QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Clarke v Queensland Building and Construction Commission [2020] QCAT 88
PARTIES: EDWARD CHARLES CLARKE (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
GAR395-18
MATTER TYPE:
General administrative review matters
DELIVERED ON:
31 March 2020
HEARING DATE:
17 September 2019
DATE FINAL SUBMISSIONS RECEIVED:
19 December 2019
HEARD AT:
Brisbane
DECISION OF:
Member Olding
ORDERS:
The internal review decision of the Queensland Building and Construction Commission on 9 October 2018 is confirmed.
CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant requested notice to rectify incomplete work – where regulated contract not signed by builder of no effect – decision not to give notice to rectify confirmed
Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 87; Schedule 1B s 14(2), s 14(10), s 44
APPEARANCES & REPRESENTATION:
Applicant:
N Glen, Senior Lawyer, Queensland Building and Construction Commission
Respondent:
Self-represented
REASONS FOR DECISION
Latitude Construction Consulting Pty Ltd (‘the builder’) carried out domestic building work for the applicant, Mr Clarke. The work mainly involved constructing a new house at the rear of Mr Clarke’s land as well as some work related to an existing house on the land.
Mr Clarke alleges the builder failed to complete three other agreed items of work relating to the existing dwelling (‘the disputed works’). The builder says their contractual arrangements did not require the disputed items to be undertaken.
Mr Clarke asked the Queensland Building and Construction Commission (‘the Commission’) to issue a direction to rectify to the builder requiring the builder to complete the work. The Commission declined to issue the direction.
The Commission confirmed that decision on internal review. Mr Clarke has applied to the Tribunal for review of the internal review decision.[1]
[1]The Tribunal’s jurisdiction is found in the Queensland Building and Construction Commission Act 1991 (Qld), s 87.
Power to issue direction to rectify
The power to direct a person who carried out building work to rectify the work is found in s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) which in accordance with s 72(1) relevantly applies if the Commission, and thus the Tribunal on review, is of the opinion that the building work is ‘incomplete’.
There is no definition of ‘incomplete’ for this purpose, but since the disputed works were not commenced it is not in dispute that, if they were required to be undertaken, the works were incomplete.
Where s 72 applies because, so far as this matter is concerned, works are incomplete, the Commission ‘may’ direct the person who carried out the building work to rectify the work: s 72(2).
The ‘contracts’ issue
There were various ‘contracts’ in evidence. The difficulty is that none of the ‘contracts’ were signed by the builder.
Mr Clarke says that one of them, which includes in his handwriting a reference to the disputed works, reflects his agreement with the builder. The…
Keep reading for free
Create a free CaseChat account to read Clarke v Queensland Building and Construction Commission and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2020] QCAT 88
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to address were whether the regulated contract was indeed not signed by the builder, and if this was the case, whether the Commission was correct in not issuing a notice to rectify. The court had to determine the validity of the regulated contract and the implications of an invalid contract on the Commission's authority to issue a notice to rectify under the Building Act 1975 (Qld).
The court found that the regulated contract was not signed by the builder, and therefore, it was not a valid contract under the Act. The court held that a regulated contract must be signed by all parties, including the builder, for it to be effective. Without a valid regulated contract, the Commission's power to issue a notice to rectify was nullified. Consequently, the decision of the Commission not to issue a notice to rectify was affirmed. The tribunal concluded that the Commission had correctly exercised its discretion in this matter.
The final orders of the tribunal confirmed the internal review decision of the Queensland Building and Construction Commission on 9 October 2018. The applicant's request for a review of the Commission's decision was dismissed, and the Commission's decision not to issue a notice to rectify remained in place.
Orders
Orders of the court
The internal review decision of the Queensland Building and Construction Commission on 9 October 2018 is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.