Pearce v Queensland Building and Construction - [2023] QCAT 71

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Pearce v Queensland Building and Construction
Commission [2023] QCAT 71
PARTIES: CHRISTIAN PEARCE
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION
COMMISSION
(respondent)
APPLICATION NO/S: GAR297-21
MATTER TYPE: General administrative review matters
DELIVERED ON: 14 February 2023
HEARING DATE: On The Papers
HEARD AT: Brisbane
DECISION OF: Member LeMass

ORDERS:

The reviewable decision of not to issue a direction to remedy consequential damage is set aside and substituted with the following decision:

The Decision is set aside and the Respondent will direct the contractor to rectify the Consequential Damage to the adjoining site.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION NOT TO ISSUE A DIRECTION TO RECTIFY – whether “consequential damage” within the meaning of s 71H – whether a direction to remedy consequential damage should be issued
Queensland Building and Construction Commission Act
1991 (Qld), s 72, s 71H, s 86
Queensland Civil and Administrative Tribunal Act 2009
(Qld), s 24
Taki v Queensland Building and Construction Commission
[2021] QCAT 46 [19]
Commissioner for Railways (NSW) v Agalianos [1955]
HCA 27
Lawless v Queensland Building and Construction
Commission [2019] QCAT 32
Commonwealth Bank of Australia v Reeve [2012] FCAFC
APPEARANCES & This matter was heard and determined on the papers
REPRESENTATION: pursuant to s 32 of the Queensland Civil and Administrative
Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Relevant provisions

The provisions governing the rectification of building work and the remediation of consequential damage are contained in Part 6 of the QBCC Act. Section 72 provides:
72 POWER TO REQUIRE RECTIFICATION OF BUILDING WORK AND REMEDIATION OF CONSEQUENTIAL DAMAGE

(1) This section applies if the commission is of the opinion that—

(a) building work is defective or incomplete; or

(b)

consequential damage has been caused by, or as a consequence of, carrying out building work.
(2) The commission may direct the person who carried out the building work to
do the following within the period stated in the direction—

(a)

for building work that is defective or incomplete—rectify the building work;
(b) for consequential damage—remedy the damage.
(2A) The commission must make the direction no later than the end of the period
prescribed by regulation.

(3)

In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).

(4)

The period stated in the direction must be the period prescribed by regulation unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period—

(a)

a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or

(b)

the defective or incomplete building work, or consequential damage, will cause a significant…

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: [2023] QCAT 71
Decision Date

CaseChat Overview and Summary

The case of Pearce v Queensland Building and Construction Commission [2023] QCAT 71 involves Christian Pearce, who made a complaint to the Queensland Building and Construction Commission (QBCC) about damage caused by adjacent building works. The applicant, Christian Pearce, alleged that substantial dust from building works on a neighbouring property penetrated his apartment, making it uninhabitable and causing significant loss. The QBCC decided not to issue a direction to remedy the consequential damage, a decision Pearce sought to review. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with reviewing this decision to determine whether the QBCC correctly exercised its discretion under the Queensland Building and Construction Commission Act 1991 (Qld).

The legal issues at the core of this case revolve around the interpretation of "consequential damage" as defined in section 71H of the QBCC Act and whether the dust penetration and the resultant public health risk constitute "damage" within the meaning of that section. The QBCC argued that the dust penetration and public health risk did not amount to "damage" because they did not fit within the specific examples listed in section 71H(2) of the Act, which includes impairment of drainage, undermining of structures, compromising of structural integrity, and water penetration. Pearce, on the other hand, contended that the penetration of dust and the public health risk were indeed "consequential damage" that should have triggered a direction for remediation.

The QCAT tribunal found that the penetration of dust and the public health risk were indeed consequential damage within the meaning of the QBCC Act. The tribunal held that the list of examples in section 71H(2) of the Act is illustrative rather than exhaustive, and the use of the word "includes" suggests an expansionary interpretation. This interpretation was supported by previous tribunal decisions, which rejected a narrow reading of the statutory definition of damage. The tribunal concluded that the dust penetration and public health risk caused by the contractor's failure to adequately contain dust during the building works constituted consequential damage, as they were a direct and foreseeable consequence of the contractor's actions.

Accordingly, the tribunal set aside the QBCC's decision not to issue a direction to remedy the consequential damage and directed the QBCC to require the contractor to rectify the damage to Pearce's property. This decision underscores the importance of a broad interpretation of statutory definitions when it comes to protecting residential property owners from consequential damage caused by adjacent building works.

Orders