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Kovacs v Queensland Building and Construction Commission[2025] QCAT 68

Kovacs v Queensland Building and Construction Commission[2025] QCAT 68

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Kovacs v Queensland Building and Construction Commission [2025] QCAT 68

PARTIES:

dianna may kovacs

(applicant)

v

Queensland Building and construction commission

(respondent)

APPLICATION NO/S:

GAR299-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 February 2025

HEARING DATE:

19 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

The internal review decision of the Queensland Building and Construction Commission dated 11 July 2019, confirming its decision to not give Pantha Homes Pty Ltd a direction to rectify, is confirmed. 

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

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 (‘the house’).
  2. [3]
    The Builder commenced work on her house on 25 October 2017 and completed it on 9 August 2018.
  3. [4]
    The builder laid concrete pathways on each side of the house (‘the work’).
  4. [5]
    On 18 March 2019, Mrs Kovacs lodged a complaint with the QBCC (‘the complaint’) about the work. Complaint item 1 of her complaint form, submitted to the QBCC, inter alia states: ‘Concrete not as per design and cracking’.
  5. [6]
    On 27 May 2019, QBCC Inspector Brian Bates attended the house to assess the complaint. He observed:
    1. two hairline cracks which were ‘barely visible to the naked eye’.[1]
    2. cracking in the pavement on the right-hand side of the house measured no more than 0.25mm.
    3. cracking on the left-hand side of the house measured no more than 0.5mm.
    4. instead of Isolation Joints in accordance with Clause 5.4.3 of Australian Standard 3727.1:2016 (AS3727:2016) (as per ‘Typical’ pathway design), the builder installed Control Joints as per Clause 5.4.2 of AS3727:2016.
    5. some parts of the Control Joints had not been fully cut to a depth of ¼ of the slab thickness (as per Clause 5.4.2(b)(iii)) and not at full width (as per clause 5.4.8).
  6. [7]
    On 11 June 2019, QBCC notified Mrs Kovacs of its decision to not to issue the builder with a rectification notice for the matters raised in the complaint (‘original decision’).
  7. [8]
    On 11 July 2019, QBCC notified Mrs Kovacs of its decision to confirm the original decision (‘internal review decision’).
  8. [9]
    On 14 January 2020, when Mr Bates revisited the house, he noticed that the builder had cleaned out, adjusted, and made deeper cuts to the construction joints. During the visit he formed the opinion that pathway does not cause health and safety issues, the finish is uniform, and it is aesthetically pleasing.

Applicant’s contentions

  1. [10]
    Concerning the defective work, in summary Mrs Kovacs contends:
    1. the work was defective because the builder installed Control Joints in lieu of Isolation Joints, contrary to engineering plans prepared by STA Engineering.
    2. the Control Joints were themselves defective because the Builder did not cut them to full depth or width.
    3. the cracking that occurred is not random cracking as defined by AS 3727:2016.
    4. the Builder did not comply with Table 5.2 – ‘Concrete Base Parameters’ of AS3727:2016, which required reinforced steel mesh (‘reinforcement’) to be placed 30 ml from the top of the paving. Rather, the reinforcement was lying on the ground underneath the concrete.
    5. the Builder’s failure to install Isolation Joints, cut Construction Joints, and install reinforcement, in conformance with AS3727:2016, caused cracks to appear in the paths.

QBCC’s contentions

  1. [11]
    QBBC contends:
    1. the cracks that Mr Bates measured were within the tolerances outlined in Section 2.1 of the Commission’s Standards and Tolerances Guide and within the tolerances outlined in the Australian Standard AS3727.1:2016 Pavements Part 1, Part 2.2 and Table 2.2.
    2. the cracks were random.
    3. using Control Joints instead of Isolation Joints is an adopted building practice and builders are not required to follow ‘Typical’ footpath design.
    4. using Control Joints does not render the pathway defective, nor does it demonstrate the footpath is not performing.
    5. installing Isolation Joints is an accepted building practice. Builders are permitted to utilise alternative solutions.  STA confirms as much in their report.
    6. the performance standards outlined in AS3727:2016 have been met.
    7. a report prepared by STA Engineers confirms that the pathways are performing in accordance with relevant Australian Standards.
    8. QBCC is not limited to the terms of the contract when considering whether to give a direction to rectify.
    9. QBCC do not undertake invasive inspections. Therefore, the absence of reinforcement would not have been apparent at the time it made its decision.
    10. the appearance the pathways is aesthetically acceptable.
    11. the cracks cannot be definitively attributed to the Builder’s s use of Control Joints. There are many potential reasons why the cracks could have occurred, such as weather conditions, or the type of concrete mix used.

The Hearing

  1. [12]
    The review proceeded to a hearing on 19 March 2024. QBCC called Mr Bates at a witness.
  2. [13]
    At the hearing, Mr Bates said:
    1. with the benefit of hindsight, the joints were defective because they weren’t positioned properly or cut to the correct depth, as required by Australian Standards. However, he maintained that it would be unfair to require the Builder to rectify the defects because the pathways were performing.
    2. he did not make any attempt to ascertain whether the Builder placed reinforced steel mesh in the concrete.
    3. he did not check whether the reinforcement stopped on either side of the control joints.
    4. after the inspection he because aware that scanning of the concrete revealed that the Builder did not install reinforcement at the correct depth. He did not contest the accuracy of those scans.
  3. [14]
    Both Mrs Kovacs and her son Stephen Kovacs gave evidence at the hearing, but I did not consider their evidence to be of any import.
  4. [15]
    Mrs Kovacs purported to rely on the evidence of Mr Pierre Dragh, who is a member of Professional Engineers Australia.
  5. [16]
    Mrs Kovacs engaged Mr Dragh to independently investigate the work. Mr Dragh provided his findings in a letter dated 22 January 2020, in which he stated:
    1. control and isolation joints on the site show poor construction practices. The builder ought to have used a proprietary crack inducing device to create the construction joints as “saw cutting will never be edge to edge due to the circular radius of grinding blades”.
    2. the use of control joints on an entrant corner would have required engineering approval.
    3. there is no cracking where the builder correctly installed an isolation joint.
    4. the cracking that has occurred is the result of the construction methods used.
    5. scanning did not reveal the presence of reinforcement in the concrete at locations 1,2,3,4 and 6, notwithstanding STL engineering design required the installation of SL72.
    6. the scanner detected reinforcement at location 7 but at a depth of 12 cm which would be outside the concrete.
    7. most control joints were spaced 2.6 metres apart, contrary to the Australian Standards, which required them to be no greater than 1.5 metres apart if no reinforcement was used.
    8. on inspection of the concrete, no subbase was visible under the concrete. Rather, the builder laid concrete directly onto the soil.
    9. cracking is not within the control joints, which means they have failed to do what is required of them.
  6. [17]
    In an earlier letter to Mrs Kovacs dated 5 July 2019, Mr Dragh explained that the Builder ought to have followed the “Typical Pathway and Driveway Details contained in AS3727:2016” unless STA required a different design. He opined that the Builder was not entitled to unilaterally employ a different performance solution.
  7. [18]
    At the hearing, Mr Dragh’s viva voce evidence mirrored his findings and opinions above. When cross examined, he said:
    1. if saw cuts are not done correctly, a crack will appear next to them or perpendicular to them.
    2. Control Joints are a viable alternative to Isolation Joints if they are cut to the correct depth.
    3. cracking in pavements is not common if properly constructed. It “used to happen a long time ago but not too much anymore”.
    4. he accepted the proposition that there were several reasons pavements might crack, such as the “soil” below.
    5. in the photographs he observed, cracks only appeared in areas where there are joints. The rest of the slab has no cracking except for other remittent joints which go to stormwater drains that had no isolation joints around them.
    6. there are no other reasons for the cracks aside from the poor construction of the control joints. 

Relevant Law

  1. [19]
    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. [20]
    Such a request must be made within 12 months after the person becomes aware of the building work the person considers it is defective or incomplete.[2]
  3. [21]
    The QBCC Act defines the term ‘defective’, in relation to building work, to include work that is ‘faulty’ or ‘unsatisfactory’.
  4. [22]
    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.[3]
  5. [23]
    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).[4]
  6. [24]
    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.[5]
  7. [25]
    If a direction to rectify or a 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.[6]
  8. [26]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[7]
  9. [27]
    The Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits.[8]
  10. [28]
    In a proceeding for a review of a reviewable decision, the Tribunal may: [9]
    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.

Consideration

  1. [29]
    Two primary questions fall to be answered in this review, namely:
    1. was the work defective? and
    2. would it be unfair to issue the Builder with a direction to rectify the work?

Is the work defective?

  1. [30]
    I am amply satisfied that the work was defective. Mr Bates admitted as much in his evidence. I find that the evidence overwhelmingly establishes that:
    1. the control joints were not cut to the correct depth and did not extend to the perimeter of the house.
    2. reinforcement was not installed at the correct depth.
    3. the builder employed control joints where isolation joints ought to have been used.
  1. [31]
    The above deficiencies are plainly ‘unsatisfactory’, and therefore fall within the definition of ‘defective’ stated in the QBCC Act.
  1. [32]
    Additionally, I find that it was the improperly constructed Construction Joints which most likely caused the cracks. I accept Mr Drahg’s opinion that, if the joints were properly cut, cracks would not have occurred outside the joints. QBCC provided no convincing alternative reasons for why the cracks may have occurred. 

The question of ‘unfairness’

  1. [33]
    The more pertinent question in the proceeding, is whether it would be unfair to require the Builder to rectify the defect. In my opinion, the answer to that question is ‘yes’. Having perused photographs of the cracks on Tribunal file, I concur with Mr Bates’ observation that the cracks were barely visible to the naked eye.
  2. [34]
    I do not consider it necessary to resolve the controversy about whether the cracks were ‘random cracks’ that fell within the tolerances permitted under AS3727:2016. At the end of day, the cracks are trivial. They are not unsightly. The aesthetics of the pathways are not impacted. The concrete used in the pathways was performing at the time Mr Bates inspected it. There is no evidence that the defective work would have caused the pathways to fail or otherwise stop performing in the future. The cracks did not increase in size in the nearly seven months that elapsed between Mr Bates’ two inspections of the house. The obvious inference, therefore, is that future cracks were unlikely to occur.
  3. [35]
    In all the circumstances, I consider that at the time QBCC made its decision, it would have been unfair to require the Builder to rectify the work. Accordingly, I propose to confirm QBCC’s internal review decision. 
  4. [36]
    It is apposite to note that in a separate proceeding GAR127-20, involving the same parties, the Tribunal ordered that the Builder must rectify unrelated defective work at Mrs Kovacs property. Satisfying, that order, which concerns the installation of stormwater pipes, will require the Builder to reinstate the concrete pathways that are the subject of the present review. So, whilst Mrs Kovacs has lost the present battle, it would seem she has won the war. She will get new pathways.

Application of the Human Rights Act 2019 (Qld)

  1. [37]
    The Tribunal must apply the Human Rights Act2019 (Qld) (‘HR Act’) when reviewing the decisions of a ‘public entity’.[10] 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[11] or in making a decision, to fail to give proper consideration to a human right relevant to the decision.[12] 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. [38]
    I considered whether 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.
  3. [39]
    Ultimately, I conclude that the Tribunal’s decision does not engage s 24(2). The extent of the defective work is so trivial, that it cannot be meaningfully contended Mrs Kovacs has been deprived of her property.

Footnotes

[1]  Statement of Brian Leslie Bates, p 17, para 24(iii).

[2]  QBCC Act, s 71J(4)(a).

[3]  Ibid, s 72(1)(a) & (2)(a).

[4]  Ibid, s 72(3).

[5]  Ibid, s 72(5).

[6]  Ibid, s 72A(3).

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

[8]  Ibid, s 20(2).

[9]  Ibid, s 24.

[10] 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.

[11]  HR Act, s 58(1)(a).

[12]  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 68

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    13 Feb 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
1 citation
Jump To
Cite 1 - [2020] QCAT 480
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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