In the Queensland Civil and Administrative Tribunal (Tribunal) decision of JPD Concreting Specialists Pty Ltd v Queensland v Building and Construction Commission [2020] QCAT 453, the Tribunal set aside the Queensland Building and Construction Commission’s (Commission) internal review decision to issue a Direction to Rectify (DTR) because the Tribunal:
- was not satisfied that the building work was defective; and
- determined it would be unfair to give the DTR.
JPD Concreting Specialist Pty Ltd (JPD) applied a stenciled resurfacing compound known as “Covacrete” over patio and external concrete areas at a property in Margate (Works). The homeowner complained to JPD about alleged patches of white discolouration, which was later determined to be a textural difference on the surface of the Covacrete, which at certain angles gave a white appearance. The Commission accepted the homeowner’s complaint and issued a DTR.
The decision to issue a DTR is classified as a “reviewable decision” pursuant to Section 86(1)(e) of the Queensland Building and Construction Commission Act 1991 (QBCC Act) which allowed JPD to apply to the Tribunal to externally review that decision pursuant to section 87 of the QBCC Act.
Member King-Scott in his decision considered the discretionary power the QBCC has to issue a DTR pursuant to section 72 of the QBCC Act. Section 72 relevantly provides the following:
“(1) This section applies if the commission is of the opinion that –
(a) building work is defective or incomplete; or
(b) …
(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) …
…
(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).
…
(5) The commission is not required to give a direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.”
The word “defective” is defined in the QBCC Act as being “faulty or unsatisfactory” building work. The Member referred to the definition in the QBCC’s Rectification of Building Work Policy which relevant provides:
“Building work that is faulty or unsatisfactory, and includes, for example, work that:
(a) does not comply with the Building Act 1975, Building Code of Australia or an applicable Australian Standard
(b) 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.”
The Commission conceded that there were no applicable Australian Standards and the Commission’s own Standards and Tolerances Guide did not address the application of the Covacrete product. The evidence before the Tribunal was that JPD had applied the product in accordance with the manufacturer’s instructions and had offered to rectify minor defects (due to poor masking near the homeowner’s sidewall) in the Works which was refused by the homeowner.
The opinion of the Commission’s building inspector was that it would not be reasonable to direct JPD to remove and respray the entire floor area for what was some minor textural inconsistencies.
The Member was not satisfied that the building work was defective, and even if the work was defective, the Member considered it would be unfair to give the DTR.
The DTR was set aside.
Despite the broad definition of “defective” building work in the QBCC Act and the Commission’s wide discretion to issue a DTR, this case is an example where a builder has successfully reviewed a DTR decision after taking all reasonable steps to perform the work in accordance with the manufacturer’s requirements.
If you have received a DTR or internal review decision about a DTR and would like advice on your review rights, please contact our team of construction lawyers on (07) 3139 1874 or email us at info@constructlaw.com.au.
This article is provided for general information and educational purposes only and does not constitute legal advice. Readers should obtain appropriate independent legal advice based on their own specific circumstances.
