Interlink Developments Pty Ltd v Queensland Building and Construction Commission - [2021] QCAT 245

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245

PARTIES:

INTERLINK DEVELOPMENTS PTY LTD
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR225-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 July 2021

HEARING DATES:

11 February 2021; 10 May 2021

HEARD AT:

Brisbane

DECISION OF:

Member Burke

ORDERS:

1. The decision of the Queensland Building and Construction Commission of 22 May 2019 to issue Direction to Rectify No. 0104750 regarding complaint item number 2 is confirmed.

2. The decision is stayed insofar as it requires work to be done, namely work required to address any leaking as referred to in complaint item number 2 of Direction to Rectify No. 0104750 on the basis that the Queensland Building and Construction Commission accepts that the leaking has been rectified.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – nature of decision under review – in the context of a direction to rectify, whether decision to be considered as at time direction was issued or at time of review – whether direction unfair – whether owner denied proper access – where decision to issue direction to rectify confirmed.

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 87

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 22, s 24

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239

APPEARANCES & REPRESENTATION:

Applicant:

P, Coves Solicitor

Respondent:

S. Hedger, HWL Ebsworth Lawyers

REASONS FOR DECISION

Interlink Developments Pty Ltd (hereinafter referred to as “Interlink”) applied for a review of the decision of the Queensland Building and Construction Commission (hereinafter referred to as “the QBCC”) which is an internal review of the decision of the QBCC to issue a direction to rectify pursuant to s 72(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (hereinafter referred to as the “QBCC Act”). [1]
[1]The application for review was filed 12 June 2019.
The internal review decision of the QBCC was dated 22 May 2019 (“the internal review decision”).[2] The internal review decision confirmed the QBCC direction to rectify issued to Interlink on 5 April 2019 and determined that a direction to rectify should issue regarding item no. 2 in the complaint form submitted on 24 July 2018.
[2]Case 409006 Internal Review SF0512987.
Interlink seeks a withdrawal of the direction to rectify based on the following reasons:
(a)the issuing of the direction to rectify as part of the internal review decision was contrary to s 72(5) of the QBCC Act;
(b)the internal review did not give consideration to the fact that access was not granted to Interlink prior to the QBCC attendance;
(c)the QBCC inspector acted outside the QBCC policy…

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: [2021] QCAT 245
Decision Date

CaseChat Overview and Summary

Interlink Developments Pty Ltd has brought an action against the Queensland Building and Construction Commission (QBCC) to challenge the validity of a direction to rectify issued by the QBCC. The dispute concerns alleged defects in a residential building constructed by Interlink, which were reported by the owner after completion. The court was tasked with determining the validity of the QBCC's direction to rectify and whether the direction should be set aside.

The central legal issue before the court was whether the QBCC was correct in issuing a direction to rectify to Interlink, given that the alleged defects had been remedied by Interlink prior to the direction. The court had to consider whether the direction to rectify was appropriate under the statutory scheme and whether the QBCC's decision was based on a proper consideration of all relevant facts. Specifically, the court needed to assess if there was a record of defective works at the time of the original decision, and if the works were subsequently rectified within the required timeframe.

The court concluded that the QBCC's decision to issue a direction to rectify to Interlink was correct, but stayed the part of the decision relating to the rectification of works causing water entry into the habitable space, damage to building elements, and loss of amenity to occupants. This stay was based on the agreement that Interlink had already carried out the necessary rectification work to address the leaking water, which had been accepted by the QBCC. The court found that while the defects were recorded at the time the original decision-maker determined a direction to rectify should issue, the works were not rectified in the required time under the statutory scheme.

The court's final orders confirmed the decision of the QBCC to issue a direction to rectify to Interlink, while staying the part of the decision relating to the rectification of works causing water entry, damage to building elements, and loss of amenity to occupants. This outcome ensures that the QBCC's authority is upheld while acknowledging the corrective action taken by Interlink.

Orders

Orders of the court

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Background

Background to the litigation

Interlink seeks an order that the direction to rectify issued by the QBCC be set aside and that no further decision be made by this tribunal. Interlink also seeks its costs of the proceedings.Background On or about 23 June 2016, Urban Homes Pty Ltd entered into a Master Builders Residential Building contract – Level 2 (RBC-L2 07/2015) with Mr Nathan Mullan (hereinafter referred to as “the owner”) for the construction of a two level new dwelling at Hendra Queensland (hereinafter referred to as “the property”). Urban Homes Pty Ltd subsequently changed its name to Interlink on 22 August 2016. Construction was completed on 27 May 2017. The owner became aware of water penetrating the living room ceiling directly below the tiled deck area (hereinafter referred to as “complaint item number 2”) on 1 July 2018. On 4 July 2018, the owner contacted Mr Maloney, the director of Interlink, to advise that three structural defects had become apparent. These included the following:(a)water penetration in the living room ceiling directly below the tiled deck area above;(b)a crack on the exterior wall adjacent to the butler’s pantry window;(c)buckling of the base board of the balustrading adjacent to the master bedroom causing a hump on the floor and squeaking of the sub-floor. On 6 July 2018, Mr Maloney sent an email to the owner proposing a time to inspect the alleged defects. On 9 July 2018, Mr Maloney sent a further email to the owner proposing a time to inspect the alleged defects. On 13 July 2018, Mr Maloney sent a third email to the owner proposing Tuesday 17 July at 9am as a time to inspect the alleged defects. Mr Maloney outlined the QBCC’s generic policy regarding the issue of access and the obligations of both an owner and licensee. On 24 July 2018, the owner submitted a residential and commercial construction complaint form to the QBCC outlining four complaints including the three complaints above and a further complaint regarding a defect in the ensuite cavity door. On 31 July 2018, the QBCC advised the owner it had received the complaint and identified the next steps in the process in investigating the complaints. Further on 31 July 2018, the QBCC emailed Interlink advising that a complaint had been submitted outlining the list of defects. The QBCC encouraged Interlink to contact the owner and take the opportunity to rectify the alleged defects prior to QBCC involvement. The QBCC requested evidence from Interlink in the event that Interlink believed it was not responsible for the defects or if the works were not defective as alleged. On 31 July 2018, Mr Maloney responded to the QBCC by email advising that he had tried on several occasions to contact the owner by email and phone and that the owner had not granted access and refused to respond or return calls. On 15 October 2018, the QBCC sent a request to the owner for an inspection to take place on 6 November 2018 at 10.45am. The notice identified the purpose of the inspection and the steps which should be taken beforehand including allowing access to Interlink to rectify the works.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The result of this proposal is that there is a record that the works were defective at the time the original decision-maker determined that a direction to rectify should issue and that the works were not rectified in the required time under the statutory scheme. It records however that any leaking caused by the defective work has been rectified and accepted by the QBCC as being remedied by Interlink.Conclusion The decision of the QBCC dated 22 May 2019 to issue a direction to rectify to Interlink is confirmed. To the extent that the decision relates to the rectification of works causing water entry into the habitable space of the dwelling, damage to building elements and loss of amenity to occupants, such part of the decision is stayed on the basis that it is agreed that the necessary rectification work to address the leaking water has been carried out by Interlink.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245
PARTIES:	INTERLINK DEVELOPMENTS PTY LTD (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR225-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	13 July 2021
HEARING DATES:	11 February 2021; 10 May 2021
HEARD AT:	Brisbane
DECISION OF:	Member Burke
ORDERS:	1. The decision of the Queensland Building and Construction Commission of 22 May 2019 to issue Direction to Rectify No. 0104750 regarding complaint item number 2 is confirmed. 2. The decision is stayed insofar as it requires work to be done, namely work required to address any leaking as referred to in complaint item number 2 of Direction to Rectify No. 0104750 on the basis that the Queensland Building and Construction Commission accepts that the leaking has been rectified.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – nature of decision under review – in the context of a direction to rectify, whether decision to be considered as at time direction was issued or at time of review – whether direction unfair – whether owner denied proper access – where decision to issue direction to rectify confirmed. Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 22, s 24 Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 Paul Wayne Townsend v Queensland Building and Construction Commission [2019] QCAT 239
APPEARANCES & REPRESENTATION:
Applicant:	P, Coves Solicitor
Respondent:	S. Hedger, HWL Ebsworth Lawyers