Castro v Queensland Building and Construction Commission - [2025] QCAT 119

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Castro v Queensland Building and Construction Commission [2025] QCAT 119

PARTIES:

ADAM CASTRO

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR576-23

MATTER TYPE:

Building matters

DELIVERED ON:

20 March 2025

HEARING DATE:

15 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

1. The decision of the Queensland Building and Construction Commission dated 26 July 2023 not to issue a direction to rectify to Rockwell Group Construction Pty Ltd is set aside.

2. The Queensland Building and Construction Commission shall issue a direction to rectify to Rockwell Group Construction Pty Ltd in respect of the four complaint items the subject of the review application.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the Queensland Building and Construction Commission decided not to give a direction to rectify in respect of complaints about building work – where an owner applied to the Tribunal to review the decision – whether the initial contractor builder company ever completed asserted defective works – whether it was fair and reasonable not to issue a direction to rectify.

Queensland Building and Construction Commission Act 1991 (Qld), s 71I

J M Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2015] QCAT 66

Waddell v Queensland Building and Construction Commission [2023] QCAT 159
Taouk v Queensland Building Services Authority [2013] QCAT 508
Maldes v Queensland Building and Construction Commission [2022] QCAT 359

Wright v Duke Building Pty Ltd [2017] QCATA 35

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

Applicant:

King & Wood Mallesons

Respondent:

Suliana Tabaiwalu Principal Lawyer

REASONS FOR DECISION

By application filed 22 August 2023 the applicant Adam Castro (‘Mr Castro’) seeks review of the decision of the Queensland Building and Construction Commission (‘Commission’) not to issue a direction to rectify in respect of structurally defective building work related to waterproofing of the basement undertaken at Mr Castro’s property situated 1/94 Monaco Street Broadbeach Waters. Mr Castro asserts the correct and preferable decision would be to issue a direction to rectify to Rockwell Group Constructions Pty Ltd (‘Rockwell’) the initial builder of the residence constructed at 1/94 Monaco Street Broadbeach Waters or alternatively to Nicholas Crosland director of Crosland Constructions Pty Ltd (‘Crosland Constructions’) the owner/developer of the subject site upon which 1/94 Monaco Street Broadbeach Waters was constructed.

Background and Evidence

Mr Castro made four complaints to the Commission on 8 August 2022. They were.
1 Extensive waterproofing issues with the construction of the basement.
2 Extensive waterproofing issues to the construction of the foundations and basement structure. Which we understand this is the subject of a prior QBCC investigation.
3 Consequential damage to wall linings, ceilings, timber wall panelling cellar and lift, lift metalwork in the base of the lift shaft and tiling of the basement due to water ingress, corrosion, and…

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: [2025] QCAT 119
Decision Date: 20 March 2025

CaseChat Overview and Summary

The case before the court involved the Castro family, who sought judicial review of a decision by the Queensland Building and Construction Commission (QBCC). The family had complaints regarding the construction work carried out by Rockwell Group Construction Pty Ltd, which they claimed was defective and incomplete. The QBCC had declined to issue a direction for the work to be rectified. The family applied to the Tribunal for a review of the QBCC's decision, arguing that the Commission's decision was unreasonable and that the initial contractor had never completed the asserted defective works.

The central legal issues in the case were whether the QBCC's decision not to issue a direction to rectify was fair and reasonable, and if the initial contractor had indeed completed the asserted defective works. The court needed to determine whether the QBCC had properly exercised its statutory power to require rectification of defective or incomplete building work. It also had to consider whether the Commission's decision was made without bias, based on relevant considerations, and whether it was open to the Commission to come to the decision it did.

The court found that the QBCC had not properly exercised its statutory powers and that the Commission's decision was unreasonable. The evidence demonstrated that the initial contractor had not completed the asserted defective works, and it was therefore not fair and reasonable for the QBCC not to issue a direction to rectify. The court set aside the QBCC's decision and ordered that a direction to rectify be issued to Rockwell Group Construction Pty Ltd in respect of the four complaint items the subject of the review application.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission dated 26 July 2023 not to issue a direction to rectify to Rockwell Group Construction Pty Ltd is set aside.

2. The Queensland Building and Construction Commission shall issue a direction to rectify to Rockwell Group Construction Pty Ltd in respect of the four complaint items the subject of the review application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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