Agius v Queensland Building and Construction Commission
[2021] QCAT 454
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- Unreported Judgment
- Agius v Queensland Building and Construction Commission[2021] QCAT 454
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Agius v Queensland Building and Construction Commission[2021] QCAT 454
Agius v Queensland Building and Construction Commission[2021] QCAT 454
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Agius v Queensland Building and Construction Commission & Anor [2021] QCAT 454 |
PARTIES: | mark elliot agius (applicant) V queensland building and construction commission gedoun constructions pty ltd (respondents) |
APPLICATION NO/S: | GAR140-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 4 August 2021 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | Complaint 1A and Complaint 2, as defined in these reasons, do no relate to ‘building work’ as defined in Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld). |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where preliminary issue listed for determination – whether certain work was ‘building work’ as defined Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 Queensland Building and Construction Regulation 1998 (Qld), s 5, Schedule 1 Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2015] QCA 290 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondents: | Self-represented |
| This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]This matter has been listed before me to determine as a preliminary issue whether the ‘work was “building work” in whole or in part’.
- [2]I observe in passing that the preliminary issue could have been framed with greater precision. However, it is apparent from the parties’ submission that they have proceeded on the basis that the issue is whether the work set out in Mr Agius’ complaint to the Queensland Building and Construction Commission (‘the QBCC’) is ‘building work’ as defined in Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
- [3]The terms of Mr Agius’ complaint are as follows:
Builder incorrectly designed and built house to wrong Wind Classification, downgrading from C3 to C2, then further attempted to downgrade further to C1 via an erroneous Form 15 in an attempt to avoid attending to defective works. [‘Complaint 1’]
The Energy Efficiency Certificate is VOID due to incorrect windows and glazing being specified by the builder to achieve better SHGC values by selecting Default windows (Normally used for training) rather than the correct Dowell Windows. [‘Complaint 2’]
- [4]The QBCC has divided Complaint 1 into two components:
- the design of the wind classification for the property (‘Complaint 1A’); and
- the construction of the property, based on the wind classification (‘Complaint 1B’).
- [5]For convenience, I will adopt this categorisation.
- [6]It is not in dispute that Complaint 1B was ‘building work’. Therefore, the issues for me to determine are whether the work described in Complaint 1A and Complaint 2 was ‘building work’.
Definition of building work
- [7]The term ‘building work’ is defined in Schedule 2 of the QBCC Act as follows:
building work means—
(a) the erection or construction of a building; or
(b) the renovation, alteration, extension, improvement or repair of a building; or
(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or
(f) the preparation of plans or specifications for the performance of building work; or
(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or
(g) fire protection work; or
(ga) mechanical services work; or
(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
(i) carrying out a completed building inspection; or
(j) the inspection or investigation of a building, and the provision of advice or a report, for the following—
(i) termite management systems for the building;
(ii) termite infestation in the building;
but does not include work of a kind excluded by regulation from the ambit of this definition.
- [8]Section 5 of the Queensland Building and Construction Regulation 1998 (Qld) (‘the QBCC Regulation’) provides as follows:
(1) For schedule 2 of the Act, definition building work, work stated in schedule 1 is not building work.
(2) To remove any doubt, it is declared that subsection (1) does not stop applying to work stated in schedule 1 merely because the work is carried out in combination with other work stated in schedule 1.
- [9]Relevantly, the types of work set out in Schedule 1 of the QBCC Regulation include:
5 Work performed by engineers
Work performed by an engineer in the engineer’s professional practice.
…
42 Assessment of energy efficiency of buildings
Assessment of the energy efficiency of a building.
- [10]The parties have provided lengthy submissions in relation to the interpretation of these provisions. However, in my view, the meaning of these provisions is very clear. ‘Building work’ is any of the types of work included in the definition in Schedule 2 of the QBCC Act, unless it is a type of work excluded in Schedule 1 of the QBCC Regulation.
- [11]Further, s 5(2) of the QBCC Regulation makes it clear that the types of work set out in Schedule 1 of the QBCC Regulation remain excluded from the definition of building work in Schedule 2 of the QBCC Act, even if the excluded work is carried out in combination with other work that is included in the definition.
- [12]To the extent that this issue has been considered at an appellate level, I note that this approach is entirely consistent with the Court of Appeal’s decision in Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2015] QCA 290. Referring to an earlier version of the regulations, namely the Queensland Building and Construction Commission Regulation 2003 (Qld), Applegarth J (with whom Holmes CJ and Boddice J agreed) stated at [9]:
MMM accepts that in determining whether work falls within an excluded item in Sch 1AA of the Regulation one asks whether the work is of a kind stated in the item. It is not necessary that the work be precisely described by the item. MMM also accepts that in determining whether work falls within an excluded item “a broad and practical interpretation of the item” should be applied. Incidentally, such an approach derives support from the approach taken at first instance and on appeal in Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd. [footnotes omitted]
- [13]I will now proceed to apply this approach to Complaint 1A and Complaint 2.
Complaint 1A
- [14]Complaint 1A relates to structural engineering plans prepared by Northern Consulting Engineers on 4 December 2017. Northern Consulting Engineers also provided a Form 15 – Compliance certificate for building design or specification dated 15 December 2017, which specifies a wind classification of C2.
- [15]Accordingly, Complaint 1A relates to work performed by an engineer, which is excluded from the definition of ‘building work’ by item 5 of Schedule 1 of the QBCC Regulation.
- [16]I note that it is the engineer, and not the building designer, who is responsible for determining the wind classification. While the plans prepared by the building designer refer to the wind classification of the property as determined by the engineer, s 5(2) of the QBCC Regulation makes it clear that this does not prevent the application of Schedule 1.
Complaint 2
- [17]Complaint 2 relates to an energy efficiency certificate prepared by The Design House NQ Pty Ltd. I note that the certificate is supported by a related report prepared by The Design House NQ Pty Ltd, which sets out the relevant calculations.
- [18]Accordingly, Complaint 2 relates to an assessment of the energy efficiency of house, which is excluded from the definition of ‘building work’ by item 42 of Schedule 1 of the QBCC Regulation.
- [19]For completeness, applying a ‘broad and practical approach’ to item 42, I note that the description is wide enough to encompass both the energy efficiency report and the consequent certificate.
Disposition
- [20]Complaint 1A and Complaint 2, as defined above, do not relate to ‘building work’ as defined in Schedule 2 of the QBCC Act.