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Pearce v Queensland Building and Construction Commission[2023] QCAT 71

Pearce v Queensland Building and Construction Commission[2023] QCAT 71

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Pearce v Queensland Building and Construction Commission [2023] QCAT 71

PARTIES:

CHRISTIAN PEARCE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR297-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 February 2023

HEARING DATE:

On The Papers

HEARD AT:

Brisbane

DECISION OF:

Member LeMass

ORDERS:

  1. The reviewable decision of not to issue a direction to remedy consequential damage is set aside and substituted with the following decision:
  2. The Decision is set aside and the Respondent will direct the contractor to rectify the Consequential Damage to the adjoining site.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION NOT TO ISSUE A DIRECTION TO RECTIFY – whether “consequential damage” within the meaning of s 71H – whether a direction to remedy consequential damage should be issued

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 71H, s 86

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

Taki v Queensland Building and Construction Commission [2021] QCAT 46 [19]

Commissioner for Railways (NSW) v Agalianos [1955] HCA 27

Lawless v Queensland Building and Construction Commission [2019] QCAT 32

Commonwealth Bank of Australia v Reeve [2012] FCAFC 21

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

Relevant provisions

  1. [1]
    The provisions governing the rectification of building work and the remediation of consequential damage are contained in Part 6 of the QBCC Act. Section 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—

(a) for building work that is defective or incomplete—rectify the building work;

  1. (b)
    for consequential damage—remedy the damage.

(2A) The commission must make the direction no later than the end of the period prescribed by regulation.

  1. (3)
    In deciding whether to give the direction, the commission may take into consideration all 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. (4)
    The period stated in thedirection must bethe period prescribedby regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period—
  1. (a)
    a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or
  1. (b)
    the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.
  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.

Example for subsection (5)—

The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner’s home or because an owner’s failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.

  1. (6)
    The commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work.
  1. (7)
    In subsection (3), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work.
  1. (8)
    To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J.
  1. [2]
    Section 71H defines “consequential damage” and provides:

71H WHAT IS CONSEQUENTIAL DAMAGE

  1. (1)
    "Consequential damage" is damage—
  1. (a)
    caused by, or as a consequence of, carrying out building work at a building site (the "relevant site"), regardless of any intention, negligence or recklessness of the person carrying out the work; and
  1. (b)
    to a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.
  1. (2)
    In this section—

"building work" includes any work prescribed by regulation.

"damage", to a residential property, includes any of the following—

  1. (a)
    the impairment of drainage at the property;
  1. (b)
    the undermining of a fence, retaining wall or other structure along the boundary of the property;
  1. (c)
    the compromising of the structural integrity of a building, swimming pool or wall on the property;
  1. (d)
    the cracking, lifting or cratering of a driveway or pathway on the property;
  1. (e)
    water penetration of the property;
  1. (f)
    infestation of the property by termites.
  1. [3]
    A decision not to issue a direction to rectify is a reviewable decision under s 86(1)(e) of the QBCC Act. Section 86E(b) has the effect of making an internal review decision of a decision under s 86(1)(e) also reviewable.
  1. [4]
    Section 87 provides that a personaffected by a reviewable decision may apply for review.
  1. [5]
    The purpose of a review is to make the correct and preferable decision.[1]
  1. (1)
    In a proceeding for a review of a reviewable decision, the tribunal may—
  1. (a)
    confirm or amend the decision; or
  1. (b)
    set aside the decision and substitute its own decision; or
  1. (c)
    set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate REASONS and Facts
  1. [6]
    This is an application to Review a decision of the Queensland Building and Construction Commission (QBCC) not to give a direction to attend to alleged damage caused by adjacent building works.
  1. [7]
    After the 16 November 2020 the Contractor was engaged by the Fairway Body Corporate to complete remedial works to the foyer and stairs of the complex. This may have been as a consequence of the Townsville floods of 2019. This work involved the removal of tiles and presumably grinding of the slab as substantial dust was anticipated. To this end the building was evacuated and the doors of apartments including the Applicants were taped up.
  1. [8]
    The Applicant returned to the property on the 21st November 2020 to find substantial dust penetration covering the physical surfaces and the carpet in the Applicants apartment.[2]
  1. [9]
    The Body Corporate and the Contractor pursued an insurance claim for the cleaning of the Apartment, however the investigation and scope of work proposal by the contractor, whilst acknowledging substantial damage requiring some $9000 cleaning also contained many self-serving statements to the effect that the Applicant having left windows open caused dust to be moved by negative pressure into the apartment.[3]
  1. [10]
    The contractor arranged for a specialist asbestos cleaner to quote for dust removal and to take air quality samples at the end.[4] The insurer ultimately declined the cover as requested by the contractor and no cleaning took place.
  1. [11]
    The Applicant left the apartment, which he was renting with his child on the 23 November 2020 as being unliveable to rent alternative accommodation paying both rents and did not ever return. His lease ending some seven months later on the 11 July 2021, the residential Bond used for partial remediation. He has suffered substantial losses.
  1. [12]
    The Applicant made formal complaint to the Respondent who initially concluded that the work was not Building work.
  1. [13]
    The Respondent submits:[5]

(a) On or about 15 January 2021, the Applicant made a Residential and Commercial Construction complaint to the Commission in relation to the alleged "public health risk caused by demolition by-product, being silicon dust, that was created by the Contractor who did not appropriately contain the dust within its work site.

  1. [14]
    On 11 February 2021, the Commission wrote to the Applicant informing him it would not be issuing a direction to rectify to the Contractor.
  1. [15]
    On 19 February 2021, the Applicant sought internal review of the Commission's decision not to give a direction to rectify to the Builder.
  1. [16]
    Between 11 March 2021 and 7 April 2021, the Commission and the Applicant exchanged various communications in relation to the internal review.
  1. [17]
    On 16 March 2021, the Body Corporate for the 'Fairway Apartments' provided various documents to the Commission in relation to the Applicant's internal review.
  1. [18]
    On 8 April 2021,14 Ms Nancy Alexander, Manager, Internal Review for the Commission, made the Decision, being the Decision not to give a direction to rectify or remedy to the Contractor for the reasons set out in the Decision notice.

The Decision

  1. [19]
    The Decision notice outlines the Commission's reasons for the Decision in detail. The Decision notice is Annexure SOR-8 of the Statement of Reasons.
  1. [20]
    In brief, the Commission determined, with reference to the relevant sections of the QBCC Act, together with section 14A(l) of the Acts Interpretation Act 1954 (Qld) (AIA Act), that:

(a) the building work performed by the Contractor was not itself, defective building work, in that the work pertaining to the replacement of the foyer tiles in the common area was not 'faulty or unsatisfactory' under Schedule 2 of the QBCC Act, nor was there evidence that the work met the definitions of 'defective building work' under the Defects Policy; and

(b) the complaint item in issue was not 'damage' under section 71H(2) of the QBCC Act and therefore, could not be 'consequential damage' for which a direction to rectify could be given.

  1. [21]
    It is further noted that a direction to rectify any alleged defective tiling work would not address the Applicant's concerns nor is the Applicant a party to the contract for the building works.
  1. [22]
    It is the Commission's submission that the Decision is the correct and preferable decision.
  1. [23]
    We expand on this submission below with reference to the Applicant's evidence filed on 7 January 2022 and submissions filed on 26 May 2022.

Is the Applicant's complaint item 'consequential damage' or 'damage' under the QBCC Act?

  1. [24]
    The Applicant submits that the alleged damage, being the alleged public health risk caused by the demolition by-product of silicon dust which was created by the Contractor during his completion of the works under the contract, should be accepted as consequential damage under the QBCC Act.

The Respondent contends

  1. [25]
    It is the Commission's submission:

that whilst there is no dispute that the dust was caused by or a consequence of the building work completed by the Contractor at the Property and that the dust affected the Applicant's dwelling and livelihood.

  1. [26]
    However, it is the Commission's submission that the penetration of dust as well as the alleged public health risk are neither consequential damage nor damage under section 71H of the QBCC Act.[6]
  1. [27]
    In determining whether the penetration of dust or the public health risk is consequential damage under section 71H(l) of the QBCC Act, it must first be determined whether they could be considered damage under section 71H(2) of the QBCC Act.
  1. [28]
    It is clear that section 71H(2) does not include the penetration of dust or a public health risk in its specific examples of damage.
  1. [29]
    However, the language used in section 71H(2) of the QBCC Act, being the use of the word "includes" enables the Commission to openly interpret the natureand extent of what may be considered damage. This is because the use of the word "includes" has been held to be expansionary.[7]
  1. [30]
    The Respondent then examines, 14A(1) of the AIA Act which provides that "in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.

Commissioner for Railways (NSW) v Agalianos[8] where Dixon CJ stated that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

Concluding

When considering section 71H of the QBCC Act as a whole, it is the Commission's submission that whilst the examples provided in section 71H(2) of the QBCC Act do not cover the field, they are indeed, illustrative and provide guidance as to the type of damage the section is intended to apply to. These examples all indicate a change to the physical state or structural nature of the residential property in question.[9]

Further

  1. It is the Commission's submission that the penetration of dust and the alleged public health risk does not fall within the nature of the definition of damage provided in the QBCC Act. Further, and in light of the Tribunal's previous interpretation of consequential damage, the Commission submits that the penetration of dust did not change the physical state or structural nature of the dwelling, but rather affected the dwelling at a surface level or aesthetically.
  1. However, in saying that, extrinsic materials can be relied upon to assist in statutory interpretation.
  1. To that end, it is noted that the Applicant has relied upon the explanatory note of the Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014, which states

"the definition of damage is inclusive, concerning the types of damage that the Department wantsto put beyond dispute, rather than definitive."

  1. Whilst the Commission acknowledges that the definition is not definitive, the Commission submits that the alleged dust that has entered the Applicant's property has not caused any change to the physical aspects or structural nature of the property and the penetration of dust is not, contraryto the cases which have adopted a wide interpretation, damage of a nature similar to the damage defined in the QBCC Act.[10]

Findings

  1. [31]
    It is entirely clear that the damage to the Applicants property is a direct and foreseeable consequence of the actions of the contractor and their failure to undertake sufficient mitigation proceedures by properly taping doors to prevent dust ingress.
  1. [32]
    I am satisfied that the presence of the dust was substantial as indicated by Insurance photos.[11]
  1. [33]
    It was dangerous, likely to contain silica material, given the Applicants submission of material from the local council, his actions in leaving the property immediately at substantial cost and further the actions of the contractor in engaging an asbestos expert in the proposed remediation plan and quote. The Respondent did not attend or test. I am satisfied that the damage was not merely asthetic as suggested by the Respondent.
  1. [34]
    To examine the Respondents interpretation of the act they contend that the examples to section 71H(2); These examples all indicate a change to the physical state or structural nature of the residential property in question.[12]
  1. [35]
    The Commission submits that the alleged dust that has entered the Applicant's property has not caused any change to the physical aspects or structural nature of the property and the penetration of dust is not, contrary to the cases which have adopted a wide interpretation, damage of a nature similar to the damage defined in the QBCC Act.[13]
  1. [36]
    As to whether the contention that the examples in the section, indicate a change to the physical state or structural nature of the residential property is correct or in any way helpful I am unsure. However, to conclude, that the dust has not caused any change to the physical aspects … of the property, is incorrect and ignores, contrary to the cases which have adopted a wide interpretation, the relevant Tribunal decisions.
  1. [37]
    The Tribunal case of Taki v Queensland Building and Construction Commission [2021] QCAT 46 [19] makes it clear that the Tribunal rejects the Respondents narrow interpretation of s 71 H(2). At para 19, The use of the word “includes” in a definition has been held to be expansionary, to make clear that the word is not limited to its ordinary meaning. In my view, the list of damage in s 71H(2) is illustrative only of the word defined and is not to be taken as covering its field of operation.[14]
  1. [38]
    Further it expressly distinguishes Lawless[15] as incorrect. I note this is contrary to the interpretation applied by the Tribunal in Lawless v QBCC.[16]
  1. [39]
    There is no logic in examining the plain words of s 71H:
  1. (1)
    "Consequential damage" is damage—
  1. (a)
    caused by, or as a consequence of, carrying out building work at a building Site….
  1. (b)
    to a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.
  1. [40]
    When the contractor knew there would be sufficient dust to justify evacuating the residents and taping the doors to prevent dust ingress, which failed and to arrive at the abstruse conclusion that this is neither Damage nor Consequential Damage to an adjacent site, is not supported by the facts, the words of the section and the current case law.
  1. [41]
    The Decision is set aside and the Respondent will direct the contractor to rectify the Consequential Damage to the adjoining site.

Footnotes

[1]Section 24 QCAT Act.

[2]See photos to the Contractor’s Insurance claim, workman’s boots in dust on carpet and following. Page 143 Respondents submissions.

[3]The Applicant denies this as the inspection was after his return and opening of the windows. Refer to pages 56 to 61 of 751 of the hearing book volume one.

[4]see email Fox 27 Nov 22 to Real Estate with application marked “B”.

[5]para 32 onwards of its final submissions.

[6]Para 44 and 45 of Respondents submissions.

[7]Taki v Queensland Building and Construction Commission [2021] QCAT 46 [19]; Para 47 Respondents submissions.

[8]Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; 92 CLR 390.

[9]My emphasis.

[10]My emphasis.

[11]See above.

[12]See above.

[13]See above.

[14]Commonwealth Bank of Australia v Reeve [2012] FCAFC 21.

[15][2019] QCAT 32

[16][2019] QCAT 32.

Close

Editorial Notes

  • Published Case Name:

    Pearce v Queensland Building and Construction Commission

  • Shortened Case Name:

    Pearce v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 71

  • Court:

    QCAT

  • Judge(s):

    Member LeMass

  • Date:

    14 Feb 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
Commissioner for Railways (NSW) v Agalianos [1955] HCA 27
2 citations
Jump To
Cite 1 - [1955] HCA 27
Cite 2 - [1955] HCA 27
Commonwealth Bank of Australia v Reeve [2012] FCAFC 21
2 citations
Jump To
Cite 1 - [2012] FCAFC 21
Cite 2 - [2012] FCAFC 21
Cooper Brookes ( Wollongong ) Pty Ltd v Federal Commissioner of Taxation (1995) 92 CLR 390
1 citation
Jump To
Cite 1 - (1995) 92 CLR 390
Lawless v Queensland Building and Construction Commission [2019] QCAT 32
3 citations
Jump To
Cite 1 - [2019] QCAT 32
Cite 2 - [2019] QCAT 32
Cite 3 - [2019] QCAT 32
Taki v Queensland Building and Construction Commission [2021] QCAT 46
3 citations
Jump To
Cite 1 - [2021] QCAT 46
Cite 2 - [2021] QCAT 46
Cite 3 - [2021] QCAT 46

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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