JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority

JM Kelly (Project Builders) Pty Ltd sought a review of a decision by the Queensland Building Services Authority (QBSA) to issue a Direction to Rectify dated 26 June 2006. The defect in question was a category 1 defect involving water penetration in a residential building. The builder argued that it had followed the plans prepared by the architect, and thus the QBSA's discretion not to direct rectification should be exercised in their favour. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), where the primary legal issues involved the interpretation and application of relevant building regulations and standards, as well as the discretion available to the QBSA in issuing a Direction to Rectify.

The court considered the legal precedents set by R v His Honour Judge Miller and the Builders Registration Board of Queensland, ex parte Graham Evans & Co (Qld) Pty Ltd, Notley, B.L. v Queensland Building Services Authority and Harvey, and Don Mackay Pty Ltd v QBSA. These cases provided guidance on the extent of discretion available to the QBSA in such matters and the standards against which the builder's compliance with building regulations should be measured. The court examined whether the builder had met the required standards for preventing water penetration and whether the defect constituted a significant safety or health risk.

The QCAT concluded that the QBSA had properly exercised its discretion in issuing the Direction to Rectify. The tribunal found that the builder had not adequately followed the plans prepared by the architect, which resulted in the category 1 defect. The court held that the defect posed a significant risk to the safety and health of the building's occupants, and thus the QBSA was justified in directing rectification. The builder's application for review was dismissed.

The final orders were that the application to review the decision of the respondent to issue a Direction to Rectify dated 26 June 2006 to the applicant is dismissed. The builder is required to comply with the direction to rectify the identified defect.