When to complain about defective domestic building work

The Queensland Building and Construction Commission Act 1991 (Qld) (Act) provides key requirements and time limitations for dealing with or rectifying defective domestic building work.  The recent decision of MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408 (MacFarlane) illustrates the impact of failing to comply with the time frames as they apply to defective building work.

What does the Act say?

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

Under section 71J of the Act, a home owner 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 the home owner becomes 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.

Background to MacFarlane

In MacFarlane, during the course of construction the home owner in March 2016 complained about water ingress into the bedrooms after heavy rain.  The house construction was completed in June 2016.  In March 2017 there was further water ingress, again after heavy rain.  Despite the builder’s attempts to rectify the problem, there were further ingress events in April and October 2017.

In October 2017, the home owner engaged another contractor to assess the source of the problem and to rectify it, however the problem persisted with further water ingress between November 2017 and February 2018.  The home owner commenced filling out a QBCC on-line complaint in December 2017 but did not complete and submit it until February 2018.  The builder was placed into liquidation in May 2018.

In July 2018, the QBCC, notwithstanding it had determined the work was structurally defective, decided not to issue a direction to rectify because of the delay in reporting the problem.  Significantly, under section 72(5) of the Act, the QBCC is not required to give a direction to rectify if it is satisfied it would be unfair to the person to give the direction.

The home owner sought a review of the QBCC’s decision before the Queensland Civil and Administrative Tribunal (QCAT).

QCAT’s findings

In upholding the QBCC’s decision, QCAT noted that the power to give a direction to rectify is not for the benefit of the home owner, but rather it is to discharge the QBCC’s responsibilities under the Act.

It was noted that one of the reasons for imposing time limits is to ensure defects are rectified as soon as possible so as to avoid further deterioration or consequential damage.  In addition, early notification also helps the QBCC to identify without delay poorly performing contractors or those in financial difficulty.

The Tribunal took the view that the home owner acted reasonably in initially engaging with the builder in its attempt to fix the water ingress issue but that by October 2017 when other contractors became involved, at that point the QBCC should have been informed, not some four and a half months later in February 2018.

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

Takeaways

Investing in the construction of a home is a significant financial decision for any Australian.  When it comes to concerns about defective domestic building work the Latin maxim Vigilantibus non dormientibus aequitas subvenit applies – the law supports the waking, not the sleeping.

Home owners should be vigilant in surveying the quality of the building work performed and need to act swiftly when concerned about the standard of that work to ensure they protect and preserve their contractual and legislative rights.

Links and further references

Cases

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

Legislation

Queensland Building and Construction Commission Act 1991 (Qld)

Related insights

Negligence Claims in Domestic Building Disputes

Building Disputes and Arbitration Clauses

Termination for incomplete construction work

Why you should not engage an unlicensed builder

Defects and completion of construction contract stages

Further information

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.