Kabir v Queensland Building and Construction Commission - [2016] QCAT 180

CITATION:

Kabir v Queensland Building and Construction Commission [2016] QCAT 180

PARTIES:	Akm Kabir (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR162-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

DELIVERED ON:

28 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

Application to review a decision by the Respondent made under s 86C of the Queensland Building and Construction Commission Act 1991 (Qld) – declining to issue a direction to rectify defective building work – circumstances where more than 6 years and 3 months have transpired since date of original building work: Queensland Building and Construction Commission Act 1991 (Qld) s 72A(4) – discussion of circumstances that might constitute ‘sufficient reason’ for QCAT to extend time for the making of a direction to extend time for the making of a direction to rectify – no reason identified on the evidence

Queensland Building and Construction Commission Act 1991 (Qld) ss 72(5), 72A(4), 86A, 86C
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24
Statutory Instruments Act 1992 (Qld) ss 7, 9

APPEARANCES:

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

REASONS FOR DECISION

This is an application to review a decision, filed by Dr Akm Kabir (‘the Applicant’), who now seeks to review a decision of the Respondent, Queensland Building and Construction Commission (‘QBCC’), as was made by the QBCC under s 86C(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’), on 26 June 2015.
The decision now under review is itself an internal review decision, in which the QBCC had confirmed an earlier decision, to refuse to give a licensee (the builder who had originally constructed the house now owned by the Applicant), another direction to rectify building work, as had been listed in the Applicant’s complaint to the QBCC, dated 3 February 2015.
Needless to say, there had been earlier, similar complaints by the Applicant to the QBCC. Some of these had resulted in the QBCC issuing the licensee with directions to undertake rectification work, on previous occasions.
The Applicant specifies the following as the grounds for his application to QCAT:^[1]
The decision maker ignored the following facts:
(1)Item #2 to #6, which I do not agree with, are recurring problems, which I had reported within 6 years and 3 months time. Some of the items I had reported multiple times within that allowable period.
(2)The builder’s attempted repairs have worked only for a short period or until next torrential rain, this implies that the repair work was never carried out properly.
(3)A couple of items, item #4 and item #5, are so wrongly based [sic] surmise that I have offered to pull the ceiling down and a QBCC rep to witness the water entry during any downpour.
(5)Item #3 was ignored previously, since whenever water…

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.

Keep reading for free

Create a free CaseChat account to read Kabir v Queensland Building and Construction Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] QCAT 180
Decision Date: 28 April 2016

CaseChat Overview and Summary

The applicant, Mr Kabir, sought judicial review of a decision by the Queensland Building and Construction Commission (QBCC) to decline to issue a direction for the rectification of defective building work. The defect in question related to rainwater leaking into the building, which was constructed by the respondent, a licensed builder. The matter was heard by the Queensland Civil and Administrative Tribunal (QCAT), which was required to decide whether the QBCC had correctly declined to issue a direction to rectify the defects under section 86C of the Queensland Building and Construction Commission Act 1991 (Qld). Given that more than six years and three months had elapsed since the date of the original building work, the central issue was whether there was sufficient reason for QCAT to extend the time for the making of a direction to rectify.

The court considered the statutory framework, particularly the objects of the QBCC Act, which include regulating the building industry, providing remedies for defective building work, and regulating domestic building contracts. The court also noted the Rectification of Building Work Policy, which requires that applications for rectification directions be made within six years and three months of the date of practical completion of the building work. In this case, the application was made approximately five years and six months after practical completion, well beyond the statutory time limit. The court examined the evidence to determine whether there were any circumstances that could be considered sufficient reason for extending the time limit, but found no such reason. The court concluded that the QBCC had correctly declined to issue a direction to rectify the defects, as the statutory time limit had expired and there was no sufficient reason to extend it.

The application for judicial review was dismissed. The tribunal found that the QBCC had correctly applied the law in declining to issue a direction to rectify the defects in the building work. The court held that the statutory time limit for making such an application had expired, and no sufficient reason was shown to extend the time limit. The tribunal's decision was affirmed, and the application for review was dismissed.

Orders

Orders of the court

1. The application is 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

Subsection 86C(1) of the QBCC Act provides:(1)If an internal review application is made under section 86B, the commission must, as soon as practicable but within the required period, make a new decision (the internal review decision) as if the reviewable decision the subject of the application had not been made. In deciding whether to give a direction to rectify building work that is defective under sub-s 72(1), the QBCC is also required to have regard to the objects that are set out in s 3 of the QBCC Act, which are:(a) to regulate the building industry—(i)to ensure the maintenance of proper standards in the industry; and(ii)to achieve a reasonable balance between the interests of building contractors and consumers; and(b) to provide remedies for defective building work; and(c) to provide support, education and advice for those whoundertake building work and consumers; and(d)to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners. In furtherance of the objects of the QBCC Act, the QBCC is also required to have regard to any ‘guideline policies’ as may be promulgated from time to time by the Queensland Building Services Board, pursuant to s 9 of the (former) Queensland Building Services Authority Act 1991(Qld). On 19 November 2009, the QBSA Board made a guideline policy termed the Rectification of Building Work Policy (‘the rectification policy’). This policy took effect on 12 March 2010, when it was published in the Queensland Government Gazette. In accordance with s 7 and s 9 of the Statutory Instruments Act 1992 (Qld), the rectification policy now takes force as an item of subordinate legislation. On the hearing of this application for review, QCAT now ‘stands in the shoes’ of the original decision maker and must decide the review in accordance with the QBCC Act, by way of a fresh hearing on the merits[2], in order to produce ‘the correct and preferable’[3] decision. Any new evidence, not available to the original decision maker, may be considered by QCAT, yet QCAT is similarly required to have regard for the requirements of the QBCC Act, and to have regard to the Rectification of Building Work Policy.[2]QCAT Act s 20(2).[3]Ibid s 20(1). On or about 26 September 2006, a builder (the licensee) commenced construction of a two-storey house, at Paradise Point. The licensee completed the house on 7 November 2007. More than five years after the date of practical completion, the present Applicant purchased[4] the house, from a mortgagee in possession. [4]On 12 May 2012. On 4 February 2013, being approximately eight months after the fact of the Applicant having purchased the house, the QBCC received a complaint from the Applicant in relation to rainwater leaking into the building, at various locations. An inspection was undertaken by the QBCC on 4 March 2013. A report of that inspection was prepared by a QBCC Building Inspector, which is now dated 5 March 2013.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.