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Young t/as LK & HM Young v Queensland Building and Construction Commission[2021] QCAT 8

Young t/as LK & HM Young v Queensland Building and Construction Commission[2021] QCAT 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Young t/as LK & HM Young v Queensland Building and Construction Commission [2021] QCAT 8

PARTIES:

Lee Kelvin young t/as LK & HM YOUNG

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR051-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 January 2021

HEARING DATE:

19 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:

The decision under review is set aside and is returned to the original decision-maker for further consideration, in light of these reasons.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where direction to rectify issued – circumstance of fresh evidence showing responsibility of another building contractor for performance of defective building work the subject of the direction – consideration of Tribunal’s review jurisdiction generally – meaning of ‘building work’ and ‘defective building work’.

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

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

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 Lee Kelvin Young

Respondent:

Queensland Building & Construction Commission

REASONS FOR DECISION

  1. [1]
    By means of an Application to review a decision filed in the Tribunal on 16 February 2018, the applicant seeks to review a decision (‘the decision’) of the Queensland Building and Construction Commission (‘the QBCC’), made on 24 January 2018, to issue him with a direction to rectify (‘DTR’), in respect of certain defective building works within unit 9, of a 12-unit complex at Maroochydore (‘the subject property’).
  2. [2]
    The 12-unit complex at Maroochydore had been constructed by the applicant.  Practical completion of that project was achieved on 5 December 2012.  In February 2015, the applicant fell into financial difficulty and entered bankruptcy, thereafter ceasing to be a QBCC licence holder in the category of builder.
  3. [3]
    The DTR relates to a leaking shower in the main bathroom of the subject property.  This problem did not reveal itself until 22 November 2017, yet other units in the same complex had experienced similar problems.  It is to be noted that the DTR relates only to unit 9, the subject property.
  4. [4]
    The applicant contends that an unfairness arises in circumstances wherein the DTR has been directed solely unto himself, in specific circumstances where the actual building work that has been the cause of the problem was undertaken by another licence holder, as sub-contractor.  The applicant now seeks a review of the decision before the Tribunal.

Powers and Jurisdiction of this Tribunal

  1. [5]
    The ability for the applicant to seek review of this decision 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’). 
  2. [6]
    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, s 87 provides that the applicant may apply to the Tribunal for a review of a reviewable decision. 
  3. [7]
    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.
  4. [8]
    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. [9]
    The version of the QBCC Act in force as at the date of the QBCC issuing the DTR to the applicant is that which was current as at 10 November 2017.  The QBCC’s power to require the rectification of defective building work is set out in s 72 of the QBCC Act.  Relevantly, s 72 provides:

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

  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. [10]
    So far as is relevant in this matter, 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.

  1. [11]
    Section 72A(4) of the QBCC Act provides:

72A Powers and limitation of directions to rectify or remedy

…

  1. (4)
    A direction to rectify or remedy cannot be given more than six years and 6 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 time for giving a direction and extends time accordingly.
  1. [12]
    Section 71I of the QBCC Act sets out categories of person who are taken to have carried out the defective building work, for the purposes of s 72.  It provides:

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

  1. (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
  2. (b)
    a building contractor whose name, licence number and address are stated on the contract; and
  3. (c)
    a building contractor whose name is stated on the contract for carrying out the building work; and
  4. (d)
    a building contractor whose name is stated on an insurance notification form for the building work; and
  5. (e)
    a building contractor whose licence number is stated on the contract for carrying out the building work; and
  6. (f)
    a building contractor whose licence number is stated on an insurance notification form for the building work; and
  7. (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
  8. (h)
    a building contractor by whom the building work was carried out; and
  9. (i)
    a person who, for profit or reward, carried out the building work; and
  10. (j)
    a person who is a building contractor under a domestic building contract who managed the carrying out of the building work; and
  11. (k)
    a construction manager engaged under a construction management contract to provide building work services for the building work; and
  12. (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. the building, or part of a building, is not, and has never been, the principal place of residence of the principal; and
    2. 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
    3. the principal knew, or ought to have known, that the way the work was to be carried out, or the materials 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 work being defective or incomplete building work –

A principal may know that 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.
  1. (2)
    For the purpose of subsection (1)(h) and (i) –
  1. (a)
    a person carries out building work whether the person –
  1. (i)
    carries it out personally; or
  2. (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.

Policy Guidance

  1. [13]
    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 this Tribunal have held that the policy is a matter that should be taken into account by the Tribunal.
  2. [14]
    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 10 October 2014.  So far as is relevant, the 10 October 2014 version of the rectification policy provided:

Rectification of defective building work

  1. (1)
    It is a policy of the Queensland Building Construction Board that a contractor who carries out defective building work should be required to rectify that work.
  2. (2)
    To remove any doubt, subsection (1) applies despite the building contractor failing to comply with the contracted plans and specifications for the work…

Notification of Defects

  1. (1)
    It is a policy of the Board that if a consumer is seeking assistance of the Queensland Building and Construction Commission (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.
  2. (2)
    The QBCC will then consider the issuing of direction to rectify to a building contractor:
  1. (a)
    For structural defective building work, within six years and 3 months of the building work being completed; or
  2. (b)
    For non-structural defective building work, within 12 months of the building work being completed.
  1. [15]
    The rectification policy also contains the following definitions:

Structural 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.

Factual Background

  1. [16]
    On 29 November 2017, the QBCC received a complaint regarding the subject property.  The complaint was that the main bathroom shower was leaking water, to areas outside the bathroom (specifically into the hallway), without any obvious pathway enabling the water to do that.  If confirmed, that complaint would amount to an instance of “structural defective building work”, as defined in the rectification policy.
  2. [17]
    On 30 November 2017, the QBCC wrote to the applicant, advising him of the nature of the complaint regarding the subject property. On or about 1 December 2017, the QBCC again wrote to the applicant, this time advising that a site inspection had been organised, for 22 January 2018.
  3. [18]
    On 13 December 2017, Messrs Power & Cartwright, Solicitors acting for the applicant e-mailed the QBCC, enclosing the following:
    1. (a)
      A statement from a Mr Ross Young (the brother of the applicant) dated 11 December 2017.  Mr Ross Young thereby informed that he had been employed by the applicant as site supervisor/site foreman, and contract manager during the construction of the subject property.  Mr Ross Young also informed that, amongst other things, the sub-tile waterproofing and the tiling in each of the bathrooms at the 12-unit complex had been work that had been sub-contracted, to Scott Harris trading as ‘Prestige Tiling’ (QBCC Licence No 76309);
    2. (b)
      A letter to the QBCC from the applicant (Mr Lee Young), dated 13 December 2017.  Amongst other things, the applicant similarly advised that the tiling and waterproofing in the subject property had been undertaken on a sub-contract basis by Scott Harris, trading as Prestige Tiling;
    3. (c)
      A legal letter, also dated 13 December 2017, in which Power & Cartwright maintained that the applicant ought not be held responsible for defective building work undertaken by another QBCC licence holder, asserting that it was ‘harsh and unreasonable’ to issue an infringement notice to the applicant in these circumstances.
  4. [19]
    On 22 January 2018, an employee building inspector, Mr Blair Lowrie, conducted an inspection of the main bathroom in the subject property on behalf of the QBCC in order to determine the causes of the water leakage.  The following day, Mr Lowrie prepared a QBCC Resolution Services Initial Inspection Report. The opening remarks to the Initial Inspection Report note the Claimant to be the building owner (not in attendance) and for the the Respondent to be “Lee Kelvin Young and/or [the] waterproofing sub-contractor engaged by Lee Young” (also not in attendance).
  5. [20]
    On 22 January 2018, Mr Lowrie conducted what he has termed a “hydrostatic test” of the shower recess, by means of his blocking the shower drain, and then pouring approximately 10 litres of water that had been coloured with a red dye, from a bucket, into the shower recess.  A section of carpet in the hallway adjacent to the bathroom doorway was then pulled back by Mr Lowrie, and paper towel was placed along the edge of the doorway.  After a period, Mr Lowrie determined that the paper towel had became soaked with moisture, coloured red, such that he concluded that the test confirmed the unit owner’s complaint.  A series of 22 photographs were also taken by Mr Lowrie  in order to show the results of that inspection.  These photographs, together with the Initial Inspection Report, were produced in evidence before the Tribunal. 
  6. [21]
    In light of his inspection and the Initial Inspection Report, Mr Lowrie concluded that the sub-floor waterproof membrane in the shower recess had not been installed in accordance with the requirements of the National Construction Code Volume 2, Part 3.8.1 and (Australian Standard) AS 3740.  The Tribunal accepts the correctness of that conclusion, and thereby accepts the evidence given by Mr Lowrie.
  7. [22]
    On 24 January 2018 the applicant was issued with direction to rectify ‘DTR’ No. 0102991, specifying that the applicant was required to ensure that the defective building work specified in the DTR was rectified.

Applicant’s Case before the Tribunal

  1. [23]
    As indicated at the outset of these reasons, and although the applicant readily accepts the fact of defective building work having been revealed at the subject property, the applicant complains that there is an element of unfairness about the DTR.  In his Application to review a decision, as filed in the Tribunal registry on 16 February 2018, the applicant expressed his concerns in these terms:
    1. (a)
      The decision attempts to hold the applicant liable for works that were not the applicant’s responsibility;
    2. (b)
      The failure alleged in the building report is a failure of works that were done by the building owner and were a specific exclusion from the works contracted by the applicant;
    3. (c)
      The report on which the decision is based does not adequately distinguish between the work for which the applicant contracted and the work which was to be done by the building owner;
    4. (d)
      The red dye test relied on by the building report demonstrates a clear failure of the silicone sealant which was applied by the building owner and does not demonstrate a failure of the underfloor membrane which was applied by a subcontractor of the applicant.
  2. [24]
    At the commencement of the hearing of this matter, there was still some factual contention between the applicant and the QBCC regarding the role of silicone sealant within the shower recess, as a potential causal factor for the observed water leakage.  The applicant recalled that the final application of silicone sealant had been a matter that had been specifically excluded from the building construction contract, and had been undertaken by the building owner.  Unsurprisingly, the applicant therefore wished to see any failure in the silicone sealant in the bathroom as a matter raised in prominence as a likely cause for the water leakage problem.  However, during the course of oral evidence from the QBCC Inspector, Mr Lowrie, the true causes of the problem - and the inherent improbability of the silicone (applied as a flexible joint[2] between hard surfaces in the shower recess, rather than as part of the water-proof system) being the cause of the water leakage - was sufficiently clarified for the applicant, such that he abandoned that claim.  To that end, and during the remainder of the hearing, the applicant abandoned concerns (b), (c) and (d), as initially expressed by him in his Application for claim review. 
  3. [25]
    The applicant’s case remains however point (a), that the DTR  attempts to hold the applicant personally liable for work that was not performed by him, but by another QBCC licence holder.

Respondent’s position

  1. [26]
    As is expressed in its Statement of Reasons for the Decision given in response to a direction from the Tribunal made on 24 January 2018, and as again confirmed at the hearing, the QBCC maintains the simple point that the giving of the DTR was (and remains) the correct and preferable decision, by reason that there is clear and uncontentious evidence of defective building work, as defined in Schedule 2 of the QBCC Act. 
  2. [27]
    The position of the QBCC may be summarised, as follows:
  1. (i)
    Because there is ‘defective building work’, a power arises under s.72(2)(a) of the QBCC Act for the QBCC to direct the rectification of that building work, by “the person who carried out the building work”;
  2. (ii)
    Pursuant to s.71l(1) & 71l(2)(a)(ii), the applicant is “a person who carried out the (defective) building work”, by reason that the applicant was the building contractor who indirectly caused the work to be carried out (by subcontractor Scott Harris Prestige Tiling Pty Ltd) and, per s.72l(2)(b), supervised that work.

Applicant’s evidence before the Tribunal

  1. [28]
    During the hearing, the applicant relied on both affidavit and oral evidence from his brother, Mr Ross Young; as well as on  some documentary evidence, in order to make the case that had previously been raised by him with the QBCC, in the Power & Cartwright correspondence dated 13 December 2017, even prior to the QBCC issuing the DTR. 
  2. [29]
    Mr Ross Young’s evidence (which was entirely uncontentious and not disputed by the QBCC), was to the effect that he had been employed by the applicant during the construction of the subject property and that ‘Scott Harris trading as Prestige Tiling’ had approached him looking for work, and that the tiling and sub-tile waterproofing had been sub-contracted to Scott Harris.  Mr Ross Young also informed the Tribunal that, after that had happened, Scott Harris had again approached him and had inquired whether it would be acceptable, in turn, for Scott Harris to sub-contract the waterproofing work to his own son, a Mr Dean Harris, on the basis that Dean Harris was very short of work at the time.  This was allowed by the applicant.  Thereafter, the tiling and waterproofing were performed by other QBCC licence holders, on a subcontract/sub-subcontract basis, and this work was supervised by Mr Ross Young, on behalf of the applicant.
  3. [30]
    The Tribunal accepts the testimonial evidence of Mr Ross Young. 
  4. [31]
    The documentary evidence relied upon by the applicant is in the form of two tax invoices (numbered 136 and 139), from Scott Harris Prestige Tiling Pty Ltd (QBCC Licence Number 728355). 
  5. [32]
    Invoice 136, dated 11 July 2012 and in the total amount of $2,354.00, relates to work performed by Scott Harris Prestige Tiling Pty Ltd on 6 July 2012, described as:

Tile wet areas @ primary school units as requested by Lee Young as follows:

Wet area tiling and water proofing to wet areas 30m2.

2 x bedded basses [sic]. 

Silicone 50l/m

Supply and fit 1x door way angle standard.

Thanking you.  Scott Harris.

  1. [33]
    Invoice 139, dated 13 August 2012 in the total amount of $10,367.28, relates to work performed by Scott Harris Prestige Tiling Pty Ltd on 10 August 2012 and described as:

Primary school crt units, 7, 8, 9, 10, 11, 12 as follows:

Main floor 42m2 x 6 units = 252m2

Kitchen splash backs to same units 2.88m2 x 6 = 17.28m2

Thanking you.

  1. [34]
    Before proceeding further with these reasons for decision, it is important to record that neither invoice 136 nor invoice 139 were available for consideration by the QBCC decision-maker, at the time when making the original DTR decision, now under review.   These invoices constitute “fresh evidence”, of a type that may now be considered by the Tribunal, given that these review proceedings are conducted de novo.
  2. [35]
    Ultimately, invoice 139 is largely irrelevant, referring as it does to tiling works that are not associated with adjunct water-proofing.  However, invoice 136 is a relevant document, as it refers to the fact of water-proofing, in bathrooms.  The real relevance of invoice 139 arises by reason that it affords contemporaneous documentary corroboration that the waterproofing in the bathroom in the subject property was undertaken by another QBCC licence holder, Scott Harris Prestige Tiling Pty Ltd, in the manner previously claimed by the applicant, and as stated in evidence before the Tribunal by Mr Ross Young.

Assessment

  1. [36]
    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.[3] 
  2. [37]
    Although it is unarguably the case that the applicant is still a person who qualifies as “[a] person who carried out the building work”, due to the effect of s 72l(1)(h); s 71l(2)(a)(ii) and s 72l(2)(b) of the QBCC Act, it also is the case that another building industry entity, Scott Harris Prestige Tiling Pty Ltd (QBCC Licence Number 728355) qualifies as a “person who carries out building work” under s 71l of the QBCC Act; and to whom a direction to rectify might also issue, under s 72(2).  In these circumstances the applicant’s responsibility for defective building work is perhaps best categorised as a failure to adequately supervise sub-contracted works, yet the actual defective building work is a matter that should be seen as the responsibility of the sub-contractor.
  3. [38]
    The Rectification Policy specifies, in clause (1), that “It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to rectify that work”.  In circumstaces arising - as they have here - where there is evidence of another building contractor also bearing responsibility for defective building work, yet of no direction to rectify having been issued to that other industry licence holder, the Tribunal concludes that an obvious unfairness to the applicant does arise.  That unfairness would not have arisen, had the direction to rectify been issued  to both the applicant and the other building contractor.  At the same time, the evident policy intent revealed in clause (1) of the Rectification Policy is a matter that is not adequately met, if circumstances are allowed to pertain whereby a building contractor who is similarly responsible for the same defective building work is not also required to rectify. 
  4. [39]
    In these circumstances the Tribunal concludes that the correct and preferable decision is to set aside the decision under review, and now return the matter for reconsideration by the decision-maker for the decision, in light of these reasons. 

Orders

The decision under review is set aside, and is to be returned to the original decision-maker, for further consideration, in light of these reasons.

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]Transcript, p.11, line 46.

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

Close

Editorial Notes

  • Published Case Name:

    Young t/as LK & HM Young v Queensland Building and Construction Commission

  • Shortened Case Name:

    Young t/as LK & HM Young v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 8

  • Court:

    QCAT

  • Judge(s):

    Member McLean Williams

  • Date:

    08 Jan 2021

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
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
Dixonbuild Pty Ltd v Queensland Building and Construction Commission [2025] QCATA 782 citations
1

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