Bace Investments Pty Ltd v Queensland Building and Construction Commission

[2025] QCAT 442

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Bace Investments Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 442

PARTIES:

BACE INVESTMENTS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR299-24

MATTER TYPE:

Building matters

DELIVERED ON:

6 November 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1.     The application by Queensland Building and Construction Commission filed 22 November 2024 to dismiss the proceeding is granted.

2.     The proceeding is dismissed.

3.     Any application for costs in the proceeding be filed in the Tribunal and given to the other party by email, by:

4:00pm on 1 December 2025.

4.     A reply to any application for costs in the proceeding be filed in the Tribunal and given to the other party by email, by:

4:00pm on 12 January 2026.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant applied to dismiss the proceeding – whether the internal review decision is reviewable – whether the application lacks utility – whether the application for external review should be dismissed

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 72A, s 75, s 77, s 86, s 86A, s 86B, s 86C, s 86D, s 86E, s 111C, sch 1B, s 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 18, s 20, s 21, s 24, s 47

ACN 148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72

Australian Broadcasting Tribunal v Bond [1990] HCA 33
Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109
Body Corporate for Jade Apartments CTS40720 v Lee Crocker v Queensland Building and Construction Commission [2020] QSC 24
Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] QCA 134
Jorg & Anor v Queensland Building and Construction Commission & Anor [2021] QCATA 134
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71
Stephenson v Queensland Building and Construction Commission [2017] QCAT 212
Tanna v Queensland Building and Construction Commission [2023] QCATA 81
TCQ Pty Ltd ATF Midgley Family Trust v Queensland Building and Construction Commission [2023] QCAT 485
The Body Corporate for Jade Apartments CTS 40720 v Queensland Building and Construction Commission [2016] QCAT 445

Vytla v Queensland Building and Construction Commission [2024] QCAT 346

APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Application

1. On 22 November 2024 the respondent (‘Commission’) made application to the Tribunal to dismiss the proceeding under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) (‘interlocutory application’). It filed written submissions in support of the application.

2. The applicant (‘Bace Investments’) filed written submissions in reply to the application.

Issues

1. The central issue to be decided by the Tribunal is whether it has jurisdiction to hear and decide the proceeding. Alternatively, it is submitted, the original application lacks utility and should be dismissed.

Background

1. Bace Investments does not dispute the background to the application set out in the Commission’s submissions.

2. On 10 August 2015, about 10 years ago, Bace Investments as building contractor and Mr Kieran Bryce as building owner entered a Queensland New Homes Construction Contract (‘contract’) for the construction of a home at 23 Bergamot Circuit, Griffin (‘home’).

3. On 10 August 2015 Bace Investments insured the building work under the statutory insurance scheme with the policy providing cover until 10 February 2022.

4. On 10 March 2016 the building work reached practical completion.

5. On 22 December 2016 Mr Bryce became aware of the building defect.

6. On 9 September 2023 Mr Bryce asked the Commission to give a direction to Bace Investments to rectify building work he considered defective or incomplete. The complaint item is in the following terms:

Item	Location	Description	Date first noticed	Attachments
1.	En suite	Water leaking in en suite shower. Leak has been identified since approx 22/12/2016. Water leak comes out of shower, through internal walls onto carpet. Leak has attempted to be bandaid patched over the years by builder. Leak still present with mould	22/12/2016	4

1. On 25 October 2023 the Commission decided not to give a direction to Bace Investments to rectify or remedy the building work on the ground the application was outside the time in section 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) (‘original decision’).

2. The work was inspected by the Commission on 14 February 2024. It gave to Mr Bryce and Bace Investments a copy of the report. The decision of the Commission on the complaint item is in the following terms:

   The installation of the waterproof membrane to the ensuite wall has not been installed in accordance with the NCC 2015 BCA Volume 2 in that water is able to escape behind linings, or into concealed spaces, resulting in damage to building elements

   Pertains item 1 of the QBCC Complaint Form

3. The Commission then gave to Bace Investments a letter dated 15 February 2024 (‘15 February 2024 letter’). The letter confirms the Commission will not be directing Bace Investments to rectify or remedy the work on the ground mentioned in the original decision. It then continues:

   Kieran Bryce may still be entitled to a claim under the Queensland Home Warranty Scheme. This this is your opportunity to have the necessary work rectified by a licensed contractor, before assessment of Kieran Bryce's entitlement to a claim.

   If the work detailed in the attached Defective Work List is not addressed, the QBCC will consider if Kieran Bryce is entitled to a claim under the Queensland Home Warranty Scheme.

   The QBCC may recover payment made on an insurance claim as a debt from the building contractor or a director (including a director at the time the building work was carried out and a director at the time a payment is made by the QBCC), as allowed under the Queensland Building and Construction Commission Act 1991.

   In addition, if a claim is approved, it will appear on the register of licensees which is available to the public on the QBCC’s website.

4. On 13 March 2024 the Commission determined the work had not been rectified or remedied. A notice to that effect was given by the Commission to Bace Investments.

5. Bace Investments, on 14 March 2024, applied for internal review. The decision identified in the application was the 15 February 2024 letter.

6. On 11 April 2024 the internal reviewer completed the internal review. She confirms the original decision not to give a notice to rectify or remedy on the ground the application is outside the time in section 72A(4) of the QBCC Act (‘internal review decision’).

7. The decision reviewed identified in the decision notice is the 15 February 2024 letter.

8. On 30 April 2024 Bace Investments made application to the Tribunal to review the internal review decision.

9. In summary:

   (a)on 25 October 2023 the Commission decided not to give a notice to Bace Investments to rectify or remedy the defective work on the ground the application was outside the time in section 72A(4) of the QBCC Act;

   (b)the Commission gave to Bace Investments the 15 February 2024 letter confirming it will not be directing Bace Investments to rectify or remedy the defective work on the ground mentioned in the original decision and stating the owner may be entitled to claim under the statutory insurance scheme;

   (c)on 14 March 2024 Bace Investments applied for internal review of the 15 February 2024 letter, not the original decision;

   (d)on 11 April 2024 the internal reviewer confirmed the original decision not to give to Bace Investments a direction to rectify or remedy the work on the ground mentioned in the original decision. The decision reviewed is the 15 February 2024 letter. It records submissions about the statutory insurance scheme which cannot be considered because the original decision being reviewed is the decision not to direct Bace Investments to rectify or remedy the work; and

   (e)on 30 April 2024 Bace Investments made application to the Tribunal to review the internal review decision.

Internal review decision

1. The internal review decision is a review of the 15 February 2024 letter. The decision reads:

   I have decided NOT to give a Direction to Rectify as the Statutory Timeframe has expired.

2. After setting out the background and Bace Investments’ submissions, the internal review decision continues:

   The letter and attachment of 7 February 2024 is a Notice Defective works list (NODW). The QBCC Act allows for the reviewable decision under S86(e) to be a decision to not give a direction to rectify or remedy.

   The NODW is issued to allow the Director of the cancelled and or liquidated company to take relevant and or appropriate action to rectify the alleged defects identified by the affected party if the Director see fit.

   Further, it reserves the QBCC ability to recover any debt that maybe incurred at a later point in time if a claim is paid under the Statutory Insurance Scheme.

3. The decision highlights the confusion in the following paragraph. It reads:

   During the course of the Internal review, the applicant has made reference to the Insurance Claim against the Statutory Scheme, and the fundamental elements that should be considered before accepting a claim. These comments and allegations cannot be considered under this internal review because the decision before me under Section 86(e) is relative to whether a decision to issue a Direction to rectify or remedy or decision to not give a direction.

4. It then refers to legislation and policy considerations, and under the subheading ‘Statutory Timeframe’ continues:

   Pursuant to sections 72(2A) and 72A(4) of the QBCC Act, a DTR cannot be given more than six years and six months after the “building work” is complete or left in an incomplete state.

   Section 72A(4) of the QBCC Act provides a direction to rectify cannot be given more than 6 years and 6 months after the building work was completed or left in an incomplete state (the statutory period). However, an extension of time for giving a direction to rectify may be granted by the Queensland Civil and Administrative Tribunal (QCAT) if it is satisfied, upon application by the QBCC, that there are sufficient reasons for extending the time to give the direction.

   The complaint item relates to building work that was completed on or about 10 March 2016 when the applicant provided a form 21, final inspection certificate. Accordingly, the final date for the QBCC to be able to give a direction to rectify was on 10 September 2022.

   However, I have noted that complaint form was lodged on 9 September 2023 out of statutory time frame. As such, I am satisfied that the time to issue a DTR has expired and a DTR cannot be issued.

Legislation

1. Usefully, the Commission sets out the legislation relevant to the issues raised. It commences with section 72 of the QBCC Act, the power to require rectification of building work and remediation of consequential damage. Relevantly, the section provides:

   (1)     This section applies if the commission is of the opinion that:

   (a)building work is defective or incomplete; or

   (b)consequential damage has been caused by, or as a consequence of, carrying out building work.

   (2)     The commission may direct the person who carried out the building work to do the following within the period stated in the direction:

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

   (b)for consequential damage—remedy the damage.

   (2AA) and (2A)     …

   (3)     In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).

   (4)     …

   (5)     The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.

   Example for subsection (5):

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

   (6)–(8)     …

2. Subsection (4) of section 72A provides:

   A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

3. Reviewable decisions are provided for in section 86. Relevantly, a decision to give a direction to rectify or remedy, or not to give the direction, is a reviewable decision.[1]

   [1]QBCC Act s 86(1)(e).

4. A person who is given, or is entitled to be given, a notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed.[2]

   [2]QBCC Act s 86A.

5. The requirements for an internal review application are set out in section 86B.

6. Section 86C provides that if an internal review application is made under section 86B, the internal reviewer must, as soon as practicable but within the required period, make the internal review decision as if the reviewable decision the subject of the application had not been made.

7. Reviewable decision is defined in section 86E of the QBCC Act. It means:

   (a)     a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1; or

   (b)     an internal review decision within the meaning of subdivision 1.

8. The Tribunal’s review jurisdiction is provided for in division 3 of part 1 of chapter 2 of the QCAT Act. Section 17, under the heading ‘Generally’, provides:

   (1)     The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

   (2)     For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.

9. When the review jurisdiction is exercised is provided for in section 18 of the QCAT Act. It is in the following terms:

   (1)     The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

   (2)     A person may apply to the tribunal to exercise its review jurisdiction for a reviewable decision, and the tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary inquiry or investigation under the Ombudsman Act 2001.

10. A review involves a fresh hearing.[3] Section 21 contains provisions requiring a decision-maker to help the Tribunal.

    [3]QCAT Act s 20.

11. The functions for the review jurisdiction are provided for in section 24. Subsections (1) and (2) provide:

    (1)     In a proceeding for a review of a reviewable decision, the tribunal may:

    (a)confirm or amend the decision; or

    (b)set aside the decision and substitute its own decision; or

    (c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

    (2)     The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision:

    (a)is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and

    (b)subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

12. The Tribunal is given power to dismiss, strike out and decide if a proceeding, or part, is unjustified. Sections 47(1) and (2) relevantly provide:

    (1)     This section applies if the tribunal considers a proceeding or a part of a proceeding is:

    (a)frivolous, vexatious or misconceived; or

    (b)lacking in substance; or

    (c)otherwise an abuse of process.

    (2)     The tribunal may:

    (a)if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or

    (b)for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—

    (i)make its final decision in the proceeding in the applicant’s favour; or

    (ii)order that the party who brought the part before the tribunal be removed from the proceeding; or

    (c)make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.

Does the Tribunal have jurisdiction to hear and decide the proceeding?

Commission’s submissions

1. The Commission’s submissions identify the issue to be decided by the Tribunal and background to the original application. It then refers to the relevant legislation and several decided cases, including Fraser Property Developments Pty Ltd v Sommerfeld (No. 1)[4], JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority[5], TCQ Pty Ltd ATF Midgley Family Trust v Queensland Building and Construction Commission[6] (‘TCQ’), The Body Corporate for Jade Apartments CTS40720 v Queensland Building and Construction Commission[7] (‘Jade Apartments’), Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd[8] (‘B & L Constructions’) and Vytla v Queensland Building and Construction Commission[9] (‘Vytla’).

   [4][2005] QCA 134.

   [5][2013] QCAT 502.

   [6][2023] QCAT 485.

   [7][2016] QCAT 445.

   [8][2023] QCATA 71.

   [9][2024] QCAT 346.

2. I will return to the cases later in these reasons for decision.

3. The submissions then address the application for early dismissal. Several cases are referred to by the Commission, including Vytla. There, the Tribunal says:

   [35] In considering whether to strike out a proceeding pursuant to s 47 of the QCAT Act, I am satisfied I have the requisite material and have received the necessary assistance from the parties to make a definite and certain conclusion.

   [36]   The principles in considering whether to exercise the discretion to strike out a proceeding were considered by Chief Justice Barwick in General Industries Inc v Commissioner for Railways. His Honour said:

   Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings … in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

   [37]   The Tribunal is limited in a review of this decision to asking whether that decision was the correct and preferable one. It is not an opportunity for the Tribunal to make a completely different type of decision unrelated to the one under review, for example, that a decision to issue a direction to rectify be made instead. (Citations omitted)

1. The Commission then submits the 15 February 2024 letter is not a direction to rectify building work under section 72(2) of the QBCC Act but was taken to be a decision not to give a direction to rectify. The internal review decision is not a reviewable decision, applying B & L Constructions. It submits an internal review decision will only be properly made if it relates to a properly made application for internal review which in turn means the applicant must apply for review of a reviewable decision.

Bace Investments’ submissions

1. Bace Investments submits the application is to review the internal review decision. The decision is a reviewable decision within the meaning of section 86(1)(e) of the QBCC Act.

2. It disagrees with the Commission’s interpretation of B & L Constructions and Vytla and submits the internal review decision is a reviewable decision irrespective of whether the internal reviewer correctly or incorrectly characterised the 15 February 2024 letter.

3. Bace Investments refers to the decision of the Tribunal in Stephenson v Queensland Building and Construction Commission[10]. There, at [22], the Tribunal said:

   The QBCC, after failing to correctly identify the ‘decision’ to be reviewed then refused the internal review by considering the delay of 381 days. It says because the IRU application was not correctly made within the requirement of section 86B (i.e. within 28 days) no decision could be made under section 86C. This is clearly wrong. If a review is requested it can be refused on the basis that there is no reviewable decision. This decision, if appropriate, can be reviewed. This is in fact what was done and notice of review rights were provided in that letter. At that point the IRU letter was a reviewable decision. (Citation omitted)

   [10][2017] QCAT 212.

4. The 15 February 2024 letter, Bace Investments submits, is not sanctioned by legislation. It is a ‘new decision’ and clearly directs rectification of the work.

5. In the alternative, Bace Investments submits, the 15 February 2024 letter is a reviewable decision by reason of section 86B of the QBCC Act it having made the application within 28 days after it became aware of the decision.

Decided cases

1. The Commission refers to several decided cases of the Tribunal and Appeal Tribunal. In Jade Apartments, the applicant, on 20 June 2014, complained about defective work. The Commission decided not to give a notice to rectify the building work on the ground the company was not the building contractor and the company responsible had been wound up and was no longer entitled to a licence under the QBCC Act.

2. Subsequently, on 4 May 2016, the applicant again asked the Commission to give a direction to rectify the building work, explaining in an accompanying letter the complaint item restates the first complaint item.

3. The Commission internally reviewed the original decision on the first complaint. It was confirmed.

4. The owner then applied to the Commission for internal review of the second complaint. It did not decide the application but informed the owner it had upheld the decision on the first complaint.

5. The owner applied to the Tribunal for review of the two decisions.

6. The Tribunal decided there is no decision in the list of reviewable decisions in section 86 of the QBCC Act which would extend to a decision to refuse to investigate a complaint or refuse to consider an internal review application. It then continued:

   A decision to give a direction to rectify or remedy or not to give the direction is a reviewable decision under s86(1)(e). The decision on the first complaint not to give a direction to rectify may be a decision of this character. A decision to refuse to investigate a second complaint about the same subject matter which, if investigated, may have lead to such a decision, is not.[11]

   [11]Jade Apartments [5].

7. The decision may be distinguished from the internal review decision now before the Tribunal. The application for external review of the first decision was out of time, the second decision was not a reviewable decision.

8. In B & L Constructions, a building contractor constructed a home. It was sold and the new owner complained about defective work. The complaint was disallowed but then allowed on internal review. The building contractor applied to the Tribunal for review of the internal review decision.

9. The Tribunal decided it has jurisdiction to hear and decide the proceeding. At [11], it observed:

   The original decision of the appellant to reject the claim was a reviewable decision within the meaning of subdivision 1, being within s 86(1)(h), a decision to disallow a claim under the statutory insurance scheme, but it was the subject of an internal review, so it does not satisfy paragraph (a). But as a result of the internal review, there was an “internal review decision within the meaning of subdivision 1” …

10. It later continued:

    In the present case, the internal reviewer made a decision, so there was an internal review decision for the purposes of s 86(1) and hence within the meaning of subdivision 1. If one reads the words of s 86E(b) literally, there was also an internal review decision for the purposes of paragraph (b) of the definition of “reviewable decision” in s 86E. That decision affected the builder, because of the statutory indemnity in the Act s 71, so it was entitled to apply to the Tribunal for review of that decision under s 87. That was the effect of the decision of the Member. Unless the terms of s 86E(b) are read down in some way, it was correct, and the appeal must be dismissed.[12]

    [12]B & L Constructions [12].

11. The Tribunal concluded the provisions establish that, once there has been an internal review, the constraints on what are reviewable decisions imposed by section 86 have been satisfied, so that any internal review decision becomes a reviewable decision.

12. Here, the internal reviewer did not review the original decision, she reviewed the 15 February 2024 letter. The consequence is that unless the internal reviewed decision can be said to be a ‘new decision’ that is a reviewable decision, it cannot be said Bace Investments was a person who is given, or is entitled to be given, notice of a reviewable decision.

13. A notice to a director of a building contractor was considered by the Appeal Tribunal in TCQ. The Commission gave a director a notice informing him it would not be giving a direction to rectify building work on the ground that it was not registered but the building owner may be entitled to assistance under the statutory insurance scheme.

14. The director applied to the Commission for internal review of the decision. The decision described the original decision as a decision not to give a direction to rectify under section 72 of the QBCC Act. The internal reviewer found the application by the building owner was not made within 12 months of the owner becoming aware of the defective building work, it would be unfair to direct rectification of the work and decided not to give the direction to rectify.

15. The owner applied to the Tribunal for review of the internal review decision.

16. The Tribunal decided the notice to the director is not a reviewable decision within the meaning of section 86 of the QBCC Act. In so doing, it referred to the decision of Mason CJ in Australian Broadcasting Tribunal v Bond[13], and Jackson J in Crocker v Queensland Building and Construction Commission[14] (‘Crocker’). In the latter case, his Honour considered a notice about the liability of a director for payment by the Commission for assistance under the statutory insurance scheme under section 111C of the QBCC Act. He said:

    Otherwise, on the material before me, the essential plank in the applicant’s case to set aside the other decisions was that he ought to have been given notice of the challenged decisions, which I have identified, in either paragraphs (c) or (d). It is not contended that, under the statute, there was any express requirement for him to be notified. The apparent difficulty that the implication of such a requirement would create is that failure to give notice to a director of a building contractor who may be affected under section 111C would have the consequence of invalidating every decision which is made by the respondent. That would be a startling conclusion. Nevertheless, if that is what is required on the proper construction of the statute, there is no reason to shrink from it.

    However, in my view, apart from the fact of the incidence of the liability that is created under section 111C for a director who meets the requirements for that Section to apply, there is no reason to think that the statute should require that, for a valid decision of the kinds identified under paragraphs (c) or (d) to be made, notice must be given to the director of any company building contractor as well as to the company itself.

    In my view, the fact of the operation of section 111C is not of itself a sufficient reason to imply that requirement into the statute. It follows that, in the result, none of the decisions that are challenged on the basis of the ground of absence of procedural fairness are reviewable under section 20 for the reason that the respondent was required to give the applicant notice of those decisions.[15]

    [13][1990] HCA 33, [32].

    [14][2020] QSC 24.

    [15]Crocker 1.

17. The view was repeated by the Tribunal in ACN 148 877 525 Pty Ltd v Queensland Building and Construction Commission[16] (‘ACN 148 877 525’):

    This provision allows the QBCC to recover the insurance debt from the directors personally, thereby displacing the common law separate entity principle. This applies notwithstanding the company may have been deregistered. The decision as to whether or not to recover the insurance debt is made after the scope of works decision and depends upon whether the person from whom recovery is sought was a director when the relevant building work was carried out and when the payment under the scheme was made.[17] (Citation omitted)

    [16][2022] QCAT 72.

    [17]ACN 148 877 525 [53].

18. The Tribunal, in Vytla, considered an original decision building work undertaken on direction by the Commission was of a satisfactory standard. The internal review decision was a ‘deemed decision’, a decision the same as the original decision because it had not been decided within 28 days. The Commission applied to the Tribunal to strike out the external review proceeding on the ground the internal review decision is not a reviewable decision.

19. At [28], the Tribunal said:

    I do not accept the submissions of the QBCC to the effect that the Tribunal on review needs to be satisfied that the original decision was a ‘reviewable decision’. I agree that this would be relevant if the Tribunal was reviewing the original decision, but it is not. The Tribunal is reviewing the internal review decision. The internal review decision is itself a “reviewable decision” within the meaning of s 86E(b).

20. The Tribunal’s conclusion is found in [31]:

    It follows, in my view, that whether the original decision was or was not properly categorised as a reviewable decision is not relevant. The decision was categorised as a reviewable decision and was the subject of an internal review. The internal review decision is a reviewable decision and the Tribunal has jurisdiction to review it. It follows that the application to strike out should not be allowed on the basis the Tribunal lacks jurisdiction. That, however, is not the end of the matter.

21. The Commission disagrees with the decision in Vytla. It submits, ‘… where an application for internal review is properly made to the Commission (i.e. pursuant to section 86A and 86B, being an application for internal review of a “reviewable decision” listed in section 86 of the QBCC Act), it is irrelevant that the decision ultimately made within the “internal review decision” is one that is not listed in section 86, because a properly made “internally review decision” is of itself externally reviewable in the Tribunal pursuant to section 86E(b).’ The submission gives rise to a need to review the process for an internal review decision.

Internal review application

1. A person involved in a building dispute, under section 77(1) of the QBCC Act, may apply, as provided under the QCAT Act, to the Tribunal to have the Tribunal decide the dispute. However, the person may not apply to the Tribunal unless the person has complied with a process established by the Commission to attempt to resolve the dispute.[18]

   [18]QBCC Act s 77(2).

2. The powers of the Tribunal are spelt out in section 77(3). They include ordering rectification or completion of defective or incomplete tribunal work.[19]

   [19]QBCC Act s 77(3)(g).

3. Building dispute is defined in schedule 2. It includes a domestic building dispute which in turn includes a claim or dispute arising between a building owner and building contractor relating to the performance of the reviewable domestic work or a contract for the performance of reviewable domestic work.

4. Reviewable domestic work is defined as domestic building work under schedule 1B, section 4, except as provided in the definition. Here, the contract was a domestic building contract.

5. Tribunal work is defined in section 75(1). It includes the erection or construction of a building. Reviewable domestic work is declared to be tribunal work.[20]

   [20]QBCC Act s 75(2).

6. The power given to the Tribunal is to order rectification or completion of defective or incomplete tribunal work. Tribunal work includes the erection or construction of a building. It extends to tribunal work.

7. Reviewable decision is defined in section 86. It includes a decision to give a direction to rectify or remedy or not to give a direction.[21]

   [21]QBCC Act s 86(1)(e).

8. Under section 86A(1), a person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed. However, the subsection does not apply if the person has applied to the Tribunal for a review of the reviewable decision under subdivision 2.

9. The requirements for an internal review application are set out in section 86B. They include a requirement the application be made within a specified period after the applicant is given notice of the reviewable decision to which the application relates or otherwise becomes aware of the decision. In other words, whilst the internal reviewer may make a new decision under section 86C, it is in respect of the reviewable decision to which the application relates.

10. If an internal review application is made under section 86B, the internal reviewer, by virtue of section 86C(1), must, as soon as practicable but within the required period, make a new decision as if the reviewable decision the subject of the application had not been made. However, if the internal reviewer does not decide the application within the required period, the internal reviewer is taken to have made an internal review decision at the end of the required period that is the same as the reviewable decision.[22]

    [22]QBCC Act s 86C(3).

11. Several matters flow out of sections 86A–86D. First, a person who is given, or is entitled to be given, notice of a reviewable decision may apply to the internal reviewer to have the decision reviewed. The right is confined to a reviewable decision.

12. Secondly, the internal review application must comply with section 86B. Support for the view the application must relate to the reviewable decision is found in paragraph (b)(i). Otherwise, the Commission may decline to make a new decision.

13. Thirdly, the internal review decision is a new decision unconstrained by the reviewable decision the subject of the application but, in my opinion, in the context of the original decision and the reviewable decision to which the internal review application relates.

14. Here, the internal review application was to review the 15 February 2024 letter. The letter is not a reviewable decision; it is an advisory letter. The legislation makes clear the entitlement to apply to the internal reviewer to have a decision reviewed is a person who is given, or is entitled to be given, notice of a reviewable decision. The letter did not fall within the category specified and, hence, the interlocutory application must be granted.

15. In case I am wrong, I have also considered whether the review application is lacking in substance.

Does the original application lack utility?

Commission’s submissions

1. The Commission, under the subheading Review Application lacking in substance, submits a decision notice cannot be given because ‘… there is no question arising for the Tribunal to answer.’ Then, under the subheading ‘Expiry of timeframe for issuing direction to rectify’, the Commission refers to several decided cases.

2. In Jorg & Anor v Queensland Building and Construction Commission & Anor[23] (‘Jorg’), the Appeal Tribunal, at [43], observes:

   Section 24(1) of the QCAT Act begins with the words ‘In a proceeding for a review of a reviewable decision…’. The section assumes that the tribunal has jurisdiction in a particular review proceeding. The jurisdiction of a court, or in this case a tribunal, is not to be confused with its powers. Where, as here, an application to review a decision not to issue a direction to rectify is not filed within 6 years and 6 months of the completion of the building work and where, as here, there is no application by the commission to extend the time limit, the tribunal has no jurisdiction to review the decision. Section 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist.[24] (Citation omitted)

   [23][2021] QCATA 134.

   [24]Jorg [43].

3. In Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor[25] (‘Parkside Bulimba’), the Appeal Tribunal allowed an appeal from the Tribunal on the ground the jurisdiction of the Tribunal to review a decision of the Commission was not limited by section 72A(4) of the QBCC Act. The section, the decision continues:

   … simply prevents the QBCC from sending a direction to rectify after expiry of the period in s 72A(4) unless an extension of time is sought by the QBCC and granted by the Tribunal. Once the decision to issue a direction to rectify is viewed as separate to the direction itself, s 24(2)(b) of the QCAT Act can properly come into play to deem any substituted decision to have been made on the date of decision under review which is in this case within the 6-year 6-month time frame.[26]

   (See also Tanna v Queensland Building and Construction Commission[27]).

   [25][2024] QCATA 109.

   [26]Parkside Bulimba [85].

   [27][2023] QCATA 81, [49].

4. In Parkside Bulimba, the Tribunal decided a question to be answered may arise in circumstances where the time in section 72A(4) had passed. The circumstances, the Commission submits, are limited to a decision under review where the direction to rectify or remedy is given within six years and six months after the building work to which the direction relates was completed or left in an incomplete state. That is not what happened here.

5. Bace Investments submits the 15 February 2024 letter is a direction to rectify. The Commission disagrees, citing Vytla, at [37]. There, the Tribunal said:

   The Tribunal is limited in a review of this decision to asking whether that decision was the correct and preferable one. It is not an opportunity for the Tribunal to make a completely different type of decision unrelated to the one under review, for example, that a decision to issue a direction to rectify be made instead.

6. It follows, it is submitted by the Commission, the original application cannot succeed because it did not give a direction to rectify. Further, the time for giving a direction under section 72A(4) of the QBCC Act has passed.

Bace Investments’ submissions

1. Bace Investments’ submissions focus on the 15 February 2024 letter. It should be declared a ‘nullity’.

2. Of critical importance, Bace Investments submits, is whether the 15 February 2024 letter is a direction to rectify and merits the internal review decision. It has an arguable case and it would be in the interests of justice to hear and decide the original application on its merits.

1. Bace Investments refers to the decision of the Tribunal in TCQ, in particular [34]. There, the Tribunal set aside an internal review decision on the ground the decision was not a reviewable decision and went on to consider whether a complaint item was in time.

2. Bace Investments’ submissions conclude:

   The Applicant submits that it would be in line with the objects of the QCAT Act for the tribunal to proceed to hear and determine the Review Application on its merits given the questionable approaches taken by the decision-maker in relation to the decision under review to ensure fairness and consistency in decisions by the Commission.

Consideration

1. Mr Bryce gave the complaint item to the Commission on 9 September 2023, about six years and nine months after the building work to which the direction relates was completed or left in an incomplete state. The Commission declined to give a direction to rectify on the ground the time for a direction had passed.

2. The 15 February 2024 letter was then given by the Commission to Mr Bryce and Bace Investments. On 14 March 2024 Bace Investments applied to the internal reviewer to review the letter. The decision reviewed is in the following terms:

   Decision made by Peter Doolan, Building Inspector on 15 February 2024 to NOT issue a Direction to Rectify (DTR) under Section 72 of the Queensland Building and Construction Commission Act 1991 (the Act)

3. The background describes the 15 February 2024 letter as a decision, ‘… not to issue a Direction to Rectify (DTR) instead issued a Notices of Defective a Work List (NODW).’ The decision misdescribes the letter. What it does is confirm the complaint item was given outside the time in section 72A(4) of the QBCC Act and the decision is a reviewable decision.

4. The 15 February 2024 letter then goes on to state that, unless the work in the defective work list is carried out, the building owner may be entitled to assistance under the statutory insurance scheme.

5. The internal review decision refers to Bace Investments’ submissions. They include submissions that:

   (a)the 15 February 2024 letter was given outside of, and contrary to, legislation;

   (b)the letter is invalid because it retrospectively imposes a responsibility on Bace Investments for rectification of work; and

   (c)the Commission decided by default Bace Investments is not liable for rectification of work.

6. The submissions are mistaken. The 15 February 2024 letter is an advisory letter, not a decision to rectify. It does not impose responsibility on Bace Investments for rectification work. It states that if the work in the defective work list is not carried out, Mr Bryce may be entitled to assistance under the scheme. The Commission did not decide, by default or otherwise, Bace Investments is not liable for rectification work. It decided the complaint was given outside the time specified in section 72A(4).

7. The internal review decision refers to legislation. It concludes by deciding a direction to rectify or remedy cannot be given because of the time in section 72A(4).

8. The internal review decision reviews the 15 February 2024 letter. The letter is not a reviewable decision. Notwithstanding, the decision confirms the original decision.

9. Leaving to one side the internal review decision is not a review of a reviewable decision, the issue now to be decided is whether the complaint item is outside the time in section 72A(4) of the QBCC Act. The Commission, in its submissions, refers to the decision of the Tribunal in Parkside Bulimba. The exception identified is accepted but is not advanced by the parties in material filed in the Tribunal. They agreed the complaint was outside the time in section 72A(4).

10. The Tribunal may order in terms of section 24(1) of the QCAT Act. Here, the internal review decision confirmed the original decision. The decision of the Tribunal, in my opinion, cannot be otherwise.

11. I am mindful of the provisions of section 47 of the QCAT Act and am satisfied the Tribunal has before it all of the material relevant to the issue to be decided. Also, I am mindful of what was said by Barwick CJ in General Steel Industries Inc v Commissioner for Railways[28]. There, his Honour the Chief Justice, citing Dixon J (as his Honour then was) in Dey v Victorian Railways Commissioners[29], said:

    As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners where he says: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.” Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.

    [28](1964) 112 CLR 125, [10].

    [29](1949) 78 CLR 62, 91.

12. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[30] The internal review is not a review of a reviewable decision and therefore the internal review decision must be set aside. Further, the internal review decision lacks utility. The interlocutory application must be granted and the proceeding dismissed.

    [30]QCAT Act s 20(1).

Decision

1. The decision of the Tribunal is that the interlocutory application be granted. The proceeding is dismissed.

2. I will hear the parties on costs.