Buildmaster Pty Ltd v Queensland Building and Construction Commission - [2022] QCAT 380

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Buildmaster Pty Ltd v Queensland Building and Construction Commission and ors [2022] QCAT 380

PARTIES:

buildmaster pty ltd

(applicant)

v

queensland building and construction commission

(First Respondent)

douglas feinbloom

(Second Respondent)

kylie bruce

(Third Respondent)

APPLICATION NO/S:

GAR023-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 October 2022

HEARING DATE:

3 and 4 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The QBCC’s decision to give to Buildmaster Pty Ltd a direction to rectify the installation of the windows and cladding of the external walls at the relevant property is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether works can be defective for the purpose of a decision to give a direction to rectify if the works satisfy the relevant performance requirement at the time of the hearing – whether a direction to rectify should be given

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the direction to rectify gave reasons why the works were defective – where those reasons were challenged in the external review as being inaccurate – whether the decision to give a direction to rectify can be challenged on that basis

Building Act 1975 (Qld), s 14(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 24

Queensland Construction and Commission Act 1991 (Qld), s 3(a), s 3(b), s 72, s 86, s 86D, s 86E

Goodsell Earthmoving Pty Ltd v Coordinator-General [2019] QSC 243

LCA v Director-General, Department of Justice and Attorney-General [2017] QCAT 24

Tilahun v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 407

APPEARANCES & REPRESENTATION:

Applicant:

Stuart Rickerby, building consultant.

First Respondent:

Russell Ensby, Special Counsel, of Gadens Lawyers.

Second and Third Respondents:

Self-represented

REASONS FOR DECISION

Buildmaster Pty Ltd built a new house in Yeronga, Queensland for Dr Douglas Feinbloom and Kylie Bruce (the owners).
The owners complained to the Queensland Building and Construction Commission (QBCC) about alleged defects in the construction of the windows and cladding of the external walls. The QBCC gave the builder a direction to rectify the defects.
The builder now applies to the tribunal for a review of the QBCC’s decision to give a direction to rectify in respect of these defects. By way of fresh hearing on the merits, the tribunal will seek to produce the correct and preferable decision as to whether a direction to rectify should be given.[1]
[1]This is how the tribunal should approach such applications for review: section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
At the hearing, I heard from the builder and from one of the owners (the second respondent) and also from three building experts:
(a)for the builder, Stuart Rickerby;
(b)for the QBCC, Geoff Barrett; and
(c)for the respondents, Christopher Boyle.
The experts had produced a joint experts’ report following an…

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: [2022] QCAT 380
Decision Date

CaseChat Overview and Summary

Buildmaster Pty Ltd (the builder) applied to the tribunal for a review of a decision of the Queensland Building and Construction Commission (the QBCC) to give the builder a direction to rectify the installation of the windows and cladding of the external walls at a house in Yeronga, Queensland (the property). The QBCC had been asked to review the builder’s installation by the owners of the property (the respondents) who had complained to the QBCC about water ingress at the windows. The QBCC gave a direction to rectify to the builder. The builder says the direction to rectify should be set aside.The tribunal considered whether the QBCC was right to give a direction to rectify to the builder. The tribunal found that the installation was defective because the waterproofing relied heavily on the use of silicon sealant in areas where this was likely to break down in the short term. The tribunal also found that it was fair for the QBCC to give a direction to rectify because this defect was the consequence of the builder’s decision to install the windows after the box sections and cladding rather than the other way round, followed by the decision to rely on silicone sealant for waterproofing rather than to dismantle the installation and start again.The tribunal confirmed the QBCC’s decision to give to the builder a direction to rectify the installation of the windows and cladding of the external walls at the property.

Orders