Torea Pty Ltd v Queensland Building Services Authority

[2013] QCAT 4

CITATION: Torea Pty Ltd v Queensland Building Services Authority [2013] QCAT 004

PARTIES:	Torea Pty Ltd
v
Queensland Building Services Authority

APPLICATION NUMBER: GAR262-11

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Paul Favell, Member

DELIVERED ON: 2 January 2013

DELIVERED AT: Brisbane

ORDERS MADE: The parties be allowed to make further submissions by 30 January 2013 and the matter be determined on the papers.

CATCHWORDS:

When is “building work” completed

Queensland Building Services Authority Act 1991, s 72(8)

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Torea Pty Ltd represented by Porter Davies Lawyers

RESPONDENT: Queensland Building Services Authority

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

REASONS FOR DECISION

1. The Statement of Agreed Facts, dated 30 May 2012, outlines that following an inspection on 1 August 2011, a Direction to Rectify and/or Complete Number 36602 was issued to Torea Pty Ltd on 4 August 2011 and sent by post to Torea Pty Ltd on 5 August 2011, pursuant to section 72 of the QBSA Act.

2. The applicant, Torea Pty Ltd, disputes the validity of the Direction on the basis that it was not compliant with the timeframe required by s 71 of the Queensland Building Services Authority Act 1991.  The applicant informed the respondent of this issue on 27 July 2011.

3. The applicant contends that the subject building, “River Reach”, was completed on 15 March 2005, as per the date upon which the applicant issued the Certificate of Practical Completion. The applicant submits that this classification of completion is compliant with their contractual obligations. The basis of the applicant’s submission is that the building was constructed in accordance with the contract, which is sufficient to satisfying the meaning of “complete” under s 72(8) of the QBSA Act.

4. The respondent contends that the date of completion is 4 May 2005, which corresponds to the date the Certificate of Classification 003514 was issued by Brisbane Certification Group for the subject building. The respondents refer to ss 101, 102, 114 and 114A of the Building Act 1975 to support this contention.

5. The respondent, in reliance on Sedl v QBSA, a decision of the QCAT delivered on 5 January 2012; Morgan v SS Constructions Pty Ltd [1967] VR 149 and Sadd v QBSA [2007] CCT QR085-06, contends that

   “a building is complete when it is finished.  A building is “finished” when it is fit for occupation.  A building can only be occupied when it is complete under the contract and the final inspections have been carried out and a Certificate of Classification is issued.”[1]

   [1]        Respondent’s submissions, [26].

6. Member Butler SC, in Sadd v QBSA, states that “the term “completed” must be read in the context of the phrase in which it appears.  The words should be given ordinary meaning of “finished”.  Member Butler SC does not define “finished” as fit for occupation.  The respondent contends that the term “practical completion” is only relevant insofar as it relates to the contract between the owner of the building and the applicant.

7. Further, the respondent contends that seeking the Certificate of Classification is an aspect of “carrying out” building work, and therefore the building work was not complete until 4 May 2005.

8. Section 72(8) of the QBSA Act states that a direction cannot be given more than six years and three months after the building work to which the direction relates was completed. The Direction of 4 August 2011 was exactly six years and three months after 4 May 2005, the completion date put forward by the respondent.

9. The Tribunal on 13 March 2012 directed that the Tribunal decide on the papers the issue as to whether the direction to rectify was issued within time and determine whether the building work was completed for the purposes of s 72(8) of the QBSA Act.

10. Section 72(8) of the Act provides: “a direction cannot be given under this section more than six years and three months after the building work to which the direction relates was completed or left in an incomplete state, unless the Tribunal is satisfied on application by the Authority that there is in the circumstances of a particular case sufficient reason for extending the time for giving a direction and extends the time accordingly.”

11. There has been no application to extend the time made by the respondent.

12. The respondent submits that the agreed statement of facts identifies three possible dates of which it could be argued that the building work was completed.  They are

    a)    15 March 2005 – the date of the “certificate of practical completion” was issued by the applicant;

    b)    31 March 2005 – the date the “request for inspection of special fire services” was sent by the applicant to the Queensland Fire Service for a final inspection of the building; or

    c)    4 May 2005 – the date the certificate of classification 003514 was issued by Brisbane Certification Group for the building.

13. The respondent contends that the date of 4 May 2005, the date the certificate of classification was issued, is the date the building work was completed.  It concedes that if not, then the respondent is out of time to issue the direction to rectify and it was erroneously issued in the absence of the Tribunal’s leave to issue it.

14. The essence of the respondent’s submissions is that building work is “complete” only when a building has been constructed in accordance with the contract and reached “practical completion” stage and the certificate of classification has been issued.

15. The essence of the applicant’s submissions is that the building work was completed on the date which the applicant issued the certificate of practical completion.  The applicant places emphasis on consideration of the contractual terms between builders and owners for the determination of when building work is completed.

16. I note that section 72(8) of the Act when determining when the limitation period runs is concerned with “building work to which the direction relates”. It is that building work to which the direction relates which either has to be completed or left in an incomplete state.

17. In my view, one of the first steps is to determine the building work to which the direction relates.  After that building work to which the direction relates is identified, then the completion date can be determined.

18. The building work to which the direction relates, in this instance, can be identified from the document lodged with the Tribunal on 2 February 2012 and dated 2 February 2012 from the Building Services Authority which identifies the defective or incomplete building work the subject of the direction.  That letter attached a reissued direction to rectify with items that the QBSA agreed to withdraw or remove.

19. In my view, those directions will help determine the building work about which the completion needs to be determined.

20. If that is correct, the first direction which is “installation of the rainwater head located to Tower A, Front Elevation wall adjacent Unit 63 does not comply with BCA Vol. 1 Part FP1.4 resulting in water entering the building causing damage to plaster board ceiling linings.”  Pertaining to item 1 on BSA complaint form would mean that the relevant building work is the installation of the rainwater head identified in that direction.

21. In my view it is not correct to determine the completion date on which all of the building work was completed. That is, it is not correct to have regard to dates of certification for a building or dates of practical completion for a building or dates of certification for fire requirements. To do so would be to ignore the words which qualify the building work as they are used in s 72(8) of the Act.

22. Both parties have made reference to decisions of this Tribunal and previous Tribunals. Those decisions in my view were not concerned with the building work about which s 72(8) requires the Tribunal to be concerned with.

23. In Sedl v QBSA [2012] QCAT 2 the Tribunal was concerned with the date of practical completion of a building. That issue was of importance in that decision because the use of the term “practical completion” in the terms of an insurance policy and QBSA’s policy on defective work.

24. The decision in Kuskie & Brown v Adrian Nunn t/a Nunn Builders [2009] CCT BM 038-08 was concerned with, in part, how the date for practical completion under a contract was to be determined.  That determination was necessary in the context of determining when the builder was required to bring the works to practical completion.

25. The decision in Sadd v QBSA [2007] CCT QR 085-06 was concerned with the term “completed”.  Notably, Member Butler stated that the term “completed” must be read in the context of the phrase in which it appears.

26. The respondent in its submissions says that “when considering the term “the building work to which the direction relates” in s 72(8) of the QBSA Act, it is not appropriate to look at each part on the building as a separate item of building work, each of which commences the six year and three month limitation period on a separate date.” No real reason is given why the qualification with respect to building work should be ignored except it is said,

    “1. That interpretation would require an inordinate amount of admistration by a builder to maintain accurate records for which piece of building work was established on each day, thereby creating scope for extended litigation, uncertainty and the potential for fraud.

    2. That interpretation would substantially remove the protections afforded to consumers under the Act.  It is foreseeable that the foundations of a large building could be constructed more than 3 years and 6 months before the certificate of classification was issued thereby removing the remedy available to the consumer pursuant to s 72 of the QBSA Act.”

27. In my view, those are not reasons for failing to interpret the building work as building work to which the direction relates.

28. It is a different matter as to when that building work, that is building work to which the direction relates, was completed.

29. Schedule 2 of the QBSA Act defines “building work” to mean “building work means –

    a)The erection or construction of a building; or

    b)The renovation, operation, extension, improvement or repair of building; or

    c)The provision of lighting, heating, ventilation, air-conditioning, water supply, sewerage or drainage in connection with the building; or

    d)Any site work (including the construction of retaining structures) related to work of a kind referred to above; or

    e)The preparation of plans or specifications for the performance of building work; or

    f)Contract administration carried out by a person in relation to the construction of a building designed by the person; or

    g)Fire protection work; or

    h)Carrying out site testing and classification in preparation for the erection or construction of the building on the site; or

    i)Carrying out completed building inspections; or

    j)Inspection or investigation of a building and the provisions of advice or a report for the following –

    k)Termite management systems for the buildings;

    l)Termite infestation in the building;

    but does not include work of a kind excluded by regulation from the ambit of this definition.”

30. Clearly such “building work” does not require a building to be completed or certified.

31. In my view, in the determination of the questions at hand, references to s 101 of the Building Act 1975 so far as it concerns the term “substantially completed” are of little assistance.

32. Further, it was submitted that s 102 of the Building Act 1975 relevantly states that a certificate of classification must be issued only after the building certifier has inspected the building and deemed it substantially complete, fire safety installations be installed and any special requirements have been complied with.

33. Whilst that might be the requirement of s 102, it does not in my view assist in the determination of when building work to which the direction relates was completed.

34. Further in my view ss 114 and 114A do not assist in that interpretation. I recognise that they create offences in respect of the occupation of buildings. To my mind that does not relate to the completion of building work.

35. In any event it is dealing with the concept of “a building” being completed, not the completion of “building work to which the direction relates”.

36. For the purposes of the interpretation of s 72(8) it is not relevant to determine in my view when a building is finished.

37. Further in my view the issuing of a certificate of practical completion does not assist in determining when building work to which the direction relates was completed.

38. Because of the determination I have made herein that the term “building work” as it is used in s 72(8) is qualified by the term “to which the direction relates” it is appropriate to allow the parties to make submissions as to when building work, as so qualified, would be completed.