Mackenzie v Queensland Building and Construction Commission & Anor - [2024] QCAT 59

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mackenzie v Queensland Building and Construction Commission & Anor [2024] QCAT 59

PARTIES:

ROBINA JANE ROSS MACKENZIE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(First respondent)

BRETT MESSER

(Second respondent)

APPLICATION NO/S:

GAR183-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 February 2024

HEARING DATE:

25 January 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

1.     The application to strike out the proceeding is allowed.

2.     The respondents must file any submissions as to costs by 4:00pm on 15 February 2024.

3.     The applicant must file any submissions in response by 4:00pm on 7 March 2024.

4.     Any application for costs will be determined on the papers after 7 March 2024.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – general administrative review - where completed building inspection the subject of a decision not to issue a direction to rectify – whether s4C of the Queensland Building and Construction Act 1991 (Qld) applies – whether application to review should be struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld), s 4C

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

APPEARANCES & REPRESENTATION:

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

Applicant:

Self-represented

First respondent:

R Ensbey, Gadens Lawyers

Second respondent:

PW Evans, Cornwalls

REASONS FOR DECISION

The substantive application in this matter is an application to review a decision made by the Queensland Building and Construction Commission dated 7 April 2022, to not direct Brett Messer to rectify any of the complaint items.
Mr Messer trading as Regional Reports entered into a contract with the applicant, Robina Mackenzie to conduct a building inspection and to produce a pre-purchase building report of a property at Killarney. The report provided by Mr Messer to Ms Mackenzie is dated 11 February 2019.
Ms Mackenzie subsequently purchased the property on 18 March 2019.
Ms Mackenzie moved into the property in December 2019 and began experiencing “violent and distressing” movements within the property which she believed correlated sometimes with weather events like rain and, in particular, winds from the south east, which were very strong during the night.
By way of background, the property was relocated on 2009 from the front of the property to the back. There were issues with respect to the certification of the removal and, ultimately, the certifier was found by the Commission to have engaged in unsatisfactory conduct.
On 22 May 2021 Ms Mackenzie obtained a report from a different building inspector, Mr David Brunner of Jim’s Building Inspections.
On 27 June 2021 Ms Mackenzie lodged a complaint form with the Commission alleging that Mr Messer’s report dated 11 February 2019 failed to identify structural defect items that had been identified in the subsequent report by Mr Brunner.
The Commission conducted inspections of the property principally to determine whether the report by Mr Messer complied with the relevant Australian Standard (AS4349.1 2007). A Pre-Purchase Inspection Investigation Report was produced on 31 March 2022.
On 7 April 2022 the Commission notified the parties that the Commission would not be directing Mr Messer to rectify any of the applicant’s complaint items at the property.
On 9 May 2022 Ms Mackenzie applied to review that decision not to give a direction to rectify to Mr Messer.
On 13 January 2023 Mr Messer applied to have the proceeding dismissed or struck out, in addition to seeking an order for costs. This is the application I am to decide.
Application to strike out the proceeding
Mr Messer has applied to strike out the proceeding on the basis the tribunal lacks jurisdiction to hear the matter due to the operation of s 4C(a) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). Mr Messer submitted that he is not a necessary party to the proceeding but at most, a witness. Mr Messer submitted the contracting party was Brett Messer Pty Ltd and that this company was deregistered in August 2021, prior to the commencement of the proceeding on 9 May 2022. Further, there was no practical utility in proceeding with the review, given the changes that have occurred since the relevant inspection to the property; the company cannot be ordered to repair building work it did not undertake or to pay for such repairs; Mr Messer does not possess the required licence to conduct an inspection and the company with the licence is now deregistered; if an order was made against Mr Messer he no longer has any meaningful right of indemnity from the company.
The Commission’s position is that the tribunal has jurisdiction to hear and determine the matter but agrees with Mr Messer’s submissions with respect to the operation of s 4C of the QBCC Act. The Commission does not agree with the general proposition that Mr Messer, as a director of the contractor, cannot be directed to rectify building work. The issue is, however, whether the tribunal has power, given s 4C, to direct rectification in these circumstances.
Ms Mackenzie in submissions in response submitted that the QBCC residential pre-purchase inspection investigation report dated 31 March 2022 (QBCC report) was not correct and that the decision notice of 7 April 2022, based on that report, was also incorrect having reached the wrong conclusion as to what was ‘building work’ and what building work needed to be rectified. Further, that it was in the public interest in terms of public service accountability that the incorrect QBCC report and decision notice be addressed in the tribunal.
Consideration
The tribunal has power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to dismiss or strike out the proceeding where it is, relevantly, misconceived or lacking in substance.
In this matter, the issue is whether the tribunal has the power to make the orders sought on review. The tribunal on review, must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision being reviewed was made, here the QBCC Act.[1] The tribunal on review, can either confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision.[2]
[1]QCAT Act, s 19(a).
[2]QCAT Act, s 24(1).
Section 72 of the QBCC Act gives the decision-maker, and the tribunal on review, the power to issue a direction to rectify to the person who carried out defective building work, to rectify the building work they carried out.
Section 72 is contained in Part 6 (Rectification of building work and remediation of consequential damage) of the QBCC Act.
Section 4C of the QBCC Act provides:
4C CERTAIN BUILDING CONTRACTORS NOT BOUND
Parts 5 and 6 do not bind a building contractor to the extent that the business carried on by the building contractor consists of or includes—
(a) carrying out completed building inspections; or
(b) contract administration carried out in relation to building work designed by the building contractor.
‘Completed building inspection’ is defined in Schedule 2 of the QBCC Act to mean:
‘the inspection or investigation of, and the provision of advice or a report about the following class 1a or 10 buildings under the Building Code of Australia –
(a)      a building for which there is no current contract between a building contractor and a consumer because the contract has been completed;
Example –
an existing detached house that has previously been occupied or that has recently been built
(b)      …
(c)      …
A detached house is a Class 1a building. The house in respect of which the inspection report was completed by Brett Messer on behalf of Brett Messer Pty Ltd was a building for which there was no current contract between a building contractor and a consumer because the contract had been completed. Further, the inspection and report provided was about the building.
It follows, in my view, that s 4C applies given the investigation and report constituted a ‘completed building inspection’ within the meaning of Schedule 2. Part 6 does not, accordingly, bind Brett Messer or Brett Messer Pty Ltd to the extent the business carried on by them consisted of carrying out such inspections.
Accordingly, the tribunal, on review, would not have power to issue a direction to rectify to Brett Messer.
I note in relation to Ms Mackenzie’s submissions, that the tribunal’s role on review is not to correct the investigation report relied on by the Commission or to correct perceived defects in its Decision Notice. The purpose of the review is to produce the correct and preferable decision.[3] Further, the tribunal, were the review to proceed, would not have had power to make the orders sought by Ms Mackenize, that is, to order Mr Messer to rectify the defective building work he allegedly failed to report or to pay for the cost of those repairs.
[3]QCAT Act, s 20(1).
For the reasons above, the application to review is misconceived and the application should be struck out. I make the following orders:
1.The application to strike out the proceeding is allowed.
2.The respondents must file any submissions as to costs by 4:00pm on 16 February 2024.
3.The applicant must file any submissions in response by 4:00pm on 8 March 2024.
4.Any application for costs will be determined on the papers after 8 March 2024.