Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342; 15 ALD 671

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16

Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Skoljarev v Australian Fisheries Management Authority

[1995] FCA 1732; (1995) 133 ALR 690; 39 ALD 517

• [1] Interlink Developments Pty Ltd (Interlink) has applied to the Tribunal for a review of the decision by the Queensland Building and Construction Commission (QBCC) on internal review, to issue a direction to rectify to Interlink pursuant to s 72(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) (the decision).
• [2] The internal review decision was made on 1 June 2017. The QBCC Act in force when the decision was made was the reprint current as at 1 March 2017. It is this version of the QBCC Act that applies to this review.[1]

• [3] On 18 December 2014 the homeowner (the owner) entered into a residential building contract with Interlink (formerly Urban Homes Pty Ltd) for the construction of a two storey dwelling in Birkdale. Mr Brian Maloney is the sole director of Interlink. The works commenced on 28 February 2015.
• [4] On 2 December 2015 Interlink issued the owner with a certificate of practical completion for the property. Interlink and the owner signed off on a final quality check on 15 December 2015 and a Form 21 Final Inspection Certificate was issued on 17 December 2015.
• [5] On 22 November 2016 the QBCC received a residential construction work complaint from the owner which listed 22 items of alleged defective building work carried out by Interlink at the property.
• [6] On 7 December 2016 the owner sent Interlink a list of the alleged defects and requested they be rectified.
• [7] On 27 February 2017 Mr Robert Murphy, a building inspector employed by the QBCC, attended the property and carried out a site inspection. Mr Murphy completed an initial inspection report on 6 March 2017.
• [8] On 10 March 2017 the QBCC issued a Direction to Rectify and/or Complete to Interlink (First Direction). On 31 March 2017 Interlink lodged an internal review application in respect of the First Direction.
• [9] On 1 June 2017 the internal review decision was made to uphold the First Direction.
• [10] On 6 June 2017 the QBCC issued a Direction to Rectify and/or Complete to give effect to the internal review decision (Second Direction). The Second Direction listed 13 items which required rectification. The work was to be completed by 8 July 2017.
• [11] On 6 July 2017 Mr Maloney made contact with the owner requesting a time for the painter to attend. An extension of time in which to comply with the directions to rectify was applied for on 29 June 2017 and again on 6 July 2017 but was refused by the QBCC.
• [12] On 12 July 2017 Interlink filed an application to review the internal review decision of 1 June 2017. The Tribunal granted leave for Interlink to file the application out of time.[2]
• [13] The QBCC advised Interlink by letter dated 13 July 2017 that the Second Direction, items 1 to 13, had not been satisfactorily rectified.
• [14] The QBCC wrote to Interlink on 4 September 2017 advising that a claim had been made under the Queensland Home Warranty Scheme for defective work at the property and that an amount of $42, 175.82 had been approved.
• [15] On 16 November 2917 a reinspection of the work the subject of the direction to rectify was undertaken by Mr Murphy of the QBCC for the purpose of assessing what works should comprise a scope of works with respect to the owner's claim for assistance under the statutory insurance scheme. A reinspection report was completed, dated 23 November 2017.

• [16] Section 87 of the QBCC Act provides that a person affected by a reviewable decision may apply to the Tribunal for a review of the decision. By section 86(1)(e) a "reviewable decision" includes "a decision to give a direction to rectify or remedy or not to give the direction". A "direction to rectify or remedy" is defined to mean a direction given under s 72(2).[3]
• [17] A person who is given notice of a reviewable decision may apply for internal review of that decision.[4] The internal reviewer is required to make a new decision within 28 days after the internal review application was made or a longer period if agreed by the applicant. That decision when made then becomes the reviewable decision.[5] Although the application for review was filed late, the decision was still reviewable given that none of the circumstances in s 86F of the QBCC Act applied.
• [18] The QBCC's power to issue a direction to rectify defective building work is contained in s 72. Section 72 is within Part 6 of the QBCC Act which deals with the rectification of building work. One of the objects of the QBCC Act is to "provide remedies for defective building work".[6] Part 6 seeks to achieve that object in a number of ways, including by dispute resolution processes[7] and the power to require the person who carried out the building work to rectify it[8] (including imposing a penalty for a failure to comply with a direction).[9]
• [19] The QBCC has a discretion whether to give a direction. In exercising its discretion, the QBCC may take into consideration "all the circumstances it considers are reasonably relevant".[10] The exercise of the discretion in s 72(2) is conditioned on the QBCC forming an opinion that, relevantly, building work is defective or incomplete.[11] "Building work" includes the construction of a building.[12] "Defective" is defined to mean "in relation to building work, includes faulty or unsatisfactory."[13] A direction cannot be given more than six years and three months after the building work to which the direction relates, was completed.[14]
• [20] Section 72 provides:

72 Power to require rectification of building work and remediation of consequential damage

(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) The period stated in the direction must be at least 28 days unless the commission is satisfied that, if the direction is not required to be complied with within a shorter period -

(a) a substantial loss will be incurred by, or a significant hazard will be caused to the health or safety of, a person because of the defective or incomplete building work or consequential damage; or

(b) the defective or incomplete building work, or consequential damage, will cause a significant hazard to public safety or the environment generally.

(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) The commission may, before it considers whether building work is defective or incomplete, require the consumer for the building work comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work.

(7) In subsection (3), a reference to a contract for carrying out building work includes a reference to a domestic building contract for managing the carrying out of building work.

(8) To remove any doubt, it is declared that the commission may act under this section in relation to consequential damage whether or not an owner or occupier has made a request under section 71J.

• [21] Section 72A sets out limitations on the power to issue a direction to rectify or remedy and provides:

s 72A Powers and limitations of directions to rectify or remedy

(1) A direction to rectify or remedy may be given to more than 1 person for the same building work.

(2) A direction to rectify or remedy may require that a building, or part of a building, be demolished and building work be recommenced if, in order to rectify building work, it is necessary to do so.

(3) If a direction to rectify or remedy is given to a person who is not currently licensed to carry out the required work, the person must have the work carried out by a licensed contractor.

(4) A direction to rectify or remedy cannot be given more than 6 years and 3 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.

(5) The fact that a direction is given under section 72(2) does not prevent the commission from taking additional action against a person under this Act for the building work to which the direction relates.

• [22] Under s 71J a consumer may ask the QBCC to give a direction to rectify building work the consumer considers is defective or incomplete. The person making the request must give the QBCC details of, relevantly, the building work the consumer considers is defective or incomplete.[15] The option for a consumer to request a direction be issued, is not a condition to the exercise of the power in s 72.[16]
• [23] The Queensland Building and Construction Board has, as one of its functions, to make and review policies governing the administration of the QBCC Act.[17] These policies do not take effect until they have been approved by regulation[18] and must be publicly available.[19]
• [24] A relevant policy is the 'Rectification of Building Work Policy' (Defects Policy) which commenced operation on 10 October 2014. Relevantly, the policy provides:

(1) Rectification of defective building work

1. It is a policy of the Queensland Building and Construction Board that a building contractor who carries out defective building work should be required to rectify that work.

...

(3) Notification of defects

1. It is a policy of the Board that if a consumer is seeking the assistance of the Queensland Building and Construction Commission (QBCC) to issue a direction to a building contractor to rectify defective building work, the consumer must lodge a formal complaint with the QBCC of defective building work as soon as possible but no later than within 12 months of becoming aware of the defects.

2. The QBCC will then consider the issuing of direction to rectify to a building contractor:

1. for structural defective building work, within 6 years and 3 months of the building work being completed; or
2. for non-structural defective building work, within 12 months of the building work being completed.

Note: This policy is not intended to extend manufacturers' product warranties, including whitegoods.

(5) Definitions

In this policy -

...

Defective building work means building work that is faulty or unsatisfactory, and includes, for example, work that:

1. does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard.
2. involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer's instructions.

• [25] The task of the Tribunal, on review, is to arrive at the "correct and preferable" decision, by way of a fresh hearing on the merits.[20] The task of the Tribunal on review is not to assess whether the QBCC made the correct and preferable decision but to make the decision afresh, "standing in the shoes", as is commonly said, of the QBCC.
• [26] The Tribunal, in exercising its review jurisdiction, may:

(b) set aside the decision and substitute its own decision;[22] 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.[23]

• [27] The submissions by Interlink raise a number of legal issues that I propose to consider first.
• [28] In relation to a number of directions, Mr Maloney, the sole director of Interlink, submitted that he had rectified the work the subject of the direction and that therefore, on review, a direction for that item should not be issued.[24] The QBCC accepts, in relation to DTR1, 3 7 and 10, that those items have been satisfactorily rectified but well after the time for rectification had expired.[25] This submission raises the issue as to the precise nature of the decision under review and what facts the Tribunal should consider when making its decision.
• [29] Mr Maloney also submitted that a direction should not be issued, presumably on the basis that to do so would be unfair within the meaning of s 72(5), because the owner:

(a) did not notify the QBCC of her complaint within 12 months of becoming aware of the defect as required by the QBCC's policy on rectification of defective work;

(b) did not first notify Interlink of the defective items thereby giving it an opportunity to rectify the items before making a formal complaint to the regulatory authority;

(c) had not notified the defects complained of within the 'defects liability period' in the contract; and

(d) had not granted reasonable access to Interlink's contractors.

• [30] I propose to deal with each of these issues in turn.

Identifying the question to be decided and the facts relevant to the review

• [31] In determining the review, the Tribunal must consider the same question as the original decision-maker.[26] In Shi v Migration Agents Registration Authority[27] Kiefel J held:

...the decision, and the statutory question it answers, should be identified with some precision, for it marks the boundaries of the review.[28]

• [32] The reviewable decision is the decision, in this case on internal review, to issue a direction to rectify to Interlink because the work completed by Interlink at the date the direction was issued, was defective. The direction to rectify required Interlink to rectify 13 items of defective work within 28 days. The statutory question to be answered by the decision is whether at the time the decision was made, the building work is defective or incomplete, or consequential damage has been caused by, or as a consequence of, carrying out building work.[29]
• [33] Since that decision there have been supervening events. In particular, Interlink submits that it has rectified some of the work the subject of the direction, albeit outside the 28 day timeframe. Interlink submits that, in respect of these rectified items, the direction should be "withdrawn".
• [34] The submissions give rise to the following questions:

(a) at what point of time are the "merits" of issuing a direction to rectify to be examined; and

(b) upon what evidence should the Tribunal act?[30]

• [35] The general approach which derives from the statutory function of the Tribunal of substituting one decision for another requires the Tribunal to make a fresh decision based on the facts and law current at the time of the review. The High Court has however recognised that "the particular nature of the "decision" in question may sometimes, exceptionally, confine the scope of the Tribunal's attention to the state of evidence at a particular time".[31] This was the case in Freeman v The Secretary, Department of Social Security[32] where Davies J held that the Tribunal had jurisdiction only to review the Secretary's decision concerning ineligibility at the date of the original decision and had no jurisdiction to determine the different question of whether the applicant had, at a later date, become eligible by reason of changed circumstances.
• [36] It is settled that the Tribunal on review, generally speaking, is to arrive at its decision based on the most current material available to it at the time its decision is made. Although application of that principle has been said to lead to a conclusion that the Tribunal is "not ordinarily confined to material that was before the primary decision-maker, or to consideration of events that had occurred up to the time of its decision" the fact that the review contemplated by s 20 of the QCAT Act is addressed to a "decision" arising under an enabling Act makes it necessary, in each case, and as was held in Shi, "to identify the precise nature and incidents of the decision that is the subject of the review".[33] As Kirby J said in Shi:

Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events.[34]

• [37] In Frugtniet v Australian Securities and Investments Commission[35] the High Court considered again the interplay between the nature of the decision under review and the evidence and law that may be taken into account in arriving at that decision. In that case ASIC could make a banning order if it had reason to believe the person was not a fit and proper person to engage in "credit activities". By s 80(2) of the National Consumer Credit Protection Act 2009 (Cth) and s 85ZW of the Crimes Act 1914 (Cth) ASIC could not take into account "spent convictions". However

s 85ZZH(c) of the Crimes Act provided, relevantly, that s 85ZW did not apply to a tribunal established under Commonwealth law. The issue was whether the tribunal on review had to apply the considerations applicable to ASIC (excluding spent convictions) or whether it could, on review, take them into account. The High Court said the tribunal could not take them into account, in effect, because ASIC could not do so.

• [38] The High Court, in considering this issue made some important general observations about the nature of administrative merits review. Those observations are relevant here:

[14] The enactment of the AAT Act established a new and substantially unprecedented regime of administrative merits review, distinguished principally by the AAT's jurisdiction to re-exercise the functions of original administrative decision-makers. The question for determination by the AAT on the review of an administrative decision under s 25 of the AAT Act is thus whether the decision is the correct or preferable decision. That question is required to be determined on the material before the AAT, not on the material as it was when before the original decision-maker. As Bowen CJ and Deane J held in Drake, however, and has since been affirmed by this Court in Shi, the AAT is not at large. It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.

[15] Depending on the nature of the decision the subject of review, the AAT may sometimes take into account evidence that was not before the original decision-maker, including evidence of events subsequent to the original decision. But subject to any clearly expressed contrary statutory indication, the AAT may do so only if and to the extent that the evidence is relevant to the question which the original decision-maker was bound to decide; really, as if the original decision-maker were deciding the matter at the time that it is before the AAT. The AAT cannot take into account matters which were not before the original decision-maker where to do so would change the nature of the decision or, put another way, the question before the original decision-maker. As Kiefel J observed in Shi, identifying the question raised by the statute for consideration will usually determine the facts that may be taken into account in connection with the decision. The issue is one of relevance, to be determined by reference to the elements of the question necessary to be addressed in reaching a decision. (emphasis added)

The process of reviewing [the reviewable] decision is to occur in the setting of the question(s) that gave rise to the decision. And while in that process the Tribunal can exercise its s 43(1) powers, it nonetheless is obliged to answer the same question(s) as was (were) before the...decision-maker: Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services [(1992) [1992] FCA 599; 39 FCR 225] at 234_._[36]

• [40] On the proper application of the authorities it is necessary, therefore, to consider the same question as the original decision maker. Although the Tribunal will be entitled to consider evidence which has arisen after the decision under review, the admissible evidence will be confined to the question which the original decision maker was bound to decide, as if the original decision maker was making the decision at the time it is being reviewed by the Tribunal. The Tribunal cannot take into account matters not before the original decision maker where to do so would change the nature of the decision or, to put it another way, the question to be answered.
• [41] In this case, the nature and incidents of the decision under review, in my view, support the position that the review is limited to the question of whether, at the time of the decision the subject of review, here the internal review decision, a direction to rectify should have been issued. This follows from the intrinsic nature of a decision to issue a direction to rectify, which involves an assessment of whether work is defective at a particular point in time, particularly in the context of the objects of the QBCC Act[37] and of the role the direction to rectify decision has in the broader statutory scheme applicable to the rectification of defective or incomplete work.[38]
• [42] The direction to rectify is one of a series of reviewable decisions made by the QBCC with the purpose of rectifying defective or incomplete work. The decision to direct rectification is the first decision followed by a number of other, related decisions: that building work undertaken pursuant to the direction is or is not of a satisfactory standard; a decision about the scope of works to be undertaken under the statutory scheme to rectify tribunal work; and a decision to allow or disallow a claim under the statutory scheme. All of these decisions, while independently reviewable, are interrelated.
• [43] A contractor has at least 28 days to comply with a direction, and, under s 68(2) of the QBCC Regulations, the QBCC must not make a decision to allow a claim under the scheme until the period for complying with the direction has ended. Once the time for applying for review of a direction to rectify has expired and the QBCC has served a notice advising that a claim under the scheme has been approved, the decision is no longer reviewable.
• [44] There is no provision that the QBCC must not approve a claim until a review is determined. Indeed the decisions are not to be stayed if a person applies for review.[39] It would not make sense for the QBCC to proceed to approve an insurance claim if the work, the subject of the direction to rectify, could still theoretically be rectified by the builder and this rectification be taken into account by the Tribunal on review. Further, under s 73, it is an offence to fail to comply with a direction given under

s 72(2). In other words, the offence is for failing to rectify the work within 28 days as required by the direction. There is no defence if the work is rectified after the period set out in the direction but before the Tribunal's review. Non-compliance with a direction is also a ground, under s 74B, for taking disciplinary action against a licensee.[40]

• [45] The question is to determine whether, at the time the direction was issued, the correct and preferable decision was to issue or not issue a direction to rectify. While the Tribunal is permitted, on review, to consider all current available evidence directed to this question, the question itself, in my view, and for the reasons above, necessarily has a temporal element. As was made clear in Frugtniet, it is critical to identify the evidence relevant to the question which the original decision maker was bound to decide. That evidence, in my opinion, does not include evidence of work done after the direction to rectify. To take such evidence into account would be to change the nature of the decision of the original decision maker and to undermine all the statutory sections which contemplate events occurring as a consequence of the decision.
• [46] The QBCC had found, on 10 March 2017, that certain work carried out by Interlink was defective. That decision was confirmed on internal review on 1 June 2017. The jurisdiction of the Tribunal arose from the application made to it to review the decision on internal review, made on 1 June 2017, to issue a direction to rectify. The function of the Tribunal was therefore to reconsider the decision of 1 June 2017 and to determine whether the decision to issue a direction to rectify at that time was the correct or preferable decision.
• [47] Thus, the question to be asked on this review is whether a direction to rectify should have been issued as at 1 June 2017. In addressing that question, I accept that I can take into account all current evidence before me that is relevant to that question, but that evidence excludes rectification when done after the decision.
• [48] Approaching the issue this way is, in my view, consistent with the objects of the QBCC Act. It was not the intention of the legislation, in my view, that a person who fails to carry out the work the subject of a direction during the period for rectification, is able to nonetheless rectify the work in their own time, well after the expiration of that period, and then simply apply for external review. This would clearly be undermining the purpose and intent of the statutory scheme established to deal with rectification of defective building work. I do not, therefore, accept that items directed to be rectified which have since been rectified, should, for that reason alone, no longer be the subject of a direction.
• [49] Having said that, I accept that there is no utility in requiring rectification of work that no longer requires it. For that reason, I propose to stay the operation of the Tribunal's decision in so far as it relates to those items which the QBCC agree have been rectified, whether by Interlink or by a third party. The direction to rectify will be stayed insofar as it requires work to be done by DTR1, 3, 7 and 10.
• [50] This outcome recognises that the decision whether to issue a direction to rectify is a decision which is part of a series of decisions, one dependent on the other. It also means that there is a record that the work was defective when carried out and that it was not remedied by the builder within 28 days. That there be such a record is consistent with the objects of the QBCC Act and with the general statutory scheme concerning rectification of defective or incomplete work.

The status of the Rectification of Building Work Policy

• [51] The Rectification of Building Work Policy was made by the Board on 11 April 2014, approved by regulation on 9 October 2014 and commenced on 10 October 2014.
• [52] Generally, it has been held that there is sense in adopting an appropriate policy to help guide decisions of a similar kind and to help promote consistency in decision-making. As Brennan J held in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[41] held:

Inconsistency is not merely inelegant: it brings the process of deciding into disrepute, suggesting an arbitrariness which is incompatible with commonly accepted notions of justice.

...

There are powerful considerations in favour of a Minister adopting a guiding policy. It can serve to focus attention on the purpose which the exercise of the discretion is calculated to achieve, and thereby to assist the Minister and others to see more clearly, in each case, the desirability of exercising the power in one way or another. Decision-making is facilitated by the guidance given by an adopted policy, and the integrity of decision-making in particular cases is the better assured if decisions can be tested against such a policy. By diminishing the importance of individual predilection, an adopted policy can diminish the inconsistencies which might otherwise appear in a series of decisions, and enhance the sense of satisfaction with the fairness and continuity of the administrative process.[42]

• [53] However, it has also been held that a policy must act as a guide and not control the making of decisions.[43] A policy must also not be inconsistent with the relevant statute under and/or in respect of which, the policy is made.
• [54] The policy of the Board is that if a consumer is seeking the assistance of the QBCC to issue a direction to rectify defective building work, the consumer must first lodge a formal complaint with the QBCC as soon as possible but no later than 12 months after becoming aware of the defects. It is only then that the QBCC will consider whether to issue a direction to rectify. Further, that the QBCC will only issue a direction to rectify in respect of structural defects within six years and three months of completion of the building work and for non-structural defects, within 12 months of completion of the building work.
• [55] Putting aside the question of the status of the policy, the issue arises as to whether issuing a direction would be inconsistent with the policy. The owner became aware of the defects at the earliest on 17 December 2015 and lodged a complaint on 22 November 2016. The owner was therefore within the policy timeframe for notifying her complaint to the QBCC. In respect of the timing of the first direction to rectify issued by the QBCC, I am satisfied that practical completion occurred on, at earliest 5 December 2015, or, as the QBCC submitted, on 17 December 2015 and that the first direction was issued on 10 March 2017. I accept that, in respect of non-structural items, the direction to rectify was issued more than 12 months after practical completion (the relevant policy timeframe), being three months or so outside that timeframe.
• [56] The issue arises, therefore, as to whether the Tribunal is bound to apply the policy, or, alternatively, whether it is a "reasonably relevant" circumstance to be taken into consideration within the meaning of s 72(3), or, alternatively, it is a circumstance that would make the issuing of the direction unfair within the meaning of s 72(5).
• [57] Interlink, in effect, submitted that the direction should be 'withdrawn' because it had been issued more than 12 months after completion and was, therefore, inconsistent with the policy. The QBCC submitted that the policy is a 'guideline' and non-binding, although it is a matter that ought to be considered by the Tribunal in making its decision.[44]
• [58] Previous editions of the policy have been held to be a "guideline of a public nature" and therefore a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[45] Whether the policy is subordinate legislation within the meaning of s 9 is unclear and no submissions specifically addressed that.
• [59] The issue of the extent to which policy should bind a Tribunal on review, was considered in Re Drake and Minister for Immigration and Ethnic Affairs (No 2)[46] where Brennan J held:

In my view, the Tribunal, being entitled to determine its own practice in respect of the part which ministerial policy plays in the making of Tribunal decisions, should adopt the following practice.

When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to parliamentary scrutiny.

...

The general practice will require the Tribunal to determine whether the policy is lawful, nor in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.[47]

• [60] In Skoljarev v Australian Fisheries Management Authority,[48] Davies J said:

Policy does not constitute a binding rule, unless a statute so provides, as does s 17(1) of the 1991 Act. Absent a statutory provision requiring compliance with policy, a decision-maker may depart from policy and, in an appropriate case, should do so. It is impossible to define or delineate the circumstances in which departure from policy is justified. Much depends upon the nature and context of the decision to be made, the nature of the policy to which regard is to be had and the nature of the individual circumstances to which attention is directed. In Re Drake (No 2), Brennan J said at 645 that, because of the part which policies play in fair administrative decision-making, the AAT should apply a lawful policy "unless there are cogent reasons to the contrary" such as "injustice in a particular case". In Re Evans and Secretary, Department of Primary Industry (1985) 8 ALD 627, Davies J and Mr R A Sinclair spoke of "special or unique circumstances". No term will in itself adequately express that point. The decision must be made having regard to the decision and its context, the nature and ramifications of the policy and the nature and consequences of the individual circumstances which are relied upon.

When, in Drake (No 2), Brennan J spoke of "injustice in a particular case", his Honour did not have it in mind that the matter should be governed entirely by the hardship to the individual. At 645, his Honour said:

"Injustice, in the context of ss 12 and 13 of the Migration Act, must mean a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed."

Necessarily, each matter must be judged by weighing up the particular circumstances of the case in the light of the part which the policy plays in the overall context of the decision to be made.[49] (emphasis added)

• [61] The commissioner is responsible for issuing directions for rectification of building work under the QBCC Act.[50] In carrying out the commissioner's responsibilities,

s 20K(1) provides that the commissioner must give effect to any policy or direction of the board relevant to that responsibility. However, s 20K(2) provides that the commissioner must act independently of the board when making certain types of decisions giving effect to the board's policies, including decisions about rectification or completion of building work. Further, s 19 provides:

(1) The board may make a policy governing the administration of this Act.

(2) However, the policies can not prevent the commissioner acting independently when making decisions-

(a) about the action to be taken about a licensee's licence; or

(b) about rectification of building work or remediation of consequential damage; or

(c) relating to the statutory insurance scheme.

• [62] Although not particularly clear, it seems that the effect of ss 19 and 20 is that the commissioner must give effect to the Rectification of Building Work Policy when undertaking the commissioner's responsibility to issue directions for defective building work. But that, in making his decision, he must act independently of the board. Further, that the policy must not prevent him from acting independently.
• [63] Given the Tribunal, when it makes its decision, has all the functions of the decision-maker for the decision being reviewed[51] and must decide the review in accordance with the QCAT Act and the QBCC Act,[52] in my view, it follows that, prima facie, the Tribunal on review must also apply the policy.
• [64] Having said that, although that may be the prima facie position, a policy cannot fetter the terms of the discretion as provided by the relevant statutory provision or be inconsistent with the statute to which it relates. In Re Drake and Minister for Immigration and Ethnic Affairs (No 2) it was held that "there is a distinction between an unlawful policy which creates a fetter purporting to limit the range of discretion conferred by a statute, and a lawful policy which leaves the range of discretion intact while guiding the exercise of the power."[53]
• [65] It follows that the policy must not fetter the statutory discretion as defined by s 72 and s 72A. Section 72A provides that a direction to rectify cannot be given more than six years and three months after the building work to which the direction relates was completed or left in an incomplete state. There is no further limitation on that power on the face of the statute. In particular, it is not conditional on the owner making a request to the QBCC for a direction to be issued, nor is it conditional on that request being made within 12 months of discovery of a defect.
• [66] In my view, the policy, being a fetter on the otherwise broad discretion to issue a direction to rectify within six years and three months of completion, can therefore be departed from.
• [67] Turning to whether the time taken to notify defects should have otherwise been taken into account. In my view, the time taken to notify defects to the QBCC may be a "reasonably relevant circumstance" within the meaning of s 72(3). However, given the statutory timeframe of six years and three months and that the owner notified of defects within 15 months, I do not consider, in this case, that the fact non-structural defects were notified more than 12 months after completion of the building work meant that the decision to issue a direction should not have been made, or that a decision to issue the direction would be "unfair" within the meaning of s 72(5).
• [68] Accordingly, I do not consider the relevant timeframe to be a reason for not issuing the direction.

• [69] Interlink also raises the issue that the QBCC Complaint Form states by way of an instruction to the homeowner:

We cannot investigate your complaint unless you have tried to notify the builder/contractor. The builder must be allowed 14 days for items to be rectified before you can lodge a complaint.

• [70] Interlink submit that the owner lodged the complaint on 22 November 2016 but did not notify them until 7 December 2016. Interlink submit this is outside the Act and that it is unfair to issue a Direction to Rectify when the owner lodges a complaint prior to notifying the builder and fails to provide the QBCC with a copy of their notification to the builder advising of the complaint items.
• [71] There is no statutory basis for this submission. I also do not consider that it is grounds for arguing the direction was unfair. The complaint form is not an official policy, and even if it was, again, there is no unfairness in departing from that policy, particularly where it imposes a fetter or restriction on the rights of an owner as provided for in Part 6 of the QBCC Act.

Relevance of the defects liability period in the contract

• [72] Section 72(3) of the QBCC Act provides that the commission may take into account 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". In my view, it is clear that the statutory protections embodied in the powers to issue a direction to rectify stand outside the terms of contract between the builder and consumer. In my view, that extends to whether there has been utilisation by an owner of the defects liability period in the contract. Having said that, the section says merely that the commission is "not limited to" considering the terms of the contract. In my view, this does not mean that the terms of the contract are not relevant. To the contrary.
• [73] Here, however, the fact the owner did not complain of defects within that period, being six months from practical completion, is not relevant, in my view, to whether it was fair to issue the direction. The defects liability period allows the builder to rectify items brought to the attention of the builder. The statutory rectification period of six years and three months clearly serves a different purpose. It is there much like a warranty period to protect an owner against defective work which may not have been detected by the expiration of the "defects liability period".

• [74] Mr Maloney also submits generally, that it is unfair to issue the direction to rectify in circumstances where the owner did not permit the applicant reasonable access. Mr Maloney refers in particular to the difficulties faced by the painter. Mr Maloney states that, after the initial inspection, a time for the painter to attend to rectify defects was arranged for 15 February 2017 but that at the last minute the owner was unavailable and the time was changed to the following Saturday. The painter could not make that time due to the birth of his child, and so the time was changed to the following Saturday 25 February 2017. The painter attended on that day but the owner was attending a function at the Gold Coast. The painter painted a little to the upper wall on the left-hand side of the wall, and, because he could not gain access to the indoors, he left the site.
• [75] The emails on which Mr Maloney relies as evidence of problems with access do not, in my view, support this claim. The owner emailed Mr Maloney on 7 December 2016 with a list of defects she wanted attended to. Mr Maloney replied on 25 January 2017, to the following effect: "now that the Christmas period has come and gone, and we are back to some sort of normality, I would like to attend your home for an inspection..."
• [76] There followed emails back and forth to try to find a suitable time for the inspection to occur. These emails occurred on the morning of 25 January 2017 between 8:17am and 8:49am until a mutually convenient time was agreed upon. The owner was not, in my view, being difficult in any way. She is clearly a busy person with a career and after work commitments and had breakfast meetings on some days before normal work hours.
• [77] Following that inspection, the painter was supposed to attend the dwelling to rectify some of the painting issues. Again from the email trail, it appears that the owner had arranged a time for the painter to attend but that he failed to attend due to the birth of his child. The owner was understanding about this and agreed to allow the painter to attend the following Saturday when her partner would be home. Mr Maloney submits that the painter could not gain access to the indoors. There was no evidence from the owner or painter about this.
• [78] On balance, I do not consider that issues with access was a basis upon which it could be said that the issue of a direction to rectify was unfair. It seems from the correspondence between the owner and Mr Maloney, that the owner was a reasonable person and was not attempting to hinder the performance by Interlink of rectification work.

• [79] I turn now to consider whether, at the time the direction was issued, the correct and preferable decision was to issue a direction to rectify.
• [80] The review of a decision to issue a direction to rectify requires consideration of the following issues:

(c) who is responsible for the defective building work; and

(d) in the circumstances, whether it is unfair to direct the responsible person to rectify the building work.

• [81] I will deal with each direction in the order it appears in the Direction to Rectify.

The inspection found that the deterioration and discolouration of the decking boards defective (sic), in that omission of timber preservative treatment prior to installation, inconsistent timber treatment applied post installation has resulted in presenting an unsatisfactory finish and will inevitably lead to rapid deterioration of the timber which is not able to be maintained by the owners.

• [84] Mr Maloney, on behalf of Interlink, submitted that the product used on the deck was Ultra Deck, a premium product in the industry but that it still required recoating every six to twelve months depending on exposure to the elements. Mr Maloney submitted in closing submissions that the condition of the decks was caused by cleaning by the owner and exposure to the weather and that a direction should not have been issued.
• [85] Mr Murphy, of the QBCC, gave evidence that a manufacturer will recommend maintenance after 12 to 18 months but that the owner nevertheless noticed the defect within two months of practical completion (on 20 January 2016).
• [86] There was no evidence, only an assertion by Mr Maloney, that the product used by Interlink needed to be re-applied every six months. The initial inspection report by Mr Murphy of 6 March 2017 shows photographs of the deck. In my view, the surface of the decking looks rough and the exterior board of the deck, beyond the balustrade does not appear to have been painted at all.
• [87] I note that Mr Maloney submits that the item has been rectified.[54] The item was rectified after the time for rectification under the direction to rectify had expired and does not, therefore, affect my decision as to whether the correct and preferable decision is to confirm the decision to issue the direction in the circumstances that existed at that time. I refer to my reasons above at [31]-[50].
• [88] Mr Maloney also submits that this defect was non-structural and, in accordance with the QBCC policy, should have been raised by the owner within 12 months of completion of the work. In my view, for the reasons I have outlined above, the policy is a guideline only and it is not 'unfair' to issue a direction to rectify this item in these circumstances.
• [89] I confirm direction 1.

External wall (Building or Dwelling) - Walls bowed, sheets not sealed.

The inspection found that the installation and rendered finishes of the Fibre Cement external cladding to the dwelling defective (sic), in that it is in direct non-compliance with the Manufacturers (sic) Technical Specifications, acceptable building practices, and has not been installed with due care and attention to detail, in that a) the substrate (framing) has not been straightened prior to fixing of sheeting which has resulted in undulating surfaces outside allowable tolerances, b) cladding system void of control joints and no allowance has been allowed for movement has resulted in cracking, and c) poor joint setting, inconsistent finishing of the render presents a deplorable and unacceptable surface finish.

• [92] In relation to a), Mr Maloney submits that Mr Murphy did not and could not have inspected the substrate to come to the conclusion that the substrate had not been straightened. If the substrate was not straight this would show as a "peaking or deviation" within the internal walls which, it is submitted, was not evident. Mr Maloney also asserted in his statement of 12 February 2019 that the substrate had been straightened by another contractor, Mr Tony Schloss, prior to the fixing of the sheeting. Mr Maloney conceded under cross-examination that he had not carried out the work and had not supervised it being done. Mr Schloss did not give evidence that he had performed this straightening work.
• [93] I do not accept Mr Maloney's submissions that the invoice for timber dated 12 February 2019 proves the straightening work was done. I also do not place much weight on the visual inspection undertaken by Mr Maloney on or about 25 February 2017 as this was done by sight only, without carrying out any measurements (using a straight edge or otherwise). Mr Murphy, of the QBCC, on the other hand, took measurements using a 2m straight edge which indicated roughly a 6mm deflection. I prefer the evidence of Mr Murphy and, as a 6mm deflection is outside the allowable tolerance in the HardieTex system technical specification[55] which provides a suggested frame straightness tolerance of 3 to 4mm over 3,000mm, I confirm the direction.
• [94] In relation to b) Mr Maloney submits that there is no evidence of cracking in the wall, that Mr Murphy's photos do not show cracking and the owner did not report any cracking. Mr Maloney submits that several control joints were installed in compliance with Hardietex Technical Specification 4.2 but that the joints had been covered to create a monolithic finish as per Hardietex Technical Specification 1.3. Mr Maloney accepted that further control joints should be added but that this could not be done until the "render rust mark issue" had been dealt with under the warranty period applicable to the Rockcote rendering product applied. Mr Maloney also relied on the evidence of Mr Theo Delinicolis.[56] Mr Delinicolis was the renderer engaged to install the texture finish on the exterior cladding. Mr Delinicolis' evidence was that when he arrived, he noted that the HardieTex had been left with control joints on each sheet and that there were gaps of about 5mm between each sheet. He was advised that the scope of works called for a clean wall meaning no joints were to be visible. Mr Delinicolis then treated each joint as a control joint and used the Rockcote patching system to cover the joints to achieve the required finish while still maintaining the control joints.
• [95] The HardieTex technical specification states that vertical control joints are to be located in wall runs over 5.4 and horizontal control joints must be located in walls at 3.6m maximum centres. The joints are to be filled with James Hardie joint sealant over bond breaker tape and the coating system must not cover the sealant. The specification also recommends contractors work closely with texture coat manufacturers and trained applicators, even before installing the base sheets to select the right finish and texture coat system.
• [96] I do not accept that no control joints were installed. It is also unclear from the photographs that cracking had occurred. However I do accept that some covered joints are raised or have peaked and that this presents as an unsatisfactory finish.
• [97] In relation to c) Mr Maloney submits that under s 5.2 of the QBCC Standards and Tolerance Guidelines walls are to be assessed at normal viewing at 1,500m directly out from the wall. Mr Maloney submits that "glancing light, as inspected by Mr Murphy is an unacceptable method of assessing finishes to walls". Further, Mr Murphy's photos do not show any peaking or undulating surfaces to the walls.
• [98] I accept that there was peaking and undulating surfaces to the walls. In my view, this is evident from the photographs attached to the Statement of Reasons.[57] The control joints were covered with a Rockcote membrane. This does not comply with the HardieTex specification which clearly indicates that sealant be used in the joints between the HardieTex base sheets and which specifically provides that the texture coat (here Rockcote) is not to be applied over the sealant.[58] The specification also provides under the heading "Textured finish coating systems" that proprietary jointing and coating systems are to be applied in accordance with the coating manufacturer's specification by their accredited applicators.
• [99] Mr James McGregor gave evidence that Rockcote would not recommend covering control joints because it could cause the coating to crack and peaking of the joints as the coating has nowhere to go. This was consistent with Mr Murphy's evidence that covering control joints and not bringing the joint through to the surface could result in peaking and cracking. Mr McGregor also gave evidence that they had not been asked for the Rockcote system Technical Specifications prior to the installation of the Rockcote and that a full Rockcote system was not applied (an alternative paint, Dulux Acratex Acrashield having been used).
• [100] In conclusion, I accept that the installation of the external cladding and texture finish is defective because it does not comply with the HardieTex specifications and does not meet a reasonable standard of finish expected of a competent holder of a contractor's licence.
• [101] I confirm the decision to issue DTR2.

Bedroom Room 1 - Window- window seal started to come off

The inspection found that the weather seals to the main bedroom window faulty (sic) and unsatisfactory in that the weather strip has detached from the stile which has resulted in the window not performing or operated as intended.

• [104] I am satisfied that, in relation to the aluminium window unit installed to the right hand side of the master bedroom, that the weather strip on the left hand sliding sash had partially detached from the aluminium section and was evidence of unsatisfactory building work. Although this was a manufactured product there was no evidence before the Tribunal confirming the method of installation and I could not be satisfied that the defect was not caused by the installation process.
• [105] Again, it is not relevant to my decision based on the circumstances that existed at the time, that the issue was rectified after the direction to rectify had expired.
• [106] I confirm the decision to issue DTR3.

DTR4 (paintwork to internal Redicote doors, door jambs and architraves)

C2: Bedroom Room 1 - Door - paint bubbled.

C3: Bedroom Room 2 - Door - Paint bubbles and needs sanding back and repaint.

C11: Bedroom Room 3 - Door - Rough paint with bubbles.

C12: Bedroom Room 4 - Door - Rough paint with bubbles.

The inspection found that the paintwork to the internal redicote doors, door jambs and architraves of the dwelling has not been completed in a tradesman like manner with due care and attention to detail, in that a) the edges of the doors have not been correctly prepared prior to the final coat of paint, b) excessive amount of debris is contained within the final coat, and c) differing colour of paint has been utilised which has resulted in presenting an unacceptable finish not able to be maintained by the occupants.

• [109] I am satisfied that the level of finish with respect to the painting in the areas described in DTR4 was unsatisfactory on the bases that the edges of the majority of the internal doors had not been suitably prepared and sanded prior to the application of the final coat of paint including in some cases not being sealed, there was some debris in the paint finish which gave the appearance of the paint "bubbling" and different paint colours on door jambs and architraves.
• [110] In relation to c) Mr Maloney gave evidence that he found a small can of acrylic gloss paint in the garage which belonged to the owner, next to a ten litre drum (half used approximately) of gloss enamel. Mr Maloney suggested that the owner was responsible for the mis-matched paint and that this possibility had not been properly investigated by Mr Murphy.
• [111] I am not prepared, on the basis of this evidence, to conclude that the owner and not the applicant, was responsible for the inconsistent paint used. It is also inconsistent with Mr Maloney's response to the item in both his statements, namely, that the item had been rectified by Interlink.[59] I note that a similar submission was made by Mr Maloney in relation to other painting related direction items, DTR5, 11 and 12. For the same reasons, I am unable to accept that submission on the evidence before me. I also accept the submission by the QBCC, particularly in relation to DTR4, 5 and 11, that the proposition that the painting was done by someone not connected with Interlink, using different paint, was new evidence having been raised for the first time in the hearing.
• [112] Again, the issues raised by Mr Maloney, namely that the owner did not complain within 12 months and that the items were subsequently rectified by the applicant, are not relevant for the reasons above.
• [113] I confirm the decision to issue DTR4.

DTR5 (paintwork to WC lower level walls and architraves)

Bedroom Room 2 - Wall - DS bathroom paint bubbled with hole in it

The inspection found that the paintwork to the WC lower level walls and architraves has not been completed in a tradesman like manner with due care and attention to detail, in that clearly visible blemishes are presenting an unacceptable surface finish.

• [116] Mr Maloney raises the issue that the direction extends beyond the complaint item by referring to the architrave in addition to the walls and that this is inconsistent with the QBCC policy.
• [117] Again, there is no statutory requirement limiting the scope of a direction to rectify, to a complaint previously made by an owner. The QBCC may issue a direction irrespective of whether an owner has made a complaint in relation to the work the subject of the direction.
• [118] Further, Mr Maloney submits that this item was subsequently rectified. Again, I do not accept, for reasons above, that the rectification by Mr Maloney after the period for rectification has expired, is relevant to the review.
• [119] I confirm the decision to issue DTR5.

DTR6 (rust staining throughout rendered external finish)

Bedroom Room 2 - Wall - External paint has rust/red dirt seeping out

The inspection found that the rust staining located throughout the rendered external finish to the dwelling does not comply with acceptable industry standards, which has resulted in presenting an unacceptable surface finish not able to be maintained by the occupants.

• [122] The existence of rust marks is evident on both levels of the dwelling, both on the render applied to the brick and on the render applied to the sheeting.
• [123] Mr Maloney submits that the defect lay in the rendering product used, namely, Rockcote, and that this had been "confirmed by Rockcote" who had agreed to rectify the defect under their warranty.
• [124] I do not accept that the suppliers of Rockcote FlexiTex, confirmed they were liable for the rust marks. Mr James McGregor, National Sales Manager - Business Development of Rockcote Enterprises Pty Ltd stated as follows to Mr Maloney in a letter of 20 February 2019:

The contractor [plasterer] advised the builder that the installation of the Rockcote FelxiTex (sic) was applied in accordance with the Rockcote Technical Specifications. A Rockcote system specification was not requested and a full Rockcote system was not applied, instead an alternative paint system was applied (builder has noted Dulux Acratex Acrashield).

...

In response to the builder's request, Rockcote suggested he review the Hardietex's Technical Specification for complete technical compliance.

At time of inspection no testing was carried out to confirm that the staining issues originated in the Rockcote FlexiTex. Rockcote is aware of the potential for a natural material that can be found with sand, referred to as coffee rock, can potentially cause staining issues particularly when a full Rockcote system has not been applied.

Despite this, Rockcote was prepared to assist Urban Homes [now Interlink] and address the staining issues as a good will gesture.

• [125] In my view, the above does not constitute an admission by Rockcote that the rust marks were their responsibility.
• [126] Mr Maloney refers to an information sheet produced by the QBCC which states:

A list of specific exemptions can be found in the Queensland Building and Construction Commission Regulation 2003, s 5, however generally speaking, the QBCC cannot investigate complaints concerning:

...

• a product purchased that is defective even where it has been installed by a licensed contractor - for example: malfunctioning oven purchased by the contractor) - please refer to your product warranty.

• [127] "Building work" is defined broadly to mean the erection or construction of a building.[60] "Defective", in relation to building work, includes faulty or unsatisfactory.[61] In my view, there is no basis in the QBCC Act for concluding that defective work can not include the application to a dwelling of a defective rendering product, assuming that to be the case. The information sheet relied on by the applicant is not authority otherwise. Further, the QBCC Rectification of Building Work Policy provides in the definition section that "defective building work" means building work that is faulty or unsatisfactory, and includes, for example, work that:

...

involves the use of a manufactured product, and that product has been used, constructed or installed in a way that does not comply with the product manufacturer's instructions.

• [128] In my view, in circumstances where the paint or membrane coating specified by Rockcote was not used, it is not possible to say that the Rockcote system was installed in accordance with the product's specifications.
• [129] There was also insufficient evidence to conclude, as Mr Maloney submitted, that the rust marks were localised and had been caused due to the installation of a colorbond fence down the boundary line when metal particles may have become airborne and then trapped on the soft acrylic surface.[62]
• [130] I accept the evidence of Mr McGregor that if the render contained natural particle deposits of iron sulphide, iron oxide or coffee rock and was exposed to moisture that it was possible that this would cause some staining. However, I also accept Mr McGregor's evidence that the risk of staining would have been reduced if Interlink had used a full Rockcote system from base coat to top coat as this would have helped prevent moisture from coming to the surface and leaching out of the membrane.
• [131] I confirm the decision to issue DTR6.

Bedroom Room 2 - Stairs & Steps - Step sounds loose on staircase

The inspection found that the construction detail surrounding the third tread to the internal staircase defective (sic), in that poor fitting of the tread to the stringer has resulted in creating an unwarranted sound which is a general nuisance to the occupants.

• [134] Mr Maloney submits that this item has now been rectified and, in any event, was not raised by the owner with the QBCC within 12 months of completion. I refer to my reasons above.
• [135] I confirm the decision to issue DTR7.

The inspection found that the installation of the brick sill to the kitchen window has not been completed with a reasonable standard of workmanship and finish expected of a competent holder of a Trade Contractor's License, in that the sill is visibly bowed which has resulted in presenting an uneven and unacceptable appearance.

• [138] Mr Maloney submits that this is an issue relating to the application of the render. Consequently, he submits, it could not be attended to until the issue with respect to the 'rust marks' had been determined. Mr Maloney says that he requested an extension of time with respect to this item but the request was refused. Mr Maloney also submits that the item was not raised by the owner with the QBCC within 12 months of completion and that a direction should not therefore have been issued. Further, Mr Maloney submits the direction to rectify relates to the kitchen sill whereas the complaint that the direction indicates it refers to, relates to the window sill in bedroom 4.
• [139] I do not accept that this issue relates to the render. In any event, whether it relates to the render or not, it is still an item of defective work in respect of which a direction was correctly issued.
• [140] Again, for reasons I have given above, the lack of a complaint by the owner in relation to this item, does not preclude the issue of a direction. Therefore, it is irrelevant that the direction does not relate to a complaint item. The issue is whether the sill to the kitchen window was defective.
• [141] I am satisfied that the sill is bowed and is therefore defective.
• [142] I do not accept that it was unfair to refuse an extension in circumstances where the issue with the render's 'rust marks' had not been finalised.
• [143] I confirm the decision to issue DTR8.

DTR9 (left hand cavity sliding door to the Media Room)

The inspection found that the left hand cavity sliding door to the Media Room has not been installed and adjusted within acceptable building practices and with due care and attention to detail, in that the door is not centrally located in the frame causing the same to bind on the pelmet resulting the (sic) door not being able to be operated as intended and presents a hindrance to the occupants.

• [146] Mr Maloney submits that this item was not raised by the owner within 12 months of completion and that a direction should not therefore have been issued. Further, that the item was subsequently rectified.
• [147] For reasons above, these grounds do not preclude a direction from being issued.
• [148] I am satisfied that the work the subject of the direction was defective. Mr Maloney agreed to rectify and did rectify the defective installation of the door.
• [149] I confirm the decision to issue DTR9.

Kitchen Room 1 - Ceiling - Crack in ceiling and paint

The installation of the plasterboard sheeting to the ceiling does not comply with the minimum requirements of Australian Standard AS/NZS 2589-2007 Gypsum linings - Application and finishing and within acceptable building practices, in that control joint/s have not been provided to the ceiling adjacent the stair void which has resulted in movement cracking to occur presenting an unsatisfactory appearance to the ceiling.

• [152] Mr Maloney submits that both the Boral and CSR Gyprock Installation Manuals provide for control joint spacings at 12m maximum. As the ceiling sheets to the dwelling did not exceed 12m spacing, no control joints were required. Further, that the manufacturer's installation instructions have been met and accordingly, that no direction should be issued.
• [153] Again, Mr Maloney submits that the owner did not raise the issue of the crack to the ceiling in the stair void, only referring to a crack in the ceiling of the kitchen, and that therefore the direction should not have been issued. Further, that the issue was, in any event, subsequently rectified.
• [154] The installation sheets that Mr Maloney refers to state that control joints are to be installed at no more than 12m centres. In my view, this instruction does not mean necessarily that unless sheeting is 12m there is no need for a control joint.
• [155] In any event, the relevant Standard, AS/NZS 2589-2007 takes precedence over the installation instructions provided by a manufacturer.
• [156] Further, Mr Murphy gave evidence that it would have been good building practice to have a control joint in the ceiling in the stair void because there appeared to be a significant change in the size and direction of the plasterboard, and such locations are prone to cracking. That a crack did in fact result supports this observation.
• [157] For reasons above, the fact that the owner did not raise the issue of the crack in the ceiling of the stair void does not preclude a direction being issued.
• [158] I confirm the decision to issue DTR10.

DTR 11 (laundry door entry frame and mouldings)

The inspection found that the installation and painting to the Laundry door entry frame and mouldings has not been completed in a tradesman like manner with due care and attention to detail, in that a) the architrave has not been securely fixed to the jamb resulting in the same detaching from the jamb and b) inconsistent paint colours present an unacceptable finish.

• [161] Mr Maloney submits that the owner did not raise this issue within 12 months of completion and that a direction should not, therefore, have been issued.
• [162] For reasons above, this does not preclude a direction being issued. I am satisfied that the work was defective.
• [163] I confirm the decision to issue DTR11.

DTR 12 (painting to external rendered blueboard)

External Issue 1 - External wall (Building or dwelling) - Paint different colours.

The inspection found that in an attempt to conceal the imperfections located to the upper left hand side of the dwelling of the external rendered blueboard cladding defective (sic), in that the application of additional paint has resulted in creating distinct differences which clearly presents an unacceptable finish.

• [166] Mr Maloney states that, in order to rectify the 'rust marks' he engaged a painter to repaint the walls with the 'rust marks'. The painter had started repainting the walls, beginning with the left-hand wall, but stopped to advise Mr Maloney that, in his view, the 'rust marks' were not a paint issue but a manufacturing issue. The painting work was then suspended to enable further investigation to take place.[63]
• [167] In the hearing, however, Mr Maloney submitted that Mr Murphy's photos did not show a different paint colour to the cladding as alleged and, in any event, that he denied that the work was done by his painting subcontractor.
• [168] On 1 August 2017 an email was sent from Mr David Ogle of Rockcote to Mr Maloney which indicates that a person called Michael has been arranged to attend the property to touch up the 'rust marks'. Mr Ogle says:

We will schedule this in, and Michael will confirm details with you.

Can you please ensure that the original paint used us (sic) available? As it is not a Rockcote paint, we can't be responsible for the visibility of any touch ups. The paint that was used is not suitable for coating render (as it is only 25microns per coat, not the recommended 80microns per coat) and these low build decorative paints degrade quickly, and it is likely that a difference will be seen.

• [169] This email tends to support Mr Maloney's claim that it was not his sub-contractor that did the painting but an employee of Rockcote. Having said that, however, the email also makes clear that the paint was to be supplied by Mr Maloney. In my view, the responsibility for the paint used, rested with Mr Maloney.
• [170] I find that different paint colours were used to parts of the dwelling which resulted in an unacceptable finish.
• [171] I confirm the decision to issue DTR12.

External issue 1 - Doors - Front door alignment and staining

The installation and surface finishing of the front entrance door to the dwelling has not been completed in accordance with acceptable building practice and with due care and attention to detail in that a) no clearance has been allowed for between the striker and latch which has resulted in poor operation of the door and b) inconsistent staining has resulted in presenting an unsatisfactory surface finish.

• [174] Mr Maloney submits that the owner did not raise these issues, the subject of direction 13, within 12 months of completion, and that therefore the direction should not have been issued.
• [175] For the reasons above, this does not preclude a direction from being issued.
• [176] I am satisfied that the installation and finish applied to the front door was defective.
• [177] I confirm the decision to issue DTR13.

• [178] The decision by the Queensland Building and Construction Commission on 1 June 2017 to issue a direction to rectify to Interlink Developments Pty Ltd is confirmed.
• [179] The decision is stayed insofar as it requires work to be done which is agreed has been rectified, being the work the subject of DTR1, 3, 7 and 10.

[1] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16.

[2] Tribunal Decision of 4 September 2017.

[5] QBCC Act, s 86E (definition of 'reviewable decision').

[16] Urban Homes Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 131, [37] - [40].

[20] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 20.

[24] Statement of Brian Maloney filed 1 November 2017, Attachment M.

[25] Statement of Robert Murphy filed 5 June 2019, [18](c), (h), (l) and (o).

[26] Shi v Migration Agents Registration Authority [2008] HCA 31.

[27] [2008] HCA 31.

[31] Ibid at [46] (Kirby J) and see also at [99] (Hayne and Heydon JJ).

[32] (1988) 19 FCR 342; [1988] FCA 294.

[35] [2019] HCA 16.

[36] (1998) 157 ALR 522; 50 ALD 846; [1998] FCA 1144 at 9; applied in Australian Securities and Investments Commission v Donald (2003) 136 FCR 7 and Rust-Oleum Australia Pty Ltd v Australian Pesticides and Veterinary Medicines Authority (2017) 73 AAR 319.

[38] See generally Part 6 Rectification of building work and remediation of consequential damage and Part 6A Disciplinary proceedings.

[41] (1979) 2 ALD 634.

[44] Lazinski v Queensland Building Services Authority [2010] QCAT 516 at [19]; Imperial Homes (Queensland) Pty Ltd v Queensland Building Services Authority [2014] QCAT 42 at [15];.and Chew v Queensland Building Services Authority [2010] QCAT 501 at [28].

[45] Zhang v Queensland Building and Construction Commission [2015] QCAT 106.

[46] (1979) 2 ALD 634 at 640-5.

[48] [1995] FCA 1732; (1995) 133 ALR 690; 39 ALD 517 (affirmed on appeal: (1996) 41 ALD 481).

[49] [1995] FCA 1732; (1995) 133 ALR 690; 39 ALD 517 at ALR 696- 7; ALD 522-3.

[53] (1979) 2 ALD 634 at 641.

[54] Statement by Brian Maloney filed 1 November 2017, attachment M titled "Complaint items 89551..."

[55] James Hardie, External cladding, Technical specification, HardieTex system.

[56] Statement of Theo Delinicolis dated 5 February 2019.

[58] James Hardie External cladding - Technical specification, HardieTex system, figure 18.

[59] Statement of Brian Maloney filed 12 February 2019, [28](d).

[60] QBCC Act, schedule 2 (definition of "building work").

[61] QBCC Act, schedule 2 (definition of "defective").

[62] Statement of Brian Maloney filed 12 February 2019, [28](f).

[63] Statement of Brian Maloney dated 27 October 2017, [81].