Cantamessa v Queensland Building and Construction Commission

The Applicant, Cantamessa, appealed the decision of the Queensland Building and Construction Commission (QBCC) to issue a Direction to Rectify, arguing that the works completed were not defective and that the QBCC's decision was unfair. The dispute arose from a contract between the Applicant and homeowners for building works on a dwelling in Mackay, which was not completed by the agreed date. The QBCC conducted inspections and identified several defects, leading to the issuance of the Direction to Rectify. The Applicant contended that the QBCC had failed to establish that the works were defective and that the direction was unfair. The Tribunal had to determine whether the works were defective and whether the Direction to Rectify was fair.

The Tribunal considered whether the QBCC had established that the works were defective, noting that the burden of proof lay with the QBCC to demonstrate the defects. The Tribunal found that the installation of the structural floor framing and other works were not defective, but identified specific defects related to the installation of timber surrounds and masonry subfloor areas. Regarding the fairness of the Direction to Rectify, the Tribunal noted that while the works were not entirely defective, the identified defects warranted rectification. The Applicant argued that the QBCC's decision was unfair due to the homeowners' repudiation of the contract and the Applicant's acceptance of this repudiation. The Tribunal concluded that the direction was fair, considering the nature and extent of the defects and the statutory obligations of the QBCC.

The Tribunal set aside the QBCC's decision to issue the Direction to Rectify, finding that while some works were defective, the overall decision was not fair given the homeowners' repudiation and the Applicant's acceptance. The Tribunal did not make an order as to costs. The Applicant's appeal was partially successful, as the Tribunal acknowledged the defects but found the direction unfair under the circumstances. This decision highlights the balance between identifying defective work and considering the broader context of the contractual relationship and statutory obligations.