Kovacs v Queensland Building and Construction Commission - [2025] QCAT 52

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kovacs v Queensland Building and Construction Commission [2025] QCAT 52

PARTIES:

DIANNA MAY KOVACS

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR127-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

27 January 2025

HEARING DATE:

19 March 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

1. The decision of the Queensland Building and Construction Commission to not give Pantha Homes Pty Ltd a direction to rectify is set aside and substituted with the Tribunal’s decision that Troy Steven Lukritz must rectify the building work described in Complaint Item 2 of the Residential and Commercial Construction Complaint Form, submitted to the QBCC, by Dianna May Kovacs.

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 – where a question arose as to the extent to which the Tribunal could take into account the builder’s partial rectification of the defective work.

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 builder commenced work on her house on 25 October 2017 and completed it on 9 August 2018.
While constructing the house, the builder engaged a plumber to install a stormwater pipe (‘pipe’) adjacent to the ensuite bathroom of the house (‘the work’). The pipe is situated within an excavated trench (‘trench’).
Mrs Kovacs contends that the work is defective because the trench was excavated within the ‘zone of influence’, which is an angle extending down and away from the lower external corner of the perimeter of the house.
On 16 September 2019, Mrs Kovacs lodged a complaint with the QBCC (‘complaint’) about the defective work.
On 14 January 2020, QBCC Inspector Brian Bates inspected the house to assess the complaint. He found:
(a)the edge of the field gully adjacent to the under-eave extension is approximately 600mm from the perimeter of the main house slab and approximately 130mm from the external of the under-eave extension.
(b)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.

Keep reading for free

Create a free CaseChat account to read Kovacs 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: [2025] QCAT 52
Decision Date: 27 January 2025

CaseChat Overview and Summary

In the matter of Kovacs v Queensland Building and Construction Commission, the applicant, Dianna May Kovacs, sought a review of the respondent's decision to not give a direction to rectify defective building work carried out by the builder, Pantha Homes Pty Ltd. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining the fairness of issuing a direction to rectify, given the builder's partial rectification of the defective work. The primary issue before the Tribunal was whether it would be unfair to issue the builder with a notice to rectify, considering the extent to which the Tribunal could take into account the builder's partial rectification.

The Tribunal considered the evidence presented by both parties, including the expert opinions of Mr Pierre Dragh, an engineer engaged by Mrs Kovacs, and Mr Bates, a witness called by the QBCC. Mr Dragh's evidence suggested that the house had the potential for future movement and cracking due to the non-compliance with Australian Standards and the NCC, which could manifest over a period of five to six years. The Tribunal accepted Mr Dragh's expertise and his opinion that the impact of excavation within the zone of influence is an aspect of specialised knowledge in the field of residential house construction. Despite QBCC not challenging Mr Dragh's expertise, the Tribunal considered it appropriate to rely on his opinion, given the absence of contradictory expert evidence.

The Tribunal concluded that it would not be unfair to issue the builder with a direction to rectify the defective building work. The Tribunal adopted a temporally fluid approach, considering all current available evidence directed to the question which the original decision maker was bound to decide, but did not include evidence of rectification work carried out by the builder. The Tribunal's decision was influenced by Mr Dragh's opinion that evidence of the stormwater line affecting the performance of the property could manifest over several years, depending on environmental factors. As such, the Tribunal set aside the decision of the Queensland Building and Construction Commission and substituted its own decision that Troy Steven Lukritz must rectify the building work described in Complaint Item 2 of the Residential and Commercial Construction Complaint Form submitted to the QBCC by Dianna May Kovacs.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission to not give Pantha Homes Pty Ltd a direction to rectify is set aside and substituted with the Tribunal’s decision that Troy Steven Lukritz must rectify the building work described in Complaint Item 2 of the Residential and Commercial Construction Complaint Form, submitted to the QBCC, by Dianna May Kovacs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The review proceeded to a hearing on 19 March 2024. QBCC called Mr Bates as a witness. His viva voce evidence was consistent with the opinions expressed in his report and a statement filed in the Tribunal. He said: (a)the work did not comply with the requirements of the NCC or Australian Standard 3500.3.(b)at the time of his inspection, which was 22 months after the house was completed, there was no evidence of cracking to the internal bulkhead, plaster, or the internal sections of the plasterwork where the toilet and vanity are positioned. There was no movement or cracking identified in the grout or the tiles on the floor of the ensuite. Externally, there was no visible movement or cracking in the lightweight wall of the under-roof extension. (c)he did not consider it reasonable to issue a direction to rectify because there was no evidence of movement. The house appeared as if it had been newly built. The evidence of the expert witnesses Mrs Kovacs called two expert witnesses. They were: (a)Mr Pierre Dragh; and (b)Mr Stephen Sam Kolano. Mr Dragh is a member of Professional Engineers Australia. Mrs Kovacs engaged him to provide advice about the potential effects of the defective work on the house. In a statement filed in the Tribunal Mr Dragh deposed: (a)to ensure compliance with the NCC and relevant Australian standards, ‘standard design practice is to provide pier support if any works are to be carried out within the zone of influence’. (b)there is no evidence provided by the builder, to show proper back fill and compaction of the trench was supplied and installed as required by AS2870:2011. Excavation has been undertaken on each side of this footing through sewage and storm water drainage. Sound engineering practice is to pier the footing to prevent any effect from moisture on the soil over the 50-year life span of the slab. (c)given the installation practice undertaken, piers should be added in line with AS2870:2011 for compliance. Mr Dragh expressed similar opinions in a written report filed in the Tribunal and dated 25 September 2019. He stated: (a)in short, piers need to be added to the footing due to the trenches’ influence on the ground beneath the footing. The is currently installed in non-compliant with Australian Standards and NCC. (b)the plumbing installation has not followed the advice by STA Engineering on page 11 of 16 and is non-compliant with AS2870, NCC and A3500. STA’s designer ensured a zone of influence created by the trench would not influence the foundation. Any pipe trenches within this area of influence would affect the building foundation design.(c)… given there are no compaction tests confirming ground stability the ground can only be assumed as unstable for foundation bearing. (d)in the Australian Capital Territory there is a requirement for piers alongside drainage. There will definitely be movement in the future if they (the piers) are not done. (e)he has personally observed subsidence on a couple of occasions where drainage was installed within the zone of influence. The subsidence manifested five to six years into the life of the house. (f)without piers the weight of the house could put pressure on the pipes and crack them.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

A question therefore arises, about the extent to which the Tribunal can consider the builder’s partial rectification, when making its decision. I adopt the Tribunal’s reasoning in Interlink Developments Pty Ltdv Queensland Building and Construction Commission [2020] QCAT 480 and Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2021] QCAT 245. Those cases are authority for the propositions that: (a)the question to be determined by the Tribunal is whether, at the time the decisions were made, the correct and preferable decision was to issue or not issue a direction to rectify;[12] and (b)for the purpose of exercising its discretion, the Tribunal shall embrace a temporally fluid approach by considering all current available evidence directed to the question which the original decision maker was bound to decide. That evidence does not include evidence of rectification work carried out by the builder.[12]Interlink Developments Pty Ltd vQueensland Building and Construction Commission [2020] QCAT 480 at [45].Consideration In this proceeding, the following issues are not in contest. (a)the Tribunal has jurisdiction to review the decision. (b)the work that the builder performed was ‘building work’.(c)Mrs Kovacs made her rectification request with the timeframe prescribed by the QBCC Act. (d)the work was defective because it did not comply with AS3500 or the NCC. Accordingly, in my mind the primary issue the Tribunal must decide is whether it would be unfair to the builder to give the direction to rectify. I have concluded that it would not be unfair to give the builder a decision to rectify, because I am not satisfied that subsidence or other secondary defects caused by the defective building work would have necessarily manifested at the time Mr Bates inspected the house. In reaching the above conclusion, I had regard to Mr Dragh’s contention that it could take five or six years, or more, for evidence of the stormwater line affecting the performance of the property to manifest, depending on rain and the movements in the soil. Notably, QBCC did not challenge Mr Dragh’s expertise to give that evidence. Further, during cross examination, QBCC did not put to him that his contention was wrong. In the absence of contradictory expert evidence, I accept Mr Dragh’s opinion about that issue. Notwithstanding that QBCC did not challenge Mr Dragh’s expertise, I am nevertheless satisfied that that the construction of residential houses is a field of specialised knowledge. I consider that the impact of excavation within the zone of influence is an aspect of that field of knowledge about which Mr Dragh has become an expert by reason of specified training, study, and experience. Mr Dragh is an engineer by profession, and he has personally observed subsidence, and foundation failure, in houses where drainage has been installed within the zone of influence. Although Mr Dragh did not personally visit Mrs Kovacs’ house, the assumed facts upon which he based his opinion are not in dispute. QBCC readily accepts that the stormwater line lies within the zone of influence. The precise extent to which it does so is particularised in Mr Bates’ report. Mr Dragh also had access to pictures and the house plans to inform his opinions.