MacFarlane v Queensland Building and Construction Commission - [2019] QCAT 408

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408

PARTIES: PETER JOHN MACFARLANE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR361-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 November 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The decision of the Queensland Building and Construction Commission not to give a direction to rectify is confirmed.

CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant seeks to review a decision by the QBCC to not give a direction to rectify – where applicant delayed in making a complaint about structural defective work – whether the correct and preferable decision is to give a direction to rectify

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

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

Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Navina Thirumoorthi, Senior Lawyer

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This is a review of a decision made Queensland Building and Construction Commission (‘QBCC’) not to give a direction to rectify in respect of rain water ingress in a newly built house. The QBCC made the decision not to give a direction to rectify because of the home owner’s delay of nearly two years in making a complaint to the QBCC after discovering the problem.
The facts are:-
(a)Peter John MacFarlane is the owner of a house on the Gold Coast, having contracted to purchase it on about 15 September 2015 while it was being built by A B Hill Constructions Pty Ltd.
(b)The owner took possession of the house in December 2015 before it was finished.
(c)On 15 March 2016 the owner noticed rain water ingress in the main bedroom, master ensuite, master walk in robe, and second bedroom after heavy rain.
(d)On 20 March 2016 the owner informed the contractor about the problem. The contractor attended site and did some repairs, claiming that this had solved the problem.
(e)The house was completed, and the purchase of the house was settled in June 2016.
(f)There was no further water ingress until about March 2017 again after heavy rain.[1] Again the contractor did try to rectify the problem but there were further leaks in April 2017 and again in October 2017.[2]
[1]The complaint of 20 February 2018 says this happened in March 2017, but the submissions say it happened in April 2017.
[2]Complaint of 20 February 2018.
(g)About October 2017 on the contractor’s advice, the owner engaged other contractors to assess the source of the problem and to rectify it.[3]
(h)The owner was advised by two separate contractors that to rectify the problem the entire top deck would have to be lifted,…

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: [2019] QCAT 408
Decision Date: 28 November 2019

CaseChat Overview and Summary

In the case of MacFarlane v Queensland Building and Construction Commission, the applicant sought to review a decision by the Commission not to give a direction to rectify defective building work. The respondent, the Queensland Building and Construction Commission, was the body responsible for overseeing the building and construction industry in Queensland, including ensuring that building work was completed to the required standards. The applicant alleged that the building work done by a builder was defective, and sought a direction from the Commission for the builder to rectify the work. The Commission, however, declined to give such a direction, leading to the applicant's application for judicial review.

The primary legal issue that the court had to determine was whether the Commission's decision not to give a direction to rectify was the correct and preferable decision. The court had to consider whether the applicant's delay in making a complaint about the defective building work was a valid reason for the Commission not to give a direction to rectify. The court also had to consider whether the Commission had the power to direct the builder to rectify the defective building work, and whether there were any other factors that the Commission should have taken into account when making its decision.

The court found that the Commission's decision not to give a direction to rectify was the correct and preferable decision. The court found that the applicant's delay in making a complaint about the defective building work was a valid reason for the Commission not to give a direction to rectify. The court also found that the Commission had the power to direct the builder to rectify the defective building work, but that the Commission was not obliged to exercise that power in every case. The court found that the Commission had taken into account all relevant factors when making its decision, and that its decision was not unreasonable.

The court confirmed the decision of the Queensland Building and Construction Commission not to give a direction to rectify. The court found that the Commission's decision was not unlawful, and that there were no grounds for the applicant to seek judicial review of the Commission's decision. The court also found that the Commission had acted within its statutory powers, and that its decision was not affected by any error of law.

Orders

Orders of the court

The decision of the Queensland Building and Construction Commission not to give a direction to rectify is confirmed.

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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