Spence v Queensland Building and Construction Commission - [2020] QCAT 274

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spence v Queensland Building and Construction Commission [2020] QCAT 274

PARTIES: ROBYN BELINDA SPENCE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR282-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

21 July 2020

HEARING DATES:

17-18 October 2019

DATE FINAL SUBMISSIONS RECEIVED:

3 February 2020

HEARD AT:

Caloundra

DECISION OF:

Member Olding

ORDERS:
1.   The Respondent’s reconsideration decision dated 8 April 2019 is:

(a)    So far as it decided that Directions to Rectify be given in respect of complaint items 7, 36 and 52 – confirmed;

(b)   So far as it decided that Directions to Rectify not be given in respect of complaint items 15, 16, 19, 24-26, 28, 29, 32-35, 37, 38, 41-44, 45, 46 and 48-51– confirmed;

(c)    Otherwise – set aside and substituted with a decision that:

            (i)     Directions to Rectify are to be given in respect of complaint items 14, 17, 18, 21, 23, 30, 31, and 47;

           (ii)     the Directions to Rectify referred to in Order 1(c)(i) are to include a note to the effect that they are in substitution for the Directions to Rectify given on 12 April 2019;

          (iii)     Directions to Rectify are to be given in respect of complaint items 1-6, 9, 10, 11, 20, 22, 27 and 45;

          (iv)     the Directions to Rectify referred to in Orders 1(c)(i) and 1(c)(iii) are to be in terms agreed between the parties or failing agreement in the same terms as the Directions to Rectify issued by the Commission on 28 May 2018 in respect of those complaint items.

2.   If either party wishes to make an application for costs:

(a)    a written submission and any evidence to be relied upon must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 11 August 2020;

(b)   any submission and evidence in reply must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 25 August 2020;

(c)    unless a party submits otherwise, the question of costs will be determined on the papers without an oral hearing.

CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS –STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant seeks to review a decision by the Queensland Building and Construction Commission to not give a direction to rectify – whether building work defective – where work not in accordance with approved plans - whether discretion to give direction to rectify should be exercised – whether direction could be ordered where applicant dissatisfied with a direction – where applicant had received compensation under statutory insurance scheme – where applicant awarded damages but award not paid by builder – whether unfair to give direction due to deterioration from passage of time and proximity to ocean

Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86(1)(e); Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(4)

Dyer v Spence [2017] QCAT 211
Middleton v…

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: [2020] QCAT 274
Decision Date: 21 July 2020

CaseChat Overview and Summary

The applicant, Mr. Spence, sought a review of a decision by the Queensland Building and Construction Commission, which declined to provide a direction to rectify building work. The dispute involved the alleged defectiveness of building work, specifically whether it was in accordance with approved plans, and the Commission's discretion to issue such a direction. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT). The primary legal issues centered on whether the building work was defective, if the Commission's discretion to order rectification should be exercised, and if such an order could be made despite the applicant's dissatisfaction with a previous direction. Additionally, the court examined whether it was fair to order rectification considering the passage of time, deterioration, and the proximity to the ocean.

The QCAT determined that the building work was indeed defective as it was not in accordance with the approved plans. The court found that the Commission had the discretion to order rectification and that such an order could be made despite the applicant's dissatisfaction with a previous direction. The court also considered the factors of deterioration over time and proximity to the ocean but concluded that these did not preclude the issuance of a rectification direction. The Commission's decision to not order rectification for certain items was found to be unreasonable, and the court substituted its decision with specific orders for rectification in respect of several complaint items.

The final orders included confirmation of the Commission's decision on certain complaint items, setting aside and substituting the decision on other items, and outlining the terms of the new rectification directions. The court also provided a process for any party to apply for costs, specifying deadlines for submissions and evidence, and indicating that costs would be determined on paper unless otherwise requested.

Orders

Orders of the court

1. The Respondent’s reconsideration decision dated 8 April 2019 is:

(a) So far as it decided that Directions to Rectify be given in respect of complaint items 7, 36 and 52 – confirmed;

(b) So far as it decided that Directions to Rectify not be given in respect of complaint items 15, 16, 19, 24-26, 28, 29, 32-35, 37, 38, 41-44, 45, 46 and 48-51– confirmed;

(i) Directions to Rectify are to be given in respect of complaint items 14, 17, 18, 21, 23, 30, 31, and 47;

(ii) the Directions to Rectify referred to in Order 1(c)(i) are to include a note to the effect that they are in substitution for the Directions to Rectify given on 12 April 2019;

(iii) Directions to Rectify are to be given in respect of complaint items 1-6, 9, 10, 11, 20, 22, 27 and 45;

(iv) the Directions to Rectify referred to in Orders 1(c)(i) and 1(c)(iii) are to be in terms agreed between the parties or failing agreement in the same terms as the Directions to Rectify issued by the Commission on 28 May 2018 in respect of those complaint items.

2. If either party wishes to make an application for costs:

(a) a written submission and any evidence to be relied upon must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 11 August 2020;

(b) any submission and evidence in reply must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 25 August 2020;

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Spence v Queensland Building and Construction Commission [2020] QCAT 274
PARTIES:	ROBYN BELINDA SPENCE
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
(respondent)
APPLICATION NO/S:	GAR282-18
MATTER TYPE:	General administrative review matters
DELIVERED ON:	21 July 2020
HEARING DATES:	17-18 October 2019
DATE FINAL SUBMISSIONS RECEIVED:	3 February 2020
HEARD AT:	Caloundra
DECISION OF:	Member Olding
ORDERS:	1. The Respondent’s reconsideration decision dated 8 April 2019 is: (a) So far as it decided that Directions to Rectify be given in respect of complaint items 7, 36 and 52 – confirmed; (b) So far as it decided that Directions to Rectify not be given in respect of complaint items 15, 16, 19, 24-26, 28, 29, 32-35, 37, 38, 41-44, 45, 46 and 48-51– confirmed; (c) Otherwise – set aside and substituted with a decision that: (i) Directions to Rectify are to be given in respect of complaint items 14, 17, 18, 21, 23, 30, 31, and 47; (ii) the Directions to Rectify referred to in Order 1(c)(i) are to include a note to the effect that they are in substitution for the Directions to Rectify given on 12 April 2019; (iii) Directions to Rectify are to be given in respect of complaint items 1-6, 9, 10, 11, 20, 22, 27 and 45; (iv) the Directions to Rectify referred to in Orders 1(c)(i) and 1(c)(iii) are to be in terms agreed between the parties or failing agreement in the same terms as the Directions to Rectify issued by the Commission on 28 May 2018 in respect of those complaint items. 2. If either party wishes to make an application for costs: (a) a written submission and any evidence to be relied upon must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 11 August 2020; (b) any submission and evidence in reply must be filed in the Tribunal and a copy given to the other party by 4.00 pm on 25 August 2020; (c) unless a party submits otherwise, the question of costs will be determined on the papers without an oral hearing.
CATCHWORDS:	PROFESSIONS AND TRADES – BUILDERS –STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where applicant seeks to review a decision by the Queensland Building and Construction Commission to not give a direction to rectify – whether building work defective – where work not in accordance with approved plans - whether discretion to give direction to rectify should be exercised – whether direction could be ordered where applicant dissatisfied with a direction – where applicant had received compensation under statutory insurance scheme – where applicant awarded damages but award not paid by builder – whether unfair to give direction due to deterioration from passage of time and proximity to ocean Queensland Building and Construction Commission Act 1991 (Qld), s 72, s 86(1)(e); Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 23(4) Dyer v Spence [2017] QCAT 211 Middleton v…