Jorg v Queensland Building and Construction Commission - [2021] QCATA 134

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134

PARTIES: FRANZ JORG
CHRISTINA JORG

(applicant/appellant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

APL123-20 and APL124-20

ORIGINATING APPLICATION NO/S:

GAR063-19 and GAR085-19

MATTER TYPE:

Appeals

DELIVERED ON:

20 October 2021

HEARING DATE:

8 December 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Howe

ORDERS:

In APL123-20 and APL124-20

1. Leave to appeal refused

2. Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where applicants asserted lack of procedural fairness – where grounds of appeal involved questions of law, questions of fact and questions of mixed law and fact – where leave to appeal required

ADMINISTRATIVE REVIEW – where applicants claimed building work was defective – where Queensland Building and Construction Commission declined to give direction to rectify to builder – where applicants sought internal review of decision not to give direction to rectify – where internal review decision confirmed original decision – where applicants applied to QCAT to review decisions by the QBCC – where applicants claimed building works had not been completed until builder had completed rectification work – where tribunal decided that building works had been completed more than 6 years and 6 months prior to applicants filing applications to review QBCC decisions – consideration of s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of when building work ‘was completed’ – where no discretion to extend time to give direction to rectify in the absence of an application by the QBCC

Acts Interpretation Act 1954 (Qld), s 38.

Queensland Building and Construction Commission Act 1991 (Qld), s 47, s72A(4), s 86(1)(e), s 86A(1), s 86E(a), s86E(b).

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1), s24(2)(b), 142(3)(a)(ii).

Barry v QBCC [2015] QSC 50.

Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189.
Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT.
Stephens v QBCC [2018] QCAT 281.

Stuart v Queensland Building and Construction Commission [2017] QCA 115.

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Ms S Tabaiwalu (in house)

REASONS FOR DECISION

In 2011, the Jorgs contracted with a builder to complete the construction of a dwelling at Maleny. The building works reached practical completion in July 2012. In early 2013, the Jorgs complained to the Queensland Building and Construction Commission (‘QBCC’), about defective items of building work. There began the saga that has led to the present appeals.
The Jorgs complained to the QBCC about a number of defects including waterproofing and weatherproofing issues relating to windows installed in the living and dining rooms (the window issues). The Jorgs also complained to the QBCC about issues relating to a number of internal doors (the internal door issues).
On 11 December 2018, the QBCC made a decision not to issue the builder with a direction to rectify in respect of the…

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] QCATA 134
Decision Date: 20 October 2021

CaseChat Overview and Summary

The applicants, Mr and Mrs Jorg, sought to appeal a decision of the Queensland Civil and Administrative Tribunal (QCAT) that dismissed their applications for review of decisions by the Queensland Building and Construction Commission (QBCC). The dispute involved allegations that the Jorgs' building work was defective, and they sought a direction from the QBCC for the builder to rectify the defects. The QBCC declined to give such a direction, and the Jorgs sought internal review of this decision, which was also declined. The Jorgs then applied to QCAT to review the QBCC's decisions. The central legal issue was whether the building work was considered 'completed' for the purposes of section 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld), and if so, whether this completion date triggered the limitation period for issuing a direction to rectify. The QCAT found that the building work was completed more than 6 years and 6 months before the Jorgs filed their applications, thus the tribunal could not extend the time limit for issuing a direction to rectify. The applicants argued that they were denied procedural fairness and that the tribunal failed to consider relevant material, but the court found no basis to grant leave to appeal or to dismiss the QCAT's decision. The QBCC maintained that the Jorgs were not denied procedural fairness, and the applicants had not demonstrated a reasonable prospect of success on appeal or that the matter was of general public importance. Ultimately, the appeal was dismissed, and leave to appeal was refused.

Orders

Orders of the court

In APL123-20 and APL124-20

1. Leave to appeal refused

2. Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

By s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act), if the tribunal makes a decision under (a) or (b) above, subject to any contrary order of the tribunal, the decision has effect from when the reviewable decision takes or took effect.[10][10]Ibid, s24(2)(b). The decision at first instance In dismissing the applications by the Jorgs, the Tribunal found:(a)The Jorgs had two options available to them to seek a review of the first and second decisions:(i) Internal review; (ii) Application to the tribunal;(b)The Jorgs chose to apply for internal review of the first and second decisions;(c)The internal review decisions subsequently made by the QBCC (that is, the first and second reviewable decisions) were each a ‘reviewable decision’;(d)The first and second reviewable decisions were made more than 6 years and 6 months after the completion of the work;(e)The tribunal’s decisions in respect of the first and second reviewable decisions would impermissibly take effect after the expiry of the 6 year and 6 month period;(f)By choosing to pursue an internal review rather than an application to the tribunal to review the first and second reviewable decisions, the Jorgs were the ‘authors of their own difficulties in relation to s 72A(4)’ of the QBCC Act;(g)It was not appropriate to make ‘an order to the contrary’ pursuant to s 24(2)(b) of the QCAT Act.What do the parties say? The material filed by the Jorgs in these appeals is extensive and diffuse. Doing the best we can, we have identified the grounds of appeal as:(a)The tribunal determined the matter without the parties having been given the opportunity to file evidence;(b)The Jorgs were not given the opportunity to file submissions in reply to the QBCC’s submissions;(c)The Jorgs were not afforded the opportunity for an oral hearing of the application to dismiss and were not given notice that the application would be determined on the papers; (d)The failure by the QBCC to act promptly was the reason the relevant time limit expired;(e)The tribunal failed to consider relevant matters and material being:(i) the failure by the QBCC to issue a direction to rectify to the builder since 2013 in respect of the windows issues and the internal doors issues;(ii) the failure by the QBCC to issue a direction to rectify to the builder in respect of the Jorgs’ complaint on 25 March 2018 regarding the windows issues;(iii) the failure by the QBCC to accept the defect assessment of the Australian Glass and Window Association and to reassess and correct their assumption;(iv) the contradictory actions of the QBCC relating to the same defects in the dwelling and under the same contractual arrangements;(f)The QBCC failed to comply with directions to provide a statement of reasons;(g)The discretion of the learned member miscarried in respect of the exercise of the power conferred by s 24(2)(b) of the QCAT Act;(h)The tribunal erred in failing to find that the limitation period for the purposes of s 72A(4) of the QBCC Act commenced to run on or about 20 August 2014 when the builder finished performing the rectification works.

Ratio Decidendi

Legal Principle Established

The QBCC says:(a)The Jorgs were not denied procedural fairness;(b)The Jorgs had applied for leave to deliver further submissions which was denied. It is not now open to the Jorg’s to seek to attack that decision which they should have appealed at the time it was made;(c)The determination of the application to dismiss did not require the substantive hearing of the review proceedings;(d)There was no reasonable prospect that the Jorgs would have obtained substantive relief in circumstances where the tribunal was not influenced by irrelevant matters;(e)The Jorgs have suffered no substantial injustice that requires the granting of leave to appeal;(f)The Jorgs have not asserted that there is a question of general importance that would be to the public advantage requiring leave to appeal.Consideration The decision under appeal is a ‘final decision’ for the purposes of s 142(3)(a)(ii) of the QCAT Act.[11][11]Ibid, s 47. See also Stuart v Queensland Building and Construction Commission [2017] QCA 115 for a consideration of what is a ‘final decision’.Section 72(4) of the QBCC Act Section s 72(4) of the QBCC Act states:(4) A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly. The Jorgs say that, for the purposes of s 72A(4), the works were not completed until the builder finished performing the rectification works on or about 20 August 2014. In Davis & Ors v Queensland Building and Construction Commission,[12] the tribunal considered whether building work was ‘completed’ for the purposes of s 72A(4) when the contracted works were completed (referred to by the tribunal as ‘the 2009 work’) or when subsequent rectification work in respect of the contracted works was completed (referred to by the tribunal as ‘the 2015 work’). [12][2020] QCAT 189. The tribunal held:[30] Those words (‘was completed or left in an incomplete state’) must be given meaning. The trigger question to be answered in applying s 72A(4) is, when was the building work completed or left incomplete? [31] The word completed is not defined in the Act however: The term ‘completed’ must be read in the context of the phrase in which it appears. The word should be given its ordinary meaning of ‘finished’. The Act and Policy fix a point in time by reference to when the building work was either finished or left in an incomplete state. [32] Building work is defined and it covers a range of things. It includes erection or construction of a building and site work and preparation of plans, and improvement and repair of a building. [33] In Barry v QBCC the meaning of building work was considered in the context of s 72A(4) with Flanagan J noting contract administration was included in the definition. He said that expression, contract administration, was in turn defined under the Act to include arranging for certificates to be issued, including certificates from a local government. [34] Flanagan J said that the time limit under s 72A(4) for defective building work runs from when the building work completes, building work includes contract administration and accordingly, in the matter before him, the time limit for QBCC to issue a direction to rectify started from the date of issue of the final inspection certificate. That was the date the building work completed for the purpose of s 72A(4). [35] Here, after the building work was done in 2009, a certificate of classification issued on 10 July 2009. Applying Barry, the relevant period allowed QBCC to issue a direction to rectify under s 72A(4) commenced then and finished 6 years and 6 months later, on 10 January 2016. (footnotes omitted)

CITATION:	Jorg & Anor v Queensland Building and Construction Commission [2021] QCATA 134
PARTIES:	FRANZ JORG CHRISTINA JORG
(applicant/appellant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:	APL123-20 and APL124-20
ORIGINATING APPLICATION NO/S:	GAR063-19 and GAR085-19
MATTER TYPE:	Appeals
DELIVERED ON:	20 October 2021
HEARING DATE:	8 December 2020
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Member Howe
ORDERS:	In APL123-20 and APL124-20 1. Leave to appeal refused 2. Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – where applicants asserted lack of procedural fairness – where grounds of appeal involved questions of law, questions of fact and questions of mixed law and fact – where leave to appeal required ADMINISTRATIVE REVIEW – where applicants claimed building work was defective – where Queensland Building and Construction Commission declined to give direction to rectify to builder – where applicants sought internal review of decision not to give direction to rectify – where internal review decision confirmed original decision – where applicants applied to QCAT to review decisions by the QBCC – where applicants claimed building works had not been completed until builder had completed rectification work – where tribunal decided that building works had been completed more than 6 years and 6 months prior to applicants filing applications to review QBCC decisions – consideration of s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) – meaning of when building work ‘was completed’ – where no discretion to extend time to give direction to rectify in the absence of an application by the QBCC Acts Interpretation Act 1954 (Qld), s 38. Queensland Building and Construction Commission Act 1991 (Qld), s 47, s72A(4), s 86(1)(e), s 86A(1), s 86E(a), s86E(b). Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1), s24(2)(b), 142(3)(a)(ii). Barry v QBCC [2015] QSC 50. Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189. Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT. Stephens v QBCC [2018] QCAT 281. Stuart v Queensland Building and Construction Commission [2017] QCA 115.
APPEARANCES & REPRESENTATION:
Applicant:	Self represented
Respondent:	Ms S Tabaiwalu (in house)