TJ King v Qld Building and Construction Commission
[2015] QSC 79
•13 April 2015
SUPREME COURT OF QUEENSLAND
CITATION:
TJ King v Qld Building and Construction Commission [2015] QSC 79
PARTIES:
TERRY JOHN KING t/as TJ KING HOUSE RELOCATORS
(applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION(respondent)
FILE NO/S:
No 3657 of 2014
DIVISION:
Trial
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
13 April 2015
DELIVERED AT:
Brisbane
HEARING DATE:
12 September 2014
JUDGE:
Dalton J
CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the applicant submits that work carried out by the applicant was not ‘building work’ under the Queensland Building Services Authority Act 1991 – where the work undertaken included preparing a building for relocation, relocating that building, digging footings and providing stumps – whether reg 13(1)(c) of the Queensland Building Services Authority Regulation 2003 excluded this work from the definition of ‘building work’ under Schedule 2 of the Queensland Building Services Authority Act 1991
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where two directions pursuant to section 72(1) of the Queensland Building Services Authority Act 1991 were issued to the applicant – where the first paragraph of the second direction was in the same terms as the first direction – where the second and third paragraphs of the second direction were expressly in contemplation at the time the first direction was issued – where the applicant submits there is no express power in the Queensland Building Services Authority Act 1991 to issue a second direction under section 72(1) of the Queensland Building Services Authority Act 1991 – whether the Queensland Building Services Authority has power under section 72(1) of the Queensland Building Services Authority Act 1991 to issue multiple directions concerning the same building work – whether the Queensland Building Services Authority has power under section 72(1) of the Queensland Building Services Authority Act 1991 to issue multiple directions concerning the same defect
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the direction issued included directions to rectify damage to work which was not the subject of a contract between the applicant and the home-owners – whether a direction under s 72(1) of the Queensland Building Services Authority Act 1991 can be issued to a person to rectify work that was not carried out pursuant to a contract between that person and a home-owner
PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – where the direction issued included directions to rectify damage alleged to be consequential to the building work carried out by the applicant – where the respondent submits that a power to rectify consequential damage caused by carrying out building work should be implied under s72(1) of the Queensland Building Services Authority Act 1991 – whether a direction under s 72(1) of the Queensland Building Services Authority Act 1991 can be issued to rectify consequential damage
Judicial Review Act 1991 (Qld) s 13
Queensland Building and Construction Commission Act 1991 (Qld) s 86F(1)(b)
Queensland Building Services Authority Act 1991 (Qld) s 72(1), s 72(5), Schedule 2 (current as at 1 January 2011)
Queensland Building Services Authority Regulation 2003 (Qld) regulation 13(1)(c) (reprint 4)R v McGuire & Hanlon Homes Pty Ltd, ex parte Builders’ Registration Board of Queensland [1986] 1 Qd R 61
COUNSEL:
CD Coulsen for the plaintiff
RJ Anderson for the defendant
SOLICITORS:
Flehr Law for the plaintiff
Robinson Locke for the defendant
The applicant filed an Originating Application seeking statutory review in April 2014. Pleadings were ordered and delivered. It came before me on 12 September 2014 as a one day matter on the civil list.
The factual basis of the dispute is that the applicant had relocated a house and had been directed by the respondent to rectify works associated with that relocation on two occasions. The contract for the work between the applicant and the owner of the house was rudimentary and as well, it appeared from the evidence I had, that work not encompassed by the written terms of the contract had been carried out by the applicant for the house owner. After hearing the parties, it seemed to me that there were issues of law in dispute between them which I could determine, but that one issue would require hearing considerable evidence as to the building project itself. In those circumstances, it seemed to me that I should determine the points of law which were discrete and otherwise dismiss the application, so the point in controversy between the parties could be heard on its merits in QCAT, where the applicant was entitled to a merits hearing.
Section 13 of the Judicial Review Act 1991 provides that if an applicant is entitled to seek a review of the subject matter of an application for a statutory order of review in another place, this Court must dismiss the application if it is in the interests of justice to do so. In this matter there is relatively little money at stake. As well, the time and money necessary to resolve the factual matters in issue between the parties will be considerable. It seemed to me that would be better spent on a merits review, rather than on administrative law proceedings in this Court, where I could not ultimately deal with the merits. I enquired of counsel representing the applicant whether or not there was any difficulty with my sending matters back to QCAT (t 1-19). I was told only that such a decision could not be in the interests of justice because the applicant only agitated legal points in this Court. My view was to the contrary of that. I then proceeded to give reasons for an ex tempore judgment which were as follows:
“HER HONOUR: This is an application for an order for statutory review. The defendant is the Queensland Building and Construction Commission. At the time of the facts, it was known as the Queensland Building Services Authority. Mr King worked as a house remover and he undertook to remove a house from one location on the owner’s land to another. The owners were dissatisfied after the work was done and complained to the QBSA. The QBSA made a direction to rectify defective building work, pursuant to section 72 of the Act.
At some point in time, the QBSA became satisfied that the work either had been rectified satisfactorily or had not been defective and on that basis, proceedings which were before QCAT, at the instance of Mr King, were withdrawn by a consent, there never having been a merits review or a decision on the merits in relation to Mr King’s QCAT proceeding.
The matter, apparently having been re-agitated, the QBSA issued a second direction and it is that second direction issued in December 2013 which is challenged in this proceeding. The challenge is put on legal grounds. The four grounds are that the QBSA did not have the jurisdiction or authority to make the second direction. Similarly, that the second direction was not authorised under the relevant legislation and again, similarly, that the decisions involved errors of law or were contrary to law; that is, the points raised by the applicant are just points of law and I’m satisfied that, as a general proposition, then, it is appropriate for them to have been brought in this court, notwithstanding that there was a merits review open to the applicant in QCAT – see section 13 of the Judicial Review Act. There is some little gloss on that in relation to part of the second direction, which I will come back to later in these reasons. But I do think, in general terms, it is appropriate to deal in this court with the matters of law which are raised by the applicant.
The first matter of law is that the work carried out by Mr King, pursuant to the contract to remove the house was not building work within the relevant statute. The definition of building work is found in schedule 2 to the old QBSA Act of 1991. And it was accepted that that was the definition relevant to this proceeding, because it was the definition in place at the time. The definition includes, at subparagraph b:
The renovation, alteration, extension, improvement or repair of a building.
And at subparagraph e:
Any site work … related to work of a kind referred to above.
In my view, the work undertaken by Mr King in removing the house certainly included, if it did not wholly comprise, building work. And I’ll come to why that is on the facts, but it seems to me that it was alteration of a building – that is, the house which was to be removed – and also included site work relating to that alteration of the building.
The schedule definition of building work ends with the proviso, if I can call it that:
But does not include work of a kind excluded by regulation from the ambit of this definition.
In this respect, the applicant plaintiff relied upon regulation 13 of the QBSA Regulation 2003 and in particular, regulation 13.1(c), which provides that the following work will not be classified as “residential construction work”:
Loading, unloading or transporting of a building that, if it were fixed to land, could be a residence, … regardless of whether the transport is within the boundaries of land where the building is located or otherwise;
The first thing to note about regulation 13(1)(c) is that it does not remove the subject matter of the regulation from the definition of “building work”, but it removes it from the definition of “residential construction work”, which itself is a subset of building work.
Secondly, and perhaps more importantly, the substance of regulation 13(1)(c) is very specific. It relates to the loading, unloading or transporting of a building, whereas the work which was carried out under the contract here was broader than that.
I will turn, now, to look at the provisions of the contract. I described it in argument as “rudimentary”, and it is. It was a contract to remove and relocate an existing dwelling. Under the heading Inclusions are listed:
·preparation of building for relocation;
·relocation of building to site;
·dig footings 1800 millimetres deep x 350 millimetres wide;
·stumps are to be 90 m box adjustable and house to be 1000 m off ground level.
It is accepted that should read “90 mm” box and “1000 mm” off ground level. Then there is a heading as to what the client will accept responsibility for, and that includes work which is, clearly enough, building work. Nonetheless, the parts of the work described under the heading Inclusions are, in my view, clearly work which involves building work within the definition from schedule 2, having regard to subparagraphs (b) and (e).
Preparation of the building for relocation included essentially cutting the building in half. Digging the footing involved preparation for what are not inconsiderable footings and foundations. And the work of re-stumping and replacing the building on the new stumps was, clearly enough, building work within the definition. And, interestingly enough, it is the second dot point under Inclusions that I think is applicable to the much more limited work which is described in regulation 13(1)(c).
I’ll just add at this point in my reasons that it appears from the material before me that what was performed under the contract may well have included more work than is actually expressly listed in it. One matter which falls into this category is the provision of bearings to the underside of the removed house, and between the underside of the removed house and the stumps. It appears that Mr King involved himself in that work. The point of my mentioning that is that it appears that if anyone ever had to work out in detail what was the scope of works under the contract, there would probably be quite untidy evidence about variations and so forth to what is recorded in the rudimentary written terms.
In any event, I am against the applicant on the point as to whether or not the work pursuant to this contract was building work. In my view, it clearly was.
The second point of law which the applicant made was that it was contended that the discretion to give a direction pursuant to section 72(1) of the QBSA Act could only be exercised once. This submission is made in circumstances where the first paragraph of the second (December 2013) direction was in the same terms as the first direction, and where the second and third paragraphs of the second direction were matters which were the subject of complaints by the homeowner at the time of the first direction and are dealt with in notes to the first direction.
It is necessary to look a little more closely at the circumstances in which the second direction came to be issued. The first direction was a direction to rectify uneven stumping and defective work relating to the bearers described above and the stumps. That was the only subject of the first direction. Mr King applied in QCAT to have that direction reviewed, and the parties came to an agreement which involved Mr King being obliged to provide an engineer’s certificate as to the matters the subject of complaint. That certificate was provided to the QBSA, and the QBSA accepted it and, on the basis that it did accept the engineer’s certificate, consented to Mr King withdrawing or having leave to withdraw his proceedings in QCAT. That can be seen in the exhibits to Mr King’s affidavit: first are the directions by which he was to supply the engineering certificate, TK27 to court document 7 in this proceedings; next, TK30 to that affidavit where the BSA accepts the certificate and consents to Mr King withdrawing his application; and, lastly, TK32 to the affidavit, which is the QCAT order granting Mr King leave to withdraw his application. That was an order made on 10 October 2013.
So while that was the basis really agreed between Mr King and the BSA at that point, it is clear that there had been no determination on the merits by QCAT as to the defectiveness or otherwise of the restumping and bearing work. The history of the matter after that is unsatisfactory in this sense: the QBSA sent an inspector, Mr Saal – S-a-a-l – to reinspect the removed house. Mr Saal’s report was in evidence before me as an exhibit to court document 14. It is clear that he does – Mr Saal does criticise the stumping and bearing work which was the subject of the first direction to Mr King, see page 529 of the exhibit bundle 2, court document 14.
Apparently, then, on the basis of that criticism, when the second direction was issued in December 2013, Mr King was again directed rectify the restumping and bearing work in identical terms to the direction to rectify, which was the first direction.
Subsequent to that, Mr King took the matter up with the QBSA, explaining that he had provided engineering certification, and it appears that, on the 15th of January 2014, Mr Jacques of the QBSA agreed that Mr King ought not have to comply with the first paragraph of the second direction.
The reasons given by the QBSA in response to a request under the Judicial Review Act do not neatly deal with this issue and, in fact, refuse to give proper reasons for the giving of paragraph 1 of the second direction. The QBSAs attitude contains elements, I think, of ambivalence, even at the date of this hearing, for there is no indication as to what the QBSAs current or official view is as to whether Mr King is required to comply with paragraph 1 of the second direction. It was said by counsel appearing on behalf of the QBSA that the conversation of the 15th of January between Mr Jacques and Mr King is strictly irrelevant to the legal grounds raised by the applicant, and I accept that that is so, but I also think that the ambiguity is something which needs to be dealt with, and I will come back to that.
Nevertheless, that is the factual background to the applicant’s point that, in effect, this is the second direction made pursuant to section 72(1) in relation to the same building work, so far as paragraph 1 is concerned. In relation to paragraphs 2 and 3 of the second direction, the applicant says that although they were not the subject matter of a direction under the first direction from the QBSA, that direction does record that they were raised and dismissed, as it were, by the QBSA, so that they were – the subject matter of direction – of paragraphs 2 and 3 of the second direction were expressly in the QBSAs contemplation at the time it issued direction 1.
The applicant’s point simply was that there is no express power in the legislation allowing a second direction pursuant to section 72(1). That may be accepted, but it seems to me that, clearly enough, the QBSA does have power to issue a second direction pursuant to section 72(1) in relation to the same building work and, indeed, in relation to the same defect, nor do I think it is precluded from issuing a direction pursuant to section 72(1), because in the past it has considered complaints from the owner, but declined to issue a section 72(1) direction. The power in the Act is unlimited, and I cannot see any reason to limit it. In fact, one can quite easily imagine factual circumstances in which a direction is issued, and then perhaps all parties thinking that work has been undertaken which properly rectifies the direction, it transpires, given time, that that is not so and there is a need for a second direction. So I am against the applicant on its second point of law.
The third point of law raised by the applicant is that a direction to rectify under section 72(1) can only be given to rectify work which was the subject of the recipient’s building work in the first place. Section 72(1) says that the authority is to form the opinion that building work is defective and then may direct the person who carried out the building work to rectify the building work. I’m not finally determining this point, but just having regard to the plain language of section 72(1), it seems to me that the applicant’s argument is attractive.
In this case, the subject matter of paragraphs 2 and 3 of the second direction seem in large part, at least, to be – or seems in large part, at least, to be damage caused or allegedly caused by Mr King to the structure of the house during the course of relocation. That is, the complaints seem to be about matters which were not the subject of the building work which Mr King was to carry out, but, instead, to be directions to rectify damage caused whilst carrying out work which included building work. It seems to me that this part of the applicant’s case might well have some merits. It also seems to me that this is not something I should embark upon trying to determine.
First of all, as I have explained, the question as to what was the building work carried out pursuant to the contract between the owners and Mr King is not going to be something which is readily apparent from documents and, thus, easily determined on an application such as this. The writing itself is somewhat telegraphic, and it does appear from the evidence before me that there were variations to the scope of work, if I can put it that way, as the parties went along.
Next, the work comprised in the directions to rectify at paragraphs 2 and 3 of the second direction are also in terms which I might describe as telegraphic. I rather get the impression that when the facts necessary to understand fully the work involved in paragraphs 2 and 3 of the second direction are unpacked, there will be some considerable detail and perhaps untidiness. There will also emerge an issue as to whether or not defects caused by building work or whether they were caused by the loading, transporting and unloading of the house, which might be something other than building work. And I can see that that issue itself might be complicated, detailed and, as I say, rather untidy.
I’m, of course, not undertaking a merits review but a judicial review. It seems to me that if the time is to be spent by somebody understanding all the factual detail which is relevant to this third point raised by the applicant, it is better done by a member sitting in QCAT than by a member of this Court. That is, if the time is taken to understand all that detail, it is better that it is undertaken in circumstances where, at the end of it, there can be meaningful and substantive merits relief granted, rather than simply an order perhaps that the defendant reconsider its decision and essentially leaving the parties to start again.
In those circumstances, it seems to me that if that matter is pursued, it ought to be pursued in QCAT and that it would be in the interests of justice for both parties that that should be done – see section 13 of the Judicial Review Act.
Now, for that reason, I think I should dismiss the application so far as it relates to the direction to rectify number 39705, made 18 December 2013 and otherwise adjourn the application so far as it relates to the decision to approve an insurance claim and the decision to give a notice of debt, dated 21 March 2014.
I will just make it abundantly clear that my decision in dismissing the application in relation to the direction 39705 does not involve a decision on the merits in relation to whether or not paragraphs 2 and 3 of that direction are directions which might be invalid or partly invalid because they involve directions to perform work which is not rectification of work pursuant to the contract between Mr King and the owners of the building. That is, that topic may still be the subject of litigation between the parties, including in QCAT.
…”
Counsel for the applicant then told me that the matter could not be heard in QCAT because of what is now s 86F(1)(b) of the Queensland Building and Construction Commission Act 1991 (QBCC Act – previously the Queensland Building Services Authority Act 1991) which provides that merits review of a direction to rectify is not available in QCAT if 28 days have elapsed from the date of the decision to direct rectification. In this case that time had plainly elapsed.
In these circumstances, where I had not pronounced final orders, I asked the parties to deliver further written submissions on the legal point which I had expressly refrained from deciding in my ex tempore reasons: viz., whether s 72 of the QBCC Act as it stood prior to 15 December 2014 enabled the authority to give a direction to rectify work which had not been carried out by the builder. The last written submission arrived on 30 January 2015. I now determine that point.
At the time relevant to this matter, s 72(1) read:
“If the authority is of the opinion that building work is defective or incomplete, the authority may direct the person who carried out the building work to rectify the building work within the period stated in the direction.”
It seems to me that there is no express requirement in the old s 72(1) that the person directed to carry out building work have carried it out pursuant to a contract between that person and the home-owner. Further, when sub-section (5) of old s 72 is examined, the section clearly contemplates persons receiving a direction who were not in such a contractual relationship – see s 72(5)(c), (d). All that appears to be required is that the person who receives a direction to rectify is the person “who carried out the building work” – see the terms of s 72(1) and the introductory words to sub-section (5). Neither side was able to refer me to any case law specifically on this provision. Therefore I determine the matter according to the language of the Act and decide that under s 72(1) of the QBCC Act, as it stood at the relevant time, the Queensland Building Services Authority (QBSA) had the power to direct Mr King to remedy building work, notwithstanding it was not the subject of a contract between him and the owner of the house, provided it was building work which he carried out.
A second issue of interpretation arises as to s 72(1) as it stood at the relevant time. That is whether or not the QBSA had power to direct Mr King to carry out work to rectify damage which the QBSA considered resulted from Mr King’s having carried out defective or incomplete building work. In this respect, the QBCC Act is now in terms which expressly give the authority power to require rectification of building work and remediation of consequential damage caused in the carrying out of building work. The authority submitted that I ought imply such a power in the authority under the old s 72. I can see no warrant for doing so. The express terms of the sub-section allow the authority to direct a builder to “rectify the building work”. There is nothing in the remainder of the section, or in Part 6 of the old Act, which would indicate that the authority had any wider power.
Apart from the language of the Act, I take notice of the fact that quite often consequential damage might be contended by the home-owner to amount to many times the value of the building work undertaken. I also take note of the fact that a home-owner who alleged consequential damage had been suffered would have rights to sue for that and have the claim tested in a Tribunal or Court. In many cases that may be appropriate, for questions of causation, and the conduct of third parties, may intrude which would not be expected to intrude where the authority was simply assessing whether or not building work, as performed, was defective or incomplete.
The applicant drew to my attention the case of R v McGuire & Hanlon Homes Pty Ltd, ex parte Builders’ Registration Board of Queensland.[1] That case concerned the Builders’ Registration and Home-owners’ Protection Act 1979-1982, which contained a section analogous to s 72(1). The section dealt with in that case gave the Builders’ Registration Board power to order the builder “to remedy the building work that is faulty or unsatisfactory”. Like the old section 72, there was a separate specific power to order the builder to demolish the building work and start again. On appeal from an order to rectify under the 1979 Act, a District Court judge made specific orders as to what the builder was to do at the building site (for example, construct a three metre cement slab, a drain and a rat wall). It appears from the report that these were measures which expert builders thought desirable, but were not matters which were provided for by the contract between the owner and the builder. In fact, it appeared that the contract between the owner and the builder was based on an inadequate design. The Full Court held that the orders of the District Court judge were beyond power. He had no more power than the Board had. The Board had no power to do anything other than order the builder to remedy work which was faulty or unsatisfactory. Andrews ACJ, with whom McPherson J agreed, said of the Board’s power:
“Its power then is to order the builder to remedy work which is faulty or unsatisfactory or order him to demolish the building work that is faulty or unsatisfactory and to perform that work again. The limiting of the powers seems to me to be fairly precise …
…
The District Court had power to adjudicate upon the matters raised in the Board’s order … but in my view had no power to go outside the terms of the order and indeed had no power to go outside the terms of the contract between the owner and the builder except as provided by the Act. It was argued that part of the work to be performed by the builder included work to a[n] [un]satisfactory or inadequate design. Having regard to the purview and the provisions of the Act, I am unable to see any power to order the provision of extra structure to the building contracted for between the owner and the builder.”[2]
[1] [1986] 1 Qd R 61.
[2] Above, pp 66, 67.
The case is not entirely on point but I think in general terms it supports the idea that, where no power to order rectification of consequential damage was specifically given by the legislation, the authority (QBSA in this case), did not have power to order rectification of consequential damage.
Having made that determination, I shall hear the parties with a view to making directions as to the hearing on the remaining issues between them.
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