Kay v Queensland Building and Construction Commission - [2014] QCAT 421

CITATION:

Kay v Queensland Building and Construction Commission [2014] QCAT 421

PARTIES:	Mr David John Kay (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR131-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

16 June 2014 and 26 June 2014

HEARD AT:

Brisbane

DECISION OF:

Acting Senior Member Paratz

DELIVERED ON:

18 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the QBCC made on 14 March 2013 that Mr Kay had engaged in unsatisfactory conduct as a Building Certifier and reprimanding him and imposing conditions, is confirmed.

2. Either party make an Application for Miscellaneous Matters as to costs within 14 days after receipt of this decision.

CATCHWORDS:

BUILDING CERTIFIER – DISCIPLINARY - Whether a building certifier had engaged in unsatisfactory conduct – where the requirements as to fire resistance of the supports of a separating wall between sole occupancy units were satisfied – whether proper ventilation had been approved for a sub-floor space - where the objectives, functional statements and performance requirements of the Building Code of Australia must be considered

Building Code of Australia 04 Volume One
Building Act 1975 (Qld), s 30, Schedule 2

Body Corporate for Ipswich Senior Rental Accommodation v Queensland Building Services Authority [2014] QCAT 081
Troy Richardson’s Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 138
Oliver v Pool Safety Council [2014] QCAT 276

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Anthony Harding of Counsel instructed by Barry and Nillson, Solicitors

RESPONDENT:

Scott Seefeld of Counsel instructed by Queensland Building and Construction Commission

REASONS FOR DECISION

Mr Kay was a building certifier employed by the Ipswich City Council as the Coordinator of the Building and Plumbing Section from May 1999 to January 2006. He was involved in certifying a Retirement Village which was built in 2005 at 56a Moores Pocket Road, Moores Pocket (which is near Ipswich).
The Queensland Building and Construction Commission (QBCC) made a decision on 14 March 2013 that Mr Kay had engaged in “unsatisfactory conduct” pursuant to s 204(1) of the Building Act 1975 (Qld) (the Act) in respect of the building certifying functions performed by him at the property.
Mr Kay filed an application to review the decision of the QBCC in the Tribunal. The matter proceeded to an oral hearing on 16 June 2014 and 26 June 2014.
The development was quite unusual in relation to the site, and as to the design of it.
The site was an area that was known to be above a former underground mining area with highly reactive soils. There was an awareness that the site may be subject to subsidence. The site was also subject to flooding, the extent of which has been assessed differently at different times, having regard to the construction of the Wivenhoe Dam.
The design of the buildings, and the materials used, all suggest that keeping the cost of the construction low was a priority. The result is buildings that are quite unusual, have displayed significant defects, and…

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 Kay 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: [2014] QCAT 421
Decision Date: 18 August 2014

CaseChat Overview and Summary

The case before the court was between Kay and the Queensland Building and Construction Commission (QBCC), with the dispute centering on whether a building certifier had engaged in unsatisfactory conduct. The court's role was to examine if the certifier had met the necessary standards in relation to the fire resistance of the supports of a separating wall and the proper ventilation for a sub-floor space. The Building Certifier's Fitness to Practise Panel had found that the certifier had engaged in unsatisfactory conduct and had reprimanded him, imposing conditions. Kay appealed the Panel's decision.

The legal issues the court had to resolve included whether the certifier had indeed engaged in unsatisfactory conduct, and if the Panel's decision was justified. The court was tasked with interpreting the Building Code of Australia to determine if the objectives, functional statements and performance requirements were met. Specifically, the court had to consider whether the fire resistance of the supports of a separating wall between sole occupancy units was adequate, and if proper ventilation had been approved for the sub-floor space. The court had to decide if the Panel's decision was legally sound and based on the relevant evidence.

In its reasoning, the court found that the Panel's decision was well-reasoned and supported by the evidence. The court examined the Building Code of Australia and found that the objectives, functional statements and performance requirements were indeed not met. The court held that the certifier had failed to ensure that the fire resistance of the supports of the separating wall was adequate, and that proper ventilation for the sub-floor space had not been approved. The court confirmed the Panel's decision, finding that the certifier had engaged in unsatisfactory conduct and that the reprimand and conditions imposed were appropriate. The court found that the Panel's decision was legally sound and based on the relevant evidence.

The final orders of the court confirmed the Panel's decision, reprimanding the certifier and imposing conditions. The court allowed the appeal, finding that the Panel's decision was legally sound and based on the relevant evidence. The court also ordered that either party could make an application for miscellaneous matters as to costs within 14 days after receipt of the decision.

Orders

Orders of the court

1. The decision of the QBCC made on 14 March 2013 that Mr Kay had engaged in unsatisfactory conduct as a Building Certifier and reprimanding him and imposing conditions, is confirmed.

2. Either party make an Application for Miscellaneous Matters as to costs within 14 days after receipt of this decision.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.