Taki v Queensland Building and Construction Commission - [2021] QCAT 46

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Taki v Queensland Building and Construction Commission [2021] QCAT 46

PARTIES: KIMIHIRO TAKI

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR103-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:
The reviewable decision of 22 November 2019 not to issue a direction to remedy consequential damage is set aside and substituted with the following decision:

(a) Shane Were is directed to remedy consequential damage to the vinyl flooring at the site address.

CATCHWORDS:
GENERAL ADMINISTRATIVE REVIEW – BUILDING – INTERNAL REVIEW OF DECISION NOT TO ISSUE A DIRECTION TO RECTIFY – whether internal vinyl flooring damaged by defective building work – whether “consequential damage” within the meaning of s 71H – whether a direction to remedy consequential damage should be issued

Queensland Building and Construction Commission Act 1991 (Qld), s 71H, s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Lawless v Queensland Building and Construction Commission [2019] QCAT 32

REPRESENTATION:

Applicant:

Self-represented

Respondent:

HWL Ebsworth

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

On 20 March 2019 Mr Taki applied to the Tribunal for review of the internal review decision by the Queensland Building and Construction Commission (QBCC) dated 22 November 2018 which was a decision not to issue a decision to rectify in respect of alleged “consequential damage” to Mr Taki’s vinyl floor coverings.
Mr Taki is the owner of a property at Upper Coomera. On 8 June 2018 Mrs Taki lodged a complaint form with the QBCC alleging the following works were defective:
External pavers gradient, in adequate site drainage and final surface levels are causing slab edge dampness to occur.
The QBCC’s initial inspect report concluded that:
(a)The segmental paving elements adjacent to the external walls of the dwelling has not been constructed with adequate falls away from the building and constructed at heights less than the minimum required by AS 4773.2-2015; and
(b)Mr Were was responsible for remedying the defects.
On 21 September 2018 Direction to Rectify No 0103887 (DTR) was issued to Mr Were.
A request for internal review was made by email on 26 October 2018 which asked that the DTR be amended to include that Mr Were “is also responsible for dampness inside or outside as NJA consulting report confirm”.
On 22 November 2018 the QBCC communicated its internal review decision to Mr Taki which concluded that:
(a)A direction to rectify would be issued in relation to item 1 of the complaint (Part A); and
(b)A direction to rectify would not be issued in relation to the internal damage to the vinyl floor coverings (Part B).
On 5 December 2018 the QBCC issued DTR No 0104138 (DTR2) to give effect to its decision.
On 20 March 2019 Mr Taki applied for review of Part…

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: [2021] QCAT 46
Decision Date

CaseChat Overview and Summary

The case of Taki v Queensland Building and Construction Commission was heard by the Queensland Civil and Administrative Tribunal (QCAT) and involved a dispute between Kimihiro Taki, the applicant, and the Queensland Building and Construction Commission (QBCC), the respondent. The dispute centred on the QBCC’s decision not to issue a direction to remedy consequential damage to Mr Taki’s vinyl flooring at his property in Upper Coomera. The matter was heard on the papers and determined by Member Traves. The primary legal issue for the court was whether the damage to the vinyl flooring was “consequential damage” within the meaning of s 71H of the Queensland Building and Construction Commission Act 1991 (Qld) and, if so, whether a direction to remedy that damage should be issued. The court found that the definition of “damage” in s 71H was inclusive and not limited to the examples listed in s 71H(2). The court concluded that the damage to the vinyl flooring, caused by slab edge dampness resulting from defective building work, was indeed “consequential damage” and that it was not unfair to issue a direction to remedy the damage to the person responsible for the defective building work. The decision of the QBCC not to issue a direction to remedy the consequential damage was set aside and substituted with a direction to Shane Were to remedy the consequential damage to the vinyl flooring.

Orders