Queensland Building and Construction Commission v Castro [2026] QCATA 53

Queensland Building and Construction Commission Regulation 2018 (Qld), 53A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(2)(b), s 146(b)

Dong v Queensland Building and Construction Commission [2025] QCATA 123

Ericson v Queensland Building and Construction Commission [2014] QCA 297

Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557

McNab Constructions Australia Pty Ltd v Queensland Building Services Authority [2013] QSC 57

Parkside Bulimba CTS46539 v Queensland Building and Construction Commission [2024] QCATA 109

Mr M Black of Counsel instructed by Ms L May of Queensland Building and Construction Commission

Mr S Watson, Ms C Vinney and Mr A Hollis of King & Wood Mallesons.

[1] This is an application by the Queensland Building and Construction Commission (the QBCC) to appeal a decision of the Tribunal made on 25 June 2025 refusing to make an order extending the time for giving a direction to rectify under s 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act'), so that effect could be given to an earlier decision made on 20 March 2025 that a direction to rectify issue from the QBCC.

[2] The Member below refused to make an order extending time because he concluded the direction to rectify could be issued by the Tribunal in reliance on s 24(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). The Member thought the application for an extension of time for the QBCC to issue the direction to rectify was misconceived. The Member proceeded to direct rectification by the builder by his order dated 25 June 2025.

[3] In this matter questions of law alone are raised. The Appeal Tribunal will proceed under s 146 of the QCAT Act. Leave to appeal is not required.

[4] The parties agree and submit the Member was in error:

(a) as to the operation of s 24(2)(b) of the QCAT Act, and

(b) in purporting to issue a direction to rectify to the builder outside the limitation period in s 72A(4) of the QBCC Act.

[5] The QBCC does not challenge the Tribunal's finding that a direction to rectify should be issued to the builder. Other than as addressed in this decision the decision below is not challenged. The QBCC submits that a direction to rectify can only be issued if an extension of the limitation period is first granted to the QBCC. The last date for issuing a direction to rectify under s 72A(4) of the QBCC Act expired on 5 December 2024, being 6 years and 6 months after the relevant building work was completed.

[6] The parties rely on McNab Constructions Australia Pty Ltd v Queensland Building Service Authority[1] and on my reasoning in Body Corporate for Parkside Bulimba CTS46539 v Queensland Building and Construction Commission[2] that:

(a) S 24(2)(b) of the QCAT Act cannot operate to deem a direction to rectify to be given within the 6 year 6 month time frame when it must be sent out in real time, well outside the limitation period and contrary to the terms of s 72A(4) of the QBCC Act.

(b) Once a decision to issue a direction to rectify is viewed as separate to the direction itself, s 24(2)(b) comes into play to deem any substituted decision to have been made on the date of the decision under review.

(c) The QBCC may send the direction to rectify outside the 6 year 6 month time frame once it has made and been granted an extension of time to do so under s72A(4).

[7] The Member did not rely on any authority for his conclusion and orders.

[8] I accept the submissions of the parties and agree that the reasoning in Parkside is apposite to the facts in issue in this matter, noting that the reasoning has now been followed in another Appeal Tribunal matter.[3]

[9] The Member gave reasons for his decision on 17 July 2025. I find that the Member was in error to find that the Tribunal is empowered to make of its own volition, and to issue, a direction to rectify which has effect from when the reviewable decision took effect, under s 24(2)(b) of the QCAT Act. The Member was in error to find that the Tribunal is empowered to directly make a decision encompassing the extension of any decision the Commission could have made.[4] The attempt to bring the direction to rectify within the 6 year 6 month period by means of s 24(2)(b) was misconceived.

[10] I accept the submissions of the respondent that the orders made result in problems as to service of the notice and scope of the notice because the builder was not a party to the primary proceeding and has no means of becoming aware of the order. This is likely to result in further delay in already protracted proceedings.

[11] Further, compliance with s 53A of the Queensland Building and Construction Commission Regulation 2018 (Qld) is not possible if the Member's application of s 24(2)(b) of the QCAT Act is correct, as rectification cannot be undertaken within 35 days of the date of the direction to rectify deemed to have been given on 26 July 2023.

[12] The parties are in agreement as to the orders the Appeal Tribunal should make in this proceeding.

[13] Even where there is agreement the Appeal Tribunal is bound to exercise its discretion. There must be satisfaction that there was an error to be corrected and for the error to be identified.[5] I am satisfied as to error, as found in this decision.

[14] The Appeal Tribunal intends to set aside those parts of the decision below the subject of this appeal and to substitute its own decision under s 146(b) of the QCAT Act.[6]

[15] As requested by the parties I consider it appropriate to make the following orders:

(a) Orders 1 and 5 of the Tribunal's orders dated 25 June 2025 are set aside.

(b) Order 1 of the Tribunal's order made on 25 June 2025 is substituted with an order that:

Pursuant to section 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld), the time for the Queensland Building and Construction Commission to issue a direction to rectify to Rockwell Group Construction Pty Ltd in accordance with Order 2 of the Tribunal's orders dated 20 March 2025, is extended until 27 March 2026.

[1] [2013] QSC 57.

[2] [2024] QCATA 109, [85].

[3] Followed by Judicial Member Forrest in Dong v Queensland Building and Construction Commission [2025] QCATA 123.

[4] Castro v QBCC unpublished reasons for decision dated 7 July 2025 at [7].

[5] Kovalev v Minister for Immigration and Multicultural Affairs [1999] FCA 557, [11], [13], [14].

[6] Ericson v Queensland Building and Construction Commission [2014] QCA 297.