Middleton v Queensland Building and Construction Commission

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Middleton v Queensland Building and Construction Commission [2018] QCAT 177

PARTIES:

MARK ANTHONY MIDDLETON
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR251-16

MATTER TYPE:

Building matters

DELIVERED ON:

22 June 2018

HEARING DATE:

6 December 2017

20 February 2018

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

The decision of the Queensland Building and Construction Commission made on 23 September 2016 to issue direction to rectify and/or complete number 42341 to Mark Anthony Middleton is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where owner claims defective building work – where Queensland Building and Construction Commission makes decision to issue a direction to rectify to the contractor – where contractor accepts he is responsible for work but says unfair to issue notice – where contractor says work is not defective because either it is within accepted tolerances, not completed because of the issuing of a ‘cease and desist’ notice followed by a termination by the homeowners or because it has already been rectified – whether decision to issue a notice to rectify defects was unreasonable

Queensland Building and Construction Commission Act 1991 (Qld), s 3, 72(5)

Queensland Civil and Administrative Tribunal Act 2009, (Qld), 24

Don Mackay Pty Ltd v Queensland Building Services Authority [2009] QCCTB 259

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Stretton, solicitor of Holding Redlich Lawyers

REASONS FOR DECISION

  1. Mark Middleton undertook building work at a property in Camp Hill in Brisbane, entering into a contract with the homeowners in November 2014.

  2. In August 2015 the homeowners terminated the contract with Mr Middleton and on


    2 September 2015 the Queensland Building and Construction Commission (‘the Commission’) received a complaint in relation to 411 items of alleged defective and/or incomplete building work performed by Mr Middleton at the property.

  3. The complaint made by the homeowners to the Commission indicates that the amount of $35,500.00 remains unpaid by the homeowners under the Contract.

  4. On 4 May 2016, the Commission notified Mr Middleton of its decision to issue a Direction to Rectify and/or Complete work performed by Mr Middleton at the property.

  5. Mr Middleton applied to the Commission for an internal review of this decision but on 23 September 2016 the Commission confirmed its original decision.

  6. On 26 September 2016 the Commission issued a Direction to Rectify and/or Complete regarding work performed by Mr Middleton at the property.

  7. Mr Middleton seeks to review this Direction to Rectify in this tribunal.

  8. The Commission called tenders for the rectification of the defective and incomplete building work at the Property (‘building work at the Property’). As part of this process, the Commission has obtained a Tender Assessment Report from Sergon Building Consultants dated 28 September 2017.[1]

    [1]Annexure CM-7 to the Statement of the Building Inspector, filed 16 October 2017.

  9. On or about 17 October 2017, the Commission accepted the lowest estimate received, and approved the homeowners' claim under the statutory insurance…

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Details
Case
[2018] QCAT 177
Decision Date

CaseChat Overview and Summary

In Middleton v Queensland Building and Construction Commission, the dispute centred on the validity of a decision by the Queensland Building and Construction Commission to issue a direction for the rectification of defective or incomplete building work. The homeowner, Middleton, claimed that the building work was defective, and the Commission agreed, issuing a direction to the contractor to rectify the defects. The contractor, while accepting responsibility for the work, argued that the decision was unfair and that the defects were either within acceptable tolerances, had not been completed due to a 'cease and desist' notice and subsequent termination by the homeowners, or had already been rectified.

The primary legal issue was whether the Commission's decision to issue a notice to rectify was reasonable in light of the contractor's arguments. The court had to assess the evidence and determine whether the defects identified by the Commission were valid and whether the decision was made within the scope of the Commission's statutory powers. The court examined the specific categories of defects and the evidence provided by both parties.

After a detailed examination of the evidence, the court concluded that the Commission's decision to issue the direction to rectify the defects was reasonable. The court found that the defects were valid and that the contractor's arguments did not sufficiently undermine the Commission's decision. The court accepted that the work was defective and confirmed the decision of the Queensland Building and Construction Commission.

The court's final order confirmed the decision of the Queensland Building and Construction Commission made on 23 September 2016 to issue direction to rectify and/or complete number 42341 to Mark Anthony Middleton. The contractor was directed to rectify the identified defects in accordance with the Commission's decision.

Orders

Orders of the court

The decision of the Queensland Building and Construction Commission made on 23 September 2016 to issue direction to rectify and/or complete number 42341 to Mark Anthony Middleton is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where this has not occurred, I accept this is, or remains, a defect.Conclusion after detailed examination Having examined each of the categories and the evidence both written and oral pertaining to each individual items listed under each category as described in the attached schedule, I accept for all of the categories it is fair to confirm the decision of the Queensland Building and Construction Commission made on 23 September 2016 to issue direction to rectify and/or complete number 42341 to Mr Middleton.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.