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 HoweORDERS:
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).
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…
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- Case
- [2021] QCATA 134
- Decision Date
CaseChat Overview and Summary
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
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)