Neller v Queensland Building and Construction Commission - [2021] QCAT 426

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Neller v Queensland Building and Construction Commission [2021] QCAT 426

PARTIES: luke edward neller

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

OCR207-21

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

1 December 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The Tribunal directs that the requirements of s 190(2A) of the Building Act 1975(Qld) are met.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – LICENCES AND REGISTRATION – complaints against building certifier – where complaint made after cut-off date – whether certifier’s conduct has or may have caused significant financial loss or other serious harm

Building Act 1975 (Qld), s 190, Schedule 2

Bennett v Minister of Community Welfare [1992] HCA 27

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Nean

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

On 17 December 2019, Mr Neller issued a decision approving a building development application in respect of a property at 5 Minyama Island, Minyama. The work described in the approval was ‘Feature hoods on roof line & Stairway – 1a building (10a and 10b parts)’.
On 23 December 2020, the Sunshine Coast Council made a complaint to the Queensland Building and Construction Commission (‘QBCC’) regarding Mr Neller’s conduct as a certifier.
On 25 May 2021, the QBCC decided that Mr Neller had engaged in unsatisfactory conduct as defined within Schedule 2 of the Building Act 1975 (Qld) (‘the Act’).
On 17 June 2021, Mr Neller filed an application to review the QBCC’s decision with the Tribunal.
On 30 August 2021, the Tribunal directed that:
the question of whether the complaint made pursuant to s 190 of the Building Act 1975 (Qld) was made before the cut-off date and, otherwise, whether the conduct caused or may cause significant financial loss or other serious harm will be determined by a Member of the Tribunal on the papers …
Section 190 of the Act relevantly provides:
(2A) A complaint about conduct of a building certifier may only be made before the cut-off day, unless the certifier’s conduct has or may have caused significant financial loss or other serious harm.
…
(6) In this section— cut-off day, for making a complaint about conduct of a building certifier, means—
…
(b) for conduct relating to building work for which a building development application has been made to which paragraph (a) does not apply, 1 year after—
(i) a private certifier is engaged for the application; or
(ii) if a private certifier is not engaged for the application—the application is received by the local government; or
It is not in dispute that the time limit in s 190(6)(b) is applicable to the building development approval issued by Mr Neller. Nor is it in dispute that the complaint by the Sunshine Coast Council was made after the cut-off date.
The issue before the Tribunal is whether Mr…

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: [2021] QCAT 426
Decision Date

CaseChat Overview and Summary

Luke Edward Neller applied to the Tribunal for review of a decision of the Queensland Building and Construction Commission that he had engaged in unsatisfactory conduct as a building certifier. The Commission had decided that Mr Neller’s conduct had caused or may have caused significant financial loss or other serious harm, a matter which permitted the Commission to accept a complaint made after the cut-off date for such complaints. The Tribunal was required to determine whether the Commission’s decision was correct. The Tribunal found that Mr Neller’s conduct had a sufficient causal connection to the risk of serious harm, and therefore that the complaint was validly made. The Tribunal upheld the Commission’s decision.
The Tribunal directed that the requirements of s 190(2A) of the Building Act 1975 (Qld) are met.

Orders