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Interlink Developments Pty Ltd v Queensland Building and Construction Commission

Interlink Developments Pty Ltd v Queensland Building and Construction Commission

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

PARTIES: INTERLINK DEVELOPMENTS PTY LTD

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR188-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 December 2020

HEARING DATES:

17 March 2020, 12 June 2020. Closing written submissions provided 26 June 2020, 20 July 2020 and 3 August 2020.

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
1. The decision by the Queensland Building and Construction Commission of 1 June 2017 to issue Direction to Rectify No 0102155 to Interlink Developments Pty Ltd, is confirmed.

2. The decision is stayed insofar as it requires work to be done which is agreed has been rectified, being the work the subject of Items 1, 3 7 and 10 of Direction to Rectify No 0102155.

CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – identifying the nature of the 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 – status of QBCC policy on rectification – whether direction unfair – whether owner not provided reasonable access – whether work defective at time direction was issued – whether fact rectification by the builder had occurred after the period of time for rectification under the direction, is relevant – where decision to issue direction to rectify confirmed.

Queensland Building and Construction Commission Act 1991 (Qld), s 20K, s 71J, s 72, s 72A, s 73, s 74B, s 74E, s 86, s 87, Schedule 2 (reprint current as at 1 March 2017)

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

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Freeman v Secretary, Department of Social Security (1988) 19 FCR 342; 15 ALD 671
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Skoljarev v Australian Fisheries Management Authority
(1995) 133 ALR 690; 39 ALD 517

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S. Hedger, HWL Ebsworth Lawyers

REASONS FOR DECISION

Interlink Developments Pty Ltd (Interlink) has applied to the Tribunal for a review of the decision by the Queensland Building and Construction Commission (QBCC) on internal review, to issue a direction to rectify to Interlink pursuant to s 72(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) (the decision).
The internal review decision was made on 1 June 2017. The QBCC Act in force when the decision was made was the reprint current as at 1 March 2017. It is this version of the QBCC Act that applies to this review.[1]
[1]Frugtniet v Australian Securities and…

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: [2020] QCAT 480
Decision Date: 10 December 2020

CaseChat Overview and Summary

The matter before the court was between Interlink Developments Pty Ltd and the Queensland Building and Construction Commission (QBCC). The dispute centred around the decision by the QBCC to issue a direction to rectify certain defective building work carried out by Interlink. The case was heard and determined in the Queensland Civil and Administrative Tribunal. The primary legal issue before the court was whether the decision by the QBCC to issue a direction to rectify defective building work was fair and appropriate under the relevant statutory provisions.

The court examined the basis upon which the direction was issued, including whether the building work was defective, whether Interlink was responsible for the defects, and whether it was fair to direct Interlink to rectify the defects. The court also considered the timing of the direction and whether the defects were rectified after the period specified in the direction. The court noted that the QBCC policy on rectification was only a guideline and did not preclude the issuance of a direction to rectify. The court found that the decision to issue the direction was fair and appropriate, and therefore confirmed the decision of the QBCC.

The court also considered whether the owner was provided with reasonable access to the property to carry out the rectification work. The court found that the owner was a reasonable person and was not attempting to hinder the performance of the rectification work by Interlink. The court also noted that the fact that the work was rectified after the period for rectification under the direction had expired did not affect the court's decision.

The final orders of the court were to confirm the decision by the QBCC to issue Direction to Rectify No 0102155 to Interlink Developments Pty Ltd, but to stay the decision insofar as it required work to be done which was agreed had been rectified. The court also noted that the rectification of the work was not a basis for the decision to be considered unfair.

Orders

Orders of the court

1. The decision by the Queensland Building and Construction Commission of 1 June 2017 to issue Direction to Rectify No 0102155 to Interlink Developments Pty Ltd, is confirmed.

2. The decision is stayed insofar as it requires work to be done which is agreed has been rectified, being the work the subject of Items 1, 3 7 and 10 of Direction to Rectify No 0102155.

Background

Background to the litigation

The internal review decision was made on 1 June 2017. The QBCC Act in force when the decision was made was the reprint current as at 1 March 2017. It is this version of the QBCC Act that applies to this review.[1][1]Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.Background On 18 December 2014 the homeowner (the owner) entered into a residential building contract with Interlink (formerly Urban Homes Pty Ltd) for the construction of a two storey dwelling in Birkdale. Mr Brian Maloney is the sole director of Interlink. The works commenced on 28 February 2015. On 2 December 2015 Interlink issued the owner with a certificate of practical completion for the property. Interlink and the owner signed off on a final quality check on 15 December 2015 and a Form 21 Final Inspection Certificate was issued on 17 December 2015. On 22 November 2016 the QBCC received a residential construction work complaint from the owner which listed 22 items of alleged defective building work carried out by Interlink at the property. On 7 December 2016 the owner sent Interlink a list of the alleged defects and requested they be rectified. On 27 February 2017 Mr Robert Murphy, a building inspector employed by the QBCC, attended the property and carried out a site inspection. Mr Murphy completed an initial inspection report on 6 March 2017. On 10 March 2017 the QBCC issued a Direction to Rectify and/or Complete to Interlink (First Direction). On 31 March 2017 Interlink lodged an internal review application in respect of the First Direction. On 1 June 2017 the internal review decision was made to uphold the First Direction. On 6 June 2017 the QBCC issued a Direction to Rectify and/or Complete to give effect to the internal review decision (Second Direction). The Second Direction listed 13 items which required rectification. The work was to be completed by 8 July 2017. On 6 July 2017 Mr Maloney made contact with the owner requesting a time for the painter to attend. An extension of time in which to comply with the directions to rectify was applied for on 29 June 2017 and again on 6 July 2017 but was refused by the QBCC. On 12 July 2017 Interlink filed an application to review the internal review decision of 1 June 2017. The Tribunal granted leave for Interlink to file the application out of time.[2] [2]Tribunal Decision of 4 September 2017. The QBCC advised Interlink by letter dated 13 July 2017 that the Second Direction, items 1 to 13, had not been satisfactorily rectified. The QBCC wrote to Interlink on 4 September 2017 advising that a claim had been made under the Queensland Home Warranty Scheme for defective work at the property and that an amount of $42, 175.82 had been approved. On 16 November 2917 a reinspection of the work the subject of the direction to rectify was undertaken by Mr Murphy of the QBCC for the purpose of assessing what works should comprise a scope of works with respect to the owner’s claim for assistance under the statutory insurance scheme. A reinspection report was completed, dated 23 November 2017.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

On balance, I do not consider that issues with access was a basis upon which it could be said that the issue of a direction to rectify was unfair. It seems from the correspondence between the owner and Mr Maloney, that the owner was a reasonable person and was not attempting to hinder the performance by Interlink of rectification work.What is the correct and preferable decision? I turn now to consider whether, at the time the direction was issued, the correct and preferable decision was to issue a direction to rectify. The review of a decision to issue a direction to rectify requires consideration of the following issues:(a)whether the work is building work;(b)whether the building work is defective;(c)who is responsible for the defective building work; and(d)in the circumstances, whether it is unfair to direct the responsible person to rectify the building work. I will deal with each direction in the order it appears in the Direction to Rectify.DTR 1 (decking boards) Complaint 21:Deck & Patio – needs to be refinished. Direction 1:The inspection found that the deterioration and discolouration of the decking boards defective (sic), in that omission of timber preservative treatment prior to installation, inconsistent timber treatment applied post installation has resulted in presenting an unsatisfactory finish and will inevitably lead to rapid deterioration of the timber which is not able to be maintained by the owners. Mr Maloney, on behalf of Interlink, submitted that the product used on the deck was Ultra Deck, a premium product in the industry but that it still required recoating every six to twelve months depending on exposure to the elements. Mr Maloney submitted in closing submissions that the condition of the decks was caused by cleaning by the owner and exposure to the weather and that a direction should not have been issued. Mr Murphy, of the QBCC, gave evidence that a manufacturer will recommend maintenance after 12 to 18 months but that the owner nevertheless noticed the defect within two months of practical completion (on 20 January 2016). There was no evidence, only an assertion by Mr Maloney, that the product used by Interlink needed to be re-applied every six months. The initial inspection report by Mr Murphy of 6 March 2017 shows photographs of the deck. In my view, the surface of the decking looks rough and the exterior board of the deck, beyond the balustrade does not appear to have been painted at all. I note that Mr Maloney submits that the item has been rectified.[54] The item was rectified after the time for rectification under the direction to rectify had expired and does not, therefore, affect my decision as to whether the correct and preferable decision is to confirm the decision to issue the direction in the circumstances that existed at that time. I refer to my reasons above at [31]-[50].[54]Statement by Brian Maloney filed 1 November 2017, attachment M titled “Complaint items 89551…” Mr Maloney also submits that this defect was non-structural and, in accordance with the QBCC policy, should have been raised by the owner within 12 months of completion of the work. In my view, for the reasons I have outlined above, the policy is a guideline only and it is not ‘unfair’ to issue a direction to rectify this item in these circumstances.

Ratio Decidendi

Legal Principle Established

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