Stephens v QBCC

Case [2018] QCAT 281

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Stephens & Anor v Queensland Building and Construction Commission [2018] QCAT 281

PARTIES:

BILL STEPHENS

(first applicant)

MARIA STEPHENS
(second applicant)
v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR348-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

14 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

The application for administrative review GAR348-17 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – statutory time limit – where homeowners made complaint about a builder’s work outside the statutory time limit – where the QBCC did not request the Tribunal extend the time limit – whether the Tribunal could review the decision not to seek an extension of time from the Tribunal – whether the Tribunal had power under the QCAT Act to extend the time limit set under the enabling Act – whether a new time limit arose where a builder attended voluntarily to repair – where the QBCC applied to have the application for general administrative review struck out on the grounds that neither the QBCC nor the Tribunal could extend time in the circumstances where there was no request from the QBCC to do so

Queensland Building and Construction Commission Act 1991 (Qld), s 72(2), s 72A(4), s 86(1)(e)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17(1), s 18(1), s 19(c), s 61(1)

Bergin v Department of Housing and Public Works [2013] QCATA 190
Doolan v QBCC [2017] QCAT 58
Lowe v Aspley [2010] QCATA 59
McNab Constructions Australia Pty Ltd v QBSA [2012] QCAT 681
Plowman v Palmer (1914) 18 CLR 339
Russell v QBCC [2014] QCAT 094
Sedl v QBSA [2012] QCAT 2
Sendall v Howe & Anor [2012] QCATA 41
Smith v QBSA [2010] QCAT 448
Torea Pty Ltd v QBSA [2013] QCAT 4

REPRESENTATION:

First Applicant:

Self-represented

Second Applicant:

Self-represented

Respondent:

Self-represented by E Ward

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. The applicants purchased a house in July 2011. It had been built in or about 2009. Practical completion of construction was on 25 August 2009, according to the applicants.

  2. From about 2012 the applicant owners complained to the builder about water leaks. The builder went back and did some work on this in July 2015 and advised the applicants the leaks were fixed.

  3. On 31 March 2017 there were more leaks and the builder was contacted by the owners. The builder claimed he had no obligation to come back again because he claimed to have fixed the leaks in 2015. He said the new leaks complained about in 2017 was the result of lack of maintenance on the part of the owners.

  4. The owners complained to the Queensland Building and Construction Commission (‘QBCC’) on 18 May 2017 asking that the builder be directed to rectify…

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Details
AGLC
Stephens v QBCC [2018] QCAT 281
Case
[2018] QCAT 281
Decision Date

CaseChat Overview and Summary

The matter of Stephens v QBCC involved homeowners who lodged a complaint with the Queensland Building and Construction Commission (QBCC) regarding the quality of building work performed by a builder. The homeowners sought a direction to rectify defective or incomplete building work, but their complaint was made outside the statutory time limit set by the Building Act 1991. The QBCC did not request the Tribunal to extend this time limit, and the Tribunal dismissed the application for review on the basis that neither the QBCC nor the Tribunal had the power to extend the time limit in the absence of such a request. The homeowners appealed this decision to the Queensland Civil and Administrative Tribunal (QCAT), which was tasked with determining whether the Tribunal had the power to extend the time limit and whether a new time limit arose when the builder voluntarily attended to repair the defects.

The central legal issues in this case revolved around the interpretation of the statutory time limit for issuing a direction to rectify defective building work, the procedural powers of the QBCC and the Tribunal, and the circumstances under which a new time limit might arise. Specifically, the QCAT had to decide whether section 72A(4) of the Building Act 1991, which sets out a prescriptive statutory provision for issuing a direction to rectify, could be extended or changed by the procedural power granted to the Tribunal under section 61(1) of the QCAT Act. Additionally, the court had to assess whether a new time limit arose when the builder voluntarily attended to repair the defects, referencing previous cases such as Sedl and Russell v QBCC.

The QCAT found that section 72A(4) of the Building Act 1991 is a substantive statutory provision that cannot be altered or extended by the procedural powers of the Tribunal. The court emphasised that the QBCC must first determine whether there is sufficient reason to extend the time limit and then apply to the Tribunal for an extension. Until these steps are taken, neither the QBCC nor the Tribunal has the power to issue a direction to rectify. Furthermore, the QCAT clarified that the QBCC's decision on whether to apply to the Tribunal for an extension is not a reviewable decision under section 86. The homeowners' complaint about the failure to issue a direction to rectify could not be reviewed by the Tribunal. Regarding the reset of the time limit, the QCAT held that the circumstances in Sedl were distinguishable, and the comments made in that case did not apply to the present situation. The court concluded that only work done pursuant to a direction to rectify qualified for a renewed time limit, and the voluntary repair work by the builder did not reset the statutory time limit.

In conclusion, the QCAT dismissed the application for general administrative review, affirming that neither the QBCC nor the Tribunal could extend the time limit for issuing a direction to rectify in the absence of a request from the QBCC. The court also found that the voluntary repair work by the builder did not reset the statutory time limit for issuing a direction to rectify defective building work.

Orders

Orders of the court

The application for administrative review GAR348-17 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 72A(4) is a prescriptive statutory provision that goes to the very power to issue a direction to rectify. It is not a matter of procedure but very much substance. The prescriptive statutory provision cannot be changed or extended by the mere procedural power granted the Tribunal under s 61(1).[4] [4]Smith v QBSA [2010] QCAT 448, [30]; Doolan v QBCC [2017] QCAT 58, [9]; Lowe v Aspley [2010] QCATA 59, [11]; Sendall v Howe & Anor [2012] QCATA 41, [10].The Decision That Must Be Reviewed It is important to accurately identify what decision is really sought to be reviewed by the owners. They complain about the failure of the QBCC to issue a direction to rectify. But where the time to do that has expired, s 72A(4) says the QBCC must take certain steps before any notice to rectify can be given after that time. It must first conclude that in the circumstances of the particular case there is sufficient reason for extending time, and then it must apply to the Tribunal and persuade the Tribunal that the circumstances justify the issue of a notice. Until those steps are taken the QBCC, and therefore the Tribunal, has no power to issue any direction to rectify. The QBCC determination about the existence of circumstances of sufficient reason to apply to the Tribunal for an extension of time is not itself a reviewable decision listed under s 86. The failure to apply to the Tribunal for permission to issue a direction to rectify is the real complaint by the owners here, and that failure cannot be reviewed by the Tribunal.Rectified Work The owners also contend that the 6 year 3 month time limit was reset from 2015 when the builder came back and did work to fix the leaks. The comments by the learned Member in Sedl is relied on for that proposition. But the circumstances in Sedl were entirely different to the matter at hand. Sedl principally concerned an issue about date of completion of the contract. The learned member himself distinguished his comments in Sedl on that basis in his subsequent decision of Torea Pty Ltd v QBSA.[5][5][2013] QCAT 4. In Sedl what the learned member was alluding to when he said he agreed that where a contractor has returned and performed rectification works, and the rectified work is afforded a further six years and three months in which the QBSA may direct the contractor to rectify, was in the particular circumstances occurring there where the QBSA (now the QBCC) had already issued a direction to rectify defective work within time (ie within 6 years and 3 months of the work completing) and the work had been done. Then the rectified work (only) had a renewed time limit of 6 years 3 months wherein a direction to rectify could again be issued. In Sedl there had been 3 directions to rectify different items of work within time.[6] There was a problem however identifying what work was done pursuant to the directions. Only work done pursuant to the directions to rectify qualified for another 6 years and 3 month time limit.[7] The general construction work was not covered outside the original time limit.[6][2012] QCAT 2, [27].[7]What is and is not rectification work done pursuant to a direction to rectify can be difficult to establish. See Russell v QBCC, where the builder was given a direction to rectify defective building work and performed work. The work was considered unsatisfactory rectification work done pursuant to the direction to rectify by the QBCC but ultimately found to be performed by way of compromise of proceedings associated with the initial direction to rectify: [2014] QCAT 094, [9], [133]-[135].

Ratio Decidendi

Legal Principle Established

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