Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission

Peter Whalley Homes Pty Ltd, a home builder, challenged a decision by the Queensland Building and Construction Commission (QBCC) to direct them to rectify certain defects in a kit home they had constructed. The QBCC had received complaints from the home owners, which led to an investigation and a subsequent direction for the builder to rectify the defects. The builder contested the decision, arguing that the defects did not exist or were not as severe as alleged, and that issuing a direction to rectify would be unfair. The case was heard by the Queensland Civil and Administrative Tribunal (QCAT), which had the authority to confirm, amend, set aside, or return the QBCC’s decision with directions. The primary issue before the Tribunal was whether the building work was defective to the extent that it would be unfair to direct the builder to rectify it. The Tribunal also needed to determine whether it should accept hearsay evidence that was not bound by the usual rules of evidence.

The Tribunal reviewed the evidence, including the joint expert report, which contained competing opinions and assessments. The primary duty of the Tribunal was to make the correct and preferable decision, not necessarily to be bound by the rules of evidence. The Tribunal considered the substance of the opinions expressed by the experts and exercised its discretion in deciding which evidence to accept. The Tribunal found that the defects identified by the QBCC did not warrant a direction to rectify, as they did not adversely affect the structural performance, health and safety, functional use, or allow water penetration into the building. Furthermore, the alternative solution provided by the builder's engineer was found to comply with the performance provisions of the building code.

The Tribunal set aside the QBCC's decision to issue a Direction to Rectify and substituted it with a decision that, in the circumstances, it would be unfair to give that direction. The Tribunal concluded that the defects identified by the QBCC did not meet the criteria for Category 1 or Category 2 defective building work and that issuing a direction to rectify would be an unfair outcome. The Tribunal also considered the builder's argument that accepting hearsay evidence would disadvantage them and exercised its discretion to accept such evidence where appropriate.