Gerhardt v Queensland Building & Construction Commission

In the matter of Gerhardt v Queensland Building & Construction Commission, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether a private certifier, Trevor Gerhardt, engaged in unsatisfactory conduct by issuing a building approval based on plans that differed from those approved in the development approval process. The certifier subsequently issued a final certificate that also deviated from the approved plans. The Queensland Building and Construction Commission brought the complaint, seeking a determination on the alleged unsatisfactory conduct and potential breaches of statutory obligations under the Building Act.

The legal issues before the court encompassed whether the certifier's actions constituted unsatisfactory conduct, whether there was a breach of the Building Act, and whether the certifier's reliance on the relevant regulation and code of conduct was a valid defence. Additionally, the court had to consider whether the regulation and code of conduct effectively modified the statutory obligations of the certifier.

The tribunal found that the certifier, Trevor Gerhardt, had indeed engaged in unsatisfactory conduct by not adhering to the approved plans in the issuance of the building approval and final certificate. The tribunal concluded that the certifier's actions amounted to a breach of statutory obligations under the Building Act. Moreover, the tribunal determined that the regulation and code of conduct did not absolve the certifier of responsibility for ensuring compliance with the statutory obligations. As a result, the certifier's defence of honest and reasonable mistake was not upheld.

The tribunal ordered that Trevor Gerhardt had engaged in unsatisfactory conduct, and set timelines for the Commission and Gerhardt to file and serve submissions regarding the appropriate sanction. The final decision on the sanction was to be made not before 22 May 2014.