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Buildmaster Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 380

Buildmaster Pty Ltd v Queensland Building and Construction Commission[2022] QCAT 380

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Buildmaster Pty Ltd v Queensland Building and Construction Commission and ors [2022] QCAT 380

PARTIES:

buildmaster pty ltd

(applicant)

v

queensland building and construction commission

(First Respondent)

douglas feinbloom

(Second Respondent)

kylie bruce

(Third Respondent)

APPLICATION NO/S:

GAR023-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 October 2022

HEARING DATE:

3 and 4 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The QBCC’s decision to give to Buildmaster Pty Ltd a direction to rectify the installation of the windows and cladding of the external walls at the relevant property is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether works can be defective for the purpose of a decision to give a direction to rectify if the works satisfy the relevant performance requirement at the time of the hearing – whether a direction to rectify should be given

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the direction to rectify gave reasons why the works were defective – where those reasons were challenged in the external review as being inaccurate – whether the decision to give a direction to rectify can be challenged on that basis

Building Act 1975 (Qld), s 14(2)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 24

Queensland Construction and Commission Act 1991 (Qld), s 3(a), s 3(b), s 72, s 86, s 86D, s 86E

Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243

LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 24

Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407

APPEARANCES & REPRESENTATION:

Applicant:

Stuart Rickerby, building consultant.

First Respondent:

Russell Ensby, Special Counsel, of Gadens Lawyers.

Second and Third Respondents:

Self-represented

REASONS FOR DECISION

  1. [1]
    Buildmaster Pty Ltd built a new house in Yeronga, Queensland for Dr Douglas Feinbloom and Kylie Bruce (the owners). 
  2. [2]
    The owners complained to the Queensland Building and Construction Commission (QBCC) about alleged defects in the construction of the windows and cladding of the external walls.  The QBCC gave the builder a direction to rectify the defects.
  3. [3]
    The builder now applies to the tribunal for a review of the QBCC’s decision to give a direction to rectify in respect of these defects.  By way of fresh hearing on the merits, the tribunal will seek to produce the correct and preferable decision as to whether a direction to rectify should be given.[1]
  4. [4]
    At the hearing, I heard from the builder and from one of the owners (the second respondent) and also from three building experts:
    1. (a)
      for the builder, Stuart Rickerby;
    2. (b)
      for the QBCC, Geoff Barrett; and
    3. (c)
      for the respondents, Christopher Boyle.
  5. [5]
    The experts had produced a joint experts’ report following an experts’ conclave chaired by a member of the tribunal, but they also gave evidence concurrently.  In the light of the need for clarification of their evidence I directed that the experts’ own reports may also be adduced as evidence.[2]
  6. [6]
    One of the experts, Mr Rickerby, also acted as an advocate for the builder.[3]  This was by tribunal direction quite close to the hearing.  Although objection was taken to this direction by the other parties on the grounds that they had not been given an opportunity to make submissions on whether this direction should be made, and that it was inappropriate, I was clearly bound by it.
  7. [7]
    This review raises the question whether a direction to rectify should be given where the construction meets the relevant Building Code of Australia (BCA) performance requirement because the construction is watertight at the time of the hearing, but where the likelihood is that the construction will cease to be watertight in the short term.
  8. [8]
    A second question arises in this review.  The direction to rectify gave brief reasons why the work was defective.  These reasons are challenged in this review as being inaccurate.  I have found that although the work was defective, the reasons given in the direction to rectify why the work was defective were not completely accurate.  Also the direction to rectify required the builder to give certificates after the rectification work is done, which it might not contractually be obliged to do.  In those circumstances is it right to confirm the decision to give a direction to rectify?
  9. [9]
    After the builder had completed the installation of the windows and cladding but before practical completion the owner reported water ingress at the windows.  The builder attempted to remedy the leaks in various ways and did finally make the installation watertight.
  10. [10]
    On 21 May 2018 the owners complained to the QBCC about the water ingress and other matters.  Having inspected the house and conducted tests, on 10 October 2018 the QBCC gave a direction to rectify in respect of the other matters but not about the water ingress.  The owners then asked the QBCC to conduct an internal review of the decision not to give a direction to rectify with respect to the water ingress.  The QBCC inspected the house again and this time decided to give a direction to rectify about the water ingress.  The direction to rectify was dated 21 November 2018 and the parts of it relevant to this review read:

Due Date for Completion: 20 January 2019

You are directed to rectify the following defective or incomplete building work by the Due Date for Completion.

Ensure all works carried out pursuant to this Direction to Rectify are done so in compliance with the Building Act 1975.  Provide all certificates in regard to all statutory requirements, copies to be provided to owners and Queensland Building and Construction Commission.

1. The inspection found the windows have not been adequately flashed in accordance to Manufacturers recommendations, in that the openings have primarily been flashed with a flexible sealant which is not considered to be a long term flashing material in accordance to the minimum requirements of the BCA, resulting in potential water ingress and undue dampness or deterioration of building elements.

2. The inspection found that the cladding has not been installed in accordance to the Manufacturers recommendations, in that the sides of the openings have not been adequately waterproofed with closed-cell foam infills, resulting in water ingress and undue dampness or deterioration of building elements.

  1. [11]
    In this review the builder says that there was no breach of the building code because the design was unusual and needed special expertise to make watertight, the arrangement found by the builder was a deemed to satisfy solution, or was otherwise in accordance with the performance requirements.  Other points are made that the architect had some responsibility for the design and in any case may have approved the method of construction, and that it would be unfair to give a direction to rectify for this and other reasons.

How the window, box and cladding arrangement was designed and constructed

  1. [12]
    The owners engaged an architect to design the house.  All experts agree that the window and cladding design was unusual, at least for Queensland.  This was because although the house was to be built with a traditional timber frame, metal wall cladding was specified for the external walls and this was to be installed horizontally.  The windows were pre-fabricated aluminium louvre windows from Bradnam’s with flashing attached.  The plans specified that the cladding manufacturers would provide proprietary jamb, head and sill mouldings – these were box sections made of the same material as the cladding and the same colour, which when installed effectively formed a frame around each window which the cladding would abut.[4]
  2. [13]
    This design meant that some thought had to be put into the waterproofing arrangements for the windows and cladding.  As one of the experts said:[5]

The design was unconventional and so required very careful thought by the builder as to how to do it.  I was concerned that the very careful thought had not taken place.

  1. [14]
    The sequence in which the building wrap, windows, box sections and cladding should have been installed is central to this review.  Waterproofing when installing windows in a timber framed construction like this one would usually be achieved by firstly installing the building wrap (sarking) to the outside of the timber frame and returning the wrap into the window openings.  Then the windows would be fitted to the openings ensuring that the window flashings (which were attached to the windows as delivered) extended over the frame at the bottom first, followed by the sides, and at that time the head flashing would also be installed ensuring that it extended behind the building wrap.[6] 
  2. [15]
    Any further box sections required by the design could then be fitted, and then the cladding would be installed.  Closed cell foam infills placed between the cladding and the window flashings would prevent water ingress behind the cladding.
  3. [16]
    The correct construction sequence therefore, to enable the flashings on the windows as manufactured to be used correctly as part of the waterproofing arrangement in this design, was building wrap, windows, box sections, cladding.
  4. [17]
    Instead of following that sequence, the builder installed the windows after installing the box sections around each window opening and in most cases after installing the cladding.  Also in some cases the building wrap was not yet in place when the box sections were installed.
  5. [18]
    The builder said that the reason why the windows were installed after the box sections and cladding was because of delays in ordering the windows.  In fact, despite the lack of windows, the cladding sub-contractor wished to carry out the cladding and box section work as scheduled, and doing it this way saved the builder unexpected scaffolding costs.
  6. [19]
    The builder blamed the architect, and therefore the owners, for the delay in ordering the windows, and seemed to say that owners had some responsibility for the cladding-window sequence making it less fair to give a direction to rectify. 
  7. [20]
    The precise reason for the delay in the delivery of the windows was not clear from the evidence adduced at the hearing.  In any case however, it is difficult for the builder to rely on this point as showing that it would be unfair to give the direction to rectify.  This is because, as the builder accepted in cross examination, had there been such a delay caused by the owner, under the contractual provisions, it would have entitled the builder to extend the time to practical completion,[7] delay work on the house and claim compensation accordingly,[8] and this did not happen.  The builder accepted when giving evidence that on that basis there had been no need to instal the cladding first.  This means that there is no need for me to make a finding of fact about the reason for the delay. 
  8. [21]
    I find that the decision as to the sequence of installation remained with the builder throughout and the builder, and not the owners, must take responsibility for the sequence which was followed.
  9. [22]
    In this house, installing the windows after the box sections around each window and in most cases after installing the cladding meant that unless the box sections and cladding were dismantled, the window flashings (which came attached to the windows as delivered) could not be used in the way intended.  Instead, what actually happened was that the builder or its contractors either cut the window flashings away or rolled them up and squashed them into the available space adjacent to the windows.  The net result which was inevitable, was that there was water penetration around the windows.

The history of water ingress and remedial work

  1. [23]
    The owners noticed water ingress in mid-October 2017 and informed the builder who applied a silicone sealant around the windows concerned.  In early November 2017 the cladding subcontractors returned to site and peeled off some cladding on one side of the building near some of the windows and applied silicone sealant behind.  Late in November 2017 there was further water ingress and further silicone sealant was applied.  In mid-December 2017 silicone sealant was applied to various screw holes.
  2. [24]
    The owners instructed a building consultant, Mr Boyle and he inspect the installation on 15 December 2017.  Mr Boyle found that there had been water ingress from several of the windows and suggested to the builder that sub-sills should be installed.  Soon after, the builder installed the sub-sills and metal head flashings which extended past the cladding ends on some but not all the windows, and applied further silicone sealant.
  3. [25]
    In January or February 2018 the builder made drain holes in the sills and added aluminium angle pieces around the inside of the box sections and the window frames.  These angle pieces had no fixings and so were kept in place by silicone sealant.  Sealant was also applied to some of the cladding ends where they joined the box sections around the windows.  There continued to be water ingress however, and in early March 2018 further sealant was applied. 
  4. [26]
    A water test carried out on 14 March 2018 showed that there was still significant water ingress.  A water test carried out on 23 March 2018 did not initially result in water ingress but there was water ingress which was noticeable a few hours later.  Further work was done to seal the windows on that day.
  5. [27]
    On 10 April 2018 the builder was given a Notice of Intention to Terminate the construction contract by the owners’ solicitors.
  6. [28]
    The builder instructed a building consultant, Mr Dixon, to inspect and report.  On 18 April 2018 he carried out water tests and used a moisture meter to see if there was any further water ingress but found none at that time.  But Mr Dixon recommended that the metal head flashings and sub sills be installed on all windows and also to door openings.
  7. [29]
    On 26 April 2018 the owners formally terminated the construction contract.
  8. [30]
    A further water test was done on 20 August 2018 on behalf of the QBCC after the owners’ initial complaint and again on 25 October 2018 for the internal review.  None of these tests showed any further water ingress.

Powers to make a direction to rectify?

  1. [31]
    In conducting these reviews, the tribunal effectively stands in the shoes of the QBCC so it is important to consider the powers of the QBCC to give a direction to rectify and when they should be exercised. 
  2. [32]
    The QBCC’s powers to give a direction to rectify derive from section 72 of the Queensland Construction and Commission Act 1991 (Qld) (QBCC Act).  Of relevance to this matter, a direction to rectify may be given if the QBCC is of the opinion that building work is defective or incomplete.[9] 
  3. [33]
    In deciding whether to give a direction to rectify, the QBCC may take into consideration all the circumstances it considers reasonably relevant, and in particular is not limited to consideration of the terms of the contract for carrying out the building work.[10]  The QBCC is not required to give a direction if it is satisfied that in the circumstances it would be unfair to give a direction.[11]

The meaning of ‘defective’ when considering directions to rectify

  1. [34]
    The word ‘defective’ in relation to building work ‘includes faulty or unsatisfactory’.[12]
  2. [35]
    The commissioner may make a policy to give guidance about (of relevance here) making decisions under the Act.[13]  Such a policy, relevant to this matter, has been made and approved by regulation.[14]  It is the ‘Rectification of Building Work Policy’.
  3. [36]
    That states that it is the policy of the QBCC that a building contractor who carries out defective building work should be required to rectify that work.  For the purposes of the policy, ‘Defective building work’ is defined:

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.
  1. [37]
    There is further guidance of the meaning of ‘defective building work’ in the definitions in the policy (which are for the purpose of the policy) of ‘non-structural defective building work’ and ‘structural defective building work’:

Non-structural defective building work means defective building work (other than structural 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.

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.
  1. [38]
    Of relevance to this application for review, it is clear from the use of the words ‘and includes, for example’ in the definition of defective building work in the policy, that the two examples a and b in the definition are not exhaustive.  This means that building work could be defective in other ways.  This can be seen in the definitions of non-structural defective building work and structural defective building work.  These refer to other times when building work would be regarded as defective. 
  2. [39]
    Of relevance to this review, it can be seen that building work would be non-structural defective building work, and therefore defective building work, if it is outside the definition of structural defective building work and if it does not meet a reasonable standard of construction expected of a competent holder of a builder’s licence. 
  3. [40]
    In this review it is agreed that at the time of the review the building work is not structural defective building work because currently the construction does not allow water penetration into the building. 
  4. [41]
    Expert evidence was given that the work did not meet the reasonable standard expected of a licensed builder.  If I accept that evidence then I am bound to find that the work is defective.[15] 
  5. [42]
    It was also argued that the building work was defective for breach of the building code or failure to comply with manufacturer’s instructions,[16] so I need to consider these in more detail.  

The relevant Building Code of Australia, applicable Australian Standard and manufacturers’ instructions

  1. [43]
    Much time and effort was expended by the parties trying to identify the relevant standard applying to the construction, and the various parts of the BCA which were relevant. 
  2. [44]
    The experts agreed that the NCC 2014 Volume 2 Building Code of Australia (BCA) applied to the work concerned,[17] and it is right to proceed on that basis.
  3. [45]
    Since I am asked to decide whether the BCA was complied with, I need to understand from the BCA and from the statute which makes it applicable to building work in Queensland, that is the Building Act 1975 (Qld) (BA), when it would be complied with.
  4. [46]
    Both the BA and BCA itself make it clear that in order to comply with the BCA, all relevant ‘Performance Requirements’ must be complied with.[18] 
  5. [47]
    It is agreed that the relevant Performance Requirement for the work concerned is that in P2.2.2 which reads:

Weatherproofing

A roof and external wall (including openings around windows and doors) must prevent the penetration of water that could cause—

  1. unhealthy or dangerous conditions, or loss of amenity for occupants; and
  2. undue dampness or deterioration of building elements
  1. [48]
    It is provided that compliance with the Performance Requirements can only be achieved by:[19]
    1. (a)
      complying with the Deemed-to-Satisfy Provisions; or
    2. (b)
      formulating an Alternative Solution which—
      1. complies with the Performance Requirements; or
      2. is shown to be at least equivalent to the Deemed-to-Satisfy Provisions; or
    3. (c)
      a combination of (a) and (b).
  2. [49]
    The builder does not suggest that the Alternative Solution provisions in the BCA apply to this building work.[20]  On the builder’s behalf Mr Rickerby has pointed out that the respondents’ experts have suggested that the waterproofing arrangement was an alternative solution but an inadequate one.  He has criticised this suggestion on the basis that the Alternative Solution provisions in the BCA do not apply.  This makes too much of what the respondents’ experts mean here, that the waterproofing arrangement was not otherwise compliant with the BCA and could only be compliant if it were an approved alternative solution, which was not the case.  One reason why the Alternative Solution provisions do not apply is that it would need by be assessed as provided by the BCA and there is no suggestion that this was done. 
  3. [50]
    Because the Alternative Solution provisions in the BCA do not apply to this building work, the only way Performance Requirement P2.2.2 could be complied with is by compliance with the Deemed-to-Satisfy Provisions.  The Deemed-to-Satisfy Provisions mean provisions contained in Section 3 of the BCA.
  4. [51]
    There are three Deemed-to-Satisfy Provisions which might apply. 

The First Deemed-to-Satisfy Provision

  1. [52]
    The first Deemed-to-Satisfy Provision which might apply is 3.5.3.0 which reads: 

Acceptable Construction Manual

Performance Requirements P2.1.1 and P2.2.2 are satisfied for metal wall cladding if it is designed and constructed in accordance with AS 1562.1

  1. [53]
    AS 1562.1 deals with ‘Design and installation of sheet roof and wall cladding’ and Part 1 deals with metal cladding.  The most relevant requirement is in Section 4 ‘Installation’ reading:

4.1 GENERAL

The cladding system shall be installed in accordance with the design specifications or the manufacturer's installation specification, as appropriate.

  1. [54]
    To see whether this Deemed-to-Satisfy Provision might apply, it is necessary to consider whether there are any design specifications or manufacturer’s installation specifications for the cladding system for the construction in question. 
  2. [55]
    The architect originally specified Fielders ‘Shadowline’ for the cladding.[21]  This was changed to a cladding manufactured by F & M Fabrications.  There was no evidence that F &M Fabrications had issued any installation specifications.
  3. [56]
    Fielders did have installation specifications for Shadowline installed on a roof but not when installed horizontally.[22]  The F & M product was installed as horizontal cladding, and so even if it is right to consider the installation specifications of another manufacturer, they did not apply to this installation.  The builder points out that Fielders did have installation specifications for another product, Prominence Cladding, which was similar to the cladding as supplied and used for horizontal cladding.[23]  There were also references to a flashing guide of another manufacturer (Lysaght),[24] and to recommendations of the Australian Window Association,[25]  but the difficulty is that these were not installation recommendation for the actual product installed.  I do agree with the general view of the experts that these documents are very helpful however, to inform as to recognised standard of construction in the industry generally.
  4. [57]
    It was said on the builder’s behalf that an email dated 29 April 2019 from Fielders to the builder can be regarded as manufacturer’s installation specifications.[26]  The problem with the is that it was sent after the work was done and as submitted on QBCC’s behalf, there is nothing to show that the sender of the email had any expertise or authority to send it or any knowledge of the system of construction actually used on site, and Fielders were not the manufacturers of the cladding actually installed.  I cannot see that this email could be manufacturer’s installation specifications for the purposes of AS 1562.1.
  5. [58]
    The manufacturers of the windows, Bradnam’s, did provide installation details for the installation of the windows in a timber framed and timber clad house, where the flashing was not attached to the windows on delivery but instead were to be provided by the builder.[27]  But this was different to the arrangement in this design which was for metal cladding, box sections around the window, and where the windows had flashing pre-attached.  So I do not think it can be said that there were manufacturer’s recommendations for the installation of the windows and their pre-attached flashings for this design.
  6. [59]
    The result is that there were no manufacturer’s installation instructions for the installation of the cladding.  Since this first Deemed-to-Satisfy Provision 3.5.3.0 needs such manufacturer’s installation specifications to work, it does not apply.

The Second Deemed-to-Satisfy Provision

  1. [60]
    The second Deemed-to-Satisfy Provision which might apply is 3.5.3.6 which reads:

Flashings to wall openings

Openings in external wall cladding exposed to the weather must be flashed as follows:

  1. All openings must be adequately flashed using materials that comply with AS/NZS 2904.
  2. Flashings must be securely fixed at least 25 mm under the cladding and extend over the ends and edges of the framing of the opening (see Figure 3.5.3.4).
  1. [61]
    Figure 3.5.3.4 illustrates the flashings extending over the window head and sill.
  2. [62]
    This deemed-to-satisfy provision would be relevant here, although I would point out that although AS 2904 describes various types of flashing, it is noticeable that silicone sealant as used in this installation is not one of them.

The Third Deemed-to-Satisfy Provision

  1. [63]
    The third Deemed-to-Satisfy Provision which might apply is 3.6.0 which reads (with irrelevant parts omitted):

Acceptable Construction Manuals

(a) Performance Requirements P2.1.1 and P2.2.2 are satisfied for glazing and windows if designed and constructed in accordance with AS 2047 for (windows) in an external wall

  1. [64]
    AS 2047 deals with ‘Windows in buildings – Selection and installation’.  Clause 7.2 ‘Installation’ applies.  It reads (amongst other provisions):

Window assemblies shall be fixed into the building using recognised building practices.

Installed windows assemblies shall prevent water penetration and excessive air infiltration.

NOTE: Window manufacturers’ installation procedure may need to be followed for particular installations.

  1. [65]
    This third deemed-to-satisfy provision would be relevant here.

The applicable test whether the work complied with the BCA

  1. [66]
    So, bringing all this together, it can be seen that this particular work done by the builder would only have satisfied Performance Requirement P2.2.2 if either:
    1. (a)
      the openings were adequately flashed using materials complying with AS 2904 and securely fixed at least 25 mm under the cladding and extend over the ends and edges of the framing of the opening;[28] or
    2. (b)
      the windows were fixed into the building using recognised building practices.[29]
  2. [67]
    My conclusion here differs from Mr Rickerby’s submission made on the builder’s behalf that if matters are not prescribed in the Deemed-to-Satisfy provisions then it is not possible to breach these provisions.  In other words, if there are no applicable Deemed-to-Satisfy provisions then the Performance Requirement P2.2.2 can be met a third way – that is simply by complying with P2.2.2, and that happened because there is currently no water ingress.[30]
  3. [68]
    I do not agree with this because clause 1.0.5 of the BCA ‘Meeting the Performance Requirements’ set out above, provides that where an Alternative Solution is not relied on, compliance with the Performance Requirements can only be achieved by complying with the Deemed-to-Satisfy Provisions.

The applicable test whether the work was defective

  1. [69]
    Since when considering the first deemed-to-satisfy provision 3.5.3.0 and AS 1562.1, I have found above there were no relevant manufacturers’ installation specifications, this also means that the work was not defective for failure to comply with such specifications within the examples of ‘defective building work’ in the Rectification of Building Work Policy.
  2. [70]
    It is now possible to state the test to apply in this review to decide whether the work was defective.  The work was defective if either (a) or (b) applies:
    1. (a)
      the work failed to satisfy Performance Requirement P2.2.2 because neither (i) or (ii) was done:
      1. openings adequately flashed using materials complying with AS 2904 and securely fixed at least 25 mm under the cladding and extend over the ends and edges of the framing of the opening;[31] or
      2. windows fixed into the building using recognised building practices.[32]
    2. (b)
      the work was faulty or unsatisfactory because 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.[33]
  3. [71]
    Just because the work is defective does not mean it is automatically correct to give a direction to rectify.  The power to give a direction to rectify would be considered in the light of the objects of the QBCC Act, which include the regulation of the building industry to ensure the maintenance of proper standards in the industry, to achieve a reasonable balance between the interests of building contractors and consumer and to provide remedies for defective building work.[34]  Here it is necessary to consider the contractual obligations, the involvement of the architect and also the question of fairness.

The contractual obligations

  1. [72]
    The contract was the Master Builders Residential Building Contract Level 2.[35]  By Clause 10 the builder warranted that it would carry out the Works:
    1. (a)
      in an appropriate and skilful way;
    2. (b)
      with reasonable care and skill;
    3. (c)
      in accordance with the Plans and Specifications;
    4. (d)
      with reasonable diligence; and
    5. (e)
      in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975.
  2. [73]
    There were plans and specifications prepared by an architect as listed in the contract.
  3. [74]
    By Clause 13 the builder was required to comply with all statutory requirements relating to the Works.
  4. [75]
    Clause 25 of the contract confirmed that the statutory warranties contained in Schedule 1B of the QBCC Act which applies to domestic building contracts, were incorporated into the contract.  The warranties relevant to this review are that the work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975 (Qld),[36] and that the work will be carried out in an appropriate and skilful way and with reasonable care and skill,[37] and with reasonable diligence.[38]
  5. [76]
    Therefore, both legally in the contract and also for all practical purposes, the builder had responsibility to construct the window and cladding installation properly.

The involvement of the architect

  1. [77]
    This is relevant because the builder says that the owners’ architect has some responsibility for what happened.  If so, then this could make it less fair to give a direction to rectify to the builder.
  2. [78]
    The construction contract provided in its Special Conditions (sic):
  1. 1.
    The architect shall maintain authority over quality of finishing, product selection and construction method (as reasonable and appropriate); and may, at any time up to 30 days post practical completion, request receipts, photographs, documentation, and contact with the builder or subcontractor.  Any disputes shall be brought to the builders attention, in writing within 14 days of concern.

The architect’s authority does not release the builder builder from and all liability with regard to quality of finishing, building code and all other legislative with regard to quality of finishing, building code and all other legislative responsibilities, warranties or guarantees.

  1. 2.
    Any variations to style, specification, or building process must be approved by the architect in writing
  1. [79]
    This clause explains final submissions filed on the builder’s behalf, that the architect’s ‘responsibility (very unusually) even extended to the construction methodology’.  Therefore it is said that the obligation to ensure that the regulatory framework was complied with extended to the architect.  In turn, it is said that it would be unfair to give a direction to rectify on the builder.
  2. [80]
    Because of this contract term and the relevance of the precise obligations of the architect, at the end of the hearing I directed that the owners should provide to the parties and to the tribunal a copy of their contract with the architect. 
  3. [81]
    This contract shows that the architect was responsible for the design and preparation of the specifications prior to the construction contract being entered into, and also for organising the tendering process and the entering into of the construction contract.  During construction the architect was to make periodic site inspections to ‘check work in progress regarding design quality control, materials selections and performance as described in the contract documents’, assess the builder’s progress claims and give progress certificates, and generally to liaise with the builder as required.
  4. [82]
    Of particular relevance to the question of the direction to rectify, general condition 3.2 of the architect’s contract with the owners stated:

the architect does not supervise the construction of the works or provide supervision services as part of this agreement.  During the construction stage the architect will inspect the works to ensure compliance with the contract documents and perform all duties as required of the architect and defined in the building contract selected for the project

  1. [83]
    Although the Special Conditions in the construction contract were not carefully or accurately worded, the net effect of the two contracts was that, as reasonable and appropriate, the architect had the right to intervene with respect to construction methods but that the builder retained the obligations to comply with the building code and all other legislative responsibilities.  That would include the obligations in Schedule 1B of the QBBC Act to do the work with due care and skill and in other respects as repeated in the contract.
  2. [84]
    What actually happened during construction reflects the contractual responsibilities discussed above.
  3. [85]
    On 18 May 2017 the builder checked with the architect whether a locally available metal cladding made by F & M Fabrications would be suitable for the wall cladding instead of the specified Fielders ‘Shadowline’ and the architect confirmed this.[39] 
  4. [86]
    Then in a plan prepared on 12 June 2017 the architect specified and marked in red where vertical joins and corners should be and the plans also showed box sections around each window.[40]  However, there was no detail on the plans or specifications about exactly how or in what sequence, the window, box and cladding would be installed and how waterproofing would be achieved. 
  5. [87]
    At one point in the evidence the builder seemed to say that the cladding-window sequence had been approved by the architect, but from what the builder later said in evidence it was clear that there was no such approval in advance of it happening.  The most that can be said from the builder’s evidence is that the architect discovered after the event that the windows had been installed after the cladding but was not involved in the decision to do this. 
  6. [88]
    The architect was not asked to advise about how to make the installation watertight and did not do so.  Instead, how this was to be done was discussed between the builder and the cladding subcontractors.  So although it is possible that clause 1 of the special conditions would have permitted the architect to intervene and require a particular method of construction, this did not happen with respect to the work in question. 
  7. [89]
    On the builder’s behalf in written final submissions after the hearing an attempt is made to introduce ‘further material’ about the architect’s involvement.  Prayed in aid are difficulties with preparation of the hearing bundle and the fact that the experts were not asked about the question of design responsibility.  Naturally, any attempt to adduce new evidence after the hearing is resisted on behalf of QBCC and those submissions correctly say that normally after the close of the hearing no such new material should be allowed.  It would indeed be an exceptional case for such further material to be admitted in evidence.
  8. [90]
    A closer study of the proposed further material shows that some is already in evidence and the remainder is of little probative value.  There are some more emails than already put in evidence.  Some of these emails were listed with a brief explanation by Mr King in his statement of evidence so they are not new.[41] 
  9. [91]
    The plan prepared by the architect dated 12 June 2017 is already in evidence.  Now the builder seeks to put before the tribunal the email sent with the plan.  It describes the plan as ‘a layout for the cladding edging and joins discussed on site on Friday’.  This does not take us much further because we can see from the plan that it was simply a layout and did not explain how the flashings should be installed.
  10. [92]
    There are emails possibly showing that the architect asked about the flashing but again that takes us no further because Mr King’s evidence was clear that the architect did not specify how the flashing should be installed once the cladding was installed before the windows.
  11. [93]
    It is said in submissions filed on the builder’s behalf that the emails and a further study of the material already in evidence shows that the flashings were installed with the architect’s approval.  In one sense this is correct because the architect expected that flashings would be installed.  However, there is nothing to show that the architect approved the builder’s waterproofing arrangement.
  12. [94]
    In the submissions filed on the builder’s behalf, a note has been added to one of the detail drawings provided by the architect which seems to be additional expert evidence.  It would be wrong to admit this.
  13. [95]
    If the further material had any significant probative value then I would have to consider whether to list the matter again for further evidence.  If it is said that the further material contradicts Mr King’s evidence about the architect’s involvement then a further hearing would be needed to hear from Mr King.  If it is said that the further material supports his evidence, then it has little probative value.  Having regard to the length of time this dispute has been continuing and the numerous times in which responsibility for the waterproofing arrangement has been previously examined, I am quite clear that I should not accept in evidence any such further material.
  14. [96]
    I do not agree with the submissions made on the builder’s behalf that the photographs on pages 1024 and 1025 show flashings fabricated and installed as per the detail drawing in the submissions.
  15. [97]
    It is said that the architect did not give a defects list that the flashings details had been constructed contrary to her drawings or contrary to the site meeting of 9 July 2017, but as said in submissions in reply this was not raised at the hearing so it is difficult to rely on this.  There is probably a simple explanation for this, such as the owners’ termination of the contract.  Practical completion was never reached.

Is the installation defective?

  1. [98]
    This needs to be tested at the date of the tribunal hearing. 
  2. [99]
    It is a proven fact from the history of the water ingress and remedial work (above), that it is only the application of silicone sealant which has made the window and cladding installation watertight.
  3. [100]
    It is said in final submissions filed on the builder’s behalf that in an email the owners supported the application of silicone sealant to the ends of the cladding where it joined the box sections.[42]  It seems to be said that therefore they take some responsibility for the use of silicone sealant to make the arrangement watertight.  I do not agree this is the effect of the email bearing in mind that the windows had by that time been leaking for 5 months and were still leaking after many attempts to remedy this.
  4. [101]
    The preferred expert evidence is that it is well recognised in the industry that silicone sealant is not a long-term solution and does not satisfy the usual expectation that the waterproofing arrangements would be sufficiently durable, bearing in mind that the expected life of the building is 50 years.[43]  The experts pointed to strain put on the sealant by thermal effects.  Although the sealant is warranted not to deteriorate for 15 years because of the ‘effects of weathering, UV and sunlight’,[44] this does not include such thermal effects which would cause the substrate to move and which would put strains on the sealant.  During the experts’ concurrent evidence Mr Boyle expressed the view that in this installation the sealant’s warranty period could not be relied on as the true life of the product, and I think this view is correct.
  5. [102]
    I do not agree with the point made on the builder’s behalf that because the BCA does not require that materials and construction methods have any particular durability, therefore durability is irrelevant.[45]  The expert evidence for the respondents which I prefer, was that that in a newly built house, waterproofing arrangements in external walls should be sufficiently durable.
  6. [103]
    I do not agree with the point made on the builder’s behalf that because the sealant which is keeping the external walls watertight is accessible and therefore can be renewed as necessary, it is sufficiently durable if it lasts for 15 years, which is its warranted lifespan.[46]  This point was put in cross examination in the hearing, and has been repeated in the final written submissions.[47]  It is said that the arrangement would work in the long term because the cladding would have to be cleaned manually every six months to maintain its warranty and so the opportunity could be taken at that time to check the sealant and renew it if necessary. 
  7. [104]
    In fact, the recommended maintenance of Colorbond steel of this type installed in areas where it would not be automatically washed by rainwater (such as where it was used on a roof) is a hosing down at least every 6 months.  It was only if this is not effective that manual cleaning would be needed.[48]  It is not suggested that hosing down would provide an opportunity to inspect the sealant.
  8. [105]
    In any case, in reality, as the expert evidence showed, this is not a practical solution at all, bearing in mind the height of the building, the fact that in all likelihood the owners would not be concerned to maintain the warranty on the cladding in that way having regard to the expense, the different tasks and skills which would be needed for the two jobs, and the chance that the sealant could be damaged by the cleaning process if it were to be done manually.[49]
  9. [106]
    On the evidence that I have heard and seen, I have no doubt that the sealant is bound to fail as a waterproofing arrangement in the short rather than the long term.  During the experts’ concurrent evidence Mr Barrett opined that the arrangement would break down after about 5 years from installation, and I think this is correct.  There is evidence that it is already failing.  The owners inspected the sealed areas and took photographs about mid-2022 showing the sealant to having come away from the substrate in some areas where the sealant was applied at the join of the cladding ends and the box sections around the windows.[50]  A subsequent inspection by the builder on 7 July 2022 however, found no deterioration of the sealant at least in what was said to be relevant areas.[51]   However, on 28 July 2022 by Mr Barrett reinspected the property and confirmed, as had been seen by the owners, although the majority of the silicone seals were performing, it had torn in certain areas.[52]  There was however, no visible evidence of water ingress.
  10. [107]
    The preferable expert evidence is clear that the window flashings fitted to the windows as delivered should have been used in the way intended by extending it over the body wrap and into head and sill flashings, probably also with the use of closed cell foam infills, and with limited use of flexible sealant to prevent water ingress.  This would have been possible if the windows had been installed in the window openings after the building wrap and before the installation of the box sections and cladding in the usual way.  Had that been done, the waterproofing arrangement would not depend on silicon sealant in areas where thermal movement will occur and exposed to the elements as is the case.
  11. [108]
    It was the builder’s responsibility to organise the work in such a way that the above could be done.  Despite the difficulties here in maintaining the usual sequence because of the delay in the delivery of the windows, the builder could have used the available contractual mechanism to maintain the correct sequence to optimise the installation.
  12. [109]
    It was because the correct installation sequence was not followed that the waterproofing arrangement relies on the use of silicon sealant which is not recognised as an appropriate long-term solution.  It is clear that the installation is defective.
  13. [110]
    It is said in final submissions filed on the builder’s behalf however, that there are examples of manufacturer’s recommendations which do not include the use of the flashing membrane attached to the windows.[53]  It seems to be implied therefore that there was no defect in the installation because it complied with such recommendations.  The difficulty is that there was water ingress until sealant was applied and so whatever arrangement was in place is not sufficient.
  14. [111]
    I have taken into account the letter dated 9 April 2018 issued by the manufacturers of the windows, Bradnams,[54] in which they say that contingent on the work being sealed correctly the installation should be acceptable.  The difficulty with the letter is that it is an opinion expressed by a sales representative and there is nothing to show that the writer’s opinion should be accepted instead of the that of the experts who gave evidence in the hearing.
  15. [112]
    I have also taken into account a view expressed by the Business Development Manager of Fielders, a manufacturer of similar cladding to that used, in an email of 29 April 2019.[55]  In that email it was said that the use of silicone is appropriate.  But there is nothing to show that the manager had any particular expertise in the area or was aware of the method of construction actually used by the builder.

Was the Building Code of Australia complied with?

  1. [113]
    I answer this in the negative because Performance Requirement P2.2.2 was not satisfied.  It was not satisfied because the only way it could be satisfied would be if the window flashings (attached to the windows as delivered) had been securely fixed at 25 mm under the cladding and extended over the ends and edges of the framing of the opening, or otherwise that the windows were fixed into the building using recognised building practices.  Neither of these things was done.
  2. [114]
    Although with respect to the second item in the direction to rectify there was very little evidence adduced in the hearing about the use of closed cell foam infills, I was told that they would normally provide waterproofing at the interface between the cladding and the flashing, but with the construction here there was no such interface.  On my understanding of this, had the windows been installed before box sections around the window and before the cladding, then the closed cell foam infills could have been used.
  3. [115]
    Again therefore, it is my finding that this rendered the work defective.

Other matters raised in submissions

  1. [116]
    In final written submissions made on the builder’s behalf it may be being said that the way in which the hearing bundle was prepared by the parties prior to the hearing resulted in procedural unfairness.  It is true that in the hearing some documents were identified which should have been in the hearing bundle and were not.  However, in the hearing these difficulties were resolved and I am satisfied that ultimately there was nothing unfair arising from the hearing book.
  2. [117]
    In final written submissions filed on the builder’s behalf it is said that the QBCC cannot give a direction to rectify because the complaint was that there was water ingress and in fact there is none.  I do not think this submission works because, as submitted in reply on QBCC’s behalf, section 72 of the QBCC Act enables the QBCC to give a direction to rectify if of the opinion that building work is defective or incomplete.  This could be done even if there was no complaint at all.  If there is a complaint, it is clear from the statutory wording that the power to give a direction to rectify is not constrained by the way the complaint is worded.

Issues with the precise wording of the direction to rectify

  1. [118]
    The direction to rectify briefly stated the reasons why the work was defective and on the builder’s behalf these reasons are challenged.  It seems to be said that because the reasons are wrong, the decision to give a direction to rectify should be set aside.[56] 
  2. [119]
    I agree that where the direction to rectify refers to the work not being done in accordance with manufacturer’s recommendations this is not completely accurate because there were no such recommendations applicable to the materials supplied as used in this particular design. 
  3. [120]
    A point is also made about the certificates.  The direction to rectify requires the builder to provide all certificates after rectifying the work.  In written final submissions on the builder’s behalf it is said that since the construction contract was terminated, the builder has no obligation to provide the certificates or documents to enable the certifier to issue the Form 21 Final Inspection Certificate.[57]  Whether the builder currently has a contractual responsibility to ensure that the certificates are obtained was not fully argued in the hearing or in subsequent submissions.
  4. [121]
    The question arises therefore whether, in producing the correct and preferable decision, it would be right for the tribunal to confirm a decision to give a direction to rectify where the direction to rectify which was given was not completely accurate or may have required work to be done beyond the actual contractual obligation.
  5. [122]
    I think the answer to this that the decision under review is not the direction to rectify itself, but the decision to give a direction to rectify.  And when producing the correct and preferable decision, if the tribunal confirms a decision to give a direction to rectify, the tribunal is limited to consideration of certain elements and is unable to draft the terms of the direction to rectify which should be given.  In turn, in such a decision, the tribunal is not endorsing the terms of the direction to rectify which was in fact, given.
  6. [123]
    This is shown by an examination of the ‘decision’ under review.  It is clear from sections 17 and 19 of the QCAT Act that the tribunal only has jurisdiction to review ‘reviewable decisions’ as prescribed by enabling Act. 
  7. [124]
    The reviewable decision here is in section 86(1)(e):[58]
  1. (e)
    a decision to give a direction to rectify or remedy or not to give the direction; 
  1. [125]
    It is notable that the reviewable decision is referred to as ‘a direction’ rather than ‘the direction’ in section 86(1)(e), and ‘the direction’ at the end of this paragraph seems to refer back to the words ‘a direction’.  This is consistent with the fact that the legislation does not require the tribunal to have in mind any particular form of words for the direction when conducting its review.
  2. [126]
    What the tribunal must decide when reviewing a decision to give a direction to rectify or not to give one, is clear from section 72 of the QBBC Act and is (a) whether the building work is defective or incomplete or that consequential damage has been caused by, or as a consequence of carrying out building work (b) which person or persons carried out the building work (as widely defined in section 71I of the Act) and (c) whether in the circumstances a direction to rectify should be given to that person or persons.
  3. [127]
    These decisions would then be reflected in the direction to rectify which is given to the person.  A direction to rectify needs to contain:
    1. (a)
      The identity of the building work that is defective or incomplete or the consequential damage which needs to be remedied.[59]
    2. (b)
      The person or persons who must comply with the direction.[60]
    3. (c)
      A period for compliance with the direction.[61]
  4. [128]
    There is no requirement to give reasons in the direction to rectify why the work is defective or incomplete.  On an internal review of a decision to give a direction to rectify, reasons must be given in a review notice;[62] on an external review in the tribunal, reasons must be given either orally or in writing.[63]  Therefore, at least on an internal review or external review, the reasons why the work is defective or incomplete would be given separately from the direction to rectify.
  5. [129]
    It follows that in producing the correct and preferable decision, the tribunal may confirm a decision to give a direction to rectify without any concern that the direction to rectify which was given was not completely accurate or may have required work to be done beyond the actual contractual obligation.
  6. [130]
    A similar question has arisen in the tribunal’s blue card jurisdiction.  A strict approach to what is reviewable and what is not reviewable, and therefore what is and what is not before the tribunal, has been considered in tribunal case law.  The reviewable decision is expressed in the relevant statute to be whether or not there is an ‘exceptional case’.[64]  It is only that decision which can be reviewed by the tribunal and having reviewed whether there is an exceptional case the tribunal has no power to give the resulting positive notice of a blue card or to direct the relevant department to do so.[65]
  7. [131]
    In contrast, a ‘reviewable matter’ within the Judicial Review Act 1991 (Qld), providing for administrative reviews by the Supreme Court, is very widely defined, and includes not only the decision itself but also any consequential determination, requirement or direction.[66]  Section 30 of the 1991 Act permits the court to quash or set aside a decision, or a part of a decision and this has been held therefore to be a power to amend the wording of a decision if after the amendment the remainder of the decision can stand on its own: Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243, Applegarth J, [63].
  8. [132]
    The powers of the tribunal on a review of a decision to give a direction to rectify are quite different from the powers of the Supreme Court under the Judicial Review Act.
  9. [133]
    It follows therefore, that the points made on the builder’s behalf about deficiencies in the direction to rectify which was given to the builder do not assist the tribunal to produce the correct and preferable decision in this review.

Conclusion

  1. [134]
    The installation of the windows and cladding of the external walls at the relevant property is defective because its waterproofing relies heavily on the use of silicon sealant in areas where this is likely to break down in the short term.
  2. [135]
    It is fair for the QBCC to give a direction to rectify because this defect was the consequence of the builder’s decision to install the windows after the box sections and cladding rather than the other way round, followed by the decision to rely on silicone sealant for waterproofing rather than to dismantle the installation and start again.
  3. [136]
    I confirm the QBCC’s decision to give to the builder a direction to rectify the installation of the windows and cladding of the external walls at the relevant property.

Footnotes

[1]  This is how the tribunal should approach such applications for review: section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

[2]  This differed slightly therefore from the expectation in the relevant practice direction that the joint report shall be the evidence of the experts: PD No 4 of 2009, [18].

[3]  Direction made on 27 July 2022.

[4]  Hearing bundle, page 914.

[5]  Mr Boyle during the experts’ concurrent evidence.

[6]  Joint experts report, evidence of Mr Barrett and Mr Boyle, hearing bundle page 1168.

[7]  Clause 15 of the construction contract.

[8]  Clause 24.

[9]  Combined effect of section 72(1)(a) and 72(2).

[10]  Section 72(3).

[11]  Section 72(5).

[12]  Schedule 2 (dictionary).

[13]  Section 115B(1)(b).

[14]  The approval was by the Queensland Building and Construction Commission Regulation 2003 (Qld), and required by section 115B(2) of the QBBC Act.

[15]  And therefore within the definition of non-structural defective building work in the definitions of the Rectification of Building Work Policy.

[16]  And therefore was within the examples of ‘defective building work’ in the Rectification of Building Work Policy.

[17]  This was agreed at the hearing.  This differs from the agreement reached in the experts’ conclave when it was agreed that the 2016 versions of the code applied.  I give leave for such a departure as required by the tribunal’s Practice Direction 4 of 2009, [20].

[18]  Clause 1.0.4 of the BCA and section 14(2) of the BA.

[19]  Clause 1.0.5 of the BCA ‘Meeting the Performance Requirements’.

[20]  Confirmed by Mr Rickerby in his witness statement of 17 February 2020, [7(c)(vi)] and [7(c)(xv)], and written final submissions, [59].  An Alternative Solution is now called a Performance Solution.

[21]  Page 946 of the hearing bundle.

[22]  This is shown by the email from Fielders on page 166 of the hearing bundle.

[23]  Page 180 of the hearing bundle.

[24]  Page 1200 of the hearing bundle.

[25]  Page 1241 of the hearing bundle.

[26]  Page 494 of the hearing bundle.

[27]  These installation details can be found in the Mr Barrett’s report for the QBCC’s internal review on pages 345, 353 and 354 of the hearing bundle.

[28]  As required by Deemed-to-Satisfy Provision 3.5.3.6.

[29]  As required by Deemed-to-Satisfy Provision 3.6.0 and Clause 7.2 of AS 2047.

[30]  Not therefore requiring an Alternative Solution.  Mr Rickerby witness statement of 17 February 2020, [7(c)(viii)].

[31]  As required by Deemed-to-Satisfy Provision 3.5.3.6.

[32]  As required by Deemed-to-Satisfy Provision 3.6.0 and Clause 7.2 of AS 2047.

[33]  And therefore was within the definition of non-structural defective building work in the definitions of the Rectification of Building Work Policy.

[34]  Section 3(a) and 3(b).

[35]  Version RBC—L2 v07-2015.2.

[36]  Schedule 1B section 21.

[37] Schedule 1B section 22.

[38]  Schedule 1B section 25.

[39]  Exhibit 3.

[40]  Exhibit 2.

[41]  3 October 2019, [12].

[42]  Email of 5 March 2018.

[43]  Mr Barrett’s view expressed during the experts’ concurrent evidence.

[44]  Warranty document in hearing bundle, page 665, which Mr Rickerby confirms was the sealant used – witness statement 17 February 2020, [8].

[45]  Mr Rickerby witness statement of 17 February 2020, [8].

[46]  Mr Rickerby witness statement of 19 May 2021, [16(d)].

[47]  [63].

[48]  Recommendation of BlueScope in Mr Barratt’s re-inspection report dated 1 August 2022.

[49]  As suggested by Mr Barratt in his re-inspection report dated 1 August 2022, and during the experts’ concurrent evidence.

[50]  Pages 856 to 893, and witness statement of 28 June 2022.

[51]  Pages 196 to 212 of the hearing bundle.

[52]  Inspection report dated 1 August 2022.

[53]  Fielder’s recommendation for the installation of the Prominence Cladding, and Lysaght Manual pages 713 and 57, 58 of the hearing bundle respectively.

[54]  Page 135 of the hearing bundle.

[55]  Page 166 of the hearing bundle.

[56]  Written final submissions made on the builder’s behalf dated 25 August 2022, [39] to [59] and [69].

[57]  [66].

[58]  Because in this application this is a review of an internal review decision, this is reached via section 86E of the QBCC Act.

[59]  Since it is an offence to fail to rectify or remedy this must be stated in the direction to rectify: section 73 of the QBCC Act.  The direction can require demolition and recommencement of the building work if necessary: section 72A(2).

[60]  This requirement seems to be implicit from the terms of section 72(2) of the QBCC Act.  By section 72A(1) the direction could be given to more than one person and the persons who are taken to have carried out the building work is widely defined in section 71I.

[61]  This would seem to be expected in the direction to rectify because there are consequences of non-compliance.  The time can be extended: section 72B of the QBCC Act.  Section 72(4) also seems to require this period to be stated in the direction.

[62]  Section 86D of the QBCC Act.

[63]  Section 121(3) of the QCAT Act.

[64]  Section 353 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

[65] Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407, [13], Member Howard; LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244, [8], Member Guthrie.

[66]  Sections 4 to 6 of the 1991 Act.

Close

Editorial Notes

  • Published Case Name:

    Buildmaster Pty Ltd v Queensland Building and Construction Commission and ors

  • Shortened Case Name:

    Buildmaster Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 380

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    14 Oct 2022

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
Goodsell Earthmoving Pty Ltd v Coordinator-General(2019) 2 QR 383; [2019] QSC 243
2 citations
Jump To
Cite 1 - [2019] QSC 243
Cite 2 - [2019] QSC 243
LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 244
1 citation
Jump To
Cite 1 - [2017] QCAT 244
Mission Australia [2017] QCAT 24
1 citation
Jump To
Cite 1 - [2017] QCAT 24
Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407
2 citations
Jump To
Cite 1 - [2016] QCAT 407
Cite 2 - [2016] QCAT 407

Cases Citing

Case NameFull CitationFrequency
Horsfall v Queensland Building and Construction Commission & S Watson Pty Ltd t/as Eclipse Patios and Extensions [2023] QCAT 3462 citations
1

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