Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2) - [2013] QCAT 575

CITATION:

Ramke Constructions Pty Ltd v Queensland Building Services Authority (No 2) [2013] QCAT 575

PARTIES:	Ramke Constructions Pty Ltd (Applicant/Appellant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR126-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

16 September 2013

HEARD AT:

Brisbane

DECISION OF:

Michelle Howard, Member

DELIVERED ON:

12 November 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision of the Queensland Building Services Authority to issue a direction to rectify is set aside.

2. A direction to rectify is not issued.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW- DIRECTION TO RECTIFY BUILDING WORK- where defect items – where contractual dispute about date of completion – where contractual dispute resulted in reduced price – where no compelling evidence about when the homeowners first noticed the defects – where complaint made by homeowners to QBSA outside of timeframes provided for in the Rectification of Building Work Policy – whether issuing a direction to rectify would be unfair

Queensland Building Services Authority Act 1991 s 72

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Simon Ramke, Director of Ramke Constructions Pty Ltd represented Ramke Constructions Pty Ltd

RESPONDENT:

Mr Brendan Szima, in-house lawyer, Queensland Building Services Authority represented the Queensland Building Services Authority

REASONS FOR DECISION

Ramke Constructions Pty Ltd built a house at Sheep Camp Road, Mount Crosby for Mr and Mrs Blore (the homeowners). The contract schedule indicates that the contract was in the form of the Master Builders Residential Building Contract, Version RBS 01/91(v1).[1] The contract was dated 11 January 2010. Unfortunately, a copy of the General Conditions to the contract were not provided to the Tribunal by either party.
[1] SOR, pages 121.
On 19 December 2011, the homeowners lodged a complaint about defects with the Queensland Building Services Authority (QBSA). They did not provide a statement or any other evidence to the Tribunal, although their complaint and documents they provided to the QBSA were before the Tribunal, and contained in the bundle of documents provided by the QBSA in compliance with the Queensland Civil and Administrative TribunalAct 2009 (QCAT Act).[2]
[2] See QCAT Act s 21.
Mr Arnold Fisher, a QBSA Building Inspector, subsequently inspected the property and prepared a lengthy report[3] in relation to the 68 items which were the subject of complaint.
[3] Exhibit 5.
A decision was made under the Queensland Building Services Authority Act 1991 (QBSA Act) to issue Direction to Rectify and/or Complete No. 37310 to Ramke Constructions, specifying 52 items to be rectified. Ramke Constructions has applied to the Tribunal for review of the decision.
Mr Fisher provided an updated inspection report[4] in which he opined that some items had been rectified since his initial report, namely items 1, 13, 19, 24 and 52. He reports that these have been rectified by the homeowners.
[4] Exhibit 6.
It is uncontroversial that Ramke Constructions did the building work under the contract which is now subject to the Direction to Rectify and that its representatives attended at the premises for several days for…

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: [2013] QCAT 575
Decision Date: 12 November 2013

CaseChat Overview and Summary

In the case of Ramke Constructions Pty Ltd v Queensland Building Services Authority (No. 2), the respondent, Ramke Constructions, appealed a decision made by the Queensland Building Services Authority (QBSA) to issue a direction to rectify building work. The dispute arose from the completion of a construction project, where several defect items were identified by the homeowners. The key issue for the court was whether it was fair to issue a direction to rectify, given the circumstances surrounding the defects and the timing of the complaints.

The court had to consider several legal issues, including whether there was compelling evidence about when the homeowners first noticed the defects, the contractual dispute regarding the completion date and the resultant reduced price, and whether the complaint was made within the timeframes provided for in the Rectification of Building Work Policy. The court found that there was no compelling evidence as to when the homeowners first noticed the defects, and the complaint was made outside of the prescribed timeframes. However, the primary issue was whether it was fair to issue a direction to rectify in these circumstances.

The court reasoned that the issuing of a direction to rectify would be unfair given the lack of evidence regarding the timing of the homeowners' discovery of the defects and the delay in making the complaint. The court found that the QBSA had not considered all relevant factors and had not adequately balanced the equities between the parties. As a result, the court concluded that it was unfair to issue a direction to rectify and/or complete for any of the 52 items. Consequently, the court set aside the decision of the QBSA and ordered that a direction to rectify is not issued.

The final orders of the court were that the decision of the Queensland Building Services Authority to issue a direction to rectify is set aside, and a direction to rectify is not issued. This decision provides guidance on the factors that must be considered when determining whether it is fair to issue a direction to rectify, and the importance of balancing the equities between the parties in such disputes.

Orders

Orders of the court

1. The decision of the Queensland Building Services Authority to issue a direction to rectify is set aside.

2. A direction to rectify is not issued.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Conclusions I have found that it is unfair for a direction to rectify and/or complete to issue for any of the 52 items. Accordingly, I set aside the decision of the QBSA and make an order that a direction to rectify is not issued.

Ratio Decidendi

Legal Principle Established

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