Turcinovic v Queensland Building Services Authority - [2013] QCAT 541

CITATION:

Turcinovic v Queensland Building Services Authority [2013] QCAT 541

PARTIES:	Hajrudin Turcinovic (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER:

GAR114-12

MATTER TYPE:

General administrative review matters

HEARING DATE:

3 June 2013

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

15 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The direction to rectify and/or complete number 37292 dated 14 February 2012 is set aside and in lieu is substituted with a decision not to issue a direction to rectify and/or complete with respect to building work located at 60 Denham Street, Tarragindi.

CATCHWORDS:

REVIEW - Building and Construction – application to review a decision of the Queensland Building Services Authority to issue a direction to rectify – Circumstances where work completed – whether building work defective

Queensland Building Services Authority Act 1991 ss 72, 86

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Hajrudin Turcinovic with
Mr R. Paul Baggaley (office manager)

RESPONDENT:

Ms Kirsty Stewart (in-house legal officer for QBSA) and Mr Gary Stick (resolution manager)

REASONS FOR DECISION

The applicant, Mr Turcinovic, seeks a review of the decision of the Queensland Building Services Authority (QBSA) on 14 February 2012 to issue to the applicant a Direction to Rectify and/or Complete Number 37292.
The direction related to the building work he carried out at 60 Denham Street, Tarragindi.
The Tribunal is exercising its jurisdiction under the Queensland and Civil Administrative Tribunal Act 2009 (QCAT Act) to review a decision made by the QBSA. The Tribunal has all the functions of the decision maker and must hear and decide the matter by way of a fresh hearing on the merits.
Under section 24 of the QCAT Act the Tribunal may
a)    confirm or amend the decision; or
b)    set aside the decision and substitute its own decision; or
c)    set aside the decision and return the matter for reconsideration to the decision maker for the decision with the directions the Tribunal considers appropriate.
Section 86(1) of the QBSA Act provides that the Tribunal may review a decision to direct or not direct rectification or completion of work.
The power of the QBSA to require rectification of building work lies in section 72 of the QBSA Act which provides:
“1. If the Authority is of the opinion that the 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.
2. In deciding whether to give a direction under subsection (1), the Authority may take into consideration all of the circumstances it considers are reasonably relevant, and in particular is not limited to a consideration of the terms of, including, the terms of any warranties included in, the contract for carrying out the building work.”
The power of the Authority to require rectification of building work is a discretion which must be exercised in accordance with the objects of the QBSA Act.
Section 3 provides: “the objects of…

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: [2013] QCAT 541
Decision Date

CaseChat Overview and Summary

Hajrudin Turcinovic applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision of the Queensland Building Services Authority (QBSA) to issue a Direction to Rectify and/or Complete Number 37292. The direction related to the building work the applicant carried out at 60 Denham Street, Tarragindi. The respondent, QBSA, contended that the Tribunal was required to consider three issues: whether the work was “building work” and whether it was “defective”; whether the applicant was responsible for the defective building work; and whether the Authority’s decision to direct the applicant to rectify the defective building work was reasonable in all the circumstances. The Tribunal declined to confirm the decision of the Authority to direct the applicant to engage a licenced contractor to rectify defective building work as particularised in items 1 and 2 of the direction to rectify and/or complete number 37292 dated 14 February 2012 and set aside that decision and substituted the decision with a decision not to issue a direction to rectify and/or complete with respect to building work located at 60 Denham Street, Tarragindi, completed by the applicant. The Tribunal determined that the circumstances to which the guideline policy applied did not require rectification of the building work because the rectification had already occurred. In the Tribunal's view, given that it had already decided that the actual direction given should not have been given and the decision to so give that direction was flawed, there was no utility in amending the decision under review or substituting a new decision. If there was some utility in substituting a decision or amending the decision under review, the decision would only be that there be a direction to rectify that which was identified as item 2 on the BSA complaint form and which was the second direction in item 2 on the schedule to the direction dated 14 February 2012. Further, the direction would necessarily allow the time for rectification provided for in section 72. As the parties did not need to address that which was item 3 in the schedule, the Tribunal would not have made a direction with respect to that item. In the Tribunal's view, the work which was identified in this review was building work, but only the work identified in item 2 was defective in the sense that it was faulty or unsatisfactory. Insofar as the tiling on the balcony was concerned, having regard to what was actually constructed, the lack of adequate evidence as to the work being defective and the directions given by the owners as to the construction of the balcony, in the Tribunal's view it would not be reasonable to direct the applicant to remedy the tiling to the rear balcony. As to the second item, the Tribunal was satisfied that the hydraulic design was not followed, the rain water tank overflow pipes were inadequate, the effective discharge of storm water was restricted, there was inadequate drainage provided in the tank storage room, and there was overflow of tank water to a height greater than the hob located in the tank storage room allowing it to penetrate lower levels of the house. In the Tribunal's view, those matters constituted a category 1 defect under the defects policy and they adversely affected the structural performance of the building, adversely affected the health and safety of persons residing in or occupying the building and allowed water penetration into the building.

Orders