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Interlink Developments Pty Ltd v Queensland Building and Construction Commission[2024] QCAT 292

Interlink Developments Pty Ltd v Queensland Building and Construction Commission[2024] QCAT 292

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 292

PARTIES:

Interlink developments pty ltd

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR077-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 July 2024

HEARING DATE:

7 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The decision made by the Queensland Building and Construction Commission on 20 December 2021 that the work undertaken by Interlink Developments Pty Ltd at the direction of the commission (in a direction to rectify dated 18 October 2021) was not to a satisfactory standard, is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the QBCC decided that the builder had not complied with a direction to rectify – where the builder applied for a review of the decision claiming that the direction to rectify was a nullity – whether the tribunal had jurisdiction to find that the direction to rectify was a nullity, and whether it was a nullity

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the QBCC decided that the builder had not complied with a direction to rectify because the work undertaken by the builder at the direction of the QBCC was not of a satisfactory standard – where the direction to rectify described the defect which required rectification very generally – where the tribunal had to identify the precise direction of the QBCC – whether the work done at that direction was of a satisfactory standard

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

Queensland Building and Construction Commission Regulation 1991 (Qld)

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

Orlanski v Queensland Building Services Authority [2011] QCAT 35, Lim v QBCC [2018] QCAT 156

J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269

JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502

McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057

APPEARANCES & REPRESENTATION:

 

Applicant:

Alex Hoare of HWL Ebsworth Lawyers

Respondent:

Brian Maloney as director

REASONS FOR DECISION

  1. [1]
    This is an application for review of a decision made by the Queensland Building and Construction Commission that the builder had not complied with a direction to rectify.
  2. [2]
    The direction to rectify was addressed to the builder Interlink Developments Pty Ltd.  It described the defective work as permitting water to penetrate the building at the front soffit and causing damage, and it referred to manufacturer’s specifications and building codes which had not been complied with.  The direction to rectify required the defective work to be ‘rectified’.
  3. [3]
    Interlink did attend the house and perform rectification work, and its director Mr Malony believed that the rectification work was satisfactory.  QBCC thought otherwise and made the decision that the rectification work was not of a satisfactory standard.  That decision is the subject of this review.  In these reasons I call the decision the ‘non-compliance decision’.
  4. [4]
    One issue which Interlink wishes to raise in this review is that the direction to rectify issued by the commission was ‘non-compliant’, ‘illegal’, ‘corruptly issued’, ‘incorrectly issued’, ‘non-compliant with the QBCC Act’ and that natural justice was not afforded to Interlink.[1]  It is said that if the direction to rectify falls away on this basis then there was no direction of the commission and so the non-compliance decision must also fall away.  At the hearing of this application I described this submission as effectively that the direction to rectify was a ‘nullity’, and I asked for submissions to deal with this question.  I consider this issue in these reasons below under ‘the nullity issue’.
  5. [5]
    Another issue is that the direction to rectify seemed to say that the defect was that the construction permitted water penetration and this is what needed to be rectified.  Hence Mr Maloney assumed that the direction could be complied with by stopping the water penetration, which is what Interlink did.  On that basis Interlink says that it carried out the work undertaken at the direction of the commission (to stop water penetration) to a satisfactory standard.  I consider that issue below under ‘was the building work done at the direction of the commission to a satisfactory standard?’

The nullity issue

  1. [6]
    It is submitted on behalf of the QBCC that the tribunal is unable to examine whether the original decision was beyond the powers of QBCC or was made in breach of natural justice as Interlink asks.  The submissions point out that such matters are matters of ‘judicial review’ under the Judicial Review Act 1991 (Qld) and the tribunal has no jurisdiction under that Act.
  2. [7]
    On behalf of the QBCC, authorities are cited demonstrating that the tribunal’s jurisdiction in an application for review is limited to a review of the decision under review and cannot extend to a review of another decision.[2]
  3. [8]
    It is of course correct that the tribunal has no jurisdiction under the Judicial Review Act, and must restrict itself to a review of the decision under review.  However, the real question here is whether, when conducting a merits review of non-compliance decision the tribunal is able to find that the direction to rectify is a nullity.  The way it would be put is that if the direction to rectify is a nullity, then the correct decision is that there was no failure to comply with the direction to rectify.  It would be said that such a decision was in fact a merits review of the non-compliance decision.
  4. [9]
    I am assisted by the review of authorities in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 (Judge Alexander Horneman-Wren SC, Deputy President) and in JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316 (Member Taylor).  In JM Kelly, an applicant for a review of a direction to rectify submitted that the QBSA did not have jurisdiction to issue the direction.  In JD an applicant for review used the review proceedings to ask the tribunal to decide whether errors were made in the decision making process, rendering the decision unlawful.
  5. [10]
    The question here however, is slightly different from that in JM Kelly and JD.   There is no challenge to the validity of the decision under review before me.  What is challenged is the validity of an earlier decision on which the decision under review relies.  What is being said is that if the earlier decision was a nullity, then the correct and preferable decision under review should be favourable to Interlink. 
  6. [11]
    This is clearly a difficult jurisdictional question, and rather than trying to tackle this without fuller reasoned argument on both sides, the issue can be determined in a different way, by considering whether there is any substance in Interlink’s submissions that the direction to rectify was a nullity.
  7. [12]
    One reason why Interlink says the direction to rectify was a nullity is because the QBCC’s Rectification of Building Works Policy states that a complaint by a consumer must be lodged as soon as possible but no later than 12 months of becoming aware of the defects.[3]  Interlink says that the consumer first noticed the defects on 14 January 2018 and the complaint was lodged on 22 March 2021, more than three years later.[4]  Hence the QBCC could not issue the direction to rectify.
  8. [13]
    This argument does not work, however.  It ignores the provisions of section 72 of the Queensland Building and Construction Commission Act 1991 (Qld) which gives power to the QBCC to issue a direction to rectify if it of the opinion that building work is defective or incomplete.  Subject to a time limit of 6 years and 6 months after the building work concerned, this power exists at all times and does not need a complaint for it to arise.  Hence it is irrelevant that the complaint was made more than three years after the defects were first noticed.
  9. [14]
    Interlink also makes points about the time limits in the version of section 72 of the QBBC Act, and the Queensland Building and Construction Commission Regulation 1991 (Qld) which applied at the time of the direction to rectify of 18 October 2021.[5]  It is said that two time limits required by section 72 were not prescribed in the Regulation.  The first was a time limit in section 72(2A) by which a direction to rectify would have to be given, said to be ‘prescribed by regulation’.  In fact it was not prescribed by regulation at the time, and by 24 November 2021 a new section 72(2AA) had been added making the prescription optional.  The second was a time limit under section 72(4) which was the time by which the rectification work would have to be completed.  This was added in the 10 November 2021 version of the regulation,[6] as 35 days from the day the direction is made.[7] 
  10. [15]
    Interlink relies on McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057 where Dalton J declared that a number of directions to rectify were void because they were posted to the builder and therefore did not provide for a full period of 28 days to rectify as was required by the then version of the Act in section 72(3).  Interlink says that in the same way, the 35 days ‘from the day the direction is made’ prescribed by regulation as from 10 November 2021 actually means 35 days from the date of service.
  11. [16]
    It is correct that at the time of the direction to rectify with which we are concerned, that is 18 October 2021, the two time limits had not been prescribed.  The difficulty for Interlink’s submission is that there is nothing in the provisions showing that prescription of the two time limits were essential to give the direction to rectify validity.  So the direction to rectify dated 18 October 2021 cannot be said to be a nullity because the time limits were not at the time prescribed by regulation as referred to by section 72.
  12. [17]
    There is nothing else in the submissions of Interlink which are capable of making the direction to rectify a nullity.[8]  In so far as Interlink seeks to set aside the direction to rectify because it was unfair and unreasonable,[9] I have no jurisdiction to do this in this review.
  13. [18]
    In these circumstances it is right for me now to consider whether the building work undertaken at the direction of the commission was not of a satisfactory standard.

Was the building work done at the direction of the commission to a satisfactory standard?

  1. [19]
    In order to answer this question it is necessary to identify what building work was done at the direction of the commission.  Once that is identified then it is possible to examine whether it was done to a satisfactory standard.  The building work which was done at the direction of the commission is the building work that was directed by the commission, and which was done by Interlink.
  2. [20]
    The building work that was directed by the commission appears from the direction to rectify.  Since this needs careful analysis, it needs to be set out in full.  It is set out below in the same format in which it was drafted, except that I have highlighted the start of the paragraphs which need to be considered separately.

DEFECTIVE WORK LIST

Work by a licensed contractor is required

Direction to Rectify and/or Complete No. 0108479

made to you, Interlink Developments Pty Ltd, under Section 72 of the

Queensland Building and Construction Commission Act 1991

YOUR ACTION REQUIRED

Interlink Developments Pty Ltd, you must ensure:

  1. The following defective or incomplete building work is rectified.
  1. All work is in compliance with the Building Act 1975.
  1. All certificates are provided against statutory requirements (copies to be provided to owners and Queensland Building and Construction Commission).
  1. All areas disturbed as a result of the rectification works are made good.
  1. Work is completed by 22 November 2021.
  1. In accordance with Section 72B of the Queensland Building and Construction Commission Act 1991 you may apply to the QBCC for an extension of time to comply with the Direction. You must apply in writing, before 22 November 2021 and state the reasons the extension is needed.

1 The installation of the front facade rendered cladding blueboard system (FC) (garage opening front) has not been installed to the manufacturers specifications and does not comply with NCC 2016, Volume 2, P2.2 – Weatherproofing and NCC Volume 2 Section 3.5 Roof and Wall Cladding.  In that water is penetrating the building front soffit envelope and causing consequential damage the soffit system.  Which is resulting in the rendered cladding system to crack and separate in the corners (behind tiles) and possibly through the sheet joins (behind the feature facade tiles) and therefore damaged the waterproofing membrane or layer on the lower level of the façade, which will cause deterioration of the building elements.  – Pertains to Item 1 on the QBCC complaint form.

  1. [21]
    The building work that was directed by the commission in this direction to rectify should be understood by reading this direction from the reasonable understanding of Interlink at the time.  This is therefore an objective test (the actual understanding of Interlink being irrelevant), judged in the context of relevant facts known to Interlink at the time.
  2. [22]
    This was a new house which had a garage at the front of the house.   Above the garage there was a rectangular area with a large window taking up part of the rectangle and set back inside the rectangle.  Structurally, the rectangle was created by a frame and cladding.  Sheets were mounted on the frame with a waterproof membrane, and then tiled and rendered.  The bottom on the rectangle was above the garage and overhung slightly and this has been called a soffit in the direction to rectify and in these proceedings.
  3. [23]
    Soon after purchasing the house, the owner noticed that water dripped from the soffit in heavy rain.  He made a complaint to QBCC.  After an investigation, the QBCC decided that water was coming in through cracks in the render.  The cause of the cracks in the render was determined to be movement of the cladding system although why this was occurring was unknown.  The QBCC considered that the ingress of water had also damaged the components of the cladding system.  The QBCC issued the direction to rectify in the terms set out above on 18 October 2021.
  4. [24]
    The reference in the direction to rectify to Item 1 in the QBCC complaint form was to the one complaint made by the owner that:[10]

During rain there is water ingress into the soffit at the front of the house.  The builder has attended several times and attempted to fix the issue but without success.

  1. [25]
    The meaning of the reference in the direction to rectify to manufacturer’s recommendations was not clarified at the hearing.
  2. [26]
    The reference in the direction to rectify to ‘NCC 2016, Volume 2, P2.2 – Weatherproofing’ is to a part of the Building Code of Australia:[11]

P2.2.2 Weatherproofing

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

(a) unhealthy or dangerous conditions, or loss of amenity for occupants; and

(b) undue dampness or deterioration of building elements.

  1. [27]
    NCC Volume 2 Section 3.5 Roof and Wall Cladding describes methods of construction which are deemed to satisfy P.2.2.2, although the code also states that P.2.2.2 can also be satisfied by an alternative wall cladding construction.[12]
  2. [28]
    It is now possible to identify what building work was directed by the commission in the direction to rectify.
  3. [29]
    Although the direction to rectify states there has been a failure to comply with manufacturers specifications and with the specified provisions of the NCC, the sentence starting ‘in that’ explains why it is said there was the failure to comply.  So it would be reasonable for Interlink to understand that the direction to rectify was saying that the fact of the water penetration was the failure to comply with manufacturers specifications and with the specified provisions of the NCC.
  4. [30]
    On that reading the ‘defect’ was permitting the water penetration and there was no other defect which required rectification.
  5. [31]
    It would be reasonable for Interlink to understand that the sentence starting ‘which is resulting’ described the consequence of the water penetration.  This was therefore damage consequential on the defect (the water penetration).
  6. [32]
    In paragraph 1 the direction to rectify required Interlink to rectify the ‘following defective or incomplete work’.  There is no incomplete work described.  On the above analysis the defective work which had to be rectified was permitting the water penetration.  There was no direction to repair any consequential damage.[13]  Hence the building work that was directed by the commission in this direction to rectify was that Interlink had to stop the water penetration happening.
  7. [33]
    The QBCC building inspector Steve Jeynes was of the view that in order to stop the water penetration happening, the cladding would have to be exposed and remade, with new external finishings.  But this expectation was not put in the direction to rectify. 
  8. [34]
    It is common ground that Interlink did not expose and remake the cladding and apply new external finishings, but since this was not directed by the commission it cannot be said on this basis that Interlink failed to carry out the work directed by the commission to a satisfactory standard.
  9. [35]
    Interlink found a solution to stop the water penetration happening.  This was by sealing the joints and surfaces of the external walls with Soudal Fix-All flexi sealant and Remedial Membranes Clear Waterproofing Membrane.[14]  The work done by Interlink at that time was described by Mr Jeynes as applying a silicone product (Soudal T-Rex crystal) between mainly the vertical joints of the stacker stone tiles and then applying a waterproofing sealer over the whole stacker stone tiled feature façade wall.[15]
  10. [36]
    It is common ground that this solution was successful in stopping the water penetration, but the question is whether it was satisfactory having regard to the work directed.
  11. [37]
    Mr Maloney has submitted that in discussions with QBCC about how to deal with the direction to rectify he was led to believe that the solution was satisfactory.  Even if this could be shown, it would be irrelevant to my decision which is to reach the correct and preferable decision, by a fresh hearing on the merits.[16]
  12. [38]
    Whether the solution was satisfactory needs to be considered on the basis that the work directed by the commission was to stop the water penetration happening, which is what I have found the direction to rectify required. 
  13. [39]
    Interlink’s expert, David Seeney, opines that the fact that the sealant and waterproofing system stopped the water penetration, shows that the construction was compliant after Interlink’s rectification work, bearing in mind it withstood a 15 minute water test conducted by the QBCC inspector.[17]
  14. [40]
    It is submitted on behalf of QBCC that little weight should be given to Mr Seeney’s opinion bearing in mind that he did not inspect the site.  Mr Seeney explains why he did not inspect the site in his report.  What happened was that after the owner’s Home Warranty Scheme insurance claim was accepted,[18] QBCC engaged other contractors to expose and remake the cladding.  So by the time Mr Seeney was instructed to provide a report, Interlink’s work no longer remained.  Experts are quite often asked to give an opinion about past events when the real evidence has disappeared.  Obviously this can affect the quality of the expert evidence.  In this matter, despite the submissions to the contrary I think Mr Seeney’s opinion is of assistance. 
  15. [41]
    In his evidence Mr Maloney expresses a strong view that the sealant and waterproofing system provided a good long term solution to stop the water penetration.[19] 
  16. [42]
    But it is submitted on behalf of QBCC that this work to stop the water penetration was not done to a satisfactory standard because the sealant and a waterproofing membrane was not a long term solution.  Mr Jeynes inspected the work done by Interlink on 15 December 2021.  Although he found there was no further water penetration he said ‘It is unclear as to how long the system will perform or last in the extreme conditions of the eastern sun’, a reservation repeated in his statement of evidence.[20]  Mr Jeynes is of the view that the ‘silicon method’ was not a long term solution for exposed external use and so is not fit for the purpose, as demonstrated when it failed on earlier occasion.[21]  The ‘silicon method’ referred to here was to only part of Interlink’s solution however.  It was then covered by the waterproofing membrane.  As for the waterproofing membrane, Mr Jeynes’ view was that it was only ‘covering up the problem and did not rectify the actual cause of the water leak or rectify the works as per the Direction’.[22]  This is a reference to his opinion that water was entering the front of the house through cracks in the render which was a result of movement of the cladding system, and this could only be rectified by remaking the cladding system.  The difficulty as I have said above, is that the direction to rectify did not state this as the actual cause of the water leak which needed to be rectified. 
  17. [43]
    There is a document in the evidence which is of concern.  It is a warranty issued by the manufacturers of the membrane product.[23]  This states that the product has a 10 year warranty from the initial date of installation provided that the membrane is inspected annually and reapplied every 5 years.  This is the only evidence of the expected life of the waterproofing membrane and since it comes from the manufacturers it is difficult to ignore. 
  18. [44]
    I understand the point made by Mr Maloney in submissions that the product could be used in areas where there is foot traffic.  On that basis he says that the product would have a longer life if used where there was no foot traffic.[24]  But it is difficult to accept this theory as fact, because the warranty requires annual inspection and reapplication every 5 years irrespective of the amount of traffic.
  19. [45]
    I also understand the point made by Mr Maloney that some home owners would not bother to reapply the membrane if an inspection seemed to be satisfactory.  In this respect I note the warranty is largely worthless since is limited to ‘product replacement or refund’ and this is at the discretion of the manufacturer as well, so it could be said there would be little point in trying to maintain the warranty.
  20. [46]
    Where the membrane is used to ensure a house is watertight, it would be reasonable for the owner of that house to take the information in the warranty seriously, and to inspect the membrane annually and have it reapplied every 5 years in order to maintain its waterproofing properties.
  21. [47]
    Viewed objectively, reliance on this membrane on the external cladding of a newly built house to maintain waterproofing is unsatisfactory.  An owner of a newly built house should not feel obliged annually to inspect a waterproofing membrane used on an outside wall above the garage of the house, or to have to reapply the membrane every 5 years, or to risk water penetration through the external cladding if these measures are not taken.
  22. [48]
    Accordingly, it is my finding that Interlink’s rectification work to stop the water penetration, being work that was done at the direction of the QBCC, was not done to a satisfactory standard.
  23. [49]
    Another way in which it is submitted on behalf of QBCC that this work to stop the water penetration was not done to a satisfactory standard is said to be because the house owner was unhappy with the Interlink solution.  This is clearly shown from the owner’s email when asked by QBCC to comment on Interlink’s application for an internal review of the non-compliance decision.[25] 
  24. [50]
    But whether the work done at the direction of the QBCC was done to a satisfactory standard is a question of fact.  It is difficult to see how such a finding of fact could be affected by the reaction of the owner.
  25. [51]
    I confirm the non-compliance decision made by the QBCC.

Footnotes

[1]Interlink closing submissions received on 16 May 2024.

[2]Orlanski v Queensland Building Services Authority [2011] QCAT 35, Lim v QBCC [2018] QCAT 156 and J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269.

[3]In submissions filed on 16 May 2024 Interlink also rely on section 71J of the Queensland Building and Construction Commission Act 1991 (Qld) which also contains this time limit.

[4]Statement of Brian Maloney made on 24 June 2022, paragraph 5.

[5]For the Act it is the version of 1 May 2021, for the Regulations it is the version of 27 September 2021.  The submissions were filed on 16 May 2024.

[6]By regulation 53A.

[7]In fact, the direction to rectify gave until 22 November 2021 for compliance, which was in fact 35 days.

[8]Several issues of alleged procedural unfairness are relied on and a number of other points made, but ultimately none of these are sufficient to show that the direction to rectify was a nullity.

[9]As said in the statement of Brian Maloney made on 24 June 2022, paragraph 5, supported by submissions filed on 16 May 2024 paragraph 34.

[10]Complaint to QBCC dated 22 March 2021, page 331 of the hearing book.

[11]Exhibit 1.

[12]Exhibits 2 and 3.

[13]This could have been directed under section 72(2)(b).

[14]Report of Keystone Consult and Construct dated 28 April 2023.

[15]Inspection report of 15 December 2021, hearing book page 444.

[16]Section 20 of the Queensland Civil and Administrative Tribunal 2009 (Qld).

[17]In fact it was a 15-20 minute water test.

[18]Which was soon after the non-compliance decision.

[19]In particular paragraphs 66 to 68 of his statement of evidence dated 24 June 2022.

[20]Statement of 14 October 2022, paragraph 24.

[21]Paragraph 29(a).

[22]Paragraph 33.

[23]This document was attached to the application for review, at page 33 of the hearing book.

[24]Paragraph 62(o) of final submissions given on 16 May 2024.

[25]Page 387 of the hearing book.

Close

Editorial Notes

  • Published Case Name:

    Interlink Developments Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    Interlink Developments Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 292

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    25 Jul 2024

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
J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269
2 citations
Jump To
Cite 1 - [2017] QCAT 269
Cite 2 - [2017] QCAT 269
JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316
2 citations
Jump To
Cite 1 - [2023] QCAT 316
Cite 2 - [2023] QCAT 316
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502
2 citations
Jump To
Cite 1 - [2013] QCAT 502
Cite 2 - [2013] QCAT 502
Lim v Queensland Building and Construction Commission [2018] QCAT 156
2 citations
Jump To
Cite 1 - [2018] QCAT 156
Cite 2 - [2018] QCAT 156
McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57
2 citations
Jump To
Cite 1 - [2013] QSC 57
Cite 2 - [2013] QSC 57
Orlanski v Queensland Building Services Authority [2011] QCAT 35
2 citations
Jump To
Cite 1 - [2011] QCAT 35
Cite 2 - [2011] QCAT 35

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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