CTP Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber v Queensland Building and Construction Commission [2020] QCAT 307

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

CTP Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber v Queensland Building and Construction Commission [2019] QCAT 409

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

C Low, Legal Officer, Queensland Building and Construction Commission

• [1] CTP Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber installed a hot water unit ('the HWU') at a residential property in Southport, Queensland at the request of the property's owner.
• [2] Some months after the HWU was installed the property owner complained to the Queensland Building and Construction Commission ('the Commission') about the work performed by CTP.
• [3] On 18 July 2018, and after inspecting the HWU, the Commission issued a direction to rectify building work to CTP under s 72 of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act'). Relevantly, a direction to rectify is a reviewable decision before the Tribunal. The direction to rectify required CTP to rectify the defective work by a certain date ('the rectification period').[1]
• [4] CTP did not apply to the Tribunal to review the Commission's decision to issue a direction to rectify nor did it conduct any physical work on the HWU during the rectification period.
• [5] On 3 September 2018, the Commission made a decision that building work undertaken at the direction of the Commission is not of a satisfactory standard.[2] Further to that, the Commission issued an infringement notice to CTP for an offence under s 73 of the QBCC Act on the basis that CTP has failed to comply with the direction to rectify. CTP later paid the amount owing by the infringement notice to State Penalties Enforcement Registry.
• [6] CTP now applies to the Tribunal to review the Commission's decision of 3 September 2018 and seeks final orders that the Commission's decision be set aside and by way of a substituted decision the Tribunal order that the direction items were rectified to a satisfactory standard.[3]
• [7] The review application proceeded to a telephone hearing in Brisbane. The representatives for the parties and the parties' witnesses gave evidence at the Tribunal hearing by telephone.[4]

• [8] The present matter before me is CTP's application to review the Commission's decision of 3 September 2018 that building work undertaken at the direction of the Commission is not of a satisfactory standard. This requires me to conduct a fresh hearing on the merits in exercising the Tribunal's review powers under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('the QCAT Act').[5]
• [9] In conducting a review, the Tribunal effectively stands in the shoes of the Commission decision-maker exercising the same powers under the QBCC Act, to produce the correct and preferable decision.[6] It is not necessary for the applicant to establish any error in either the process or the reasoning that led to the decision and there is no presumption that the reviewable decision is correct.[7]
• [10] The Commission, as the respondent decision-maker, has a duty to assist the Tribunal so that it can make its decision. The Commission also has a model litigant role.[8] In assessing the evidence, the Tribunal on review must be satisfied to the required civil standard on the balance of probabilities that certain factual matters are proven.[9]
• [11] The Tribunal is required to consider the material that was before the decision-maker, commonly referred to as the 'section 21 material', and any fresh or new material presented by the parties.[10]
• [12] In the present matter, the Tribunal is assisted by a hearing brief prepared by the Commission that contains a copy of the applicant's material and the Commission's statements of evidence to be relied upon in the review hearing.[11]

• [13] CTP seeks a review of the Commission's decision made on 3 September 2018 that building work undertaken at the direction of the Commission is not of a satisfactory standard ('the decision').
• [14] Although there is no specific section under the QBCC Act that refers to the Commission's power to make the decision, s 86(1)(f) and s 87, when read together, clearly provide that the Commission is empowered to make the decision that is now being reviewed.
• [15] In the present matter, the Commission contends and I accept, that a review of the decision pursuant to s 86(1)(f) of the QBCC Act is limited to circumstances where the Commission has made a decision that building work undertaken at the direction of the Commission is or is not of a satisfactory standard.[12]
• [16] Relevantly, on 18 July 2018 the Commission issued a direction to rectify to CTP for the following non-structural defective work:

The installation of the new hot water unit into the existing services cupboard is non-compliant with AS3500.4 (Plumbing Code of Australia) and the Queensland Plumbing & Wastewater Code in that water from the HW unit and AC to the dwelling is being discharged directly into the safe tray resulting in pooling of water within the safe tray which is wetting timber packers and causing rusting to occur - pertains to item 1 on QBCC complaint form.[13]

• [17] The power to issue a direction to rectify work is discretionary. Under s 72, the Commission may direct a person who has carried out building work that is defective or incomplete to rectify the building work. In deciding to give a direction under s 72, the Commission may take into consideration all of 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.[14] Further to that, 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.[15] The Commission's Rectification Policy is also relevant to the exercise of discretion and the decision to issue a direction to rectify under s 72 of the QBCC Act.
• [18] In the present matter, CTP contends that it did complete building work during the rectification period. CTP contends that the Commission extended the rectification period or time for compliance with the direction to rectify from 20 August 2018 to 30 August 2018.[16]
• [19] In the oral hearing, Ben Scerri, Director submitted on behalf of CTP that the homeowner refused to allow CTP access to rectify the building work. Mr Scerri submitted that he presented the homeowner with solutions and made attempts to contact the homeowner to arrange access. Mr Scerri referred the Tribunal to

s 72AA(2) of the QBCC Act and argued that a person must not obstruct another person from rectifying the building work. Further to that Mr Scerri argued that the building work was obstructed by the homeowner and CTP should not be penalised by the homeowner who did not grant them access to the property. Mr Scerri argued that the building work was of a satisfactory standard and stated that although CTP did not make the HWU compliant to start with he tried to do everything right and CTP should not be held responsible.

• [20] Mr Scerri's evidence that he presented the homeowner with solutions is important because although CTP did not perform any physical work on the HWU during the rectification period, CTP contends that it did undertake building work. In response, the Commission submits that if there is no building work undertaken such as physical work at the direction of the Commission, there can be no reviewable decision. The Commission invites the Tribunal on review to make a preliminary finding as to whether the works, if any, were carried out at the direction of the Commission.[17]

Preliminary issue - is there a reviewable decision?

• [21] The Commission contends and I accept that the Tribunal's jurisdiction is limited to a consideration of whether building work was undertaken at the direction of the Commission within the period of compliance specified in the direction to rectify.[18] That said, the Commission contends the Tribunal is required to make a preliminary finding as to whether the works, if any, were carried out at the direction of the Commission. The Commission submits that where there is no building work undertaken at the direction of the Commission, there can be no decision whether same is or is not of a satisfactory standard.[19]
• [22] The Commission's preliminary issue of whether there is a reviewable decision was previously considered by the Tribunal prior to the hearing of CTP's review application.[20] Relevantly, on 25 October 2019 the Tribunal dismissed the Commission's application for miscellaneous matters (to dismiss CTP's review application) filed on 13 September 2019 having found that there is an arguable case that CTP undertook building work in response to the direction to rectify. Notwithstanding, the Commission now asserts in the present matter that the Tribunal made its earlier decision without the benefit of evidence and only relying upon written submissions filed by the parties.[21] In the present matter the Commission maintains its position that the application to review should be dismissed on the basis that the decision of 3 September 2018 is not a decision that falls within the ambit of s 86(1)(f) of the QBCC Act.[22]
• [23] In addressing the preliminary issues, the Commission identifies a number of questions to be answered by the Tribunal as to what work was 'directed' by the Commission; whether any building work was undertaken by CTP during the rectification period in response to the direction to rectify; and what is the rectification period. If I find that CTP did undertake building work during the rectification period, the Commission contends that the building work undertaken at the direction of the Commission was not of a satisfactory standard.

• [24] I find that the defective work to be rectified by CTP is the work outlined in the direction to rectify issued by the Commission on 18 July 2018.[23] I accept the Commission's contention that the work 'directed' by the Commission was the satisfactory rectification of the defective work or a resolution acceptable to both CTP and the homeowner.[24]
• [25] CTP does not dispute that the installation of the HWU was defective and that the direction to rectify issued by the Commission required CTP to rectify the defect. Mr Scerri gave evidence at the hearing on behalf of CTP about the installation of the HWU and the direction to rectify. Mr Scerri accepted, when questioned, that rectifying the defect requires CTP to have undertaken physical work. Mr Scerri stated that the Commission suggested various methods to rectify the installations that were noncompliant.
• [26] When questioned about the installation of the HWU and whether CTP knew at the time of completing the work that the work (on the HWU) was noncompliant, Mr Scerri stated that before completing the work for the homeowner he pointed out that the existing work, prior to CTP installing the HWU, was not compliant in that the waste pipe from the existing HWU was non-compliant. Mr Scerri stated that the homeowner refused to allow CTP to do the work necessary to make the HWU compliant because he, the homeowner, did not want to pay for the work. Mr Scerri stated that the homeowner was aware of the requirements and stated that in hindsight he (Mr Scerri) should have walked away but instead he did the work for the homeowner as requested.
• [27] It is open for me to find that CTP was required to rectify the defective work as identified in the direction. CTP did not exercise its review rights to review the direction to rectify decision. Further to that, at the oral hearing of the application, Mr Scerri accepted when cross-examined by the Commission that the direction to rectify required CTP to rectify the defects and when asked if he understood from the direction that immediate action was required Mr Scerri replied, 'Yes'.

• [28] The Commission says that CTP was required to comply with the direction to rectify by 20 August 2018 being the date stipulated in the direction to rectify dated 18 July 2018. The Commission acknowledges that there is a dispute as to whether the rectification period was extended by the Commission to 30 August 2018 on the basis of an email sent to CTP by Darren Girling, Building Inspector for the Commission, purporting to approve an extension of time to 30 August 2018.[25] The relevant extract from the email dated 23 August 2018 sent by Mr Girling to CTP is as follows:

...QBCC has taken into consideration all your circumstances and in best interests of achieving a desirable outcome for everyone involved QBCC has approved an EOT for CTP to comply with the DTR to the 30th August 2018.

After which time if the matter has not been resolved by way of agreement or rectification works QBCC will issue a FTR and infringement notice. This is on the basis that all attempts by CTP have been made to gain access to the premises and the owner grants reasonable access within the timeframe.[26]

• [29] The Commission concedes that there were discussions between Mr Girling and Mr Scerri as to a potential extension of time. The Commission says, however, that CTP did not request an extension of time either verbally or in writing before 20 August 2018. Further to that, the Commission says that Mr Girling did not have the power to grant an extension to the direction period under s 72B of the QBCC Act and Mr Girling's purported extension to the direction period was of no effect.
• [30] The Commission's contentions raise a question as to the validity of the extension of time that involved the exercise of the Commission's power under s 72B of the QBCC Act. As held by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[27] an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon 'whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition'.[28] The High Court said:

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. ...[29]

• [31] In the present matter, I do not consider that Parliament would intend to render void every purported extension of time for a contractor to comply with a direction to rectify properly issued by the Commission under s 72 of the QBCC Act in circumstances where, such that exist in this matter, the Commission considers that the extension is desirable for everyone involved to extend the time for compliance.
• [32] The purpose of the QBCC Act is, amongst other things, to regulate the building industry and to achieve a reasonable balance between the interests of building contractors; and consumers and to provide remedies for defective building work.[30]
• [33] In the present matter, the Commission properly issued a direction to rectify building work to CTP on 18 July 2018. It is apparent from the email sent by Mr Girling dated 23 August 2018 to CTP that Mr Girling was satisfied that the extension was, as stated, 'a desirable outcome'. The Commission concedes that there were discussions between Mr Girling and CTP about the extension of time. Indeed, the unchallenged evidence of Mr Scerri on behalf of CTP is that there were emails and telephone calls exchanged between Mr Girling and Mr Scerri during the period from 18 July 2018 when the direction to rectify was issued to 23 August 2018 when the rectification period was purportedly extended by the Commission.[31] Further, the Commission does not dispute that by email dated 23 August 2018, CTP was notified that the time for compliance with the direction to rectify was extended. It is open for me to find on the evidence that the rectification period was extended to 30 August 2018.
• [34] I do not consider it necessary to determine whether, as contended by the Commission, the Commission's purported extension of the rectification period was of no effect. Here, the Tribunal in exercising its review functions is required to consider the matter afresh and to arrive at the correct and preferable decision. The Tribunal does not have any broad discretionary powers or 'general jurisdiction' as resides in the Supreme Court. The Tribunal's review jurisdiction is enlivened because CTP has filed an application to review the Commission's decision of 3 September 2018 pursuant to

s 86(1)(f) of the QBCC Act.[32]

• [35] The Tribunal is required to conduct the review in accordance with the QCAT Act and the enabling Act and, amongst other things, may perform the functions conferred on the Tribunal by the QCAT Act or the enabling Act under which the reviewable decision being reviewed was made; and has all of the functions of the decision-maker.[33] The orders that may be made by the Tribunal on review, as provided under

s 24 of the QCAT Act, are to confirm or amend the decision; set aside the decision and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[34]

Was any building work undertaken by CTP during the rectification period?

• [36] CTP says that it attended to the following during the rectification period:

(b) Providing professional advice to the homeowner regarding the options available to rectify the alleged defect;

(c) Seeking instructions from the homeowner on his preferred decision;

(d) Making offers to carry out the work discussed and seeking access albeit unsuccessfully, to the homeowner's property; and

(e) Attending the homeowner's property to inspect the HWU, take measurements and to work out solutions suitable for rectification.[35]

• [37] CTP relies on an email sent to the homeowner dated 15 August 2018 by which it proposed three solutions to finalise the HWU installation.[36] CTP also relies on, amongst other things, an email sent to the homeowner dated 26 August 2018 requesting access to the property.[37]
• [38] Turning firstly to the preliminary issue raised by the Commission as to whether any building work was undertaken by CTP at the direction of the Commission. 'Building work' is defined under Schedule 2 of the QBCC Act and includes, amongst other things, the preparation of plans or specifications for the performance of building work, or contract administration carried out by a person in relation to the construction of a building designed by the person.[38] Further to that, as submitted by the Commission, Schedule 2 of the QBCC Act defines 'undertake to carry out' to mean enter into a contract to carry out the work, submit a tender to carry out the work or make an offer to carry out the building work.
• [39] The Commission whilst acknowledging that the definition of building work is broad submits that only physical work on the HWU could be capable of rectifying the physical defects.[39] The Commission raises the same issues and maintains the same position previously advanced in its application to dismiss the review proceeding that was considered by the Tribunal on 25 October 2019. As discussed above the Tribunal found, amongst other things, that it is arguable that CTP undertook building work in response to the direction to rectify and dismissed the Commission's application. The QBCC did not exercise its appeal rights to challenge the Tribunal's decision nor its findings made. That said, I acknowledge the Tribunal's findings about whether CTP undertook building work in response to the Commission's direction to rectify. Relevantly, the Tribunal found that it is arguable that CTP undertook building work during the rectification period.
• [40] Notwithstanding the Tribunal's earlier findings, the Commission's submission as to whether there is a reviewable decision on the basis that building work was not undertaken, misapprehends the Tribunal's review function. The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act.[40] In this matter, the Commission does not dispute that the decision of 3 September 2018 was properly made under the QBCC Act and that CTP was entitled to bring the application to review the decision. Further to that, it is a matter for the Tribunal to determine its own jurisdiction. Relevantly, s 18 of the QCAT Act provides that the Tribunal may exercise its review jurisdiction if a person has, under the QCAT Act, applied to the Tribunal to exercise review jurisdiction for a reviewable decision. As discussed above, the Tribunal on review is required to consider all of the evidence afresh exercising the same powers as the Commission under the QBCC Act to arrive at the correct and preferable decision. I find that there is a reviewable decision before me properly made under the QBCC Act on 3 September 2018 and CTP is entitled to review the decision, an application to review having been properly filed in the Tribunal within the required time.

Was any building work undertaken at the direction of the Commission of a satisfactory standard?

• [41] CTP relies on emails sent to the homeowner about the defective work and Mr Scerri's evidence that he engaged in discussions with Mr Girling of the Commission about the defective work. CTP also says, and I accept, that it attended the property during the rectification period to take measurements and to assess the defective work. CTP's submission about attending the homeowner's property is supported by Mr Scerri's oral evidence given at the hearing.
• [42] I accept Mr Scerri's evidence that he sent an email dated 15 August 2018 to the homeowner offering a number of solutions in an attempt to reach a resolution about the defective work. I do not accept, however, Mr Scerri's evidence that Mr Girling gave CTP advice or instructions about how to rectify the defective work.
• [43] At the hearing, Mr Scerri was unable to direct me to any emails or correspondence that he said prove that Mr Girling gave CTP advice or instructions about how to rectify the defective work.
• [44] At the oral hearing, Mr Girling gave evidence to the effect that there were several conversations between himself and Mr Scerri about the defective work but disputed when questioned that he would ever suggest that work be done in a certain way to rectify the defective work. Mr Girling's evidence that the Commission does not give advice or make recommendations about how to rectify the work is supported by Mr Girling's email sent to CTP dated 13 August 2018. In the Commission's email to CTP dated 13 August 2018, Mr Girling advises Mr Scerri that the Commission does not give instructions on how to rectify or comply with the defective work as detailed in the direction to rectify.[41] I accept Mr Girling's evidence that he did not give Mr Scerri or CTP advice or make recommendations about how to rectify the defective work.
• [45] I am not satisfied based on the evidence before me that CTP has undertaken building work at the direction of the Commission to a satisfactory standard. I accept Mr Scerri's evidence that CTP provided the homeowner with solutions to reach a resolution about the defective work. I am not satisfied, however, based on the evidence before me, that the steps taken by CTP such as, as contended by CTP, undertaking review of the codes, providing professional advice and presenting solutions to the homeowner, seeking instructions, making offers and attending the property to take measurements and to assess the work, mean that the building work the subject of the direction to rectify has been satisfactorily rectified.
• [46] On a fair reading of CTP's email dated 15 August 2018 sent to the homeowner, the 'solutions' identified by CTP would require the homeowner to, as stated by CTP in the email, incur charges for extra work, or would result in supply issues to the hot water or require the homeowner to arrange for work to be done by a new installing plumber.[42] Further, CTP's email dated 15 August 2018 does not request access by the homeowner to the property to perform any work.
• [47] Although CTP requested access to the property from the homeowner by email dated 26 August 2018, CTP stated in the email that access to the property is required to confirm measurements and amongst other things and as stated in the email that should installation of the HWU not be achievable, CTP is 'happy to look at other requests that the client is willing to accept including removal of the [HWU] and refund of payment made for plumbing work'.[43]
• [48] It is open for me to find on the evidence that CTP's offers of solutions to the homeowner were, as contended by the Commission, vague and equivocal suggestions of rectification methods.[44] Further to that, the building work remained defective in that the HWU remained noncompliant with Australian Standards as at 30 August 2018, the date by which CTP was to rectify the defective work. The unchallenged evidence of the homeowner is that he arranged for another plumber to replace the existing HWU in or about March 2019.[45]
• [49] I have carefully considered CTP's submission that it installed the HWU at the instruction of the homeowner and that CTP has been denied natural justice because of the homeowner's refusal to grant CTP access to the property to enable rectification. Although, I have some sympathy for CTP's submission that it installed the HWU at the instruction of the homeowner, this does not excuse CTP as a licensee from its responsibility to comply with relevant standards and building codes. Relevantly, s 72 of the QBCC Act deems CTP to be responsible for the work performed and the Commission issued a direction to CTP to rectify the work on 18 July 2018.
• [50] As discussed above, CTP did not exercise its review rights in relation to the direction to rectify decision of 18 July 2018. Indeed, the evidence of Mr Scerri on behalf of the CTP is that CTP accepts the work performed including the installation of the HWU did not comply with the relevant standards. Further, I am not satisfied that the homeowner refused CTP access to the property such that the works could not be rectified. Mr Scerri gave evidence at the hearing that the homeowner granted CTP access to the property in August 2018 and on 13 August 2018, Mr Scerri inspected the HWU. There is also evidence before me that the homeowner was willing to give CTP access. In an email sent by the homeowner dated 29 June 2018 to Mr Scerri the homeowner states, 'we can grant you access to the unit anytime next week...'.[46]
• [51] I am satisfied and find accordingly that CTP has had sufficient time to attend to rectification of the defective work, an extension of time to rectify the work having been granted by the Commission to 30 August 2018.
• [52] I have considered CTP's submission that the Commission reopened the homeowner's complaint after he amended the date that he (the homeowner) became aware of the non-compliance thereby meeting the timeframe for lodging a complaint.[47] As discussed above, the Commission's decision to accept the homeowner's complaint and to issue a direction to rectify on 18 July 2018 is not under review in the present matter. More importantly, the time to review the direction to rectify decision has expired. A review of the decision to issue a direction to rectify under s 72 of the QBCC Act would have involved a consideration of relevant matters such as whether it was unfair to CTP to give the direction.
• [53] The correct and preferable decision having considered all the evidence and submissions before me is that building work undertaken at the direction of the Commission is not of a satisfactory standard. I order that the Commission's decision of 3 September 2018 is confirmed.

[3] Hearing Brief ('Exhibit 1'), Response to miscellaneous matters filed by the applicant dated 2 June 2020, Part 11. At the oral hearing, CTP abandoned its application for further orders that the demerit points incurred as a result of the direction to rectify be reversed and the fine paid be refunded.

[4] Tribunal Directions dated 21 May 2020.

[7] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[9] See Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-362.

[10] The decision-maker must file a written statement of the reasons and any material relevant to the review pursuant to s 21(2) of the QCAT Act.

[12] Exhibit 1, Written submissions of the respondent, Tab 12, p 2.

[20] CTP v Plumbing and Maintenance Pty Ltd t/as Charlie the Plumber v Queensland Building and Construction Commission [2019] QCAT 409; see Exhibit 1.

[35] See Exhibit 2. Mr Scerri gave oral evidence at the hearing about his attendance on 13 August 2018 at the homeowner's property to inspect the HWU.

[38] QBCC Act, Schedule 2 (definition of 'building work' paras (f) and (fa)).

[40] See JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502.