Body Corporate for Riverside Hamilton v Queensland Building and Construction Commission & Anor [2020] QCAT 65

[6] Devine seek to have the application for review struck out on two grounds:

• (a) That the Body Corporate did not comply with s 71J of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act'); and

• (b) That the work the subject of the proceeding has been rectified.

[7] These grounds can be dispensed with briefly.

[8] Section 71J of the QBCC Act relevantly provides:

(1) A consumer may ask the commission to give a direction to rectify building work the consumer considers is defective or incomplete.

...

(4) Also, a request under subsection (1) or (2) must be made within 12 months after the person becomes aware of -

(a) for a request under subsection (1) - the building work the person considers is defective or incomplete; ...

[9] On 12 February 2018, the Body Corporate made a complaint to the QBCC regarding defective building work.

[10] On 18 March 2018, the Body Corporate provided the QBCC with a list of 10 alleged items of defective building work. The list includes the dates the problems were first noticed. Those dates range from 1 June 2016 to 26 March 2017. In particular, there are five items listed which were first noticed after 12 February 2017, being within the 12 month period prior to the Body Corporate making a complaint to the QBCC.

[11] It seems to me that there is a factual issue as to whether the Body Corporate became aware of some or all of the defective items within the 12 month period referred to in s 71J(4)(a). This is a matter which should be determined after a hearing.

[12] Further, s 72 of the QBCC relevantly provides:

(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).

[13] A complaint under s 71J is not a pre-condition to the QBCC's power to issue a direction to rectify. I agree with the observations of Member Hughes in Urban Homes Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 131, [37]-[39] (footnotes omitted):

I am not satisfied that these provisions or the relevant policy require the Commission to act only upon a complaint from a home owner. The use of the word "may" in section 71J QBCC Act contemplates a consumer asking the Commission to issue a Direction, but does not fetter the Commission's express power conferred by s 72 QBCC Act. This is because the power to require rectification is drafted in broad terms to reflect its protective intent and should be read accordingly. Within this context, s 71J QBCC Act merely recognises that in practical terms, a consumer complaint may be the catalyst or primary source of information for the Commission to act.

To read the making of a complaint as a legal prerequisite into the QBCC Act is contrary to the Act's objects of providing remedies for defective building work and ensuring the maintenance of proper standards in the industry. It would undermine those objects and be contrary to community safety to prevent the Commission from issuing a Direction, because an inspector raised an issue not within the actual complaint. It would also require consumers to acquire technical expertise to ensure all possible issues are properly captured, making the complaint process more onerous and a potential barrier to reporting issues.

Although a complaint may focus an inspector's attention, it serves no purpose or benefit to restrict a Direction to the content of the complaint. It would mean inspectors would effectively be 'turning a blind eye' to other items that may be observed during the inspection. Moreover, there is no legislative basis for this restrictive interpretation. Similarly, although the relevant policy requires that the consumer "should not delay making their application for a direction", the focus is timeliness once a complaint is made, rather than requiring a complaint. Of course, whether it is fair to issue a Direction for an item not specified in the complaint will depend on the circumstances.

[14] Whether it is reasonable to issue a direction to rectify in the present circumstances is a matter which should be determined after a hearing.

[15] The rectification of defective works does not preclude a direction to rectify being issued. I agree with the observations of Member Gardiner in Townsend v Queensland Building and Construction Commission [2019] QCAT 239, [71], [77]-[79]:

There may be no utility in remaking the decision. There is nothing for Mr Townsend to remedy. It is a direction that can never be complied with. Mr Townsend no longer has responsibility for the block wall.

...

On balance, I accept that there is no real reason why the s 72 process should not be the applied law. The QBCC Act covers the issue. The QCAT Act, while also applicable is the Tribunal Act, is not the Industry Act and on general principles, the more specific Act should prevail.

Should the outcome be that Mr Townsend's reputation as a builder go forward without a recorded blemish, just because the remediation has occurred and responsibility is no longer his for defective workmanship?

On balance, I do not believe this is a fair outcome. What is fair in the circumstances is to record that on this occasion, Mr Townsend's work was defective, even though a direction to rectify is of no effect.

[16] Again, whether it is reasonable to issue a direction to rectify in the present circumstances is a matter which should be determined after a hearing.

[17] I decline to strike out the application for review.

[18] Devine seeks to join its subcontractors, the Trustee for Profire (Qld) Unit Trust, trading as Profire (Qld) Pty Ltd ('Profire') and Ash Passive Fire Solutions Pty Ltd ('Ash Passive'), as respondents to the proceeding.

[19] Section 42 of the Queensland Civil and Administrative Tribunal Act 2009 ('the QCAT Act') provides for the joinder of parties as follows:

42 Joining parties

(1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that--

(a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or

(b) the person's interests may be affected by the proceeding; or

(c) for another reason, it is desirable that the person be joined as a party to the proceeding.

(2) The tribunal may make an order under subsection (1) on the application of a person or on its own initiative.

[20] While Devine was joined as a respondent because one potential outcome of the application for review is that a direction to rectify could be issued against it, the same cannot be said of the subcontractors. If a direction to rectify was issued against Devine, it is the responsibility of Devine to comply with any such direction, not the subcontractors. I agree with the observations of Senior Member Oliver in Queensland Building Services Authority v Last Laugh Pty Ltd [2011] QCAT 263, [17] (footnote omitted):

Last Laugh contends, as it has from the very beginning of this matter that the responsibility for the defective work lay with its sub-contractors and not with it. However, it is now well established that it is the principal contractor who remains liable under the QBSA Act to rectify any defective building work the subject of a Direction to Rectify.

[21] Whether compliance with any direction to rectify would require Devine to have recourse to the services of Profire and/or Ash Passive is a matter for Devine. I have no knowledge of the contractual relations between Devine on the one hand, and Profire and Ash Passive on the other.

[22] While I accept that Profire and Ash Passive may have specialist knowledge of the works in question, this is not a basis for joinder of a party. Proceedings would fast become unwieldy if every person with relevant knowledge of a dispute was joined as a party, as opposed to giving evidence as a witness. The more conventional course would be for Devine to lead evidence from one or both subcontractors if it so wishes. I note that the Tribunal has powers under s 63 and s 97 of the QCAT Act to require the production of documents and the attendance of witnesses at a hearing.

[23] I decline to join Profire and Ash Passive as parties to the proceeding.

[24] The application for miscellaneous matters filed on 4 November 2019 is dismissed.