Ashcam Pty Ltd v Queensland Building and Construction Commission & Anor [2025] QCAT 321

Middling v Queensland Building Services Authority [2005] QCCTB 14

• [1] The applicant building contractor ('Ashcam') has sought review of a decision about the scope of work to be undertaken pursuant to the statutory insurance scheme on the failure of Ashcam to comply with a direction to rectify defective building work associated with construction of a carport the property of Mr Heron.
• [2] Mr Heron complained to the Queensland Building and Construction Commission ('QBCC') about the carport on 15 January 2022.
• [3] On 7 June 2022 QBCC issued a Direction to Rectify to Ashcam ('DTR') requiring rectification of two items of defective work by 12 July 2022. The time to comply was subsequently extended to 26 July 2022 on the request of Ashcam.
• [4] Prior to 26 July 2022 Ashcam sought access to the property on a particular day to perform rectification work. Mr Heron said he was not available that day to open the gate. Ashcam contacted QBCC to complain about access.
• [5] Ashcam failed to complete the rectification work by 26 July 2022.
• [6] On 16 August 2022 Ashcam requested another extension of time to perform the work through to 30 September 2022, which QBCC refused.
• [7] QBCC referred the matter to the statutory insurance scheme.
• [8] A scope of work was prepared on 2 September 2022 and referred to Sedgwick Claims Management Services Ltd, loss adjustors for the scheme.
• [9] On 28 September 2022 Ashcam applied for internal review of the proposed scope of works. QBCC failed to internally review the scope of works within time and therefore there was a deemed internal review decision in accordance with the original decision.
• [10] On 15 November 2022 Ashcam applied to the Tribunal for external review of the scope of works decision.
• [11] On 20 July 2023 the Tribunal invited QBCC to reconsider the scope of works, which it did, with QBCC deciding on an amended scope of works.
• [12] A review hearing took place on 17 February 2025.

• [13] There were two aspects to Ashcam's challenge. First, that the matter should not have been referred to insurance because the homeowner, Mr Heron, refused them access to the site to allow them to perform rectification work. Second, that the scope of work was unreasonable and included unnecessary work.
• [14] QBCC say it is too late for Ashcam to challenge the referral to insurance. The current review should be limited to a review of the prepared scope of work only.
• [15] Ashcam rely on the Tribunal decision of Crocker v Queensland Building and Construction Commission [2024] QCAT 73 ('Crocker') at first instance where the Tribunal found it was within jurisdiction, on a review of a decision about the scope of works to be undertaken under the statutory insurance scheme, to consider whether the proposed items in the scope of works were within the terms of the statutory insurance scheme. That is a very significant issue.
• [16] That decision is currently the subject of appeal to the Appeal Tribunal. The appeal is yet to be heard.
• [17] Mr Heron has waited for some years for rectification work to be done on his carport. I determined the within review could proceed without waiting for that appeal to be finalised. In large part my decision was made because, if the answer to the factual contention by Ashcam, that it was refused access to the site, is no, then the significant issue raised in Crocker, the referral to insurance, need not be addressed and that matter left for the appeal.

• [18] By the Queensland Building and Construction Commission Regulation 2018 (Qld) ('the Reg') a consumer of residential consumer work is entitled by Schedule 6 s 15 of the Reg to claim assistance for the reasonable cost of rectifying defective work subject, amongst other things, to Schedule 6 s 18(a) which provides:
  1. No entitlement to assistance in particular circumstances

The consumer is not entitled to claim assistance mentioned in section 15 if -

(a) the consumer has unreasonably refused the licensed contractor who carried out the defective work access to the site to carry out rectification work; ...

• [19] There are a number of things to be considered when considering s 18(a). Whether there was a refusal. Whether, if there was a refusal, it prevented the licensed contractor from carrying out rectification work. If there was refusal, was it reasonable?

• [20] Mr Heron made a complaint to QBCC about the carport and there was a site meeting of affected parties on 9 May 2022. Mr Bell, an engineer who did work for Ashcam was present, together with representatives for Ashcam, Mr Heron and Mr Koen a QBCC building inspector.
• [21] On 30 May 2022 Mr Bell provided Ashcam with a design for spigot base plates to be added to the carport posts to stabilise the structure.
• [22] On 7 June 2022 the DTR was issued by QBCC. Ashcam was given 35 days to rectify the defective carport work.
• [23] On 11 July 2022 Ashcam, through Ms Armani, emailed building inspector Mr Koen requesting an extension of time to complete the rectification work.
• [24] An extension was granted to 26 July 2022.
• [25] On Thursday 21 July 2022 an Ashcam employee telephoned Mr Heron to advise him that the spigot base plates manufactured to Ashcam's specifications were available for collection by Ashcam the next day. She asked for access to his property for the following Monday 25 July 2022 to install them.
• [26] Mr Heron maintained there had been 13[1] previous requests for access to install "brackets" (base plates) by Ashcam which had not materialised. He responded that before he asked for leave from work for that Monday to be home to allow Ashcam entry to his property, Ashcam supply a photograph of the brackets.
• [27] Ms Armani wrote to Mr Koen, the QBCC inspector, later that day to say:

I just wanted to make it noted that we have called Barry today and attempted to book the installation of the base plates for Monday 25th. However, Barry was not willing to confirm access to the site.

We will wait for his cooperation.

• [28] Either on Friday 22 July or Saturday 23 July 2022 (there are conflicting dates of the same email in the material) Ms Armani emailed Mr Heron attaching a photograph showing the base plates (spigot base plates) that she said had arrived "today".
• [29] On Sunday 24 July 2022, Mr Heron emailed Ms Armani to say Monday 25 July 2022 was not suitable for him because there were people away at his work. He asked Ms Armani to pick a day the following week. He commented that he expected no spacers being used under the base plates when fixed in place.
• [30] On Monday 25 July 2022 Ms Armani respondent to Mr Heron by email advising there would be grout under the brackets. She added "We have availability on Wednesday 3rd or Thursday 4th August for install. Does (sic) any of these dates work for you?"
• [31] On Thursday 4 August 2022 Ms Armani emailed Mr Heron to discuss grout.
• [32] Mr Heron replied by email on 9 August 2022.
• [33] There were further exchanges about gaps under the brackets once fixed in place between Ms Armani and Mr Heron on Monday 15 August 2022 and Tuesday 16 August 2022.
• [34] On Tuesday 16 August 2022 Ms Armani wrote to the building inspector Mr Koen requesting a further extension of time to 30 September 2022:

I am requesting a further extension of time for the directive at ... as your client is again uncooperative. My building supervisor is now going on leave and we cannot be onsite until the end of September.

Extension requested: 30 September 2022

• [35] Mr Koen responded on 18 August 2022 to say no extension could be given and the matter had been referred to insurance.

• [36] It is unclear whether Mr Heron knew the deadline for rectification work under the DTR was 26 August 2022. It seems not.
• [37] In a conversation between an employee of Ashcam and Mr Heron on 21 July 2022, the employee noted that Mr Heron said he was not aware that QBCC had granted any extension of time from 12 July 2022.[2]
• [38] In her statement of evidence, Ms Armani said Ashcam had never been advised by QBCC that the first extension of time she had requested had been granted,[3] although the employee who spoke to Mr Heron apparently knew the deadline date.
• [39] In her email to Mr Koen of 21 July 2022, Ms Armani had ample opportunity to ask for a further extension of time but she did not. It was simply done. She had arranged the first extension of time.
• [40] Her email to Mr Koen does not assert Ashcam was being denied access to the site. Rather the complaint is that Mr Heron did not confirm access for a particular date, Monday 25 July 2022.
• [41] At hearing Mr Koen said as far as he was concerned, access was never denied.[4] He said when he received Ms Armani's email of 21 July 2022 he telephoned Mr Heron and told him he must grant access. Mr Heron had assured him he was not refusing access. During the conversation Mr Koen went on to explain how construction grout would be used under the base plates. There is nothing in the material to clarify whether Mr Koen informed Mr Heron that the DTR deadline expired on Tuesday 26 July 2022.
• [42] At hearing Mr Heron said that he had never denied Ashcam access to his property. He and his wife both worked. The property was fenced and the gate kept locked because there was an unfenced spa in the yard. Someone had to be home to open the gate. To take a day off work he had to organise another worker to replace him for the day. He worked for a small firm of five driving a concrete truck. Taking a day off affected all of them. He described taking a day off as a "big deal" at hearing.
• [43] Mr Heron wrote on Sunday 24 July that Monday 25 July 2022 was not suitable because there were other people on leave at his work. He suggested Ashcam pick a day the following week.
• [44] I doubt it is necessary that Mr Heron should have to explain why his property is fenced and the gate is locked when he and his wife are absent, regardless that there is an unfenced spa at the property. I accept both he and his wife worked and were not available to grant the builder access on Monday 25 July 2022 unless one of them stayed home from work. There is no information about his wife's availability, but I accept he needed to make arrangements at his workplace before he could take a leave of absence from his work. His claims about that were not challenged at hearing. His refusal to be available to grant access to Ashcam on the day requested was reasonable in the circumstances.
• [45] On Monday 25 July 2022 there was still one day left for the builder to perform the rectification work. According to Ms Armani in her statement of evidence,[5] and her assertion repeated in closing submissions,[6] Ashcam only needed one day to perform the rectification work. But there was no attempt to comply with the DTR by requesting access on Tuesday 26 July 2022. Instead on Monday 25 July 2022 she wrote:

Hi Barry

As per the engineer's request there will be structural grout, under and around the base plates.

We have availability on Wednesday 3rd or Thursday 4th August for install. Does (sic) any of these days work for you?

Thanks

• [46] There were a number of emails exchanged between Ashcam and Mr Heron about the method proposed for rectification and then on 16 August 2022 Ashcam sought an additional 45 days to 30 September 2022 to perform the rectification work, which was denied.
• [47] Ashcam was under an obligation to take all reasonable steps to perform the work required under the DTR within the time set for that. There is no explanation why the base plates designed for use seven days before issue of the DTR were only available to the builder some few days before expiry of the extended DTR deadline. There is no evidence about the date the manufacturer was asked to make the plates. There is no explanation why access was not sought from Mr Heron for Tuesday 26 July 2022 when Ashcam was advised that the Monday was not suitable. There is no explanation why Ashcam did not request a second extension of time from Mr Koen on Monday 25 July 2022.
• [48] I find the failure of Ashcam to complete the rectification work in accordance with the DTR is not attributable to the actions of Mr Heron refusing access on 25 July 2022. His was a reasonable position to adopt in all the circumstances, particularly given it appears he had no knowledge that the date for the contractor to perform rectification work under the DTR expired on Tuesday 26 July.
• [49] Regardless the outcome of the appeal in Crocker, a claim that there was a denial of access preventing Ashcam from completing the rectification work under the DTR is not factually available.
• [50] I turn to review the decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work.[7]

• [51] Prior to Crocker v Queensland Building and Construction Commission [2024] QCAT 73, the extent of review of a decision about a scope of works was accepted as that stated in Middling v Queensland Building Services Authority [2005] QCCTB 14:

[25] I agree with the Authority's submissions that the exercise to be undertaken pursuant to the applicant's review of the Authority's quotation/scope of works is towards assessing whether the scope of works are works reasonable and necessary to rectify and/or complete the items referred to in the Authority's direction of 28 January 2003.

[26] In that regard it is neither relevant, nor is evidence admissible, towards questioning the Authority's Direction to Rectify, and whether the works are defective and/or incomplete such as to require rectification and/or completion.

• [52] The defective work identified in the original Direction to Rectify was as follows:
  1. The construction of the carport on the right side of the dwelling contradicts BCA Section P2.1.1 Structural stability and resistance, resulting in a movement of approximately 100 mm to the carport's peak. According to the Inspector, a person with the appropriate knowledge and experience to obtain a licence would not have created work of the current substandard. Pertain to item number 1 of the QBCC complaint form.
  2. The applied paint finish on the black posts, front roof span beam, and several bracers of the carport constructed to the right-hand side of the dwelling do not meet a reasonable standard of finish expected of a competent holder of a contractor's licence of the applicable class. There is evidence of numerous scuff marks and the lack of touch-ups to cut edges, which resulted in an unsightly, uneven appearance - Pertains to item 2 on the QBCC complaint form.
• [53] The Commission referred the claim under the statutory insurance to Sedgwick, loss adjustors, who engaged a builder, and the builder inspected the construction and suggested disassembly of the carport was not required. The builder also made other suggestions which were adopted by the Commission and formed the reconsidered decision about the scope of work (the amended scope of works) returned to the Tribunal.
• [54] Ashcam has questioned the amended scope of work in various respects. Where no challenge is now made to the proposed work as amended, I accept the reasonableness and necessity for the proposed work. I address therefore the two aspects of the amended scope of work that is challenged.

• [55] The varied scope of work[8] as relevant concerning posts provides for the removal of the existing steel posts, cutting them and refitting them with new 200 x 200 x 10 mm base plates with four bolt holes, powder coating and painting the posts and base plates to match, and installing them with bolts and using levelling nuts and non-shrinking grout.
• [56] Ashcam suggests Mr Bell's spigot base plates system be used as a more cost effective solution.
• [57] There is no comparative evidence on costs led to support or refute the claim.
• [58] Mr Harvey, Ashcam's director and nominee contractor, prepared a statement of evidence prior to the amended scope of work issuing. In his statement of evidence he challenged the original scope of work so far as it had proposed the disassembly then re-assembly of the entire carport structure. He was unsure at hearing what was changed by the amended scope of works. His evidence is of no assistance given the suggestion about disassembly was omitted from the amended scope of works.
• [59] Similarly in part with Mr Bell's statement of evidence. That was prepared prior to the amended scope of works issuing. He had inspected the structure on site in May 2022 but not since then. He had signed the original design-specification certificate applying to the carport design generally, but had not specifically certified this carport.
• [60] This carport was different to most. At hearing the following exchange occurred between Mr Bell and Counsel for QBCC:

MR COOKE: Okay. All right. So the generic form 15 that was used for the purposes of constructing this carport was a generic one; is that what you're saying?

MR BELL: That is correct.

MR COOKE: And this is by no means what you'd call a generic carport, is it?

MR BELL: No, it is not.

MR COOKE: Because in general terms it's bespoke in the sense that the design elements have a different shape than the standard type carport; that's right, isn't it?

MR BELL: It's - it's outside of the norm, yes.

MR COOKE: Yes. And one of the unique features of this carport as well is that it attaches to the house on one side, doesn't it?

MR BELL: That is correct.

MR COOKE: Yes. And that creates stability problems as well if it's not attached correctly; that's correct?

MR BELL: Yes, that is - would be a design consideration, the stability of the carport.

MR COOKE: Yes. And you didn't design the attachment to this particular home for this particular carport, did you?

MR BELL: No, I did not.

• [61] Mr Bell was of the opinion that either cross-bracing was necessary or baseplates should be added to the posts to stabilise the structure. He said Mr Heron had chosen the baseplate method and therefore he had provided a detail for that to Ashcam. He did not address the relative costs of using internal spigot base plates over welded baseplates.
• [62] The carport was attached to the house by brackets at the top. Mr Bell said he had no recollection of designing the fascia brackets used. Mr Bell considered the brackets were particular to and built for this particular carport.
• [63] In closing submissions Ashcam challenged the QBCC "methodology" proposed in the amended scope of work. That scope of work proposes removal of the steel posts where the carport attaches to the house after raising a support system to preserve the connection between the carport roof and the house roof. Then removing the posts and cutting them and refitting them (by weld) to new 200 mm x 200 mm x 10 mm baseplates. Then powder coating the posts and plates and installing the posts using four bolts each plate with levelling nuts and non-shrink grout.
• [64] Ashcam proposes that the "methodology" suggested by Mr Bell is more cost effective. Ashcam identifies unnecessary labour costs of "transporting the items between site, welding, sandblasting and powder-coating." It is suggested that Mr Bell's spigot base plates system will save both time and costs, but as mentioned, there is no breakdown of costs or other evidence supporting that claim.
• [65] The cost effectiveness suggested is premised on Ashcam performing the rectification work identified in the DTR. That Ashcam make use of the spigot base plates already manufactured for them and in its possession.[9] That is not possible under the statutory insurance scheme.
• [66] The only other alternative utilising the spigot base plate system would be to direct the rectification builder to use Ashcam's spigot base plates. The Tribunal cannot direct that. Nor is there power in the Tribunal to direct Ashcam deliver up the spigot base plates to the rectification builder for such use. Is Ashcam to be remunerated for the cost of the plates manufactured to its order? Is Ashcam to deliver them up without reward?
• [67] There is no evidence that there is any saving to be had utilising Mr Bell's methodology as proposed. Without evidence to support Ashcam's contention, the amended scope of work must stand.
• [68] I note, in its closing submissions, Ashcam also suggests, again absent supporting evidence concerning design or cost, that Mr Bell's spigot base plate solution could also be ignored in favour of cross bracing only. That too, must be ignored. In his statement Mr Bell said in a final note that the carport has side screens installed which will alter the pressure coefficients and render the design inadequate. Pressure coefficients must be considered to ensure the structural integrity of structures such as open carports and garages when under wind load. Presumably Mr Bell designed his spigot base plates taking that into account. There is no evidence that generic cross bracing would ensure the structural integrity of this carport under wind load. There is no available engineering evidence to support particular cross bracing as an effective measure.

Supply and install 1800 x 90 x 35 mm MPG12 to side of rafters.

• [69] MPG12 is pine framing timber. It is proposed to add that to rafters to give them strength.
• [70] Ashcam maintain that the house rafters are metal and therefore timber stiffening should not be used. Ashcam says it has already stiffened the rafters with steel plates during construction of the carport.
• [71] Mr Koen explained[10] the rafters were flimsy. There is a photograph of the metal rafters attached to Ashcam's submission.[11] Viewing the photograph, "flimsy" seems an appropriate descriptor. Mr Koen said despite the steel plates added by Ashcam during construction there had been lateral movement where the carport attached to the house. The house rafters were designed to prevent vertical movement, not lateral movement. Hence the necessity for additional stiffening using MPG12 timber to the side of the rafters.
• [72] That explanation is not challenged by Ashcam and I accept the addition of stiffening timber to rafters as proposed is reasonable and necessary work required to remedy the defective work identified in the DTR.

• [73] The reconsidered decision made 15 August 2023 varying the scope of work necessary to rectify the defective work identified in the DTR dated 7 June 2022 is confirmed.

[1] At hearing Mr Heron clarified Ashcam returned 7 times to do work but on each occasion there was a meeting beforehand to work out what was needed - Transcript 1-83 Line 19.

[7] Queensland Building and Construction Commission Act 1991 (Qld) s 86(1)(g).