Nailed It Creations Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 279

Acts Interpretation Act 1954 (Qld), s 4, s 38

Mr N Congram of Counsel with him Alicia Collett and Alena Taylor in house lawyers

• [1] By application filed 8 June 2023, the applicant Nailed It Creations Pty Ltd ('Nailed It') ('licensee/builder/contractor') seeks review of the decision of the Queensland Building and Construction Commission ('Commission') made 11 May 2023 determining that building work undertaken at 32 Murton Avenue, Holland Park ('the site') at the direction of the Commission was not of a satisfactory standard. The building work was that which was the subject of a direction to rectify issued 16 January 2023 providing for rectification/completion by a licensed contractor by 20 February 2023. The direction to rectify stated in short form that the installation of the front entry tiled balcony system and door had not been installed to comply with the relevant Australian Standard in that inadequate fall to the substrate, door threshold termination height and membrane installation had allowed water ingress into the ensuite ceiling below resulting in deterioration of building elements. The licensee was also to be responsible to rectify all resultant water damage.

• [2] A short historical perspective at the outset is helpful.

23 December 2020 Larissa and John Tyas as homeowners enter into a Master Builders Queensland Residential Renovation Contract.

12 October 2021 work ceased but not complete.

16 December 2021 homeowners provided with Form 21 final inspection certificate.

24 December 2021 homeowners make a final payment.

Prior history of complaints, compliance, and reconsideration in the period 1 November 2021 culminating in the issue of the direction to rectify of 16 January 2023 and issues around compliance the subject of this application.

• [3] At the outset Mr Hitchcock for the licensee stated the direction to rectify was not contested. Nor was it contested that the rectification/completion work was not performed. Rather it was a case of access to site being refused in the thirty-five-day period through to 21 February 2023 resulting in an inability to satisfactorily rectify/complete as required. Mr Congram for the Commission said the two issues for Tribunal determination were firstly whether building work that was supposed to be performed by Nailed It was performed within the required time and secondly whether Nailed It made a request for extension of that time (and if so whether it should have been granted).
• [4] Section 72B of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act') provides for an application for an extension of time to comply with a direction to rectify to be made. Any such application must be made before the period stated in the direction ends (here thirty-five days) and state the reasons for the extension. The Commission must inform any such applicant of its decision within ten business days. The direction to rectify and/or complete work produced to the Tribunal by the Commission was issued on 16 January 2023. The direction stated that "you have 35 days from the making of this direction within which to comply. This means that you must complete the works by 20 February 2023. If this date is a public holiday the next business day is to be the applicable date". The direction went on to state under the heading "What you must do" at paragraph four, the words: "In accordance with section 72B of the Queensland Building and Construction Commission Act 1991 you may apply to the QBCC for an extension of time to comply with the direction. You must apply in writing, on or before 20 February 2023 and state the reasons the extension is needed".
• [5] Produced to the Tribunal was a reinspection report by Commission inspector Mr O'Shannessy dated 10 March 2023, which it was submitted was confirmatory of a failure to rectify defective building work. The reinspection report commented that the complaint item would be referred the QBCC Home Warranty Insurance for an assessment of a possible claim. That led to the decision notice of 11 May 2023 recording the finding that building works undertaken at the direction of the Tribunal were not of a satisfactory standard. That in turn led to the imposition of a monetary penalty, demerit points and publication of the failure to rectify.

• [6] Ian John Rae, director of Nailed It, in written material and in evidence stated he sought access to the site between 16 January 2023 and 21 February 2023 to finish the job the subject of the direction to rectify but that he was not granted the necessary access. Mr Rae stated the direction issued on the 16 January 2023 was his first day back from annual leave. At that time the construction industry was shut down. He first made contact with Larissa and John Tyas by email on 8 February 2023. On 9 February 2023 Commission inspector Mr O'Shannessy by email informed firstly Mr and Mrs Tyas of the owner's obligation to provide access to rectify and communicate regarding access in a timely manner and secondly Mr Rae of the licensee's obligation to request access with reasonable notice and rectify defective building work.
• [7] The chronology of interaction/s through to 21 February 2023 is listed as follows.

Friday 10 February 2023 Mr Rae's supervisor attended site to measure up for a custom-made sill tray flashing. Some tiles were removed.

Monday 13 February 2023 Mr and Mrs Tyas advise 48 hours' notice of access would be required. The same day Mr Rae requested access for Wednesday 15 February, Thursday 16 February, Friday 17 February, and Monday 20 February 2023. The same day Mr and Mrs Tyas confirmed access on those four dates. In a later email the same day Mr and Mrs Tyas required 48 hours' notice of arrival and leave times to correlate with their availability.

Tuesday 14 February 2023 Mr and Mrs Tyas stated in an email that failure to provide times may affect access. The same day Mr Rae urgently emailed Mr O'Shannessy "seeking QBCC backing to complete this rectification" and asking to discuss Mr and Mrs Tyas' imposition of 48 hours access notice including specific timing for access. Mr Rae expressed concern about having enough time to complete rectification with such access notice. The same day Mr Rae emailed Mr and Mrs Tyas varying contractor attendance on Friday morning 17 February and requiring access on Saturday 18 February. He also indicated his intention to install a strip drain as part of a performance solution.

On 15 February 2023 Mr Rae ordered and paid for additional tiles to be utilised in the rectification work.

On 16 February 2023 Mr Rae sought access for his supervisor to do a final check measure for a steel insert tray (part of the performance solution). Access was granted and the same day the measurements were furnished to the fabricator.

No person for or on behalf of Nailed It attended site on either Friday 17 February or Saturday 18 February 2023. On Saturday 18 February 2023 Mr and Mrs Tyas enquired, in view of non-attendance on Friday and Saturday, as to whether access would still be required on Monday 20 February.

Monday 20 February 2023 at 8.02 am Mr and Mrs Tyas emailed Mr Rae and Mr O'Shannessy stating that they had been waiting for the arrival of Nailed It, but no one had come. At that point they had to leave. If access was required that day Mr Rae would have to contact them. The same day at 8.17am Mr Rae emailed Mr and Mrs Tyas and Mr O'Shannessy apologising for the delay in responding and indicating that the necessary flashings would be ready that morning. When confirmation was received from the supplier, he would have his supervisor Brendon call to organise access. The same day at 1.20pm Mr and Mrs Tyas emailed Mr O'Shannessy stating minimal work completed and requesting advice as to next steps to be taken. Mr O'Shannessy answered at 1.45pm indicating that he would be sending an email the next day requesting a response to assess if works had or had not been successfully rectified.

On Tuesday 21 February 2023 at 7.02 am Mr Rae emailed Mr and Mrs Tyas and Mr O'Shannessy stating he advised yesterday (20 February) that materials were not ready. He had just collected them, (the tax invoice from Rollsec the fabricator of the stainless welded tray is dated 21 February 2023 and delivery date recited thereon is also 21 February 2023) and Brendon and his team would be on site at 7.30am. Mr and Mrs Tyas replied at 7.12 am stating they were unable to provide access that morning at such late notice. They required 48 hours' notice. In addition, they said yesterday (20 February) was the due date for completion of works as stated in the direction to rectify and for Mr Rae to feel free to discuss with the Commission. Mr Rae replied at 7.20 am to both Mr and Mrs Tyas and Mr O'Shannessy requesting access and stating 48 hours' notice was not required; that works had commenced and that "we (presumably all parties) need to provide an adequate time for access to do the work"; that stopping performance of work was contrary to Commission directions. He also stated he had discussed matters with the Commission. Mr and Mrs Tyas responded at 7.24 am to both Mr Rae and Mr O'Shannessy that it was not possible to wait for Mr Rae; that Mr Rae was not respecting the due date for works and his requirements for giving them fair notice for access. A further follow up email was sent at 7.27 am stating that they Mr and Mrs Tyas had also had discussions with the Commission and were awaiting instructions about further access.

On Tuesday 21 February 2023 at 3.32 pm Mr O'Shannessy emailed both Mr and Mrs Tyas and Mr Rae indicating that where rectification works were incomplete or disputed the Commission would undertake a reinspection and pointing out that where the direction to rectify had expired the Commission no longer had legislative powers to enforce access to rectify defective building work. Any further access to rectify defective work was at the discretion of the homeowners. Any incomplete defective work identified would be referred to the Home Warranty Scheme for assessment of a possible claim.

In an email sent at 7.31 pm on 21 February 2023 to Mr O'Shannessy Mr and Mrs Tyas indicated that due to past experiences with Mr Rae they did not wish to provide Nailed It with any further site access. They wished to proceed with the Commission's process.

• [8] In evidence, Mr Rae stated that he did not know that if he needed more time (to complete rectification work) he had to apply for an extension. He had not ever before come across a defect notice nor had Mr O'Shannessy mentioned an extension. There was nothing proactive on the part of the Commission suggesting that Nailed It might need an extension of time. When asked did he recall the paragraph in the direction to rectify stating that he could apply for an extension if he needed more time, he answered that he did not know there was an official application (to be submitted).
• [9] Mr Rae said that he thought fabricated material/door sill had been picked up on Monday 20 February 2023 but that it was raining that day and that it was not possible to cut up a floor if it was raining. He said he had his (sub) contractors lined up on the morning of (Tuesday) 21 February 2023 with the stainless-steel sill ready to be installed. As for 17, 18 and 20 February 2023 he did not utilise the access granted because there was not any work to be done if the materials were not available.

• [10] In evidence, Mr Kirby a Commission senior building inspector in the absence of Mr O'Shannessy reiterated the Commissions historical perspective. It was put to Mr Kirby that Mr Rae's words in his email of 21 February 2023 at 7.20 am, "We need to provide an adequate time for access to do the work" was in fact a written request for an extension of time for access. Mr Kirby stated it was certainly asking for access after expiry of the direction. He said he did not consider there was legislative power to tell a property owner who they must allow on site, but continuity of a claim may depend on access. A dispute case could be closed by the Commission because access was denied.

• [11] The direction to rectify issued 16 January 2023 nominated 35 days for rectification/completion of works and recited 20 February 2023 as the date by which rectification/completion had to be completed.
• [12] Mr Hitchcock argued that the 35-day period ended on 21 February 2023. He relied on section 36 (actually section 38) of the Acts Interpretation Act 1954 (Qld) ('Queensland Act') which stated that if something is expressed to begin from a specified day, it does not include that day of the decision. As an example, he said that if a decision is made on 2 August and the person has 28 days after the decision is made, the 28-day period begins on 3 August, which is the next day. He said Mr Rae's position was that with notice being given on 16 January meant the 35 days ran from 17 January because it excluded the date of the decision. Therefore, 21 February was the last day to "sort these things out".
• [13] Mr Hitchcock reiterated the 35-day period commenced on Tuesday 17 January 2023 and that 34 days from the 17 January was actually Monday 20 February (for the reason it appears though not articulated) that section 38(1)(a) of the Queensland Act states that where a number of days is specified that "the day on which the purpose is to be fulfilled" is excluded. Put alternatively, the 35-day period commenced on Tuesday 17 January. Five weeks hence, or 35 days was Tuesday 21 February (as opposed to Monday to Monday). Mr Congram for the Commission agreed.
• [14] Mr Congram however went on to say that section 4 of the Queensland Act stated that the application of that Act may be displaced by a contrary intention appearing in another Act. Here, section 53A of the Queensland Building and Construction Commission Regulation 2018 (Qld) ('QBCC Regulation') stated that for section 72(4) of the QBCC Act the period starts on the day the direction is made as stated in the direction. That meant that the 35-day period expired on the 20 February. Section 53A of the QBCC Regulation expressed a contrary intention which displaced the operation of section 36 (section 38) of the Queensland Act. The relevant 35-day time frame ought properly to be construed in accordance with section 72(4) of the QBCC Act and section 53A of the QBCC Regulation. The direction to rectify was correct.

• [15] The direction to rectify is not contested. The issues rather are whether the building rectification work was completed within the 35-day period nominated in the direction to rectify and, if not, whether there was an extension of time for compliance made.
• [16] Clearly, rectification work was far from complete by 20 February 2023. Section 72B of the QBCC Act envisages a written application for extension to perform works. That section sets out an exchange regime between builder and Commission to determine any such application. If that is not enough the direction to rectify specifically required a written application for extension. It is well within the purview of the Commission as regulator to require any such application to be in writing. The requirement for a written application to be made denotes a separate singular document.
• [17] It was asserted that oral exchanges and the email trail could be construed as constituting as a whole a written or oral application for extension. That seemed to be based on Mr Rae's expressed concerns as early as 14 February 2023 that timing was becoming an issue for him and Mr Rae's complaint that there was nothing proactive on the part of the Commission suggesting that Nailed It might need an extension of time. It was never for the Commission to have to remind Nailed It of its extension option. That was set out clearly in the direction to rectify. It is difficult to see any failure on the part of the Commission in its obligation to properly inform Nailed It of what it needed to do if an extension was needed. That was for Nailed It to make a written application for extension setting out its reasons.
• [18] It was suggested that Mr Rae's email of 21 February 2023 at 7.20am wherein he stated works had commenced and that there was a need to provide an adequate time for access to do the work was an application for extension of time pursuant to section 72 of the QBCC Act. Firstly, precious little work had been undertaken as of 21 February 2023. Some tiles had been removed and some measurements taken sometime prior. Secondly, it was Mr Rae simply commenting on what he considered to be the state of affairs at that point in time. To read into it that it was a discernible extension application pursuant to section 72 of the QBCC Act implies into his comments a meaning well beyond the meaning normally associated with the words used. Thirdly, the commentary is contained in an email of 21 February 2023 the day after expiry of the 35-day rectification period.
• [19] It seemed to be suggested that the imposition of a 48-hour access notice period imposed by Mr and Mrs Tyas on 13 February 2023 was unreasonable, even amounting to a refusal for site access. In the context of a 35-day rectification period it is difficult to see how that is so. Despite making arrangements to attend on Friday 17 and Saturday 18 February, no person from Nailed It attended site. It was left to Mr and Mrs Tyas to enquire if Mr Rae needed access on Monday 20 February. Mr Rae's response was simply that there was no work to be done if materials were not available. As it transpired necessary materials were not available until 21 February 2023.
• [20] Whilst fairness is a matter to be considered when determining whether a direction to rectify ought to be issued it is not relevant in the current context for the reason the subject of this review application takes issue with the Commission's finding that Nailed It failed to complete the work the subject of the direction to rectify to a satisfactory standard. Not being able to discern an exact period of time for performance of rectification work was never an excuse/reason for not making any extension application at all. It was always open to Nailed It to apply for an extension date within which it could have comfortably rectified and completed.
• [21] With respect to the rectification time frame, it is not necessary to restate the parties' arguments. Suffice to say that section 38 of the Queensland Act is displaced by section 53A of the QBCC Regulation pursuant to which the 35-day rectification period commenced on 16 January and expired on 20 February 2023 at which time no extension application had been made. It was never a case of holding the Commission or Mr and Mrs Tyas accountable or blaming them for delays/failures in timely production of materials leading to an inability to rectify within time but rather it was a case of Nailed It failing to take advantage of the mechanism made available to it to extend and comply. That is unfortunate but irreparable.

• [22] The decision of the Queensland Building and Construction Commission dated 11 May 2023 that building work the subject of its direction to rectify was not of a satisfactory standard is confirmed.