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Christiansen v Queensland Building and Construction Commission

[2020] QCAT 57

Christiansen v Queensland Building and Construction Commission[2020] QCAT 57

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Christiansen & Anor v Queensland Building and Construction Commission [2020] QCAT 57

PARTIES:

julia tanYa christiansen

peta beale

 

(applicants)

 

v

 

Queensland Building and Construction Commission

 

(respondent)

APPLICATION NO/S:

GAR239-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 February 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. The reviewable decision communicated in Decision Notice 00000000360488 is confirmed.
  2. The reviewable decision communicated in Decision Notice 00000000358942 is amended to the extent of additionally requiring Queensland Building and Construction Commission to give a direction to rectify to Sensus Building Group Pty Ltd in respect of complaint item 58 (black broom cupboard door in laundry).

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where complaint lodged more than 12 months after consumer became aware of certain defects – whether direction to rectify should be issued

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

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Jozinovic v Queensland Building and Construction Commission [2015] QCAT 116

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

N Thirumoorthi, Senior Lawyer, Queensland Building and Construction Commission

APPEARANCES:

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

REASONS FOR DECISION

Introduction

  1. [1]
    This case arises from the building of a home for Ms Christiansen and Ms Beale.
  2. [2]
    Ms Christiansen and Ms Beale say that there were a number of defects in the completed house. They asked Queensland Building and Construction Commission (‘QBCC’) to give directions to rectify to Sensus Building Group Pty Ltd (‘Sensus’). Sensus was the builder which completed the construction. Much of the construction had been done earlier by other builders.
  3. [3]
    Ms Christiansen and Ms Beale have applied to the Tribunal to review two QBCC internal review decisions. In those decisions, QBCC decided to give directions to rectify to Sensus in respect of two ‘complaint items’ but not in respect of many others.
  4. [4]
    QBCC in its submissions gives a number of reasons why additional directions to rectify should not be given. These vary somewhat between different complaint items. The reasons are, variously, that the complaint was not brought within 12 months of Ms Christiansen and Ms Beale becoming aware of a defect, that a defect has already been rectified, or that there is insufficient evidence to show that Sensus caused a defect in circumstances where the defect could have been caused by one of the earlier builders or in the period after the earlier builders left and before Sensus started work. 
  5. [5]
    Ms Christiansen and Ms Beale contest these reasons. They argue that their complaint was within time; that there has been some confusion in the communications about whether particular items have been rectified; and that a combination of evidence and circumstances points convincingly to the defects in question being caused by Sensus rather than by the earlier builders or by themselves.
  6. [6]
    With the consent of the parties, the review has been decided on the papers.

History

  1. [7]
    The matters set out in this section are taken from the Joint Statement of Agreed Facts, Facts in Issue and Issues for the Tribunal’s Determination dated 25 June 2019 (‘Joint Statement’), unless otherwise indicated.
  2. [8]
    The original construction contract was signed in March 2013 between Ms Christiansen and Ms Beale and Leda Homes Pty Ltd. In November 2013, the obligations of Leda Homes Pty Ltd were assigned to Queensland Custom Homes Pty Ltd. On 5 March 2015 Ms Christiansen and Ms Beale terminated that contract. They lodged a complaint form with QBCC for incomplete works. This was treated as a claim under the Queensland Home Warranty Scheme, which is the statutory insurance scheme administered by QBCC under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  3. [9]
    On 4 November 2015 QBCC approved the insurance claim in the sum of $111,636.52, and appointed Sensus to complete the building work as set out in a scope of works dated 15 September 2015 prepared by Sergon Building Consultants (‘Sergon’).
  4. [10]
    On 7 December 2015 Ms Christiansen and Ms Beale entered into a contract with Sensus for the work. Sensus commenced work on or about 19 January 2016.
  5. [11]
    Ms Christiansen and Ms Beale engaged Jeffrey Hills & Associates (‘JHA’) to conduct a pre-handover site inspection of the building work done by Sensus. JHA carried out its inspection on 24 March 2016.
  6. [12]
    Also on 24 March 2016 Ms Christiansen and Ms Beale inspected the property and prepared a document headed ‘Inspection 24/03/2016’ containing a table with 65 ‘outstanding and incomplete’ items (‘24 March 2016 Table’). This document said it was to be read in conjunction with ‘the JHA Building Inspector’s report’ (‘JHA Report’). The JHA Report is dated 26 March 2016. It is 13 pages in length (not including photographs). It is headed ‘defects inspection’, and it lists numerous items said to be defects.
  7. [13]
    On 1 April 2016, the 24 March 2016 Table was emailed from Sergon to Sensus, with a QBCC officer copied in.
  8. [14]
    On 8 April 2016, Sensus issued a practical completion notice advising that it was intending to reach practical completion on 15 April 2016.
  9. [15]
    On 15 April 2016 Sensus, Sergon, Ms Christiansen, Ms Beale and QBCC attended a handover inspection at the property and produced a draft Defects and Omissions List but handover did not take place that day.
  10. [16]
    On 18 April 2016 Sensus issued a certificate of practical completion stating that practical completion was reached on 15 April 2016. Ms Christiansen and Ms Beale signed the certificate on 18 April 2016.
  11. [17]
    On 27 April 2016 Sensus, Sergon and QBCC attended a handover inspection at the property and produced a Defects and Omissions List.
  12. [18]
    On 28 April 2016 Ms Christiansen and Ms Beale emailed the Defects and Omissions List to various staff at Sensus, Sergon and QBCC saying:[1]

As agreed here is the updated defects and omissions list.

As advised onsite the process from here is that Sensus are to complete all items within 14 days after handover. Any items incomplete after 14 days are to be put into a complaint form and submitted to QBCC for a Building Inspector to investigate and issue direction for incomplete works.

  1. [19]
    It appears to be common ground, having regard to a large number of documents, that Sensus carried out some rectification works after 28 April 2016.
  2. [20]
    Ms Christiansen and Ms Beale moved into the house on or about 9 May 2016.[2]
  3. [21]
    On or about 27 April 2017 Ms Christiansen and Ms Beale lodged a complaint form with QBCC stating that Sensus had carried out defective building work. More than 200 complaint items were listed.
  4. [22]
    This led on to an investigation by QBCC and a series of decisions and internal reviews, which it is not necessary to set out in full detail here. The two internal review decisions under review by the Tribunal were made by QBCC on 21 June 2018. One, which was communicated in Decision Notice 00000000360488, was in response to an internal review application by Sensus. The other, which was communicated in Decision Notice 00000000358942, was in response to an internal review application by Ms Christiansen. The effect of the internal review decisions was to give a direction to rectify to Sensus in respect of two complaint items – item 24 relating to sun hoods over the garage and item 42 relating to the location of an access hole for the roof – but not in respect of numerous other items.
  5. [23]
    According to the Joint Statement, there are a number of complaint items to be addressed in the Tribunal’s review. I will describe these below. Except where otherwise indicated, I have adopted the complaint item numbers as used in the two reports of QBCC inspector Geoffrey Barrett dated 31 May 2018. These appear to correspond with those adopted in the Joint Statement. I mention this because the complaint item numbers within the complaint itself appear to be wrongly lined up in places. So, for example, the number 48 in the complaint appears alongside a complaint about a chipped tile, whereas complaint item 48 as identified in the relevant report by Mr Barrett is identified as:[3]

Kitchen – 2pac – surface scratches (eg: see study nook door etc.) & a lump of 2 pac was hanging from door and while showing Sergon onsite it fell off the bottom of door (butlers overhead door), also paint off on side of oven near sink.

  1. [24]
    First, complaint item 23. This item related mainly to scratches in the paintwork of the garage doors. The doors are panel-lift in type, and it appears that the scratching was attributed in the complaint to scraping of the doors against other elements. The internal reviewer declined to issue a direction to rectify to Sensus on the basis that the defect was the responsibility of the earlier builder/s.
  2. [25]
    Second, complaint item 24. This relates to the sun hoods over the garage. Ms Christiansen and Ms Beale sought replacement of these because of bubbling, bulging in joins, cracking and so on. This is one of the two items in respect of which the internal reviewer (in one of her decisions dated 21 June 2018) gave a direction to rectify.
  3. [26]
    Third, complaint item 48. I have quoted this in full above. It relates to paint scratches in the kitchen etc.
  4. [27]
    Fourth, complaint item 51. This relates to a ‘big dull mark’ on a kitchen drawer, said to have resulted from starching, rubbing and over-patching.[4]
  5. [28]
    Fifth, complaint item 58:[5]

Laundry – Replace black laundry door as per specs. Inside black laundry door that was replaced, scratches all through the laminate throughout the door which will require replacing again & the door won't open as it used to using the push mechanism – showed DC Sensus 12/05/16, also the door has been replaced with the wrong size door so not sitting flush, it is 15mm, the previous door was 18mm (also refer specs supplied to sensus).

  1. [29]
    Mr Barrett identified this door as a broom cupboard door.[6]
  2. [30]
    The internal reviewer declined to issue a direction to rectify to Sensus for complaint items 48, 51 and 58 on the basis that the defects were the responsibility of the earlier builder/s.
  3. [31]
    Sixth, complaint items 75 and 76. These are collectively described in one of Mr Barrett’s reports as scratched and chipped tiles ‘throughout’, along with comments including that ‘it appears a lot has been from ladders’.[7] However, the Joint Statement proceeds on the basis that complaint items 75 and 76 relate not only to the tiles, but also to grouting, which was the item following the tiles item in the list in the complaint. It referred to chipped and discoloured grout in various tiled areas such as the wetroom, entry/hallway, outside bedroom 2, lounge, in front of kitchen bench and ensuite. I will treat items 75 and 76 as relating to tiles and grout respectively. The internal reviewer dealt with the tiles (at least) under the incorrect heading ‘Complaint Item 24 (Direction item 6)’,[8] and declined to issue a direction to rectify because she was not satisfied that the defects could be attributed to Sensus.
  4. [32]
    Seventh, complaint item 119: ‘External – garage; Gap – molding on soffit to fascia or wall not long enough or not filled and painted’.[9]
  5. [33]
    Eighth, complaint item 140. This related to various visual defects in the ceiling of the garage, such as blobs of paint, a dint, lumps and popped nails.[10]
  6. [34]
    The internal reviewer considered the work in complaint items 119 and 140 defective but declined to issue a direction to rectify to Sensus, saying ‘I am unable to identify defective work by the licensee’.[11] Presumably, she considered the earlier builder/s responsible. 
  7. [35]
    Ninth, complaint items 157, 160 and 163. These are three of a large number of complaint items listed in a direction to rectify to Sensus dated 8 February 2018 which are described collectively as unsatisfactory surface finish to internal and external painting. In the Joint Statement, the areas are identified as hallway plasterboard, wall leading into lounge, and bulkhead at end of hallway.

Statutory and policy framework

  1. [36]
    If QBCC is of the opinion that building work is defective, it may direct the person who carried out the building work to rectify it.[12] QBCC is not required to give a direction to rectify if satisfied that it would be unfair to give the direction.[13]
  2. [37]
    A direction to rectify cannot (subject to an exception) be given more than six years and three months after the work was completed.[14]
  3. [38]
    It is undisputed, and I accept, that the work in question in this case is ‘building work’ as defined in the QBCC Act. ‘Defective’ is defined as including ‘faulty or unsatisfactory’.[15]
  4. [39]
    In exercising its powers, QBCC should have regard to the objects of the QBCC Act. Relevantly, these include:
    1. (a)
      ensuring the maintenance of proper standards in the building industry;[16]
    2. (b)
      achieving a reasonable balance between the interests of building contractors and consumers;[17] and
    3. (c)
      providing remedies for defective building work.[18]
  5. [40]
    QBCC also has regard to the Rectification of Building Work Policy issued by the QBCC Board (effective 10 October 2014) (‘Rectification Policy’). The following passages in the Rectification Policy are of particular significance in the present case:

It is a policy of the Queensland Building and Construction Commission Board that a building contractor who carries out defective building work should be required to rectify that work.

It is a policy of the Board that if a consumer is seeking the assistance of … QBCC … to issue a direction to a building contractor to rectify defective building work, the consumer must lodge a formal complaint with the QBCC of defective building work as soon as possible but no later than within 12 months of becoming aware of the defects.

The QBCC will then consider the issuing of direction to rectify to a building contractor:

  1. for structural defective building work, within 6 y and 3 months of the building work being completed; or
  2. for non-structural defective building work, within 12 months of the building work being completed.
  1. [41]
    The current section 71J(4) of the QBCC Act, which imposes a legislative deadline for a complaint to be made – 12 months after the consumer became aware of the defect – had not been inserted into the Act at the time relevant in this case.
  2. [42]
    QBCC contends that the Rectification Policy has the status of subordinate legislation,[19] while also submitting that the policy is a guideline that does not strictly bind the Tribunal.[20] The two propositions are probably not mutually inconsistent, because by its nature a policy is a guideline rather than a strict rule. QBCC submits that the Rectification Policy should be considered by the Tribunal when making a decision, and it points to cases where that has been done.[21]
  3. [43]
    Doubtless, in my view, regard should be had to the Rectification Policy. The important role of policy in fostering consistency in administrative decision-making has long been recognised,[22] provided of course that the policy ‘guides but does not control the making of decisions’;[23] is consistent with the relevant Act;[24] and does not distort decision-making such as by precluding consideration of relevant matters or requiring consideration of irrelevant circumstances.[25]
  4. [44]
    The requirement for timely complaints contained in the Rectification Policy has obvious merit. Timeliness in pursuing such matters is important so that action can be taken while memories are fresh and records still available. The setting of a deadline also allows QBCC and the builder to move ahead once the 12 month period has elapsed, without the constant concern that a late complaint may be pursued.
  5. [45]
    Similarly, the requirement in the Rectification Policy for a ‘formal complaint’ has obvious merit, particularly in the current era when many homeowners copy various people from various organisations into emails. Without the requirement for a formal complaint, it would be extremely difficult for QBCC to distinguish a complaint from, for example, a piece of advice, pre-complaint information, or simply an insistence on keeping QBCC ‘in the loop’.
  6. [46]
    In a review proceeding, the Tribunal’s role is to conduct a fresh hearing on the merits, in order to produce the correct and preferable decision.[26] The review must be decided in accordance with the QCAT Act and the relevant enabling Act,[27] which in this case is the QBCC Act. The Tribunal has the same functions as QBCC for the decision being reviewed.[28]
  7. [47]
    Accordingly, it will be relevant to consider whether the formal complaint was made within 12 months of Ms Christiansen and Ms Beale becoming aware of the defects. If it was made later than that, I should have regard to the policy position of the Rectification Policy which, in effect, is not to issue a direction to rectify in such a situation. However, it is still open to the Tribunal to not apply the policy and to decide to issue a direction to rectify. 
  8. [48]
    In their submissions, Ms Christiansen and Ms Beale ask for some orders which the Tribunal is not empowered to make. For example, they ask for financial compensation in relation to certain complaint items, and an order that QBCC is to be financially liable should a warranty be voided.[29] The Tribunal’s powers are the same as QBCC’s under section 72 of the QBCC Act: to issue or to not issue directions to rectify. Ms Christiansen and Ms Beale also ask the Tribunal to rescind the internal review decision made in response to the internal review application by Sensus, and the resulting direction to rectify, because of what they describe as an undue process undertaken by QBCC.[30] However, the Tribunal’s role is to review the matter on the merits, and to make the correct and preferable decision on the merits, rather than to engage in a critique of QBCC’s processes.
  9. [49]
    Ms Christiansen and Ms Beale submit that statements by Ashley Byrne (senior project manager with Sensus), which have been filed by QBCC, are ‘hearsay and hence inadmissible’,[31] noting that Mr Byrne did not join Sensus until August 2016. However, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[32] Whether weight should be attached to hearsay evidence is, of course, another matter. Ms Christiansen and Ms Beale also contend that appendices to Mr Byrne’s statements should not form part of the evidence because the appendices were not supplied to them. However, it seems that Ms Christiansen and Ms Beale must have seen the appendix to the second statement before making their final submissions (filed on 19 September 2019) because they quote from one of them.[33] It may be that they did not receive the appendices to the first statement, even though QBCC maintains that it sent them. As it happens, the appendices do not advance the matter, in my view. 
  10. [50]
    In their final submissions, Ms Christiansen and Ms Beale urge the Tribunal to disregard QBCC’s submissions on the basis that they were filed a day late. In my view, that would be a disproportionate response. In any event, I must reach my own conclusions on what is the correct and preferable decision. The absence of submissions from QBCC would not necessarily mean that the position of Ms Christiansen and Ms Beale must prevail.
  11. [51]
    I will now discuss the merits of making directions to rectify in respect of the relevant complaint items, in four groups.

Complaint item 24 (sun hoods)

  1. [52]
    This is one of the two complaint items in respect of which the internal reviewer issued a direction to rectify.
  2. [53]
    In the Joint Statement, the parties note that rectification was then carried out. They further state that the position of Ms Christiansen and Ms Beale is that ‘QBCC should take on liability should the warranty be void’[34] for reasons then set out in the Joint Statement. The warranty in question is a manufacturer’s warranty.
  3. [54]
    The Tribunal’s powers are limited to reviewing any reviewable decisions, relevantly a decision to give a direction to rectify.[35] The Tribunal does not have any power to order that QBCC assume civil liability for loss, which is in effect what Ms Christiansen and Ms Beale are seeking in respect of complaint item 24.

Complaint item 58 (black broom cupboard door in laundry)

  1. [55]
    In one of his reports of 31 May 2018, Mr Barrett described chips in the surface, and some problems with the opening mechanism, apparently related to a missing striker plate and possibly also the use of material that is too thin. Mr Barrett regarded the door as defective, but said that the decision-maker ‘may wish to consider dates of events related to this matter’.[36]
  2. [56]
    The internal reviewer declined to issue a direction to rectify on the basis that the door was the responsibility of the original builder. The rationale for this conclusion is not explained.
  3. [57]
    The position of QBCC about complaint item 58 in the Joint Statement is equivocal. Subsequently, QBCC in its submissions says that it now accepts that Sensus is responsible for the defect because Sensus removed and replaced the original door as part of its scope of works.[37] However, QBCC submits that Ms Christiansen and Ms Beale were made aware of this defect at the time of the JHA Report, in March 2016, and it may not be fair to direct Sensus to rectify because the complaint was not made until April 2017. This was more than 12 months after Ms Christiansen and Ms Beale became aware of the defect.
  4. [58]
    Ms Christiansen and Ms Beale contest QBCC’s view that the door in question, which they describe as a tall black door, was listed in the JHA Report.[38] JHA’s list of defects in the laundry includes defects in the ‘laundry cavity sliding door’, ‘linen cupboard’, and ‘white cabinetry’.[39] I accept that none of these appears to describe a tall black broom cupboard door, with the possible exception of ‘linen cupboard’, but I see no reason to doubt Ms Christiansen and Ms Beale’s submission on the topic. Ms Christiansen and Ms Beale also say that the door in question is not in the 24 March 2016 Table, pointing out that in that document the reference to dints and scratches on cabinetry in the laundry was followed by the description ‘white cabinets’.[40]
  5. [59]
    Bearing in mind the description in the complaint item, it seems entirely possible that the problems with this door did not become evident until after it had been in use for some time. Ms Christiansen and Ms Beale did not start occupying the house until 9 May 2016. On that basis, I accept the submission of Ms Christiansen and Ms Beale that they did not become aware of the defect at the time of the JHA inspection. It is reasonable to infer, and I do, that Ms Christiansen and Ms Beale became aware of the defect at some point less than 12 months before they lodged the complaint on 27 April 2017.
  6. [60]
    Accordingly, I see no reason why QBCC should not issue a direction to rectify to Sensus in relation to this door.

Complaint item 119 (gap in area of garage)

  1. [61]
    The parties are in dispute about whether responsibility for this defect is properly attributed to Sensus or to Queensland Custom Homes Pty Ltd (working under the original contract) or even, from QBCC’s perspective, whether it is possible to determine responsibility on the available evidence.
  2. [62]
    Ms Christiansen and Ms Beale submit that Sensus is responsible, because the scope of works required it to prepare surfaces for painting. This necessarily involved rectification of gaps and blemishes.
  3. [63]
    I note that after QBCC building inspector Robert Murphy examined this area in July 2017, he noted in his report dated 31 August 2017 a slight gap of approximately 1 mm. He did not consider it a defect, commenting that some movement in a dwelling is predictable and that: ‘Typically, these types of movement gaps / cracks are addressed at the Builders 12 month maintenance period’.[41]
  4. [64]
    Mr Barrett then commented on the matter in one of his reports dated 31 May 2018.[42] He considered it a defect, though he did not explain why his conclusion differed from that of Mr Murphy. (However, he does quote a paragraph which is unintelligible. Perhaps it would reveal the reason). The internal reviewer said she was ‘unable to identify defective work by the licensee’[43] but did not give further explanation.
  5. [65]
    QBCC notes the opinion of Mr Byrne of Sensus that the gap is too small to constitute a defect. However, I am not prepared to place weight on this opinion as it is not an independent expert opinion.
  6. [66]
    QBCC submits there is a defect but it would be unfair to direct Sensus to rectify. QBCC contends that there is insufficient evidence to show who caused the defect.
  7. [67]
    On the available evidence, I am not satisfied that Sensus failed to carry out its task adequately. The gap may well be attributable to normal and unavoidable movement. In ordinary circumstances that probably would not remove a builder’s responsibility to rectify the gap. However, the current situation is unusual in that a number of builders were involved over time. In carrying out the scope of works, Sensus was required to prepare surfaces for painting. There is no reason to conclude that it failed to do so. The gap could have formed because of subsequent movement. Presumably it must have, because there is no suggestion that the gap was amongst the defects identified in March or April 2016. Sensus did not offer any guarantee against gaps forming through movement after work done by the earlier builders, and nor can it be expected to. I accept QBCC’s submission that it would be unfair to issue a direction to rectify to Sensus in respect of this defect.

The other complaint items: 23, 48, 51, 75, 76, 140, 157, 160 & 163

  1. [68]
    For several of these complaint items, QBCC submits that it would or may be unfair to issue directions to rectify to Sensus on the basis that Ms Christiansen and Ms Beale became aware of the defects when they were identified at the time of the JHA inspection in March 2016, yet the formal complaint was made more than 12 months later in April 2017.
  2. [69]
    As discussed earlier, the Rectification Policy requires a formal complaint as soon as possible but no later than within 12 months of the homeowner becoming aware of the defect.
  3. [70]
    It will be recalled that the JHA inspection was on 24 March 2016. The JHA Report, which listed numerous defects, was dated 26 March 2016. Ms Christiansen and Ms Beale also compiled the 24 March 2016 Table listing further defects on the basis of their inspection on 24 March 2016.
  4. [71]
    For example, the JHA Report identified by tape location nine spots in the kitchen where rectification to paint or plasterboard was required (relevant to complaint item 48), and for various particular locations the JHA Report listed ‘clean floor tiles and grout joints’ (relevant to complaint item 76).
  5. [72]
    Complaint items 23 (damage to garage doors) and 140, 157, 160 and 163 (various paintwork and surface defects) are not identified in QBCC’s submissions as ones involving lateness of complaint, but in my view the issue does arise. Item 47 of the 24 March 2016 Table was: ‘garage door panel fronts have been damaged, scraped, scratches and paint removed from them both & there is also paint on the doors’, which is the precursor of complaint item 23. Paintwork and plasterboard defects identified in the JHA Report (for example at 48 tape locations in the hallway) were the precursor to the paintwork and surface defects complaint items.
  6. [73]
    The complaint was lodged some 13 months later, on 27 April 2017.
  7. [74]
    Ms Christiansen and Ms Beale do not expressly dispute that their complaint was lodged more than 13 months after they became aware of defects. They do, however, make a point that although defects were identified in the March 2016 documents, whether the defects would then be fixed by Sensus prior to handover on 27 April 2016 remained to be seen. For example, Sensus was to clean all surfaces prior to handover, and so only at handover could Ms Christiansen and Ms Beale determine if damage to tiles and grouting remained present.
  8. [75]
    The same point could be made about defects listed on the Defects and Omissions List at the time of handover. Whether defects in that list were subsequently rectified remained to be seen. However, the question under the Rectification Policy is when the homeowner became aware of the defect; not whether the homeowner knew whether the defect would be subsequently rectified. Ms Christiansen and Ms Beale and their consultant JHA listed a large number of defects in March 2016. I find that it was then, on 24 to 26 March 2016, that they became aware of the defects that are the subject of these remaining complaint items.
  9. [76]
    Ms Christiansen and Ms Beale advance a number of submissions in opposition to QBCC’s argument that it would be unfair to direct rectification on the basis of the timing of the complaint. They rely on the following matters:[44]
    1. (a)
      ‘QBCC has … accepted the Complaint is within acceptable timeframes’[45] – by which I think they mean that QBCC in accepting the complaint and proceeding to investigate it did not reject it as out-of-time;
    2. (b)
      in its own decisions and internal reviews, QBCC did not rely on the timing of the complaint as a basis for deciding not to issue directions to rectify;
    3. (c)
      they acted as instructed and guided by QBCC staff, and the QBCC website and guidance notes which advises that ‘lodgement of defects’[46] can be made 12 months from the date of handover, when the builder permits the owner to occupy; in their case that permission was given only on the day of handover; and further, the house was not habitable until 4 May 2016 while Sensus was undertaking defect rectification;
    4. (d)
      Sensus agitated a grievance with QBCC about the complaint allegedly being accepted late, but QBCC’s Director of Integrity and Complaints ultimately confirmed, in a letter dated 19 July 2019, that 27 April 2016 was the date from which the 12 month period should run;
    5. (e)
      Sensus had multiple opportunities to apply to the Tribunal to review QBCC decisions to accept the complaint and to issue directions to rectify, but it did not apply; and
    6. (f)
      QBCC asked the Tribunal to join Sensus to the current proceeding at a directions hearing on 26 June 2019, but Member Cranwell declined that request.
  10. [77]
    I note in relation to points (a) and (b), given the number of complaint items and the sheer volume of material, that it may not have been obvious to QBCC, initially at least, that the complaint may have been out-of-time. In any event, the role of the Tribunal is to conduct a fresh hearing on the merits. The issue of lateness has been raised and it is relevant. It cannot be disregarded simply because QBCC did not identify it when it made its initial decision or at the internal review stage.
  11. [78]
    In relation to (c), the submissions do not identify the instructions or literature that contributed to their belief about when a complaint had to be lodged, but I see no reason to doubt that Ms Christiansen and Ms Beale believed their complaint had to be lodged by 27 April 2017.
  12. [79]
    In relation to (d), I do not understand the letter of the Director of Integrity and Complaints to be saying that the 12 month period necessarily should run from 27 April 2016. The Director explained in the letter why QBCC regarded that date as the date of practical completion. In another paragraph, the Director commented that the homeowners appeared to have notified the defects 13 months after becoming aware of them.[47] That comment is accurate, in my view, and pertinent when applying the Rectification Policy.
  13. [80]
    In relation to (e), QBCC’s decision to accept the complaint is not a ‘reviewable decision’,[48] and so Sensus could not have applied to the Tribunal to review it. Sensus could have applied to the Tribunal for a review of the internal review decisions, but it may have decided simply to accept them. The fact that it has not sought review by the Tribunal does not amount to some sort of concession that the complaint was lodged in time or that its lateness is immaterial.
  14. [81]
    In relation to (f), the refusal to join Sensus appears to have been based on the late timing of the application to join, rather than on any assessment that Sensus’s interests are unaffected. The fact that Sensus is not a party to the proceeding would not be a proper basis for disregarding its interests when applying the Rectification Policy.
  15. [82]
    In my view, the correct and preferable decision in relation to these remaining complaint items is to refuse to make directions to rectify because of the lateness of the complaint. Ms Christiansen and Ms Beale were aware of the defects in March 2016. They and their consultant JHA put them in writing at that time. They were aware of the requirement for a formal complaint if they wanted QBCC to consider issuing directions. They had previous experience of lodging a complaint form with QBCC, and they spoke of the prospect of a formal complaint in their email of 28 April 2016. The Rectification Policy requires lodgement of a formal complaint as soon as possible, and by no later than 12 months of becoming aware of the defects. There are cogent reasons for such a policy, as I have discussed. Ms Christiansen and Ms Beale did not lodge the complaint as soon as possible. Nor did they lodge it within 12 months of becoming aware of the defects. They may not have been aware of the policy, and they thought that a complaint could be lodged up to 12 months after handover. That is a matter I have taken into account in their favour. However, I do not consider it outweighs the interests of Sensus in having the policy applied or of the public in having such a policy consistently applied.
  16. [83]
    While the Tribunal is not bound to apply the 12 month rule contained in the Rectification Policy, on balance I consider that it should be applied in this case. Accordingly, no directions to rectify should be given in respect of these remaining complaint items.

Conclusion

  1. [84]
    Neither party has sought to wind back the two directions to rectify (for complaint items 24 and 42) arising from the internal review decisions. QBCC submits that the refusal to give directions in respect of other complaint items remains the correct and preferable decision. For the reasons explained above, and with the exception of complaint item 58, I agree.
  2. [85]
    Accordingly, the appropriate decision is to confirm the reviewable decision communicated in Decision Notice 00000000360488 and to amend the reviewable decision communicated in Decision Notice 00000000358942. The latter included a refusal to give a direction to rectify in respect of complaint item 58, so it should be amended such that a direction to rectify is given for that complaint item.

Footnotes

[1]  Statement of reasons, 333.

[2]  See Appendix L to the applicants’ statement filed 16 January 2019.

[3]  Statement of reasons, 2535.

[4]  Ibid, 2538.

[5]  Ibid, 2544.

[6]  Ibid.

[7]  Ibid, 2730.

[8]  Ibid, 2718.

[9]  Ibid, 2548.

[10]  Ibid, 2549.

[11]  Ibid, 2559.

[12] QBCC Act, s 72(1)-(2).

[13]  Ibid, s 72(5).

[14]  Ibid, s 72A(4); since amended.

[15]  Ibid, Schedule 2, definition of ‘defective’.

[16]  Ibid, s 3(a)(i).

[17]  Ibid, s 3(a)(ii).

[18]  Ibid, s 3(b).

[19]  Statement of reasons [18-22].

[20]  Respondent’s submissions filed 13 September 2019, [39].

[21]  For example Jozinovic v Queensland Building and Construction Commission [2015] QCAT 116, [8].

[22] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 639-641.

[23]  Ibid, 641.

[24]  Ibid, 640.

[25]  Ibid.

[26] QCAT Act, s 20.

[27]  Ibid, s 19(a).

[28]  Ibid, s 19(c).

[29]  Applicants’ submissions filed 23 August 2019, 4.

[30]  Ibid.

[31]  Ibid, 6.

[32] QCAT Act, s 28(3).

[33]  Applicants’ submissions filed 19 September 2019, [10.6.2].

[34]  Joint Statement, 22.

[35] QBCC Act, s 86(1)(e).

[36]  Statement of reasons, 2544.

[37]  Respondent’s submissions filed 13 September 2019, [57].

[38]  Applicants’ submissions filed 19 September 2019, 7.

[39]  Statement of reasons, 1880-1881.

[40]  24 March 2016 Table, 6.

[41]  Statement of reasons, 1246.

[42]  Ibid, 2548.

[43]  Ibid, 2559.

[44]  Applicants’ submissions filed 19 September 2019, [10.6].

[45]  Ibid.

[46]  Ibid, [10.6.1]

[47]  At p 5 of the letter, which is attached to the statement of Ashley Byrne filed on 26 July 2019.

[48] QBCC Act, s 86.

Close

Editorial Notes

  • Published Case Name:

    Christiansen & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Christiansen v Queensland Building and Construction Commission

  • MNC:

    [2020] QCAT 57

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    11 Feb 2020

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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