Jaques v Queensland Building and Construction Commission - [2022] QCAT 54

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jaques v Queensland Building and Construction Commission [2022] QCAT 54

PARTIES: IAN CLARK JAQUES

(applicant)

V

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR182-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

15 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.       The decision to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39 is set aside, and a new decision is substituted not to issue a direction to rectify in respect of complaint items 1, 4, 8, 15, 19, 22, 24, 26 and 39

2.       The decision to issue a direction to rectify in respect of complaint items 6, 28, 31 and 35 is confirmed.

3.       The decision not to issue a direction to rectify in respect of complaint items 2, 7, 10, 11, 13, 14, 17, 18, 21, 30, 36, 40, 41 and 42 is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where decision made to issue a direction to rectify to the builder – where the builder filed an application to review the decision – whether items of work are defective work – whether fair to give a direction to rectify

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17

Jarvis v Queensland Building and Construction Commission [2014] QCAT 693

Lohmann v Jaques [2021] QCATA 28

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 4 June 2018, Mr Jaques lodged an application to review a decision with the Tribunal. The decision to be reviewed is a decision made by the Queensland Building and Construction Commission (‘QBCC’) on 9 May 2018 to issue a direction to rectify to Mr Jaques.
As set out in s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal’s review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision.
Section 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) confers power on the Tribunal to review ‘a decision to give a direction to rectify or remedy or not to give the direction’. The considerations relevant to issuing a direction to rectify are set out in s 72.
In conducting this review, it is important to note at the outset the Tribunal is limited to the scope of the considerations set out in s 72 of the QBCC Act. The Tribunal does not have the power to address other issues that Mr Jaques might wish to ventilate.

The decision under review

The decision under review in these proceedings is the internal review decision made by the QBCC on 9 May 2018 to issue…

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: [2022] QCAT 54
Decision Date

CaseChat Overview and Summary

In this case, the applicant, Ian Clark Jaques, applied to the Queensland Civil and Administrative Tribunal (QCAT) to review a decision made by the Queensland Building and Construction Commission (QBCC). The QBCC had decided to issue a direction to rectify to Mr Jaques, in relation to work he carried out on a property owned by Mr and Mrs Lohmann. The applicant sought to overturn the QBCC's decision to issue a direction to rectify in respect of certain complaint items. The primary legal issues before the Tribunal were whether the work was "defective" and whether it was fair to direct the applicant to rectify the work. In respect of the first issue, the Tribunal found that the work in question was defective. The Tribunal found that the tiling work was not in accordance with the relevant Australian Standard, and the plastering and painting work was not in accordance with the relevant Australian Standard. In respect of the second issue, the Tribunal found that it was not fair to direct the applicant to rectify the tiling work, given the circumstances. The Tribunal found that the applicant had identified a problem with the tiling work prior to completion, offered to remove and relay all the tiles and that Mr and Mrs Lohmann had chosen not to pursue rectification of the tile work when the applicant presented them with the option. The Tribunal found that it was fair to direct the applicant to rectify the plastering and painting work as these matters were not disputed by the applicant. The Tribunal set aside the QBCC's decision to issue a direction to rectify in respect of certain complaint items and substituted a new decision not to issue a direction to rectify in respect of those complaint items. The Tribunal confirmed the QBCC's decision to issue a direction to rectify in respect of other complaint items and confirmed the QBCC's decision not to issue a direction to rectify in respect of the remaining complaint items.

Orders