Mannix v Queensland Building Services Authority - [2013] QCAT 621

CITATION:

Mannix & Anor v Queensland Building Services Authority [2013] QCAT 621

PARTIES:	Mr Steven Mannix and Mrs Rebecca Mannix (Applicants)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR012-12

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

10 April 2013

HEARD AT:

Mackay

DECISION OF:

Member Beckinsale

DELIVERED ON:

5 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Respondent’s decision made on 20 December 2011 is confirmed.

2. The Application GAR012-12 is dismissed.

CATCHWORDS:

Disciplinary proceedings – professional misconduct – building certifier-where complaint made by homeowner – whether complaint alleging unsatisfactory conduct or professional misconduct is substantiated

Building Act 1975 ss 129, 203, 204, 205, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 ss 17, 20, 24

Briginshaw v Briginshaw & Anor (1938) 60 CLR 336
Lewis v Threadwell [2004] VCAT 547,cited

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Steven Mannix

RESPONDENT:

Mr Brendan Cole, Solicitor, Queensland Building Services Authority

REASONS FOR DECISION

In 2008 Mr and Mrs Mannix contracted a builder to construct their home at 13 Kew Court, Glenalla, Queensland.
The builder engaged Building Approval & Consultancy Pty Ltd (BAC) to carry out building certification of the works.
Darren Clarke, a licensed certifier employed by BAC carried out the final stage inspection and issued a Form 21 certificate of inspection for the final stage.
Dispute arose between Mr and Mrs Mannix and their builder over issues concerning termination of the contract, non payment of monies and defective or incomplete works. The dispute went to hearing before the tribunal in 2010.[1]
[1]Chris Neale Constructions Pty Ltd v Mannix [2011] QCAT 68 and Mannix v Chris Neale Constructions Pty Ltd [2011] QCATA 222.
In 2010 Mr and Mrs Mannix made complaints to the Queensland Building Services Authority (BSA) about the conduct of Mr Clarke and three other employees of BAC. The BSA investigated the complaints against Mr Clarke and Mr Jamie Hallinan.
The BSA found that Mr Hallinan had not engaged in unsatisfactory conduct or professional misconduct. An application by Mr and Mrs Mannix for a review of that decision was dismissed by the tribunal.[2]
[2]Mannix and Anor v Queensland Building Services Authority [2013] QCAT 105.
The complaint against Mr Clarke contained 29 items. By letter dated 20 December 2011 the BSA advised Mr and Mrs Mannix that the BSA had concluded Mr Clarke had engaged in unsatisfactory conduct. The written decision and reasons of Senior Audit and Investigation Officer Thomas Petzel indicated that finding of unsatisfactory conduct was in regard to item 12 only of the complaint and that as the BSA was satisfied in terms of section 204(4)(g) of the Building Act 1975 that Mr Clarke was generally competent and diligent, it did not intend to take any further action.
Mr and Mrs Mannix made application to the tribunal for a review of the decision as well as the BSA’s decision about the scope of works to be undertaken at 13 Kew Court.
The proceedings concerning the scope of works were…

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.

Continue reading Mannix v Queensland Building Services Authority

Details

AGLC: Mannix v Queensland Building Services Authority [2013] QCAT 621
Case: [2013] QCAT 621
Decision Date

CaseChat Overview and Summary

This case involved a dispute between Mr and Mrs Mannix and the Queensland Building Services Authority (BSA) regarding the conduct of a building certifier, Mr Darren Clarke, who had issued a final inspection certificate for a home constructed by the Mannixes. The Mannixes alleged that Mr Clarke had engaged in unsatisfactory conduct or professional misconduct, and they sought a review of the BSA's decision that found Mr Clarke had engaged in unsatisfactory conduct but did not warrant further action. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing the BSA's decision and determining whether Mr Clarke's conduct was unsatisfactory or constituted professional misconduct.

The primary legal issue was whether Mr Clarke's conduct during the final inspection of the Mannixes' home met the standards of 'unsatisfactory conduct' or 'professional misconduct' as defined by the Building Act 1975. This required an examination of the Building Act, the Building Regulations 2006, and the code of conduct for building certifiers, as well as the evidence presented by both parties.

The tribunal considered each of the 29 items of complaint made by the Mannixes, assessing whether Mr Clarke's actions during the final inspection amounted to unsatisfactory conduct or professional misconduct. The tribunal examined the evidence provided by the BSA, represented by Mr Petzel, and the submissions made by the Mannixes, represented by Mr Mannix. The tribunal also considered the Building Regulations, the Building Code of Australia, and relevant case law.

After reviewing the evidence and submissions, the tribunal found that Mr Clarke's conduct did not amount to unsatisfactory conduct or professional misconduct. The tribunal accepted the evidence of Mr Petzel, who provided expert testimony on building certification, and rejected the Mannixes' interpretation of the legislation and building guidelines. The tribunal concluded that Mr Clarke had acted within the scope of his duties as a building certifier and had not engaged in conduct that was contrary to the Building Act or the code of conduct.

The tribunal confirmed the BSA's decision that Mr Clarke had engaged in unsatisfactory conduct but did not warrant further action. The tribunal dismissed the Mannixes' application for review, finding that the BSA's decision was correct and that Mr Clarke's conduct did not meet the threshold for unsatisfactory conduct or professional misconduct. The tribunal's decision was based on the evidence presented, the relevant legislation, and the professional standards expected of a building certifier.

Orders