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Kovacs v Queensland Building and Construction Commission[2025] QCAT 52

Kovacs v Queensland Building and Construction Commission[2025] QCAT 52

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kovacs v Queensland Building and Construction Commission [2025] QCAT 52

PARTIES:

dianna may kovacs

(applicant)

v

Queensland Building and construction commission

(respondent)

APPLICATION NO/S:

GAR127-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

27 January 2025

HEARING DATE:

19 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

  1. The decision of the Queensland Building and Construction Commission to not give Pantha Homes Pty Ltd a direction to rectify is set aside and substituted with the Tribunal’s decision that Troy Steven Lukritz must rectify the building work described in Complaint Item 2 of the Residential and Commercial Construction Complaint Form, submitted to the QBCC, by Dianna May Kovacs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant sought a review of the respondent’s decision to not give a decision to rectify defective building work – where primary issue in contest was whether it would be unfair to issue the builder with a notice to rectify – where a question arose as to the extent to which the Tribunal could take into account the builder’s partial rectification of the defective work.

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

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

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646

PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188

APPEARANCES & REPRESENTATION:

Applicant:

Mr S Kovacs

Respondent:

S Hedger (Solicitor), HWL Ebsworth Lawyers

REASONS FOR DECISION

  1. [1]
    Dianna May Kovacs has applied to the Tribunal for a review of an internal decision by the Queensland Building and Construction Commission (‘QBCC’), confirming its decision to not give Pantha Homes Pty Ltd (‘Builder’) a direction to rectify building work that she contends is defective.

Chronology

  1. [2]
    Mrs Kovacs engaged the builder to build her a house.
  2. [3]
    The builder commenced work on her house on 25 October 2017 and completed it on 9 August 2018.
  3. [4]
    While constructing the house, the builder engaged a plumber to install a stormwater pipe (‘pipe’) adjacent to the ensuite bathroom of the house (‘the work’). The pipe is situated within an excavated trench (‘trench’).
  4. [5]
    Mrs Kovacs contends that the work is defective because the trench was excavated within the ‘zone of influence’, which is an angle extending down and away from the lower external corner of the perimeter of the house.
  5. [6]
    On 16 September 2019, Mrs Kovacs lodged a complaint with the QBCC (‘complaint’) about the defective work.
  6. [7]
    On 14 January 2020, QBCC Inspector Brian Bates inspected the house to assess the complaint. He found:
    1. the edge of the field gully adjacent to the under-eave extension is approximately 600mm from the perimeter of the main house slab and approximately 130mm from the external of the under-eave extension.
    2. the depth of the pipe work at the base of the stormwater pit measured approximately 500mm which indicates the bottom of the stormwater trench is approximately 100mm-150mm inside the zone of influence taking into account the visible slab edge.
    3. an inspection of the internal and external of the ensuite under eave extension did not reveal any movement, cracking to floor tiles or grout line, plaster wall sheeting, bulkhead square set corners, internal and external corners of the rendered exterior cladding and no movement to interior and exterior mouldings.
    4. the house perimeter to the boundary has been concreted with falls to stormwater pits. The concrete pathway is in place and performing.
    5. the positioning of the stormwater line is not in accordance with the National Construction Code (‘NCC’) and ‘Australian Standards 3500.3 – Stormwater drainage’.
  7. [8]
    Mr Bates documented his findings in a report dated 22 January 2020.
  8. [9]
    On 23 January 2020, QBCC notified Mrs Kovacs of its decision to not to issue a direction to rectify to the builder in respect of the matters raised in the complaint (‘original decision’). In short compass, in reaching that decision, QBCC relied on Mr Bates’ findings that the ensuite and the house foundation were performing, notwithstanding excavation within the zone of influence.
  9. [10]
    By a letter dated 17 March 2020, QBCC notified Mrs Kovacs of its decision confirming the original decision (‘internal review decision’).

Applicant’s contentions in the review

  1. [11]
    QBCC concedes that the work was defective, but it submits that it would be unfair to issue the builder with a direction to rectify because:[1]
    1. during his inspections Mr Bates did not observe movement or cracking to the under-eave extension to the ensuite.
    2. the concrete pathway around the perimeter of the house was performing with no obvious defects evident.
    3. the concrete slab to the under-eve extension to the ensuite was performing with no obvious defects evident.
    4. the sanitary drainage was inspected and approved by Morton Bay Regional Council.
    5. the stormwater line was performing with no evidence of subsidence and movement in the 22 months between its installation and Mr Bates’ inspection.
    6. the foundations were performing in accordance with Australian Standard 2870 – Residential Slabs and Footings (‘AS2870’).
    7. STA Consulting Engineers, who designed the drainage system and inspected the house, did not consider that any rectification was required.
    8. rectification would require the builder to remove sections of concrete pathway where the pipework runs parallel to the under-eave extension, followed by excavation and redirection of the work outside the zone of influence, followed by compacting the existing trench material, correcting the substrate and re-installing the concrete pathways with falls to the new stormwater pit positions, the cost of which could be in the range of $8,000 to $10,000.
    9. the builder has already moved the pipes outside the zone of influence.
    10. it can only assess the state of the property at the time it saw it.[2]
    11. QBCC does not have a crystal ball, cannot anticipate what may or may not happen in the future and ought not engage in hypothetical situations.[3]

Mr Bates’ evidence

  1. [12]
    The review proceeded to a hearing on 19 March 2024. QBCC called Mr Bates as a witness. His viva voce evidence was consistent with the opinions expressed in his report and a statement filed in the Tribunal. He said:
    1. the work did not comply with the requirements of the NCC or Australian Standard 3500.3.
    2. at the time of his inspection, which was 22 months after the house was completed, there was no evidence of cracking to the internal bulkhead, plaster, or the internal sections of the plasterwork where the toilet and vanity are positioned. There was no movement or cracking identified in the grout or the tiles on the floor of the ensuite. Externally, there was no visible movement or cracking in the lightweight wall of the under-roof extension. 
    3. he did not consider it reasonable to issue a direction to rectify because there was no evidence of movement. The house appeared as if it had been newly built.

The evidence of the expert witnesses

  1. [13]
    Mrs Kovacs called two expert witnesses. They were:
    1. Mr Pierre Dragh; and
    2. Mr Stephen Sam Kolano.
  2. [14]
    Mr Dragh is a member of Professional Engineers Australia. Mrs Kovacs engaged him to provide advice about the potential effects of the defective work on the house.
  3. [15]
    In a statement filed in the Tribunal Mr Dragh deposed:
    1. to ensure compliance with the NCC and relevant Australian standards, ‘standard design practice is to provide pier support if any works are to be carried out within the zone of influence’.
    2. there is no evidence provided by the builder, to show proper back fill and compaction of the trench was supplied and installed as required by AS2870:2011. Excavation has been undertaken on each side of this footing through sewage and storm water drainage. Sound engineering practice is to pier the footing to prevent any effect from moisture on the soil over the 50-year life span of the slab.
    3. given the installation practice undertaken, piers should be added in line with AS2870:2011 for compliance.
  4. [16]
    Mr Dragh expressed similar opinions in a written report filed in the Tribunal and dated 25 September 2019. He stated: 
    1. in short, piers need to be added to the footing due to the trenches’ influence on the ground beneath the footing. The is currently installed in non-compliant with Australian Standards and NCC.
    2. the plumbing installation has not followed the advice by STA Engineering on page 11 of 16 and is non-compliant with AS2870, NCC and A3500. STA’s designer ensured a zone of influence created by the trench would not influence the foundation. Any pipe trenches within this area of influence would affect the building foundation design.
    3. … given there are no compaction tests confirming ground stability the ground can only be assumed as unstable for foundation bearing. 
    4. in the Australian Capital Territory there is a requirement for piers alongside drainage. There will definitely be movement in the future if they (the piers) are not done.
    5. he has personally observed subsidence on a couple of occasions where drainage was installed within the zone of influence. The subsidence manifested five to six years into the life of the house.
    6. without piers the weight of the house could put pressure on the pipes and crack them.
  5. [17]
    At the hearing, Mr Dragh maintained his opinion that piers were required to prevent subsidence if excavating within the zone of influence. In cross examination it was put to Mr Dragh that there was no evidence that the footing or foundations were not performing. In response Mr Dragh said:
    1. subsidence is not something that happens overnight. 
    2. it does take a long time for things to subside.
    3. he would not expect evidence of the stormwater line affecting the performance of the property to manifest within a period of two years. It could take five or six years depending on the rain and movements in the soil.

Evidence of Stephen Kolano

  1. [18]
    Mr Stephen Kolano holds NSW and ACT accredited certifier licences. He provided a statement to the Tribunal stating that if the stormwater pipe has been positioned below the zone of influence, it would mean the development does not comply with the deemed to satisfy provisions of the Building Code of Australia (‘BCA’). He further stated that non-compliance with the provisions of the BCA Part 3.1.2 can cause serious long term problems.
  2. [19]
    During the hearing Mr Kolano said:
    1. whilst he conceded that he was not a geotechnical or structural engineer, he opined that if work occurred within the zone of influence, variations in ground moisture and temperature, expansion and contraction, could cause settlement of the foundation.
    2. any excavation within the zone of influence could potentially undermine the edge beam of the slab, which is where loads from the roof are transferred.
    3. the design life of a building under AS2870 is referred to as 50 years. Lack of compliance could affect impact serviceability long term.
  3. [20]
    When cross examined, Mr Kolano was unwilling to put a timeframe on when problems might manifest due to excavation within the zone of influence. He gave evidence that there were too many variables at play to predict a definite timeframe, namely:
    1. rainfall volumes.
    2. the quantity of water seepage
    3. the classification of the foundation material.
  4. [21]
    Both Mrs Kovacs and her son Stephen Kovacs gave evidence at the hearing but contributed nothing of import. In my view, this is a proceeding that turned on the evidence of the experts.

Relevant Law

  1. [22]
    Section 71J(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides that a consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete.
  2. [23]
    Such a request must be made within 12 months after the person becomes aware of the building work the person considers is defective or incomplete.[4]
  3. [24]
    The QBCC Act defines the term ‘defective’, in relation to building work, to include work that is ‘faulty’ or ‘unsatisfactory’.
  4. [25]
    If the QBCC opines the building work is defective or incomplete, it may direct the person who carried out the building work to rectify it.[5]
  5. [26]
    In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).[6]
  6. [27]
    Notably, the QBCC is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to the give the direction.[7]
  7. [28]
    If a direction to rectify or remedy is given to a person who is not currently licenced to carry out the required work, the person must have work carried out by a licenced contractor.[8]
  8. [29]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[9]
  9. [30]
    The Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits.[10]
  10. [31]
    In a proceeding for a review of a reviewable decision, the Tribunal may: [11]
    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.

The builder’s partial rectification of the defective work?

  1. [32]
    There is a twist to this proceeding. During the hearing, Mrs Kovacs confirmed that builder moved the subject stormwater pipe outside the zone of influence. However, in the process of doing so, the builder removed but did not replace the concrete pathway covering the pipes. 
  2. [33]
    A question therefore arises, about the extent to which the Tribunal can consider the builder’s partial rectification, when making its decision. I adopt the Tribunal’s reasoning in Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 and Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245. Those cases are authority for the propositions that:
    1. the question to be determined by the Tribunal is whether, at the time the decisions were made, the correct and preferable decision was to issue or not issue a direction to rectify;[12] and
    2. for the purpose of exercising its discretion, the Tribunal shall embrace a temporally fluid approach by considering all current available evidence directed to the question which the original decision maker was bound to decide. That evidence does not include evidence of rectification work carried out by the builder.

Consideration

  1. [34]
    In this proceeding, the following issues are not in contest. 
    1. the Tribunal has jurisdiction to review the decision.
    2. the work that the builder performed was ‘building work’.
    3. Mrs Kovacs made her rectification request with the timeframe prescribed by the QBCC Act.
    4. the work was defective because it did not comply with AS3500 or the NCC.
  2. [35]
    Accordingly, in my mind the primary issue the Tribunal must decide is whether it would be unfair to the builder to give the direction to rectify.
  3. [36]
    I have concluded that it would not be unfair to give the builder a decision to rectify, because I am not satisfied that subsidence or other secondary defects caused by the defective building work would have necessarily manifested at the time Mr Bates inspected the house.
  4. [37]
    In reaching the above conclusion, I had regard to Mr Dragh’s contention that it could take five or six years, or more, for evidence of the stormwater line affecting the performance of the property to manifest, depending on rain and the movements in the soil. Notably, QBCC did not challenge Mr Dragh’s expertise to give that evidence. Further, during cross examination, QBCC did not put to him that his contention was wrong. In the absence of contradictory expert evidence, I accept Mr Dragh’s opinion about that issue. 
  5. [38]
    Notwithstanding that QBCC did not challenge Mr Dragh’s expertise, I am nevertheless satisfied that that the construction of residential houses is a field of specialised knowledge. I consider that the impact of excavation within the zone of influence is an aspect of that field of knowledge about which Mr Dragh has become an expert by reason of specified training, study, and experience. Mr Dragh is an engineer by profession, and he has personally observed subsidence, and foundation failure, in houses where drainage has been installed within the zone of influence.
  6. [39]
    Although Mr Dragh did not personally visit Mrs Kovacs’ house, the assumed facts upon which he based his opinion are not in dispute. QBCC readily accepts that the stormwater line lies within the zone of influence. The precise extent to which it does so is particularised in Mr Bates’ report. Mr Dragh also had access to pictures and the house plans to inform his opinions.
  7. [40]
    Similarly, I am satisfied that Mr Kolano has sufficient expertise to comment on the long-term impact on excavation within the zone of influence. He is an experienced certifier. He has inspected many houses in the performance of his vocation. He has personally observed the deleterious consequences of improper excavation. I therefore accept his opinion that positioning the stormwater line below the zone of influence could have serious long-term consequences.
  8. [41]
    I reject QBCC’s submissions that it cannot predict the future and ought not engage in hypothetical situations. In my view, when determining whether it would be unfair to give a direction to rectify, logic dictates that the likelihood of subsidence or other secondary defects manifesting at some future date cannot be disregarded. The position QBCC took in this case fails to acknowledge the true reality of building residential houses, which is that problems caused by defective building work might only manifest many years after the date of practical completion. 
  9. [42]
    Lastly, I do not consider that rectifying the defective work would be a particularly onerous burden on the builder. All that remains to be done is the laying of a concrete pathway over the relocated stormwater trench.
  10. [43]
    For the reasons above, I propose to set aside QBCC’s internal review decision, and substitute it with the Tribunal’s decision that a direction to rectify should issue.
  11. [44]
    It is apposite to note that the builder has gone into liquidation. However, s 71I(1)(m) of the QBCC Act provides that a person who carries out building work is taken to include a person who was the nominee for a licensed contractor that is a company, for work carried out by the company while the person was the company’s nominee. In this case the builder’s nominee was Troy Steven Lukritz. It is appropriate therefore for any direction to rectify to be given to Mr Lukritz.

Application of the Human Rights Act 2019 (Qld)

  1. [45]
    The Tribunal must apply the Human Rights Act 2019 (Qld) (‘HR Act’) when reviewing the decisions of a ‘public entity’.[13] QBCC is a public entity. Section 58 of the HR Act provides that it is unlawful for a public entity to act or make a decision in a way that is not compatible with human rights[14] or in making a decision, to fail to give proper consideration to a human right relevant to the decision.[15] A decision is compatible with human rights if it does not limit a human right, or limits a human right only to the extent that is reasonably justifiable in accordance with s 13 of the HR Act.
  2. [46]
    I consider s 24(2) of the HR Act is potentially relevant to the decision the Tribunal must make when reviewing the QBCC’s decision. It provides that a person must not be arbitrarily deprived of the person’s property. In this instance, my decision has the effect of preserving the physical integrity of Mrs Kovac’s property. Therefore, the decision is compatible with human rights. 

Footnotes

[1]  Respondent’s Outline of Submissions, p 4, para 4.3.

[2]  Transcript of Proceeding, p 129.

[3]  Ibid, p 130.

[4]  QBCC Act, s 71J(4)(a).

[5]  Ibid, s 72(1)(a) & (2)(a).

[6]  Ibid, s 72(3).

[7]  Ibid, s 72(5).

[8]  Ibid, s 72A(3).

[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[10]  Ibid, s 20(2).

[11]  Ibid, s 24.

[12] Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 at [45].

[13] PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188; Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646, [291]; PJB v Melbourne Health [2011] VSC 327.

[14]  HR Act, s 58(1)(a).

[15]  Ibid, s 58(1)(b).

Close

Editorial Notes

  • Published Case Name:

    Kovacs v Queensland Building and Construction Commission

  • Shortened Case Name:

    Kovacs v Queensland Building and Construction Commission

  • MNC:

    [2025] QCAT 52

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    27 Jan 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
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
3 citations
Jump To
Cite 1 - [2020] QCAT 480
Cite 2 - [2020] QCAT 480
Cite 3 - [2020] QCAT 480
Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245
1 citation
Jump To
Cite 1 - [2021] QCAT 245
Kracke v Mental Health Review Board & Ors [2009] VCAT 646
2 citations
Jump To
Cite 1 - [2009] VCAT 646
Cite 2 - [2009] VCAT 646
PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188
2 citations
Jump To
Cite 1 - [2020] QCAT 188
Cite 2 - [2020] QCAT 188
PJB v Melbourne Health and Anor (Patrick's case') [2011] VSC 327
1 citation
Jump To
Cite 1 - [2011] VSC 327

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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