Review of QBCC decisions – part 6

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.

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 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 six years and six months after the domestic building work to which the direction relates was completed (the limitation period) unless QCAT is satisfied, on application by 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.

There have been a number of decisions critical of the time it has taken QBCC to make a reviewable decision in the first instance, the delay being detrimental to the interests of domestic building work consumers, such as occurred in Jorg & Anor v Queensland Building and Construction Commission [2020] QCAT 528.

In part it was because of extensive delays on the part of QBCC in responding to complaints about alleged defective building work and finalising internal reviews that prompted the Department of Energy and Public Works to commission an independent review into the governance arrangements of QBCC, resulting in the QBCC Governance Review 2022.

Mai v Queensland Building and Construction Commission [2022] QCAT 296 illustrates why an independent review of QBCC was necessary.

Mai v Queensland Building and Construction Commission [2022] QCAT 296

• Work on Mr Mai’s housed was completed on 22 May 2014.
• On 27 July 2020, Mr Mai complained to QBCC about defective building work.
• On 22 November 2020, the six year and six month limitation period within which a direction to rectify defective building could be issued, expired.
• It wasn’t until 22 April 2021 that QBCC finally made a decision that it would not issue a direction to rectify defective building work.
• Mr Mai sought external review by QCAT of QBCC’s decision of 22 April 2021.

In response QBCC brought an interlocutory application to have Mr Mai’s external review application to QCAT struck out because a decision had not been made within the limitation period.  QCAT observed that Mr Mai had no way of predicting QBCC would take 270 days to make a decision about his defective building work complaint.

QCAT went on to observe it was undesirable that a complaint made well within time should be defeated because of a delay in QBCC making a decision in the first instance until after expiration of the relevant limitation period.  In dismissing QBCC’s strike out application, QCAT said the proper approach would have been for QBCC to apply to extend time where it is unable to make a decision within the limitation period in respect of a complaint made within time.

Given QBCC had failed to adopt such an approach, Member Cardwell held it would be open to Mr Mai to argue at the external review hearing proper that QCAT could exercise the power to extend the time as if it was standing in the shoes of QBCC, the existence of the sufficient reason to extend the time primarily being QBCC’ s failure to make a decision within the limitation period, despite being given 188 days to do so.

Takeaways

This decision was made within the context of an interlocutory application and it remains to be seen whether the potential line of argument suggested will be successful at the final hearing.

The position in this case was that QBCC had not made any decision in respect of the complaint about alleged defective building work prior to the expiration of the limitation period.

In Jorg & Anor v Queensland Building and Construction Commission a decision at first instance had been made but the internal review of the original decision had not been concluded by the time the limitation period had expired.

Links and further references

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

Review of QBCC Decisions – Part 5

Cases

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

Mai v Queensland Building and Construction Commission [2022] QCAT 296

Legislation

Queensland Building and Construction Commission Act 1991

Queensland Civil and Administrative Tribunal Act 2009

Further information about the QBCC

If you are seeking a review of a QBCC decision, including matters like defective building work or rectification notices, 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.