Clarke v Queensland Building and Construction Commission

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

1. 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.

2. 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.

3. 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.

4. 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

1. 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’. 

2. 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.

3. 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

1. There were various ‘contracts’ in evidence. The difficulty is that none of the ‘contracts’ were signed by the builder.

2. 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…