Directions to rectify defective domestic building work – part 2

Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to issue to a builder a notice to rectify defective domestic building work.

Under section 71J of the Act, a domestic building work consumer may ask the QBCC to give a direction to rectify domestic building work considered to be defective or incomplete, the request having to be made within 12 months after becoming aware of the domestic building work considered to be defective.

Section 72 of the Act provides that if the QBCC is of the opinion that building work is defective or incomplete, it may direct the person who carried out the work to rectify it as per the terms of the QBCC’s Rectification of Defective Building Work Policy (Policy).

Under the Policy, if a domestic building work consumer seeks the assistance of the QBCC to have issued a direction to rectify defective building work, a formal complaint must be lodged as soon as possible but no later than within 12 months of becoming aware of the defects.

The QBCC will then consider issuing a direction to rectify for:

• structural defective building work, within 6 years and 3 months of the building work being completed; or
• for non-structural defective building work, within 12 months of the building work being completed.

Domestic building work consumers need to be aware of the different time frames for making a claim under the QBCC Home Warranty Insurance scheme.

Notwithstanding the Policy, under section 72A(4) of the Act a direction to rectify cannot be given more than 6 years and 6 months after the domestic building work to which the direction relates was completed unless the Queensland Civil and Administrative Tribunal (QCAT) is satisfied, on application by the QBCC, there is sufficient reason for extending the time for giving the direction and QCAT extends the time.

But what is the situation if a domestic building work consumer gives the building contractor the opportunity to rectify alleged defective building work without involving the QBCC and the attempted rectification is not successful?

Does that attempted rectification work re-set the limitation period during which a complaint about defective building work can be lodged and accepted by the QBCC?

The recent decision of Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189 (Davis) says no.

Background of Davis

In Davis, a certificate of classification was issued on 10 July 2009 for the affected townhouse in question (Original Work).

Water entry into the ground floor of the townhouse was first noticed around December 2014.

In response to complaints from the property owner, between January 2015 and January 2016 the builder returned and carried out rectification work in an attempt to prevent further water penetration (New Work).

In November 2017, the QBCC received separate complaints from the Body Corporate and the property owner about continued water penetration into the townhouse despite the attempted rectification works.

In March 2018, the QBCC declined to issue a direction to rectify to the builder on the basis the complaints related to the Original Work completed in 2009 and thus were lodged outside of the statutory limitation period which ended on 10 January 2016.

In response the aggrieved property owner argued the statutory time limitation period was reset when the builder undertook the New Work rectifications in 2015.

QCAT held the defects dated back to 2009 and the subsequent work was merely an attempt to rectify or repair the Original Work.  Moreover, on the basis the Original Work was defective, if the property owner had complained about it within the statutory time frame, the QBCC would most likely have issued a direction to rectify, that option being available before and during the performance of the New Work.  The primary complaint was not that the New Work was defective, rather despite that work, the defective Original Work had not been rectified. 

In the circumstances, QCAT held the QBCC’s decision not to give a direction to rectify was correct.

Takeaways

When it comes to concerns about defective domestic building work and complaints to the QBCC about such work, domestic building consumers need to keep two things in mind – Vigilantibus non dormientibus aequitas subvenit – the law supports the waking, not the sleeping and et oleum arguta constituit in rota accipit – the squeaky wheel gets the oil.

Because of the harsh effects of the time frames in respect of both complaints about defective building work and making claims upon the Home Warranty Insurance scheme, domestic building consumers need to be proactive in exercising and enforcing their contractual and legislative rights, including the engagement of the QBCC.

Links and further references

Cases

Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189

MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408

Legislation

Queensland Building and Construction Commission Act 1991

Policies

Rectification of Defective Building Work Policy

Related insights

What is defective building work?

When to complain about defective domestic building work

Directions to rectify defective domestic building work – part 1

Directions to rectify defective domestic building work – part 3

QBCC Home Warranty Insurance – Part 1

Further information

Contact Dundas Lawyers Gold Coast for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.