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Small v Queensland Building and Construction Commission[2025] QCAT 270

Small v Queensland Building and Construction Commission[2025] QCAT 270

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Small & Anor v Queensland Building and Construction Commission [2025] QCAT 270

PARTIES:

christine sheree small

aaron anderson

(applicants)

v

queensland building and construction commission

(respondent)

APPLICATION NO:

GAR 603-23

MATTER TYPE:

Building matters

DELIVERED ON:

30 June 2025

HEARING DATE:

13 March 2025

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

The decision-maker for the internal review decision is invited to reconsider the decision under section 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where the applicants purchase a property – where the applicants obtained an inspection report on the property  – where defects identified – where the applicants made complaints of building defects – where the respondent decided not to direct the owner to rectify the defects but may be entitled to assistance under the statutory insurance scheme – where the respondent decided to wholly disallow the claim under the statutory insurance scheme – where the respondent decided to confirm the original decision on the ground it was unable to identify the builders – whether the application for the building disputes is out-of-time – where there is a dispute about the future conduct of the proceeding

Building Regulation 2006 (Qld), s 17, 18

Statutory Declarations Act 1959 (Cth), s 11

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 71H, s 71J, s 72, s 72A, s 86, s 86E, s 87, sch 2

Queensland Building and Construction Commission Regulation 2018 (Qld), sch 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 23, s 24, s 39, s 40, s 42

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10

Ahmet v Queensland Building and Construction Commission [2022] QCAT 417

Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564

Annetts v McCann (1990) 170 CLR 596

Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78

Italiano v Carbone [2005] NSWCA 177

Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290

Karamaroudis v Queensland Police Service & Ors [2023] QCA 217

King and McDonald v Queensland Building and Construction Commission [2024] QCAT 138

Kioa v West (1985) 159 CLR 550

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Mr A Tindall of Counsel, instructed by Holding Redlich Lawyers

REASONS FOR DECISION

Application to review

  1. [1]
    On 25 August 2023 the applicants (‘Ms Small’ and ‘Mr Anderson’ individually and ‘applicants’ together) made application to the Tribunal for review of an internal review decision of the respondent (‘QBCC’) made 1 August 2023 to confirm a decision of QBCC to wholly disallow a claim by Ms Small and Mr Anderson under the statutory insurance scheme made 14 June 2023 (‘application to review’).

Brief background

  1. [2]
    On about 1 July 2015 Deleje Pty Ltd (‘Deleje’) as building owner entered into a contract with Megalo Constructions Pty Ltd (‘Megalo’) for the construction of a three story dwelling (‘building work’) at 229 Birdwood Terrace, Toowong (‘property’) (‘Megalo contract’).
  2. [3]
    On 25 August 2017 Deleje terminated the Megalo contract.
  3. [4]
    On 22 September 2017 the members of Megalo resolved to wind up the company. It was deregistered on 25 August 2019.
  4. [5]
    On 7 February 2022 the applicants entered into a contract to purchase the property from Deleje.
  5. [6]
    The applicants engaged Ironside Building, Pest & Pool Inspections to provide an inspection report on the property (‘pre­purchase inspection report’). The inspection was carried out on 14 February 2022. The report is undated. The defects identified included those summarised in paragraph [15] of these reasons for decision.
  6. [7]
    On about 8 April 2022 the applicants’ purchase of the property from Deleje settled.
  7. [8]
    On 9 June 2022 the applicants lodged a complaint with QBCC against Megalo in respect of five items of alleged defective work at the property. The items are set out in paragraph [16] of these reasons for decision.
  8. [9]
    On 2 June 2023 QBCC decided not to direct Megalo to rectify any of the complaint items but may be entitled to assistance under the statutory insurance scheme.
  9. [10]
    On 14 June 2023 QBCC decided to wholly disallow the claim under the statutory insurance scheme (‘original decision’).
  10. [11]
    On about 10 July 2023 the applicants applied to QBCC for a review of the original decision in respect of complaint items 1 – 3 and 5 but not complaint item 4.
  11. [12]
    On 1 August 2023 QBCC decided to confirm the original decision (‘internal review decision’).
  12. [13]
    On 25 August 2023 the applicants made application to the Tribunal for external review of the internal review decision. The reasons why they assert the internal review decision is wrong and the orders sought by them are set out in paragraph [20] of these reasons for decision.
  13. [14]
    On 5 December 2023 QBCC filed in the Tribunal amended reasons for the internal review decision. They are summarised in paragraph [23] of these reasons for decision.

Pre­purchase inspection report

  1. [15]
    The defects identified in the pre­purchase inspection report include:
    1. water stains on the eave lining;
    2. high moisture readings on the lower walls of the hallway;
    3. mould growth on the walls of the hallway;
    4. water stains on the ceiling stans above the stairwell;
    5. water stains on the ceiling in the lounge room; and
    6. water stains on the ceiling in the kitchen and meals area.

Complaint items

  1. [16]
    The five items of alleged defective work at the property are summarised in the following table:

Item

Date first noticed

Location

Description

04/05/2022

Ensuite

Water leak in ensuite shower causing the water to leak into the living room below, giving rise to mould on the living room ceiling (complaint item 1).

12/05/2022

Leak near window upper stairs

Water leak near the window on the stairs to the top floor (complaint item 2).

25/05/2022

External

The top balcony is leaking water into the kitchen below (complaint item 3).

16/04/2022

External

There is calcification of the tiles on the top balcony (complaint item 4).

12/05/2022

External

The middle balcony is leaking water into the area below causing mould and water damage (complaint item 5).

Internal review decision

  1. [17]
    The internal review decision sets out the five complaint items and the findings complaint items 1 – 3 and 5 are defective work. The decision then sets out the history of building work carried out at the property. Relevantly, the history reads:
  1. 15.
    …
  1. 16.
    Information available to the QBCC indicates that a policy of insurance was taken out by Megalo on behalf of the previous owner, Deleje Pty Ltd (Deleje) for the construction of a new residential dwelling at the Property under a contract dated 1 July 2015.
  1. 17.
    …
  1. 18.
    In response to notification of the Complaint, the former director of Megalo relevantly advised the QBCC that following voluntary administration of Megalo, works ceased at the Property and the dwelling was only a bare frame, left incomplete and not signed off. The former director also advised that the works ‘... sat like this for close to a year to my knowledge...’ and that a third party contractor took over the works some time after.
  1. 19.
    In response to queries with the third party contractor (as advised by the former director of Megalo), the QBCC were provided with a quotation dated 24 August 2018 for building work at the Property which appears to have been submitted to the previous owners of the Property [Deleje] (Third Party Quotation).
  1. 20.
    The Third Party Quotation notes various excluded items, relevantly including:
  1. (a)
    Tiler labour, waterproofing, bedding or adhesives;
  1. (b)
    Tile supply; and
  1. (c)
    Council approvals or inspections.
  1. 21.
    A search by the QBCC of the Brisbane City Council (BCC) records for the construction of the dwelling at the Property relevantly revealed:
  1. (a)
    A Form 21 - Final Inspection Certificate issued by John Reeve (A44083) on 12 June 2019 (Form 21);
  1. (b)
    A Form 16 - Inspection Certificate issued by David L Grice of Grice Tiling (#73411) on 7 March 2019 for ‘Waterproofing materials & systems installed in Ensuites, Bathrooms, Laundry, Patios’ (Form 16).
  1. 22.
    …
  1. 23.
    David Grice has refuted having had any involvement in performing any works at the Property, and has provided a Statutory Declaration dated 5 May 2023, confirming same.
  1. 24.
    Following receipt of the BCC documents, the QBCC queried Deleje with respect to ‘... who was paid to complete the tiling and waterproofing ...’ at the Property, and were relevantly informed that:
  1. (a)
    the project had a number of different waterproofers; and
  1. (b)
    provided a copy of the Form 16.
  1. [18]
    The decision then asks the rhetorical question, ‘Has a policy of insurance come into force for the defective work identified?’ and records the only policy of insurance with QBCC is that taken out by Megalo.
  2. [19]
    The decision continues:
  1. 26.
    Having regard to the voluntary administration and submissions provided concerning the stage of works under which Megalo ceased work at the Property, I am not satisfied that the defective work has been performed under relevant contract and/or policy of insurance taken out by Megalo.
  1. 27.
    Having regard to the Third Party Quotation[1], I am not satisfied that the relevant defective work has been performed by the third party licensed contractor. Accordingly, any policy of insurance which was required to be taken out by the third party licensed contractor would not have extended to the defective work identified.
  1. 28.
    Having regard to the Form 16 and Statutory Declaration provided by David Grice, I am not satisfied that any works were performed by David Grice at the Property and/or that a policy of insurance would have come into force.
  1. 29.
    Upon review of the information on file, and the investigation made by the QBCC, I am not satisfied that a policy of insurance has come into force which covers the defective work identified in the Inspection Report.
  1. 30.
    Accordingly, I have decided to refuse the Owner’s claim for defective work under the Statutory Insurance Scheme with respect to items 1, 2, 3 and 5 of the Complaint.

The reasons why the applicants assert the internal review decision is wrong and the orders sought by them

  1. [20]
    In their application to review, the applicants assert the decision-maker for the internal review decision erred in finding no policy of insurance under the statutory insurance scheme was in force in respect of the defective work. With respect to complaint items 1, 3 and 5, they assert, the decision-maker:
  1. (a)
    relied on a quotation by TopCat Constructions Pty Ltd[2] (‘TopCat’) in finding the waterproofing was excluded from the building work to be carried by TopCat. However, the decision-maker did not obtain a copy of a contract for the carrying out of the work to determine whether, in fact, it included waterproofing at the property;
  1. (b)
    did not give any, or any adequate, consideration to whether TopCat ‘carried out’ the waterproofing consistent with the broad definition of the expression in the dictionary in schedule 2 to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), which is in the following terms:
  1. carry out, for building work (other than for part 4A) means any of the following:
  1. (a)
    carry out the work personally;
  1. (b)
    directly or indirectly cause the work to be carried out;
  1. (c)
    provide building work services for the work;
  1. (c)
    erred in not giving any, or any sufficient, weight to the form 16 relating to the completion of the waterproofing at the property;
  1. (d)
    otherwise failed to properly apply the terms of the scheme as it applied to work required to be carried by a licensed contractor, namely the waterproofing the subject of complaint items 1, 3 and 5.
  1. [21]
    With respect to complaint item 2, the applicants assert, the decision-maker:
  1. did not give any, or any adequate, consideration to the building work carried out by Megalo and TopCat as licensed builders and whether the defective work was carried out by either party under the terms of their contractual arrangements with Deleje;
  2. otherwise failed to properly apply the terms of the scheme the subject of the complaint.
  1. [22]
    The orders sought by the applicants are:
  1. the internal review decision be set aside; and
  2. the decision be substituted for a decision by the Tribunal the applicants are entitled to assistance under the scheme for the defective work.

Amended reasons for the internal review decision

  1. [23]
    On 5 December 2023 QBCC, in accordance with section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provided the Tribunal with an amended statement of reasons for the internal review decision. The amended statement sets out the legislative framework, the background to the proceeding, the investigation of the complaints by the applicants, the claim under the statutory insurance scheme, the key findings of fact and the reasons for the decision.

Statement of agreed facts

  1. [24]
    The parties filed a statement of agreed facts and issues in dispute. To the extent relevant, the statement of agreed facts is set out below.
  1. A.
    Preliminary Matters
  1. 1. and 2.
  1. 3.
    The following facts are agreed for the purposes of this proceeding.
  1. B.
    AGREED FACTS
  1. Background
  1. 4.
    …
  1. 5.
    A Certificate of Insurance was issued by [QBCC] with a cover commencement date of 1 July 2015 for residential construction work to be performed by Megalo Constructions Pty Ltd (Megalo) at the Property (Insurance Certificate).
  1. …
  1. 6. and 7.
  1. 8.
    At a date unknown to the parties Megalo commenced work at the Property. Megalo completed certain work at the Property but did not complete all residential construction work required under the terms of the Megalo Contract.
  1. 9.
    …
  1. 10.
    On 25 August 2017, the Megalo Contract was terminated by Deleje.
  1. 11.
    At a date unknown to the parties, but no later than 25 August 2017, Megalo ceased work at the Property.
  1. 12.
    On or around 22 September 2017, Megalo entered into voluntary administration. Megalo was deregistered on 25 August 2019.
  1. …
  1. 13.
    Between 22 September 2017 and 12 June 2019, further residential construction works were carried out on the Property, including by (but not limited to) TopCat Constructions Pty Ltd (TopCat) and:
  1. (a)
    Jonathon Grice ABN 40 667 358 454;
  1. (b)
    GRICE Tiling Pty Ltd ABN 14 614 988 322; and/or
  1. (c)
    David Grice,
  1. trading under the unregistered business name of GRICE Tiling.
  1. 14.
    – 16.
  1. 17.
    Jonathon Grice ABN 40 667 358 454, under the unregistered business name of GRICE Tiling, completed a quote for the carrying out of tiling and waterproofing works at the Property to the value of $40,153.30 dated 1 August 2018 (GRICE Tiling Quote).
  1. 18.
    On 5 September 2018, Jonathon Grice ([email protected]) sent the GRICE Tiling Quote by email to “Jane; Terry Cook” with the following message:
  1. “Attached are the revised quotes.
  1. Jonathon Grice
  1. Owner
  1. 0408 067 350
  1. GRICETiling
  1. 2 Turana Street Coombabah, 4216
  1. www.gricetiling.com.au”
  1. …
  1. 19.
    On 13 September 2018, by email sent from “[email protected]” to Jonathon Grice and Terry Cook, Deleje accepted the GRICE Tiling Quote.
  1. …
  1. 20.
    The waterproofing and tiling works to be performed pursuant to the GRICE Tiling Quote were required to be carried out by a licensed contractor according to section 42(1) of QBCC Act.
  1. 21.
    In order for Deleje to obtain a Form 21 - Final Inspection Certificate in relation to the new dwelling constructed at the Property, pursuant to sections 17(1)(b) and 18(2) of the Building Regulation 2006 (Qld) (Building Reg), the Building Certifier preparing the Form 21, must have decided that the Form 16 for waterproofing undertaken at the Property was signed by a competent person, being a person who has a licence to do waterproofing works.
  1. 22.
    Between 13 September 2018 and 7 March 2019, either:
  1. (a)
    Jonathon Grice ABN 40 667 358 454;
  1. (b)
    GRICE Tiling Pty Ltd ABN 14 614 988 322; and/or
  1. (c)
    David Grice,
  1. trading under the unregistered business name of GRICE Tiling completed the tiling and waterproofing works at the Property.
  1. 23.
    Between 13 December 2018 and 22 January 2019, GRICE Tiling ABN 14 614 988 322, issued the following tax invoices to Deleje in relation to tiling, waterproofing and other work undertaken at the Property:
  1. (a)
    Tax invoice dated 13 December 2018 in the amount of $26,851;
  1. (b)
    Tax invoice dated 22 January 2019 in the amount of $26,221.80; and
  1. (c)
    Tax invoice dated 26 March 2019 in the amount of $6,179.25.
  1. …
  1. 24.
    On 7 March 2019, a waterproofing certificate was issued in the name of David Grice of GRICE Tiling after an inspection was carried out of the waterproofing materials and systems installed in the ensuites, bathrooms, laundry and patio (Waterproofing Certificate). The Waterproofing Certificate referred to licence number 73411.
  1. …
  1. 25.
    [QBCC]’s records show that licence number 73411 is held by David Grice.
  1. …
  1. 26.
    In an email to the [QBCC] dated 11 April 2023, David Grice has asserted that the use of his Licence number was a forgery by his brother.
  1. …
  1. 27.
    [QBCC]’s records show that Jonathon Grice did not hold a Licence under the QBCC Act. …
  1. 28.
    On 12 June 2019, John Reeve, building certifier (QBCC #A44083), issued a ‘Form 21 - Final Inspection Certificate’ in relation to a Class 1a ‘New Construction of Dwelling - 3 Storey’ at the Property (Final Inspection Certificate).
  1. …
  1. 29.
    …
  1. 30.
    On 7 February 2022, the Applicants entered into a contract to purchase the Property from Deleje, subject to a building and pest inspection (Contract of Sale).
  1. …
  1. 31.
    On 14 February 2022, the Applicants commissioned a building and pest inspection report (Pre-Purchase Inspection Report).
  1. …
  1. 32.
    On or about 8 April 2022, settlement occurred for the Contract of Sale.
  1. 33.
    …
  1. 34.
    On 9 June 2022, the Applicant lodged a complaint with [QBCC] with respect to five items of alleged defective building work performed at the Property, being:
  1. (a)
    a water leak in the ensuite shower which causes the water to leak into the living room below, giving rise to mould on the living room ceiling (Complaint Item 1);
  1. (b)
    a water leak near the window on the stairs to the top floor (Complaint Item 2);
  1. (c)
    a water proofing issue on the top balcony which is causing leaking into the kitchen below (Complaint Item 3);
  1. (d)
    calcification of the tiles on the top balcony (Complaint Item 4); and
  1. (e)
    the middle balcony is leaking water into the area below, causing mould and water damage (Complaint Item 5).
  1. (together, the Complaint).
  1. …
  1. [QBCC]’s Investigation and Inspection Report
  1. 35.
    On 28 November 2022, Steven Richardson (Mr Richardson), Building Inspector for [QBCC] attended the Property for an inspection in response to the Complaint. Also in attendance at the inspection was Christopher O'Shannessey, Senior Building Inspector for [QBCC] (Initial Inspection).
  1. 36.
    On 18 January 2023, a further inspection of the Property was undertaken by [QBCC] by Ben Theslow t/as BT Plumbing, external building consultant for [QBCC] (Theslow Inspection).
  1. 37.
    On 2 February 2023, as a result of the Theslow Inspection, an Inspection Report was prepared by BT Plumbing (Theslow Inspection Report).
  1. …
  1. 38.
    …
  1. 39.
    On 2 and 6 March 2023, Mr Richardson on behalf of [QBCC] had an email exchange with Deleje as follows:
  1. (a)
    Email from Mr Richardson to Davin Johnson at Deleje on 2 March 2023 stated:
  1. “Hello Davin,
  1. [QBCC] is investigating a complaint for defective work at 229 Birdwood Terrace Toowong and I am trying to determine who did the tiling and waterproofing on the dwelling.
  1. I have a waterproofing certificate from David Grice Tiling but he denies working on the site and said his brother who now lives in New Zealand did the job.
  1. I would like to know if you have any information on who was paid to complete the tiling and waterproofing on this home as that seems the best way for me to track them down.
  1. Kind Regards”.
  1. (b)
    Email from Deborah Jackson, General Manager of Deleje to Mr Richardson on 6 March 2023 stated:
  1. “Morning Steven
  1. I am answering the below email on behalf of Davin Johnson.
  1. Davin has advised that David was the father, employed by his son who ran Grice tiling.
  1. I’ve included the 229 Birdwood invoices for your information.
  1. Regards
  1. Deborah Jackson
  1. General Manager
  1. Deleje Pty Ltd
  1. M: +61 (0) 438 443 646
  1. E: [email protected]”.
  1. …
  1. Between 16 February 2023 and 27 April 2023, Mr Richardson on behalf of [QBCC] had an email exchange with David Grice as follows:
  1. (a)
    Email from Mr Richardson to David Grice on 16 February 2023 stated:
  1. “Hello David,
  1. I am investigating a complaint for possible defective works at 229 Birdwood Terrace Toowong and I see that you have completed a Form 16 on the 7/3/19 for the waterproofing and tiling on this home.
  1. I am trying to determine if you carried out the waterproofing works on this home and if so, who engaged you and paid you for the works.
  1. Please feel free to contact me should you wish to discuss.
  1. Kind Regards”.
  1. (b)
    Email from David Grice ([email protected]) to Mr Richardson on 16 February 2023 stated:
  1. “Yeah, no I definitely didn’t do that job, my brother who moved to NZ did though. I have never been contracted to work there or done any waterproofing on that job. I think he did the job through a builder named Terry? or worked directly for the owners, I can’t remember. If the WPing cert has my name on it, it was not provided by me”.
  1. (c)
    Email from Mr Richardson to David Grice on 11 April 2023 stated:
  1. “Hello David,
  1. I have attached a copy of the Form 16 I have for the waterproofing for the patios and bathrooms at this home which shows your details.
  1. This home has water leaks that we have determined are due to failures of the waterproofing membranes to the ensuite and the second and third floor patios.
  1. At this stage all I have to go on to determine who is responsible for these defective waterproofing works is this form 16 with your name on it.
  1. As you have indicated, you believe this document may have been forged and unless you are able to provide me of some proof of this fact, I will need to consider raising a case holding you as the person responsible for the rectification of the defective waterproofing systems to the balconies and ensuite.
  1. Kind Regards”.
  1. (d)
    Email from David Grice ([email protected]) to Mr Richardson on 11 April 2023 stated:
  1. “Easy for me to prove, supply me with a single invoice or contact with the builder of the job, I can also supply my bank details from the period around the job and you won’t find any payment I have ever received from that job. I am 100% certain my brother forged this and seeing as I don’t speak to him because of another situation like this that has happened a few years ago I can supply those text messages as well. Sorry you have to deal with this but there is no way I’m taking responsibility for a job I have had nothing to do with”.
  1. (e)
    Email from Mr Richardson to David Grice on 11 April 2023 stated:
  1. “Hello David,
  1. I can understand your frustration I have been going around in circles on this job for months trying to get evidence on who is responsible. Due to this document existing and it being the only thing I have been able to find, can you provide me with a Statutory Declaration and I can then remove you from the case as a possible responsible person.
  1. Kind Regards”.
  1. (f)
    Email from David Grice ([email protected]) to Mr Richardson on 11 April 2023 stated:
  1. “I will have one done when I can stating
  1. “I David Grice have never been responsible for any waterproofing carried out at the address of 229 Birdwood Terrace Toowong.”
  1. That’s about as all-encompassing and simple as I think it can be”.
  1. (g)
    Email from Mr Richardson to David Grice on 27 April 2023 stated:
  1. “Hello David
  1. I am going to need that Statutory Declaration by the end of next week 5/5/23 so I can close the case out
  1. Steven Richardson”
  1. …
  1. 41.
    On 5 May 2023, David Grice signed a document titled “Statutory Declaration” which:
  1. (a)
    stated:
  1. “I, David Grice 7 Ewer St Carindale Wall and Floor Tiler
  1. make the following declaration under the Statutory Declarations Act 1959:
  1. Have never been responsible for any waterproofing carried out at the address of 229 Birdwood Terrace Toowong.
  1. I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular”
  1. (b)
    included as part of his contact details the email address:
  1. [email protected]
  1. (c)
    was signed before “Phylicity Grice Photographer 7 Ewer St, Carindale” and was therefore not made before a person who was able to witness the taking of a statutory declaration.
  1. …
  1. 42.
    On 24 May 2023, [QBCC] prepared a scope of works to rectify the defective Complaint items (Scope of Works).
  1. …
  1. 43.
    On 24 May 2023, as a result of the Initial Inspection, the Theslow Inspection and the Theslow Inspection Report, a Resolution Services - Initial Inspection Report was prepared by [QBCC] ([QBCC]’s Inspection Report).
  1. …
  1. 44.
    [QBCC]’s Inspection Report found 4 of the 5 Complaint items to be structurally defective building works.
  1. 45.
    The findings in [QBCC]’s Inspection Report are summarized as follows:
  1. (a)
    in respect of Complaint Item 1:
  1. (i)
    the work is structurally defective in that:
  1. (A)
    there is evidence of dampness to the living room ceiling and ensuite shower;
  1. (B)
    water is dripping from the shower waste pipe;
  1. (C)
    testing of the shower reveals that the unsatisfactory installation of the main bedroom ensuite waterproofing membrane is allowing water to exit the shower enclosure;
  1. (D)
    water ingress into the floor space and damage to the building elements is occurring as a result; and
  1. (ii)
    [QBCC] will take no further action as it is unable to apportion liability without unfair prejudice given that it is not conclusive that the licensee (Megalo) undertook the waterproofing works in the ensuite:
  1. (b)
    in respect of Complaint Item 2:
  1. (i)
    the work is structurally defective in that:
  1. (A)
    flashings are without sealant;
  1. (B)
    there is dampness in the wall;
  1. (C)
    water testing of the roof flashings indicates that the unsatisfactory installation of the sealant to the join in the parapet flashing is resulting in water ingress into the roof space, resulting in damage to the building elements; and
  1. (ii)
    [QBCC] will take no further action as it is unable to apportion liability without unfair prejudice given that it is not conclusive that the licensee (Megalo) undertook or supervised works to the installation of the metal roof system to the dwelling;
  1. (c)
    in respect of Complaint Item 3:
  1. (i)
    the work is structurally defective in that:
  1. (A)
    there is dampness in the kitchen and dining room ceiling;
  1. (B)
    water testing of the balcony reveals that the unsatisfactory installation of the waterproofing membrane to the balcony floor is allowing water to enter the ceiling space below; and
  1. (ii)
    [QBCC] will take no further action as it is unable to apportion liability without unfair prejudice given that it is not conclusive that the licensee (Megalo) undertook or supervised works to the waterproofing of the balcony in question;
  1. (d)
    in respect of Complaint Item 4 there was no defective work identified as efflorescence is a natural phenomenon which although unsightly, does not cause any permanent structural damage;
  1. (e)
    in respect of Complaint Item 5:
  1. (i)
    the work is structurally defective in that water testing of the balcony reveals that the unsatisfactory installation of the waterproofing membrane to the middle balcony flow is allowing water to enter the ceiling space below which is damaging the building elements; and
  1. (ii)
    [QBCC] will take no further action as it is unable to apportion liability without unfair prejudice given that it is not conclusive that the licensee (Megalo) undertook or supervised works to the waterproofing of the balcony in question.
  1. …
  1. 46.
    Complaint Items 1, 2, 3 and 5 are “Defective Work” for the purposes of the Statutory Insurance Scheme contained in the QBCC Act (Defective Work).
  1. 47.
    On 2 June 2023, Mr Richardson of [QBCC] made a decision not to direct Megalo to rectify any of the Complaint items but that the Applicant may be entitled to insurance assistance under the Insurance Scheme (Initial Decision).
  1. …
  1. Public record searches
  1. Owner of the domain name: gricetiling.com.au
  1. 48.
    A Whols domain name search of “gricetiling.com.au” conducted on 25 June 2024 shows that:
  1. (a)
    David Grice of GRICETILING is the registrant for the website “gricetiling.com.au”.
  1. …
  1. GRICE Tiling Quote ABN40667358454
  1. 49.
    The GRICE Tiling Quote which is attached as “SOAF-5” contains the ABN 40 667 358 454.
  1. 50.
    An ABN LookUp Search conducted on 25 June 2024 shows that ABN 40 667 358 454 related to Jonathon Grice from 18 January 2016 to the date of the search, during which time he traded:
  1. (a)
    under the business name “GRICE Tiling” from 12 April 2016 to 28 October 2016;
  1. (b)
    under business name “PermaCoat Waterproofing” from 20 January 2016 to 30 May 2019.
  1. …
  1. Business name of “GRICE Tiling”
  1. 51.
    An historical ASIC business name search of "GRICE Tiling" conducted on 25 June 2024 shows that:
  1. (a)
    it was owned by David Grice and Phylicity Ward from 12 September 2014 to 14 May 2016; it was owned by Jonathon Grice from 12 April 2016 to 28 October 2016; and
  1. (b)
    it was owned by GRICE Tiling Pty Ltd from 26 September 2016 to 8 February 2018.
  1. …
  1. Business name of “PermaCoat Waterproofing”
  1. 52.
    An historical ASIC business name search of “PermaCoat Waterproofing” shows that:
  1. (a)
    it was owned by Jonathon Peter Grice from 20 January 2016 to 30 May 2019.
  1. …
  1. 53.
    A LinkedIn search conducted on 25 June 2025 shows David Grice as the “Business Owner at PermaCoat Waterproofing”.
  1. …
  1. ASIC search of “GRICE Tiling Pty Ltd”
  1. 54.
    An historical ASIC company search of GRICE Tiling Pty Ltd ACN 614 988 322 shows that:
  1. (a)
    it was deregistered on 10 February 2020;
  1. (b)
    Jonathon Grice was its previous director from 23 September 2016 to 10 February 2020;
  1. (c)
    Jonathon Grice was born on 26 October 1991 in Rockhampton, Queensland;
  1. (d)
    Jonathan Grice was its previous shareholder.
  1. …
  1. GRICE Tiling Tax Invoices ABN14614988322
  1. 55.
    The GRICE Tiling tax invoices which are attached as “SOAF-7” contain the ABN 14 614 988 322.
  1. 56.
    An ABN LookUp Search conducted on 25 June 2024 shows that ABN 14 614 988 322 related to:
  1. (a)
    the business name “GRICE Tiling” from 26 September 2016 to 8 February 2018;
  1. (b)
    GRICE Tiling Pty Ltd from 23 September 2016 to the date of the search.
  1. …
  1. ASIC personal name extract of “David Leslie Grice”
  1. 57.
    An ASIC personal name extract of David Leslie Grice shows that he was born on 4 April 1966 in Rockhampton, Queensland;
  1. …
  1. Insurance Scheme Claim
  1. 58.
    Following the Initial Decision, [QBCC] proceeded with the Complaint as a claim made by the Applicants for defective work under the Insurance Scheme (Insurance Claim).
  1. 59.
    …
  1. 60.
    On 14 June 2023, Andrew Moroney of [QBCC] made the decision that the Insurance Claim was being denied considering:
  1. (a)
    while Complaint Items 1, 2, 3 and 5 were determined to be structurally defective, [QBCC] was unable to apportion liability given that it was not conclusive beyond reasonable doubt that the licensee, being Megalo, undertook the works; and
  1. (b)
    Complaint Item 4 was not defective.
  1. …
  1. 61.
    On or around 10 July 2023, the Applicants lodged with the [QBCC] an application for an internal review of the Insurance Decision.
  1. …
  1. 62.
    On 1 August 2023, Leigh Blackman (Mr Blackman), Senior Review Officer for the [QBCC] made a decision to refuse a claim for defective work under the Insurance Scheme (Internal Review Decision).
  1. …
  1. 63.
    …
  1. 64.
    On 25 August 2023, the Applicants filed an application to review a decision in QCAT (Application).
  1. …

Amended statement of issues in dispute

  1. [25]
    The parties, on 26 February 2025, filed an amended agreed statement of issues in dispute between the parties. The amended agreed statement is set out below. The amendments to the original statement, included in the statement of agreed facts, are highlighted.
  1. The following issues are in dispute between the parties:
  1. (a)
    Whether Megalo carried out any of the Defective Work, in particular the work which gave rise to Complaint Item 2.
  1. (b)
    Whether TopCat Constructions carried out any of the Defective Work, in particular the work which gave rise to Complaint Item 2.
  1. (ba)
    Whether Cartella[3] carried out any of the Defective Work, in particular the work which gave rise to Complaint Item 2.
  1. (c)
    If TopCat Constructions carried out any of the Defective Work, what work is covered by the Statutory Insurance Scheme.
  1. (ca)
    If Cartella carried out any of the Defective Work, what work is covered by the Statutory Insurance Scheme.
  1. (d)
    Whether any of the Defective Work was carried out under the Licence held by David Grice.
  1. (e)
    If none of the Defective Work was carried out under the Licence of David Grice, whether the tiling and waterproofing work carried out at the Property was carried out under a contract whereby the person carrying out the work fraudulently claimed to hold a licence for the carrying out of the work.
  1. (f)
    If any of the Defective Work relates to a contract entered into in 2015:
  1. (i)
    Whether the Applicants are excluded from cover by virtue of clause 4.5 of the Policy.
  1. (ii)
    Whether the Applicants are excluded from cover by virtue of clause 7.2 of the Policy.
  1. (iii)
    Whether the Applicants are excluded from cover by virtue of clause 7.4 of the Policy.
  1. (g)
    If any of the Defective Work relates to a contract entered into in 2018:
  1. (i)
    Whether the Applicants are excluded from cover by virtue of section 60 of Schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Reg’).
  1. (ii)
    Whether the Applicants are excluded from cover by virtue of section 53(1)(a)(i) of Schedule 6 of the QBCC Reg.
  1. (iii)
    Whether the Applicants are excluded from cover by virtue of section 16(3)(a) of Schedule 6 of the QBCC Reg.

Legislative framework

Introduction

  1. [26]
    Section 9 of the QCAT Act provides that the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Act or an enabling Act. Here, the enabling Act is the QBCC Act.
  2. [27]
    Section 86(1)(e) of the QBCC Act provides that a decision to rectify or remedy or not to give the direction is a reviewable decision. Section 86E(b) provides that an internal review decision within the meaning of section 86(1)(e) is a reviewable decision within the meaning of the Act.
  1. [26]
    Section 87 provides that a person affected by a reviewable decision of QBCC may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. Section 20 of the QCAT Act provides that the purpose of the review is to produce the correct and preferable decision. The tribunal is required to hear and decide the review by way of a fresh hearing on the merits.
  2. [27]
    Section 24(1) of the QCAT Act provides that in a proceeding for a reviewable decision, the tribunal may:
    1. confirm or amend the decision; or
    2. set aside the decision and substitute its own decision; or
    3. set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
  1. [33]
    Section 71J of the QBCC Act provides that a consumer may ask QBCC to give a direction to rectify building work the consumer considers is defective or incomplete. The request must be made within twelve months after the person becomes aware of:
  1. (a)
    for a request under subsection (1) - the building work the person considers is defective or incomplete; or
  1. (b)
    for a request under subsection (2) - the consequential damage to the property.
  1. ‘Consumer’ is defined in schedule 2 of the QBCC Act to generally mean a person for whom building work is carried out.
  1. [34]
    Sections 72(1) and (2) of the QBCC Act provide that if QBCC 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. it may direct the person who carried out the building work to do the following within the period stated in the direction:
  1. (a)
    for building work that is defective or incomplete - rectify the building work;
  1. (b)
    for consequential damage - remedy the damage.
  1. [35]
    Schedule 2 to the QBCC Act defines ‘building work’ to include the erection or construction of a ‘building’.
  2. [36]
    Schedule 2 of the QBCC Act defines ‘defective’ in relation to building work to include ‘faulty or unsatisfactory’.
  3. [37]
    Section 71H of the QBCC Act defines ‘consequential damage’ as:
  1. ... 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. [38]
    Section 72(3) of the QBCC Act provides that, in deciding whether to give a direction, QBCC may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the building work including the terms of any warranties.
  2. [39]
    Section 72(5) of the QBCC Act provides that QBCC is not required to direct rectification of building work and remediation of consequential damage if it is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
  3. [40]
    Section 72A(4) of the QBCC Act provides that a direction to rectify or remedy cannot be given more than six years and six months after the building work to which the direction relates was completed or left in an incomplete state, unless the Tribunal is satisfied that there is in the circumstances sufficient reason for extending the time for giving the direction and extends the time accordingly.
  4. [41]
    Chapter 2 of part 4 of the QCAT Act is entitled ‘Parties to a proceeding’. Section 39 provides for a person who is a party to a proceeding in the tribunal’s original jurisdiction. Section 40, relevant in the circumstances here, provides that a person is a party to a proceeding in the tribunal’s review jurisdiction if the person is:
  1. the applicant; or
  1. the decision-maker for the reviewable decision the subject matter of the proceeding; or
  1. intervening in the proceeding under section 41; or
  1. joined as a party to the proceeding under section 42; or
  1. someone else an enabling Act states is a party to the proceeding.
  1. [42]
    In a proceeding in the tribunal’s review jurisdiction, as far as is practicable, the official description of the decision-maker must be used as the party’s name instead of the decision-maker’s name.[4]
  2. [43]
    Unlike section 39(b), section 40 does not include a provision that a person is a party to a proceeding in the tribunal’s original jurisdiction if the person is ‘… a person in relation to whom a decision of the tribunal is sought by the applicant …’
  3. [44]
    Section 42(1) empowers the tribunal to make an order joining a person as a party if the tribunal considers that:
  1. the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
  1. the person’s interests may be affected by the proceeding; or
  1. for another reason, it is desirable that the person be joined as a party to the proceeding.
  1. [45]
    Section 42(2) enables the tribunal to order a party be removed from a proceeding if:
  1. the party’s interests are not, or are no longer, affected by the proceeding; or
  1. the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.

Hearing

Applicants’ oral evidence

  1. [46]
    Ms Small gave evidence for the applicants. She admitted in cross-examination by Mr Tindall complaint items one, two, three and five were identified in the pre-purchase inspection report. She and her husband were present at the time of the inspection. The risk was assessed as low.
  2. [47]
    Mr Devon Lee Johnson gave evidence for the applicants. He is the sole director and secretary of Deleje.
  3. [48]
    He stated in evidence that the home had been constructed by Megalo to partial lock-up, the stage before the frame stage. The garage was without a roof whilst the majority of the home had roofing.
  4. [49]
    Following termination of the Megalo contract, he engaged the existing subcontractors to continue the work, but without new contracts.
  5. [50]
    Deleje retained Cartella for air-conditioning, electrical, plumbing and roofing, the majority of the trades without tiling and waterproofing.

Respondent’s oral evidence

  1. [51]
    Mr Terence Roy Alvin Cook gave evidence on behalf of QBCC. He is a director of TopCat.
  2. [52]
    He stated in evidence that at the time of termination of the Megalo contract, the garage had not been constructed. Cartella was engaged to complete the electrical and plumbing work. His understanding is ‘Jonathan Grice’ was responsible for the waterproofing work.
  3. [53]
    Mr Cook was shown a photograph. He stated it was taken prior to TopCat commencing work. It shows the roof. The home has been constructed and screwed down.
  4. [54]
    He confirmed there were two ‘David Grice’ working on the site, David Grice the father and his sons Jonathan Grice and David Grice junior.
  5. [55]
    In re-examination by Mr Tindall, Mr Cook conceded he did not see anyone working on the site. He observed the work performed by TopCat.
  6. [56]
    Mr Jeremy Butler gave evidence for QBCC. He was a director of Megalo.
  7. [57]
    Cartella was engaged by Deleje. It carried out the plumbing and roofing work.
  8. [58]
    At the time, the home was only ‘bare frame’. He continued:

Mr Anderson: What do you mean by that?

Mr Butler: It was just a raw frame. So just to, um, the actual structure was there, but everything was exposed. I don’t even think the windows were in and there was no cladding done.

  1. [59]
    Mr Anderson referred Mr Butler to paragraph 4(b) of Mr Johnson’s affidavit sworn 18 November 2024. There, Mr Johnson swears, ‘… at the time the Megalo Contract was terminated by Deleje, my recollection is that the construction at the property had framing completed and had started the first fit or rough-in of services (meaning that the next step was to install the cables for electrical supply, pipes for water supply, plumbing etc).’ Mr Butler responded the statement is ‘… completely false …’
  2. [60]
    He then referred Mr Butler to paragraph 4(e) of Mr Johnson’s affidavit where he swears, ‘I believe the roofing (excluding the roofing on the garage) had been completed prior to Megalo’s contract being terminated by Deleje as there was a problem with the roof tie downs not being properly connected to the slab, such that when TopCat was engaged by Deleje to complete the construction of the dwelling at the Property, TopCat had to remediate this issue.’ Mr Butler responded, ‘I don’t think that’s correct at all.’
  3. [61]
    He later added the statement by Mr Johnson, ‘I believe the roofing, excluding the roofing on the garage, had been completed prior to Megalo’s contract being terminated by Deleje …’ is incorrect.

Consideration

  1. [62]
    The touchstone for the future conduct of the proceeding turns on the duty to act fairly in the circumstances of the particular case. The applicants press for a decision by the Tribunal on the application to review. QBCC now asks that the decision-maker be invited to reconsider the decision under section 23(1) of the QCAT Act.
  2. [63]
    The nature of a decision-maker’s powers and the decision-maker’s capacity to affect a person’s rights and interests was recently considered by the High Court of Australia in AB (a pseudonym) v Independent Broad-based Anti-corruption Commission[5] (‘AB’). They not only bear on the existence and informs the content of any duty of procedural fairness, but also informs the proper construction of statutory provisions that create analogous rights and obligations in that ‘… all statutes are construed ... against a background of common law notions of justice and fairness …’[6]
  3. [64]
    QBCC, at the conclusion of the hearing, filed submissions in closing pressing the Tribunal to confirm the internal review decision. Subsequently, in accordance with directions given by the Tribunal, it filed supplementary written submissions asking that the Tribunal invite the decision-maker to reconsider the decision under section 23(1) of the QCAT Act.
  4. [65]
    The applicants ask that the Tribunal set aside the internal review decision and provide assistance for the defective work under the statutory insurance scheme.

Respondent’s first written submissions in closing

  1. [66]
    QBCC filed two written submissions. They were filed prior to the applicants filing written submissions.
  2. [67]
    The first submissions were filed at the conclusion of the hearing. It addresses who carried out the defective work and whether the applicants’ claim against the statutory insurance scheme was made within time.
  3. [68]
    The later submissions focus on who carried out the defective work.
  4. [69]
    QBCC accepts complaints one, two, three and five are defective work. Conveniently in the context of the complaints, they are described as waterproofing and flashing defects. The first issue to be decided by the Tribunal is which party or parties carried out the defective work.
  5. [70]
    QBCC identifies conflicting evidence between that given by Mr Butler (Megalo) and that given by Mr Johnson (Delege). Mr Butler deposes to the home being at the bare frame stage on Megalo terminating the work on 2 August 2017. Mr Johnson deposes to the work being carried out by Mr Gerard (Frank) Cartella or Cartella Services Pty Ltd.
  6. [71]
    Mr Cook (TopCat) deposed to him being informed by Mr Johnson ‘… roofing, flashing and guttering would be performed by the Cartella Group.’
  7. [72]
    It follows from the sworn evidence Mr Cartella or Cartella Services Pty Ltd carried out the roofing work.
  8. [73]
    The waterproofing work, accepting the evidence of Mr Johnson and Mr Cook, was carried out by Grice Tiling. Quotations for the work were provided by the business to Deleje, and accepted by it.
  9. [74]
    The registered proprietor of Grice Tiling between 12 April 2016 and 28 October 2016 was Mr Jonathan Grice and between 26 September 2016 and 8 February 2018 Grice Tiling Pty Ltd.
  10. [75]
    Mr David L Grice holds a builder’s licence for wall and floor tiling. Mr Jonathan Grice and Grice Tiling Pty Ltd do not hold a builder’s licence.
  11. [76]
    The submissions then consider the several issues for decision by the Tribunal, submitting the pre-purchase inspection report, received by the applicants on 8 April 2022, exclude them from cover under the statutory insurance scheme.
  12. [77]
    The submissions draw attention to Insurance Policy Conditions – Edition 8 and Schedule 6 – Terms of cover for statutory insurance scheme focussing on the wording of the conditions and citing the decisions of the Tribunal in Jackson & Ors v Queensland Building and Construction Commission[7], King and McDonald v Queensland Building and Construction Commission[8] and Ahmet v Queensland Building and Construction Commission[9].
  13. [78]
    In conclusion, QBCC submits its decision should the confirmed.

Respondent’s second written submissions in closing

  1. [79]
    QBCC’s supplementary written submissions in closing asks that the Tribunal invite the decision-maker to reconsider the decision. It does so after reviewing the evidence about the defective flashing work and the consequences of a party or parties being deprived of a right to be heard on the allegations against the party or parties.
  2. [80]
    Reference is made to the oft-quoted decision of the High Court of Australia in Kioa, the decision of the Queensland Court of Appeal in Karamaroudis v Queensland Police Service[10] and the High Court in AB. It submits that because Mr David L Grice, Mr Gerard (Frank) Cartella and Cartella Services Pty Ltd have not been invited to respond to the allegations against them, the Tribunal should invite the decision-maker for the internal review decision to reconsider the decision. In so doing, it draws attention to sections 66 and 67 of schedule 6 to the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Regulation’). There, it is provided that if a consumer for residential construction work that is substantially complete decides to make a claim under the statutory insurance scheme in relation to the work, the consumer must comply with subsection (2) and QBCC must decide whether to give a direction to rectify or remedy the work under section 72 of the QBCC Act before deciding to allow or disallow the claim.
  3. [81]
    QBCC filed an affidavit by Ms Hannah Close affirmed 27 March 2025. In the affidavit, Ms Close deposes to attempts to obtain a statement of evidence from Mr David L Grice confirming he did not carry out the building work at the site.

Applicants’ written submissions in closing

  1. [82]
    The applicants, at length, address the waterproofing and flashing defects.

Waterproofing defects

  1. [83]
    The applicants are critical of QBCC for not asking Mr Johnson a question in cross-examination about the contractual relationship between Deleje and Grice Tiling. Three of the four defects addressed in the internal review decision are waterproofing defects. Despite the potential significance of the involvement of Grice Tiling, Mr Anderson did not to raise the matter with Mr Johnson.
  2. [84]
    The applicants submit an explanation for of the evidence before the Tribunal supports the following findings:
  1. first, the evidence of Mr David L Grice should be the ignored;
  2. secondly, QBCC’s reliance on Mr David L Grice’s statutory declaration should be disregarded; and
  3. thirdly, the Tribunal should infer from QBCC not calling Mr David L Grice to give evidence after receiving Mr Johnson’s affidavit was at odds with QBCC’s case and unlikely to assist it.
  1. [85]
    The Tribunal, the applicants submit, supports the findings that:
  1. (a)
    Mr Johnson engaged ‘Grice Tiling’ for tiling and waterproofing work at the site;
  1. (b)
    on 1 August 2018 Grice Tiling provided Deleje with a quotation for the work;
  1. (c)
    on 13 September 2018 the quotation was accepted;
  1. (d)
    Mr David L Grice and Mr Jonathan Grice were observed on site;
  1. (e)
    Mr David L Grice held a licence for tiling and waterproofing work; Mr Jonathan Grice did not hold a licence;
  1. (f)
    Mr Jonathan Grice is Mr David L Grice’s son;
  1. (g)
    on 7 March 2019 a waterproofing certificate (form 16) for the site was signed by Mr David L Grice of GRICE Tiling for waterproofing materials and systems installed in the ensuites, bathrooms, laundry and patio;
  1. (h)
    a historical Australian Securities and Investment Commission business name extract for ‘Grice Tiling’ shows that for a number of years (during the period 12 September 2014 to 14 May 2016) Mr David L Grice was the registered business name holder for ‘Grice Tiling’;
  1. (i)
    the quotation provided by Grice Tiling to Deleje dated 1 August 2018 contains the Australian Business Number 40 667 358 454;
  1. (j)
    an Australian Business Number Lookup search shows Australian Business Number 40 667 358 454:
  1. (i)
    Jonathon Grice is described in the ‘entity name’ field;
  1. (ii)
    the business name ‘Grice Tiling’ was linked to the Australian Business Number from 12 April 2016 to 28 October 2016; and
  1. (iii)
    the business name ‘Permacoat Waterproofing’ was linked to the Australian Business Number from 20 January 2016 to 30 May 2019 (the period during which the waterproofing defect was completed at the site);
  1. (k)
    a LinkedIn search of Mr David L Grice describes him [26] as a ‘Business Owner’ of PermaCoat Waterproofing indicating he is in business with his son also linked to the Australian Business Number identified on the quotation;
  1. (i)
    a Whois Domain Name search of ‘gricetiling.com.au’ shows David Grice is the registrant contact for this domain name;
  1. (m)
    the waterproofing certificate (form 16) signed by David Grice contains the email address of [email protected];
  1. (n)
    the licensed person responsible for carrying out the waterproofing works signed the waterproofing certificate (form 16);
  1. (o)
    the statutory declaration signed by ‘David Grice’ is false given the evidence of QBCC’s witness, Mr Cook; and
  1. (p)
    the evidence of Mr Cook, under cross examination about the waterproofing certificate (form 16) was Mr David L Grice ‘… would be signing off on [the form 16] as a representative of Grice Tiling’.
  1. [86]
    It follows, the applicants submit, the business Grice Tiling was engaged in by Mr David L Grice and Mr Jonathan Grice. Mr David L Grice held a licence for tiling and waterproofing work.
  2. [87]
    In cross-examination by Mr Anderson, Mr Johnson said Mr Jonathan Grice owned the business. His father, Mr David L. Grice, and brother, Mr David Grice junior, were observed on site.
  3. [88]
    The applicants’ closing written submissions are inconsistent with the oral evidence of Mr Johnson.

Flashing defect

  1. [89]
    The applicants challenge QBCC’s written submissions in closing to the effect there remains complete uncertainty about the identity of the person responsible for the flashing work. They submit the contractor engaged for the roofing and flashing work, including the flashing defect, was Cartella Services Pty Ltd.
  2. [90]
    The applicants identify the relevant evidence. It shows:
  1. under cross-examination by QBCC’s counsel, Mr Johnson agreed with the proposition he contracted with Cartella to perform roofing works;
  2. Mr Cook, QBCC’s witness, gave evidence he knew Cartella Services and it was the entity which performed the roofing and flashing works;
  3. Mr Johnson confirmed under re-examination Cartella Services and Cartella Services Pty Ltd were, on his understanding, the same entity as identified in the Cartella Services Pty Ltd licensing search which was exhibited to Mr Johnson’s second affidavit. It confirms the following:
  1. Gerard Rocco Francesco Cartella has had a roof tiling licence (number 1028776) since 30 October 2012; and
  1. Cartella Services Pty Ltd trading as Cartella Services (referred to in the submissions as ‘Cartella’) had a Builder - Open Licence.

A Builder - Open Licence allows the licence holder to undertake all ‘building work on all classes of buildings’, including roofing work.

  1. [91]
    The suggestion by QBCC there remains uncertainty about who performed the flashing work, including the flashing defect, ‘… is simply not fairly reflecting the nature of the evidence.’

Identification of the defects

  1. [92]
    The applicants address whether the defective work was evident prior to purchaser of the home. The written submissions then address sections 66 and 67 of schedule 6 to the QBCC Regulation.

Section 66 of schedule 6 to the QBCC Regulation

  1. [93]
    Section 66 of schedule 6 to the QBCC Regulation provides:
  1. (1)
    This section applies if a consumer for residential construction work that is substantially complete decides to make a claim under the statutory insurance scheme in relation to the work.
  1. (2)
    The consumer must:
  1. (a)
    serve a notice about the facts and circumstances giving rise to the claim on the licensed contractor who carried out the work; and
  1. (b)
    give the licensed contractor a reasonable period stated in the notice to rectify the work.
  1. (3)
    However, subsection (2) does not apply if:
  1. (a)
    the licensed contractor dies; or
  1. (b)
    the licensed contractor is a company and the company no longer exists; or
  1. (c)
    both of the following apply:
  1. (i)
    the licensed contractor is bankrupt or insolvent, or takes advantage of the laws of bankruptcy as a debtor under the Bankruptcy Act 1966 (Cwlth) or a similar law of a foreign jurisdiction;
  1. (ii)
    the licensed contractor’s licence is cancelled.
  1. (4)
    The commission must not decide to allow or disallow the claim until after the end of the reasonable period stated in the notice given to the licensed contractor.
  1. (5)
    This section does not prevent the consumer making the claim under the statutory insurance scheme before the end of the reasonable period stated in the notice given to the licensed contractor.
  1. [94]
    The applicants purchased the property from Deleje. It was given notice of the facts and circumstances. Deleje, however, did not give notice to the subcontractors following termination of the contract between Deleje and Megalo.
  2. [95]
    The applicants made a claim under the statutory insurance scheme. At the time, they were relying on the information available to them. QBCC disallowed the claim.

Section 67 of schedule 6 to the QBCC Regulation

  1. [96]
    Section 67 provides:
  1. (1)
    This section applies if:
  1. (a)
    the commission is given notice of a claim for assistance; and
  1. (b)
    the commission is of the opinion the residential construction work the subject of the claim is defective or incomplete.
  1. (2)
    Before deciding to allow or disallow the claim, the commission must decide whether to give a direction to rectify or remedy the work under section 72 of the Act.
  1. [97]
    The applicants gave notice of a claim for assistance. QBCC was of the opinion the residential construction work was defective or incomplete.
  2. [98]
    QBCC, on deciding to disallow the claim, did not give a direction to rectify or remedy the work under section 72 of the QBCC Act. The effect of the decision, however, was not to give the direction.

Options

  1. [99]
    The available options include:
  1. decide the application to review the internal review decision pressed by the applicants;
  2. invite the decision-maker for the internal review decision to reconsider the decision under section 23(1) of the QCAT Act; or
  3. join the relevant parties as respondents to the proceeding and give directions for the completion of any outstanding interlocutory steps and a further hearing of the proceeding.
  1. [100]
    The matters of immediate concern are compliance with the requirements for procedural fairness and the adequacy of the evidence before the decision-maker and now the Tribunal.
  2. [101]
    The requirements for procedural fairness must be adjusted to the statutory framework governing the Tribunal in question. As was said by Mason J (as his Honour then was) in Kioa, what is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting. In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be considered as legitimate considerations.[11]
  3. [102]
    Mr David L Grice and Grice Tiling was given little opportunity to respond. The defective work was not identified in the emails exchanged by Mr Richardson and Mr David L Grice other than by use of terms such as, ‘… possible defective works …’, ‘I am trying to determine if you carried out the waterproofing works on this home and if so, who engaged you and paid you for the works …’ and ‘[t]his home has water leaks that we have determined are due to failures of the waterproofing membranes to the ensuite and the second and third floor patios …’
  4. [103]
    In the case of Cartella Services, it was not afforded an opportunity to respondent.
  5. [104]
    A decision on the evidence now before the Tribunal may give the applicants the relief they seek but leave QBCC without a right to recover from a builder. Giving the builders a right to be heard, in my opinion, is a necessary step in the process. Without it, QBCC may be prevented from pursuing other remedies available to it.
  6. [105]
    The second option will result in the decision-maker for the internal review decision reconsidering the decision. Asking the decision-maker to do so will delay the outcome of the proceeding. It may, however, give rise to a favourable result for the applicants.
  7. [106]
    The attraction of the option is that it gives QBCC an opportunity to properly investigate the claim and make a decision having regard to the whole of the evidence, including that forthcoming from Mr David L Grice, Grice Tiling and Cartella. 
  8. [107]
    The third option leaves the proceeding with the Tribunal. It means there will be delay pending the completion of the interlocutory steps and a rehearing, if necessary.
  9. [108]
    I am not satisfied the evidence is sufficient to ignore an incomplete investigation and the inconsistencies. The brief communications with Mr David L Grice and Grice Tiling, in my opinion, are insufficient to satisfy the requirement for a flexible obligation to adopt fair procedures which are appropriate and adopted to the circumstances of this case.
  10. [109]
    Cartella was not afforded a fair opportunity to correct or contradict statements prejudicial to its view.
  11. [110]
    The conclusions offered by the applicants may well be correct. However, what must be borne in mind is the applicants carry the onus of establishing the claim. Without the necessary evidence, the decision-maker may refuse it.
  12. [111]
    In my opinion, in the circumstances here, the steps taken by the parties complied with the requirements of sections 66 and 67 of schedule 6 to the QBCC Regulation. The applicants did what was required of them by the section. QBCC considered the application and decided to disallow the claim.
  13. [112]
    On balance, I am satisfied the appropriate option is to invite the decision-maker for the internal review decision to reconsider the decision. It avoids any suggestion of a denial of procedural fairness. Also, it avoids deciding the proceeding without sufficient evidence and an early rehearing the proceeding.
  14. [113]
    There remains the application for the building disputes being out-of-time.   

Grice Tiling

  1. [114]
    Grice Tiling was registered as a business name on three occasions. The initial registration was cancelled on 12 September 2014. The second and third cancellations were registered on 12 April 2016 and 26 September 2016. It is not registered.
  2. [115]
    Grice Tiling Pty Ltd was deregistered on 10 February 2020. It is not now registered.

Cartella Services and Cartella Services Pty Ltd

  1. [116]
    Cartella Services and Cartella Services Pty Ltd are registered.

Conclusion

  1. [117]
    The parties must identify the defective work. They must then identify who carried out the defective work and when it was carried out.
  2. [118]
    The particulars of the defective work must be provided to the party concerned and they must be afforded an opportunity to respond.
  3. [119]
    The reason for the defective work, the work necessary to rectify or remedy the defects and the evidence necessary to identify the party responsible for the defective work must also be identified.

Order

  1. [120]
    The order of the Tribunal is that the decision-maker for the internal review decision be invited to reconsider the decision under section 23(1) of the QCAT Act.

Footnotes

[1] The third party is not identified in the internal review decision.

[2] The unidentified third party in the internal review decision.

[3] Cartella Services Pty Ltd (‘Cartella’).

[4] QCAT Act, s 40(2).

[5] [2024] HCA 10.

[6]AB, [26]. See also Annetts v McCann (1990) 170 CLR 596, per Mason CJ, Deane and McHugh JJ at 598; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, per Mason CJ, Dawson, Toohey and Gaudron JJ at 576; Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78, per Weinberg J at [117]; Kioa v West (1985) 159 CLR 550 (‘Kioa’), per Brennan J at 609; Italiano v Carbone [2005] NSWCA 177, per Basten JA at [80].

[7] [2018] QCAT 290.

[8] [2024] QCAT 138.

[9] [2022] QCAT 417.

[10] [2023] QCA 217.

[11] Ibid, at [33].

Close

Editorial Notes

  • Published Case Name:

    Small & Anor v Queensland Building and Construction Commission

  • Shortened Case Name:

    Small v Queensland Building and Construction Commission

  • MNC:

    [2025] QCAT 270

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    30 Jun 2025

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
AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10
2 citations
Jump To
Cite 1 - [2024] HCA 10
Cite 2 - [2024] HCA 10
Ahmet v Queensland Building and Construction Commission [2022] QCAT 417
2 citations
Jump To
Cite 1 - [2022] QCAT 417
Cite 2 - [2022] QCAT 417
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
2 citations
Jump To
Cite 1 - (1990) 170 CLR 596
Cite 2 - (1990) 170 CLR 596
Italiano v Carbone [2005] NSWCA 177
2 citations
Jump To
Cite 1 - [2005] NSWCA 177
Cite 2 - [2005] NSWCA 177
Jackson v Queensland Building and Construction Commission [2018] QCAT 290
2 citations
Jump To
Cite 1 - [2018] QCAT 290
Cite 2 - [2018] QCAT 290
Karamaroudis v Queensland Police Service [2023] QCA 217
2 citations
Jump To
Cite 1 - [2023] QCA 217
Cite 2 - [2023] QCA 217
King and McDonald v Queensland Building and Construction Commission [2024] QCAT 138
2 citations
Jump To
Cite 1 - [2024] QCAT 138
Cite 2 - [2024] QCAT 138
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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