Review of QBCC decisions – part 4

The Queensland Building and Construction Commission (QBCC) is empowered under the Queensland Building and Construction Commission Act 1991 (Act) to make a variety of decisions such as but not limited to issuing, or not issuing, to a builder a notice to rectify defective domestic building work.

External review by QCAT

A stakeholder aggrieved by a QBCC decision can ultimately apply to have the decision reviewed by the Queensland Civil and Administrative Tribunal (QCAT).  Significantly, QCAT’s function when undertaking an external review is to review the decision, not the process by which the original decision was arrived at, nor the reasons for making it.

Pursuant to section 20 of the Act, this means QCAT hears and determines an external review by way of a fresh hearing on the merits.  This in essence means when QCAT undertakes an external review, it stands in the shoes of the original decision maker.^[1]

However, as QCAT is obliged to have regard to the best and most current information available, the question for determination by QCAT at an external review hearing is not whether the original decision was the correct or preferable one based on the material before the original decision maker, but rather whether QCAT’s decision is the correct or preferable one based on the material before it at the time of the external review hearing.^[2]

In arriving at what it considers to be the correct and preferable decision, QCAT under section 24 of the Act has a discretion to:

• confirm or amend the QBCC decision;
• set aside the QBCC decision and substitute its own decision; or
• set aside the QBCC decision and return the matter for reconsideration to QBCC with the directions QCAT considers appropriate.

How these factors intersect was illustrated in the recent QCAT decision of Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 454.

Case summary

In June 2014, the disgruntled homeowners complained to QBCC about the Applicant’s alleged defective building work.  In August 2014 QBCC issued a direction to rectify alleging two Category 1 defects and a single Category 2 defect.  Subsequently the direction to rectify was withdrawn and replaced by a Request to Rectify.

Following rectification work, QBCC determined not to take any further action unless the windows failed and allowed water penetration.  On the homeowners’ successful internal QBCC review of that decision, a new direction to rectify was issued in March 2015 based on the assertion the windows did not comply with the requirements of the then Building Code of Australia (Code), even though it acknowledged the Applicant’s arguments that:

• the construction method adopted was an alternative solution meeting the performance requirements of the Code;
• the building work had not failed; and
• there had not been any water ingress.

On provision of an engineer’s report to the effect the window flashing material did conform with the relevant standards, QBCC advised the homeowners an alternative solution had been certified.

Following a second internal review, that decision was overturned and another direction to rectify was issued in April 2016, almost two years after the initial complaint.

In May 2016, the Applicant applied to QCAT for an external review which resulted in the decision being set aside in 2017, but QBCC then appealed that decision successfully in 2018 and the matter was remitted back to QCAT for reconsideration.

New reports were obtained and relied upon by each party as part of the rehearing conducted in September 2019.  Based on the latest reports of 2019, QCAT determined in November 2020 to set aside the direction issued in April 2016, over four years earlier.

Takeaways

The merit review function of QCAT means parties to an external review proceeding can bring in information and developments that may not have been available at the time the initial decision was made.

Links and further references

Cases

Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 454

Legislation

Queensland Building and Construction Commission Act 1991

Related insights

Review of QBCC decisions – part 1
Review of QBCC decisions – part 2
Review of QBCC decisions – part 3

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.

[1] Peter Whalley Homes Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 454 at [9].

[2] Ibid at [10].