Wells v Queensland Building and Construction Commission

[2018] QCAT 376

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Wells v Queensland Building and Construction Commission [2018] QCAT 376

PARTIES:

DAVID KEITH WELLS
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR258-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application for miscellaneous matters filed on
19 September 2018 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether statutory time limit expired

Queensland Building and Construction Commission Act 1991 (Qld), s 72A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2012] QCAT 681

REPRESENTATION:

Applicant:

Self-represented

Respondent:

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. On 20 July 2018, the Queensland Building and Construction Commission (‘the QBCC’) decided not to issue a direction to rectify in respect of a gas leak at a property owned by Mr Wells.

2. On 26 July 2018, Mr Wells filed an application to review the QBCC’s decision.

3. On 19 September 2018, the QBCC filed an application for miscellaneous matters seeking to have the review application struck out.

4. Section 72A(4) of the Queensland Building and Construction Industry Act 1991 (Qld) (‘the QBCC Act’) imposes a time limit on when a direction to rectify may be issued:

   A direction to rectify or remedy cannot be given more than 6 years and 6 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 commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

5. The QBCC has not made an application to the Tribunal to extend the 6 year and 6 month time limit.

6. A number of dates have been put forward as the date upon which the relevant building work was completed:

   (a)1 December 2011, being the date the Form 21 Final inspection certificate was issued;

   (b)2 December 2011, being the date of an invoice issued by the builder in respect of a number of variations;

   (c)14 December 2011, being the date stated in the Taxshield Property Depreciation Schedule;

   (d)3 February 2012, being the installation date stated on the gas compliance plate.

7. The Tribunal can only make a decision on review that the decision maker could have made under the enabling legislation when the original decision was made.[1]  Subject to any order to the contrary, the Tribunal’s decision has effect from when the decision under review took effect.[2]

   [1]McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2012] QCAT 681, [6]; Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242, [2].

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2)(b).

8. If the date of completion of the building work was 1 December 2011, 2 December 2011 or 14 December 2011, it is clear that the QBCC could not have issued a direction to rectify as more than 6 years and 6 months had elapsed as at the date of its decision on 20 July 2018. However, if the date of completion was 3 February 2012, the QBCC would still have been within the time limit in s 72A(4) of the QBCC Act.

9. The outcome of the review application therefore turns, at least in part, on whether the date of completion was in December 2011 or on 3 February 2012.  This is a question of fact, which it is appropriate to determine after a hearing rather an on an interlocutory basis.

10. The strike out application is dismissed.