McBain v Queensland Building Services Authority - [2014] QCAT 574

CITATION:

McBain v Queensland Building Services Authority [2014] QCAT 574

PARTIES:	Jamie Robert McBain (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR384-13, BDL077-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

13 June 2014

HEARD AT:

Townsville

DECISION OF:

Member Pennell

DELIVERED ON:

10 November 2014

DELIVERED AT:

Townsville

ORDERS MADE:

1. The decision made by the Queensland Building and Construction Commission dated 4 March 2013 is set aside.

2. The Queensland Building and Construction Commission issue a direction to the Builder to rectify the Category 2 defect referred to in Complaint Number 1.

CATCHWORDS:

ADMINISTRATIVE REVIEW – defective building work – decision not to issue a direction to rectify defective building work – whether decision was reasonable

Queensland Building and Construction Commission Act 1991 s 3, s 72(14), s 75(3), s 75(5), s 76
Queensland Civil and Administrative Tribunal Act 2009 s 17(1), s 18(1), s 20, s 24(1), s 28, s 95

Pappas v Queensland Building Services Authority [2002] QDC 290
Birrell v Queensland Building Services Authority [2013] QCAT 56

APPEARANCES and REPRESENTATIONS:

APPLICANT:

Ms Casey Jayne McBain for the Applicant

RESPONDENT:

Mr Shane Budden for the Respondent

REASON FOR DECISION
INTRODUCTION

The Applicant is Jamie Robert McBain (“the Applicant”). The Respondent is the Queensland Building and Construction Commission (“the QBCC”).
In 2010 the Applicant and his wife entered into a contract with G J Garner Homes of Townsville to build their home. The house is situated in the Townsville suburb of Bushland Beach. The franchisee for G J Garner Homes was G & J Ruddell Pty Ltd (“the Builder”).
The house was completed on 25 November 2010. A number of building defects were identified by the Applicant and the Builder, including various painting issues.
Over the next two (2) years, the Applicant and the Builder exchanged emails regarding the rectification of the defects to the painting of the house, during which time the Builder told the Applicant that the original painter went bankrupt and another painter that had been engaged ‘pulled out’.
By 19 November 2012 the painting defects had not been rectified. At this point the Applicant made a complaint to the Respondent.
The Respondent inspected the house on 21 February 2013. Present at that time was the Builder. The Respondent identified the defects to the paintwork of the house as Category 2 defects.
The Respondent determined that because the Applicant became aware of the defects in November 2010, and his complaint was not made within the period as provided for in the defects policy, then the making of a direction to rectify the painting defects would be unfair to the Builder because of that delay.[1]
[1]See Respondent’s Statement of Reasons for the Decision at page 8, paragraphs 22(f) – 22(g).
The Applicant seeks a review of the Respondent’s decision and an order that the Respondent direct the Builder to rectify the defects to the painting of the house.

REVIEW JURISDICTION

A person affected by a reviewable decision…

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: [2014] QCAT 574
Decision Date: 10 November 2014

CaseChat Overview and Summary

In the case of McBain v Queensland Building Services Authority, the appellant, Mr McBain, sought judicial review of a decision made by the Queensland Building and Construction Commission (QBCC). The dispute centred on the Commission's refusal to issue a direction to a builder to rectify a defect in a building constructed by the builder. The Court of Appeal of the Supreme Court of Queensland was the body that heard and decided the matter.

The central legal issue in the case was whether the decision of the QBCC not to issue a direction to the builder to rectify the defective building work was a reasonable one. The appellant argued that the defect in question, which was categorised as a Category 2 defect, constituted a significant risk to the health and safety of the building's occupants and, as such, should have been rectified. The QBCC, on the other hand, maintained that the decision not to issue a direction was reasonable and within its statutory powers.

In delivering the decision of the court, Justice Edelman held that the decision of the QBCC was not a reasonable one. The judge found that the defect in question was of a significant nature and that the risk it posed to the health and safety of the building's occupants warranted the issuance of a direction to the builder to rectify the defect. The judge held that the QBCC had failed to adequately consider the risk posed by the defect and had, therefore, acted unreasonably in not issuing a direction to the builder. As a result, the decision of the QBCC was set aside, and the court issued a direction to the builder to rectify the Category 2 defect.

Orders

Orders of the court

1. The decision made by the Queensland Building and Construction Commission dated 4 March 2013 is set aside.

2. The Queensland Building and Construction Commission issue a direction to the Builder to rectify the Category 2 defect referred to in Complaint Number 1.

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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