CITATION: | Gedoun Constructions Pty Ltd v Queensland Building and Construction Commission & Anor (No 1) [2022] QCAT 190 |
PARTIES: | gedoun constructions pty ltd (applicant) v queensland building and construction commission (first respondent) MARK ELLIOT AGUIS (second respondent) |
APPLICATION NO/S: | GAR194-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 19 May 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The strike out application filed on 19 July 2021 is dismissed. |
CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – BUILDING – DIRECTION TO RECTIFY – whether a reviewable decision ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86 Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2019] QCAT 419 Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 69 Queensland Building and Construction Commission v Whalley [2018] QCATA 38 |
APPEARANCES & REPRESENTATION: | 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
Decisions of the QBCC
The application to review a decision form
Details of decision to be reviewed (include case number if known):
Direction to Rectify No.: 0106161 Ref. No.: 747589
When was the decision made?
28th May 2020.
When did you receive the decision?
29th May 2020.
Name, position and area office of decision-maker
June Blaney, Principal Review Officer, Brisbane
State briefly why you think the decision is wrong or not properly made
See Appendix A1.10
The decision on this matter has been made most likely in strict accordance with standard procedures. There is a misconception that we, as builders, understand the procedure and relevant pathway to a decision. The Direction to Rectify makes reference to detailed design components from our Engineers and Form 16 for the inspections.
It was always our understanding that the QBCC will conduct an inspection on the supplementary information and evidence. This has not occurred on this occasion.
Recent correspondence from IRU state that is (sic) was at the reviewer’s discretion whether an inspection is required. Further to this, we requested information on whether an inspection would be forthcoming from the local QBCC office, the reply was “we are not sure, but probably”.
In light of the client’s history and his savage commitment to prosecute; we cannot understand why a simple inspection that could have answered the QBCC Engineer’s query was not undertaken. Someone in the local QBCC office could have completed the inspection and this matter closed with a different outcome.
I have included a copy of the decision for which I am seeking review (if I have a copy)
What is the decision under review?
Is the decision made on 28 May 2020 a reviewable decision?
The QBCC submitted that “[t]here is no further decision capable of review by the Tribunal” in proceedings GAR286-18. However, it seems to me that the decisions on 19 February 2018 and 21 February 2018 are both capable of falling within the scope of s 86(1)(e) of the QBCC Act.
The Internal Review Decision was a decision made by QBCC to give a direction to rectify or remedy. That decision has been reviewed by review of the Internal Review Decision in proceeding GAR092-18 which is detailed above.
The Direction to Rectify referred to the Internal Review Decision and was a means of giving effect to the Internal Review Decision. The Direction to Rectify is evidence of a decision, made or taken to be made, by QBCC, to give a direction to rectify or remedy.
However, in my view, the Direction to Rectify is not itself a decision, made or taken to be made by QBCC, to give a direction to rectify or remedy. On that basis, the Direction to Rectify, which is the subject of proceeding GAR286-18 of this Tribunal, is not itself a ‘reviewable decision’.
There was no request to review the decision to issue DTR no. 42267 sought by Mr Whalley in his application. DTR no. 42267 was issued on 8 April 2016 and was not a decision about the satisfactory standard of work undertaken at the direction of the QBCC pursuant to s 86(1)(f) but a decision pursuant to s 86(1)(e) that building work be rectified.
The Tribunal’s review jurisdiction was only enlivened in respect of the decision of 5 April 2016 for DTR no. 40913. There was no inherent or other power of the Tribunal to make final orders about the decision made by the QBCC on 8 April 2018 even if that decision was, for the purposes of the QBCC Act, a reviewable decision
The installation of the shear blocking to transfer the wind loads from the ceiling/roof diaphragm to the bracing walls at the robe location in Bedroom Two (2) and Bedroom Three (3) do not comply with AS 1684.3 in that the shear blocking provided does not provide sufficient resistance against the relevant loads applied to the connection, resulting in a diminished performance in the event of the expected wind loads that the dwelling is designed to resist – Pertains to complaint item A2.2.
The installation of the tie-down bolts between the bottom plate and floor framing does not comply with AS 1684.3 in that tie down bolts do not provide sufficient resistance to uplift to counter the design wind loads resulting in a diminished performance for the components in the event of the expect (sic) wind loads to affect the building. Pertains to complaint item A2.2.
The fixing of the top of the bracing wall to the family room does not comply with neither (sic) the Multi Nail technical data nor AS 1684.3 in that the nail fixings are not located as per the manufacturers (sic) specification resulting in a diminished performance of the bracing walls to transfer loads and allow movement to the roof frame system. Pertains to complaint item 2.4.
The installation of the bracing wall to the family room does not comply with AS 1684.3 in that shear blocking to transfer the wind loads from the ceiling/roof diaphragm to the bracing walls have not been provided to apply resistance against the relevant loads applied to the roof frame, resulting in a diminished performance in the event of the expected wind loads that the building is designed to resist. Pertains to complaint item 2.5.
Disposition
