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[2025] QCAT 442
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2025-11-06
Original judgment source is linked above.
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Water leaking in en suite shower. Leak has been identified since approx 22/12/2016. Water leak comes out of shower, through internal walls onto carpet. Leak has attempted to be bandaid patched over the years by builder. Leak still present with mould
The installation of the waterproof membrane to the ensuite wall has not been installed in accordance with the NCC 2015 BCA Volume 2 in that water is able to escape behind linings, or into concealed spaces, resulting in damage to building elements
Pertains item 1 of the QBCC Complaint Form
Kieran Bryce may still be entitled to a claim under the Queensland Home Warranty Scheme. This this is your opportunity to have the necessary work rectified by a licensed contractor, before assessment of Kieran Bryce's entitlement to a claim.
If the work detailed in the attached Defective Work List is not addressed, the QBCC will consider if Kieran Bryce is entitled to a claim under the Queensland Home Warranty Scheme.
The QBCC may recover payment made on an insurance claim as a debt from the building contractor or a director (including a director at the time the building work was carried out and a director at the time a payment is made by the QBCC), as allowed under the Queensland Building and Construction Commission Act 1991.
In addition, if a claim is approved, it will appear on the register of licensees which is available to the public on the QBCC's website.
(a) on 25 October 2023 the Commission decided not to give a notice to Bace Investments to rectify or remedy the defective work on the ground the application was outside the time in section 72A(4) of the QBCC Act;
(b) the Commission gave to Bace Investments the 15 February 2024 letter confirming it will not be directing Bace Investments to rectify or remedy the defective work on the ground mentioned in the original decision and stating the owner may be entitled to claim under the statutory insurance scheme;
(c) on 14 March 2024 Bace Investments applied for internal review of the 15 February 2024 letter, not the original decision;
(d) on 11 April 2024 the internal reviewer confirmed the original decision not to give to Bace Investments a direction to rectify or remedy the work on the ground mentioned in the original decision. The decision reviewed is the 15 February 2024 letter. It records submissions about the statutory insurance scheme which cannot be considered because the original decision being reviewed is the decision not to direct Bace Investments to rectify or remedy the work; and
(e) on 30 April 2024 Bace Investments made application to the Tribunal to review the internal review decision.
I have decided NOT to give a Direction to Rectify as the Statutory Timeframe has expired.
The letter and attachment of 7 February 2024 is a Notice Defective works list (NODW). The QBCC Act allows for the reviewable decision under S86(e) to be a decision to not give a direction to rectify or remedy.
The NODW is issued to allow the Director of the cancelled and or liquidated company to take relevant and or appropriate action to rectify the alleged defects identified by the affected party if the Director see fit.
Further, it reserves the QBCC ability to recover any debt that maybe incurred at a later point in time if a claim is paid under the Statutory Insurance Scheme.
During the course of the Internal review, the applicant has made reference to the Insurance Claim against the Statutory Scheme, and the fundamental elements that should be considered before accepting a claim. These comments and allegations cannot be considered under this internal review because the decision before me under Section 86(e) is relative to whether a decision to issue a Direction to rectify or remedy or decision to not give a direction.
Pursuant to sections 72(2A) and 72A(4) of the QBCC Act, a DTR cannot be given more than six years and six months after the "building work" is complete or left in an incomplete state.
Section 72A(4) of the QBCC Act provides a direction to rectify cannot be given more than 6 years and 6 months after the building work was completed or left in an incomplete state (the statutory period). However, an extension of time for giving a direction to rectify may be granted by the Queensland Civil and Administrative Tribunal (QCAT) if it is satisfied, upon application by the QBCC, that there are sufficient reasons for extending the time to give the direction.
The complaint item relates to building work that was completed on or about 10 March 2016 when the applicant provided a form 21, final inspection certificate. Accordingly, the final date for the QBCC to be able to give a direction to rectify was on 10 September 2022.
However, I have noted that complaint form was lodged on 9 September 2023 out of statutory time frame. As such, I am satisfied that the time to issue a DTR has expired and a DTR cannot be issued.
(1) This section applies if the commission is of the opinion that:
(a) building work is defective or incomplete; or
(b) consequential damage has been caused by, or as a consequence of, carrying out building work.
(2) The commission may direct the person who carried out the building work to do the following within the period stated in the direction:
(a) for building work that is defective or incomplete - rectify the building work;
(b) for consequential damage - remedy the damage.
(3) In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract).
(4) ...
(5) The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
Example for subsection (5):
The commission might decide not to give a direction for the rectification of building work because an owner refuses to allow a building contractor to return to the owner's home or because an owner's failure to properly maintain a home has exacerbated the extent of defective building work carried out on the home.
(6)-(8) ...
A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.
(a) a reviewable decision within the meaning of subdivision 1, other than a decision that was the subject of an internal review under subdivision 1; or
(b) an internal review decision within the meaning of subdivision 1.
(1) The tribunal's review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.
(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decision-maker for the reviewable decision.
(1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.
(2) A person may apply to the tribunal to exercise its review jurisdiction for a reviewable decision, and the tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary inquiry or investigation under the Ombudsman Act 2001.
(1) In a proceeding for a review of a reviewable decision, the tribunal may:
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
(2) The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision:
(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and
(b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
(1) This section applies if the tribunal considers a proceeding or a part of a proceeding is:
(a) frivolous, vexatious or misconceived; or
(b) lacking in substance; or
(c) otherwise an abuse of process.
(2) The tribunal may:
(a) if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
(b) for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding -
(i) make its final decision in the proceeding in the applicant's favour; or
(ii) order that the party who brought the part before the tribunal be removed from the proceeding; or
(c) make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.
Does the Tribunal have jurisdiction to hear and decide the proceeding?
[35] In considering whether to strike out a proceeding pursuant to s 47 of the QCAT Act, I am satisfied I have the requisite material and have received the necessary assistance from the parties to make a definite and certain conclusion.
[36] The principles in considering whether to exercise the discretion to strike out a proceeding were considered by Chief Justice Barwick in General Industries Inc v Commissioner for Railways. His Honour said:
Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings ... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
[37] The Tribunal is limited in a review of this decision to asking whether that decision was the correct and preferable one. It is not an opportunity for the Tribunal to make a completely different type of decision unrelated to the one under review, for example, that a decision to issue a direction to rectify be made instead. (Citations omitted)
The QBCC, after failing to correctly identify the 'decision' to be reviewed then refused the internal review by considering the delay of 381 days. It says because the IRU application was not correctly made within the requirement of section 86B (i.e. within 28 days) no decision could be made under section 86C. This is clearly wrong. If a review is requested it can be refused on the basis that there is no reviewable decision. This decision, if appropriate, can be reviewed. This is in fact what was done and notice of review rights were provided in that letter. At that point the IRU letter was a reviewable decision. (Citation omitted)
A decision to give a direction to rectify or remedy or not to give the direction is a reviewable decision under s86(1)(e). The decision on the first complaint not to give a direction to rectify may be a decision of this character. A decision to refuse to investigate a second complaint about the same subject matter which, if investigated, may have lead to such a decision, is not.[11]
The original decision of the appellant to reject the claim was a reviewable decision within the meaning of subdivision 1, being within s 86(1)(h), a decision to disallow a claim under the statutory insurance scheme, but it was the subject of an internal review, so it does not satisfy paragraph (a). But as a result of the internal review, there was an "internal review decision within the meaning of subdivision 1" ...
In the present case, the internal reviewer made a decision, so there was an internal review decision for the purposes of s 86(1) and hence within the meaning of subdivision 1. If one reads the words of s 86E(b) literally, there was also an internal review decision for the purposes of paragraph (b) of the definition of "reviewable decision" in s 86E. That decision affected the builder, because of the statutory indemnity in the Act s 71, so it was entitled to apply to the Tribunal for review of that decision under s 87. That was the effect of the decision of the Member. Unless the terms of s 86E(b) are read down in some way, it was correct, and the appeal must be dismissed.[12]
Otherwise, on the material before me, the essential plank in the applicant's case to set aside the other decisions was that he ought to have been given notice of the challenged decisions, which I have identified, in either paragraphs (c) or (d). It is not contended that, under the statute, there was any express requirement for him to be notified. The apparent difficulty that the implication of such a requirement would create is that failure to give notice to a director of a building contractor who may be affected under section 111C would have the consequence of invalidating every decision which is made by the respondent. That would be a startling conclusion. Nevertheless, if that is what is required on the proper construction of the statute, there is no reason to shrink from it.
However, in my view, apart from the fact of the incidence of the liability that is created under section 111C for a director who meets the requirements for that Section to apply, there is no reason to think that the statute should require that, for a valid decision of the kinds identified under paragraphs (c) or (d) to be made, notice must be given to the director of any company building contractor as well as to the company itself.
In my view, the fact of the operation of section 111C is not of itself a sufficient reason to imply that requirement into the statute. It follows that, in the result, none of the decisions that are challenged on the basis of the ground of absence of procedural fairness are reviewable under section 20 for the reason that the respondent was required to give the applicant notice of those decisions.[15]
This provision allows the QBCC to recover the insurance debt from the directors personally, thereby displacing the common law separate entity principle. This applies notwithstanding the company may have been deregistered. The decision as to whether or not to recover the insurance debt is made after the scope of works decision and depends upon whether the person from whom recovery is sought was a director when the relevant building work was carried out and when the payment under the scheme was made.[17] (Citation omitted)
I do not accept the submissions of the QBCC to the effect that the Tribunal on review needs to be satisfied that the original decision was a 'reviewable decision'. I agree that this would be relevant if the Tribunal was reviewing the original decision, but it is not. The Tribunal is reviewing the internal review decision. The internal review decision is itself a "reviewable decision" within the meaning of s 86E(b).
It follows, in my view, that whether the original decision was or was not properly categorised as a reviewable decision is not relevant. The decision was categorised as a reviewable decision and was the subject of an internal review. The internal review decision is a reviewable decision and the Tribunal has jurisdiction to review it. It follows that the application to strike out should not be allowed on the basis the Tribunal lacks jurisdiction. That, however, is not the end of the matter.
Section 24(1) of the QCAT Act begins with the words 'In a proceeding for a review of a reviewable decision...'. The section assumes that the tribunal has jurisdiction in a particular review proceeding. The jurisdiction of a court, or in this case a tribunal, is not to be confused with its powers. Where, as here, an application to review a decision not to issue a direction to rectify is not filed within 6 years and 6 months of the completion of the building work and where, as here, there is no application by the commission to extend the time limit, the tribunal has no jurisdiction to review the decision. Section 24(2)(b) cannot be relied upon to create a jurisdiction that does not exist.[24] (Citation omitted)
... simply prevents the QBCC from sending a direction to rectify after expiry of the period in s 72A(4) unless an extension of time is sought by the QBCC and granted by the Tribunal. Once the decision to issue a direction to rectify is viewed as separate to the direction itself, s 24(2)(b) of the QCAT Act can properly come into play to deem any substituted decision to have been made on the date of decision under review which is in this case within the 6-year 6-month time frame.[26]
(See also Tanna v Queensland Building and Construction Commission[27]).
The Tribunal is limited in a review of this decision to asking whether that decision was the correct and preferable one. It is not an opportunity for the Tribunal to make a completely different type of decision unrelated to the one under review, for example, that a decision to issue a direction to rectify be made instead.
The Applicant submits that it would be in line with the objects of the QCAT Act for the tribunal to proceed to hear and determine the Review Application on its merits given the questionable approaches taken by the decision-maker in relation to the decision under review to ensure fairness and consistency in decisions by the Commission.
Decision made by Peter Doolan, Building Inspector on 15 February 2024 to NOT issue a Direction to Rectify (DTR) under Section 72 of the Queensland Building and Construction Commission Act 1991 (the Act)
(a) the 15 February 2024 letter was given outside of, and contrary to, legislation;
(b) the letter is invalid because it retrospectively imposes a responsibility on Bace Investments for rectification of work; and
(c) the Commission decided by default Bace Investments is not liable for rectification of work.
As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners where he says: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (1949) 78 CLR, at p 84, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
[13] [1990] HCA 33, [32].
[27] [2023] QCATA 81, [49].
[28] [1964] HCA 69; (1964) 112 CLR 125, [10].
[29] (1949) 78 CLR 62, 91.
Bace Investments Pty Ltd
Queensland Building and Construction Commission [2025] QCAT 442
ACN 148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission & Anor [2024] QCATA 109
Body Corporate for Jade Apartments CTS40720 v Lee Crocker v Queensland Building and Construction Commission [2020] QSC 24
Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] QCA 134
Jorg & Anor v Queensland Building and Construction Commission & Anor [2021] QCATA 134
JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502
Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71
Stephenson v Queensland Building and Construction Commission [2017] QCAT 212
Tanna v Queensland Building and Construction Commission [2023] QCATA 81
TCQ Pty Ltd ATF Midgley Family Trust v Queensland Building and Construction Commission [2023] QCAT 485
The Body Corporate for Jade Apartments CTS 40720 v Queensland Building and Construction Commission [2016] QCAT 445
Vytla v Queensland Building and Construction Commission [2024] QCAT 346
(1964) 112 CLR 125
(1949) 78 CLR 62