribunal.
  2. [8]
    The version of the rectification policy in force at the time when the contract with the builder was signed was that which came into effect on 1 July 2010.  So far as is relevant, the 1 July 2010 version of the rectification policy provided:

Rectification of defective building work

  1. (1)
    It is a guideline policy of the Queensland Building Services Board that a contractor who carries out category 1 or category 2 defective building work should be required to rectify that work, unless in the circumstances rectification would be unreasonable.
  1. [9]
    The rectification policy contains the following definitions:

Category 1 defective building work means defective building work (other than residential construction work causing subsidence) that is faulty or unsatisfactory because it does one or more of the following:

  1. (a)
    adversely affects the structural performance of a building;
  2. (b)
    adversely affects the health or safety of persons residing in or occupying a building;
  3. (c)
    adversely affects the functional use of a building;
  4. (d)
    allows water penetration into a building.

Category 2 defective building work means defective building work (other than category 1 defective building work or residential construction work causing subsidence) that is faulty or unsatisfactory because:

  1. (a)
    it does not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; or
  2. (b)
    it has caused a settling in period defect in a new building.

Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that:

  1. (a)
    does not comply with the Building Act 1975, Building Code of Australia, or an applicable Australian Standard;
  2. (b)
    involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer’s instructions.

Factual Background

  1. [10]
    On 2 April 2014, Mr Teng Lim and the builder entered into a contract for the construction of a dwelling at an address at Runcorn.  This is “building work” as defined for the purposes of the QBCC Act.  Practical completion was achieved by the builder on or about 27 April 2015.
  2. [11]
    Subsequently, the QBCC received four complaint forms from Mr Caleb Foo (the other applicant) in relation to allegedly defective building work:
    1. (a)
      17 July 2015;
    2. (b)
      14 October 2015;
    3. (c)
      4 April 2016; and
    4. (d)
      5 July 2016.
  3. [12]
    Relevant to these proceedings are the complaints received by the QBCC on 4 April 2016 (‘the poly pipe complaint’), and on 5 July 2016 (‘the drainage complaint’).

The poly pipe complaint

  1. [13]
    On 4 April 2016, the applicants complained to the QBCC about an underground 25mm poly pipe, which discharged water into the rear left hand corner of the property whenever it rains.  That area of the yard had become boggy.  The applicants initially suspected the poly pipe had a broken underground connection, yet a plumbing report subsequently obtained by them indicated that the poly pipe was connected to an underground stormwater line as a type of ‘first flush’ mechanism, but may not have been installed in an appropriate manner.
  2. [14]
    After receiving the poly pipe complaint, the QBCC engaged a firm of plumbers, Leakless Plumbing Pty Ltd, to conduct an independent inspection.  Leakless Plumbing went to the site on 30 May 2016 and then prepared a report for the QBCC, now dated 5 July 2016.
  3. [15]
    On 6 July 2016 the QBCC completed its Poly Pipe Investigation Report, in light of the advice obtained by the QBCC from Leakless Plumbing.  That report identified certain items of defective building works referable to the manner of installation of the poly pipe.  Yet, this defective building work was then determined by the QBCC to constitute ‘Category 2’ defective building work.  Having regard to that, and because the applicants did not bring the poly pipe complaint to the attention of the QBCC until more than six months after the date of practical completion, the QBCC determined that it would not issue a direction to rectify, as to do so would not be reasonable in all the circumstances.
  4. [16]
    On 9 August 2016, the applicants requested an internal review by the QBCC of the poly pipe decision.
  5. [17]
    On 28 October 2016 the QBCC internal review decision was made, again determining that the QBCC would not issue the builder with a direction to rectify, again because it would not be fair or reasonable in the circumstances to issue the builder with a direction to rectify.

The drainage complaint

  1. [18]
    On 5 July 2016, the QBCC received another complaint from the applicants, this time regarding allegedly defective building work relating to:
    1. (a)
      The fall of the concrete driveway, which was alleged to direct water runoff towards the dwelling on the property rather than away from it;
    2. (b)
      the drainage grates in the driveway; and
    3. (c)
      an exterior drainage pit, outside the laundry.
  2. [19]
    On 19 September 2016, a QBCC building inspector conducted an inspection of the matters comprising the drainage complaint.  A report of that inspection was completed by the QBCC on 20 September 2016.  On 26 September 2016, the QBCC determined that there was insufficient evidence of any obvious defective building work associated with any of the drainage complaint items for the QBCC to be in a position to issue any directions to rectify (‘the drainage complaint decision’).

Poly pipe complaint before the Tribunal

  1. [20]
    As indicated above, as at 28 October 2016, the QBCC had refused to issue a direction to rectify having regard to the fact that under s 72(5) of the QBCC Act it was assessed to be unfair to the builder to issue a direction in all the circumstances, by reason that the poly pipe complaint had been made to the QBCC more than six months after the applicants had become aware of that defective building work.
  2. [21]
    When exercising its review jurisdiction, the Tribunal is required to conduct a fresh hearing on the merits.  Importantly, the fresh hearing is one that is to be based on the facts and the law as they exist as at the time of the Tribunal review hearing, and not as these things were at the time of the original decision.[2] 
  3. [22]
    On or about 10 November 2017 - being a date after the making of the poly pipe complaint decision by the QBCC, yet prior to the hearing of these review proceedings before the Tribunal - the QBCC Act was amended.  These amendments inserted a new provision, s 71J, into the QBCC Act which, so far as relevant to these proceedings, provides:

71J Requests for rectification of building work or remediation of consequential damage

  1. (1)
    A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete;

…

  1. (4)
    Also, a request under subsection (1) or (2) must be made within 12 months after the person becomes aware of –
  1. (a)
    for a request under subsection (1) – the building work the person considers is defective or incomplete.

[emphasis inserted]

  1. [23]
    The defective building works comprising the substance of the poly pipe complaint attained practical completion by the builder on or about 27 April 2015, and the applicants became aware of the defective works at (or at least very shortly after) this time.  The poly pipe complaint was made to the QBCC on 4 April 2016, which is within 12 months of the date of practical completion. 
  2. [24]
    In light of the insertion of the new provision, s 71J(4) (above), into the QBCC Act, the QBCC now concedes that there is no longer any basis by which it can maintain that to issue a direction to rectify would be unfair.  Here, the QBCC submits that, although the poly pipe complaint decision had been correct at the time when originally made, the original decision is no longer consistent with the QBCC Act; such that it should be set aside by the Tribunal, and substituted by a fresh decision to issue a direction to rectify.  The Tribunal accepts the correctness of this submission.
  3. [25]
    The builder’s licence was suspended by the QBCC on 19 September 2016, and the builder was later de-registered, on 22 October 2017.[3]  In these circumstances a direction to rectify cannot issue to the builder.  Yet, for the purposes of issuing a direction under s 72 of the QBCC Act, s 71I(1)(m) provides that a person who carries out building work is taken to include:

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.

  1. [26]
    A Mr Cheng Teck Alvin Sim was the sole director and the licensed nominee of Nichebuilt Development Pty Ltd.  Because of s 71I(1)(m), it is therefore appropriate that a direction to rectify the defective building works comprising the substance of the poly pipe complaint now issue to Mr Cheng Teck Alvin Sim, in lieu of the now deregistered builder.

The drainage complaint before the Tribunal

  1. [27]
    As indicated in the earlier parts of these reasons, on 26 September 2016 the QBCC also determined not to issue a direction to rectify to the builder in respect of the matters comprising the drainage complaint, on the basis of there being insufficient evidence of any defective building work.
  2. [28]
    When proceedings commenced before the Tribunal on the morning of 12 April 2018, the QBCC position remained that, in order to enliven the power[4] to issue a direction to rectify, there is an initial evidential onus requiring that the applicants demonstrate the existence of defective building work; and, as at the commencement of the hearing, there was still no evidence to show that.
  3. [29]
    However, midway into the afternoon of the hearing before the Tribunal on 12 April 2018, Mr Foo produced new video footage, showing the subject driveway and stormwater grate during a heavy rain event.  The video footage showed the ‘battle axe’ driveway - which also slopes down towards the house - directing very substantial volumes of rainwater runoff towards the house, rather than away from it; as well as the fact of the stormwater grate (situated just outside the threshold to the garage in the house) comprehensively failing to deal with the volume of water directed towards it in consequence of the slope of the driveway. 
  4. [30]
    When this video evidence was played, the QBCC sought a brief adjournment, in order to consider its position.  Shortly after the adjournment, Mr Simon Whitecross, a building inspector in the employ of the QBCC, gave further oral evidence before the Tribunal, to the effect that, in light of the video evidence, he was now of the opinion that the driveway had been incorrectly designed and constructed, in a manner that directs water towards (rather than away), from the dwelling; and that the stormwater grate had been constructed in a manner that was clearly underspecified, given the site specific requirements for a stormwater grate constructed at this particular location.  In simple terms, the video footage was ‘new and compelling evidence’, hitherto unseen by the QBCC, that has changed the complexion of things altogether.  In light of it, the applicants have now discharged the evidential onus to show the fact of there being defective building work, and the QBCC has very sensibly conceded that.
  5. [31]
    In light of that evidence, the further hearing of matter GAR148-17 was adjourned, pending the delivery of written submissions on the evidence heard (and seen) on 12 April 2018. 
  6. [32]
    The QBCC filed its written submissions on 10 May 2018.  The applicants then filed submissions in reply on 31 May 2018.  Further submissions were filed by the QBCC in the Tribunal, on 11 June 2018, by reason that the QBCC felt compelled to do that, in light of some further things said in the applicants’ submission.  A further unprompted submission was then made by the applicants, on 21 June 2018.  Through no fault of the parties, these submissions did not find their way to me until 2 November 2020.  I have now had regard to all of the submissions, including those not specifically contemplated in the directions given by the Tribunal on 12 April 2018. 

QBCC Contentions

  1. [33]
    The QBCC concedes[5] that the video footage shown by the applicants on 12 April 2018, together with the opinions expressed thereon at the time by the QBCC building inspector Mr Simon Whitecross lay the basis for the Tribunal determining that items (a) and (b) in the drainage complaint reveal aspects of defective building work.  However, the QBCC also submits that there is no evidence of Category 1 defects (for example water ingress into the dwelling, or foundation subsidence effects), such that each of items (a) and (b) in the drainage complaint should now be determined to be Category 2 defects. 
  2. [34]
    The QBCC submits that its drainage decision – at least insofar as it relates to (a) the concrete driveway, and (b) the stormwater grate - should now be set aside, and substituted by a fresh decision of the Tribunal to issue a direction to rectify both aspects, again directed to the nominee, Mr Cheng Teck Alvin Sim, because of the intervening fact of the deregistration of the builder.
  3. [35]
    The QBCC further contends that the new evidence produced by the applicants on 12 May 2018 does not reveal any defects in relation to item (c) in the drainage complaint: the drainage pit external to the laundry door.  Equally, the QBCC submits that Mr Whitecross’ expert evidence before the Tribunal was to the effect that this work:
    1. (a)
      is not defective building work within either the meaning in the QBCC Act, or the rectification policy;
    2. (b)
      is not faulty or unsatisfactory;
    3. (c)
      meets a reasonable standard of construction or finish expected of a competent holder of a contractor’s licence of the relevant class; and
    4. (d)
      does not contravene the Building Act 1975 (Qld), the Building Code of Australia, or any applicable Australian Standard.
  4. [36]
    In light of the foregoing, the QBCC submits that the Tribunal should find that the builder has not carried out any defective building work, such that there is not the power for the Tribunal to issue any direction to rectify.  In the alternative, and in the event that the Tribunal is satisfied that the drainage pit amounts to defective building work, the QBCC submits that the Tribunal should find that it is not appropriate in the circumstances for the Tribunal to issue a direction to rectify, given the minor nature of any defect that may now be found by the Tribunal.

Applicant’s Contentions:

  1. [37]
    Item (c) of the drainage complaint relates to a drainage pit formed into the concrete surface outside the laundry door of the house at Runcorn.  The applicants complain that the formwork used by the builder during its construction was not level, such that when the concrete was poured it set in such a manner that the grill cover to the pit now sits at an angle, resulting in an approximately 25mm trip hazard, on the side of the pit closest to the laundry door.  The applicants further complain that the bottom of the stormwater pit is approximately 50 mm below the height of the outlet pipe: meaning that the stormwater pit does not ever fully drain, such that trapped water below the height of the outlet enables mosquitos to breed in it.
  2. [38]
    In their submissions filed on 31 May 2018, the applicants submit that item (c) of the drainage complaint should be assessed by the Tribunal as constituting defective building work. 
  3. [39]
    The only specific evidence before the Tribunal in relation to item (c) is that from the building inspector Mr Whitecross, as summarised, above.  There is no evidence - beyond an assertion by the applicants - that item (c) amounts to defective building work.  Despite that, the applicants submit that evidence is not required to make out the defect, as it is obvious, to any reasonable person, and because the trip hazard is now clearly discernible before the Tribunal via the available photographs.  The applicants also submit that the fact that water remains in the pit even after draining serves as ‘proof enough’ that the drain does not operate satisfactorily.

Assessment

  1. [40]
    The Tribunal has considered the photographs of the drainage pit, in light of the submissions of the parties, and the evidence given by Mr Whitecross. 
  2. [41]
    Ultimately, the Tribunal is not satisfied that there is sufficient evidence to show that the drainage pit represents a trip hazard of any significance.  The photograph seen by the Tribunal is insufficient, in and of itself, for the Tribunal to be able to draw that conclusion.  Furthermore, the Tribunal accepts - and prefers - the evidence of Mr Simon Whitecross, who has opined that the drainage pit in all its aspects does not amount to defective building work. 
  3. [42]
    The correct and preferable decision in all the circumstances is therefore to decline to issue a direction to rectify in relation to item (c) of the drainage complaint. 

Orders

  1. Each of the decisions now under review, save and except the decision of the QBCC in relation to item (c) of the drainage complaint, are now set aside, and are substituted by a decision of the Tribunal that the complaint items amount to defective building work.  Each matter is also now remitted to the QBCC subject to a direction that a direction to rectify be issued by the QBCC to Cheng Teck Alvin Sim, requiring rectification of the following defective building work, in a manner to be approved by the QBCC:
    1. (a)
      The poly pipe;
    2. (b)
      The fall of the driveway; and
    3. (c)
      The drainage grates in the driveway.

Footnotes

[1]Consider: Chew v QBSA [2010] QCAT 501 at [28]; Imperial Homes (Queensland) Pty Ltd v QBCC [2014] QCAT 42 at [15] and [47] – [49].

[2]Jensen v QBCC [2017] QCAT 232 at [26].

[3]Statement of evidence of Mr Simon Whitecross, filed 28 March 2018, at [31].

[4]Braund v QBSA [2007] QCCTB 100 at [20].

[5]QBCC Submissions, filed 10 May 2018, at [62].

Close

Editorial Notes

  • Published Case Name:

    Lim & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Lim v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 499

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    11 Dec 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chew v Queensland Building Services Authority [2010] QCAT 501
2 citations
Jump To
Cite 1 - [2010] QCAT 501
Cite 2 - [2010] QCAT 501
Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42
2 citations
Jump To
Cite 1 - [2014] QCAT 42
Cite 2 - [2014] QCAT 42
J&D v Queensland Building Services Authority [2007] QCCTB 100
2 citations
Jump To
Cite 1 - [2007] QCCTB 100
Cite 2 - [2007] QCCTB 100
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
2 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232

Cases Citing

Case NameFull CitationFrequency
Maldes v Queensland Building and Construction Commission [2022] QCAT 3592 citations
1

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