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[2025] QCA 68
appellant. The extension of time to appeal was allowed. The appeal was allowed, the QCAT decision dated 27 August 2024 was set aside, and the matter was returned to QCAT for reconsideration by the same person...
The Court of Appeal set aside QCAT's order requiring a builder to rectify retaining-wall work in accordance with council enforcement orders. The Commission and QCAT had the same relevant limit: they could direct rectification but could not prescribe the method. The builder had also ceased to exist upon deregistration, raising a further issue for QCAT to consider, but the Court did not decide how that issue should be resolved. The matter was sent back to the original QCAT member. The Court granted the short, unopposed extension of time and made no costs order.
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2,102 words · generated 07/10/2026
Kate Austin asked the Queensland Building and Construction Commission (the Commission) to direct her builder to rectify or remedy retaining-wall work at her residential property. Her request relied on s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). That provision applies where the Commission forms the relevant opinion that building work is defective or incomplete, or that consequential damage has been caused by or as a consequence of carrying out building work. If that opinion is formed, the Commission may direct the person who carried out the work to rectify it or remedy the damage.
2 cited instruments linked from this judgment.
On 14 December 2021, the Commission rejected Austin’s request. She applied to the Queensland Civil and Administrative Tribunal (QCAT) for merits review on 21 December 2021. QCAT’s review power was to exercise all the powers and discretions conferred on the Commission. It was therefore subject to the same limit on the scope of s 72.
QCAT heard the application on 2 July 2024. On 27 August 2024, the member set aside the Commission’s decision, substituted a decision and ordered the builder to rectify the relevant work. The order required rectification “in accordance with” two Gold Coast City Council enforcement orders. Those orders went beyond identifying defects: they also specified what the builder was to do and how it was to do it, and addressed matters outside the subject of rectification of building work.
A further complication was that the builder was a corporation deregistered on 27 March 2023. The judgment records that it had not been reinstated. The Commission had raised deregistration before QCAT as relevant to the utility of making an order against the corporation, but the QCAT reasons did not address that point.
The Commission sought an extension of time to appeal. The extension required was relatively short, was explained on the material, caused no prejudice to Austin and was not opposed. Bond JA concluded that it should be allowed, and the other members agreed.
On appeal, both parties accepted that the form of QCAT’s order was beyond power and that the order should be set aside, with the matter returned to QCAT for reconsideration. The Court agreed. It also directed that the reconsideration be conducted by the same person who had constituted QCAT for the original decision. There was no order as to costs.
The central reasoning concerned the boundary of the statutory power under s 72. The parties accepted that the Commission could direct a builder to rectify defective or incomplete work or remedy damage, but could not prescribe the particular means or method for doing so. Bond JA cited R v His Honour Judge McGuire and Hanlon Homes Proprietary Limited, ex parte Builders’ Registration Board of Queensland [1986] 1 Qd R 61 at 66, 69 and 71–72 for that proposition.
QCAT’s power on merits review did not enlarge the Commission’s statutory authority. The judgment states that QCAT could exercise all the powers and discretions conferred on the Commission, and was “limited in the same way as the power of the appellant”. The question was therefore not simply whether the council orders described work related to the defects. The concern was that requiring rectification “in accordance with” those orders made their detailed method requirements part of QCAT’s order. Since s 72 did not confer authority to prescribe the method, the order exceeded the power available to QCAT.
The council orders also addressed matters extraneous to the subject of building-work rectification. That reinforced the difficulty with incorporating them wholesale into the QCAT order. Bond JA described the consequence directly: by requiring rectification in accordance with the orders, the member had made an order “which was beyond power”.
The appeal was allowed in circumstances where the parties agreed on that result. The Court did not independently resolve every question about what a lawful rectification order might look like, nor did it decide whether a different order should be made. Instead, it set aside the QCAT decision and returned the matter for reconsideration by the same member, who was familiar with the case. The Court also declined to prescribe additional procedural steps. Bond JA considered the original member better placed to determine how the parties could assist with reconsideration.
The builder’s deregistration raised a distinct practical and legal question. Under s 601AD of the Corporations Act 2001 (Cth), as quoted in the judgment, a corporation ceases to exist on deregistration. The Court noted that s 601AH provides a power to reinstate a corporation, but the builder had not been reinstated. Bond JA did not decide whether an order against the deregistered company could have utility, whether reinstatement was required, or what procedural approach would be appropriate. Those questions were left for QCAT on remittal.
The judgment does not announce a new general rule changing the scope of s 72. It proceeds on the common ground that the Commission cannot specify the method of rectification, referring to the 1986 Queensland authority in McGuire. It also applies the stated statutory arrangement under which QCAT exercises the Commission’s powers on merits review, and so shares the relevant limit.
Before this appeal, QCAT had made an order linking rectification to council enforcement orders. The Court’s decision set that QCAT order aside because it went beyond the power available under s 72. The legal position after the appeal was not a final determination that no rectification order could be made. The matter was returned to QCAT for reconsideration according to law. The Court did not determine what form any replacement order should take.
The judgment also does not resolve the legal effect of the builder’s deregistration for the application. It states that a deregistered corporation ceases to exist under s 601AD, and that reinstatement is possible under s 601AH. It then identifies, but leaves open, questions about whether a rectification order could have utility, whether an order might support a claim against an insurer under s 601AG, and whether reinstatement might be needed before an order could usefully be made.
Accordingly, the “after” position is procedural and case-specific: the earlier QCAT decision no longer stood, and the same member was to reconsider the matter. The Court’s observations about possible insurer claims, reinstatement and conditional orders are not holdings on those issues. Bond JA expressly disclaimed any view on their validity or merit.
The judgment says: “It is common ground that s 72 does not empower the appellant to specify the particular means or method to be used in rectifying the work or remedying the damage.” In plain English, the Commission could require rectification if the statutory conditions were met, but it could not dictate the technical method. Because QCAT was exercising the Commission’s powers, the same limit applied to QCAT.
Bond JA explained that the council orders “had not merely identified what the defects were but had also contained detailed requirements as to what the builder was to do and how it should do it.” The significance is that the incorporated orders did more than describe the required result or identify defects. They also directed the means of carrying out the work.
The judgment then states that the QCAT member had made an order “which was beyond power” by requiring rectification in accordance with those enforcement orders. That is the basis for setting aside the decision. The Court did not decide what wording could lawfully be used in a fresh order.
On the builder’s status, the judgment quotes s 601AD as providing that a corporation “ceases to exist on deregistration”. In context, this made it necessary for QCAT to consider whether an order against the builder would have any utility. The judgment does not decide that an order would be futile or legally impossible.
Finally, Bond JA said: “I say nothing about the validity or merit of these possibilities.” That caveat applies to the suggested routes involving an insurer, reinstatement, an adjournment or stay, and an order conditional upon reinstatement. They were identified as questions that might arise, not decided as legally available solutions.
The provided judgment extract has no numbered paragraphs. For that reason, paragraph numbers cannot be attached reliably to these passages.
The decision is most directly relevant to a statutory merits-review context where the review tribunal has the same powers and discretions as the original decision-maker. If the original statute does not authorise the decision-maker to prescribe a method, the tribunal cannot obtain a broader power merely because the matter is before it on review. Here, that limit arose under s 72 and concerned an order requiring building work to be performed in accordance with detailed council directions.
The case also matters where a proposed rectification order incorporates a separate enforcement instrument. The relevant question in this judgment was not only whether the incorporated document referred to the defects. It was also whether it prescribed how the builder was to perform the work or swept in matters outside the statutory subject of rectification. The particular order was held beyond power because it did both.
A separate trigger is a proposed order against a corporation that has been deregistered before the tribunal decides the application. The judgment highlights the need to consider the corporation’s status and the practical utility of an order, but it does not prescribe the answer. It flags questions where an insurer may be involved or reinstatement may be contemplated, while leaving those matters open.
The judgment is not a determination that all orders referring to council orders, or all orders involving deregistered builders, are invalid. Its stated conclusion concerns this order’s use of enforcement documents that specified the method and included extraneous matters. The corporation issue was identified for reconsideration rather than resolved.
The supplied judgment contains no information about how later courts have treated this decision. It was delivered on 9 May 2025, and the text provided does not cite any subsequent decisions applying, distinguishing or reconsidering it. A later-treatment history therefore cannot be established from this source alone.
The judgment itself refers to Austin v Queensland Building and Construction Commission [2024] QCAT 352, the decision under appeal, and to R v His Honour Judge McGuire and Hanlon Homes Proprietary Limited, ex parte Builders’ Registration Board of Queensland [1986] 1 Qd R 61. Bond JA cites the latter for the limit on specifying a method of rectification. The text does not describe later judicial treatment of either authority beyond that citation and use.
The safest source-based characterisation is therefore that this Court of Appeal decision applied the stated limit on s 72 to the wording of the QCAT order, while remitting unresolved issues. Any claim about subsequent treatment would require sources beyond the judgment supplied here.
The Court left several issues for QCAT to consider, without expressing a view on their legal validity or merit. First, it may be necessary to decide whether there is any utility in making a rectification order against a corporation that no longer exists following deregistration. The judgment does not determine whether that question is answered by the effect of s 601AD alone or depends on other circumstances.
Second, the Court raised whether a rectification order might establish a foundation for a claim against the builder corporation’s insurer under s 601AG of the Corporations Act 2001 (Cth). The judgment says that this possibility had not been addressed “in any rigorous way” before the Court. It neither confirms that such a claim is available nor decides what an order would need to establish.
Third, if reinstatement under s 601AH is necessary for there to be utility in an order, the procedural route remains open. Bond JA identified possible questions: whether reconsideration could be adjourned or stayed to permit reinstatement; whether QCAT could make a rectification order conditional upon reinstatement; or whether it could make an order that took effect if the corporation were reinstated. The Court expressly did not decide whether any of those approaches would be appropriate.
Finally, the judgment does not settle how any new rectification order should be framed. It establishes that the order made could not require work to be done in accordance with council orders that prescribed the method and contained extraneous requirements. It leaves the original QCAT member to determine how the matter should proceed and how the parties may assist with reconsideration.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
[2025] QCA 68
COURT OF APPEAL
BOWSKILL CJ
BOND JA
CALLAGHAN J
Appeal No 16634 of 2024
QCAT No 3 of 2022
QUEENSLAND BUILDING AND Appellant
CONSTRUCTION COMMISSION
v
KATE AUSTIN Respondent
BRISBANE
FRIDAY, 9 MAY 2025
JUDGMENT
BOND JA: The appellant seeks to appeal from the decision made by the Queensland Civil and Administrative Tribunal in Austin v Queensland Building and Construction Commission [2024] QCAT 352. In order to do so, the appellant has applied for an extension of the time within which to file its notice of appeal. The extension needed is relatively short, explained on the material, causes no prejudice to the respondent, and is not opposed by the respondent. Accordingly, the application for extension of time should be allowed.
BOWSKILL CJ: I agree.
CALLAGHAN J: I agree.
BOND JA: The respondent had sought a direction from the appellant that a builder be directed to rectify or remedy certain retaining wall works carried out for the respondent at a residential property pursuant to s 72 of the Queensland Building and Construction Commission Act 1991 (Qld). Section 72 applies if the appellant forms the opinion that building work is defective or incomplete, or that consequential damage has been caused by or as a consequence of carrying out building work. If it forms that opinion, s 72 relevantly empowers the appellant to direct the person who carried out the building work to rectify the defective or incomplete building work or to remedy the damage.
It is common ground that s 72 does not empower the appellant to specify the particular means or method to be used in rectifying the work or remedying the damage: see R v His Honour Judge McGuire and Hanlon Homes Proprietary Limited, ex parte Builders’ Registration Board of Queensland [1986] 1 Qd R 61 at 66, 69, and 71-72.
On 14 December 2021, the appellant rejected the respondent’s request that it issue a rectification direction to the respondent’s builder pursuant to s 72. On 21 December 2021, the respondent then applied to QCAT for a merits review of the appellant’s decision. The power of QCAT on such an application is to exercise all the powers and discretions conferred on the appellant. Accordingly, the power of QCAT was limited in the same way as the power of the appellant.
The application was argued before a judicial member on 2 July 2024. The material does not reveal why the application took two and a half years to come on for hearing. In any event, the learned judicial member delivered his decision with commendable promptness. On 27 August 2024, the respondents succeeded before the learned member when he set aside the appellant’s decision, substituted his own decision, and ordered the builder to rectify the relevant building work.
The form of order specified that the rectification work be done “in accordance with” two specified enforcement orders which had been issued under the authority of the Chief Executive Officer, Council of the City of Gold Coast. The first problem with the form of order was that the specified Council enforcement orders had not merely identified what the defects were but had also contained detailed requirements as to what the builder was to do and how it should do it. They also addressed matters extraneous to the subject matter of rectification of building work. The result was that by requiring the rectification work to be done “in accordance with” the enforcement orders, the learned member had made an order which was beyond power.
The second problem was that the builder, which was a corporation, had been deregistered on 27 March 2023. Pursuant to s 601AD of the Corporations Act 2001 (Cth), “[a] corporation ceases to exist on deregistration”. Although there is power under s 601AH to have a corporation reinstated, that had not been done. Before the learned member, the appellant had raised the fact that the builder corporation had been deregistered in support of a submission that there was limited utility in making an order against a deregistered company, but the learned member did not advert to that consideration in his reasons.
Before this Court, both the appellant and the respondent agreed that the form of order which had been made was beyond power. They agreed that the appeal should be allowed, the order set aside, and the matter returned to QCAT for reconsideration. The respondent sought that it be returned to the learned member who made the original decision and the appellant did not oppose that proposition. This court is empowered to make such orders by s 153 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The parties agreed that there should be no order as to costs. The parties were in mild disagreement as to whether the court should make further directions pursuant to s 153(2)(c)(ii) of the Queensland Civil and Administrative Tribunal Act 2009. The respondent submitted that the court should direct “each party to make short written submissions (up to five pages) to the Tribunal to identify the manner in which the Tribunal could frame appropriate orders according to law, based on the factual findings made in the Tribunal’s Reasons”. The appellant submitted that that course would be overly prescriptive, and the better course would be simply to leave it up to the Tribunal to determine how best to proceed with the requisite reconsideration of the matter.
I agree with the appellant. The learned member is seized of the details of the matter and is better placed than this Court to determine the best way in which the parties can assist him to carry out the requisite reconsideration of the matter.
It is obvious that it will be necessary to consider whether there is any utility at all in making a rectification order against a corporation which does not exist, and which could not – even if reinstated – actually carry out rectification work. That question was not addressed in any rigorous way before this Court, but it might be necessary to consider whether a rectification order could establish the foundation of a claim against an insurer of the builder corporation pursuant to s 601AG of the Corporations Act. Alternatively, if reinstatement of the builder corporation pursuant to s 601AH of the Corporation Act is necessary before there could be any utility in making an order, it might be necessary to consider whether there is a valid and appropriate procedural solution to that issue. Would it be appropriate to adjourn or stay the further reconsideration to permit reinstatement to occur? Alternatively, could QCAT make a rectification order conditional upon reinstatement of the builder corporation? Or make an order which took effect if the builder corporation was reinstated? Save to say that these and other matters might arise on any reconsideration of the matter according to law, I say nothing about the validity or merit of these possibilities.
I would make the following orders in the context that an order extending time within which to appeal has already been made:
The appeal is allowed.
The decision made by the tribunal dated 27 August 2024 is set aside.
The matter is returned to the Tribunal for reconsideration.
The Tribunal reconsidering the matter must be the same person who constituted the Tribunal when the decision was made.
There be no order as to costs of the application for extension of time or of the appeal.
BOWSKILL CJ: I agree with the reasons given by Justice Bond and with the orders as proposed by his Honour.
CALLAGHAN J: I agree.
BOWSKILL CJ: So, accordingly, the orders of the court are that:
The appeal is allowed.
The decision made by the tribunal dated 27 August 2024 is set aside.
The matter is returned to the tribunal for consideration.
The tribunal reconsidering the matter must be the same person who constituted the tribunal when the decision was made.
There be no order as to costs of the application for extension or of the appeal.
Queensland Building and Construction Commission
Austin [2025] QCA 68
The extension of time to appeal was allowed. The appeal was allowed, the QCAT decision dated 27 August 2024 was set aside, and the matter was returned to QCAT for reconsideration by the same person who constituted the Tribunal when the decision was made. There was no order as to costs of the extension application or appeal.