Chew v QBSA - [2010] QCAT 501

CITATION:

Chew v Queensland Building Services Authority [2010] QCAT 501

PARTIES:	Ms Aida Chew
v
Queensland Building Services Authority

APPLICATION NUMBER:

QR111-08

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

17 August 2010

HEARD AT:

Brisbane

DECISION OF:

Mr Barry Cotterell

DELIVERED ON:

13 October 2010

DELIVERED AT:

Brisbane

ORDERS MADE:

The Building Services Authority’s decision not to direct rectification of building work is confirmed

CATCHWORDS :

Review proceedings - whether work defective or incomplete – whether BSA should issue a Notice to Rectify to the building contractor - Queensland Building Services Authority Act, sections 72 and 86(1); Queensland Civil and Administrative Tribunal Act section 24

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms Aida Chew was represented by Mr P Maddugodda
RESPONDENT:	Queensland Building Services Authority was represented by Ms C Farthing

REASONS FOR DECISION

This application seeks a review of the Authority’s decision of 22 April 2008 not to direct rectification of building work which the Authority is empowered to do by section 72 of the Queensland Building Services Authority Act (“QBSA Act”). The Applicant did not attend the Tribunal hearing but was represented by Mr Maddugodda and, to a lesser extent, by her expert Mr de Costa. Mr Maddugodda represented the Applicant throughout much of the period that the building work was carried out and afterwards. The BSA was represented by Ms Farthing, a legal officer and it called evidence from Mr Vosper, a Building Services Authority Inspector, Mr Robert Hughes, an Engineer and Mr Rod Mehrtens, the contractor.

Background

The Applicant prior to purchasing this house obtained a building report from Queensland Independent Building Inspectors Pty Ltd dated 21 March 2007. As this report stated:-
“The concrete is out of level from north west to south east across the front bedroom of approximately 35mm and is out of level from north to south across the family room of approximately 65mm. This is considered to be considerable and we recommend a further inspection to include a slab survey by a structural engineer.”
The Applicant then obtained a report from Mr de Costa, an Engineer. Mr De Costa subsequently prepared a pre and post underpinning structural assessment dated September 2007 where, in relation to the pre underpinning, he stated –

“Subsequent to a site inspection by the structural engineer (Mr de Costa) the following recommendations were made –
§It was unlikely that substantial further settlement would occur considering the age of the house although it was possible to determine the degree of consolidation taking place by taking a soil sample it would be sufficient to monitor settlements for a period of 2 years before taking further action.
§If any visible signs of further distress such as cracking brickwork or interior walls would appear properly engineered remedial work needs to be carried out to restore the house to a stable condition. This work should be designed, supervised and certified by Registered Professional Engineer Qld (RPEQ)…. “

No engineering report was prepared at this stage and these recommendations…

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: [2010] QCAT 501
Decision Date: 13 October 2010

CaseChat Overview and Summary

The case of Chew v QBSA involved the plaintiff, Chew, contesting a decision by the Building Services Authority (BSA) to not issue a Notice to Rectify to the building contractor, QBSA. The dispute centred on whether the work conducted was defective or incomplete, leading to the plaintiff seeking a review of the BSA’s decision. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues addressed by the tribunal were whether the BSA had correctly exercised its discretion under the Queensland Building Services Authority Act. Specifically, the tribunal examined whether the BSA's decision not to issue a Notice to Rectify was lawful and whether the BSA had adequately considered all relevant factors under sections 72 and 86(1) of the Act. The tribunal also considered whether the BSA’s decision was subject to review under section 24 of the Queensland Civil and Administrative Tribunal Act.

In its reasoning, the tribunal found that the BSA had properly exercised its discretion and had not erred in its decision not to issue a Notice to Rectify. The tribunal concluded that the BSA had a broad discretion in reviewing building work and had considered all relevant factors in reaching its decision. The tribunal also held that the BSA's decision was not subject to review under the Queensland Civil and Administrative Tribunal Act. Therefore, the tribunal confirmed the BSA’s decision not to direct rectification of the building work.

Orders

Orders of the court

The Building Services Authority’s decision not to direct rectification of building work is confirmed

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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