Interlink Developments Pty Ltd v Queensland Building and Construction Commission - [2024] QCAT 292

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2024] QCAT 292

PARTIES:

INTERLINK DEVELOPMENTS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR077-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 July 2024

HEARING DATE:

7 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The decision made by the Queensland Building and Construction Commission on 20 December 2021 that the work undertaken by Interlink Developments Pty Ltd at the direction of the commission (in a direction to rectify dated 18 October 2021) was not to a satisfactory standard, is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the QBCC decided that the builder had not complied with a direction to rectify – where the builder applied for a review of the decision claiming that the direction to rectify was a nullity – whether the tribunal had jurisdiction to find that the direction to rectify was a nullity, and whether it was a nullity

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the QBCC decided that the builder had not complied with a direction to rectify because the work undertaken by the builder at the direction of the QBCC was not of a satisfactory standard – where the direction to rectify described the defect which required rectification very generally – where the tribunal had to identify the precise direction of the QBCC – whether the work done at that direction was of a satisfactory standard

Queensland Building and Construction Commission Act 1991 (Qld), s 72

Queensland Building and Construction Commission Regulation 1991 (Qld)

Queensland Civil and Administrative Tribunal 2009 (Qld), s 20

Orlanski v Queensland Building Services Authority [2011] QCAT 35, Lim v QBCC [2018] QCAT 156

J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269
JD v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2023] QCAT 316
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502

McNab Constructions Australia P/L v Queensland Building Services Authority [2013] QSC 057

APPEARANCES & REPRESENTATION:

Applicant:

Alex Hoare of HWL Ebsworth Lawyers

Respondent:

Brian Maloney as director

REASONS FOR DECISION

This is an application for review of a decision made by the Queensland Building and Construction Commission that the builder had not complied with a direction to rectify.
The direction to rectify was addressed to the builder Interlink Developments Pty Ltd. It described the defective work as permitting water to penetrate the building at the front soffit and causing damage, and it referred to manufacturer’s specifications and building codes which had not been complied with. The direction to rectify required the defective work to be ‘rectified’.
Interlink did attend the house and perform rectification work, and its director Mr Malony believed that the rectification work was satisfactory. QBCC thought otherwise and made the decision…

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 292
Decision Date: 25 July 2024

CaseChat Overview and Summary

Interlink Developments Pty Ltd challenged a decision by the Queensland Building and Construction Commission (QBCC) that they had not complied with a direction to rectify defective or incomplete building work. The dispute was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The central issue before the tribunal was whether it had the jurisdiction to determine that the direction to rectify was a nullity, and if so, whether the direction was indeed a nullity. The tribunal also had to consider whether the work carried out by Interlink Developments at the direction of the QBCC met the required standard.

The QBCC had issued a direction to rectify certain defects in building work carried out by Interlink Developments. Interlink Developments argued that the direction to rectify was too vague and therefore a nullity, as it did not specify the precise nature of the defects to be rectified. The tribunal examined the wording of the direction to determine if it was sufficiently clear to constitute a valid direction. The tribunal found that while the direction could have been more precise, it was not so vague as to render it a nullity. The tribunal held that the direction provided enough detail for Interlink Developments to understand the scope of the rectification required.

The tribunal confirmed the decision of the QBCC that the work undertaken by Interlink Developments did not meet the satisfactory standard as per the direction to rectify. The tribunal found that the work did not adequately address the defects as specified in the direction. Consequently, the tribunal upheld the QBCC's decision that Interlink Developments had not complied with the direction to rectify. The tribunal dismissed Interlink Developments' application for review and confirmed the original decision of the QBCC.

Orders

Orders of the court

The decision made by the Queensland Building and Construction Commission on 20 December 2021 that the work undertaken by Interlink Developments Pty Ltd at the direction of the commission (in a direction to rectify dated 18 October 2021) was not to a satisfactory standard, 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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