Review of QBCC decisions – part 5

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

The Act sets out processes that enable an aggrieved stakeholder to have a decision reviewed internally by QBCC, and / or if deemed appropriate, externally by the Queensland Civil and Administrative Tribunal (QCAT).

Reviewable Decisions

Section 86 of the Act contains a long list of QBCC decisions capable of review, including but not limited to decisions relating to rectification of domestic building work.

Under section 86A of the Act a person who is given notice of a reviewable decision may apply for internal review by the QBCC of that decision.

Alternatively, section 87 of the Act enables a person affected by a reviewable decision to apply under the provisions of the Queensland Civil and Administrative Tribunal Act 1991 (QCAT Act) for external review of the reviewable decision.

Within the context of directions to rectify, under section 72A(4) of the Act such a direction cannot be given more than 6 years and 6 months after the domestic building work to which the direction relates was completed unless 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.

Under section 24(2)(b) of the QCAT Act, QCAT’s decision in respect of a reviewable decision, subject to any contrary order of QCAT, has effect from when the reviewable decision took effect.

The impact of the interaction of the review options and related time lines was illustrated in the decision of Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528.  The facts in Jorg were straight forward:

• Practical completion was achieved on 11 July 2012. On 19 February 2018 and 26 March 2018 the Jorgs lodged separate complaints with the QBCC alleging defective building work.
• On 11 December 2018 and 14 December 2018 respectively QBCC determined, up to ten months after the first complaint was lodged, that it would not issue directions to rectify.
• By 9 January 2019, within the 28 day period for internal review as required by section 86B(1)(a) of the Act, the Jorgs had lodged internal review applications with the QBCC in respect of the original decisions not to issue directions to rectify.
• On 11 January 2019, the period of six years and six months from the date of practical completion expired.
• On 17 January 2019 and 6 February 2019, QBCC in its internal review decisions determined it was unable to issue directions to rectify as more than six years and six months had passed since the work was completed.

QCAT determined that had the Borgs chosen external review in the first instance, rather than opting for internal review, the reviewable decision it would have had to consider was the decision in first instance not to issue directions to rectify, which were made within the six year and six month limitation period.

However, the effect of having sought internal review was that the decisions being reviewed by QCAT were the internal review decisions of 17 January 2019 and 6 February 2019.

Given the operation of section 24(2)(b) of the QCAT Act, QCAT held it did not in the circumstances have the power to make orders in respect of notices to rectify which would impermissibly take effect after the expiry of the six year and six month limitation period.

While critical of the time it took the QBCC to make its decisions not to issue directions to rectify, QCAT was of the view the Borgs in opting for internal review in the first instance were the authors of their own difficulties.

Takeaways

This decision appears to be harsh on lay people who no doubt were relying on the QBCC to respond to their concerns promptly.

It is hoped that moving forward, the implementation of the recommendations put forward in the QBCC Governance Review 2022 will result in a more responsive and outcomes focussed organisation.

Links and further references

Cases

Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528

Legislation

Queensland Building and Construction Commission Act 1991

Queensland Civil and Administrative Tribunal Act 2009

Related insights

Review of QBCC Decisions – Part 1

Review of QBCC Decisions – Part 2

Review of QBCC Decisions – Part 3

Review of QBCC Decisions – Part 4

Further information about the QBCC

If you are seeking a review of a QBCC decision, such as a notice to rectify defective building work, or related matters, 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.