Queensland Building and Construction Commission v Austin

[2025] QCA 68

[2025] QCA 68

COURT OF APPEAL

BOWSKILL CJ
BOND JA
CALLAGHAN J

Appeal No 16634 of 2024
QCAT No 3 of 2022

QUEENSLAND BUILDING AND   Appellant
CONSTRUCTION COMMISSION

v

KATE AUSTIN   Respondent

BRISBANE

FRIDAY, 9 MAY 2025

JUDGMENT

BOND JA:  The appellant seeks to appeal from the decision made by the Queensland Civil and Administrative Tribunal in Austin v Queensland Building and Construction Commission [2024] QCAT 352. In order to do so, the appellant has applied for an extension of the time within which to file its notice of appeal. The extension needed is relatively short, explained on the material, causes no prejudice to the respondent, and is not opposed by the respondent. Accordingly, the application for extension of time should be allowed.

BOWSKILL CJ:  I agree.

CALLAGHAN J:  I agree.

BOND JA: The respondent had sought a direction from the appellant that a builder be directed to rectify or remedy certain retaining wall works carried out for the respondent at a residential property pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). Section 72 applies if the appellant forms the opinion that building work is defective or incomplete, or that consequential damage has been caused by or as a consequence of carrying out building work. If it forms that opinion, s 72 relevantly empowers the appellant to direct the person who carried out the building work to rectify the defective or incomplete building work or to remedy the damage.

It is common ground that s 72 does not empower the appellant to specify the particular means or method to be used in rectifying the work or remedying the damage: see R v His Honour Judge McGuire and Hanlon Homes Proprietary Limited, ex parte Builders’ Registration Board of Queensland [1986] 1 Qd R 61 at 66, 69, and 71-72.

On 14 December 2021, the appellant rejected the respondent’s request that it issue a rectification direction to the respondent’s builder pursuant to s 72. On 21 December 2021, the respondent then applied to QCAT for a merits review of the appellant’s decision. The power of QCAT on such an application is to exercise all the powers and discretions conferred on the appellant. Accordingly, the power of QCAT was limited in the same way as the power of the appellant.

The application was argued before a judicial member on 2 July 2024.  The material does not reveal why the application took two and a half years to come on for hearing.  In any event, the learned judicial member delivered his decision with commendable promptness.  On 27 August 2024, the respondents succeeded before the learned member when he set aside the appellant’s decision, substituted his own decision, and ordered the builder to rectify the relevant building work.

The form of order specified that the rectification work be done “in accordance with” two specified enforcement orders which had been issued under the authority of the Chief Executive Officer, Council of the City of Gold Coast.  The first problem with the form of order was that the specified Council enforcement orders had not merely identified what the defects were but had also contained detailed requirements as to what the builder was to do and how it should do it.  They also addressed matters extraneous to the subject matter of rectification of building work.  The result was that by requiring the rectification work to be done “in accordance with” the enforcement orders, the learned member had made an order which was beyond power.

The second problem was that the builder, which was a corporation, had been deregistered on 27 March 2023. Pursuant to s 601AD of the Corporations Act 2001 (Cth), “[a] corporation ceases to exist on deregistration”. Although there is power under s 601AH to have a corporation reinstated, that had not been done. Before the learned member, the appellant had raised the fact that the builder corporation had been deregistered in support of a submission that there was limited utility in making an order against a deregistered company, but the learned member did not advert to that consideration in his reasons.

Before this Court, both the appellant and the respondent agreed that the form of order which had been made was beyond power. They agreed that the appeal should be allowed, the order set aside, and the matter returned to QCAT for reconsideration. The respondent sought that it be returned to the learned member who made the original decision and the appellant did not oppose that proposition. This court is empowered to make such orders by s 153 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

The parties agreed that there should be no order as to costs. The parties were in mild disagreement as to whether the court should make further directions pursuant to s 153(2)(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009.  The respondent submitted that the court should direct “each party to make short written submissions (up to five pages) to the Tribunal to identify the manner in which the Tribunal could frame appropriate orders according to law, based on the factual findings made in the Tribunal’s Reasons”.  The appellant submitted that that course would be overly prescriptive, and the better course would be simply to leave it up to the Tribunal to determine how best to proceed with the requisite reconsideration of the matter.

I agree with the appellant.  The learned member is seized of the details of the matter and is better placed than this Court to determine the best way in which the parties can assist him to carry out the requisite reconsideration of the matter.

It is obvious that it will be necessary to consider whether there is any utility at all in making a rectification order against a corporation which does not exist, and which could not – even if reinstated – actually carry out rectification work. That question was not addressed in any rigorous way before this Court, but it might be necessary to consider whether a rectification order could establish the foundation of a claim against an insurer of the builder corporation pursuant to s 601AG of the Corporations Act.  Alternatively, if reinstatement of the builder corporation pursuant to s 601AH of the Corporation Act is necessary before there could be any utility in making an order, it might be necessary to consider whether there is a valid and appropriate procedural solution to that issue.  Would it be appropriate to adjourn or stay the further reconsideration to permit reinstatement to occur?  Alternatively, could QCAT make a rectification order conditional upon reinstatement of the builder corporation? Or make an order which took effect if the builder corporation was reinstated?  Save to say that these and other matters might arise on any reconsideration of the matter according to law, I say nothing about the validity or merit of these possibilities.

I would make the following orders in the context that an order extending time within which to appeal has already been made:

(a)The appeal is allowed.

(b)The decision made by the tribunal dated 27 August 2024 is set aside.

(c)The matter is returned to the Tribunal for reconsideration.

(d)The Tribunal reconsidering the matter must be the same person who constituted the Tribunal when the decision was made.

(e)There be no order as to costs of the application for extension of time or of the appeal.

BOWSKILL CJ:  I agree with the reasons given by Justice Bond and with the orders as proposed by his Honour.

CALLAGHAN J:  I agree.

BOWSKILL CJ:  So, accordingly, the orders of the court are that:

(a)The appeal is allowed.

(b)The decision made by the tribunal dated 27 August 2024 is set aside.

(c)The matter is returned to the tribunal for consideration.

(d)The tribunal reconsidering the matter must be the same person who constituted the tribunal when the decision was made.

(e)There be no order as to costs of the application for extension or of the appeal.