Luscombe v Queensland Building and Construction Commission

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Luscombe v Queensland Building and Construction Commission [2019] QCAT 13

PARTIES:

TONY JASON LUSCOMBE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR055-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 January 2019

HEARING DATE:

15 October 2018; 16 October 2018; 17 October 2018;

18 October 2018; 26 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

1.  Except in respect of direction to rectify 42 issued on 13 February 2017, the decision of the Queensland Building and Construction Commission to issue directions to rectify to Tony Jason Luscombe is set aside and a decision is substituted not to issue directions to rectify.

2.  The decision to issue direction  to  rectify  42  on 13 February 2017 is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY           POWER          TO          REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE

BUILDING    WORK   –    whether    work    defective     or incomplete – whether unfair to require rectification

Queensland Building and Construction Act 1991 (Qld), s 3, s 72

Duke Building Pty Ltd v Queensland Building and Construction Commission & Ors [2015] QCAT 397 Middleton v Queensland Building and Construction Commission [2018] QCAT 177

R v His Honour Judge Miller and the Builders’ Registration Board of Queensland, ex parte Graham Evans & Co. (Qld) Pty Ltd [1987] 2 Qd.R. 446

APPEARANCES & REPRESENTATION:
Applicant:	Gadens Lawyers
Respondent:	HWL Ebsworth Lawyers

REASONS FOR DECISION

Introduction

1. This case is about whether Mr Luscombe should have been directed to rectify building work on a house at The Gap. The property is an elevated bushland site. The owner, Ms Kill, engaged Mr Luscombe to build the house. The contract was signed on

   23 October 2013. It named Ms Kill’s husband, Mr Cockburn, as Ms Kill’s representative for the contract. Work commenced in about late October 2013. Mr Luscombe and his employees and subcontractors undertook extensive work over the following year or two but the parties fell into dispute before the house was finished. Lawyers were engaged but agreement was not reached. Ms Kill then terminated the contract on 13 October 2015.

2. Ms Kill made a complaint about Mr Luscombe’s building work to the Queensland Building and Construction Commission (‘QBCC’). After an inspection, QBCC issued directions to rectify to Mr Luscombe on 27 April 2016. Both Mr Luscombe and Ms Kill asked QBCC to review its decision. An internal review officer varied the decision on 8 February 2017, after a further inspection. This resulted in a new set of directions to rectify, dated 13 February 2017. This set contains 68 directions. This large number might create a misleading impression because in many instances a single identified problem resulted in a separate direction for each place in the building where that problem existed as well as a cover-all direction. There is also some other duplication.

3. Mr Luscombe has applied to the Tribunal for an external review of QBCC’s decision. Mr Russell Ensbey of Gadens Lawyers represented Mr Luscombe at the hearing, while Ms Stephanie Hedger of…