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  4. Judge v Queensland Building and Construction Commission - [2023] QCAT 252

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Judge v Queensland Building and Construction Commission[2023] QCAT 252

Judge v Queensland Building and Construction Commission[2023] QCAT 252

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Judge v Queensland Building and Construction Commission [2023] QCAT 252

PARTIES:

jasmine judge

(applicant)

v

queensland building and conStrUction commission

(respondent)

APPLICATION NO/S:

GAR291-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 June 2023

HEARING DATE:

2 February 2023

HEARD AT:

Townsville

DECISION OF:

Member Pearce

ORDERS:

  1. The decision of the respondent is confirmed. The application is dismissed.
  2. Each party is to bear their own costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where direction to rectify not given

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Statutory Instruments Act 1992 (Qld)

APPEARANCES &

REPRESENTATION:

Applicant:

Jasmine Judge, self-represented

Respondent:

Travis Schmitt Counsel for the Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

  1. [1]
    These proceedings concern the Commission’s decisions to not give a direction to not give a direction to rectify to John Maxwell Seaforth Gray (The contractor) in relation to work carried out at 16 Sapphire Court, Deeragun. That property is owned by the Applicant. The Applicant says that the Commission erred, and that the Tribunal should set aside that decision.
  2. [2]
    The decision by the Commission was made on 7 April 2021. The applicant filed their Application on 5 May 2021.

The Tribunal’s review jurisdiction

  1. [3]
    The Tribunal has jurisdiction to deal with maters it is empowered to deal with under an enabling Act.[1] In the present matter the enabling Act is the QBCC Act.[2]
  2. [4]
    The final orders that can be made by the Tribunal, in exercising its review jurisdiction are as follows:[3]
  1. (a)
    The decision is confirmed or amended; or
  2. (b)
    The decision is set aside and substituted with the Tribunal’s own decisions; or
  3. (c)
    The decimos is set aside and the matter is returned to the Commission to reconsider the decision with Directions the Tribunal considers appropriate.
  1. [5]
    The Tribunal is required to hear and decide a review of a reviewable decisions by way of a fresh hearing on the merits for the purpose of producing the correct and preferable decision.[4]
  2. [6]
    While there is no formal onus of proof in administrative review proceedings, it is settled that the applicant bears a practical burden of adducing evidence sufficient to satisfy the Tribunal that the relief sought should be granted.[5]
  3. [7]
    A person affected by a reviewable decision may apply to the Tribunal for a review of the decision.[6]

Direction to Rectify

  1. [8]
    A decision to give or not to give a direction to rectify (DTR) is a reviewable decision.[7]
  2. [9]
    The objects of the QBCC Act include to provide remedies for defective building work and to ensure the maintenance of proper standards in the building industry.[8]
  3. [10]
    Part 6 of the QBCC Act is entitled “Rectification of building work” and comprises section 71H to 74 (inclusive).
  4. [11]
    In order to give a DTR, pursuant to section 72 of the QBCC Act, the Commission must be satisfied that:
  1. (a)
    “building work” has been carried out;
  1. (b)
    The person is responsible for the work;
  2. (c)
    The building work is defective and/or incomplete; and
  3. (d)
    It is fair in all the circumstances for the Commission to exercise the discretion to give a DTR.
  1. [12]
    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 DTR.[9]
  2. [13]
    The term “consumer” is defined to mean “a person for whom building work is carried out but does not include a building contractor for wo building work is carried out by a subcontractor”.[10]
  3. [14]
    A person who carried out the building work is relevantly taken to include:[11]
  1. (h)
      a building contractor by whom the building work was carried out…
  1. [15]
    The term “building work” is defined as, inter alia:[12]
    1. (a)
      The renovation, alteration, extension, improvement, or repair of a building, or

…

  1. (e)
     any site work (including the construction of retaining structures) related to work of a kind referred to above; or
  1. [16]
    Schedule 1 od the QBCC Regulation excludes certain work from the definition of “building work”.
  2. [17]
    The term “defective” is broadly defined as follows:[13]

Defective in relation to building work, including faulty or unsatisfactory.

  1. [18]
    The “Rectification of Building works Policy” (Rectification Policy” was approved by Schedule 1A of the Queensland Building and Construction Commission Regulation 2013 and took effect on 10 October 2014.[14]
  2. [19]
    Under sections 7 and 9 of the Statutory Instruments Act 1992, the Rectification Policy is a statutory instrument that is subordinate legislation.
  3. [20]
    In deciding whether to require the rectification or building work, the Commission has regard to the Rectification Policy.

BACKGROUND DOCUMENTS AND FINDINGS OF FACT

  1. [21]
    At all material times, the Contractor held QBCC Licence no: 1226763 in the classes of “Builder – Low Rise” and “carpentry”.
  2. [22]
    On 17 February 2021, the Commission received a Residential and Commercial Construction Complaint Form and attachments from the Applicant against the contractors.
  3. [23]
    The complaint contained the following relevant information:
  1. (a)
    Applicant entered into a construction contract with the contractor in the amount of $188,452.00.
  1. (b)
    The work under the contract was paid in full and completed on 23 April 2020.
  1. [24]
    Further information in support of the complaint was received via email dated 9 March 2021.
  2. [25]
    The property was inspected on 31 March 2021 by building inspector Kevin Cameron. The building inspector completed a report.
  3. [26]
    ON 7 April 2021 the Commission made a decision not to issue a DTR.

The issues in dispute

  1. [27]
    The issues outlined by the applicant are:
  1. (a)
    Kitchen cupboards and drawers need to be fixed and cleaned and crack in ceiling;
  1. (b)
    Issues with air-con remote not fixed to walls, broken switch, dirty toles;
  2. (c)
    Painting contains drips, chips, and blue tags;
  3. (d)
    Lock on bathroom door is broken and vanity mirror is damaged;
  4. (e)
    Lock on toilet door broken and all locks in house s=do not work as they should;
  5. (f)
    Replace laundry cupboard due to faulty install of laundry plumbing. Water damage evident. Laundry plumbing needs to be fixed. Fix seal and paint laundry (space between cupboards on floor). Seal benchtop to wall. Holes in Laundry cupboards not covered.
  6. (g)
    Fit air-con remotes, paint spill and cracks in family/laundry room;
  7. (h)
    Fit air-con remotes and broken bedroom locks;
  8. (i)
    Air-con remotes not fitted to wall;
  9. (j)
    External house not cleaned;
  10. (k)
    Air con remotes not fitted.
  1. [28]
    The applicant withdrew items 10 and 11 at the on-site inspection.
  2. [29]
    It is not in dispute that items 1,3,4,5,6,7,8 is defective building work.
  3. [30]
    The work can be described generally as renovation work to the lower level of an existing property, which constitutes “Building work” under the QBCC Act.[15]
  4. [31]
    It was found that Items 2 and 9 were not building works.
  5. [32]
    In relation to the kitchen items, in the hearing it was argued that the faults with the kitchen were due to rough handling. The contractor gave evidence that he had fixed the items previously but due to rough handling or the children standing on the lower drawers the draw faces had come off. The QBCC report indicates there was evidence of “screws appeared to be forced out of the housing”.
  6. [33]
    A number of items were found to not be “building work” for example the air-conditioner remote cradles. It was argued that the demolition of the house was completed by an different contractor. This was argued during the hearing. Regardless of the outcome installing the cradles is not building work.
  7. [34]
    Items specified such as cleaning of paint spatters were dealt with simply as not being building works – cleaning is not building works.
  8. [35]
    The applicant had also raised the issue of the lock not working on the bathroom door. The QBCC inspection found the snib to be bent but not due to building work and that the lock worked in both the locked and unlocked position.
  9. [36]
    The applicant raised complaints about the silvering along the edge of the vanity mirror. The inspection for the QBCC report revealed this is ageing of the mirror and nothing to do with defective building work.
  10. [37]
    The applicant complained all door locks installed in the se didn’t work the QBCC inspection for the snibs bent down but determined this to not be from defective building work. It was also found the door handles and locked worked in both locked and unlocked positions.
  11. [38]
    The applicant complained regarding the laundry however when inspected a garden hose was found the be installed in the drain. No consensus regarding this matter could be reached. The contractor advised the applicant had placed the garden hose in the laundry cabinetry causing the damage which the applicant denied.
  12. [39]
    There was also dispute regarding the installation of the applicant’s oven and microwave. No consensus could be reached regarding this item. The contractor gave evidence that he advised the owner to install it a certain way and she refused. The applicant denied this. The installation of this item was found to not be building work.
  13. [40]
    Overall, there were some areas of contention that could not be resolved during hearing. Many items complained of were not to be considered building works. In considering this matter the actional must place itself in the position of the decisions maker and use all available information to make a decision. This also includes using the Rectification Policy to consider what is reasonable in the circumstances. In the totality of the circumstances, it would not be reasonable to issue a direction to rectify to the contactor.

Orders

  1. [41]
    The decision of the respondent is confirmed. The application is dismissed.
  2. [42]
    Each party is to bear their own costs.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), section 9. (QCAT Act).

[2]  QCAT Act, section 17; QBCC At, sections 86(1)(e) and 86E.

[3]  QCAT Act Section 24(1).

[4]  QCAT Act, section 20.

[5] Doolan v Queensland Building and Construction Commission [2017] QCAT 58, at [13]-[14]; Body Corporate for Parkwood Villas Community Titles Scheme 25893 v Queensland Building and Construction Commission [2015] QCAT 59, at [67].

[6]  QBCC Act, section 87.

[7]  QBCC Act, section 86(1)(e).

[8]  QBCC Act, section 3(b).

[9]  QBCC Act, section 72(5).

[10]  QBCC Act, section 71(1).

[11]  QBCC Act, section 71(1).

[12]  QBCC Act Schedule 2.

[13]  QBCC Act, Schedule 2.

[14]  Subordinate legislation 2014 No 233.

[15]  QBCC Act, Schedule 2.

Close

Editorial Notes

  • Published Case Name:

    Judge v Queensland Building and Construction Commission

  • Shortened Case Name:

    Judge v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 252

  • Court:

    QCAT

  • Judge(s):

    Member Pearce

  • Date:

    19 Jun 2023

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
Body Corporate for Parkwood Villas Community Titles Scheme 25893 v Queensland Building and Construction Commission [2015] QCAT 59
1 citation
Jump To
Cite 1 - [2015] QCAT 59
Doolan v Queensland Building and Construction Commission [2017] QCAT 58
1 citation
Jump To
Cite 1 - [2017] QCAT 58

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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