Hau v Queensland Building and Construction Commission - [2024] QCAT 473

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Hau v Queensland Building and Construction Commission [2024] QCAT 473

PARTIES:

MAN KIT HAU

(applicant)

OILAM LI HAU

(APPLICANT)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR636-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 October 2024

HEARING DATE:

25 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

1.     Oilam Li Hau is joined as an applicant to the proceeding.

2.     The Applications for miscellaneous matters dated 9 May 2024 and 16 May 2024 are dismissed.

3.     The Queensland Building and Construction Commission’s decision dated 26 October 2021, that AB did not engage in unsatisfactory conduct, is set aside.

4.     The Tribunal returns the matter to the Queensland Building and Construction Commission for reconsideration.

5.     The Queensland Building and Construction Commission is directed that its reconsideration must proceed on the basis that:

(a)     AB engaged in a single count of unsatisfactory conduct, as particularised in the written reasons of the Tribunal accompanying these orders; and

(b) It is required to decide sanction under s 204(4) of the Building Act 1975 (Qld); and

(c)     It must afford AB the opportunity to present written submissions in mitigation prior to deciding sanction.

6.     There be no order as to costs.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicants made several complaints to the respondent about the conduct of a private certifier – where the respondent found that the certifier did not engage in unsatisfactory conduct or professional misconduct – where on review the Tribunal found that the certifier engaged in a single count of unsatisfactory conduct – where the Tribunal concluded that the remaining complaints were either de-minimis or unfounded.

Building Act 1975 (Qld), s 8, s 10, s 46, s 204

Building Regulation 2006 (Qld), s 21, s 22, s 30, s 31
Human Rights Act 2019 (Qld), s 58

Queensland Civil and Administrative Act 2009 (Qld), s 3, s 204

Briginshaw v Briginshaw & Anor (1938) CLR 336

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646
PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188

PJB v Melbourne Health [2001] VSC 327

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Formby (Counsel)

REASONS FOR DECISION

This is a review of a decision by the Queensland Building and Construction Commission (‘QBCC’), that a private certifier, to whom I have assigned the pseudonym AB, did not commit unsatisfactory conduct or professional misconduct within the meaning of Schedule 2 of the Building Act 1975 (Qld) (‘the Act’)
Background
The applicants engaged Brookhaven Homes (‘builder’) to build them a house in Rochedale (‘the work’).
The builder engaged AB to assess its building development application for the house and certify its work.
On 4 March 2020, AB, approved the development application in full with conditions (‘approval’). The conditions, which were attached to the approval, mandated inspections at various stages of the…

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: [2024] QCAT 473
Decision Date: 21 October 2024

CaseChat Overview and Summary

The Hau v Queensland Building and Construction Commission case involved applicants who had engaged a builder to construct a house and a private certifier, referred to as AB, to certify the work. The applicants lodged complaints with the Queensland Building and Construction Commission (QBCC) about the certifier's conduct, specifically alleging that AB issued a final inspection certificate despite incomplete work and used incorrect materials in construction. The QBCC found that AB did not engage in unsatisfactory conduct or professional misconduct. However, upon review, the Tribunal found that AB did engage in a single count of unsatisfactory conduct.

The primary legal issues in this case revolved around whether AB's conduct constituted unsatisfactory conduct or professional misconduct as defined under Schedule 2 of the Building Act 1975 (Qld). The applicants argued that AB failed to properly inspect the work and issued a final inspection certificate despite incomplete work and the use of incorrect materials. The QBCC's initial decision was that AB's conduct did not meet the statutory criteria for unsatisfactory conduct or professional misconduct.

The Tribunal's reasoning focused on the specific instances of unsatisfactory conduct as alleged by the applicants. The Tribunal identified that AB did not physically inspect the work as required, leading to the issuance of a final inspection certificate despite incomplete work. The Tribunal also considered the evidence presented regarding the substitution of materials, specifically the use of Hebel panels instead of brick veneer, which was not in compliance with the development approval. The Tribunal concluded that these instances amounted to unsatisfactory conduct on the part of AB.

The Tribunal set aside the QBCC's decision and ordered that the matter be returned to the QBCC for reconsideration. The reconsideration must be based on the Tribunal's findings that AB engaged in a single count of unsatisfactory conduct, and the QBCC must decide on the appropriate sanction under section 204(4) of the Building Act 1975 (Qld). Additionally, AB is to be given the opportunity to present written submissions in mitigation before any sanction is decided. There was no order regarding costs in this matter.

Orders

Orders of the court

1. Oilam Li Hau is joined as an applicant to the proceeding.

2. The Applications for miscellaneous matters dated 9 May 2024 and 16 May 2024 are dismissed.

3. The Queensland Building and Construction Commission’s decision dated 26 October 2021, that AB did not engage in unsatisfactory conduct, is set aside.

4. The Tribunal returns the matter to the Queensland Building and Construction Commission for reconsideration.

5. The Queensland Building and Construction Commission is directed that its reconsideration must proceed on the basis that:

(a) AB engaged in a single count of unsatisfactory conduct, as particularised in the written reasons of the Tribunal accompanying these orders; and

(b) It is required to decide sanction under s 204(4) of the Building Act 1975 (Qld); and

6. There be no order as to costs.

Background

Background to the litigation

This is a review of a decision by the Queensland Building and Construction Commission (‘QBCC’), that a private certifier, to whom I have assigned the pseudonym AB, did not commit unsatisfactory conduct or professional misconduct within the meaning of Schedule 2 of the Building Act 1975 (Qld) (‘the Act’) Background The applicants engaged Brookhaven Homes (‘builder’) to build them a house in Rochedale (‘the work’). The builder engaged AB to assess its building development application for the house and certify its work. On 4 March 2020, AB, approved the development application in full with conditions (‘approval’). The conditions, which were attached to the approval, mandated inspections at various stages of the build. Notably, the conditions required all inspections to be carried out by a ‘competent person’, except the final inspection, which AB was required to personally perform. On 14 October 2020, AB issued a Form 21 – Final inspection certificate (‘Form 21’), certifying that the house was complete and that it complied with the development approval. Section 32(3) of the Building Regulation 2006 (‘Regulation’) requires certifiers to use that form to certify compliance of single detached buildings and class 10 buildings or structures. On 18 May 2021, the Applicants complained to the QBCC about the certification functions that AB performed. They made five complaints, expressed in their application as follows: Item 1: Final Certificate Form 21 issued on 14/10/2020 with incomplete work. Capping flashing over garage parapet wall (shown on photo taken 28/11/2020 11.23 am).Item 2: Issue Form 21 with incorrect owner details (state Builder details) Builder not the owner of the property. Item 3: Issue Form 21 with incorrect material use for ground floor external wall. Council record Building approval file Name 012836234-CBC.pdf.Item 4: The approval Drawing show Ground Floor External Wall by Brick Veneer, and also shown on Energy eff. Report BItem 5: Covenant approval by Estate developer BUT the house built by Hebel panel. Not brick. The applicants’ complaints are poorly worded, but doing my very best to decipher them, I understand their grievances are as follows: (a)Complaint 1: capping/flashing over the garage parapet wall either did not exist or was not in place at the time AB issued the Form 21 on 14 October 2020.(b)Complaint 2: AB incorrectly listed the builder as the owner of the home in the Form 21. (c)Complaint 3 & 4: These complaints are interrelated. The gravamen of the complaints is that AB issued the Form 21 despite the work not complying with the approval, due to the builder substituting brick with Hebel panels. (d)Complaint 5: The house does not comply with estate covenants that require the house to be constructed with brick rather than Hebel. On 26 October 2021, Mr John Robert Cooper, who was a Principal Certification Officer at the QBCC, decided that AB had not engaged in ‘unsatisfactory conduct’ or ‘professional misconduct’ as defined in schedule 2 of the Act (‘decision’).

Evidence

Evidence Before The Court

The QBCC also submitted that the installation of rendered Hebel in lieu of brick veneer is a contractual matter between the applicants and the builder which did not involve AB. Mr Leung’s evidence about the builder’s non-compliance At the hearing, Mr Leung contended that Hebel walls have unique visible features which ought to have alerted AB to the builder’s noncompliance, namely:(a)the absence of damp proof courses and flashing. (b)the absence of mortar joints. (c)a Hebel wall is only 75 millimetres wide, whereas a brick wall is 110 millimetres wide. (d)Hebel, unlike brick, requires no articulation joints. Articulation joints, which are 10ml wide, are easily distinguishable from Hebel joints, which are only two to three millimetres wide. There are no articulation joints evident in the photograph of the applicants’ Hebel wall located at p 139 of the Hearing Book.(e)Hebel walls are typically constructed without windowsills, as was the case at the applicants’ house. Under cross examination, however, Mr Leung conceded that once rendered, it is difficult to tell from photos alone whether a wall is constructed from Hebel or brick. He said it would be necessary to be onsite to take measurements and physically tap the walls to conclusively ascertain their composition. Mr Leung also conceded that there was no document before the Tribunal that would have alerted AB to the builder’s use of Hebel. However, he maintained that its use in the construction of the house ought to have been apparent if AB physically inspected the wall. The ‘Slab’ Mr Leung further contended that AB was required to examine the work when the house foundation was excavated and before its footings were laid. Had he done so, Mr Leung submitted that the absence of a sizable step down to the edge beam of the slab should have alerted AB to the builder’s intended use of Hebel. Although the builder would not have yet poured any concrete at the time AB was required to inspect the slab, the wooden formwork would have revealed that the slab was designed for Hebel not brick. Mr Leung directed the Tribunal to the ‘Waffle Slab Typical Details – Sheet 1, of the Approved Plans,[15] which contained an illustration of the slab in its upper left corner. He contended that the illustration depicts a 300-millimetre-thick edge beam (marked EB1) which is designed to support brick veneer. Further, he pointed out a gap between the proposed brick wall and the external timber framing was evident in EB1. [15]Hearing Book, Part C, p 72. Mr Leung referred the Tribunal to photographs of the slab the builder took at the time it was laid (‘slab photographs’).[16] He submitted that the photographs clearly show the absence of an edge beam, or a sizable step down. Mr Leung said that in a house constructed with brick there is typically a 15-millimetre cavity adjacent to the outside frame followed by 110 millimetres. He pointed out that no such cavity is evident in in the slab photographs. Whilst Mr Leung conceded that he did not personally measure the slab, he said that it is obvious from the proportions of the slab in the photographs that it was not designed to support a brick wall. [16]Hearing Book, Part C, p 293.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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