Kovacs v Queensland Building and Construction Commission - [2025] QCAT 68

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kovacs v Queensland Building and Construction Commission [2025] QCAT 68

PARTIES:

DIANNA MAY KOVACS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR299-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

13 February 2025

HEARING DATE:

19 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

The internal review decision of the Queensland Building and Construction Commission dated 11 July 2019, confirming its decision to not give Pantha Homes Pty Ltd a direction to rectify, is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant sought a review of the respondent’s decision to not give a decision to rectify defective building work – where primary issue in contest was whether it would be unfair to issue the builder with a notice to rectify

Queensland Building and Construction Commission Act 1991 (Qld), s 71, s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Kracke v Mental Health Review Board v Ors (General) [2009] VCAT 646

PIM v Director-General, Department of Justice and Attorney-General [2020] QCAT 188

APPEARANCES & REPRESENTATION:

Applicant:

Mr S Kovacs

Respondent:

S Hedger (Solicitor), HWL Ebsworth Lawyers

REASONS FOR DECISION

Dianna May Kovacs has applied to the Tribunal for a review of an internal decision by the Queensland Building and Construction Commission (‘QBCC’), confirming its decision to not give Pantha Homes Pty Ltd (‘Builder’) a direction to rectify building work that she contends is defective.
Chronology
Mrs Kovacs engaged the builder to build her a house (‘the house’).
The Builder commenced work on her house on 25 October 2017 and completed it on 9 August 2018.
The builder laid concrete pathways on each side of the house (‘the work’).
On 18 March 2019, Mrs Kovacs lodged a complaint with the QBCC (‘the complaint’) about the work. Complaint item 1 of her complaint form, submitted to the QBCC, inter alia states: ‘Concrete not as per design and cracking’.
On 27 May 2019, QBCC Inspector Brian Bates attended the house to assess the complaint. He observed:
(a)two hairline cracks which were ‘barely visible to the naked eye’.[1]
(b)cracking in the pavement on the right-hand side of the house measured no more than 0.25mm.
(c)cracking on the left-hand side of the house measured no more than 0.5mm.
(d)instead of Isolation Joints in accordance with Clause 5.4.3 of Australian Standard 3727.1:2016 (AS3727:2016) (as per ‘Typical’ pathway design), the builder installed Control Joints as per Clause 5.4.2 of AS3727:2016.
(e)some parts of the Control Joints had not been fully cut to a depth of ¼ of the slab thickness (as per Clause 5.4.2(b)(iii)) and not at full width (as per clause 5.4.8).
[1]Statement of Brian Leslie Bates, p 17, para 24(iii).
On 11 June 2019, QBCC notified Mrs Kovacs of its…

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: [2025] QCAT 68
Decision Date: 13 February 2025

CaseChat Overview and Summary

In the case of Kovacs v Queensland Building and Construction Commission, the dispute involved a review of the respondent’s decision not to issue a direction to the builder to rectify defective building work. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT). The applicant, Mrs Kovacs, sought to challenge the decision made by the Queensland Building and Construction Commission (QBCC) not to require the builder, Pantha Homes Pty Ltd, to rectify the defective work.

The primary legal issues the court was required to decide were whether the building work was defective and whether it would be unfair to require the builder to rectify the defects. The court had to determine if the work met the statutory definition of 'defective' under the QBCC Act, and if it was fair to issue a direction for rectification given the nature and visibility of the defects. The applicant argued that the defects were significant and required rectification, while the respondent contended that the defects were minor and rectification would be unfair.

The court found that the building work was indeed defective, as evidenced by the control joints not being cut to the correct depth, reinforcement not being installed at the correct depth, and the use of control joints where isolation joints should have been used. However, the court concluded that it would be unfair to require the builder to rectify the defects because the cracks caused by the defective work were barely visible and did not impact the aesthetics or functionality of the pathways. The court emphasised that the cracks were trivial and unlikely to increase in size or cause future issues, thereby deeming any rectification unnecessary and unfair under the circumstances.

The final orders of the court confirmed the internal review decision of the QBCC dated 11 July 2019, which decided not to give Pantha Homes Pty Ltd a direction to rectify. Despite losing the present review, Mrs Kovacs will still achieve rectification of the defects in a separate proceeding concerning the installation of stormwater pipes at her property.

Orders

Orders of the court

The internal review decision of the Queensland Building and Construction Commission dated 11 July 2019, confirming its decision to not give Pantha Homes Pty Ltd a direction to rectify, is confirmed.

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

In a proceeding for a review of a reviewable decision, the Tribunal may: [9](a)confirm or amend the decision; or(b)set aside the decision and substitute its own decision; or(c)set aside the decision and return the matter for reconsideration to the decision maker for the decision, with the directions the tribunal considers appropriate. [9]Ibid, s 24.Consideration Two primary questions fall to be answered in this review, namely: (a)was the work defective? and (b)would it be unfair to issue the Builder with a direction to rectify the work? Is the work defective? I am amply satisfied that the work was defective. Mr Bates admitted as much in his evidence. I find that the evidence overwhelmingly establishes that: (a)the control joints were not cut to the correct depth and did not extend to the perimeter of the house. (b)reinforcement was not installed at the correct depth. (c)the builder employed control joints where isolation joints ought to have been used. The above deficiencies are plainly ‘unsatisfactory’, and therefore fall within the definition of ‘defective’ stated in the QBCC Act. Additionally, I find that it was the improperly constructed Construction Joints which most likely caused the cracks. I accept Mr Drahg’s opinion that, if the joints were properly cut, cracks would not have occurred outside the joints. QBCC provided no convincing alternative reasons for why the cracks may have occurred. The question of ‘unfairness’ The more pertinent question in the proceeding, is whether it would be unfair to require the Builder to rectify the defect. In my opinion, the answer to that question is ‘yes’. Having perused photographs of the cracks on Tribunal file, I concur with Mr Bates’ observation that the cracks were barely visible to the naked eye. I do not consider it necessary to resolve the controversy about whether the cracks were ‘random cracks’ that fell within the tolerances permitted under AS3727:2016. At the end of day, the cracks are trivial. They are not unsightly. The aesthetics of the pathways are not impacted. The concrete used in the pathways was performing at the time Mr Bates inspected it. There is no evidence that the defective work would have caused the pathways to fail or otherwise stop performing in the future. The cracks did not increase in size in the nearly seven months that elapsed between Mr Bates’ two inspections of the house. The obvious inference, therefore, is that future cracks were unlikely to occur. In all the circumstances, I consider that at the time QBCC made its decision, it would have been unfair to require the Builder to rectify the work. Accordingly, I propose to confirm QBCC’s internal review decision. It is apposite to note that in a separate proceeding GAR127-20, involving the same parties, the Tribunal ordered that the Builder must rectify unrelated defective work at Mrs Kovacs property. Satisfying, that order, which concerns the installation of stormwater pipes, will require the Builder to reinstate the concrete pathways that are the subject of the present review. So, whilst Mrs Kovacs has lost the present battle, it would seem she has won the war. She will get new pathways.