Barry v Queensland Building and Construction Commission - [2015] QSC 50

SUPREME COURT OF QUEENSLAND

CITATION:

Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50

PARTIES:

TERRENCE RALPH BARRY

(first applicant)

TERRY BARRY BUILDERS PTY LTD
ACN 115 050 998

(second applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISION
(respondent)

FILE NO:

SC No 915 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

13 March 2015

DELIVERED AT:

Brisbane

HEARING DATE:

4 March 2015

JUDGE:

Flanagan J

ORDER:

1.   Application dismissed.

2.   I will hear the parties as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the second applicant was contracted to construct an outdoor deck and extension to an existing deck – where the majority of building work was completed on 18 December 2007, further building work was completed on 21 May 2008 and the final inspection certificate of the building work was issued on 26 August 2008 – where a direction was issued by the respondent to the second applicant to rectify defective or incomplete building work on 22 August 2014 – where the direction was required to be given within 6 years and 3 months after the “building work to which the direction relates” was completed pursuant to s 72(8) of the Queensland Building Construction Commission Act 1991 (Qld) – whether a direction issued outside 6 years and 3 months is invalid – whether the relevant date for s 72(8) should be identified by reference to the completion date of the defective work identified in the direction or the completion date of the whole of the building work, including the issuing of a final inspection certificate

Queensland Building Construction Commission Act 1991 (Qld), s 72(1), s 72(2), s 72(8)

Guitar Buildings v Queensland Building Services Authority & Meznaric [2013] QCATA 260, distinguished
Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited

O’Grady v Northern Queensland Co Limited (1990) 169 CLR 356, 374; [1990] HCA 16, cited

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

Torea Pty Ltd v Queensland Building Services Authority [2013] QCAT 004, not followed

COUNSEL:

M T Labone for the applicants

T J Mitchell (sol) for the respondent

SOLICITORS:

BCCS Law for the applicants

CBP Lawyers for the respondent

By originating application, the first and second applicants seek a declaration that a Direction to Rectify and/or Complete Number 40384 (“the Direction”) is void.
The Direction was given by the respondent, Queensland Building and Construction Commission (“QBCC”), on 22 August 2014. The Direction was given to the second applicant, Terry Barry Builders Pty Ltd, of which the first applicant is a director.
The Direction relevantly provides:
“You are directed to rectify the following defective or incomplete building work within the Time Period for Completion.
1. The inspection found that a significant percentage of the timber joists to the newly constructed deck area are…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 50
Decision Date: 13 March 2015

CaseChat Overview and Summary

The case of Barry v Queensland Building and Construction Commission involved a challenge to the validity of a direction issued by the respondent to the second applicant to rectify defective or incomplete building work. The dispute centred on whether the direction was issued outside the required timeframe of 6 years and 3 months after the completion of the building work, as mandated by section 72(8) of the Queensland Building Construction Commission Act 1991 (Qld). The key issue for the court was to determine when the "building work to which the direction relates" was completed and whether this was before 22 May 2008. The applicants argued that the direction was invalid as it was issued beyond the specified timeframe.

The court had to interpret the term "building work" as defined in the QBCC Act, which includes contract administration such as arranging for certificates. The applicants contended that the term "building work" should be limited to the defective work identified in the direction, citing a decision from Torea Pty Ltd v Queensland Building Services Authority. However, the court rejected this interpretation, holding that the term "building work" carries its defined meaning in the Act, which encompasses not only the physical construction of the deck but also the administrative tasks such as arranging for certificates. Consequently, the court found that the building work was not completed until the final inspection certificate was issued on 26 August 2008, meaning the direction was given within the required timeframe.

The court concluded that the direction was valid, as the building work to which the direction related was completed on the issuing of the final inspection certificate on 26 August 2008. The applicants' application for declaratory relief was dismissed, and the originating application was otherwise dismissed. The court will hear the parties regarding costs.

Orders

Orders of the court

1. Application dismissed.

2. I will hear the parties as to costs.

Background

Background to the litigation

The validity of the Direction is challenged on the basis that it was given out of time. This requires the court to determine what constitutes “the building work to which the direction relates” and when that work was completed. The Direction will be out of time if “the building work to which the direction relates” was completed before 22 May 2008. Background The second applicant is a builder licensed under the QBCC Act. In or about October 2007 the first applicant was contacted by the owners of a property at Thornlands to price the construction of a timber outdoor deck and extension to an existing deck at the property. On 16 October 2007 the second applicant provided the owners with a sketch plan for the works and a quotation to undertake the works. Subsequently on 2 November 2007 the owners entered into a contract with the second applicant for the construction of the outdoor deck and extension to the existing deck. The contract included a provision of $1,900 for fitting timber slats under the deck. The timber slats are not shown on the sketch plan or the approved plans. On 10 December 2007 the plans were approved. On or about 13 December 2007 the owners requested that the fitting of the timber slats under the deck be delayed to allow the owners to install a concrete boundary. On 18 December 2007 the second applicant completed the construction of the timber outdoor deck and the extension to the existing deck. On 21 December 2007 the owners paid the second applicant $10,500 for the works which had been completed, retaining $1,900 for the slats under the deck. The slats were installed by the second applicant on 21 May 2008. On 30 June 2008 the second applicant received a cheque from the owners for $1,900 for fitting the timber slats under the deck. In August 2008 the owners requested that the second applicant arrange for the final inspection. The completed deck was inspected on 21 August 2008. A final inspection certificate for the deck was issued on 26 August 2008.[1] [1] Affidavit of Terrence Ralph Barry sworn 26 February 2015, [27]; exhibit MH-10 to the affidavit of Martyna Ewa Hinchliffe sworn 3 March 2015. Whilst the parties agree that a final inspection certificate in Form 21 was issued by a private building certifier on 26 August 2008 in relation to the deck, the first applicant alleges that the delay in obtaining the final inspection certificate was entirely due to the need for the owners to install glass balustrade. The separate installation of glass balustrading was however always contemplated.[2][2] The “Approved Plans”, exhibit TRB-3 to the affidavit of Terrence Ralph Barry sworn 26 February 2015, contains the following notation, “Future glass balustrade (by others)”. As I have already noted, the Direction will be out of time if the building work to which the Direction relates was completed before 22 May 2008. The only events that took place after 22 May 2008 was the receipt by the second applicant of the cheque for $1,900 as payment for the fitting of the timber slats under the deck and the final inspection and issuing of the final inspection certificate on 26 August 2008. The physical construction of the deck was completed by the second applicant on 18 December 2007.[3][3] Affidavit of Terrence Ralph Barry sworn 26 February 2015, [15].The proper construction of s 72(8) of the QBCC Act

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The provision of a final inspection certificate falls within the definition of “building work” which means, among other things, contract administration. Contract administration includes arranging for certificates. The building work was therefore not completed until the second applicant arranged the final inspection and issued the final inspection certificate on or about 26 August 2008. Time therefore commenced to run from 26 August 2008. It follows that the respondent gave the Direction within time. Conclusion The term “building work” in s 72(8) of the QBCC Act carries its defined meaning. The “building works to which the direction relates” was completed on the issuing of the final inspection certificate on or about 26 August 2008. The Direction given by the respondent was therefore within time for the purposes of s 72(8). I decline to grant the declaratory relief sought by the applicants and otherwise dismiss the applicants’ originating application. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The term “contract administration” in subsection (fa) of the definition of “building work” is also a defined term:[13]“contract administration, in relation to building work designed by a person, includes the following—(a) preparing tender documentation and calling and selecting tenders;(b) preparing, or helping the person’s clients with the preparation of, contracts;(c) preparing additional documentation for the person’s clients or building contractors;(d) arranging and conducting on-site meetings and inspections;(e) arranging progress payments;(f) arranging for certificates, including certificates from a local government, to be issued;(g) providing advice and help to the person’s clients including during the maintenance period allowed under a contract.”[13] Queensland Building and Construction Commission Act 1991 (Qld) sch 2. In the present case the respondent did not make any application, pursuant to s 72(8), to the tribunal for any extension of time. The question is when was the “building work” to which the Direction relates completed? The applicant, relying on a QCAT decision in Torea Pty Ltd v Queensland Building Services Authority,[14] submitted that the “building work to which the direction relates” should be identified by reference to the defective work identified in the Direction. I have set out the Direction above. The applicant’s submission would limit the “building work to which the direction relates” to “the timber joists to the newly constructed deck area”. The applicant relied on the following passage from Torea Pty Ltd v Queensland Building Services Authority:“[21]In my view it is not correct to determine the completion date on which all of the building work was completed. That is, it is not correct to have regard to dates of certification for a building or dates of practical completion for a building or dates of certification for fire requirements. To do so would be to ignore the words which qualify the building work as they are used in s 72(8) of the Act.”[14] [2013] QCAT 004. To the extent that the applicant relies on the decision in Torea Pty Ltd v Queensland Building Services Authority, I am of the view that the case was wrongly decided. As I have already observed, the term “building work” is a defined term in the QBCC Act. Section 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. The words “the building work to which the direction relates” does not indicate that “building work” is to have other than its defined meaning. The defined meaning of “building work” includes not just the physical construction of the deck but also arranging for a certificate to be issued. The legislature, had it intended to limit “the building work to which the direction relates” to the defective building work identified in the direction, could have used other terms such as “the building work referred to in the direction” or “the building work the direction requires to be rectified” rather than the broader term “the building work to which the direction relates”.

CITATION:	Barry & Anor v Queensland Building and Construction Commission [2015] QSC 50
PARTIES:	TERRENCE RALPH BARRY (first applicant) TERRY BARRY BUILDERS PTY LTD ACN 115 050 998 (second applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISION (respondent)
FILE NO:	SC No 915 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	13 March 2015
DELIVERED AT:	Brisbane
HEARING DATE:	4 March 2015
JUDGE:	Flanagan J
ORDER:	1. Application dismissed. 2. I will hear the parties as to costs.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the second applicant was contracted to construct an outdoor deck and extension to an existing deck – where the majority of building work was completed on 18 December 2007, further building work was completed on 21 May 2008 and the final inspection certificate of the building work was issued on 26 August 2008 – where a direction was issued by the respondent to the second applicant to rectify defective or incomplete building work on 22 August 2014 – where the direction was required to be given within 6 years and 3 months after the “building work to which the direction relates” was completed pursuant to s 72(8) of the Queensland Building Construction Commission Act 1991 (Qld) – whether a direction issued outside 6 years and 3 months is invalid – whether the relevant date for s 72(8) should be identified by reference to the completion date of the defective work identified in the direction or the completion date of the whole of the building work, including the issuing of a final inspection certificate Queensland Building Construction Commission Act 1991 (Qld), s 72(1), s 72(2), s 72(8) Guitar Buildings v Queensland Building Services Authority & Meznaric [2013] QCATA 260, distinguished Lange v Queensland Building Services Authority [2012] 2 Qd R 457; [2011] QCA 58, cited O’Grady v Northern Queensland Co Limited (1990) 169 CLR 356, 374; [1990] HCA 16, cited Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited Torea Pty Ltd v Queensland Building Services Authority [2013] QCAT 004, not followed
COUNSEL:	M T Labone for the applicants T J Mitchell (sol) for the respondent
SOLICITORS:	BCCS Law for the applicants CBP Lawyers for the respondent