Lim v Queensland Building and Construction Commission - [2020] QCAT 499

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Lim & Anor v Queensland Building and Construction Commission [2020] QCAT 499

PARTIES:
TENG LIM

CALEB FOO

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR148-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 December 2020

HEARING DATE:

12 April 2018

HEARD AT:

Brisbane

DECISION OF:

Member McLean Williams

ORDERS:
1. Each of the decisions now under review, save and except the decision of the QBCC in relation to item (c) of the drainage complaint, are now set aside, and are substituted by a decision of the Tribunal that determines that the complaint items amount to defective building work. Each matter is also now remitted to the QBCC subject to a direction that a direction to rectify be issued by the QBCC to Cheng Teck Alvin Sim, requiring rectification of the following defective building works, in a manner to be approved by the QBCC:

(a)    The poly pipe;

(b)   The fall of the driveway; and

(c)    The drainage grates in the driveway.

CATCHWORDS:
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where direction to rectify not issued – where decisions made by QBCC that either no evidence of defective building work, or otherwise not fair and reasonable in circumstances of complaint about Category 2 defective building work having been brought to QBCC more than six months after practical completion to issue a direction to rectify – circumstances where intervening legislative amendments extend complaint period to 12 months – further circumstances of fresh evidence (video footage) now demonstrating defective stormwater drainage – consideration of Tribunal’s review jurisdiction generally – meaning of ‘building work’ and ‘defective building work’ – consideration of evidential onus requirements to establish defective building work as a preliminary matter before a direction to rectify may issue.

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

Queensland Building and Construction Commission Act 1991 (Qld) s 71, s 72, s 86, s 87

Braund v QBSA [2007] QCCTB 100.
Chew v QBSA [2010] QCAT 501.
Imperial Homes (Queensland) Pty Ltd v QBCC [2014] QCAT 42
Jensen v QBCC [2017] QCAT 232

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented by Mr Caleb Foo

Respondent:

Holding Redlich Lawyers

REASONS FOR DECISION

By means of an Application to review a decision filed in the Tribunal on 8 June 2017, the applicants seek to review two separate decisions (‘the decisions’) of the Queensland Building and Construction Commission (‘the QBCC’), as were made on 26 September 2016 and 28 October 2016, thereby refusing to issue directions to rectify in respect of certain building works performed at an address at Runcorn, by Nichebuilt Development Pty Ltd (‘the builder’), which the applicants say are items of defective building work.

Powers and Jurisdiction of this Tribunal

The ability for the applicants to seek review of the decisions by the Tribunal is a matter that is available by reason of s 86(1)(e) and s 87 of the Queensland Building and Construction Commission Act 1991…

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: [2020] QCAT 499
Decision Date: 11 December 2020

CaseChat Overview and Summary

In the case of Lim v Queensland Building and Construction Commission, the applicant, Mr. Lim, sought judicial review of decisions made by the Queensland Building and Construction Commission (QBCC) concerning complaints about defective building work. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the decisions of the QBCC, which had either found no evidence of defective building work or deemed it not fair and reasonable to issue a direction to rectify due to the complaints being lodged more than six months after practical completion. The case turned on whether the complaints, which were lodged beyond the six-month period but within the extended twelve-month period due to legislative amendments, constituted defective building work and whether the QBCC had the authority to issue a direction to rectify in such circumstances.

The legal issues before the court encompassed the interpretation of the terms 'building work' and 'defective building work', as well as the onus of proof required to establish that the work was defective. Additionally, the court had to consider the scope of QCAT’s review jurisdiction over the QBCC’s decisions and the procedural fairness of the QBCC’s handling of the complaints. The central question was whether the QBCC had correctly applied the law in dismissing the complaints and whether new evidence, such as video footage showing defective stormwater drainage, warranted a different outcome.

The QCAT, after examining the legislative framework and the evidence presented, found that the QBCC had erred in dismissing the complaints without adequately considering the new evidence. The Tribunal held that the term 'defective building work' should be interpreted in a manner that aligns with the statutory intent to protect consumers from poor quality building work, regardless of the timing of the complaint. Furthermore, the Tribunal determined that the QBCC had not properly assessed the fresh evidence provided, which demonstrated defects that warranted rectification. Consequently, the Tribunal set aside the QBCC’s decisions and substituted them with its own findings, determining that the complaints did amount to defective building work. The matters were remitted to the QBCC with directions to issue rectification orders for the identified defects.

The final orders of the Tribunal required the QBCC to issue specific directions to rectify the defective building work concerning the poly pipe, the fall of the driveway, and the drainage grates in the driveway. However, concerning the drainage grates, the Tribunal upheld the QBCC’s decision, finding that the evidence did not sufficiently establish that the issue constituted defective building work.

Orders

Orders of the court

1. Each of the decisions now under review, save and except the decision of the QBCC in relation to item (c) of the drainage complaint, are now set aside, and are substituted by a decision of the Tribunal that determines that the complaint items amount to defective building work. Each matter is also now remitted to the QBCC subject to a direction that a direction to rectify be issued by the QBCC to Cheng Teck Alvin Sim, requiring rectification of the following defective building works, in a manner to be approved by the QBCC:

(a) The poly pipe;

(b) The fall of the driveway; and

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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